author: ROLAND L. BELSOME, Judge.

text:
    Nick PEARSON v. DEPARTMENT OF POLICE.
    No. 2009-CA-0725.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Frank G. DeSalvo, Frank DeSalvo, APLC, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

^Officer Nick Pearson, an employee of the New Orleans Police Department, was charged with violating the NOPD’s internal rules by showing a single photographic lineup to victims of an armed robbery. The NOPD (“Appointing Authority”) ultimately terminated Officer Pearson for the violations; he appealed this decision to the Civil Service Commission. The Commission denied Officer Pearson’s appeal. Because we do not find the Commission’s determinations to be arbitrary or capricious, we affirm.

FACTS AND PROCEDURAL HISTORY

The Appointing Authority alleged that on July 24, 2007, Appellant Officer Pearson revealed a single photographic lineup to two victims of an armed robbery. Appellant subsequently prepared an incident report indicating that another officer, Officer Rydell Diggs, actually revealed the single photograph to the victims. Appellant’s incident report also indicated that the two victims were sober; however, Appellant later insisted that his incident report contained typographical errors and should have read that the victims were intoxicated.

laAfter an investigation, Appellant was charged with violating NOPD Departmental Rules and/or Procedures regarding Truthfulness, Professionalism, Instructions From an Authoritative Source, and False or Inaccurate Reports. By letter dated October 10, 2007, the Appointing Authority terminated Appellant pursuant to the violations, noting that this was his second Moral Conduct rule violation, third Performance of Duty violation, and second Official Information rule violation within a twenty-four month period. Appellant appealed this disciplinary action, and hearings were conducted in conjunction with this appeal on May 22, 2008, May 28, 2008, and June 12, 2008.

Lauren Hotard and Merrel Irby, the victims of the armed robbery, testified at the hearings. Both Ms. Hotard and Ms. Irby recalled that an African-American police officer briefly took some information from them and then left in search of the perpetrator. Both witnesses identified Appellant, a Caucasian male, as the officer who stayed behind to obtain further details. Both witnesses testified that during this time, no other officers were present, and Appellant showed them a single photograph, asking whether the individual in the picture resembled the perpetrator. Both witnesses also recalled Appellant mentioning Eddie Jordan’s name and that the individual in the photograph had been let off before. When questioned, Ms. Ho-tard testified that neither of them had been drinking that evening. Although Ms. Hotard and Ms. Irby admitted to being extremely upset by the robbery, both witnesses answered in the affirmative when asked whether they were certain that it was Appellant who showed them the photograph. Neither recalled Officer Diggs showing them a photograph.

^Detective Jimmy Turner testified he responded to the aimed robbery call as part of a follow-up unit and interviewed the victims. While questioning one of the victims regarding a description of the perpetrator, he learned from the victim that Appellant had previously shown her a photograph of the armed robbery suspect. Detective Turner testified that when he spoke to Appellant regarding whether he had shown one of the victims a single photograph of an individual who resembled the perpetrator, Appellant informed Detective Turner that the picture had been disseminated at the station and indicated to Detective Turner that he had shown the picture to the victim.

Sergeant Joseph Lorenzo of the NOPD Public Integrity Bureau conducted interviews of the two victims after a news report alleged that a police officer had shown a photograph of a wanted poster to two victims of a crime. Sgt. Lorenzo interviewed both Ms. Hotard and Ms. Irby, and testified that the statements of the two victims were basically the same: they gave a brief description of the perpetrator to Officer Diggs, who then left; sometime thereafter, Appellant showed them a wanted poster and asked if it resembled the perpetrator, and that when Detective Turner arrived, the victims advised him that they had been shown a wanted poster by Appellant. Detective Turner, in his interview with Sgt. Lorenzo, recalled that after he arrived on the scene to investigate, one of the victims advised him that Appellant had already shown her a picture of the perpetrator. Sgt. Lorenzo also testified regarding his interview with Officer Rydell Diggs, who admitted to inadvertently displaying the wanted poster to the victims while flipping | ¡¡through papers on a clipboard; Sgt. Lorenzo confirmed that at no time in his investigation, however, did either victim state that Officer Diggs showed them the wanted poster. Sgt. Lorenzo also testified regarding his interview with Appellant, who insisted that it was Officer Diggs, not Appellant, who showed the wanted poster to the victims, and that Appellant noted same in his incident report.

Asst. Supt. Anthony Canatella conducted the pre-termination hearing in this matter and presented a recommendation to the Superintendent of Police. Chief Canatella testified that, upon review of the entire investigative report and the victims’ statements, he found the statements credible, noting that the victims had no reason to lie about the actions of an officer who was working to solve their case. Chief Cana-tella also referenced Officer Diggs’ statement admitting to inadvertently showing a wanted bulletin to one of the victims, and noted that if Appellant had similarly admitted the violations, his recommendation would have been a suspension and more training rather than termination.

Appellant testified on his own behalf. He related that after separating the victims, he began to interview Ms. Hotard first, and when Officer Diggs arrived shortly thereafter, he spoke with Ms. Irby for several minutes. Appellant further testified that Officer Diggs had his clipboard with him and a wanted bulletin, and was asking Ms. Irby if the individual on the bulletin was the perpetrator of the armed robbery. With respect to the alleged impairment of the victims, Appellant insisted that his report contained a typographical error and should have stated the victims had been drinking. Although conceding that he and Officer Diggs do not resemble one another, Appellant argued that given the traumatic experience of the | (¡armed robbery, the intoxication of the victims, and the fact that he spent a long period of time with them, the victims were simply mistaken over which officer had shown them the wanted bulletin.

At the conclusion of the hearings, the Hearing Examiner prepared a report dated September 29, 2008, which was submitted to the Commission along with the testimony and evidence. The Hearing Examiner found that the Appointing Authority established by a preponderance of the evidence that it terminated Appellant for cause and did not abuse its discretion in so doing. In support of this conclusion, the Hearing Examiner determined that the testimony of the independent witnesses was credible and was also supported by Officer Turner’s testimony, who received the incriminating information in close proximity to the alleged incident. The Commission denied the appeal on April 7, 2009. This appeal followed.

STANDARD OF REVIEW

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const, art. X, § 8(A); Walters v. Department of Police, 454 So.2d 106 (La.1984). The employee may appeal from such disciplinary action to the Civil Service Commission, and the burden of proof on appeal rests with the appointing authority. Id. The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.

|7The decision of the Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id.

DISCUSSION

Appellant assigns two errors for our review: first, he argues that his conduct did not constitute a violation of the internal rules and that there was no legal cause for his termination; second, he argues that the discipline imposed was not commensurate with the violation.

Assignment of Error # 1

Appellant first argues that his conduct did not constitute a violation of the internal rules and that no legal cause existed to support the discipline imposed by the Appointing Authority. Appellant submits that Officer Diggs is the only officer who revealed a wanted bulletin, emphasizing Officer Diggs’ admission to inadvertently displaying the wanted bulletin while flipping through pages on his clipboard. Appellant further argue that the victims’ intoxication and anxiety from the armed robbery resulted in the identification of him, rather than Officer Diggs, as the person who showed them the wanted poster.

This Court has recognized that “[e]ven when there is conflicting testimony, credibility evaluations cannot be disturbed on review.” Williams v. Sewerage and Water Bd., 2004-0025, p. 7 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 121, citing Moore v. New Orleans Police Dept., 2001-0174, p. 8 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511. Unless clearly contrary to the evidence, credibility determinations are within the discretion of the trier of fact and will not be disturbed by the reviewing court. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, citing State v. Vessell, 450 So.2d 938, 943 (La.1984). Additionally, La. R.S. 49:964(G)(6) provides that in reviewing an agency’s decision, “due regard shall be given to the agency’s determination of credibility issues” by appellate courts, (emphasis added). It is well-settled that a reviewing court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Serignet v. Department of Health, 2008-0469, p. 5 (La.App. 4 Cir. 5/20/09), 15 So.3d 1019, 1023; Cure, 2007-1066, p. 2, 964 So.2d at 1094.

We find that the evidence in this case supports the Commission’s finding that Appellant’s conduct violated the Appointing Authority’s internal rules regarding Truthfulness, Instructions from an Authoritative Source relative to Identification of Suspects, False and Inaccurate Reports, and Professionalism. We agree with the Commission’s finding that Ms. Hotard and Ms. Irby’s testimony was not only credible but also corroborated by Detective Turner’s observations. While the victims admitted to being upset and traumatized by the armed robbery, both were absolutely certain that it was Appellant, and not Officer Diggs, who showed them the photograph. The Commission acknowledged Asst. Supt. Cannatella’s observation that the two victims, as independent witnesses, had no reason to be untruthful in identifying Appellant as the officer who showed them the photograph. Moreover, it was stipulated by counsel for Appellant that Appellant and Officer Diggs do not look anything alike. After reviewing the testimony and evidence in the record, we cannot say that the credibility determinations made by | 3the Commission are clearly contrary to the evidence under these particular facts and circumstances. Accordingly, we find that the Commission’s decision was based on legal cause and was neither arbitrary, capricious, nor an abuse of discretion under these particular facts and circumstances. Serignet, 2008-0469, p. 5, 15 So.3d at 1023; Cure, 2007-1066, p. 2, 964 So.2d at 1094.

Assignment of Error # 2

In his second and final assignment of error, Appellant argues that his punishment was not commensurate with the alleged infraction.

In reviewing disciplinary action to determine whether such punishment was commensurate with the violation, this Court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Señg-net, 2008-0469, p. 5, 15 So.3d at 1023; Cure, 2007-1066, p. 2, 964 So.2d at 1094. A decision of the Commission is arbitrary and capricious if there is no rational basis for the action taken by the Commission. Cure, 964 So.2d at 1095. For the reasons discussed herein with respect to the first Assignment of Error, we find that the Commission’s determinations were not lacking a rational basis, were not arbitrary or capricious, nor were they characterized by an abuse of discretion. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the decision of the Commission denying Appellant’s appeal is hereby affirmed.

AFFIRMED.

      . Officer Pearson was a Police Officer I with permanent status at the time of the alleged violations.

      . The single photographic lineup consisted of a “wanted” poster of an individual.

      . This violation is with regard to Chapter 42.8, relative to Identification of Suspects— Lineups, Crime Scene and Mug Shots.

      . Ms. Hotard testified that the photograph was on a clipboard; Ms. Irby did not recall Appellant having a clipboard.

      . Ms. Irby recalled that the photograph had descriptive written information around it.

      .When questioned, "Did [Appellant] confirm to you that he, in fact, showed her the picture?” Detective Turner testified: "Yes, not — he didn't say, yes, I showed her the picture; however, he indicated that he had showed [sic ] her the — that he had showed [sic ] the victim the picture.”

      . Sgt. Lorenzo also interviewed Sgt. Philibert, Officer Diggs’ immediate supervisor, who stated that Officer Diggs contacted him and asked whether inadvertently showing the victims the wanted poster would constitute identification.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Michael STANICH v. CANAL ENTERTAINMENT.
    No. 2009-CA-0707.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      William R. Mustian III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiff/Ap-pellee.
    Raymond S. Maher, Jr., Bastían & Associates, New Orleans, LA, for Canal Entertainment and American International Group Claim Service, Inc. Constructors, Ltd.

      (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

[, Canal Entertainment, and its workers’ compensation carrier, American International Group Claim Service, Inc., (“defendants”) appeal the judgment of the Office of Workers’ Compensation (“OWC”), finding that Michael Stanich did not commit fraud in violation of La.Rev.Stat. 23:1208, and further finding that defendants are not entitled to an offset or credit pursuant to La.Rev.Stat. 23:1225. For the reasons set forth below, we affirm.

Relevant Facts

On April 15, 2003, Mr. Stanich injured his back, hip, and elbow in the course and scope of his employment with Canal Entertainment. As a result, Mr. Stanich received $412.00 per week in temporary total disability benefits from May 11, 2005, through January 7, 2009, the date the present matter was brought before the OWC.

On May 14, 2003, Mr. Stanich suffered a second accident, a hernia, while in the course and scope of his employment with the New Orleans Opera Association (“Opera Association”). In connection with this injury, Mr. Stanich received workers’ compensation benefits from September 27, 2003 until November 30, |22005. On November 30, 2005, Mr. Stanich received a lump sum settlement from the Opera Association in the amount of $40,000.00.

On July 28, 2008, defendants filed a 1008 Disputed Claim for Compensation, alleging that Mr. Stanich committed fraud under La.Rev.Stat. 23:1208 due to the fact that he received duplicate compensation benefits. Additionally, defendants made a demand for an offset or credit pursuant to La. R.S. 23:1225 for the duplication of benefits received by Mr. Stanich from May 11, 2005, through November 30, 2005.

Mr. Stanich answered the Disputed Claim for Compensation, denying that he made any misrepresentations as defined in La.Rev.Stat. 23:1208. Mr. Stanich further responded that the claims for offset or credit pursuant to La.Rev.Stat. 23:1225 had prescribed.

Following a hearing on January 7, 2009, the OWC rendered judgment on March 2, 2009, denying both of defendants’ claims. This devolutive appeal followed.

Assignments of Error

Defendants assert two assignments of error on appeal: 1) the trial court erred in concluding that Mr. Stanich did not violate La.Rev.Stat. 23:1208, and 2) the trial court erred in determining that defendants were not entitled to an offset or credit.

Standard of Review

The issue of whether an employee has forfeited his right to workers’ compensation benefits is a factual question that should not be disturbed on appeal | -¡absent manifest error. Ocon v. Regency Motors of Metairie, L.L.C., 06-0834, p. 5 (La.App. 5 Cir. 4/11/07), 957 So.2d 816, 820. Statutory forfeiture is a harsh remedy and must be strictly construed. Heirera v. Cajun Co., 06-1627, p. 7 (La.App. 4 Cir. 6/6/07), 960 So.2d 1161, 1166.

Discussion

1. Violation of La.Rev.Stat. 23:1208

Misrepresentation and forfeiture under the Workers’ Compensation Act are regulated by La.Rev.Stat. 23:1208 which states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
E. Any employee violating this Section shall, upon determination by [the] workers* compensation judge, forfeit any right to compensation benefits under this Chapter.

In determining whether a statement is willful, the courts have considered whether statements made by a claimant are merely inadvertent or inconsequential. Inadvertent or inconsequential statements will not give rise to a finding of willful misstatement, triggering statutory penalties. Hernandez v. ESKCO, Inc., 00-0174, p. 3 (La.App. 4 Cir. 11/15/00), 773 So.2d 865, 867.

The three requirements for forfeiture of benefits under La. R.S. 23:1208 are (1) a false statement or representation, (2) that is willfully made, (3) for the purpose of obtaining or defeating any benefit or payment under the workers’ compensation law. Resweber v. Haroil Const. Co., 94-2708, 94-3138, p. 11 (La.9/5/95), 660 So.2d 7, 14; Ravy v. Bridge Terminal Transport, 04-0134, p. 3 (La.App. 4 Cir. 9/29/04), 883 So.2d 1139, 1142.

|4In the present case, the OWC judge determined that defendants “failed to carry [their] burden to show the requisite intent necessary to implicate section 1208 and to impose the forfeiture of benefits commanded by section 1208.” We agree.

The only witness called to testify in support of defendants’ forfeiture claim was John Ellinghausen, the attorney who handled the workers’ compensation claim on behalf of the Opera and its workers’ compensation carrier. Mr. Ellinghausen testified that his file contained an earnings form from Mr. Stanich, dated May 31, 2005, which represented that Mr. Stanich denied getting any type of payments from May 1, 2005, through May 31, 2005. When asked whether the form was signed by Mr. Stanich or his previous attorney, Mr. Ellin-ghausen responded that Mr. Stanich’s name was only printed on the form.

The record reveals that Mr. Stanich was present at the hearing, but was not called to testify. Therefore, there was no testimony from Mr. Stanich as to what he represented in connection with his workers’ compensation claims. Likewise, there was no testimony or statements from Mr. Stanich’s previous attorney that handled his compensation claim against the Opera.

It is clear that defendants presented nothing to show that Mr. Stanich made any intentional or willful misrepresentations for the purpose of obtaining workers’ compensation benefits. Accordingly, the ruling of the OWC is neither manifestly erroneous nor clearly wrong. This assignment is without merit.

2. Offset or Credit Pursuant to La. Rev. Stat. 23:1225

La.Rev.Stat. 23:1225 provides for an offset of workers’ compensation benefits when other specified benefits are also being received by the employee. The statute provides, in pertinent part:

C. (1) If an employee receives remuneration from:
|B(a) Benefits under the Louisiana Workers’ Compensation Law.
(b) Repealed by Acts 2003, No. 616, § 1.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Sub-paragraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

It is well established in our jurisprudence that La.Rev.Stat. 28:1225(0(1) is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Jones v. General Motors Co., 03-1766, p. 12 (La.4/30/04), 871 So.2d 1109, 1117 (citing Cousins v. City of New Orleans, 608 So.2d 978, 981 (La.1992)); See also Taylor v. J.C. Penney, 06-1520 (La.App. 4 Cir. 5/23/07), 959 So.2d 549, 557. An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit. Id.

In calculating an offset, the trier of fact must (1) determine the claimant’s average weekly wage and (2) determine the total remuneration from the workers’ compensation benefits and the other identified benefits as set forth in La.Rev.Stat. 23:1225(0(1). Pace v. City of New Orleans, 99-1661, p. 4 (La.App. 4 Cir. 4/19/2000), 761 So.2d 602, 605. As explained by the Supreme Court in Jones, “if the total remuneration contemplated in Section 1225(C)(1) exceeds 66 2/3 percent of a worker’s average weekly wage, the employer is allowed to reduce its workers’ compensation obligation in an amount equal to the excess benefits. The jurisprudence has held that the benefits can only be reduced to the level of 66 2/3 percent of the average weekly wage.” Jones, 03-1766 at p. 10, 871 So.2d at 1116.

Inin finding that defendants failed to carry their burden of proving entitlement to an offset in the present case, the OWC judge stated in reasons for judgment:

From May 11, 2005, through November 30, 2005, Mr. Stanich received $416.00 per week from Defendant. From May 11, 2005, through October 31, 2005, Mr. Stanich received supplemental earnings benefits from the Opera in the amount of $779.49 per month, approximately $194.87 per week. Pending approval of the Opera settlement, Mr. Stanich received $773.00 from November 1, 2005, through November 30, 2005, from the Opera. Mr. Stanich’s average weekly wage was $1,220.00, thus, sixty six and two thirds percent of that sum is $813.33 per week. When the benefits from the Opera ($194.87 per week) are added to the temporary total disability benefits Defendant paid ($416.00 per week), Mr. Stanich was receiving approximately $610.87 per week from the combined sources. This sum is less than sixty six and two thirds percent of his wages. Therefore, Defendant is not entitled to a credit or offset of the benefits paid by the Opera for the periods of May 11, 2005, through November 30, 2005.
Because it is Defendant’s burden in this case to prove that it is entitled to the offset or credit, Defendant is additionally not entitled to an offset or credit against the $40,000.00 settlement because it failed to establish what sums, if any, were for indemnity benefits as opposed to medical or other benefits afforded under the Louisiana Workers’ Compensation Act. Therefore, it is impossible to determine if any such payment exceeded sixty six and two thirds percent of Mr. Stanich’s average weekly wage, and Defendant failed to carry its burden.

After reviewing the record, we find no error on the part of the OWC judge in finding that the combined weekly benefits received by Mr. Stanich was less than sixty-six and two-thirds percent of his average weekly wage. The parties stipulated that Mr. Stanich’s average weekly wage at the time of the first accident was $1,220.00. It is also undisputed that from May 11, 2005, until November 30, 2005, Mr. Stanich received a total of $610.87 per week from both compensation claims. As this amount does not exceed sixty-six and two-thirds of $1,220.00 (which is $813.33, as the OWC noted), defendants are not entitled to an offset pursuant to La.Rev. Stat. 23:1225.

17We further find that the OWC judge correctly determined that defendants failed to cany them burden of proving entitlement to an offset of the $40,000.00 lump sum settlement. During cross examination, Mr. Ellinghausen testified as follows:

Q. The settlement of Mr. Stanich’s claim, from your testimony, am I correct in understanding that there is no designation of the settlement of a certain amount being for compensation benefits and a certain amount being for medicals?
A. Correct. There was one lump sum settlement.
Q. So there is no way for us to know how that settlement is broken down as far as compensation and medicals, correct?
A. Yes. Paragraph 8 basically says it’s for all temporary and permanent, total and partial medical expenses, and everything lump sum of $40,000.00.

(Tr. p. 20)

Based on the above testimony, it is evident that defendants did not prove what portion of the lump sum settlement was attributed to indemnity benefits and what portion was attributed to medical benefits. Mr. Ellinghausen testified that none of the compensation payments made to Mr. Sta-nich prior to the lump sum settlement were designated as medicals. Therefore, it is conceivable that some, if not all, of the $40,000.00 represented medical benefits; however, the evidence is unclear. Accordingly, defendants did not prove their claim for an offset or credit from the lump sum settlement.

Conclusion

There is no manifest error in the Office of Workers’ Compensation’s determination that Mr. Michael Stanich did not violate La.Rev.Stat. 23:1208. Furthermore, there is no manifest error in the court’s determination that Defendants / Appellants Canal Entertainment, and its workers’ compensation | ¡¡gamier, American International Group Claim Service, Inc., are not entitled to an offset of worker’s compensation benefits under La.Rev.Stat. 23:1225.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . Other aspects of the March 2, 2009 judgment, regarding Mr. Stauich’s claims for mileage reimbursement, penalties, and attorneys’ fees, are not at issue in this appeal.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Grady N. GREENE.
    No. 2008-KA-1318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Grady N. Greene.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| [Grady Greene was sentenced to five years in prison for the unauthorized use of a movable in excess of one thousand dollars. We find that the trial court erred because the State failed to prove beyond a reasonable doubt that Mr. Greene possessed the requisite mens rea and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Karen Blanks entered into discussions with her friend, Grady N. Greene, for him to repair and renovate Ms. Blank’s home, which sustained damage during Hurricane Katrina. Ms. Blanks and Mr. Greene reached an agreement, on August 14, 2006, for Mr. Greene to perform the repairs for $67,000. Ms. Blanks transferred $25,180.21 into Mr. Greene’s account.

Ms. Blanks’ Testimony

Ms. Blanks testified that Mr. Greene was unable to commence work for some two weeks after the agreement was finalized and the money transferred because Mr. Greene had to go out of town on business. Ms. Blanks passed by her property in the middle of September and noticed that Mr. Greene performed work, as there was a flat-bed trailer parked in front of her property, a tree was cut down, and a fence was removed from her property.

|2Ms. Blanks testified that Mr. Greene informed her that the house needed to be leveled and that he was concerned whether the two chimneys could be safely removed. On October 9, 2006, Mr. Greene and Ms. Blanks met at the property to survey the situation along with an associate of Mr. Greene’s who presented Ms. Blanks with an estimate of $6,800.00 to level the foundation piers.

Ms. Blanks testified that she informed her mortgage company of the situation and that she was instructed to obtain two additional estimates for the repairs. Ms. Blanks contacted two contractors regarding the chimney and whether the house needed to be leveled. After speaking with these contractors, Ms. Blanks informed Mr. Greene that taking the chimneys down would not affect the structural integrity of the home and they could be safely removed. Ms. Blanks told Mr. Greene to proceed with the work; however, Mr. Greene told Ms. Blanks that “he did not take other contractors words (sic), and he felt more comfortable if the house would be leveled.” Mr. Greene also informed Ms. Blanks that he would need to obtain a bid to have the chimneys removed. Ms. Blanks was surprised to learn that Mr. Greene would not be performing the work. Ms. Blanks stated that she informed Mr. Greene that he could proceed with completing other work on her property.

Ms. Blanks returned to the property around October 16, 2006, and saw that the trailer was gone and that it did not appear that any more work had been completed. Ms. Blanks tried to contact Mr. Greene several times between October 18 and October 26 without success.

On October 27, Ms. Blanks located Mr. Greene at his house and presented him with a demand letter outlining what she expected of Mr. Greene. Ms. Blanks also sent copies by certified and regular mail. On the morning of October 31, |s2006, Ms. Blanks went to Mr. Greene’s house and informed him that their contract was terminated. Ms. Blanks mailed a termination letter by certified as well as registered mail on that date. Ms. Blanks informed Mr. Greene that she wanted her money back within twenty-four hours or she would contact the District Attorney’s Office and take any action needed to recoup her money. Two of Mr. Greene’s workers were at the construction site, and Ms. Blanks had them ordered off the property.

Ms. Blanks acknowledged that one of the contractors who made a structural assessment of the property informed her in written correspondence that the house was indeed out of level and that “[t]his structural correction should be accomplish [sic] prior to continuation of work on the residence and especially prior to installation of drywall material.” Ms. Blanks testified that she did not feel that the former statement applied to any work other than the installation of drywall.

Detective Byron Francois

On November 15, 2006, Ms. Blanks made a complaint to the Economic Crime Unit of the Orleans Parish District Attorney’s Office. Detective Byron Francois reviewed Ms. Blanks’ complaint and met with her on November 31, 2006. Detective Francois met with Mr. Greene on December 6, 2006, and inquired if Mr. Greene had considered repaying Ms. Blanks. Mr. Greene submitted a written proposal offering to repay Ms. Blanks $20,000 at the rate of $5,000 a month beginning on December 31, 2006. Detective Francois met with Ms. Banks to determine if this was acceptable; however, Ms. Blanks informed him that the terms were unacceptable to her and that she would not accept the offer. Ms. Blanks testified that she needed to receive at least $10,000 per month because she was paying both rent and a mortgage. Detective Francois arrested Mr. Greene on |4Pecember 20, 2006, prior to the date of his first payment.

Mr. Greene’s Testimony

Mr. Greene testified that after finalizing the agreement on August 14, 2006, he obtained a building permit from the Department of Buildings and Safety about two days later. He commenced work the following Monday by removing a tree that fell on a chain link fence in the front of the home as well as some of the wrought iron railing to create a space to park his trailer. In the rear of the house, Mr. Greene discovered a large beehive in a fallen tree that needed to be removed. Mr. Greene apprised Ms. Banks of the situation and she removed the nest within a few days. Afterwards, Mr. Greene resumed work on her property by removing debris from outside the property before commencing work inside. Mr. Greene believed that some of Ms. Blanks’ neighbors were using her backyard as a dump because he discovered metal and other discarded material.

Mr. Greene commenced work on the inside of the structure by removing the air conditioning units, the gas radiators, clothing debris, and other personal materials that remained inside the structure. He also began removing the interior lathe walls and sills.

Mr. Greene explained that after removing the inner walls and getting the windows and doors open he was able to see uneven flooring in the building. He and his chief carpenter decided to inspect the cause of the floors shifting to the center of the structure where the fireplaces were. They examined the pilings and isolated twelve pilings that needed to be replaced. Mr. Greene believed that if he removed the fireplaces, the whole -structure could collapse.

Mr. Greene testified that he ceased working on the house after he and Ms. |sBlanks reached an impasse over whether the house should be leveled first or remove the chimneys. Mr. Greene relayed that Ms. Banks insisted that Mr. Greene proceed with removing the fireplaces prior to repairing or replacing the piers. Mr. Greene believed that this would be “suicidal” and refused to do it. Mr. Greene stated that their opinions differed regarding how to proceed and they waited for the money from Ms. Banks’ insurance company to do the foundation work. By mid-October, Ms. Banks informed Mr. Greene that she was not satisfied with the amount of work that had been done and terminated him.

Mr. Greene testified that Ms. Blanks demanded all of her money back and that he told her that was not fair. He agreed that he had not done $25,000 worth of work and that they agreed that he would repay her $20,000. He estimated that he performed approximately $4,600 worth of work on Ms. Blanks’ property prior to her terminating the contract. Mr. Greene related that agreeing upon the method and manner of repayment created additional problems. Ms. Blanks wanted to be paid $10,000 in two equal installments. Mr. Greene informed her that he did not have $10,000 to repay her, but that he did have $5,000 to pay her that day.

Mr. Greene explained that he did not have the money to repay Ms. Blanks because he was keeping two jobs going and that he was paying his crew, paying himself, and covering his business operating expenses with the money received from Ms. Blanks.

Licensing Board

Carl Bourgue, a residential supervisor for the Louisiana State Licensing Board for Contractors, testified that Mr. Greene was not registered with the Board Las a home improvement contractor.

Court Proceedings

The State charged Mr. Greene with one count of theft in excess of one thousand dollars. Mr. Greene pled not guilty. The trial court found probable cause and granted the motion to suppress Mr. Greene’s statement. Following a bench trial in which the trial court incorporated the testimony from the preliminary hearing, the trial court found Mr. Greene guilty of unauthorized use of a movable in excess of one thousand dollars, to wit, $21,100 and ordered Mr. Greene to make restitution to the victim in the amount of $21,100 prior to sentencing. The matter was continued on several occasions to allow Mr. Greene to make restitution. Mr. Greene was sentenced to serve five years in the custody of the Department of Corrections. Mr. Greene’s motion for appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

UNAUTHORIZED USE OF A MOVABLE

Mr. Greene was convicted of unauthorized use of movables valued in excess of $1000, in violation of La. R.S. 14:68, which provides in pertinent part:

A. Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.

Unauthorized use of movables valued in excess of $1000 is a responsive verdict to the charged offense. La. C. Cr. P. art. 814(A)(26). In State v. Bias, 400 So.2d 650, 652-53 (La.1981), the Louisiana Supreme Court discussed the nature of the offense as follows:

17A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices. R.S. 14:68, although not requiring that a person act with an intent to deprive the owner permanently of his property, must reasonably be construed to require the existence of fraudulent intent. See State v. Kelley, 241 La. 224, 128 So.2d 18 (1961).
[W]e construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the “evil” state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381.

Mr. Greene asserts that the evidence presented against him failed to establish that he was guilty beyond a reasonable doubt. In State v. Bridgewater, 00-1529, pp. 8-9 (La.1/15/02), 823 So.2d 877, 889, the Louisiana Supreme Court discussed the standard of review for claims challenging the sufficiency of the evidence as follows:

In reviewing the sufficiency of the evidence to support a conviction, we follow the due process standard of review enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). That standard “preserves the role of the jury as the factfinder in the case but it does not allow jurors ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ ” State v. Pierre, 93-0893 at p. 5 (La.2/3/94), 631 So.2d 427, 429. The jury is not allowed to engage in speculation .... ” 93-0893 at pp. 5-6, 631 So.2d at 429. In order for the trier of fact to convict and for the reviewing court to affirm a conviction, the totality of the evidence must exclude reasonable doubt.
Under Jackson, all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. See State v. Jacobs, 504 So.2d 817, 820 (La.1987). When circumstantial evidence forms the basis of the conviction, the totality of such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. However, “[hjypotheses of innocence are merely methods for the trier of fact to determine the existence of a reasonable doubt arising from the evidence or lack of evidence.” State v. Shapiro, 431 So.2d 372, 389 (La.1982) (on reh’g) (Lemmon, J., concurring). This circumstantial evidence rule is not a separate test from the Jackson standard; rather, La. R.S. 15:438 merely “provides an evi-dentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilty beyond a reasonable doubt.” State v. Wright, 445 So.2d 1198, 1201 (La.1984). “Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.” State v. Chism, 436 So.2d 464, 470 (La.1983).

“The State may produce direct or circumstantial evidence of fraudulent intent in unauthorized use cases.” State v. Anderson, 07-752, p. 6 (La.App. 5 Cir. 2/6/08), 979 So.2d 566, 570. The trial judge made “credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Sosa, 05-0213, p. 11 (La.1/19/06), 921 So.2d 94, 101. Intent is a question of fact that can be “inferred from the circumstances of the transaction” by the fact-finder. Anderson, 07-752, p. 7, 979 So.2d at 570.

As to fraudulent intent, Mr. Greene’s chief contention is that the State failed to establish that he accepted Ms. Blanks’ money with fraudulent intent or that he used the money fraudulently. Partially agreeing with Mr. Greene, the trial court found that the State failed to establish that Mr. Greene had the specific intent to deprive the victim of her money from the outset and did not find Mr. Greene guilty of theft.

|flThe State, however, contends that the evidence supported the crime asserting that the evidence established that, after Mr. Greene and Ms. Blanks became close friends, he sought to take advantage of her by entering into a contract to work on her home. The State asserts that from the delays in completing the project, Mr. Greene’s lack of contact with Ms. Blanks, and his disappearances from the worksite any rational trier of fact could have found that Mr. Greene intended to permanently deprive Ms. Blanks of her money from the inception of the contract.

The trial court concluded that there was insufficient evidence to establish that Mr. Greene sought to defraud Ms. Blanks from the outset. Thus, the question remains whether Mr. Greene’s actions prior to Ms. Blanks terminating the contract were sufficient to establish fraud; and secondly, whether fraud and/or criminal intent can be inferred from the fact that the funds transferred to Mr. Greene were not available after the contract was cancelled.

The chief elements of the State’s circumstantial case were the purportedly small of amount of work completed by Mr. Greene, the fact that Ms. Blanks had difficulty or could not reach Mr. Greene for eight days, and the fact that work was not proceeding at the property during a two week period.

Mr. Greene never suggested that he completed anything but a small portion of the work and valued the work completed at $4,600. The trial court found no fault in the assessment, concluding that $21,100 was used improperly. With respect to the two week period wherein little or no work was being completed, the time period is too short to create an inference of fraudulent conduct. Finally, the inability to reach Mr. Greene for eight days is not sufficient to create an inference | inof fraud.

Accordingly, review of the evidence presented against Mr. Greene, even under Jackson’s favorable standard, reflects that the State failed to establish beyond a reasonable doubt that Mr. Greene acted with fraudulent intent prior to October 31, 2006, when Ms. Blanks terminated the contract. The evidence failed to exclude the reasonable probability that Mr. Greene and Ms. Blanks had a legitimate business dispute as to how best to proceed with the repairs and renovation of Ms. Blank’s home, and that she terminated Mr. Greene’s services after he was reluctant to proceed in the manner suggested by Ms. Blanks. Lending legitimacy to Mr. Greene’s concerns about the condition of the property, one of the contractors that Ms. Blanks consulted confirmed Mr. Greene’s assessment of the need to level the foundation. Accordingly, it appears that on October 31, when Ms. Blanks terminated the contract, the dispute that existed between the parties was civil in nature not criminal and should have been handled in a civil proceeding, where any damages owed by either party could be properly assessed under the terms of the contract.

It is acknowledged that Mr. Greene’s actions of applying the money advanced by Ms. Blanks to another job or drawing on the money to pay himself, viewed in the light most favorable to the State, could constitute evidence of fraudulent and/or criminal conduct. However, the misapplication of payments by a contractor is criminalized by La. R.S. 14:202 in certain instances and Mr. Greene was not charged with such a crime. In finding the defendant guilty of unauthorized use of movable, the trial court stated, “I find that at some point during the course of these proceedings the undertaking that was involving the gentleman and the lady, that he clearly used her money by fraudulent means, practices or representations | nfor his own personal gain.” The trial court inferred fraudulent conduct from Mr. Greene’s use of the money.

We do not find that the State’s circumstantial evidence excluded every reasonable hypothesis of innocence. A rational trier of fact, viewing the evidence in the light most favorable to the prosecution could not find that fraudulent intent was proven beyond a reasonable doubt.

DECREE

For the above mentioned reasons, we find that the trial court erred in that the State did not prove beyond a reasonable doubt that Mr. Greene possessed the requisite mens rea for the unauthorized use of a movable and reverse.

REVERSED.

BELSOME, J.,

dissents with reasons.

hi respectfully dissent. This Court’s review of the record is to determine if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As a Court of review, we are not permitted to substitute our interpretation of the evidence for that of the fact finder. State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521. Applying that standard of review, I find that the record before this Court presents sufficient grounds to uphold Mr. Greene’s conviction and sentence under La. R.S. 14:68 .

Mr. Greene’s testimony confirmed that although he was not licensed as a contractor in Louisiana, he entered into an agreement with Ms. Blanks to repair her Katrina damaged home for $67,100.00. Pursuant to that agreement, Ms. Blanks provided Mr. Greene with a deposit of $25,700.00. Shortly thereafter, Ms. Blanks terminated the agreement after only $4,600.00 of work had been completed. Mr. Greene admitted that the remaining $21,100.00 was used to fund other jobs, pay workers and pay himself a $1,500.00 a week salary. Mr. Greene did not provide a |2precise accounting of the money but he confirmed that it was used for his benefit even after he was terminated by Ms. Blanks.

On October 31, 2006, Ms. Blanks made a demand for the balance of her money to be returned to her within twenty-four hours. By November 15, 2006, Ms. Blanks had not received any funds or had any communications with Mr. Greene, so she filed a complaint with the appropriate authority. That complaint was reviewed on November 30, 2006 and a meeting took place between the detective in charge and Mr. Greene. At that meeting, Mr. Greene claimed he would pay Ms. Blanks back $5,000.00 a month beginning on December 31, 2006, two months after Ms. Banks demanded the unused funds. Ms. Blanks testified that waiting to receive $5,000.00 increments was unacceptable because she needed her money to pay rent as well as the mortgage on her damaged property. Subsequently, Mr. Greene was arrested.

After hearing the testimony and examining the evidence, the trial court concluded that Mr. Greene “clearly used [Ms. Blanks] money by fraudulent means, practices or representations for his own personal gain.” Accordingly, Mr. Greene was convicted of unauthorized use of a movable in excess of $1,000. Based on the record, I would affirm the conviction and sentence.

      . Mr. Green testified that it was a hornet’s nest.

      . Mr. Greene also performed work at a properly owned by Ms. Blanks' mother where he restored the electrical service and was under contract to repair another house.

      . The signed contracts and correspondence indicated that Mr. Greene was “licensed and insured LA # R-1344 2005.”

      . The Louisiana Supreme Court reversed the defendant's conviction concluding that the default in the rental payments by defendant and his retention of a T.V. set following such default did not constitute "use without consent’’ or "use by fraudulent practices” for the purpose of the statute prohibiting unauthorized use of a movable.

      . The exhibits include two greeting cards whereby Ms. Blanks expresses her affinity for Mr. Greene and she refers to herself as "Grady's Lady.”

      . By comparison, La. R.S. 14:202.1(A)(1), relative to home improvement fraud, criminalizes the failure to do any work for a period of forty-five days after being compensated.

      . La. R.S. 14:68, which provides in pertinent part:
      A. Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.


text:
    Percy PAYNE, Jr. v. Keith MYERS, Individually, Myers & Sons Enterprises, Inc. and Fair City Event Center, LLC.
    No. 2009-CA-0145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 2009.
    J. Konrad Jackson, Daniel W. Dilzell, Jackson & Jackson, PLLC, New Orleans, LA, for Plaintiff/Appellee.
    Ernest L. Jones, Elie, Jones & Associates, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe appeal is from the judgment of the district court granting the plaintiffs Exception of Res Judicata. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts

This matter arises out of a personal injury lawsuit filed in February 2006 by the plaintiff, Percy Payne, Jr., and naming as defendants, Keith Myers, individually, and Myers & Sons Enterprises, Inc. (“the Myers defendants”), as well as Fair City Event Center, LLC. On November 20, 2007, the trial court confirmed a default judgment against Keith Myers and Meyers & Sons. On November 29, 2007, the Myers defendants filed a motion for a new trial which was denied by the trial court on December 13, 2007. On January 14, 2008, the Myers defendants filed a motion for appeal from the denial of their motion for a new trial on the default judgment. This court affirmed the judgment of the trial court on February 4, 2009. Payne v. Myers, et al, 08-0396 (La. 4 Cir.App.2008) (unpublished).

12Meanwhile, however, on March 13, 2008, the Myers defendants filed a Petition for Nullity of Judgment, alleging that service was never made on the registered agent for service of process and that the domiciliary service return on Keith Meyers was not made in accordance with the law. On April 28, 2008, the plaintiff filed his Exception of Res Judicata, asserting that (1) the Myers defendants made a general appearance and filed their answer to the plaintiffs petition on November 29, 2007; (2) the Myers defendants’ answer failed to raise any declinatory exceptions, including insufficiency of citation or insufficiency of seiwice; (3) the Myers defendants raised the issue of sufficiency of service in their motion for a new trial filed on November 29, 2007; (4) the trial court denied the motion for a new trial on December 13, 2007, finding in its reasons for judgment that the record reflected that Keith Myers was served by domiciliary service on April 27, 2007, and that clearly there was proper service in this matter; and (5) a suspen-sive appeal from this judgment had been filed by the Myers defendants.

The trial court granted the plaintiffs Exception of Res Judicata on August 18, 2008, and the Myers defendants are now before the court on appeal from that judgment. On appeal, the Myers defendants argue that (1) neither Myers & Sons nor Mr. Myers were properly served with citation and the petition; (2) none of the filings made on behalf of the Myers defendants waive the absence of proper service; and (3) no proceedings or ruling in the trial court has a res judicata effect on the validity of service.

However, in Payne v. Myers, 08-0396, 3 So.3d 92 (La. 4 Cir.App. 02/04/09) (appeal from denial of motion for new trial), this court held that the Myers defendants waived all rights to challenge the service of process upon them. Payne v. Myers, 08-0396 at 6. Accordingly, we pretermit any further discussion of this issue.

| .Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . To the extent to which the record on appeal in this matter does not contain pertinent documents, we have relied on the court's recita-lion of facts in the related case of Payne v. Myers, 08-0396, 3 So.3d 92 (La. 4 Cir.App. 02/04/09).


text:
    STATE of Louisiana v. Samuel L. SCOTT.
    No. 2009-KA-0138.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Cate L. Bartholomew, Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hThe defendant, Samuel Scott, was indicted on two counts of second-degree murder. He pled not guilty to both counts at his arraignment. The two counts were severed; the court found probable cause; and it denied a motion to suppress identification with regard to Count One.

Trial commenced on Count One and the jury returned a verdict of guilty to the lesser included offense of manslaughter. The defendant was sentenced to forty years at hard labor without benefit of parole, probation or suspension of sentence.

Trial Testimony

NOPD homicide Detective Gregory Hamilton was the lead investigator on this case. He found the victim’s body in the rear yard of 1502 France Street. The detective noted an obvious gunshot wound to the victim’s head and a bullet wound to one of the victim’s hands. As Hamilton surveyed the crime scene for evidence, he discovered a trail of blood, which was consistent with the victim’s body being dragged from the front porch to the back yard. Detective Hamilton recovered several spent bullet casings near the front of the house. From conversations with Igwitnesses, Hamilton developed the defendant as the shooter in this case. One of the witnesses, Regina Journee, positively identified the defendant as the man who pointed a gun at her and shot the victim. Detective Hamilton obtained a warrant for the defendant’s arrest and issued a crime bulletin in connection with the shooting.

Dr. Paul McGarry, forensic pathologist with the Orleans Parish Coroner’s Office, determined that the victim suffered four gunshot wounds. The fatal shot was delivered to the left side of the victim’s head at point blank range. Dr. McGarry opined that the injury to the victim’s fourth finger of his left hand was a defensive wound because portions of the finger bone were lodged in the head wound.

Regina Journee was the victim’s ex-girlfriend. On the night of March 4, 2005, Ms. Journee was standing on the corner of Robertson and France Street talking to some friends. She saw the victim jump out of his brother’s car and run toward her. She ran onto the porch of the house at 1500 France Street. The front door was locked so she jumped from the porch, ran down the alley and hid under the house. She ran because she feared the victim would hit her, as he had done in the past.

The victim pulled her from under the house and accused her of seeing other boys while he was in jail. The pair sat on two chairs in the alley to talk. As the couple spoke, the defendant came from the 1502 France Street back door pointing a gun at them, and he asked what they were doing in his backyard. The defendant grabbed the victim by his shirt and ordered Ms. Journee to leave the area. As she |3ran away, she heard three gunshots. She ran to a nearby house and called the police. Later that night, the police took her to the station where she identified the defendant’s picture from a photo lineup as the man who held a gun on her and the victim.

Jason Egana and John Blandin were the victim’s brothers. On March 4, 2005, the three brothers drove to Ms. Journee’s residence on Robertson Street. The victim saw Ms. Journee standing on the corner talking to friends and exited the car. Jason drove the ear around the corner twice and then parked where the victim had gotten out of the ear. Jason noticed the victim sitting on the porch of the house at 1502 France Street. Jason and John called to the victim to come home with them. As the victim got up to leave, a man, who was standing in front of the victim on the porch, shot him. The shot spun the victim around. When the shooter shot the victim a second time, the victim jumped off the porch and ran down the alley with the shooter chasing him. Jason and John drove to the police station and reported the incident.

The brothers accompanied the police officer in his car and returned to the shooting scene. Jason and the policeman ran down the alley. Jason proceeded to the backyard of the France Street residence and found the victim lying underneath the house. Jason told the police that the shooter wore his hair in twists and made an in-court identification of the defendant as the man who shot the victim.

John Blandin, recounted the events of March 4, 2005, corroborating Jason Ega-na’s account of what happened that day. Blandin remained at the police station while Jason Egana returned to the shooting scene with the police.

The defendant testified that on March 4, 2005, he was at home talking to his mother when he heard a loud bang on the side of his house. He heard a woman |4scream, which startled him and his mother. The defendant retrieved his gun from his bedroom and went out the back door to investigate. The defendant walked around to the alley on 1500 France Street and saw a female with her back to the house and the victim standing in front of her. The defendant told the female to leave. As she did so, the defendant walked the victim to the front of the house. They jumped onto the front porch. The defendant told the victim to leave. The victim turned toward the defendant and grabbed the defendant’s gun. The defendant backed away and scuffled with the victim over the gun. The defendant’s arm hit the house, and he fired two shots. He pushed the victim off and fired a third time. The victim fell into the alley. The defendant admitted shooting the victim but said he did not mean for it to happen. After the shooting, the defendant moved the victim from the alley to the backyard.

ERRORS PATENT

A review of the record reveals an error in sentencing. The docket master and minute entry indicate that the sentence is to be served without benefit of parole, probation or suspension of sentence; however, the sentencing transcript makes no such restrictions.

La. R.S. 14:31 provides that a person convicted of manslaughter “shall be imprisoned at hard labor for not more than forty years.” There is no prohibition against parole, probation or suspension of sentence. However, La. C. Cr. P. article 893 provides that persons convicted of violent offenses listed in La. R.S. |b14:2(B)(4) (manslaughter) are to be denied the benefit of probation and suspension of sentence.

The trial court is ordered to amend the pertinent documents in the record to reflect the change. Moreover, the clerk of court is directed to toansmit the corrected documents to the officer in charge of the institution to which the defendant has been sentenced. La. C. Cr. P. art. 892(B)(2). See, State ex rel. Roland v. State, 2006-0244 (La.9/15/06), 937 So.2d 846.

ASSIGNMENT OF ERROR NUMBER 1

The defendant first argues that the trial court erred by refusing to give the defense requested jury instruction regarding defense of others.

The trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors reasonably could infer from the evidence. La. C. Cr. P. art. 807; State v. Johnson, 438 So.2d 1091, 1097 (La.1983). Article 807 further provides that a timely “requested special charge must be given to the jury if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” The refusal to give a requested special charge does not warrant reversal of a defendant’s conviction unless it prejudices substantial rights of the accused. La. C. Cr. P. art. 921; State v. Marse, 365 So.2d 1319, 1324 (La.1978); State v. Lipscomb, 99-2094, p. 5 (La.App. 4 Cir. 7/3/2002), 823 So.2d 425, 428.

The trial judge in this case refused to give the jury charge requested by the defendant relative to defense of others, because the evidence did not support the assertion. The record reflects that Ms. Journee testified that the victim had not hit her or given her any reason to fear him as they spoke in the alley. In fact, she ^testified that she feared for her safety only after the defendant pointed the gun at her and told her to run. Therefore, the evidence did not support the trial court giving the requested charge. There was no error on the part of the trial court.

ASSIGNMENT OF ERROR NUMBER 2

Secondly, the defendant contends that the evidence is insufficient to support a conviction for manslaughter. The defendant argues that the evidence suggests a case of negligent homicide because the State failed to prove that the defendant had the general intent to kill or inflict great bodily harm on the victim.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 2000-0674, p. 9, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id.

|7In this case, the defendant was charged with second-degree murder but convicted of manslaughter. An appellate court will not reverse a jury’s return of a responsive verdict, as long as the evidence is sufficient to support a conviction for the charged offense. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982).

La. R.S. 14:30.1(A)(1) provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm;

The defendant herein argues that the State failed to prove that he had the general intent to kill or inflict great bodily harm. La. R.S. 14:31(A)(1) defines manslaughter in pertinent part as:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed ...

“Sudden passion” and “heat of blood” have been found not to be separate elements of the offense, but are mitigating factors that may show less culpability than when a homicide is committed without them. State v. Lombard, 486 So.2d 106, 110 (La.1986). Provocation is a question of fact to be determined by the trier of fact. In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove mitigatory factors by a preponderance of the evidence. Id. at 111.

| RSpecific criminal intent is a state of mind, and, as such, need not be proven as fact but may be inferred from the circumstances and the actions of the accused. State v. Hart, 2004-0121, p. 8 (La.App. 4 Cir. 8/18/04), 881 So.2d 1237, 1242. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Bridgewater, 2000-1529, p. 8 (La.1/15/2002), 823 So.2d 877, 910.

The evidence in this case shows that the defendant stated that he armed himself with a gun before exiting his residence. He also admitted that he shot the victim. Additionally, Ms. Journee stated that she witnessed the defendant grab the victim by the shirt and point a gun in his face. The fact that the defendant armed himself, pointed a gun in the victim’s face and intentionally fired on the defendant is sufficient to show the defendant’s intent to kill or inflict great bodily harm on the victim. We find the assignment to be without merit.

ASSIGNMENT OF ERROR NUMBER 3

In his final assignment, the defendant argues a conviction by a non-unanimous jury is unconstitutional. The defendant argues the trial judge erred in accepting the non-unanimous jury verdict as legal. He maintains that, in light of recent jurisprudence, La. C. Cr. P. art. 782 and La. Const, art. I, § 17 (providing for jury verdicts of 10 to 2 in cases in which punishment is necessarily confinement at hard labor) violate the Sixth and Fourteenth Amendments of the United States Constitution. Thus, the defendant argues the 10-2 jury verdict is unconstitutional. | ¡¡He cites to numerous United States Supreme Court cases to support his contention.

This Court has recently sought an opinion from the Louisiana Supreme Court on this question of law. As such, we will pretermit a discussion of the constitutionality of a non-unanimous jury verdict.

CONCLUSION

For the reasons discussed, the defendant’s conviction is affirmed and the trial court is ordered to amend the sentencing transcript in accordance with this opinion.

AFFIRMED.

      . Count one concerned the March 4, 2005, death of Jonathan Egana, which is the subject of this appeal, while count two pertains to the August 14, 2004, death of Terry Foucha. On May 20, 2009, the State amended count two to manslaughter, and the defendant pled guilty as charged. The court sentenced him to forty years at hard labor, concurrent to his existing sentence. This plea and sentence are not the subject of this appeal.

      . La. R.S. 14:31 states that when the victim was killed as a result of a battery and tinder the age of ten years, the person convicted of manslaughter of the victim shall be imprisoned without the benefit of probation or suspension of sentence for at least ten years but not more than forty years. However, that provision is not applicable in the present case as the victim was over the age of ten.

      . La. C. Cr. P. art. 814 provides an exclusive list of responsive verdicts to second-degree murder, which are: guilty, guilty of manslaughter, and not guilty.

      . Because lesser and included grades of the charged offense are "those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged .... the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense." Stale ex rel. Elaire v. Blackburn, 424 So.2d at 248-249 citing Stale v. Cooley, 260 La. 768, 257 So.2d 400 (1972)).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 12(3 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Sterling MAJOR.
    No. 09-KA-370.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial, District Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Michael F. Escudier Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Davidson S. Ehle, III, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and Jude G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2On June 21, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Sterling Major, with possession of a firearm by a convicted felon (Count 1) and possession of cocaine in excess of 400 grams (Count 2), in violation of LSA-R.S. 14:95.1 and R.S. 40:967 F, respectively. Defendant pled not guilty. He filed a motion to suppress evidence and a motion to reconsider the motion to suppress, which were both denied.

Counts 1 and 2 were severed for trial, and a jury trial on Count 2 was held on September 15, 16, and 17, 2008. On September 17, 2008, when the jurors could not reach a verdict, defendant withdrew his not guilty plea and pled guilty as charged to both counts under State v. Crosby, 338 So.2d 584 (La.1976). On that |ssame date, the trial court sentenced defendant to imprisonment at hard labor for 15 years without benefit of parole, probation, or suspension of sentence on each count to run concurrently.

FACTS

The Jefferson Parish Sheriffs Office (JPSO) arrest report and probable cause affidavit indicate that on April 12, 2006, the JPSO executed a search warrant at 1049 Beechwood Drive in Harvey. During that search, the agents located 1736 grams of cocaine, a semi-automatic handgun, and paperwork and clothing which showed that defendant resided there. The agents also located $1,423.00 in various denominations which they believed was consistent with mid-level narcotics trafficking.

In a lengthy affidavit in support of the application for a search warrant, JPSO Detective Elvin Módica stated that he was contacted by a reliable and credible confidential informant (Cl) who informed him that cocaine was being distributed on Eli Court in Gretna by narcotics trafficker # 1, who was leading an organization of mid-level and street level narcotics peddlers. Additionally, the Cl said that defendant was a family member of narcotics trafficker # 1 and was also a mid-level narcotics trafficker embedded in this organization. The Cl was unable to supply a home address for defendant, but he knew that defendant resided in Harvey. A record check of defendant revealed a previous conviction for possession of cocaine and an arrest for crack cocaine distribution.

In his affidavit, Detective Módica explained that, during countless hours of surveillance in the 1000 block of Eli Court, an area notorious for the retail distribution of narcotics and violence associated with that activity, he witnessed | numerous hand-to-hand narcotics sales. On April 5, 2006, Detective Módica observed defendant arrive in a silver Toyota Camry rental vehicle, and he watched as defendant was awaiting the arrival of another vehicle. Once the vehicle arrived, defendant entered the passenger side and interacted with the occupant. Two minutes later, defendant emerged from the vehicle, isolated himself from the other subjects congregating in the neighborhood, and counted a large sum of currency.

Detective Módica said in the affidavit that, based on these facts, officers maintained a moving surveillance of defendant and observed him operating his vehicle in a reckless manner. They stopped defendant and issued him a traffic citation. Defendant informed the deputies that he resided at 220 Eliza Street in New Orleans, but they were unable to verify that address. He also falsely stated that he was coming from the Best Buy store in Harvey.

After the traffic stop, an investigation revealed that defendant had been previously arrested on March 18, 2006 for driving while intoxicated and traffic violations. That arrest occurred after defendant struck a residence at 1042 Beechwood Street in Harvey at 4:40 a.m. During that arrest, defendant provided the address of 1047 Beechwood as his residence. The investigators surmised that defendant was intoxicated and mistakenly provided his true address. They believed that defendant mistook the residence at 1042 Beechwood for his own because of his impaired state of mind.

On April 6, 2006, at 8:00 a.m., a JPSO lieutenant conducted surveillance in the 1000 block of Beechwood in an attempt to locate defendant’s vehicle. The lieutenant noticed that the 1047 Beechwood address was nonexistent, and that the sequence was 1045 and 1049. Thus, the lieutenant checked the address of 1049 Beechwood and located defendant’s rental vehicle. The investigators also confirmed that this address was affiliated with narcotics trafficker # 1.

|fiThe background check of defendant also revealed that he had been stopped on March 12, 2006 and arrested for outstanding court attachments. A search of defendant’s vehicle incidental to that arrest resulted in the discovery of a shopping bag containing baking soda, sandwich bags, and a razor blade. These items raised the suspicions of the arresting officers, so they enlisted the assistance of a narcotic detecting canine. The canine alerted to several areas of the vehicle, but no narcotics were seized. The deputies noted, however, that defendant was in possession of a large sum of currency. Defendant said that he sold narcotics in the past, but that he no longer engaged in that activity. He was arrested on the attachments and provided an address of 220 Eliza Street in New Orleans.

On April 7, 2006, Detective Módica conducted a brief surveillance of the residence at 1049 Beechwood and observed defendant’s rental vehicle in the driveway. He also observed defendant emerge from the residence briefly and then re-enter the structure. Detective Módica said in the affidavit that the practice of narcotics traffickers not supplying their true addresses to law enforcement was common and done to protect themselves from seizure of their narcotics and cash and to avoid arrest. He also said in the affidavit that, based on these facts, he believed that the premises were being utilized to conceal elements of defendant’s narcotics trafficking, and he requested a search warrant for that residence.

At the motion to suppress hearing, Detective Módica testified that, on April 12, 2006, he executed a search warrant at 1049 Beechwood Drive in Harvey. While executing that search warrant he confronted defendant, advised him of his rights, and talked to him. Detective Módica asked defendant if he had any weapons in the house. Defendant answered affirmatively and said that there was a gun in the bedroom between his mattress and box spring. Detective Módica subsequently located the weapon in that location.

| ^Defendant told the detective that he was residing at that address, but was going to move to 220 Eliza Street in New Orleans. At that time, however, nothing had been moved, and there was no indication that defendant had begun to move. Detective Módica observed a large, gray outdoor garbage can filled to the top in the living room or kitchen. The detective asked defendant why it was there, and defendant replied that he did not know, but there was nothing in the garbage can that belonged to him. Detective Módica ultimately recovered evidence from the garbage can.

Detective Módica and defendant also had a conversation about why defendant was no longer going to be living at that residence. Defendant said that his girlfriend rented the residence and they had been dating a long time, but their relationship had taken a turn for the worse and another man was either living at or had been “involved” with that residence. He could not identify this other man.

Detective Módica questioned defendant about his shoe size, and defendant responded that he wore between a ten and a ten-and-a-half size shoe. The detective testified that he located shoes that were in that size range in one of the bedrooms. There was also men’s clothing found in that room, along with drugs and the gun. The men’s clothing would have fit someone of defendant’s size and stature. Detective Módica also found in the kitchen a Chase savings statement and a fire insurance pamphlet addressed to defendant at 1049 Beechwood Drive. Defendant was the only one home at the time the search warrant was executed.

LAW AND DISCUSSION

On appeal, defendant argues that the trial court erred in denying his motion to suppress the evidence and his motion to reconsider suppressing the evidence. He contends that the affidavit in support of the search warrant provided inadequate facts to support a substantial basis for concluding that probable cause existed to ]¿ssue the search warrant. He further contends that the affidavit did not establish probable cause to believe that defendant had an adequate nexus to the residence or that narcotics would be found there.

At the suppression healing, defense counsel contested Detective Modica’s affidavit in support of the search warrant. He argued that there were no specific facts within the four corners of the affidavit to show why the detective believed that narcotics would be found at 1049 Beechwood. He noted that the detective did not state in the affidavit that anyone saw narcotics in this house, that they did a controlled buy at this house, or that they saw anyone walk into or out of the house with packages. He argued that the affidavit only provided that the detective believed defendant was a drug dealer, and he wanted to search this house.

Defense counsel stated that, in the affidavit, the detective said that officers saw defendant get into an automobile, stay inside of it for a couple of minutes, and then get out and count money. The trial judge responded that, based on those facts, an impartial magistrate would have believed that a drug transaction had just occurred. Defense counsel pointed out that the prior transaction did not occur at the Beechwood residence. The trial judge replied that the officers had probably finally figured out where defendant lived, and they wanted to search that house for evidence associated with drug trafficking. The trial judge also said he absolutely believed that this affidavit stated probable cause for the issuance of the search warrant, that he would have signed it, and that it showed in the four corners probable cause for the search of that residence.

Defense counsel then argued that statements made by defendant during the execution of the search warrant should be suppressed. Detective Módica was called to testify. After hearing the detective’s testimony, the judge found that the | ssearch was constitutional and denied the motion to suppress the evidence. On appeal, defendant contends that the trial judge’s ruling was in error.

A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Lee, 05-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122, cert. denied, — U.S. —, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” Lee, 05-2098 at 14, 976 So.2d at 122. The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. Id. A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Casey, 99-0023, p. 4 (La.1/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The task for a reviewing court is simply to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Lee, 05-2098 at 14, 976 So.2d at 122, citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). An affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. Casey, 99-0023 at 4, 775 So.2d at 1028. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic Land common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. State v. Green, 02-1022, p. 8 (La.12/4/02), 831 So.2d 962, 969. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id.

According to LSA-C.Cr.P. art. 703 D, when evidence is seized pursuant to a search warrant, the defendant bears the burden of proof on his motion to suppress that evidence. The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of that discretion. State v. Temple, 01-655, pp. 10-11 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 705, writ denied, 02-0234 (La.1/31/03), 836 So.2d 58.

In the present case, under the totality of the circumstances, there was a substantial basis upon which to find probable cause to issue the search warrant. A Cl informed Detective Módica that cocaine was being distributed in the 1000 block of Eli Court in Gretna by narcotics trafficker # 1, the leader of a narcotics distribution organization, and that defendant, a relative of narcotics trafficker # 1, was a mid-level narcotics distributor in that organization. On April 5, 2006, the detective observed defendant engage in an apparent narcotics transaction in the 1000 block of Eli Court, an area known for narcotics distribution and violence associated with that activity. A criminal history check revealed that defendant had a previous conviction for possession of cocaine and an arrest for crack cocaine distribution.

Although defendant said he resided at 1047 Beeehwood while he was intoxicated, the officers found no such address; however, his rental vehicle was seen parked in the driveway at 1049 Beeehwood, and defendant was seen briefly emerging from that residence and then re-entering the structure. The investigators also confirmed that this address was affiliated with narcotics trafficker # 1. 110Additionally, defendant was previously stopped in connection with a traffic violation and arrested, during which items associated with narcotics trafficking were found in his vehicle. Also during that stop, defendant admitted he had sold narcotics in the past.

These facts and circumstances were sufficient to support the reasonable belief that relator either resided or spent a significant period of time at 1049 Beeehwood, that relator was distributing narcotics from that location, and that evidence of that offense or contraband might be found there. The Louisiana Supreme Court has recognized that the police and issuing magistrate can reasonably assume the fruits and instrumentalities of an offense are probably stored in a suspect’s home. State v. Profit, 00-1174, pp. 1-2 (La.1/29/01), 778 So.2d 1127, 1128.

In light of the foregoing, we find that the trial judge did not abuse his discretion by denying the motion to suppress evidence or the motion to reconsider suppressing the evidence.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The record reveals the following errors that require corrective action.

Defendant pled guilty to possession of a firearm by a convicted felon (Count 1) and possession of cocaine in excess of 400 grams (Count 2), in violation of LSA-R.S. 14:95.1 and R.S. 40:967 F, respectively. LSA-R.S. 14:95.1 B provides for a mandatory fine of not less than $1,000.00 nor more than $5,000.00. LSA-R.S. 40:967 F(l)(c) provides for a mandatory fíne of not less than $250,000.00, nor more than $600,000.00. The guilty plea form indicates that defendant was advised | nthat he would receive separate fines of $1,000.00 and $250,000.00. During the guilty plea colloquy, the trial judge advised defendant that he would be fined $250,000.00 on the “drug charge” and $1,000.00 on the “weapons charge.”

After the trial judge accepted defendant’s guilty plea, he correctly fined defendant $1,000.00 on the “firearms charge,” but he erroneously fined defendant $25,000.00 on the “drug charge.” The sentence is impermissibly indeterminate, because it is unclear whether there was a typographical error in the transcript, or whether the trial judge mistakenly fined defendant $25,000.00 instead of $250,000.00. Additionally, the commitment does not reflect that a fine was imposed on either count.

Therefore, we remand this matter to the trial court for correction of the commitment to conform with the transcript to reflect that a fine of $1,000.00 was imposed on Count 1. State v. Watson, 08-214, p. 13 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 787. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the corrected minute entry/commitment to the officer in charge of the institution to which the defendant has been committed. See State ex. rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846. Additionally, we vacate the sentence on Count 2 and remand this matter for the trial judge to clarify the sentence.

The minute entry and the commitment are inconsistent with the transcript in another respect. The bill of information reflects that defendant was charged with possession of cocaine in excess of 400 grams in violation of LSA-R.S. 40:967 F. The transcript indicates that defendant pled guilty to possession of cocaine in excess of 400 grams, which is a violation of LSA-R.S. 40:967 F(l)(c). However, the minute entries dated September 15 through 17, 2008 reflect that defendant was charged with “poss/witd cds over 28 grams” in violation of LSA-R.S. 40:967 F. 112The commitment dated September 17, 2008 also reflects that defendant pled guilty to “poss/witd cds over 28 grams.” Therefore, we order the trial court to correct the commitment and the minute entries to conform to the transcript to reflect that defendant was charged with and pled guilty to possession of cocaine in excess of 400 grams in violation of LSA-R.S. 40:967 F(l)(c).

DECREE

For the foregoing reasons, we affirm defendant’s conviction and his sentence on Count 1. We vacate defendant’s sentence on Count 2 and remand for the trial judge to clarify the sentence on this count during re-sentencing. Further, we remand this matter for correction of the commitment and minute entries to reflect that defendant was charged and pled guilty to possession of cocaine in excess of 400 grams, in violation of LSA-R.S. 40:967 F(l)(c).

CONVICTIONS AND SENTENCE ON COUNT I AFFIRMED; SENTENCE ON COUNT 2 VACATED; REMANDED WITH INSTRUCTIONS.

      . The bill of information was amended on August 7, 2007 to reflect the correct predicate offense as case number 436-025 instead of 436-573. The bill was amended on September 15, 2008 to reflect that defendant was also known by the name of "Kiri Major.” According to defense counsel at the motion to suppress hearing, defendant's true name is “Kirt Major.”

      . Although a trial was held in this matter, defendant requested that only the transcripts from the hearings on the motion to suppress evidence and sentencing be prepared and included in the record on appeal. The transcript of the motion to suppress hearing, exhibits, and other documents in the record were used to set forth the facts of this case.