author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Eric RICHARDSON.
    No. 09-KA-714.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On April 12, 2006, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Eric Richardson, with possession of a firearm while in possession of heroin, in violation of LSA-R.S. 14:95(E), and possession of cocaine in excess of 28 to 199 grams, in violation of LSA-R.S. 40:967. Defendant was arraigned on April 17, 2006, and pled not guilty to these charges.

Defendant filed a motion to suppress evidence. A hearing on the motion was held on July 9, 2007. The following facts were taken from the testimonies presented at the hearing on the motion to suppress. On March 22, 2006, Agent Robert Blackwell of the Jefferson Parish Sheriffs Office was executing search warrants for a residence and a FEMA trailer located at 7804 Richard Street in Metairie. Agent Blackwell prepared the application for the search warrant following a controlled buy out of the residence using a confidential informant he had used in the past and whom he considered reliable. Also, complaints from citizens in the neighborhood were received. With the warrant, the agents were looking for illegal narcotics or any paraphernalia or currency associated with the Usale of illegal narcotics. The confidential informant gave the agents the address and defendant’s name. A physical description of defendant was received and officers were advised that he was possibly armed. Also, two car descriptions for a Ford Crown Victoria and a Pontiac Grand Prix were given as vehicles defendant drove. Defendant was known to reside in the FEMA trailer.

Agent Blackwell was standing in the street when a black Land Rover came down the street without any lights. Agent Blackwell got out of the street and yelled “Turn your lights on.” The vehicle backed up and pulled into the driveway of the residence. Defendant was the driver of the vehicle. The vehicle was registered to a female who came to the scene a few minutes later and identified herself as defendant’s girlfriend. At this point, drug paraphernalia had been seized from the trailer and a rifle, pistol, and crack cocaine had been seized from the residence.

Defendant opened the vehicle door and Agent Blackwell ordered the other two agents to detain him because he was reaching his hand under the seat. Agent Blackwell was concerned that he would pull out a weapon based on the information they had received. A loaded Taurus .45 caliber semiautomatic handgun and a clear plastic bag containing cocaine and heroin were recovered in the area in which defendant was reaching. Defendant was arrested.

Sergeant Bougal located some keys in the vehicle and one was a Ford key. A Ford Crown Victoria was parked in the front of the residence. The officers knew this was one of the vehicles defendant used. Sergeant Bougal ran the plate to verify the car was registered to defendant. Sergeant Bougal noticed the “headliner” was down and when he shined his flashlight he observed something in the headliner. He walked a canine dog past the car and the dog alerted to the vehicle. Sergeant Bougal used the key to open the vehicle and the dog entered and ^immediately alerted to the headliner area of the vehicle. A clear plastic bag was recovered from the headliner area. Agent Blackwell believed it contained crack cocaine.

On July 9, 2007, the trial court denied defendant’s motion to suppress evidence, and defendant noted his objection. On May 19, 2009, defendant withdrew his former not guilty pleas and pled guilty as charged to possession of a firearm while in possession of heroin and possession of over 28 grams and less than 200 grams of cocaine. On this same date, defendant was sentenced to 18 years imprisonment at hard labor for the possession of cocaine in excess of 28 grams conviction and to five years imprisonment at hard labor for the possession of a firearm while in possession of heroin conviction. The sentences were ordered to run concurrently with each other. Defendant filed a pro se motion for appeal on May 28, 2009, and his appeal was granted on June 10, 2009.

ASSIGNMENT OF ERROR NUMBER ONE

In his assignment of error number one, defendant argues the trial court erred in denying his motion to suppress the evidence. He argues that the evidence seized from the Land Rover should have been suppressed because the search warrant did not include the Land Rover. Further, defendant argues that the Land Rover could not be searched without probable cause to arrest him and the State failed to prove there was probable cause for his arrest. Defendant recognizes that a Crosby plea was not specifically mentioned in this case, but notes that he made an objection to the ruling in the suppression hearing and the trial court acknowledged that the objection was preserved.

The State responds that defendant’s claim that the trial court erred in denying his motion to suppress evidence was waived upon entry of his unqualified Isguilty plea. The State contends that defendant did not reserve his appellate rights under State v. Crosby and acknowledged he was waiving his right to appeal. The State notes that in exchange for the unqualified plea the State agreed not to file a multiple bill against defendant. The State provides that it has fulfilled its end of the plea agreement, which resulted in a substantial sentencing benefit to defendant. The State concludes that defendant must be held to the terms of the plea bargain in which he knowingly and voluntarily entered and that appellate review should be denied.

We find that defendant did not preserve his right to raise this suppression issue on appeal. A guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the entry of the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. King, 99-1348, p. 3 (La.App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied, 00-1824 (La.6/29/01), 794 So.2d 822. A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Id. Under State v. Crosby, 338 So.2d 584 (1976), a defendant may reserve his right to appeal an adverse prior ruling of the trial court. Id. A defendant who fails to specify which pre-trial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196 (per curiam).

In this case, we find that defendant, who was represented by counsel, did not enter his guilty plea under Crosby. On May 19, 2009, prior to the colloquy with defendant, defense counsel stated, “Before we go through the colloquy, the defendant wanted me to put on the record, one, that he wanted to make sure there was an objection to the original rulings by Judge Hand to the motions to suppress.” |fiThe trial judge responded, “Okay. Your objections are noted.” Although the objections to the suppression rulings were noted, we find that this statement, which defendant wanted on the record, did not serve as part of the plea agreement and did not preserve review of the ruling on appeal.

Defendant expressly acknowledged that he was waiving his right to appeal. Specifically, during the colloquy the trial judge informed defendant that, by pleading guilty, he was waiving his right to appeal any verdict of guilty that might be returned against him at trial. Defendant acknowledged that he understood this. Additionally, defendant initialed and signed a waiver of rights form that reflects defendant understood that by pleading guilty he was waiving his right to appeal any verdict of guilty that might be returned at trial. There was no mention that the guilty plea was being entered pursuant to Crosby either during the plea colloquy or on the waiver of rights form. Thus, at the time defendant entered his plea, we find he made no reservation of his rights pursuant to Crosby.

This Court has consistently held that a defendant’s failure to reserve the right to appeal under Crosby at the time he enters his guilty plea precludes his right to appeal the trial court’s ruling on a motion to suppress. See State v. Smith, 09-168 (La.App. 5 Cir. 6/23/09), 19 So.3d 509; State v. Cox, 02-0333, pp. 3-5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-24; State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632; State v. King, 99-1348 at 3-4, 761 So.2d at 793; and, State v. Barousse, 442 So.2d 1220, 1220-21 (La.App. 5 Cir.1983).

In Smith, 09-168, 19 So.3d 509, the defendant challenged the denial of his motion to suppress the evidence. This Court found that although there were three references to Crosby in the record, at the time the defendant entered his plea, there was no mention of Crosby. This Court found that because the defendant did not enter his guilty plea under Crosby, he had not preserved his rights to appeal the ^denial of his motion to suppress. As such, this Court found the defendant in Smith was precluded from raising this issue on appeal and this Court dismissed the appeal.

Based on the foregoing, we find that the defendant in this case has failed to preserve his rights to appeal the denial of his motion to suppress because he did not enter his guilty pleas under Crosby. As such, defendant is precluded from raising this suppression issue on appeal.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters are presented for review.

It is noted that the waiver of rights form reflects defendant pled guilty to LSA-R.S. 40:967(C), instead of subsection (F). However, the offense was described in the waiver of rights form as possession of over 28 grams of cocaine. Defendant was charged with Subsection (F) of this statute, which provides for a grade of the offense which involves possession of “twenty-eight grams or more, but less than two hundred grams, of cocaine[.]” Defendant withdrew his not guilty pleas and pled guilty as charged. The offense was described during the colloquy by defense counsel and the trial judge as possession of over 28 grams and under 200 grams of cocaine. It appears defendant pled guilty to subsection (F) and was aware of the nature and grade of the offense in which he was pleading. Defendant does not raise this argument on appeal or challenge his guilty plea. Therefore, no corrective action is required regarding this error.

Next, the commitment reflects defendant pled guilty to “POSS/WITD CDS OVER 28 GRAMS — COCAINE.” However, this notation appears inaccurate since according to the transcript defendant pled guilty to possession of 28 grams or |smore but less than 200 grams of cocaine. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we direct the district court to make an entry in the minutes reflecting the proper grade of offense, and the fact that defendant pled guilty to possession of 28 grams or more but less than 200 grams of cocaine, not possession with intent to distribute the cocaine. We further direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been committed. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

We also find there is a discrepancy with the commitment regarding the LSA-R.S. 14:95(E) conviction. The commitment reflects that defendant pled guilty to “USE OF FIREARM/CDS-HEROIN.” Defendant actually pled guilty to possession of a firearm while in possession of heroin. However, because the use of the firearm and the possession of the firearm are both covered in the statute, we find that this matter does not require correction. LSA-R.S. 14:95(E) provides for a violation “[i]f the offender uses, possesses, or has under his immediate control any firearm ... while in the possession of ... a controlled dangerous substance.” (Emphasis added).

There are also potential discrepancies between the transcript and commitment regarding sentencing. Again, the transcript prevails. See State v. Lynch, supra. The commitment reflects defendant was sentenced to five years imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the LSA-R.S. 14:95(E) conviction. According to the transcript, when originally imposing the LSA-R.S. 14:95(E) sentence, the trial judge confused the two sentences and apparently imposed the sentence for the LSA-R.S. 14:95(E) conviction as the sentence for the LSA-R.S. 40:967(F) conviction and vice versa. |9However, defense counsel noted the issue and the judge attempted to correct the problem. The five-year sentence initially imposed, which was mistakenly associated with the LSA-R.S. 40:967(F) conviction, was imposed at hard labor. However, after noting the mistake, the trial judge agreed the five year sentence was for the LSA-R.S. 14:95(E) conviction, but did not restate that it would be imposed at hard labor. LSA-R.S. 14:95(E). We find no corrective action is necessary because the record appears to adequately reflect correction of the trial judge’s sentencing mistake.

The commitment reflects defendant was sentenced to 18 years imprisonment at hard labor, with the first five years of the sentence to be served without benefit of probation or suspension of sentence for the LSA-R.S. 40:967(F) conviction. According to the transcript, the 18-year sentence was originally imposed for the LSA-R.S. 14:95(E) charge. When originally imposed and also when corrected, the 18-year sentence was ordered to be served at hard labor. However, the trial judge did not provide for any restriction of benefits. LSA-R.S. 40:967(G) provides the following regarding the restriction of benefits:

With respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.
The minimum sentence under LSA-R.S. 40:967(F)(l)(a) is a five-year sentence. As such, it appears the first five years of the 18-year sentence was required to be served without benefits. See LSA-R.S. 40:967(F); LSA-R.S. 40:967(G).

Also, under LSA-R.S. 14:95(E), the sentence shall be imposed “without the benefit of probation, parole, or suspension of sentence.” The commitment reflects that the sentence was imposed without benefit of parole, probation, or suspension 1 mof sentence. According to the transcript, after the sentence was announced, defense counsel noted that the five-year sentence for LSA-R.S. 14:95(E) is without benefit of parole, probation, or suspension of sentence. The trial judge simply noted, “But they will run concurrently with all the other sentences. So he’s looking at 18 years.”

Such errors need not be corrected on remand. Under State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A), the “without benefits” provision is self-activating. State v. Esteen, 01-879, pp. 29-30 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78-79, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

Next, we find defendant received illegally lenient sentences regarding mandatory fines. As noted by the State, the mandatory fine set forth in LSA-R.S. 40:967(F)(l)(a) was not imposed. LSA-R.S. 40:967(F)(l)(a) requires a fine of “not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.” Defendant also pled guilty to LSA-R.S. 14:95(E) and did not receive a fine for this conviction. LSA-R.S. 14:95(E) requires a fine of “not more than ten thousand dollars.” This Court has held that a statute, providing for a fine for “not more than” a specified amount, does require a mandatory fine. However, this Court has noted that the matter is not free from doubt. State v. Kerlec, 06-838, p. 8 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626.

In State v. Grant, 04-341, p. 4 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598, this Court noted that it had the authority to correct an illegally lenient sentence, despite the fact that neither party had raised the issue below or on appeal, but that such authority is permissive rather than mandatory and noted this Court has, on occasion, declined to remand for imposition of a mandatory fine. This |⅜1 Court further noted in Grant that when a defendant is sentenced pursuant to a guilty plea, this Court has withheld from correcting an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in disposition of the case favorable to the defendant. Grant, 04-341 at 4-5, 887 So.2d at 598; State v. Massey, 02-872, p. 7 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, 865, writ denied, 03-0805 (La.10/17/03), 855 So.2d 758 (citing State v. Campbell, 01-0329, p. 1 (La.11/2/01), 799 So.2d 1136, 1136 (per curiam)).

It is undisputed that the appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081. The Louisiana Supreme Court has held that an appellate court has the authority under LSA-C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. Campbell, 08-1226 at 8, 15 So.3d at 1081, citing State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Since that time, this Court has used that authority to notice the failure of the trial court to impose a mandatory fíne and the authority to remand the matter to the trial court for imposition of a mandatory fine. However, often in indigent defender matters, this Court has decided not to use this authority. Campbell, 08-1226 at 8, 15 So.3d at 1081.

In State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, this Court declined to remand the matter for imposition of the mandatory fine due to the defendant’s indigent status, noting the following:

| íüThis Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. Recently, in State v. Campbell, 08-1226, (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, this Court noted defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine. In the present case, it is noted that defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

Id. See also State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, in which this Court noted that defendant appeared indigent because he was represented by the Louisiana Appellate Project and then refrained from exercising its authority to correct the illegally lenient sentence that was imposed without the mandatory fine since the defendant’s sentence resulted from a guilty plea. Therefore, we decline to remand this matter to the trial court for resentencing to include the mandatory fine.

Accordingly, we affirm defendant’s conviction and sentence and remand for correction of the error patent discussed above.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Eric RICHARDSON.
    No. 09-KA-715.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| STATEMENT of the case

On May 30, 2006, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Eric Richardson, with possession with intent to distribute heroin in violation of LSA-R.S. 40:966(A). Defendant was arraigned on June 1, 2006, and pled not guilty to this charge.

Defendant filed a motion to suppress evidence. A hearing was held on this motion on September 28, 2006. The following facts were elicited from the hearing. On May 15, 2006, Officer Daniel Jewell, Jr. of the Jefferson Parish Sheriffs Office investigated the sale of illegal narcotics on North Elm Street in Metairie. On this date, at 11:00 p.m., surveillance was established on North Elm Street, an area notorious for the distribution of illegal narcotics. During the surveillance, Detective Módica saw a silver-colored vehicle pull onto the west side of the 600 block of North Elm Street. The vehicle parked and the lights were turned off. However, the driver did not exit the vehicle. For 30 minutes, Detective Módica observed what he perceived to be three narcotics transactions, with pedestrians approaching the driver’s side window of the silver vehicle and leaning | ¡¡into the vehicle, then walking away. Detective Módica relayed this information to Officer Jewell, who decided to investigate the matter.

Officer Jewell approached the vehicle, with clothing that identified himself as “POLICE” while verbally identifying himself as well, and illuminated the passenger area of the vehicle. He observed the driver of the vehicle, who was later identified as defendant, shoving his left arm down near the floorboard by the driver’s door. Based on this, as well as the nature of the area and what was previously observed, defendant was asked to exit the vehicle and to show his hands when doing so. While exiting, defendant shut the door. However, the driver’s window was down.

Officer Jewell looked inside the vehicle in the area where he had observed defendant shoving an item and he saw a plastic bag containing silver folded pieces of aluminum foil. The bag was retrieved and contained 31 folded pieces of aluminum foil. A preliminary field test confirmed it contained heroin. Defendant was arrested, and subsequent to his arrest he was found to be in possession of $510.00.

The trial court denied defendant’s motion to suppress evidence. On May 19, 2009, defendant withdrew his former not guilty plea and pled guilty as charged to possession with intent to distribute heroin. On this same date, defendant was sentenced to 18 years imprisonment at hard labor with the first five years to be served without benefit of probation or suspension of sentence. Defendant filed a pro se motion for appeal on May 28, 2009, and his appeal was granted on June 10, 2009.

| ¡ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues the trial court erred in denying his motion to suppress the evidence. He argues that the evidence seized from an illegal search and seizure should be suppressed. Defendant contends Officer Jewell did not have reasonable suspicion to approach and detain him. Defendant recognizes that a Crosby plea was not specifically mentioned in this case, but notes that prior to the plea in this matter he made an objection to the suppression ruling and the trial court acknowledged that the objection was preserved.

The State responds that defendant’s claim that the trial court erred in denying his motion to suppress evidence was waived upon entry of his unqualified guilty plea. The State contends that defendant did not reserve his appellate rights under State v. Crosby and acknowledged he was waiving his right to appeal. The State notes that in exchange for the unqualified plea the State agreed not to file a multiple bill against defendant. The State provides that it has fulfilled its end of the plea agreement, which resulted in a substantial sentencing benefit to defendant. The State concludes that defendant must be held to the terms of the plea bargain in which he knowingly and voluntarily entered and that appellate review should be denied.

We find that defendant did not preserve his right to raise this suppression issue on appeal. A guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the entry of the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. King, 99-1348, p. 3 (La.App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied, 00-1824 (La.6/29/01), 794 So.2d 822. A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the |scase. Id. Under State v. Crosby, 338 So.2d 584 (1976), a defendant may reserve his right to appeal an adverse prior ruling of the trial court. Id. A defendant who fails to specify which pre-trial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196 (per curiam).

We find that defendant, who was represented by counsel, did not enter his guilty plea under Crosby. On May 19, 2009, prior to the colloquy with defendant, defense counsel stated, “Before we go through the colloquy, the defendant wanted me to put on the record, one, that he wanted to make sure there was an objection to the original rulings by Judge Hand to the motions to suppress.” The court provided the objections were noted. Although the objections to the suppression rulings were noted, we find that this statement, which defendant wanted on the record, did not serve as part of the plea agreement and did not preserve review of the ruling.

Defendant expressly acknowledged that he was waiving his right to appeal. Specifically, during the colloquy the trial judge informed defendant that, by pleading guilty, he was waiving his right to appeal any verdict of guilty that might be returned against him at trial. Defendant acknowledged that he understood this. Additionally, defendant signed a waiver of rights form that reflects defendant understood that by pleading guilty he was waiving his right to appeal any verdict of guilty that could be returned at trial. There was no mention that the guilty plea was being entered pursuant to Crosby either during the plea colloquy or on the waiver of rights form. Thus, at the time defendant entered his plea he made no reservation of his rights pursuant to Crosby.

This Court has consistently held that a defendant’s failure to reserve the right to appeal under Crosby at the time he enters his guilty plea precludes his right |fito appeal the trial court’s ruling on a motion to suppress. See State v. Smith, 09-168 (La.App. 5 Cir. 6/23/09), 19 So.3d 509; State v. Cox, 02-0333, pp. 3-5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-24; State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632; State v. King, 99-1348 at 3-4, 761 So.2d at 793; and, State v. Barousse, 442 So.2d 1220, 1220-21 (La.App. 5 Cir.1983).

In Smith, 09-168, 19 So.3d 509, the defendant challenged the denial of his motion to suppress the evidence. This Court found that although there were three references to Crosby in the record, at the time the defendant entered his plea, there was no mention of Crosby. This Court found that because the defendant did not enter his guilty plea under Crosby, he had not preserved his rights to appeal the denial of his motion to suppress. As such, this Court found the defendant was precluded from raising this issue on appeal and dismissed the appeal.

Based on the foregoing, we find the defendant has failed to preserve his rights to appeal the denial of his motion to suppress because he did not enter his guilty plea under Crosby. Therefore, we find the defendant is precluded from raising this suppression issue on appeal.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 812 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters are noted.

First, there is a discrepancy between the commitment and the transcript. Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). The commitment reflects defendant pled guilty under LSA-R.S. 40:966(A) and describes the offense as “DIST/WTTD OF A CDS heroin.” Defendant actually pled guilty to possession with intent to distribute heroin. Thus, we find that the | commitment suggests a distribution of heroin conviction instead of a possession with intent to distribute heroin conviction.

In State v. Alexander, 08-580, p. 10 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, 738-39, this Court noted that the commitment reflected that the defendant was found guilty of “DIST/WITD OF A CDS-HEROIN.” This Court noted that the commitment made it unclear as to whether the defendant was convicted of possession with intent to distribute, or of the separate offense of distribution. Therefore, this Court ordered the trial court to amend the commitment nunc pro tunc to properly reflect the offense for which defendant was convicted in order to prevent confusion. See also State v. Woolridge, 08-340, p. 9 (La.App. 5 Cir. 10/14/08), 996 So.2d 618, 623-24.

Accordingly, we order that the commitment in the present case be amended to accurately reflect the possession with intent to distribute conviction. We further direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been committed. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Accordingly, we affirm the defendant’s conviction and sentence and remand this matter with instructions to correct the error patent discussed above.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: WALTER J. ROTHSCHILD, Judge.

text:
    Ellery BRIDGES v. Wendy Borne BRIDGES.
    No. 09-CA-742.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Juan A. Byrd, Attorney at Law, Luling, LA, for Plaintiff/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKS HOMBERG WICKER, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

| ¿The parties, Ellery and Wendy Bridges, were married on December 24, 1988. Two children, Jia and Jaden Bridges, were born of this marriage. On August 10, 2007, Ellery filed a “Petition for Divorce under Article 102.” On January 23, 2009, Wendy filed an “Answer and Reconventional Demand,” in which she sought exclusive use and occupancy of the matrimonial domicile and joint custody of the parties’ children with her being designated as the domiciliary parent, as well as other incidental matters.

These matters came before the trial court for hearing on February 10, 2009. At the conclusion of the hearing, the trial judge took the matter under advisement. On February 18, 2009, the trial judge rendered a judgment awarding use and occupancy of the matrimonial domicile to Wendy, pending further orders of the court. She further ordered that the parties have joint custody of the two children, with Wendy designated as the primary custodial parent and with Ellery to have physical custody every other weekend and for six weeks during the summer, as well as alternating holidays as set forth in the judgment.

On February 26, 2009, Ellery filed a “Motion to Reconsider or Alternatively, Motion for New Trial,” arguing that Wendy had failed to meet her burden of Improving that a shared custody arrangement was not in the best interest of the children or that an equal sharing of time with the minor children was not feasible or in the best interest of the children. After a hearing on April 1, 2009, the trial judge denied the motion, stating that the main reason she did not order a shared or “50/50” custody arrangement was because Ellery’s work schedule includes shift work and Wendy would need to care for the children at times when Ellery is working. Ellery appeals.

LAW AND DISCUSSION

On appeal, Ellery asserts two assignments of error. In his first assignment of error, he contends that the trial court was manifestly erroneous in not ordering a shared custody arrangement between El-lery and Wendy Bridges. He argues that nothing in the testimony and evidence presented to the trial court indicated that it was not in the children’s best interest to order a shared custody arrangement. El-lery further asserts that the facts of this case clearly demonstrate that he has a right to equally share custody of the parties’ son, Jaden, on a 50/50 basis with Wendy.

First, we note that the parties’ daughter, Jia, has reached the age of majority since the hearing in this matter. Accordingly, we address the custody issue solely as it pertains to the parties’ son, Jaden, who was born in 1996.

At the hearing in this matter, Wendy Bridges testified that she was responsible for the daily care of Jaden, including waking him in the morning, bringing him to school, making sure he is fed, and seeing to his everyday needs. She stated that Ellery did “not really” spend time with the children to the extent that he would be involved in their life on a daily-weekly basis. She also stated that she provided 90% of the discipline and management for the children’s behavior |4and took the children to doctor’s appointments, and that the children very seldom went on outings or did things with their father. She stated that Ellery attended only approximately two of the 30 to 40 softball games their daughter played in per season. Wendy also testified that there are about four parent-teacher conferences per year and she has attended four or five of them in the past five years, but Ellery has only attended one.

Ellery Bridges testified that Wendy’s mother “pretty much raised our son” until she passed away. He testified that he went to some of Jia’s softball games and Jaden’s football games when he was not working, but he often did not know when games were scheduled because he was “the last one to get informed.” Ellery testified that he had not heard of any parent-teacher conferences this year, but he always went to them “when it was brought up to me” and didn’t conflict with his work schedule. He further testified that he works for Motiva Enterprises and that he works 12-hour rotating shifts, with built-in overtime, and that he works days and nights. He indicated that if he were granted shared custody of the children close to 50%, he would have to make arrangements with Wendy for the time periods when he would be working and the children would be at home.

LSA-C.C. art. 132 provides that in the absence of an agreement between the parties, the trial court shall award custody to the parents jointly. Joint custody does not necessarily require an equal sharing of physical custody. Lee v. Lee, 34,025, p. 9 (La.App. 2 Cir. 8/25/00), 766 So.2d 723, 728, writ denied, 00-2680 (La.11/13/00), 774 So.2d 150; Martello v. Martello, 06-594, p. 4 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 190-191; Pender v. Pender, 38,649, p. 8 (La.App. 2 Cir. 5/12/04), 890 So.2d 1, 6; Voorhies v. Voorhies, 96-342, p. 9 (La.App. 3 Cir. 10/9/96), 688 So.2d 1158, 1163. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. McKenzie v. Cuccia, 04-1112, p. 5 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 339; Stephenson v. Stephenson, 37,323, p. 4 (La.App. 2 Cir. 5/14/03), 847 So.2d 175, 179. Only if it can be shown that a 50-50 shared physical custody arrangement is both feasible and in the best interest of the child, can such an order be implemented, and if both prongs are not met, then the court shall institute a custody arrangement that apportions enough time spent by the child with each parent to assure each parent of frequent and continuing contact with the minor child. LSA-R.S. 9:335(A)(2); Stephens v. Stephens, 02-402, p. 4 (La.App. 1 Cir. 6/21/02), 822 So.2d 770, 774. So long as the child is assured of frequent and continuing contact with both parents, the primary goal of joint custody is met. Id. at 7, 822 So.2d at 777.

In every custody case, the primary concern is the best interest of the child. Pizzolato v. Hihar, 02-53, p. 5 (La.App. 5 Cir. 6/26/02), 822 So.2d 835, 838. LSA-C.C. art. 134 enumerates the following 12 nonexclusive factors that are relevant in determining the best interest of the child:

1) The love, affection, and other emotional ties between each party and the child;
2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
5) The permanence, as a family unit, of the existing or proposed custodial home or homes;
6) The moral fitness of each party, insofar as it affects the welfare of the child;
7) The mental and physical health of each party;
8) The home, school, and community history of the child;
9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
1611) The distance between the respective residences of the parties; and
12) The responsibility for the care and rearing of the child previously exercised by each party.

Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the children. Zanco v. Zanco, 97-342, p. 11 (La.App. 5 Cir. 11/12/97), 703 So.2d 745, 750; Ellinwood v. Breaux, 32,730, p. 2 (La.App. 2 Cir. 3/1/00), 753 So.2d 977, 979. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Id.; Thompson v. Thompson, 532 So.2d 101 (La.1988).

At the April 1, 2009 hearing on Ellery’s “Motion to Reconsider or Alternatively, Motion for New Trial,” the trial judge stated the following with regard to her reasons for not ordering 50/50 shared custody in this case:

I’m well aware of the law that joint custody, under the Revised Statute, the law urges you to give as close to 50/50 as is, as is reasonable and is possible. There were a number of concerns in this case with 50/50.
First is Mr. Bridges works shift work, and, and I asked him who was going to take care of the kids when he was working shift work and make sure they were accounted for and everything, and he said, “Wendy.” And, and I’m sure that, that they worked well together with his shift work, and, and she’s the one that’s provided that kind of care.
I, I don’t fault Mr. Bridges for his fathering. I think he’s a good father, but based on the evidence, not only that she presented, but that he presented, especially with his schedule and the fact that, that he also already depended on her for a lot, is, is the main reason that I think this is best. You’ll notice I changed it in the summertime so that it was, I believe, week to week, and I don’t know if I said alternating weeks or, you know, and they can work it out however they want to around his shift-work schedule or whatever. But my point in doing that was to bend over backwards to give him as much time as possible, because it’s a lot easier during the summer than during the school year, so that’s the reasoning.

Based on the testimony in this matter, we find no abuse of discretion in the trial judge’s judgment ordering joint custody of Jaden, with Wendy designated as the primary custodial parent and with Ellery to have physical custody every other 17weekend and for six weeks during the summer, as well as alternating holidays as set forth in the judgment. As stated above, the primary goal of joint custody is met if the child is assured of frequent and continuing contact with both parents, and substantial time rather than strict equality of time is required under the legislative scheme for joint custody. The custody order in the present case provides for frequent and continuing contact with both parents, and substantial time with Ellery. Accordingly, having found no abuse of the trial judge’s great discretion in establishing a custody arrangement, we find no merit in this assignment of error.

In his second assignment of error, Ellery asserts that the trial judge erred in failing to award use of the family home to Ellery. He argues that Wendy had previously moved out and lived in a garage apartment at her father’s house, which she testified is still available to her, but he would be homeless if not awarded use and occupancy of the family home.

LSA-R.S. 9:374(B) provides:

When the family residence is community property or is owned by the spouses in indivisión, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or im-movables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or im-movables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.

(Emphasis added.)

Considering the testimony and evidence in this matter, particularly the evidence of the relative economic status of the spouses and the designation of Wendy as the primary custodial parent, we cannot say that the trial judge erred in | ¡¡concluding that awarding use and occupancy of the family home to Wendy was in the best interest of the family. Thus, we find that Ellery’s second assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s February 18, 2009 judgment ordering joint custody, designating Wendy as the primary custodial parent, setting forth a reasonable visitation schedule, and awarding use and occupancy of the matrimonial domicile to Wendy.

AFFIRMED.

      . In the Petition for Divorce and Answer and Reconventional Demand, the parties' daughter’s name is spelled "Jia” and their son’s name is spelled "Jaden.” In Ellery's appeal brief and in other portions of the record, her name is spelled "Jai” and his name is spelled "Jaiden” or "Jayden.” For purposes of this opinion, we will spell her name as "Jia” and his name as "Jaden.”

      . Wendy testified that she services the school that Jaden attends.


text:
    Kori SAVAGE v. STATE FARM MUTUAL INSURANCE COMPANY, Tyanta B. Roberts, Kiantha K. Harris and Imperial Fire and Casualty Company.
    No. 09-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Lantz Savage, Savage Law Firm, Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    Richard L. Edrington, Attorney at Law, LaPlace, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| ..Plaintiff filed suit for injuries sustained when a car driven by Tyanta Roberts changed lanes and struck her vehicle. Named as defendants were Roberts and Kiantha Harris, the owner of the car driven by Roberts, their automobile liability insurer Imperial Fire & Casualty, and plaintiffs uninsured/underinsured motorist carrier State Farm Mutual Insurance Company.

At trial it was stipulated that Imperial would pay its policy limits of $10,000.00 to the plaintiff in exchange for a full release of her claims against Imperial and its insureds. Trial then proceeded against the remaining defendant, State Farm, on the issue of plaintiffs damages for plaintiffs injuries. After the trial on the merits, the court found in favor of plaintiff and awarded general damages of $27,000.00, past medical expenses totaling $4,778.25 and lost wages of $408.80.

Plaintiff appeals, alleging that the trial court’s award of damages was inadequate. For the reasons that follow, we affirm the decision of the trial court.

On April 25, 2007, plaintiff was proceeding in the center lane on Clearview Parkway in Jefferson Parish. A vehicle driven by Roberts changed lanes into the [.¡path of plaintiffs vehicle. The driver’s side rear wheel area of the Robert’s vehicle struck the passenger side front fender of plaintiffs vehicle. As a result, plaintiff suffered back injury and exacerbation of a preexisting back condition caused by a previous accident.

In this appeal, plaintiff alleges as error the following: that the trial court abused its discretion in awarding only $27,000.00 in general damages for the disc bulge in the plaintiffs thoracic spine and the exacerbation of the plaintiffs pre-existing bulge in her lumbar spine; that the trial court abused its discretion in finding that the bulge in the plaintiffs thoracic spine was nothing more than a soft tissue injury; that the trial court abused its discretion in considering evidence relative to the impact of the vehicles involved in the collision; and that the trial court abused its discretion in giving the UM carrier credit for payments tendered under the medical payments coverage in her policy.

STANDARD OF REVIEW

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. One of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.”

Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1087; Cenac v. Public Access Water Rights Ass’n, 02-2660 (La.6/27/03), 851 So.2d 1006, 1023.

The Louisiana Supreme Court has set a strong pronouncement of the scope of review of an award of damages, which we cite here:

|4It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. This Court has noted: [T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, reh’g denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973)) (superseded by statute on other grounds).
Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993), reh’g denied, 10/7/93.
The role of an appellate court in reviewing a general damages award, one which may not be fixed with pecuniary exactitude, is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. This court has long held true to the following principle:
[bjefore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston Indus., Inc., 841 So.2d 332, 334 (La.1977) (internal citations omitted)). See also Miller v. Lammico, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501 (La.1979).
Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985)). Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Perkins, 782 So.2d at 612 (citing Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221). Reasonable persons frequently disagree about the measure of damages in a particular case. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, 1116-7.

With these guidelines in mind, we review the trial court’s findings of fact and award of damages.

Plaintiff first alleges that the trial court abused its discretion in awarding only $27,000.00 in general damages for the disc bulge in the plaintiffs thoracic spine and the exacerbation of the plaintiffs preexisting bulge in her lumbar spine, and further that the trial court abused its discretion in finding that the bulge in the plaintiffs thoracic spine was nothing more than a soft tissue injury.

At trial, plaintiff testified that she received some injuries as a result of the accident. She stated that she started experiencing pain in the evening of the date of the accident. She felt pain in her upper back and shoulders, and in her lower back and legs, especially her left leg. Plaintiff testified that after the accident, she went to work and completed her regular work day. She did not seek emergency room treatment.

| fiPlaintiff initially sought medical treatment from Dr. John McCain on May 3, 2007.00, who sent her for an MRI. She returned on May 21st, at which time Dr. McCain recommended a second MRI. She next went to Dr. McCain on May 29 with the same complaints, and was given an epidural steroid injection. She then became pregnant and did not return to Dr. McCain until after her child was born on May 14, 2008. During her pregnancy, she continued to experience pain, for which she took Tylenol. Plaintiff returned to Dr. McCain on July 1, 2008, with complaints of low back pain, mid to upper back pain, and numbness in her legs. She was given an epidural steroid injection. Plaintiff stated that at the time of trial she was still seeing Dr. McCain for treatment.

Plaintiff admitted that she had been involved in a previous collision in February of 2004 and as a result she suffered disc bulges at L4-L5 and L5-S1. Up until six months before the instant accident, she was receiving treatment from Dr. McCain for those injuries. The treatment for her back injuries was the same as those before the current accident. She stated that pri- or to the instant accident she did not have any numbness in her left leg, but admitted that she had numbness in her right leg.

After the present accident, she had injury to her thoracic spine and an aggravation of her previous lumbar injury. She further had numbness in her left leg that would cause her to fall.

Dr. McCain was stipulated an expert in the field of physical medicine. He stated that he had treated plaintiff for both her prior injuries and the injuries from the most recent accident (the subject of this suit). He testified that she continued to have complaints, which would last the rest of her life, but which would not prevent her from her daily living activities. He stated that after the accident the plaintiff |7returned for treatment with new complaints of pain the mid thoracic region and renewed pain in the lumbar region, for which she had been taking over the counter medications. After his examination, he diagnosed thoracic strain and exacerbation of lower back and lower extremity and radicular complaints. He recommended the MRI and X-rays, and continuing over the counter medication. He reviewed the MRI film and found that plaintiff had an increased disc protrusion at L4-L5, and degenerative disc with protrusion at T9-T10. He further noted central canal sten-osis and bilateral foraminal encroachment which could cause pinched nerves, resulting in pain. He prescribed Ultram for pain and suggested the second MRI. On her next visit of May 29, 2007, he viewed the second MRI and confirmed the disc degeneration at the thoracic spine. Treatment options were discussed and he gave her an epidural steroid injection.

Plaintiff did not return until July, 2008, and reported that she had a child six weeks prior. On that date, her complaints were of lower back pain and infrequent, intermittent numbness of the lower legs. An epidural was administered and she was given a prescription for Darvocet.

Dr. McCain stated that in his opinion, based on the history, physical examination and imagings, it was probable that the accident caused the protrusion at the T9-T10 segment, and aggravated the pre-ex-isting condition at the L4-L5 segment of the lumbar spine. He rated her a 10% disability and opined that she would need future conservative treatment. He finally stated that he would instruct her to be aware when stooping, standing, lifting and sitting, but that he would not impose restrictions.

On cross examination, Dr. McCain admitted that he could not tell whether the increase in the bulge at L4-L5, L5-S-1 was due to trauma or natural ^progression. With the exception of the complaints of pain in her upper back, her complaints were the same as they had been prior to the accident.

After trial on the merits, the court found that the court further found that plaintiff suffered an exacerbation of the lumbar spine injury that she had original!y received in a prior accident in 2004, and that she returned to her pre-accident (2007 accident) condition by July 1, 2008. The court also found that plaintiff suffered a soft tissue injury to her thoracic spine in the 2007 accident, which had resolved by the July 1st visit or shortly thereafter.

We have reviewed the entire record and cannot find that the trial court committed manifest error or abused its discretion in finding that plaintiff suffered a soft tissue injury and exacerbation of a previous condition and that her condition had resolved itself by July of 2008. We furthermore cannot find that the trial court committed error in awarding damages of $27,000.00.

Plaintiff next contends that the trial court abused its discretion in considering evidence relative to the impact of the vehicles involved in the collision. In this allegation, plaintiff takes issue with the trial court’s factual statement that “the impact between the vehicles was light, the damage to the Savage (plaintiffs) vehicle was relatively minimal, and the damage to the Kia Sorrento (defendant’s vehicle) was barely noticeable” which was included in the court’s reasons for judgment. In support of her argument that the trial court erred in considering the nature of the impact, plaintiff notes the case law that provides that “Where medical experts and lay witnesses establish that a plaintiff sustained some injuries, the minimal force of the collision causing the injuries is of no material importance.” Smith v. Vazquez, 05-619 (La.App. 4 Cir. 5/31/06), 933 So.2d 878, 882 and Arceneaux v. Howard, 633 So.2d 207, 210 (La.App. 1 Cir.1993).

|9We note, however, that while the trial court stated the evidence considered in the recitation of facts in its reasons for judgment, there is nothing to show that the trial court used this fact in determining the extent of plaintiffs injury. To the contrary, the judgment shows that the trial court’s finding of facts were based on the testimony of plaintiff and her treating physician (the only witness other than plaintiff). We have already concluded that the trial court’s findings of the extent of plaintiffs injuries are not manifestly erroneous or an abuse of discretion. Accordingly, we find this allegation of error to be without merit.

Finally, plaintiff argues that the trial court abused its discretion in giving the UM carrier credit for payments tendered under the medical payments coverage in her policy. Plaintiff presents this allegation of error in an abundance of caution in the event that this court would increase the general damage award, citing Sutton v. Oncale, 99-967 (La.App. 5 Cir. 3/29/00), 765 So.2d 1072. In Sutton, this Court said that “where a plaintiffs total damages do not exceed the UM/UIM policy limits, and the language of the policy allows such, the UM/UIM carrier is entitled to a credit for any amount which it has paid the plaintiff under the medical payments coverage.” At page 1077. Plaintiffs UM/UIM policy had limits of $50,000 per person and $100,000 per collision. Because we find that the trial court did not abuse its vast discretion in awarding general damages of $27,000.00, and therefore plaintiffs damages did not exceed the policy limits, the trial court did not err in finding that State Farm was entitled to a credit for payments made under the medical payments coverage provision of plaintiffs policy.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against plaintiff/appellant.

AFFIRMED.

      . Roberts and Harris were not served with the petition and did not participate in the trial.

      . Plaintiff next saw Dr. McCain on April 21, 2009.


author: DREW, J.

text:
    TUBBS RICE DRYERS, INC. d/b/a Tubbs Rice & Grain, Plaintiff-Appellee, v. Lawrence MARTIN, Defendant-Appellant.
    No. 44,800-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 24, 2010.
    Rehearing Denied April 8, 2010.

      Michael Wayne Kelly, Lake Providence, for Appellant.
    Cotton, Bolton, Hoychick, & Doughty, LLP by David Paul Doughty, Rayville, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

|) Lawrence Martin appeals a judgment denying his exceptions of prematurity, no cause of action, no right of action, and lack of subject matter jurisdiction. We affirm.

FACTS

Tubbs Rice Dryers, Inc., operates grain storage facilities in northeast Louisiana. Tubbs books grains from local farmers. The way the booking process works is that farmers contact Tubbs to sell future crops at a certain price. Tubbs then calls its broker with Commodity Risk Management and places an order to sell the same amount of grain at the same price on the Chicago Board of Trade. Tubbs does this to hedge its position. When the broker makes the sale, Tubbs and the farmer become obligated at that point and a contract, known as a confirmation sheet in the grain trade, is sent to the farmer, who is to deliver the grain at a future time.

Lawrence Martin is a Texas resident who farms in Morehouse Parish. Martin entered into several contracts to sell grain to Tubbs:

• Under contract number 772, which had a booking date of February 16, 2006, Martin agreed to deliver 4,000 bushels of wheat between May 15 and June 30, 2007.
• Under contract number 912, which had a booking date of May 15, 2006, Martin agreed to deliver 5,000 bushels of wheat between May 15 and June 30, 2007.
• Under contract number 923, which also had a booking date of May 15, 2006, Martin agreed to deliver 3,000 bushels of milo between July 15 and October 31, 2007.
• Under contract number 937, which had a booking date of May 18, 2006, Martin agreed to deliver 8,000 bushels of wheat between May 15 and June 30, 2008.

| .¿Martin signed contract number 772, but did not sign the other contracts, which was not an unusual occurrence in the grain trade. Because of the nature of the transactions, Tubbs often had to rely on oral agreements from farmers who did not sign and return the contracts. This is reflected in the contracts, which stated:

If Seller does not return a signed copy of this confirmation to Buyer within ten days from the above date, Buyer shall have the option to cancel this confirmation by sending written notice to Seller ■within fourteen days from the above date. If Buyer does not give such written notice, the confirmation shall remain in full force and effect.

After Martin failed to deliver the grains as promised under contract numbers 772, 912, and 923, Tubbs filed a petition on open account and for breach of contract against Martin on January 14, 2008.

Martin filed an answer in a pro se capacity on February 21, 2008. On April 14, 2008, Martin’s attorney filed a motion to enroll as counsel of record.

On July 28, 2008, Tubbs amended its petition to add the claim that Martin had failed to deliver 8,000 bushels of wheat as agreed to under contract number 937.

On December 30, 2008, Martin filed the exceptions of no cause of action and no right of action in which he argued that the dispute with Tubbs was subject to the arbitration rules of the National Grain and Feed Association (“NGFA”), and that Tubbs had not exhausted that remedy pri- or to bringing suit. On that same date, Martin also separately filed the exception of lack of subject matter jurisdiction, and in the alternative, the |3exception of prematurity; Martin also contended in these exceptions that the dispute had not yet been submitted to mandatory arbitration.

The trial court denied the exceptions. A bench trial was held on the merits. The court found in favor of Tubbs, and ordered Martin to pay $57,345.03 plus court costs, legal interest, and attorney fees. Martin has appealed the denial of the exceptions.

DISCUSSION

We note that normally when an appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment. See Alexander v. Palazzo, 2008-1541 (La.App. 1st Cir.2/13/09), 5 So.3d 950. However, some adverse interlocutory rulings, such as the denial of the exception of improper venue, cannot as a practical matter be corrected on appeal after a final judgment. See Danny Weaver Logging, Inc. v. Norwel Equipment Co., 33,793 (La.App.2d Cir.8/23/00), 766 So.2d 701, where the failure to timely appeal a venue ruling amounted to a waiver of venue. In those instances, the party should either seek supervisory review pursuant |4to La. C.C.P. art. 2201, or file an appeal under La. C.C.P. art. 2083(C) if it is expressly provided by law.

The denial of a request for arbitration can be likened to the denial of an exception of improper venue in the sense that it would be difficult to correct the error once a final judgment has been rendered. Arbitration exists as an alternative to litigation in order to avoid a costly trial. It would not foster judicial efficiency if a matter could be sent to arbitration after the trial court had already decided the case on its merits.

We recognize that Louisiana has a public policy favoring arbitration. This is exemplified in La. R.S. 9:4201, which provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

We further recognize that Tubbs has not sought dismissal of this appeal on the grounds that Martin waived his claim to arbitration by not seeking supervisory review. Furthermore, the trial on the merits in this matter was held immediately after Martin’s exceptions were denied. There was no delay between the denial of the exceptions and the trial on the merits such that Martin’s failure to seek supervisory review was inexcusable. Under the circumstances of this case, and in light of our public policy favoring arbitration, we will review on this appeal the arbitration issues raised by Martin in his exceptions.

|fiWhen a party to a lawsuit claims that the matter is required to be submitted to arbitration, the threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. See Johnson’s, Inc. v. GERS, Inc., 84,268 (La.App.2d Cir.1/24/01), 778 So.2d 740. This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

In regard to the first consideration, we note that Tubbs has not consented to arbitration. We further note that Martin has denied executing three of the four contracts. Thus, Martin has taken the interesting position of seeking to enforce arbitration clauses in three contracts to which he disclaims even being a party.

Tubbs used standard grain contracts when booking Martin’s grain. The contracts stated under their general terms section:

The terms of this confirmation are subject in all respects to the rules and regulations of the exchange, board, or association designated above. If Seller is not a member of the said exchange, board, or association, then the rules and regulations of the National Grain and Feed Association shall govern. Buyer and Seller agree that all disputes and controversies between them with respect to this confirmation shall be arbitrated according to said rules and regulations, and that judgment may entered on the arbitration award in any court of competent jurisdiction.

The NGFA provided a general explanation of its arbitration system. This explanation stated, in part:

The Arbitration System provides a fair, cost-effective, and timely way to resolve disputes involving grain ... transactions. Its use is compulsory for resolution of disputes between Active Members under the NGFA’s Bylaws. The Arbitration System is also available for resolving disputes with and between | (Associate/Trading members if the Arbitration Rules are referenced in the underlying contractual agreement or the parties otherwise consent.

The arbitration rules of the NGFA pertaining to jurisdiction stated, in part:

(a) The National Grain and Feed Association (NGFA) may properly consider a case involving a dispute between or among any of the following:
(1) Active members of the National Association ....
(2) Active members of the National and nonmembers, by consent of both parties or by court order. In the absence of a court order a case between a member and a nonmember may not be properly considered by the National Arbitration Committee without the consent of both parties. If the contract in dispute between a member and nonmember provides for arbitration by the National Association or under its Arbitration rules, the parties to the contract shall be deemed to have consented to arbitration under these Arbitration Rules.

In particular, we note, with our emphasis added, the following section in the NGFA Grain Trade Rules:

Rule 29. Arbitration
Where a transaction is made subject to these rules in whole or in part, whether by express contractual reference or by reason of membership in this Association, then the sole remedy for resolution of any and all disagreements or disputes arising under or related to the transaction shall be through arbitration proceedings before the [NGFA] pursuant to the NGFA Arbitration Rules; provided, however, that at least one party to the transaction must be a NGFA member entitled to arbitrate disputes under the NGFA Arbitration rules.

Although the contracts provided for arbitration, there was no dispute between a member and nonmember in this instance. Martin was not a member of the NGFA. Tubbs was not a member of the NGFA at the time it entered into the contract with Martin. It later became a member, but was not |7a member prior to the filing of the amended petition on July 23, 2008. Moreover, Tubbs did not consent to arbitration of this dispute. Accordingly, by the terms of the NGFA’s grain trade and arbitration rules, the dispute was not subject to the NGFA’s arbitration jurisdiction. The dispute between Martin and Tubbs did not fall within the scope of the arbitration clause in the standard grain contract.

Arbitration is a substitute for litigation, and its purpose is settlement of differences in a fast, inexpensive manner before a tribunal chosen by the parties. National Tea Co. v. Richmond, 548 So.2d 930 (La.1989). As noted above, the tribunal referenced in the contract would not even have had jurisdiction over this matter.

The original petition was filed in January of 2008. After several motions for continuance, the trial was refixed for January 5, 2009. The exceptions were not filed until less than a week before trial. In waiting until basically the last minute to invoke the arbitration clause, Martin defeated the purpose of arbitration.

CONCLUSION

Based upon our review of this record, we find no error in the denial of Martin’s exceptions. At Martin’s cost, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      .The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. Long v. Jeb Breithaupt Design Build Inc., 44,002 (La.App.2d Cir.2/25/09), 4 So.3d 930. See also footnote 4 in Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La.1982), where the supreme court stated that an objection to proceeding to trial instead of arbitration may also be raised by the exception of no cause of action.

      . We note that the judgment states that the exceptions of prematurity, no cause of action, and no right of action are denied. The exception of lack of subject matter jurisdiction is not mentioned in the judgment. Nevertheless, the trial court clearly denied that exception prior to conducting the trial on the merits.

      . Martin also argues on appeal that the trial court erred when it did not allow him to file a post-trial brief. We find no merit to this argument.

      . The record contains a copy of a July 29, 2008, check for membership to the NGFA. Tubbs joined so it could avail itself of the NGFA arbitration process.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Demetrius BRADLEY, Appellant.
    No. 44,963-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Rehearing Denied April 8, 2010.

      Dwight M. Doskey, Loyd K. Thomas, Shreveport, for Appellant.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Dhu Thompson, Assistant District Attorneys, for Appellee.

      Before GASKINS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| tThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Demetrius Bradley, was convicted of two counts of armed robbery, violations of La. R.S. 14:64. He was adjudicated a second felony offender and sentenced to 57 years at hard labor, which he now appeals. For the following reasons, we affirm Bradley’s conviction and sentence.

Facts

This particular criminal defendant, a young man with promise and potential, makes this criminal case even more senseless than most crimes. Demetrius Bradley is a college-educated man in his mid-thirties, whose father is a pastor at a local church. As the assistant district attorney stated at Bradley’s habitual offender hearing:

Bradley has had substantial resources and a substantial background to do the right thing in his life and he has chosen time and time again to not only commit crimes and not do the right thing, but his crimes are escalating and his crimes are putting people here and victims here in Caddo Parish at risk for violence and death.

At approximately midnight on May 7, 2004, a group of three or four men entered the Thrifty Liquor Store on Linwood Avenue in Shreveport. The men were all dressed in black and wore masks and gloves; however, the victims were able to identify the perpetrators as black males. The men, armed with a variety of firearms, forced the store employees, a customer and an unarmed security guard onto the floor. The perpetrators removed James Carter’s wallet from his pants and took $40.00. Carter opened the registers after being ordered to do so by one of the men and the money was removed from three registers. Vincent Pleasant, the unarmed security guard, was 1 ^forced to the floor and robbed of $188.00. One of the men remained at the door and called to the others to hurry up. After taking these valuables, the men fled the store and got into a white SUV.

Following an anonymous tip, Officers Keith Sharrah and Trey Robinson, two Shreveport Police officers who were nearby involved in a traffic stop, responded immediately. The officers pursued the SUV in a chase captured on their patrol car dash cameras. The driver wrecked the SUV and a foot chase ensued. During the pursuit, the robbers discarded several masks, items of clothing, gloves and weapons. One of the robbers pointed his weapon in the direction of the officers, and the officers fired back. Additional officers responded to the scene and established a perimeter. A K-9 unit pursued one of the fleeing robbers who was bitten twice by the dog-the robber managed to escape. None of the perpetrators were apprehended at that time. Four guns, dark clothing, masks and gloves were recovered from the scene of the foot chase. All of the evidence was turned over to the North Louisiana Crime Lab for analysis.

Following an investigation, the police determined that Bradley and two other individuals were involved in the armed robbery. Bradley was arrested and charged with three counts of armed robbery of Theresa York, James Carter and Vincent Pleasant. A bench trial commenced, following which Bradley was convicted of two counts of armed robbery.

Subsequently, there was a hearing to address the multiple offender bill. At that time, the trial court denied Bradley’s motion for a new trial and J.N.O.V. On that same date, Bradley stipulated to be the same person who |3was previously convicted in 2002 pursuant to a plea on conspiracy to commit first degree murder. He also stipulated that the plea colloquy was sufficient and contained all Boykin rights. After a hearing, Bradley was adjudicated a second felony offender.

At the sentencing hearing, the trial court noted that, in light of the second felony habitual offender resolution, Bradley was subject to a minimum sentence of 54½ years at hard labor without benefits and a possible maximum sentence of 198 years at hard labor without benefits. The trial court held that the facts did not justify a downward departure from the minimum sentence. After noting the mitigating and aggravating circumstances, Bradley was sentenced to 57 years at hard labor without the benefit of probation, parole, or suspension of sentence. This appeal followed.

Discussion

On appeal, Bradley raises three assignments of error, all related to the evidence used to convict him. In his first assignment of error, Bradley argues that the trial court erred in refusing to suppress evidence gained during the execution of a federal search warrant. Bradley submits that the trial court erred in admitting evidence obtained during the execution of a federal search warrant of storage units used by Bradley, where investigators observed a photograph of an owner’s manual for a two-way radio located inside Bradley’s storage unit. Specifically, a federal search warrant was obtained on Bradley’s storage unit in connection with an investigation | ¿involving Bradley for a different crime in which he may have been involved. Sergeant Chuck Andrews, of the Shreveport Police Department, helped the federal agents execute the warrant. Bradley claims that Sgt. Andrews improperly assisted in the execution of the warrant and that the evidence obtained was tainted and therefore improperly admitted. Bradley further asserts that Sgt. Andrews’ purpose was to look for evidence from the armed robbery and that the record is clear that he could not have obtained a search warrant to the storage unit for that purpose.

The Fourth Amendment of the United States Constitution provides that “... no warrants shall issue, but upon probable cause supported by oath or affirmation.” Louisiana law has the same threshold requirements. La. Const, art. 1, § 5; La. C. Cr. P. art. 162.

Louisiana C. Cr. P. art. 161 provides:

Except as authorized by Article 163.1, a judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which:
(1) Has been the subject of theft.
(2) Is intended for use or has been used as a means of committing an offense.
(3) May constitute evidence tending to prove the commission of an offense.

Louisiana C. Cr. P. art. 162 provides in pertinent part that

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
, A Search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

| ¡^Louisiana C. Cr. P. art. 165 provides:

While in the course of executing a search warrant, a peace officer may make photographs, lift fingerprints, seize things whether or not described in the warrant that may constitute evidence tending to prove the commission of any offense, and perform all other acts pursuant to his duties.

The U.S. Supreme Court has held that the judicially created exclusionary rule is subject to a good faith exception. However, Bradley does not allege that the warrant was defective nor does he allege that its issuance lacked probable cause. Instead, Bradley complains that Sgt. Andrews did not have a right to be in the protected area and as such, any evidence obtained by him is fruit of the poisonous tree and should be excluded from evidence.

Sergeant Andrews testified that he was the lead investigator of the armed robbery and as a result of the investigation, Bradley was developed as a suspect. Sergeant Andrews contacted the FBI, which was investigating Bradley for another crime, for their investigative resources and assistance in this matter. As a result of this collaboration, Sgt. Andrews accompanied the federal agents in their execution of a federal search warrant on storage units used by Bradley. While in the storage unit, Sgt. Andrews observed a manual for a two-way radio, similar to the two-way radio found in the getaway car immediately following the armed robbery.

Sergeant Andrews photographed the manual and the photograph was introduced into evidence. However, Bradley argues that Sgt. Andrews did not have the right to be present during the execution of the search warrant and therefore the photograph of the manual was erroneously seized and | (¡should not have been admitted into evidence. We believe that Sgt. Andrews did have a right to be there as he was working with the federal agents on the case. Moreover, Bradley offers no law prohibiting Sgt. Andrews from being present.

The warrant allowed the officers to be lawfully inside the storage unit. While inside, the manual was observed by Sgt. Andrews in plain view, a recognized exception to the warrant requirement. It is well established that evidence in the open or plain view of a police officer who is legally on the premises from which he obtains the view is subject to seizure without a warrant. Harris v. United States, 390 U.S. 284, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Brand, 357 So.2d 545 (La.1978); State v. Shed, 36,321 (La.App.2d Cir.09/18/02), 828 So.2d 124, writ denied, 2002-3123 (La.12/19/03), 861 So.2d 561.

Regardless, even if Sgt. Andrews had no right to be present during the execution of the warrant, the assignment can be dismissed under harmless error analysis. During cross-examination, Sgt. Andrews admitted that there was no way to connect the manual to the two-way radio found in the getaway vehicle. Moreover, the trial court, in its reasons for judgment did not allude to the manual as bearing on its decision. The exclusion of the photograph from the evidence would not affect the body of evidence that otherwise supports Bradley’s conviction. The photo did not lead to DNA evidence nor did it lead to Bradley’s statements to the police. It is this evidence on which the trial court relied on in reaching the verdict. We conclude that this assignment of error is without merit.

|7In his second assignment of error, Bradley submits that the trial court erred in refusing to suppress the results of DNA sampling on an illegally obtained buccal swab and that the DNA evidence relating to the buccal swab was erroneously admitted. Bradley acknowledges that he consented to the swab, but argues the constitutionality of the blood test. Both the blood test and the buccal swab were taken within minutes of each other. According to Bradley, because the blood test violated his constitutional rights, the subsequent buccal swab, although consented to, also violated his rights absent a showing of “some intervening event purging the taint.” Alternatively, he argues that irrespective of the constitutionality of the blood test, Bradley did not freely and voluntarily consent to the buccal swab.

It is undisputed that the collection of a saliva sample for DNA analysis is a search requiring a warrant implicating the Fourth Amendment. State v. Lee, 2005-2098 (La.01/16/08), 976 So.2d 109, cert. denied, - U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

Louisiana R.S. 15:609 provides in pertinent part as follows:

A. (1) A person who is arrested for a felony or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.
B. (1) Any person who is convicted or enters into a plea agreement resulting in a conviction on or after September 1, 1999, for a felony or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact for such offenses committed prior to that date shall have a DNA sample drawn or taken as follows:
|8(a) A person who is sentenced to a term of confinement for an offense covered by this Chapter shall have a DNA sample drawn or taken upon intake to a prison, jail, or any other detention facility or institution. If the person is already confined at the time of sentencing, the person shall have a DNA sample drawn or taken immediately after the sentencing.
(b) A person who is convicted or enters into a plea agreement resulting in a conviction for an offense covered by this Chapter shall have a DNA sample drawn or taken as a condition of any sentence that will not involve an intake into a prison, jail, or any other detention facility or institution.
(c) Under no circumstances shall a person who is convicted or enters into a plea agreement resulting in a conviction for an offense covered by this Chapter be released in any manner after such disposition unless and until a DNA sample has been withdrawn or taken.

In 1997, Bradley was arrested for a felony offense and in July, 2002, he was convicted of that offense pursuant to a guilty plea of conspiracy to commit first degree murder. The Department of Corrections paroled him on June 24, 2003, when Bradley came under the supervision of his parole officer, Leonard Pierce.

On November 14, 2004, two federal agents approached Agent Pierce to determine whether Bradley’s DNA was on file in the state’s database. Upon learning that it was not, Agent Pierce contacted Bradley and requested he come into his office. Bradley’s blood sample was taken by Agent Pierce in accordance with La. R.S. 15:609 and departmental policy. Bradley was told that he had to submit to the blood test in accordance with his parole conditions. Subsequently, Agent Pierce was asked to perform a buccal swab (saliva sample) on Bradley. Agent Pierce asked Bradley for his consent, which Bradley gave. In fact, he was asked a second time, and he | ^affirmatively responded again. It was the buccal swab that was used in the analysis by Mary Dukes which connected Bradley to the robbery.

Louisiana R.S. 15:609 originally provided that DNA was to be taken for those convicted only of felony sexual offenses. This was the law in effect at the time of Bradley’s conviction. However, three days prior to his being paroled, a new law went into effect which required that a person who “enters into a plea agreement resulting in a conviction on or after September 1, 2009 for ... conspiracy [for a felony offense] ... committed prior to that date shall have a DNA sample drawn.” Although the act does not precisely indicate whether it should be given effect at the time of defendant’s conviction (July 15, 2002) or at the time of his release on parole (June 24, 2003), we believe that the law in effect on the date of release controls in light of La. R.S. 15:609 B(l)(c), which provides:

Under no circumstances shall a person who is convicted or enters into a plea agreement resulting in a conviction for an offense covered by this Chapter be released in any manner after such disposition unless and until a DNA sample has been withdrawn or taken.

We base our belief on two factors under the statute: first, the date of release is the time by which the DNA sample must be obtained, and, second, it is also the interpretation that best comports with the policy behind the law which is legislatively embodied in La. R.S. 15:609.

Here, Agent Pierce’s action in requiring the blood sample was reasonably based on the wording of La. R.S. 15:609, at the time of Bradley’s parole in 2003, i.e., that all felony convicts have to provide a DNA sample before being released on parole. Therefore, we conclude that | ,0the blood test did not violate Bradley’s constitutional rights and was performed in compliance with La. R.S. 15:609.

As for the buccal swab, Bradley consented to the test which is a valid exception to the warrant requirement. A warrantless search and seizure is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Talbert, 449 So.2d 446 (La.1984); State v. Howard, 37,580 (La.App.2d Cir.09/24/03), 855 So.2d 881. A valid consent search is a well-recognized exception to the warrant requirement, but the burden is upon the state to prove that the consent was given freely and voluntarily. State v. Howard, supra. An oral consent to a search is valid. Id.

Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each ease. These factual determinations are to be given great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Durr, 28,197 (La.App.2d Cir.06/26/96), 677 So.2d 596.

Bradley incorrectly asserts that he was threatened by his parole officer with revocation for failure to submit to DNA testing. We note that Bradley does not identify whether he is referring to the blood test or the buccal swab test. Instead he argues that because the blood test was performed in derogation of his constitutional rights, the buccal swab constituted fruit of the poisonous tree and should therefore be excluded. However, because the blood test was administered in compliance with La. R.S. 15:609, that argument is without merit. Moreover, Bradley consented |ntwice to the administration of the buccal swab and therefore this assignment is without merit.

Finally, Bradley argues that generally there was insufficient evidence to convict him of the armed robbery of the Thrifty Liquor store. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36, 137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03) 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

JjThe trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840,121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Armed robbery is the taking of anything of value from the person of another or from the area within that person’s immediate control by use of force or intimidation while armed with a dangerous weapon. La. R.S. 14:64. James Carter and Vincent Pleasant each testified that armed men using force and threats robbed them of cash from their persons. The suspects were followed in a vehicle chase as they attempted to flee the scene. The chase continued on foot but did not result in the apprehension of any suspects. From the scene of the foot chase, items of clothing were recovered matching the description of those worn by the robbers. Those items were properly placed into evidence and sent to the North Louisiana Crime Lab for DNA testing. Mary Dukes, a forensic DNA analyst, performed the testing on the items recovered from the scene. According to Dukes, the DNA obtained from two recovered gloves matched that of Bradley. The DNA testing resulted in a match of one in 89.5 trillion.

After being Mirandized, Bradley made the following two statements to police indicating an intimate knowledge of the details of the armed robbery: (1) he suggested that one of the codefendants, a college basketball player, was the robber that had been bitten by the K-9 unit on the night of [ igthe robbery; and (2) he told police that he could give them “Jarmin Wynn,” a name that the police had not mentioned to Bradley but who was considered a person of interest. Bradley also admitted that he had given gloves and masks to “some boys” just prior to the robbery because he feared that having them in his possession might violate his parole. Bradley told police that he picked up Corey Holder and Jerrod Johnson on the night of May 7, 2004, at Mansfield Road and Jewella and both men were out of breath and sweaty when he picked them up.

A review of the evidence presented at trial, viewed under the Jackson standard, is sufficient to support all of the elements of both convictions as set forth herein. As stated, the appellate court does not assess the credibility of witnesses or reweigh evidence, and a reviewing court accords great deference to a factfinder’s decision to accept or reject the testimony of a witness in whole or in part. Bradley’s statements to police and the DNA evidence were the reasons cited by the trial court for its decision. When this evidence is viewed in the light most favorable to the prosecution, any rational trier of fact would easily conclude that the defendant committed the two counts of armed robbery. Because the record is void of internal contradiction or irreconcilable conflict with physical evidence, the testimony of state witnesses, obviously believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.05/09/07), 956 So.2d 769. Accordingly, we conclude that this assignment is without merit.

| ^Conclusion

For the foregoing reasons, the conviction and sentence of Demetrius Bradley are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Bradley supplied the handgun which resulted in the shooting death of his ex-wife, Monica.