author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Dondrick WILSON.
    No. 09-KA-170.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    James A. Williams, Roger W. Jordan, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2The Jefferson Parish District Attorney charged defendant, Dondrick Wilson, with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1, and defendant pled not guilty at arraignment. The trial court denied defendant’s motion to suppress the evidence after a hearing on March 18, 2008. On July 31, 2008, defendant was tried before a twelve-person jury, which found him guilty as charged. The trial judge imposed a sentence of fifteen years in the Department of Corrections without benefit of probation, parole, or suspension of sentence on August 7, 2008. Defendant now appeals.

FACTS

On the evening of October 4, 2007, at approximately 9:00 p.m., Jefferson Parish Sheriffs Officers Gene Dixon and John Taylor, who was an officer in training, were patrolling the 1600 block of Pailet Street, which is a high crime area in Harvey. Officer Dixon explained that he had first-hand knowledge there was a |slot of drug activity in the area and that the police received several calls a day regarding that block. The YTT bar was located in the area of 1632 Pailet Street. As Officer Dixon approached 1632 Pailet Street, he saw three black men standing by a car in the parking lot. Upon seeing the police, two of them immediately turned and walked toward the entrance of the bar. The third man, later identified as defendant, reached into his waistband, opened the car’s passenger door, and put a black object into the car. Defendant then followed the other two men into the bar.

Officer Dixon parked his car in the parking lot, and another unit occupied by two officers arrived on the scene. The two other officers, along with Officer Taylor, followed defendant and the two men into the bar. Meanwhile, Officer Dixon approached the car and observed a black gun on the seat. He opened the unlocked door, removed the gun, unloaded it, and placed the gun in the trunk of his police car. While securing the gun, Officer Dixon noticed that the serial numbers were obliterated.

Officer Dixon then entered the bar. He saw that the officers were conducting field interviews with defendant and the two other men. Officer Dixon placed defendant under arrest. A search incident to arrest revealed a set of keys, which Officer Dixon determined belonged to the car in which defendant had placed the gun.

At trial, the State introduced a copy of the predicate felony alleged in the bill of information as Exhibit 1, which was defendant’s guilty plea to possession of cocaine on February 14, 2005. The parties stipulated that a fingerprint expert would testify that defendant’s fingerprints matched those in State’s Exhibit 1.

| ¿ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the trial court’s denial of his motion to suppress evidence. He specifically contends the trial judge should have suppressed the gun because it was the product of an actual imminent stop made without reasonable suspicion. The State responds that the police had reasonable suspicion to stop defendant and probable cause to arrest him.

The State has the burden, in a hearing on a motion to suppress evidence, of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Simmons, 07-285 (La.App. 5 Cir. 9/25/07), 968 So.2d 755, 758.

For Fourth Amendment purposes, a seizure occurs either with the application of physical force to an individual or by the individual’s submission to the assertion of official authority. State v. Sylvester, 01-607 (La.9/20/02), 826 So.2d 1106, 1108. Under the Louisiana Constitution, a person is also “seized” when an actual stop is imminent. State v. Simmons, 968 So.2d at 758. An actual stop is imminent when the police come upon an individual with such force, that despite the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain to happen. State v. Sylvester, 826 So.2d at 1108. The relevant factors in determining whether an actual stop is imminent are the proximity of the police in relation to the defendant at the outset of the encounter, whether the person has been surrounded by the police, whether the police approached the individual with their weapons drawn, whether the police and/or the individual are on foot or in motorized vehicles during the encounter, the location and characteristics of the area where the encounter takes place, and the number of |BpoIice officers involved in the encounter. State v. Tucker, 626 So.2d 707, 712-13 (La.1993).

In the present case, the record reflects the seizure of the gun was not the result of an actual stop because Officer Dixon took the gun from the car before the investigatory stop took place. At the suppression hearing, Officer Dixon testified that he saw the gun through the car’s window as the other deputies followed defendant and his companions into the bar. He opened the car door and removed the gun. At trial, he explained that, when he walked into the bar, the other officers were conducting field interviews with the men. Therefore, the seizure of the gun was not the product of an actual stop.

Moreover, the seizure of the gun was not the product of an actual imminent stop. Officer Dixon testified at the suppression hearing that two of the men in the parking lot immediately walked away as soon as they saw the police approaching the parking lot. At trial, Officer Dixon explained that he was still driving on the street, more than twenty feet away, when he saw defendant put the object, which he later discovered was a gun, in the ear. The men began walking away while Officer Dixon was still in the street. He parked his vehicle about ten feet from the car where defendant had placed the object. Officer Dixon did not approach with his weapon drawn, tell defendant to stop, or activate the lights of his marked police unit. Further, the three officers who entered the bar behind defendant and his companions did not chase them into the bar. Based on the foregoing, an actual stop was not imminent because nothing in the record indicates that the police came upon defendant with such force that, regardless of his attempts to flee, an actual stop was virtually certain.

[ (¡Because the seizure of the gun was not the product of an actual or imminent stop, we find it unnecessary to reach the question of whether there was reasonable suspicion for an investigatory stop. Based on the foregoing discussion, we find no error in the trial court’s denial of defendant’s motion to suppress evidence. Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assigned error, defendant challenges the sentence imposed as constitutionally excessive. Defendant was convicted of possession of a firearm by a convicted felon and faced a sentencing range of ten to fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence and a fine between $1,000 and $5,000. LSA-R.S. 14:96.1®). Defendant received the maximum term of fifteen years imprisonment, but not a fine. Defendant now contends that his sentence is excessive because his only prior felony offense was the predicate felony of possession of cocaine. He also argues that the trial judge failed to articulate reasons for the sentence pursuant to LSA-C.Cr.P. art. 894.1. The State responds that defendant did not properly preserve this issue for review; and moreover, the sentence is not excessive.

In the present case, defendant did not file a motion to reconsider sentence nor did he challenge the sentence in the trial court on the basis that the judge failed to comply with LSA-C.Cr.P. art. 894.1. As such, defendant is limited to a review of his sentence for constitutional excessiveness only. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 581.

The Eighth Amendment to the United States Constitution and Article I, Sec. 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless 17pain and suffering. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Warmack, 973 So.2d at 109.

Based on our review of the record, we do not find that the trial court abused its wide discretion in imposing the fifteen-year sentence on defendant. As noted by the trial judge, defendant displayed an obvious disrespect for the judicial process. The record contains at least two instances where defendant was found in contempt of court during the course of these proceedings. In December of 2007, defendant tested positive for marijuana and was found in contempt of court for appearing under the influence. Also, on March 18, 2008, trial was set; however, defendant left after the court conducted a suppression hearing, thereby necessitating a continuance. As a result of defendant’s leaving, an attachment was issued; and he was subsequently found to be in contempt of court. We further note that defendant committed the instant offense several months after his probationary period had expired for the predicate felony conviction of possession of cocaine. Lastly, we note the seriousness of defendant’s actions in leaving a loaded weapon on the seat of an unlocked car.

|sGiven these circumstances, we find that the sentence imposed is not constitutionally excessive and further that the trial judge did not abuse his discretion in sentencing defendant to the maximum term of imprisonment. Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues the trial judge erred in denying his Batson challenges because the State exercised its peremptory challenges in a discriminatory manner to exclude three black prospective jurors, Kenneth Jones, Sean Smith, and Cheyenne Weber. The State responds that it offered race-neutral reasons for its peremptory challenges, which are supported by the record, and that the trial judge did not abuse his discretion in denying the Batson challenges.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court delineated a three-step analysis for evaluating a defendant’s claim that a prosecutor used a peremptory strike in a racially discriminatory manner. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. If that showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. The race-neutral explanation need not be persuasive or even plausible. It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. Third, the court must determine whether the defendant has established purposeful discrimination. It is at the third step that implausible explanations offered by the prosecution “may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 884 (1995); State v. Anderson, 06-2987 (La.9/9/08), 996 So.2d 973, 1004-1005, cert. denied, — U.S.-, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009).

[flThe Supreme Court subsequently affirmed and applied the three-part test in Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324, 162 L.Ed.2d 196 (2005), and in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). The Snyder court stressed that all of the circumstances bearing on the issue of racial animosity must be consulted in reviewing a Batson objection.

In the present case, the record reflects that three panels of prospective jurors were examined during voir dire. The record does not reflect the race for all the prospective jurors, but the State noted for the record that the first panel was comprised of fourteen people, seven of whom were black. The State used five peremptory challenges in the first panel, four of which were used to excuse black jurors, including Mr. Smith and Mr. Jones. The State’s sixth and final peremptory challenge was used to excuse Ms. Weber, who was in the second panel of fourteen people. The third panel was comprised of eight people, and the trial court noted for the record that one of the prospective jurors, Ms. Small, was black. The record reflects that at least three black persons were seated on the jury. On appeal, defendant challenges the trial court’s rulings as to Kenneth Jones, Sean Smith, and Cheyenne Weber.

With regard to Mr. Jones, the prosecutor moved to excuse him for cause on the basis that he could not be a fair juror. In support of this challenge, the prosecutor noted that when he had asked the group as a whole whether they could sit in judgment of another, there was no response from Mr. Jones until the prosecutor singled him out. The prosecutor said that he “saw some movement that indicated to me that he was holding back.” The prosecutor further explained that Mr. Jones answered that he did not believe it was “right for somebody who’s been a victim to sit on the jury.” Following defendant’s objection, the trial court denied | inthe prosecutor’s challenge, finding that Mr. Jones’ responses did not “rise to the level of striking him for cause.”

After the submission of cause challenges, the parties began exercising peremptory challenges. The State’s first peremptory challenge was on Mr. Jones. The State then accepted Robert Smith, a black potential juror, who was peremptorily challenged by defendant. The State’s second peremptory challenge was on Ms. Rousell, a black potential juror, and the third peremptory strike was on Sean Smith. At that point, defendant raised a Batson objection.

The court initially told the prosecutor to provide race-neutral reasons, since the State had exercised three peremptory challenges on black prospective jurors. The prosecutor objected on the basis that there was no pattern, considering that there were seven black prospective jurors in the panel, four of whom had already been examined. The prosecutor pointed out he had exercised a challenge for cause on Mr. Jones, but had accepted Robert Smith, whom defendant struck. The court agreed there was no pattern, considering that six prospective jurors had been questioned, four of whom were black. The judge also stated the State’s strike against Mr. Jones was expected, just as the defendant’s strike to Robert Smith had been expected. The judge found that “it doesn’t show a pattern, it just shows that there is, you know, more African Americans on this top panel.”

The State exercised a peremptory challenge on the next prospective juror, Mr. Stevenson, who was black, which drew another Batson objection. The trial judge then told the State to give race-neutral reasons for each of the four peremptory challenges to black prospective jurors in “an abundance of caution.” Regarding Mr. Jones, the prosecutor referenced the reasons he had indicated earlier in the cause challenge, which the record reflects were based on the prosecutor’s belief that Mr. Jones could not be a fair juror. The prosecutor explained he struck |nMr. Smith because he was a young student. The prosecutor believed students tend to have liberal attributes and said that he did not want liberal attitudes in this court. Defendant objected on the basis that the Supreme Court in Snyder had said that being a student was not a race-neutral reason. The prosecutor responded that his perception of students having liberal attitudes was a race-neutral reason. After the state gave reasons for its four peremptory challenges on black jurors, the trial judge stated “Okay. Alright. I think that’s race neutral reasons, and not a Batson Challenge [sic].”

Voir dire questioning was then conducted on the second panel of jurors. When the State peremptorily challenged Ms. Weber, defendant made a Batson objection. The prosecutor said that he did not believe any pattern had been established, since he had explained his race-neutral reasons. The trial judge responded that two black jurors had been accepted and he agreed there was no pattern. Defendant objected, stating that the judge had already found a pattern and that Ms. Weber had provided no reasons different from any other juror. The trial judge responded, “Well, I guess, go ahead in an abundance of caution, put your reason on the record.”

The prosecutor provided his reasons for excusing Ms. Weber and the court supplied its own observations as follows:

MR. AMSTUTZ (prosecutor):
My racial neutral reason is one, she, I think said, she was a teacher, which is a liberal education; and number two, she had a relative arrested for domestic violence. Arrest is one thing, domestic violence is something else. I didn’t go into the details of it, but she’s the one said it. Those are my race neutral reasons.
THE COURT:
|12Alright. I don’t — I mean, this lady, I mean when I was questioning before y’all ever even got to them, I was thinking to myself that she had some type of problem, because she’s looking very disinterested. I mean, she doesn’t want to be here. Her eyes are half closed. I was trying to figure out on my own whether she had an attitude; whether it was me; she had — with this Court or something. But she’s got a serious attitude, and I mean I almost told her something. So, I just want to put that on the record so the Court of Appeal gets a full taste of this lady. Alright. That’s State 6.

Defendant now argues that the trial court erred in denying his Batson challenges as to Mr. Jones, Mr. Smith, and Ms. Weber. In applying the Batson analysis to the instant case, the first inquiry is whether defendant made a prima facie showing that the prosecutor used his peremptory challenges to exclude potential jurors on the basis of race. The trial court did not specifically state on the record whether defendant met this initial burden; however, the judge asked the state, out of an abundance of caution, to give reasons for the peremptory challenges. A trial judge’s demand that a prosecutor justify his peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory intent. State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 288.

We now turn to the second step of the Batson analysis which focuses on whether the prosecutor offered race-neutral explanations for his peremptory challenges. With regard to Mr. Jones, the prosecutor voiced his concern that Mr. Jones could not be fair. The State based this concern on Mr. Jones’ expressed belief that it would not be fair to have victims of crime sit on the jury. With regard to Mr. Smith, the prosecutor stated that he was a young student; and students generally tend to have liberal attitudes, which he did not want in this case. Lastly, with regard to Ms. Weber, the prosecutor challenged her because she was a |is“teacher which is a liberal education,” and also because she had a family member arrested for a domestic dispute. The trial judge determined that these reasons were facially race-neutral. We find no reason to disturb that determination by the trial judge. Accordingly, it is now necessary to proceed to step three of the Batson analysis, which focuses on whether the defendant has proven purposeful discrimination.

A defendant has the burden to establish discrimination in jury selection. In determining whether a defendant has met his burden of showing purposeful racial discrimination in the State’s exercise of peremptory challenges, the proper question is whether the proof offered by the defendant, when weighed against the State’s proffered race-neutral reasons, is strong enough to convince the trier of fact that the claimed discriminatory intent is present. State v. Bourgeois, 08-457 (La. App. 5 Cir. 12/16/08), 1 So.3d 733, 738. A trial judge’s findings on a claim of purposeful discrimination are entitled to great deference by the reviewing court because they depend largely on credibility evaluations. Credibility can be measured by factors including the prosecutor’s demeanor, how reasonable or how improbable the explanations are, and whether the proffered reason has some basis in accepted trial strategy. State v. Anderson, 996 So.2d at 1004. The trial judge has the advantage of observing the characteristics and demean- or of the attorneys and prospective jurors. Therefore, the court occupies the best position for deciding whether a discriminatory objective underlies the peremptory challenges. State v. Gant, 06-232 (La. App. 5 Cir. 9/26/06), 942 So.2d 1099, 1118, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

Based on our review of the entire voir dire transcript, we find that |udefendant failed to meet his burden of proving purposeful discrimination; and therefore, the trial judge did not err in denying defendant’s Batson challenges.

With regard to Mr. Jones, the record does not reflect that the prosecutor’s reasons for excusing Mr. Jones were a pretext for race. The prosecutor believed Jones could not be a fair juror based on Jones’ responses to a question about his ability to sit in judgment of others. The record contains several instances indicating the prosecutor was concerned about all the prospective jurors’ feelings about sitting in judgment of another. In fact, the prosecutor asked the same question to each panel of jurors, each of which included at least one black prospective juror.

The record further does not support defendant’s contention that the prosecutor’s reasons for excusing Mr. Smith, a young student, were a pretext for race. The record reflects similar treatment by the prosecutor to Ms. Butler, an apparently non-black prospective juror who was a business student. The prosecutor peremptorily challenged Ms. Butler, stating for the record that she appeared to be a “young” student and that she was also a white female. The prosecutor expressly stated that he used the same criteria for excusing her as when excusing Mr. Smith.

With regard to Ms. Weber, the prosecutor challenged her because she was an elementary teacher and because she had a family member arrested for a domestic dispute. We recognize that Ms. Weber was the only prospective juror challenged on the basis of a relative’s criminal history, when there were several prospective jurors who had been arrested or who had relatives with arrests or convictions. The record does reflect, however, that Ms. Weber was uniquely situated in that she was the only prospective juror whose relative had been arrested for a domestic dispute, which the prosecutor characterized as domestic violence when challenging her. 11fiWhile we acknowledge that prosecutorial intent at the time of the challenge is the focus, we note the trial judge’s comments regarding this prospective juror. After saying “alright” to the prosecutor’s reasons for challenging Ms. Weber, the court specifically stated for the benefit of the appellate court that this lady “had some type of problem, because she was looking very disinterested. I mean, she doesn’t want to be here. Her eyes are half closed. I was trying to figure out on my own whether she had an attitude; whether it was me; she had — with this Court or something. But she’s got a serious attitude, and I mean I almost told her something.”

In the present ease, it is clear that the trial judge paid close attention to the responses of each potential juror during voir dire and carefully considered the responses of the State to defendant’s Batson challenges. In view of the vast amount of discretion accorded to the findings of the trial court in assessing intent and judging credibility, we cannot say the trial court erred in choosing to believe the race-neutral explanations offered by the State. Accordingly, we find that defendant has failed to carry his burden of proving purposeful discrimination with regard to the three prospective jurors at issue herein. The arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the trial judge erred by denying his challenge for cause to prospective juror Robert Smith because Mr. Smith indicated he believed defendant would have to prove his innocence. The State responds the trial judge properly denied the cause challenge, since Mr. Smith’s responses demonstrated that he would be a fair and impartial juror.

Prejudice is presumed when the trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. Thus, to prove |1fithere has been reversible error warranting reversal of the conviction and sentence, defendant must demonstrate 1) the erroneous denial of his challenge for cause, and 2) the use of all his peremptory challenges. State v. Anderson, 996 So.2d at 996; State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1113-1114, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

LSA-C.Cr.P. art. 797, subsections (2) and (4) provide that a defendant may challenge a juror for cause on the following pertinent grounds:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(4) The juror will not accept the law as given to him by the court[.]

A challenge for cause should be granted, even when a prospective juror declares the ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render a judgment according to law may be reasonably implied. However, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and the trial court’s refusal to excuse the juror on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Lindsey, 06-255 (La.1/17/07), 948 So.2d 105, 108. A trial judge is afforded broad discretion in ruling on challenges for cause, and those rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Strickland, 04-843 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 895, writ denied, 05-820 (La.6/17/05), 904 So.2d 683.

In the present case, the record shows that defendant timely objected to the trial court’s ruling denying his challenge for cause, and that he exhausted all of his 117peremptory challenges. However, defendant has not shown that the trial court abused its discretion in denying the challenge for cause as to Robert Smith.

During voir dire questioning in the instant case, Mr. Smith advised the court that he was an LSU police officer and knew a lot of people in law enforcement. When the judge asked whether he would be fair and impartial to both the State and defense, considering his law enforcement background, Mr. Smith answered that he would “just try to — just be fair.” During subsequent voir dire questioning, defense counsel asked Mr. Smith the following question:

MR. WILLIAMS (defense counsel):
Okay. So you think — and you’re a police officer, and without getting into any personal experience, you feel that knowing what you know and the way that you feel about things, that as he sits here, we’re going to have to show you that he didn’t do it?
MR. SMITH:
Yes.
MR. WILLIAMS:
Okay.
MR. SMITH:
So, it’s proven to me.

Defense counsel did not make any further inquiry into Mr. Smith’s responses and went on to question other prospective jurors. Defendant later challenged Mr. Smith for cause on the basis of the juror’s statement that defense counsel would have to prove defendant was innocent. The prosecutor objected to the challenge for cause noting that Mr. Smith’s answer was the result of the way defense counsel presented the question to Mr. Smith and further that Mr. Smith’s answers as a whole indicated he could be fair to both sides. The trial judge then addressed Robert Smith as follows:

| irTHE COURT:
... Mr. Smith, let me just run by you something real quick. I know we had talked earlier about, you know, the burden of proof and all, and I just want to make sure that we’re on the same page. Do you believe that the defendant would have to prove his innocence, or that the state would have to prove beyond a reasonable doubt that he’s guilty.
MR. SMITH:
They have to prove beyond a reasonable doubt.
THE COURT:
Okay. In other words, he’s not — I know you’re in law enforcement. You probably know more about the process than most people in here, but will he get the benefit of his presumption of innocence, and you will require the state to prove its case to your satisfaction beyond a reasonable doubt?
MR. SMITH:
Yes.

We find that prospective juror Robert Smith’s responses, considered in their entirety, show that he understood and accepted that the State had the burden of proving defendant’s guilt. He answered affirmatively when the trial judge asked him whether he could return a verdict of not guilty. Further, he did not indicate that he could not apply the law as instructed when all the prospective jurors were questioned by the trial judge and the prosecutor. Instead, Mr. Smith answered affirmatively to an ambiguous question propounded by defense counsel, who apparently did not engage in any further dialog with Mr. Smith to clear up the response. Additionally, the trial judge made a determination that Mr. Smith could be fair and impartial after personally questioning him.

Based on the foregoing, we find that the trial judge did not abuse his broad discretion in denying defendant’s challenge for cause. Thus, the arguments raised by defendant in this assignment are without merit.

| ¡(ASSIGNMENT OF ERROR NUMBER FIVE

In his final assigned error, defendant argues that the trial court erred by failing to declare a mistrial for comments made by the prosecution during closing arguments and by failing to admonish the jury to disregard the improper comments. Specifically, defendant contends a mistrial was warranted under LSA-C.Cr.P. art. 775 because the prosecutor commented on facts outside the evidence by remarking in the State’s rebuttal that Officer Taylor’s testimony was consistent with what he had told the prosecutor in an interview. The State contends the trial judge did not err in denying the mistrial motion because defendant was not prejudiced by the prosecutor’s comments.

In the present case, the prosecutor began his closing argument by explaining that he called Officer Dixon as a witness because he was the case officer, but did not call Officer Taylor as a witness because he “didn’t do anything.” Defense counsel countered in closing argument that the State did not call Officer Taylor because that officer did not see what Officer Dixon had seen. The defense went on to argue that he found it incredulous that Officer Taylor did not see the car or the defendant toss an object into it. According to defense counsel, Officer Taylor’s failure to corroborate what Officer Dixon saw while Officer Taylor was next to Officer Dixon, created doubt about what really happened that evening.

In rebuttal, the prosecutor reiterated that he called Officer Dixon because he was the investigating officer. The prosecutor said that Officer Dixon was outside while Officer Taylor was inside. He repeated that Officer Taylor did not write a report. The prosecutor then said, “I interviewed Mr. Taylor, and he told me the same thing he said today.” Defendant objected to the comment on the basis that the prosecutor’s comments were not within the scope of the evidence. The judge responded, “This is argument of counsel. It’s not evidence.”

12pDefendant then moved for a mistrial, which the trial judge denied. The judge explained that he told the jury that the comment was not evidence, that it was argument of counsel, and that the prosecutor refrained from further comment about the matter.

According to LSA-C.Cr.P. art 775, upon the defendant’s motion, a mistrial shall be ordered, and in a jury trial, the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771. A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285.

LSA-C.Cr.P. art. 774 provides that the scope of closing argument shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state and defendant may draw therefrom, and to the law applicable to the case. This article further states that the argument shall not appeal to prejudice, and the State’s rebuttal argument shall be confined to answering the argument of the defendant.

A prosecutor has considerable latitude in making closing arguments. A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Lai, 04-1053 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 559, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175. The laiLouisiana Supreme Court has recognized that “much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996).

With regard to defendant’s argument that the trial judge failed to admonish the jury, we note that immediately after defendant’s objection, the trial court stated, “[t]his is argument of counsel. It’s not evidence.” Defendant did not request any further admonishment from the trial court. We further note that in the final instructions, the judge informed the jury that the opening statements and the closing arguments of the attorneys were not to be considered as evidence.

Further, defendant failed to show how he was prejudiced by the prosecutor’s rebuttal argument. In fact, defendant acknowledges in his brief that the prosecutor’s comments suggested to the jury that Officer Taylor, a defense witness, should be believed because he testified consistently with what he told the prosecutor before trial.

Based on the foregoing discussion, we find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial based on improper closing arguments. Accordingly, this assigned error is without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record 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).

Our review reveals that there are discrepancies between the July 31, 2008 minute entry and the corresponding transcript. The minute entry indicates Mr. Messina was accepted as a juror, but the transcript reflects Mr. Messina was [ 22challenged peremptorily by defendant and did not serve on the jury. Additionally, the minute entry indicates Mr. Brown was excused by the court for cause, while the transcript reflects defendant exercised a peremptory challenge to Mr. Brown. The minute entry also does not reflect the jury was sworn, whereas the transcript does so reflect. The transcript prevails when there is a discrepancy between the minutes and the transcript. State v. Lynch, 441 So.2d 732 (La.1983).

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence; however, we remand the matter to the trial court with a directive to amend the minute entry to conform to the transcript.

CONVICTION AND SENTENCE AFFIRMED; REMANDED TO CORRECT MINUTE ENTRY.

      . In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing, but may also consider the evidence presented at trial. State v. Huntley, 08-125 (La. App. 5 Cir. 5/27/08), 986 So.2d 792, 796.

      . Defendant mischaraclerized the Snyder decision. The Snyder Court did not hold that being a young student could not be a racially-neutral reason. Rather, the Snyder Court found that the prosecutor’s reasons for excusing Mr. Brooks, who was a student, were not supported by the record.

      . In State v. Perrilloux, 03-917 (La.App. 5 Cir. 12/30/03), 864 So.2d 843, 850, writ denied, 04-418 (La.6/25/04), 876 So.2d 830, this court stated, "A juror's age has been found to be an acceptable race-neutral reason the State to exercise a peremptory challenge.”

      . Being a teacher has been held to be a racially-neutral reason to meet the State’s burden at Batson's second step. State v. Toussaint, 98-1214 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 965, writ denied, 99-1789 (11/24/99), 750 So.2d 980. Further, a juror who has a family member with a criminal record is a race-neutral explanation. State v. Baker, 34,973 (La.App. 2 Cir. 9/26/01), 796 So.2d 145, 154.

      . LSA-C.Cr.P. arts. 770 and 771 are not at issue in this assignment.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Adouphus DUNCAN.
    No. 09-KA-232.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Churita Hansell, Assistant District Attorneys, Gretna, LA, for Plaintifl/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| gDefendant, Adouphus Duncan, was charged by bill of information with two counts of armed robbery with a firearm, violations of LSA-R.S. 14:64 and LSA-R.S. 14:64.3. At his arraignment, defendant pled not guilty. The defendant filed an omnibus motion that included a motion to suppress the identification which was denied. After a one-day trial, the 12-mem-ber jury found the defendant guilty as charged on both counts. Defendant filed a motion for new trial which was denied. On the same day, after sentencing delays were waived, the trial court sentenced the defendant to 40 years at hard labor on each count to be concurrently served without benefit of parole, probation, or suspension of sentence. The defendant filed a written motion to reconsider sentence, which the trial court also denied. The defendant now brings this timely appeal.

UFACTS

Ahmad Collins testified that on May 1, 2007 at approximately 4:00 p.m., he and his pregnant wife, Laminda Jefferson, were robbed at the McDonald’s in Gretna located on the West Bank Expressway. Collins testified that he was returning to the parking lot when he heard the defendant approach him from behind. The defendant said, “Give it up.” Jefferson testified that she observed the defendant approach Collins while she was seated in the front passenger seat of her vehicle and looking backwards. Both Collins and Jefferson testified that they saw that the defendant had a black semi-automatic firearm in his hand. According to Collins, the defendant demanded the keys to the vehicle, a red 2006 Dodge Charger. However, the keys were in the vehicle’s ignition. Jefferson testified that Collins told her to get out because they were letting the defendant take the vehicle. According to Jefferson, she felt threatened and intimidated by the defendant.

Collins testified that, after he got his wife out of the vehicle, the defendant told him to empty his pockets and he complied. Collins testified that he had a cell phone and a wallet containing approximately $100 in his pockets. Then, according to both Collins and Jefferson, the defendant told them the direction in which to walk away, and then the defendant left in the vehicle. Collins testified that, even though the defendant did not point the gun at him or Jefferson, he was intimidated and feared for his life and that of his family during the armed robbery. According to Jefferson, she and Collins then went into the McDonald’s, called the police, and gave the police a description of the defendant.

Collins and Jefferson described the defendant as a young black male with a medium complexion wearing all black apparel including a baseball cap, a shirt, a bandanna, shoes, and pants. Jefferson testified that the defendant had a slim build. Both Collins and Jefferson testified that there was nothing obstructing their view of |4the defendant’s face. They both testified that the bandanna was around the defendant’s neck, not covering his face. Jefferson testified that the defendant had a mustache and a beard.

Collins testified that he and Jefferson saw the vehicle leave the parking lot. Later, they saw their vehicle pass back on Newton and travel westbound up the expressway. Both Collins and Jefferson testified that they saw two individuals in their vehicle. According to Jefferson, the defendant was one of the individuals in the vehicle. According to Collins, the vehicle was still being chased by the police when an officer arrived at the scene. Approximately two minutes later, they were informed that the car had crashed.

Officer Corey Newby with the City of Gretna testified that he responded to the McDonald’s call. On his way to the scene to meet the victims, Officer Newby testified that a description of the vehicle and the perpetrator were broadcast. Based upon his memory, Officer Newby testified that the vehicle was described as a red Dodge Charger and the perpetrator was described as a black male who robbed the victims at gunpoint. Later while still traveling to the scene of the robbery, Officer Newby was informed that Officer Gegen-heimer had attempted to stop a vehicle that fit the description. According to Officer Newby, the vehicle was being followed because the driver of the vehicle refused to stop and fled at a high rate of speed on the elevated expressway into Marrero.

Upon arriving at the scene of the robbery, Officer Newby testified that he interviewed both victims. Officer Newby testified that Collins informed him that he went into the McDonald’s while his wife remained in the vehicle. Collins informed him that while he was returning to the vehicle, he was approached from the rear by a person he described as a black male of average build with a gun. That person was wearing all black clothing including pants, as well as a baseball cap and sunglasses. According to Officer Newby, Jefferson also provided him with a ^description of the defendant. Officer Newby testified that he called in the description of the perpetrator after he received it. Officer Newby also testified that both victims told him that the Dodge Charger registered to Jefferson was taken.

After calling in the description of the defendant he received from the victims, Officer Newby testified that he learned that the stolen vehicle came to a stop in Marrero after the driver crashed it into some poles. Two people exited but only one of them subsequently was apprehended. Officer Newby testified that he transferred Collins and Jefferson to the scene of the crash for identification purposes. Officer Newby testified that both victims were positive that the apprehended person was not the same one that robbed them. At trial, Collins and Jefferson both testified that the apprehended suspect was not the person who stole the vehicle. Both Collins and Jefferson identified their damaged vehicle at the scene.

Officer Newby testified that the only identifiable fingerprints recovered from the Charger belonged to Collins. In addition, according to Officer Newby, the surveillance recording from the McDonald’s showed a black male wearing all black and a baseball cap, and the vehicle being driven away. According to Officer Newby, the recording did not show a crime and, therefore, he opined that it was of no evidentia-ry value.

Officer Newby testified that the defendant was developed as a suspect on the same day. He compiled a photographic lineup that included the defendant’s photograph. Later, on the same night, Officer Newby met with Collins and Jefferson to show them the photographic lineup. According to Officer Newby, both Jefferson and Collins individually identified the defendant on separate copies of the same photographic lineup, which they signed. Both Collins and Jefferson told him that they were sure that the person they identified in the photographic lineups, i.e., the defendant, was the person who stole the vehicle. According to [^Officer Newby, the defendant was subsequently taken into custody in August, several months after the incident.

Both Collins and Jefferson testified that they were positive of their identifications of the defendant in the photographic lineup and at trial as the person who robbed them. Collins testified that he had initially focused on the defendant’s face prior to seeing the gun. According to Collins, he only took his eyes off the defendant temporarily when he told Jefferson to get out of the vehicle. Jefferson testified that her eyes were on the defendant during the entire robbery.

DISCUSSION

The defendant first claims that the evidence presented at trial was insufficient to convict him of the charged offenses. He argues that the jury could not have found that the State proved all the elements of the offense beyond a reasonable doubt and, therefore, the trial court erred in denying his motion for a new trial. Specifically, the defendant claims that the State failed to prove the element of identity through the testimony of its witnesses. The defendant asserts that there were many inconsistencies in the testimony of the witnesses, such as the failure of the eyewitnesses to mention the defendant’s mustache. In addition, the defendant claims that there was also no corroborating evidence. Therefore, the defendant asserts that the trial judge erred in denying his motion for new trial and his conviction should be reversed.

The State claims that the jury could have found that the defendant was the person who committed the crime based on both victims’ positive identifications of the defendant in both the photographic lineup and in court. The State notes that both victims got a good unobstructed view of the defendant.

The motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. LSA-C.Cr.P. art. | t851. An appellate court may review the grant or denial of the motion only for an error of law. LSA-C.Cr.P. art. 858. The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle, 06-898, p. 6 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 829, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154. The Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence when a trial court has denied the defendant’s motion for new trial based on the verdict being contrary to the law and the evidence. State v. Delagardelle, 06-898 at 7, 957 So.2d at 829-830.

The standard for review of the sufficiency of the evidence, on appeal, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The evidence, either direct or circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Delagardelle, 06-898 at 7, 957 So.2d at 830. A trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Delagardelle, 06-898 at 8, 957 So.2d at 830. An appellate court is not required by constitutional law to determine whether it believes the witnesses or that the evidence establishes guilt beyond a reasonable doubt. Id. An appellate court does not second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. Rather, the appellate court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

In order to prove the charged offense of armed robbery with a firearm, the State must prove beyond a reasonable doubt the defendant took “anything of value | ^belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon,” and that “the dangerous weapon used in the commission of the crime of armed robbery is a firearm.” LSA-R.S. 14:64 and LSA-R.S. 14:64.3.

The necessity of the State to prove the identity of the defendant as the perpetrator is encompassed in proving the statutory elements of the offense. State v. Fuller, 07-319, p. 5, (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 49, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282. When the key issue is identity at trial, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

In the present case on appeal, the defendant does not argue that the State failed to prove the statutory elements of the offense. Rather, the defendant claims that the State failed to prove his identity as the perpetrator.

In State v. Williams, 04-697 (La.App. 5 Cir. 11/30/04), 889 So.2d 1135, writ denied, 05-395 (La.5/13/05), 902 So.2d 1017, the defendant claimed the evidence was insufficient to support his conviction of armed robbery because the State failed to prove identity. State v. Williams, 04-697 at 5, 889 So.2d at 1139. Three eyewitness bank employees testified that they got a good look at the defendant during the robbery. Those three eyewitnesses positively identified the defendant both in a photographic lineup and at trial, in which there were no major discrepancies in their testimonies. State v. Williams, 04-697 at 6-7, 889 So.2d at 1140. In addition, this Court noted that the failure of the cameras to capture the image of the robber did not, as suggested by the defendant, take away from the strength of the eyewitnesses’ identifications. State v. Williams, 04-697 at 7, 889 So.2d at 1140. This Court also found that the fact the police found no fingerprints belonging to the defendant was a factual matter to be considered by the jury. State v. Williams, 04-697 at 8, 889 So.2d at 1141.

lain the present case, both Jefferson and Collins gave similar descriptions of the defendant’s appearance on the date of the incident. In addition, contrary to the defendant’s assertion, Jefferson mentioned that the defendant had a mustache. Officer Newby testified that both Jefferson and Collins positively identified the defendant in the photographic lineup on the date of the incident.

Both Jefferson and Collins testified that they got a good look at the defendant. In fact, both Jefferson and Collins testified that they watched the defendant throughout the encounter. Both Jefferson and Collins testified that they were 100% positive of their identifications both in the photographic lineup and at trial. The positive identification of only one witness is sufficient to support a conviction. State v. Fuller, 07-319 at 6, 980 So.2d at 49.

Collins testified that he focused on the defendant’s face prior to seeing the gun and that during the encounter he only took his eyes off the defendant temporarily when he told Jefferson to get out of the vehicle. Collins testified that he was 100% positive of his identifications of the defendant as the person who robbed him. Jefferson was also 100% positive that the defendant was the man who robbed her at gunpoint.

We find that based upon the eyewitness testimony of the victims provided by the State, the jury could have found beyond a reasonable doubt that the defendant was the perpetrator of the armed robberies and, therefore, committed the charged offenses.

The defendant next claims that that the sentence of 40 years imposed by the trial court is excessive, cruel and unusual punishment because he is a young man, the victims were not threatened or hurt, and the car was recovered. The defendant asserts that the incident, which occurred over approximately 10 minutes, “was not particularly heinous.” Rather, the defendant contends that the offenses for which he was convicted were “minimally heinous crime[s].” In fact, the defendant I ^suggests that the gun was not threatening to the victims because he did not point it directly at them.

The State claims the defendant’s sentence imposed by the trial court is not excessive because the victims changed their lifestyles after the incident and because the trial judge noted the victims’ altered lifestyles as the reason for the sentence imposed. The State notes that the defendant’s sentence is less than half the term of imprisonment that he could have received.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. State v. Hartwell, 03-1214, p. 11 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, 906, writ denied, 04-0448 (La.6/25/04), 876 So.2d 832. Generally, a sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. “A sentence is grossly disproportionate if, it shocks the sense of justice when the crime and punishment are considered in light of the harm done to society.” Id. A trial judge is afforded wide discretion in determining the defendant’s sentence. Id. The defendant’s sentence imposed within statutory limits will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion. Id. The appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id; LSA-C.Cr.P. art. 881.4(D).

The term of imprisonment for the commission of an armed robbery is hard labor for not less than ten years and not more than 99 years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B); State v. Hartwell, 03-1214 at 11, 866 So.2d at 906; State v. Price, 04-812, p. 8 (La.App. 5 Cir. 8/1/05), 909 So.2d 612, 617. In the present case, in the bill of information, the State also invoked the firearms sentencing provision of LSA-R.S. 14:64.8. That statute provides for an additional five years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively |uto the imposed sentence for the commission of the armed robbery when an offender commits the armed robbery with a firearm. LSA-R.S. 14:64.3(B). See also, State v. Hartwell, 03-1214 at 11, 866 So.2d at 906 and State v. Price, 04-812 at 8, 909 So.2d at 617.

In State v. Hartwell, the defendant was found guilty of two counts of armed robbery. The defendant was sentenced to 35 years on each count of armed robbery with an additional five years on each count to be consecutively served to the armed robbery sentence for commission of the armed robbery with a firearm. State v. Hartwell, 03-1214 at 2, 866 So.2d at 901. On appeal, the defendant claimed that his sentences were constitutionally excessive because he was a first offender and the victims were not hurt. State v. Hartwell, 03-1214 at 11, 866 So.2d at 906. This Court noted that the trial judge considered the defendant’s age of 25 years. This Court also noted that the trial judge found that the defendant actions were horrible and that one of the victim’s testified that she was afraid she would die during the robbery. State v. Hartwell, 03-1214 at 11-12, 866 So.2d at 906-907. In addition, this Court noted that similar sentences for armed robbery had been upheld citing State v. Augustine, 555 So.2d 1331, 1332 (La.1990), in which the Louisiana Supreme Court found that a 40-year prison term for an 18-year-old first offender convicted of armed robbery was not constitutionally excessive. State v. Hartwell, 03-1214 at 12, 866 So.2d at 907. This Court further noted that in State v. Smith, 01-2574, (La.1/14/03), 839 So.2d 1, the Louisiana Supreme Court stated that sentences of 35 to 50 years were found to be acceptable for first offenders convicted of armed robbery. State v. Smith, 01-2574 at 7, 829 So.2d at 4. In State v. Price, supra, This Court found that the defendant’s sentence was not excessive because of the circumstances surrounding the armed robbery, a serious offense against the person, and because the defendant’s sentence was within the range 11 .¿approved by the Louisiana Supreme Court for first armed robbery offenders. See also, State v. Price, 04-812 at 9, 909 So.2d at 617.

In the present case, the trial judge noted at sentencing that the victims were afraid during the defendant’s perpetration of the crimes. The trial judge also noted that Jefferson was pregnant at the time of the armed robbery. The trial judge found that the encounter had seriously changed the lives of the victims. Subsequently, at the hearing on the motion for reconsideration of sentence, the trial judge stated that he was familiar with the facts of the case, and that the defendant had received a mid-range sentence within the sentencing guidelines for an armed robbery.

As found by the trial court, both victims while not physically hurt, were afraid for their lives and continue to be affected by the encounter. Collins testified that while the defendant did not point the gun at him or Jefferson, he was intimidated and feared for his life, and that of his family. According to Jefferson, she felt threatened and intimidated by the defendant. In addition, while the defendant notes that the vehicle was recovered, Jefferson testified that it was wrecked. Finally, while the defendant claims that his medium range sentence of 40 years imposed by the trial court is excessive, cruel and unusual punishment because he is a young man, as in State v. Hartwell, the Louisiana Supreme Court stated that sentences of 35 to 50 years were found to be acceptable for first offenders convicted of armed robbery. We find that, as in State v. Hartwell, the defendant’s sentence was not excessive because it was within the range approved by the Louisiana Supreme Court for first armed robbery offenders and because of the circumstances surrounding the armed robbery.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with 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) regardless of whether defendant makes such a request. The following matters were discovered:

First, the State claims the defendant received an illegally lenient sentence because the trial court did not impose an additional five years to be served consecutively with his 40-year sentence. This Court has previously found that a situation such as this one in which the trial court did not impose an additional penalty enhancement for the use of a firearm creates an indeterminate sentence that constitutes an error patent. State v. Johnson, 08-1156, p. 16 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094.

LSA-R.S. 14:64.3 provides for imprisonment for an additional consecutive five years for an offender convicted of the crime of armed robbery when the dangerous weapon used is a firearm. State v. King, 06-1903, p. 6 (La.10/16/07), 969 So.2d 1228, 1231.

In State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, this Court in its error patent review found that the defendant’s sentences related to his conviction, for armed robbery with a firearm were indeterminate because the trial judge did not impose the mandatory five-year firearm enhancement. State v. Johnson, 08-1156 at 16, 9 So.3d at 1094. Based upon the mandatory language of the penalty provision, this Court found that the defendant’s sentences were indeterminate and remanded for the case resentencing. State v. Johnson, 08-1156 at 16-17, 9 So.3d at 1094-1095.

In the present case, the jury was advised, both at the reading of the bill of information and during the jury charges, that the State sought to prove the defendant committed both armed robberies while armed with a gun. At trial, the State presented evidence through the testimony of both Collins and Jefferson that a gun was the only dangerous weapon used in the commission of the armed | jobberies. Thereafter, the jury returned with a verdict of “Guilty of Armed Robbery Using a Firearm” on both counts.

As in State v. Johnson, supra, we find that in sentencing the defendant to forty years on each count the trial court imposed an indeterminate sentence because the trial judge did not sentence the defendant to an additional five-year penalty enhancement for the use of a firearm pursuant to LSA-R.S. 14:64.3. Therefore, we affirm the defendant’s conviction, vacate the defendant’s sentence, and remand for re-sentencing according to law. See, State v. Johnson, supra.

Second, the commitment/minute entry and the sentencing transcript are inconsistent. The commitment reflects that the trial judge properly advised the defendant of the appropriate prescriptive period for filing post-conviction relief, whereas the transcript reflects that the trial judge failed to completely advise defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. See, State v. Price, 04-812 at 9, 909 So.2d at 618. The commitment/minute entry indicates that the defendant was informed that he had “two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” However, the sentencing transcript indicates that the defendant received an incomplete advisal of the appropriate period for filing an application for post-conviction relief. At the sentencing hearing, the trial court informed the defendant that he had “two years from the day the Judgment of Conviction becomes final to seek Post-Conviction Relief.” The failure of the trial court to advise a defendant that the prescriptive period for seeking post conviction relief runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Moran, 08-462 at 2, 1 So.3d at 546. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

| ^Therefore, we remand this case to the district court with an order to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record. State v. Price, 04-812 at 9, 909 So.2d at 618.

CONCLUSION

Accordingly, for the reasons assigned herein, the conviction of defendant, Adou-phus Duncan, is affirmed. However, as defendant has received an indeterminate sentence, we hereby vacate defendant’s sentence and remand the case to the trial court for resentencing according to law. Finally, on remand, the trial court is instructed to correctly inform defendant of the prescriptive period for filing post-conviction relief and to file written proof of compliance in the record.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

      . See, State v. Moran, 08-462, p. 2 (La.App. 5 Cir. 11/12/08), 1 So.3d 545, 546.


author: MARION F. EDWARDS, Judge.

text:
    USI INSURANCE SERVICES, LLC v. Burnett J. TAPPEL, III.
    No. 09-CA-149.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.
    Writ Denied Feb. 26, 2010.

      Joanne Rinardo, Duris L. Holmes, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Louisiana, for Plaintiff7Appellant.
    H. Michael Bush, G. Phillip Shuler, III, Sarah Voorhies Myers, Chaffe McCall, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

laThis is an appeal by plaintiff/appellant, USI Insurance Services, LLC (“USI”), of a trial court judgment that denied a Motion for Preliminary Injunction, dissolved a Temporary Restraining Order, and rescinded the bond posted by USI in an action against former employee Burnett J. Tappel, III (“Mr. Tappel”), relating to an employment contract.

Mr. Tappel specialized in the marine and energy insurance area and sold and serviced insurance coverage for onshore and offshore property, protection and indemnity hull and maritime employer’s liability and workers’ compensation. He was hired by USI as an account producer in March of 2004. At that time, the parties signed an Asset Purchase Agreement for Mr. Tappel’s book of business and an Employment Agreement. Mr. Tappel was employed with USI from that time until his resignation in November of 2008. After his departure from the employ of USI, Mr. Tappel began employment with First Insurance Agency, Inc. (“First Insurance”).

Shortly after Mr. Tappel resigned, USI filed for and obtained a temporary restraining order preventing Mr. Tappel from conducting the business of insurance Lin any form, from circumventing the relationship between USI and its clients, and from using or disclosing any USI confidential material. In due course, the trial court conducted a hearing on USI’s request for a preliminary injunction in the form and substance of temporary restraining order issued by the trial court.

In the petition for the injunction, USI alleged that Superior Diving Company, Inc. (“Superior”) was one of the accounts purchased in the Asset Purchase Agreement. It is further alleged that, after Superior went out of business, its owner, Louis Schaeffer, began Legacy Offshore, Inc. (“Legacy”) and purchased insurance with USI, making Legacy one of USI’s existing clients pursuant to the terms of the Employment Agreement. USI asserts that Mr. Tappel violated the terms of both agreements when he solicited and diverted Legacy’s insurance coverage from USI to First Insurance in November of 2008.

USI also makes the claim that Mr. Tap-pel violated the confidentiality section of the Employment Agreement by sending a USI proposal format and a USI marine and energy power point presentation from his office at USI to his home computer prior to his resignation.

FACTS

The undisputed facts are that, at the beginning of their association, the parties entered into two contracts. The first was an Asset Purchase Agreement by which USI agreed to purchase from Mr. Tappel all of his “right, title and interest in and to Seller’s Client Accounts as listed in Exhibit A, and any Know-how related to such Accounts.... ” Payment was formulated by a percentage of commissions USI would receive on the client accounts and also included a down payment of $200,000. Ultimately, USI paid Mr. Tappel about 1.6 million dollars for the business. The agreement was a four-year agreement effective on March 15, 2004. |4As part of that agreement, the parties signed a restrictive covenant agreement in which Mr. Tappel agreed that he would not

directly or indirectly, solicit, sell, service, manage, provide, or accept any request to provide, or induce the termination, cancellation or non-renewal of, any clients listed in the attached Exhibit A. Such restrictive covenant agreement shall exist for a term of five (5) years from the Effective date of this Agreement.

The second contract confected by the parties was the Employment Agreement at issue herein. It was a four-year contract “commencing on March 15, 2004 and ending on March 14, 2008.... ” The agreement further provided that:

At the end of the Term, Producer shall continue to be employed automatically for successive one year terms unless USI provides Producer in writing at least thirty (80) days before the end of any term notice of USI’s intent to terminate this Agreement at the end of the then current Term. Such notice of termination shall not end the obligations of Parties which continue beyond the termination of the Agreement.

Mr. Tappel gave USI a thirty-day notice of resignation by way of a letter dated October 6, 2008. He resigned from the employ of USI on November 7, 2008. In the resignation letter, Mr. Tappel indicates there was some disagreement between the parties regarding the commissions still due under the Employment Agreement. Mr. Tappel also expressed his intent to begin employment with First Insurance soon after the effective date of his resignation from USI.

At the hearing on the petition for injunction, USI presented the testimony of Bethany Loving (“Ms. Loving”), the senior vice president of operations for the Southwest region of USI. She works out of the Houston office and was never present at any conversation between Mr. Tappel and any of his clients. Further, Ms. Loving had no knowledge of Mr. Tappel’s personal work habits.

IsUSI introduced several e-mails showing that Mr. Tappel sent client information from his office to his home computer while he was employed with USI.

Mr. Tappel also testified at the hearing. He denied any violation of the non-compete or non-solicitation clause of the Employment Agreement. He explained that he often worked from home and needed the account information he e-mailed from the office to his home. He also stated that, even after he resigned from USI, he was working with representatives of the company on a co-brokerage agreement to renew the insurance on Legacy. When the parties could not come to terms on the co-brokerage agreement, USI filed this action. Mr. Tappel denied any breach of either agreement with USI.

After the hearing, the trial court found that clause 7.3 of the Employment Agreement entitled, “Non Competition,” terminated on August 31, 2008 and was not effective on the date of Mr. Tappet’s resignation. The court further found that the accounts held by USI were not parties to the employment contract and were not bound by the contract. Therefore, the clients were free to change insurance agents at will.

Additionally, the court found there was a legitimate, work-related reason for Mr. Tappel to e-mail documents from work to his home while he was employed |fiwith USI. For these reasons, the trial court rendered a judgment denying USI’s request for a preliminary injunction, dissolving the temporary restraining order, and rescinding the security bond. It is from that judgment that USI appeals.

In brief to this court, USI concedes that the non-competing business clause expired on August 31, 2008. Further, USI acknowledges that, under the terms of clause 7.3 of the Employment Agreement, Mr. Tappel could have started a business thát provided the same products and services as USI. However, USI argues that this clause is not applicable since Mr. Tappel did not form a competing business. USI asserts that clause 7.1, the non-solicitation clause, and Section 6, the confidential information and property section of the Employment Agreement, apply.

Specifically, USI argues that the purpose of clause 7.1 was to prohibit Mr. Tappel from soliciting or circumventing the business of USI for two years after he left the company. USI asserts that Mr. Tappel violated this clause when he began servicing Legacy, an existing client of USI, within weeks after his termination from USI.

Mr. Tappel counters that the restrictions on his employment upon his termination from USI in November of 2008 had clearly expired, and he denies any violation of the non-solicitation clause. Further, while he concedes e-mailing information about his clients to his home computer, Mr. Tappel argues that this was done while he was still employed by USI to enable him to work at home. He also states that this information was never released to a third party. Thus, he argues there was no violation of the confidentiality clause.

ULAW

Louisiana has a strong public policy disfavoring non-competition agreements between employers and employees. This policy is based on the state’s desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. Such agreements are in derogation of the common right, and must be strictly construed against the party seeking their enforcement.

La. R.S. 28:921 provides limited instances in which a contract can restrict the exercise of a lawful profession. That statute must also be strictly construed, since it is an exception to Louisiana public policy against such contracts. Louisiana courts have made no distinction between non-compete and non-solicitation clauses when interpreting R.S. 23:921.

In general, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue. To do so, he must present a prima facie showing that he will prevail on the merits, and thus, is entitled to the relief sought. In cases involving non-compete agreements, however, the showing of irreparable injury is not required if the employer proves the employee breached the agreement.

Thus, the issues presented for our review require the interpretation of clause 7.1 and the confidentiality clause, both of which must be strictly construed against USI as the author of the agreement and the party seeking its enforcement. Our first | ^consideration in determining whether USI has met its burden of proof that Mr. Tappel breached the non-compete or non-solicitation agreement, is whether clauses in the Employment Agreement used as a basis are valid and enforceable. In the event that the actions sought to be enjoined pursuant to a non-compete agreement do not fall within the exception found La. R.S. 23:921 or where the non-compete agreement is unenforceable for failure to conform to the statute, the employer cannot establish that it is entitled to the relief sought.

NON-COMPETEI NON-SOLICITATION

We first note that the non-compete/non-solicitation clause in the Asset Purchase Agreement that restricts Mr. Tappel for five years after the date of the sale is clearly in violation of La. R.S. 28:921. That statute limits the length of the allowable restrictive period to two years. Thus, that agreement is unenforceable. We also find that clause 7.3 of the Employment Agreement expired on August 31, 2008 and is not applicable.

We are not convinced by USI’s argument that clause 7.1 of the Employment Agreement prohibited Mr. Tappel from soliciting, circumventing the business of USI, or from servicing USI accounts for two years after he left the company.

The clause at issue reads as follows:

|97.1 Non-SolicitationlNon-Circumvention. Except in the normal course of business on behalf of the Company or any Serviced USI Company, Producer agrees that he will not, directly or indirectly, (a) solicit, sell, service, manage, provide, or accept any request to provide, or induce the termination, cancellation or non-renewal of, any USI Business from or by (i) any person, corporation, firm or other entity, whose account constituted a Client Account of the company or such Serviced USI Company, at any time within 24 months preceding the earlier of the date of such act or the date of termination of Producer’s employment with the Company or (ii) who or which was an Active Prospective Client of the Company or such Serviced USI Company, as of the earlier of the date of such act or the effective date of termination of Producer’s employment with the Company or (b) at anytime attempt to circumvent directly or indirectly, on his own behalf or on the behalf of any other Person, the relationship existing between the Company and any Active Prospective Client, Client Account or Serviced USI Company, The restriction contained in this Section 7.1 shall apply throughout the Term hereof and thereafter until two (2) years after the effective date on which Producer’s employment with the Company, or its successor in interest, terminates. Such non-solicitation agreement encompasses the area of the parishes where Producers’ clients are located as listed in the attached Exhibit B.

(Emphasis added.) We find clause 7.1 to be too ambiguous to support USI’s burden of proof. This clause is contradictory as well as ambiguous. It appears to combine elements of a non-compete clause in the first part with non-solicitation prohibitions in the remainder of the clause. Further, we find the length of the prohibition ambiguous. The first part of the clause appears to limit the prohibition to two years prior to the termination, while the end of the clause limits the prohibition to two years after termination. Further, the term “such act” is undefined. In all, we find the above clause to be ambiguous and over broad. When strictly construed against the author, USI, and considered in accordance with the dictate that such clauses are in contravention of public policy in Louisiana, we find this clause to be invalid and unenforceable.

110With no valid enforceable agreement to support a prima facie showing that USI could prevail on the merits, we find USI has not met the necessary burden for issuance of a preliminary injunction based on the non-compete/non-solicitation clauses.

CONFIDENTIALITY

The Employment Agreement contains a section entitled “Confidential Information and Property.” This section of the agreement contains three clauses which declare and define certain confidential information as property of the company and prohibit the disclosure of that information to third persons. However, there was no allegation or evidence that Mr. Tappel disclosed any information to a third party. All e-mails introduced regarding this claim were e-mails sent from Mr. Tappel to himself at home. All of the e-mails were sent while Mr. Tappel was employed with USI and regarded USI’s business. There is nothing to refute Mr. Tappel’s testimony that the e-mails were necessary for him to do his job at USI. We find no merit in this argument.

Accordingly, we find the ruling of the trial court correct, and we affirm the judgment.

AFFIRMED.

      . 7.3 Non Competition. Producer further agrees that he will refrain from carrying on a business which provides any Seller Business, directly or indirectly, except in the normal course of business on behalf of the company or any Serviced USI Company, in any of the parishes within the State of Louisiana, listed on Exhibit B of the Employment Agreement and/or Section 9.1 of the Disclosure Schedule, as modified in writing from time to time by the Company so as to reflect in good faith the deletion of those parishes and states in which the Company commences, the provision of substantial Seller Business. The term "carrying on a business" shall mean to engage in any such business as a sole proprietor, partner, member of a limited liability company, manager, corporate officer, director, employee of stockholder. It is expressly agreed that at the foregoing is not intended to restrict or prohibit the ownership by Producer of stock or other securities of a publicly-held corporation in which Produce does not (i) possess beneficial ownership of more that 5% of the voting stock of such corporation or (ii) participate in any management or advisory capacity. The restrictions contained in this Section 7(3) shall apply throughout the Term hereof and thereafter continuing until the earlier of (i) two years following the effective date on which Producer’s employment with the Company or its successor in interest terminates, or (ii) August 31, 2008; provided, however, that if Producer's employment is terminated pursuant to the provisions of Section 8(1) or 8(3) hereof, then such restrictions shall continue throughout the severance period required thereunder, unless Producer elects to forego all severance payments required thereunder, in which case such restrictions shall terminate at the end of the Term. (Emphasis in original.)

      . SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294, 298; Bell v. Rimkus Consulting Group, Inc. of La., 08-491 (La.App. 5 Cir. 1/13/09), 8 So.3d 64, writs denied, 09-0329 (La.4/24/09), 7 So.3d 1198.

      . Id.

      . H2O Hair, Inc. v. Marquette, 06-930 (La. App. 5 Cir. 5/15/07), 960 So.2d 250; Bell v. Rimkus Consulting Group, Inc. of La., supra.

        . Millet v. Crump, 96-639 (La.App. 5 Cir. 12/30/96), 687 So.2d 132, 135, writs denied, 97-3207 (La.2/20/98), 709 So.2d 782.

      . Bell v. Rimkus Consulting Group, Inc. of La., supra.

      . Id.

      . H2O Hair, Inc., 960 So.2d at 259.

      . Id.

      . Id.

      . La. R.S. 23:921, in pertinent part, provides:
      A. Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
      B. Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a specified parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale.

      . 7.3 Non Competition
      The restrictions contained in this Section 7(3) shall apply throughout the Term hereof and thereafter continuing until the earlier of (i) two years following the effective date
        on which Producer's employment with the Company or its successor in interest terminates, or (ii) August 31, 2008....


author: MARC E. JOHNSON, Judge.

text:
    Patricia GUIDRY v. The HANOVER INSURANCE COMPANY, 4621 L.L.C., Meltzer Properties, Ltd., Romeche L.L.C. d/b/a Jani-King and ABC Insurance Company.
    No. 09-CA-220.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.
    Writ Denied Feb. 26, 2010.

      Kurt A. Offner, Attorney at Law, Ken-ner, LA, for Third-Party Plaintiffs/Appellant.
    Terrill W. Boykin, Kriste Taitón Utley, Shawndra M. Westerhoff, Attorneys at Law, New Orleans, LA, for Third-Party Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

lain this personal injury case, the Third-Party Plaintiffs, 4621, L.L.C. (hereinafter referred to as 4621), Meltzer Properties. Ltd. (Meltzer Properties), and Hanover Insurance Company (Hanover) appeal a judgment dismissing Third-Party Defendant, Thumbs Up Telemarketing, Inc. (Thumbs Up), the lessee of an office building in which the accident allegedly occurred. We reverse and remand.

The original Plaintiff, Patricia Guidry, filed suit against 4621, Meltzer, Hanover, and janitorial service Romeche, L.L.C. d/b/a Jani-King. She alleges that she was injured in May of 2005 when an overhead fluorescent light fixture fell from the ceiling of a restroom of a building located at 4621 West Napoleon Avenue in Metairie, Louisiana. At that time, the Plaintiff was employed by Thumbs Up.

|sIn August of 2007, Meltzer Properties, 4621, and Hanover filed a Third-Party petition against Thumbs Up asserting indemnity rights under the lease. Thumbs Up responded with exceptions of no cause of action and/or no right of action, and alternatively a motion for summary judgment.

A hearing was held in June of 2008, following which the trial judge sustained the peremptory exception of no cause of action/no right of action. The trial judge found that the Third-Party Plaintiffs were not named parties to the lease, and thus, were not proper Third-Party Plaintiffs. The trial judge, however, permitted the Third-Party Plaintiffs an opportunity to amend their pleadings to remedy the defect.

The Third-Party Plaintiffs subsequently amended their petition without adding any new parties. In December of 2008, the trial judge again granted the exception of no eause/right of action with prejudice. As before, he determined that the Third-Party Plaintiffs were not parties to the lease, and had no privity of contract with the parties to the lease.

On appeal, the Third-Party Plaintiffs specify as error the trial judge’s decision granting the exceptions of no cause and/or no right of action, and failing to find that the Third-Party Plaintiffs had a breach of contract claim for indemnification and as a Third-Party beneficiary. They contend, alternatively, that the trial judge erred in granting the exceptions “with prejudice.”

The building was owned by 4621, one of the Third-Party Plaintiffs. 4621 was composed of Sam M. and Gloria S. Newman Grandchildren’s irrevocable class trust No. 1 (hereafter The Newman Trust.), and West Napoleon L.L.C., entities authorized to act for 4621.

14John A. Meltzer, a real estate professional, owns both West Napoleon and Meltzer Properties, another of the Third-Party Plaintiffs. He is the individual authorized to enter into contracts and/or lease agreements on behalf of 4621, West Napoleon, The Newman Trust, and Melt-zer Properties.

Thumbs Up signed a lease for the premises with The Newman Trust and West Napoleon as the named Lessors. John A. Meltzer signed the lease on behalf of The Newman Trust and West Napoleon.

The terms of the lease between Thumbs Up and The Newman Trust and West Napoleon included a requirement for Thumbs Up to procure liability insurance naming 4621 and Meltzer Properties as additional insureds. It also provides that Thumbs Up is required to indemnify and hold harmless the Lessors for any injuries sustained on the leased premises.

The Third-Party Plaintiffs assert that the trial judge erred in finding that they have no cause or right of action against the Third-Party Defendants because 4621 is the owner of the building, and because The Newman Trust and West Napoleon were its mandataries that acted on its behalf in confecting the lease with Thumbs Up. Furthermore, 4621 is a named Defendant in the original action. Thus, it has a right to seek indemnity and/or otherwise protect its interests.

The Third-Party Plaintiffs also contend that Meltzer Properties has a valid right and cause of action because it is a third party beneficiary of the lease. Specifically, the lease required Thumbs Up to obtain liability insurance naming the Lessors and Meltzer as additional insureds to insulate them from liability.

NO CAUSE AND/OR RIGHT OF ACTION

A) No Cause of Action

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 5, n. 3 (La.11/30/94), 646 So.2d 885, 888, n. 3; Zurich American Ins. Co. v. Queen's Machinery Co., Ltd, 08-546, p. 8-9 (La.App. 5 Cir. 1/27/09) 8 So.3d 91, 96. The function of the exception is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1235 (La. 1993); Zurich, 08-546 at 8, 8 So.3d at 96. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The peremptory exception of no cause of action is triable solely on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690, p. 1 (La.7/5/94), 640 So.2d 237, 241; Zurich, 08-546 at 8, 8 So.3d at 96.

The standard of review by an appellate court review of the judgment sustaining an exception of no cause of action is de novo, because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. City of New Orleans, 93-0690 at 28, 640 So.2d at 253; Zurich, 08-546 at 8, 8 So.3d at 96. A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; Zurich, 08-546 at 8-9, 8 So.3d at 96.

B) No Right of Action

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681.

|fiThe purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. The exception of no right of action is directed to showing that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927; Louisiana Paddlewheels v. Louisiana Riverboat Gaming, 94-2015 (La.11/30/94), 646 So.2d 885, 888; Laguerre v. Mendez, 08-784, p. 3 (La.App. 5 Cir. 2/25/09), 9 So.3d 896, 898. The courts review an exception of no right of action de novo. Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/03/07), 968 So.2d 789, 798; 3218 Magazine, L.L.C. v. Lloyds of London, 08-727, p. 3 (La.App. 5 Cir. 2/25/09), 10 So.3d 242, 243. Evidence is admissible in support of, or against, the exception of no right of action. La. C.C.P. art. 931.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. C.C. art. 2989. The mandatary may perform all acts that are incidental to or necessary for the performance of the mandate. La. C.C. art. 2995. The authority granted to a mandatary to perform an act that is an ordinary part of his profession or calling, or an act that follows from the nature of his profession or calling, need not be specified. Id.

An agent is one who acts for or in the place of another by authority from the latter. Color Stone Intern., Inc. v. Last Chance CDP, LLC, 08-35, p. 8 (La. App. 5 Cir. 5/27/08), 986 So.2d 707, 713; Barrilleaux v. Franklin Foundation Hospital, 96-0343, p. 6 (La.App. 1 Cir. 11/8/96), 683 So.2d 348, 353-54, writ denied, 96-2885(La.1/24/97), 686 So.2d 864. An agency relationship may be either express or by implied appointment arising from apparent authority. Color Stone Intern, Inc., 08-35 at 8; 986 So.2d at 713. Thus, a principal is bound by the acts of his agent. La. C.C. art. 3021. A principal may also be bound by acts of a professed agent acting with “apparent authority.” Tedesco v. Gentry Development, Inc., 540 So.2d 960, 962 (La.1989); Color Stone Intern, Inc., 08-35 at 9; 986 So.2d at 713.

Although the Third-Party Plaintiffs here are not named lessors in the contract of lease, the names Lessors were acting as agent and/or mandatary on behalf of 4621 in confecting the lease. Thus, we find that 4621 has both a cause of action and a right of action under the lease for indemnity.

THIRD PARTY BENEFICIARY

Furthermore, the lease terms required Thumbs Up to name Meltzer as an insured to protect it from liability. As a third-party beneficiary to the lease, Melt-zer has privity to assert rights under the lessee for indemnity. Thus, we find that Meltzer has a cause of action and right of action.

Accordingly, the judgment granting the peremptory exceptions of no cause and/or no right of action is reversed. The case is remanded for further proceedings consistent with this opinion.

REVERSED; PEREMPTORY EXCEPTIONS DENIED; CASE REMANDED

      . John Meltzer Properties is the registered trade name of Meltzer Properties, Ltd.