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

text:
    STATE of Louisiana v. Crondell FLOWERS.
    No. 04-KA-190.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.
    Honorable Harry J. Morel, Jr., District Attorney, David L. Chaisson, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.
    Mark A. Marino, Destrehan, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^EDWARD A. DUFRESNE, JR., Chief Judge.

Defendant, Crondell Flowers, appeals his conviction of possession with intent to distribute cocaine. For the reasons which follow, we affirm defendant’s conviction and sentence.

On February 7, 2003, the St. Charles Parish District Attorney filed a bill of information charging defendant, Crondell Flowers, with possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A). At the arraignment, defendant pled not guilty.

Defendant thereafter filed a motion to suppress evidence which was denied by the trial judge. Following this denial, defendant withdrew his plea of not guilty, and after being advised of his constitutional rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to seven years at hard labor. Defendant now appeals assigning as his sole error the trial court’s denial of his motion to suppress.

FACTS

On January 30, 2003, Deputy Gonzales, Detective Guidry, and Detective Hines, of the St. Charles Parish Sheriffs Office, were on patrol in an unmarked ^vehicle. At 10:45 p.m., they were traveling northbound in the 900 block of Paul Frederick Street in Luling, an area known for high crime and drug trafficking. While on patrol, the officers observed defendant riding a bicycle in the middle of the road in front of their unmarked police vehicle. The bicycle was swerving erratically. After twenty seconds, defendant steered the bicycle to the left side of the road.

At the suppression hearing, Detective Guidry testified that traffic regulations require cyclists to ride on the right side of a roadway. Moreover, defendant was operating the bike in an erratic and hazardous manner. The officers believed defendant might be intoxicated. The officers passed defendant on his right hand side and stopped him by pulling in front of him. They then exited their vehicle and identified themselves to defendant as police officers.

Detective Guidry, who was closest to defendant, saw him drop something on the ground. Guidry retrieved the object, and found that it was a plastic bag containing what appeared to be thirty-four rocks of crack cocaine. The officers handcuffed defendant and placed him under arrest. Deputy Gonzales testified that he also issued defendant a traffic ticket.

DENIAL OF MOTION TO SUPPRESS

In his sole assigned error on appeal, defendant asserts that the trial court erred in denying his motion to suppress evidence. Defendant argues that the crack cocaine seized by the officers was suppressible as the fruit of an illegal stop. He asserts that the officers did not have probable cause to believe he had violated a statute or ordinance. Defendant does not challenge the validity of the seizure itself, only the legality of the initial stop.

The Fourth Amendment to the United States Constitution and Article I, Section V of the Louisiana Constitution prohibit unreasonable searches and I ¿seizures. State v. Belton, 441 So.2d 1195, 1198, (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Mercante, 02-712 (La.App. 5 Cir. 12/30/02), 836 So.2d 596, 599. However, the right of law enforcement officers to stop and interrogate a person reasonably suspected of criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Traffic violations are valid bases for investigatory stops. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 881. Moreover, the Louisiana Supreme Court has held that the violation of a traffic law is a reasonable basis for an officer to stop a bicyclist. State v. Washington, 00-1936 (La.12/15/00), 775 So.2d 1066.

The federal and state supreme courts have held that officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Kalie, supra. Generally, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S.Ct. at 1772; State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1056. The standard is a purely objective one that does not take into consideration the subjective beliefs or expectations of the detaining officer. Whren, 517 U.S. at 813, 116 S.Ct. at 1774; State v. Waters, supra.

In the present case, the testimony at the suppression hearing clearly reveals that the officers stopped defendant because of the manner in which he was operating the bicycle. Detective Guidry testified that he observed defendant riding a bicycle in an erratic manner. Defendant swerved from one side of the road to the other, posing a potential impediment to the flow of automobile traffic. After about twenty seconds, defendant steered the bike to the left side of the road. Both Detective Guidry and Deputy Gonzales testified that they recognized defendant 15was in violation of a traffic ordinance requiring that bicyclists ride on the right side of the road. Guidry testified that he discussed the violation with the other officers as they followed defendant. Both Guidry and Gonzales testified that their purpose in stopping defendant was to give him a citation for not riding the bicycle on the right side of the roadway. See LSA-R.S. 32:197(A) which provides that, “[ejvery person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction.” In addition to this particular violation, the officers also observed that defendant’s bike did not have the proper markings to enable motorists to see it at night. Deputy Gonzales further testified that it appeared that defendant did not have either hand on the handlebars, which is also a violation of law. The officers additionally considered the fact that defendant might be intoxicated because of the way that he was swerving back and forth in the middle of the roadway. This combination of circumstances clearly provided the officers with reasonable grounds to stop defendant.

To support his argument that the officers were not justified in stopping him based on a violation of LSA-R.S. 32:197, he cites to the Fourth Circuit’s disposition in State v. Muse, 00-1689 (La.App. 4 Cir. 10/25/00), 772 So.2d 839, writ denied, 00-3187 (La.1/12/01), 781 So.2d 562. In that case, the defendant was stopped by police while riding his bicycle on the wrong side of a New Orleans street. When the officer exited his vehicle and approached the defendant, the defendant threw down a crack pipe. The officer seized the pipe and arrested the defendant. The trial judge granted the defendant’s pretrial motion and suppressed the evidence. The Fourth Circuit thereafter affirmed the trial court’s granting of the motion to suppress. The facts of the Muse case are clearly distinguishable from the instant set of facts. In Muse, there was no indication that the individual was operating the bicycle in an erratic or unsafe | ¿manner, whereas the testimony in the case before us reveals that the officers had numerous concerns about the way defendant was operating the bicycle.

To further support his argument that the officers were not justified in stopping him, defendant points to the nature of the street in which he was riding. In his appellate brief, defendant classifies the street as a rural country road, and asserts that “[l]eaving it within the discretion of the police officer to determine what is practical on a country rural roadway is simply beyond constitutional permissiveness.” In the instant case, Deputy Gonzales characterized Paul Frederick Street as a two-way, undivided parish street without any striping or bicycle path. Regardless of the classification of the road, we find that the officers clearly had reasonable grounds to stop defendant. It was late at night, the street was dark, and the area was known as a high crime zone. Defendant was swerving back and forth in the middle of the roadway, causing the officers to believe that he may be intoxicated. Also, defendant’s bike had no markings to enable other motorists to see it at night, and defendant apparently did not have either hand on the handlebars. Given these circumstances, we find that the trial judge did not err in denying defendant’s motion to suppress.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent and have found none. 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).

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Under the provisions of State v. Crosby, 338 So.2d 584 (La.1976), defendant reserved his right to appeal the trial court’s denial of his motion to suppress evidence.

      . Deputy Gonzales testified that a field test performed on the rocks was positive for co-came.


source: Caselaw Access Project

author: | WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John E. KIRSCH.
    No. 04-KA-214.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry 'M. Boudreaux, Anne Wallis, Bobby Malbrough, Assistant District Attorneys, Gretna, LA.
    William R. Campbell Jr., New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | WALTER J. ROTHSCHILD, Judge.

On March 28, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, John Kirsch, with one count of unauthorized entry of an inhabited dwelling (LSA-R.S. 14:62.3) and one count of aggravated battery (LSA-R.S. 14:34). Defendant was arraigned on March 31, 2003, and pled not guilty.

Defendant was tried by a six-member jury on September 16, 2003. The jury returned a verdict of guilty as charged as to count one, and guilty of the lesser included offense of simple battery (LSA-R.S. 14:35) as to count two.

Defendant filed a Motion for New Trial on September 18, 2003. On October 2, 2003, the district court denied the motion after hearing arguments from counsel. Defendant waived statutory delays, and the court sentenced him that day to two years at hard labor as to count one, and six months in parish prison as to count two. The court further ordered that the sentences run concurrently with each other.

^Defendant filed a timely Motion for Appeal on October 2, 2003. The district court granted the motion that day.

FACTS

The trial transcripts are found in the original volume of the record, and they are duplicated in the supplemental volume. Trial testimony reveals the following:

On the night of March 8, 2003, Mary Gagnon and Thomas Legault entertained several friends at their home at 310 Glenn Street, Apartment C in the Bucktown area of Metairie. Ms. Gagnon testified that defendant, John Kirsch, knocked on the front door of the apartment at about 11:30 p.m. She further testified that she was acquainted with, defendant from having seen him around the neighborhood, but that she did not socialize with him. Mr. Legault answered the door. Legault testified that, although defendant was neither invited nor expected, he allowed defendant into the apartment.

Defendant demanded to know where “Rene” was. Mr. Legault testified that he had allowed Rene to live in the motor home he kept parked in a nearby lot. However, he had evicted Rene days earlier for failing to pay rent. Ms. Gagnon testified that, she and her companions told defendant Rene was not there. Defendant repeatedly demanded to know where Rene was, and he became increasingly more agitated.

Robert Craft, one of the guests, testified that defendant pulled out a shotgun from under his jacket and asked, “You want some of this?” Defendant continued to call for Rene and to wave the gun at the guests. He hit Mr. Craft in the eye socket with the gun. Mr. Craft punched defendant in the face, and then restrained defendant by putting him in a headlock. Mr. Legault took the gun from defendant and tossed it out the door. It landed on a neighbor’s property. Some of the guests managed to force defendant out through the front door. Mr. Craft testified that defendant stood outside the apartment and shouted that he had another gun, and |4that he would get back inside. Ms. Gag-non called 9-1-1 to report the incident. Defendant tried unsuccessfully to get in the back door of the apartment by breaking the glass.

Deputy Christopher Gorman of the Jefferson Parish Sheriffs Office testified that he and several other officers responded to the 9-1-1 call. Deputy Lipps saw defendant fleeing the scene on foot. He and other officers relocated to where defendant was. Deputy Malcolm Faber, a canine handler, performed an “area search” with his dog, and located defendant. Faber testified that defendant was lying face-down on the ground on the side of the apartment complex. Deputy Gorman testified that one of the victims identified defendant as the perpetrator at the scene of the arrest.

DISCUSSION

On appeal, defendant asserts two assignments of error. He argues that the trial court erred in denying his challenge to a juror during jury selection and that he is entitled to a new trial. He also complains that the evidence at trial was insufficient to prove unauthorized entry of an inhabited dwelling, as the testimony of state’s witnesses showed that defendant was authorized to enter the apartment. Defendant made this claim below in a Motion for New Trial. The trial court denied the motion.

When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 401, unit denied, 02-3064 (La.4/25/03), 842 So.2d 396.

|fiThe constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Unauthorized entry of an inhabited dwelling is defined by LSA-R.S. 14:62.3 A as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” An unauthorized entry is an entry without consent, express or implied. State v. Ortiz, 96-1609, p. 14 (La.10/21/97), 701 So.2d 922, 931, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 224. In the case of a private residence, a person must have the consent of the occupant or an occupant’s agent to constitute a defense to unauthorized entry. This consent must be given by a person with authority or capacity to consent. Id.

The evidence showed that the co-residents of the apartment at 310 Glenn Street were Mary Gagnon and her companion, Thomas Legault. Defendant required consent from one of them to legally enter the residence.

Mr. Legault testified that defendant was not an invited guest. However, he did allow defendant to enter when defendant knocked on the door. According to Mr. Legault, defendant became engaged in a fight with one of his invited guests, Mr. Craft, and was thereafter forced to leave the apartment. Defendant then attempted to re-enter the residence by breaking some glass in the back door. According to Le-gault, defendant did not succeed in reentering the apartment.

jfiMs. Gagnon testified that Mr. Legault opened the door when defendant knocked. She further stated that defendant asked if Rene was there, and Mr. Legault and others in the apartment told him Rene was not there. Mr. Legault attempted to close the door; but defendant pushed his way into the apartment. Ms. Gagnon testified that she did not give defendant permission to enter the residence and that Mr. Le-gault was trying to close the door when defendant pushed it open and entered.

The state relies on Mr. Craft’s testimony which stated that defendant left the apartment at one point and re-entered through the front door without consent, thereby satisfying the unauthorized entry element. Mr. Craft testified that after defendant entered the apartment and began acting erratically, he (Mr. Craft) left the residence. When he returned a short time later, Ms. Gagnon told him that defendant was gone, and that everything was alright. Frankie Richard, an invited guest, knocked on the door. According to Craft’s testimony, when Mr. Richard attempted to enter the apartment, defendant pushed past him and re-entered without permission.

Three eyewitnesses to this event testified at trial. Craft said defendant entered through the front door of the apartment twice. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends on the determination of credibility of the witnesses, the matter goes to the weight of the evidence and not its sufficiency. The credibility of witnesses will not be re-weighed on appeal. State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 660. The jury evidently felt Mr. Craft was in a better position to view and recount the details of the incident and they credited his version of the events. The ^testimony of Mr. Craft, which the jury found to be credible, supports a finding defendant’s actions constituted an unauthorized entry.

Further, we find support in the record for a finding that defendant committed an unauthorized entry when he broke the glass on the back door of the apartment. In State v. Petty, 99-1307, pp. 3-4 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, 949, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301, a simple burglary case, this Court stated that “[e]ntry is accomplished whenever any part of the defendant’s person ... intrudes, even momentarily, into the structure.” Mr. Legault testified that defendant attempted to gain entry through the back door. Ms. Gagnon testified that, after her guests succeeded in pushing defendant out through the front door, she called 9-1-1. Defendant then tried to reenter the apartment through the back door. She stated that defendant broke all of the glass in the door. It is unclear from the testimony whether defendant put any part of his body over the threshold. However, defendant’s “entry” or attempted entry may be reasonably inferred from the circumstances.

Our review of the record convinces us that the evidence presented was sufficient to convict defendant of unauthorized entry of an inhabited dwelling. This assignment is without merit.

Defendant next contends that the trial court erred his denying his Bat-son challenge made during voir dire. Defendant, who is white, complains that the trial court erred in failing to act on his Batson challenge despite the fact that it found the state did not offer a race-neutral reason for excluding African-American juror Diana McGowan. The Equal Protection Clause of the Fourteenth Amendment guarantees that criminal defendants have the right to be tried by a jury selected by nondiscriminatory criteria. It is well established that the use of peremptory | ¡¡challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also, LSA-C.Cr.P. art. 795.

To prevail on a Batson challenge, a defendant must first establish a prima facie case of discrimination by showing facts and relevant circumstances that raise an inference that the prosecutor has used peremptory challenges to exclude prospective jurors on the basis of race. Batson, 476 U.S. at 94, 106 S.Ct. at 1721; State v. Duplessy, 03-185 at p. 5, 853 So.2d 77, 80. In order to establish a prima facie case of purposeful discrimination, the defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent. That includes, but is not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, and the composition of the venire and the jury finally impaneled. State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 288.

If a prima facie case is established, the burden shifts to the state to present race-neutral explanations for its peremptory challenges. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995). If the prosecutor satisfies the second step of the Batson review by providing a race-neutral reason, the trial court must determine whether the defendant has established a case of purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-1724. The finding of an absence of discriminatory intent under the third step of Batson comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor, by how reasonable — or how improbable — the explanations are, and by whether the proffered rationale has some basis in accepted trial strategy. Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). A trial judge’s determination on a claim of purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. State v. Jackson, 03-0417, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 134, 136, writ denied, 03-3506 (La.4/8/04), 870 So.2d 269.

Defendant complains that the trial court erred in failing to take corrective action upon finding that the state’s explanation regarding Ms. McGowan was not race-neutral. LSA-C.Cr.P. art. 795(E) provides, in part:

Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

The record shows that, among the first group of prospective jurors questioned during voir dire, Ella Wilson and Diana McGowan were the only two African-Americans. Neither woman said much during the attorneys’ questioning, as the attorneys directed few questions at them. Ms. Wilson, a widow, stated she was a retired school teacher and had never served on a jury. She felt the state’s burden of proof in a criminal trial was fair. If the state failed to meet its burden, she would vote not guilty. She stated that she would not hold it against defendant if he chose not to testify. She believed she could be a fair and impartial juror.

Ms. McGowan stated she was single and a school board employee. No one in her family had ever been the victim of a violent crime, and she had never sat on a jury. When asked, she said she did not have a problem with any of the rules of law — such as presumption of innocence and burden of proof — that she would be asked to follow if selected.

When the state used peremptory challenges to excuse both Ms. McGowan and Ms. Wilson, the defense made a Batson objection. Counsel further moved the |incourt to require the prosecutor to provide a race-neutral explanation for excluding the two women. The court found that there was a pattern of purposeful discrimination, and called upon the state to provide a race-neutral reason for striking Ms. McGowan. The following exchange ensued:

MR. MALBROUGH [Prosecutor]:
The neutral-reason why I wanted to get the defense to use their two challenges on the remaining two jurors on the panel which the state suspects that Mr. Vedros is going to have to strike. The fact that the order, the fact of the matter that they appeared in this order, is still the reason why they were stricken as they appeared as juror number 708 and juror number 252 the state may not have stricken them.
THE COURT:
Are the race-neutral reasons other than that I suppose strategy reasons that you just discussed, which I don’t understand as to the first juror faced, you’re saying that the state used their challenge on the very first juror, McGowan, in order to have the defense use all their challenges; is that what you’re saying?
MR. MALBROUGH:
Well, it wouldn’t be the first juror, it’d be the first and the second juror. Also, Mr. Vedros [defense counsel] has stricken the jurors that I figured that he would strike and he now has two remaining challenges. And its [sic] the state’s position that he probably exercised those challenges on jurors 708 and juror number 252.
THE COURT:
But we’re on the very first juror selected' — I mean faced, Diane McGowan.
MR. MALBROUGH:
McGowan I did not accept cause [sic] she has no jury experience and there were other jurors on that jury that had jury experience. She said very little during the voir dire examination. Its [sic] the state’s position that she may be intimidated by some of the people who had more experience on the jury. The state doesn’t need to educate Ms. McGowan on sitting on the jury. It has nothing to do with race. The state was presented with the same problem with juror number 699. She had no experience either, but she answered more questions readily than Ms. McGowan.
J^THE COURT:
The third juror had no juror experience and was acceptable to the state. What is the distinction between the third juror and the first juror if ...
MR. MALBROUGH:
Ms. Gravolet was more vocal than Ms. McGowan was. She answered questions more readily than Ms. McGowan in my opinion. She was more forceful in her responses.
THE COURT:
What is the race-neutral reason for the striking of Ms. Ella Wilson?
MR. MALBROUGH:
Being retired. I just feel that Ms. Wilson uh, closer to the age of the defendant.
THE COURT:
And the second juror, Berteau, was also retired and in that sense is closer to the age of the defendant.
MR. MALBROUGH:
Second juror also has jury trial experience, no more than 2 or 3 years ago. Mr. Berteau, he’s very attentive during voir dire examination by both myself and Mr. Vedros.
Juror number 191, Ms. Wilson, sat on an angle facing the wall most of the time and would not look at myself nor Mr. Vedros during questioning.
I’ve learned that school teachers are a lot like nurses; when they get on juries they have a tendency to take cool and complete control of jurors.

The trial judge found the state gave a race-neutral explanation for excusing Ms. Wilson: that the prosecutor believed school teachers have a tendency to take control of a jury. The defense objected to the court’s holding. The court further ruled that the state did not provide a race-neutral explanation for cutting Ms. McGowan. However, considering that the state gave what he considered a race-neutral explanation for excluding Ms. Wilson, the judge no longer saw a pattern of | ^discrimination. The judge therefore denied defendant’s Batson challenge as to both jurors.

Defendant argues that, since the district court did not take such action as required by Article 795, he is entitled to a new trial. However, our review of the record shows that the trial court erred in ruling that the state’s proffered reasons were not race-neutral.

To be valid, the prosecutor’s explanation need not be persuasive, or even plausible. Unless discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. at 768, 115 S.Ct. at 1771; State v. Tilley, 99-0569, pp. 4-5 (La.7/6/00), 767 So.2d 6, 12, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001); State v. Duplessy, 03-185 at p. 5, 853 So.2d at 80. The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination. Hernandez v. New York, supra.

A neutral explanation must be one which is clear, reasonably specific, legitimate, and related to the case at bar. State v. Dunn, 01-1635, p. 8 (La.11/1/02), 831 So.2d 862, 869. The prosecutor first stated that he had stricken the African-American jurors in order to force the defense to use its peremptory challenges in a particular way. The trial judge did not find the state’s reason to be clear or particularly legitimate, and accordingly found the reason given was not race neutral, although the court stated he was “conscious of a non articulated race-neutral reason as to Ms. McGowan.”

The reasons given by the prosecutor for excusing Ms. McGowan in this case are similar to the facts of State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, writ denied, 98-1458 (La.10/30/98), 732 So.2d 971. In that case the state gave as its reason for excluding two prospective African-American jurors that it wanted to select a more desirable juror who was positioned after them in the | ^selection process. On appeal, this Court affirmed the trial court’s ruling that the explanation was race-neutral, reasoning, “there is no showing herein that the prosecutor was excusing jurors based upon racially discriminatory reasons. Rather, it is evident that the prosecutor was making a strategic decision with regard to these two jurors .... The state’s decision was one of trial strategy and not racial discrimination.” Bailey, 07-302 at p. 31, 713 So.2d at 604-605. As in Bailey, the prosecutor in this case explained that he excused Ms. McGowan and Ms. Wilson in order to influence the challenges made by the defense.

The prosecutor next stated that he had excused Ms. McGowan because she had no jury experience, and might be intimidated by jurors who had previously served. We find that this reason is not, in itself, discriminatory in nature, and although the record shows that the state did not attempt to cut several prospective jurors with similar traits who also had not served on a jury, when the judge in this case asked the prosecutor why one of the others was acceptable to the state despite her lack of jury experience, he replied that this juror was more vocal and forceful in her responses than was Ms. McGowan.

In the present case, there has been no showing that the prosecutor was excusing jurors based on racially discriminatory reasons. Rather, the prosecutor was making a strategic decision “to get the defense to use their two challenges.” Based on our review of the record, we find that the prosecutor’s stated reasons for its peremptory challenge of Ms. McGowan was sufficiently race neutral to survive defendant’s challenge pursuant to Batson. Further, the trial court reached the third step in the Batson process and determined that defendant failed to meet its burden of proving purposeful discrimination. We recognize that a pattern of discrimination is not a necessary requirement to a finding of discrimination under Batson; however, as stated herein, defendant failed to meet his burden of showing purposeful discrimination by the excusal of this juror. Under the facts presented therein, we find no error of the trial court in denying defendant’s Batson challenges to Ms. McGowan. Defendant’s assignment of error is therefore without merit.

ERROR PATENT DISCUSSION

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

The commitment is incorrect in that it shows defendant was convicted of aggravated battery, when he was actually found guilty of the lesser offense of simple battery. Therefore, this case is remanded with instructions that the trial court correct the minute entry to reflect the proceedings.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Under the Equal Protection Clause, a defendant has standing to object to the race-based exclusions of jurors by peremptory challenge whether or not the defendant and the excluded jurors share the same race. Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991); State v. Duplessy, 03-185, p. 4 (La.App. 5 Cir. 7/29/03), 853 So.2d 77, 80, fn. 1, writ denied, 03-2416 (La.2/6/04), 865 So.2d 739.


author: LCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Juan BROWN.
    No. 04-KA-230.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Bou-dreaux, Assistant District Attorney, Gret-na, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   LCLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

Defendant, Juan Brown, was charged in a bill of information on January 2, 2003 with second offense possession of marijuana in violation of LSA-R.S. 40:966(C). At approximately 2:30 p.m. on October 14, 2002, Deputies Tim Anclade and Keith Young, both of whom are with the streets crimes division of the Jefferson Parish Sheriffs Office, were on patrol in an unmarked Crown Victoria in the Shrewsbury area when they observed defendant trying to flag down a car in the street. They parked their vehicle and watched defendant for approximately ten minutes. During this time, they saw defendant attempt to flag down several cars. Each car slowed down but did not come to a complete stop. Thereafter, the deputies approached defendant, who quickly walked back to the porch of his home, and conducted a field interview.

The deputies ran defendant’s name through a computer and discovered defendant had a traffic attachment. Defendant was subsequently arrested. |sDeputy Young then conducted a pat down search incident to defendant’s arrest and discovered a small bag of marijuana in his right front pocket.

Prior to being transported to lockup, defendant asked the deputies to inform his grandmother, who was in the house, that he had food cooking on the stove. Deputy Young knocked on the door but no one answered. He then entered the home and was met in the kitchen area by defendant’s grandmother. At trial, defendant’s grandmother, Charlene Brown, testified for the defense. She claimed the police took the marijuana from the window sill of her living room and that it belonged to her.

After defendant was brought to lockup, the deputies ran his rap sheet and learned he had a prior conviction for possession of marijuana. He later pled not guilty and filed several pretrial motions. He proceeded to trial on October 22, 2003 and was found guilty as charged by a six-person jury. The trial court sentenced defendant to five years at hard labor. Defendant now appeals his sentence as excessive.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues his five-year sentence at hard labor is excessive. He claims he should not have received the maximum sentence for such a non-violent offense of “possession of a small amount of an illegal vegetative matter.” He contends he is not the most blameworthy of offenders and his conduct is not the most egregious. The State responds that the trial court exercised its discretion in imposing a sentence within the sentencing range as fixed by the legislature. The State urges that the fixing of penalties is a legislative function and that only in rare cases can the judiciary declare a sentence within statutory limits to be excessive. Citing State v. Rome, 96-0991 (La.7/1/97), 696 So.2d 976; and, State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

I ¿We do note that the defendant failed to object to his sentence or file a motion for reconsideration of his sentence as required by LSA-C.Cr.P. art. 881.1. The failure to object to a sentence or comply with LSA-C.Cr.P. art. 881.1 limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Brown, 03-581 (La.App. 5 Cir. 11/12/03), 861 So.2d 644, 653, writs denied, 03-3407 (La.4/2/04), 869 So.2d 875, and 04-0049 (La.4/2/04), 869 So.2d 877.

Both the United States and the Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wiekem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and a sentence will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068, 1069.

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 our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) | Bthe nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

The defendant received the maximum five-year sentence at hard labor for his second offense possession of marijuana conviction but did not receive any fine. LSA-R.S. 40:966(E)(2) provides that a person convicted of second offense possession of marijuana “shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.” Maximum sentences are appropriately imposed only for the most serious violation of the described offense and for the worst kind of offender. State v. Perrilloux, 03-917 (La.App. 5 Cir. 12/30/03), 864 So.2d 843, 854.

We find the defendant’s five-year sentence is not excessive. In State v. Mayweather, 556 So.2d 200 (La.App. 2 Cir.1990), the Second Circuit upheld a defendant’s five-year sentence after he pled guilty to second offense possession of marijuana. The court noted that the defendant had one prior conviction for marijuana possession and had a current charge for marijuana distribution pending when he committed the present offense. The court further noted that the three offenses had occurred within a three year period. The court also noted defendant had several other arrests. Also, in State v. Herron, 506 So.2d 970 (La.App. 3 Cir.1987), writ denied, 512 So.2d 440 (La.1987), the Third Circuit upheld a defendant’s five-year sentence for second offense possession of marijuana. The court noted the defendant had two prior drug-related convictions, had failed to respond to probationary treatment, and was the primary source of marijuana for young people in the area.

Although a presentence investigation was not conducted in this case, the record shows that the defendant was twenty years old when the present offense was committed. He committed the present offense within three months of being convicted of possession with intent to distribute marijuana. The certified copy of 1 fihis pri- or conviction shows the defendant was sentenced to five years at hard labor on July 15, 2002. His sentence was suspended and he was placed on three years of active probation. Thus, the defendant was on probation when he committed the present offense. Additionally, the deputies observed defendant attempting to flag down passing cars which suggests defendant may have been attempting to distribute the marijuana in his possession.

We find the trial court did not abuse its discretion in imposing the maximum jail sentence for defendant’s conviction for second offense possession of marijuana. The defendant’s involvement in drug activity was not curtailed by his prior conviction or his probationary treatment. We find the defendant’s five-year sentence does not shock the conscience.

ASSIGNMENT OF ERROR NUMBER TWO

As requested by defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors in this case.

In accordance with the above, the defendant’s sentence is affirmed.

AFFIRMED.


author: I «WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Floyd FALKINS and Dwayne Simms.
    No. 04-KA-250.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Kia M. Habisreitinger, Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, Gretna, LA, Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Dwayne Simms, Louisiana State Penitentiary, Angola, LA, in Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

STATEMENT OF THE CASE-

On November 3, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendants, Floyd Fal-kins and Dwayne Simms, with four counts of armed robbery in violation of LSA-R.S. 14.64. Defendants were arraigned on November 6, 2000 and pled not guilty. On December 18 and 19, 2002, the case was tried before a twelve-person jury which found both defendants guilty as charged.

The trial court sentenced both defendants on January 10, 2003 to imprisonment at hard labor for ninety-nine years on each count without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently. Defendants’ oral motions to reconsider sentence were denied.

hThe State filed multiple offender bills of information alleging both defendants to be third felony offenders. However, at the multiple bill hearing, the State indicated that it was alleging that defendants were only second felony offenders for multiple bill purposes. Defendants denied the allegations of the multiple bills.

At a hearing on April 1, 2003, the trial court found both defendants to be second felony offenders, vacated their original sentences on count one, and sentenced both defendants under the multiple bill statute to imprisonment at hard labor for 110 years to run concurrently with their original sentences on counts two, three, and four. He ordered defendant Simms’ enhanced sentence to be served without benefit of parole, probation, or suspension of sentence. Defendants orally objected to the sentences. In January of 2003, both defendants filed motions for appeal that were granted.

FACTS

At trial, the State introduced evidence to show that, on October 19, 2000, at approximately 9:15 a.m., defendant, Floyd Falkins, along with Larry Simms, walked into the Hibernia National Bank (Hibernia) at 4601 Westbank Expressway in Marrero and robbed four tellers while armed with guns. The State also introduced evidence to show that, after the robbery, Falkins and Simms got into a vehicle being driven by defendant, Dwayne Simms, and they fled the scene.

Kenyatta Bush, a teller at Hibernia, testified that she worked at station number four behind the teller counter in the bank. As she was processing ATM deposits, she suddenly heard a loud noise at the front door. Two men entered the bank and said, “Okay, everybody get down on the fing floor.” Ms. Bush |4compIied, lying down on the floor in the walkway between stations numbers two and three. She subsequently heard another loud noise and saw one of the men jump over the counter and through her window. He went directly to station number two and got some money from that teller. He then went to station number one.

When Ms. Bush saw the man at station number one, she scooted back and pressed the holdup button. At that time, Ms. Bush was in station number three with another teller, Betty Higgins. The man subsequently came to station number three and demanded money from Ms. Higgins. After he got all of Ms. Higgins’ money, the man in the lobby said, “Come on, let’s ride,” and the man behind the counter jumped back over the counter and left. Ms. Bush testified that, during the robbery, she saw guns. She explained that the man who jumped over the counter wore a dark sweat shirt, either black or dark gray, and that she could not see his face because it was covered.

Mary Domingue and Betty Higgins, who were bank tellers, Virginia Keller, who was a customer service representative, and Dianne Fennidy, who was a branch manager, also testified at trial, and their testimony largely corroborated that of Ms. Bush. Additionally, Ms. Higgins testified that the money the robber took from her included a “dye pack.” She further testified that the robber who did not jump over the counter wore a bandanna and a light gray sweat shirt, which she identified in court.

Witness Sylvia Bourg testified that she waited in her car while her daughter went into Hibernia to cash a check. Ms. Bourg subsequently got out of the car because her daughter was gone for so long. When Ms. Bourg walked up to the bank, she realized something was wrong. She observed two black males “coming up” wearing sweat shirts and hats, even though it was a warm day. She testified 1 ¡¡that one of the men wore a gray sweat shirt with a hood, and the other man wore something black with a hat over his head.

Ms. Bourg observed them walking fast, and one of the men had a bag in his hand with red smoke coming out of it. She explained that the two men started to run after the red smoke came out of the bag. Ms. Bourg was unable to get a good look at their faces, but she saw them go toward Rite Aid and down toward the other end of the strip shopping center.

Witness Jean D. Pierre testified that she was in the Rite Aid parking lot with her son and daughter when she observed two men coming from Hibernia toward the Rite Aid parking lot. Ms. Pierre turned to her daughter and said that it looked like those men had robbed the bank, so she continued watching them.

Ms. Pierre explained that one of the men dropped something with red and white smoke coming from it on the neutral ground and then right in front of Rite Aid. After the men passed Rite Aid, they picked up their pace. She saw the men go to the parking lot behind Rite Aid, get into a burgundy Maxima, and flee. When the two men got in the vehicle, there was someone sitting in the driver’s seat and the car was stopped at an angle, waiting and ready to go with the back doors open. Ms. Pierre explained that the driver of the burgundy car turned onto Avenue D and then made a left turn onto the expressway.

Ms. Pierre told her daughter to write down the license plate number, JCP 866, which her daughter wrote down on the back of a napkin. Ms. Pierre identified a photograph of the car in court. She could not see the faces of the two men who came from the bank; however, she testified that one of the men was wearing a black sweat jacket and the other man was wearing a light gray sweat jacket with a hood. She stated that one of the men was wearing something over his face, but the other man was not.

| fi Jefferson Parish Sheriffs Office (JPSO) Sergeant Chad Gauthreaux testified that he responded to a bank robbery call at Hibernia. He obtained a description of the two men from branch manager Dianne Fennidy and broadcast that description over the radio: suspect number one was a black male, 5'10", thin build, late teens or early 20’s, wearing a gray hooded sweat shirt with the hood pulled over his head; and suspect number two was a black male, tall, thin build, late teens or early 20’s, with a black cloth or rag covering the top of his head.

JPSO Deputy George Giron testified that he received information over the radio that two men had robbed the Hibernia bank, fled in a red Maxima with license plate number JGP 846, and were traveling eastbound on the elevated portion of the expressway. Deputy Giron and his partner went to Stumpf Boulevard, stopped at the high rise, and waited to see if that car passed. _ Deputy Giron subsequently noticed a red Maxima occupied by three black males with a similar license plate number. He testified that the license plate number was not an exact match, but it was close.

Deputy Giron and his partner pulled the vehicle over and ordered the driver out of the vehicle. The driver exited the vehicle and then returned into the vehicle. They again ordered the driver out of the vehicle. After he got out, they ordered him to the rear of the vehicle. Instead, the driver walked to the front of the vehicle. Assuming that the driver could not hear him because of the traffic, Deputy Giron went to get his public address system out of his car. At that point, the driver jumped over the side of the elevated expressway, which he estimated was 25 to 30 feet above the ground.

Deputy Giron went around to the front of the Maxima and observed two men still in the vehicle, a front passenger and a rear right passenger. He ordered the two men out of the vehicle, placed them on the ground, secured them with handcuffs, and placed them in separate vehicles. The officers conducted a visual |7cursory search of the vehicle and saw a handgun protruding from underneath the front passenger seat, gloves, sunglasses, and bandannas. The officers also saw a black bag and a dark gray sweat shirt in the back seat.

Deputy Giron testified that Dwayne Simms was later identified as the driver, Larry Simms as the front seat passenger, and Floyd Falkins as the back seat passenger. He subsequently learned that the three men were brothers. Deputy Giron identified a photograph of the vehicle and stated that the license plate on the vehicle was JGP866. He ran the license plate which showed that it was registered to Dwayne Simms.

JPSO Detective John Carroll testified that the following items were recovered from the burgundy Maxima: a .22 caliber black semiautomatic handgun located on the floorboard of the front passenger seat; a 15 round .22 caliber magazine; twelve .22 caliber live rounds; a black .357 Magnum revolver located on the rear passenger floorboard; three Winchester .38 special rounds; three .357 hollow point rounds; sunglasses; one pair of brown cloth gloves; one pair of greenish brown cloth gloves; a black knit ski mask; a red bandanna; a black nylon bag with red dye on the inside; $15,839 in U.S. currency; three security dye packs; and one dark blue Adidas brand hooded sweat shirt located on the driver’s floorboard.

Penny Falkins, who was called as a witness by the defense, testified that Floyd Falkins was her husband, and that in October of 2000, he was under the care of doctors because he had been in an automobile accident. Mrs. Falkins explained that her husband had hurt his back and knee, that she brought him to see the doctor twice a week, that he was on medication, and that he was fifty-one years old.

\ ¿DISCUSSION

In their first assignment of error, both defendants argue that the evidence was legally insufficient to support the verdict on count one, the armed robbery of Lorna Moore. They contend that there was no evidence to prove that Ms. Moore was the victim of an armed robbery, because Ms. Moore did not testify at trial and her name was not mentioned by the other witnesses. The State responds that the evidence was sufficient to support the conviction on count one. It argues that, although Ms. Moore did not testify, three of the other tellers did testify as eyewitnesses to the offense against Ms. Moore.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction 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, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Captville, 448 So.2d 676, 678 (La.1984). This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).

IflLSA-R.S. 14:64 defines armed robbery as “the taking of 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.”

In the instant case, Mary Do-mingue testified that Lorna Moore was a teller on the day of the robbery, and that Ms. Moore’s station was right next to hers. She identified Ms. Moore’s station as station number two. Ms. Domingue heard one of the robbers order her and the other tellers to unlock their drawers and surrender their money. Betty Higgins testified that one of the men robbed window number two. Kenyatta Bush testified that, when the robber told them to get on the ground, she landed between windows two and three. She explained that, as soon as the robber came behind the teller counter, he went directly to window two and “got some money from her.... ” Each teller testified that the robbers had guns.

In State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401, 410-411, cited by both the State and the defendants, Dwight Dedeaux, the alleged armed robbery victim, did not testify at defendant’s trial. However, the other victim testified that defendant and his companions took something of value, a jacket, from Mr. Dedeaux, by use of force or intimidation, while armed with a gun. Another eyewitness to the robberies testified that defendant and the other perpetrators took property from Mr. Dedeaux. Sergeant Thornton identified a photograph of the back seat of a jeep depicting a gray coat lying on the rear seat. He testified that the coat belonged to Mr. Dedeaux, and another witness identified the coat in the photograph as the one taken from Mr. Dedeaux. This Court concluded that the testimony of the witnesses was sufficient to establish that defendant committed the armed robbery of Mr. Dedeaux.

In the present matter, although Ms. Moore did not testify, the testimony of Ms. Domingue, Ms. Higgins, and Ms. Bush, revealed that one of the robbers took money from Ms. Moore, as well as the other tellers. Accordingly, we find that the Instate presented sufficient evidence to establish that defendants committed armed robbery of Lorna Moore, and this assignment of error is without merit.

In defendants’ second assignment of error, they argue that their sentences on count one are illegal and excessive, because their convictions on count one were based upon insufficient evidence. The State responds that the sentences on count one are within the statutory guidelines and are based on a valid statute, bill of information, and verdict. Therefore, the State contends that the sentences are legal.

In view of our finding that the evidence was sufficient to support defendants’ convictions on count one, the defendants’ argument that their sentences on count one are based on invalid convictions is without merit. We note that the issue of whether the sentences on count one are excessive is addressed in defendants’ third assignment of error.

In their third assignment of error, defendants challenge their original sentences on all counts and their enhanced sentences on count one, arguing that they are excessive. They contend that they did not deserve the maximum sentences, because none of the alleged victims was harmed. The State responds that the record supports the sentences imposed and therefore, they should not be disturbed on appeal.

Defendants orally moved for reconsideration of sentence after the original sentencing on all four counts; however, they did not state the specific grounds on which the motions were based, nor did they file written motions to reconsider sentence. Defendants orally objected to their enhanced sentences on count one; however, they did not file written motions to reconsider sentence.

The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 6 Cir.9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342. In Accordingly, defendants’ sentences are examined only for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Even a sentence within the prescribed statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Sweeney, 443 So.2d 522, 531 (La.1983); State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 97. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, 96-782 (La.App. 5 Cir. 1/28/97), 688 So.2d 158, 159, writ denied, 97-0597 (La.9/5/97), 700 So.2d 506.

Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982), aff'd on remand, 446 So.2d 1210 (La.1984). However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 97. This Court should further consider three factors in reviewing a judge’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1041, writ denied, 94-3063 (La.4/7/95), 652 So.2d 1344.

Defendants were convicted of four counts of armed robbery. The sentencing range for the crime of armed robbery is set out in LSA-R.S. 14:64(B) which provides that:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

Prior to sentencing, the trial judge stated:

The Court imposes the following sentence and let it be said that as I’ve said before here, armed robberies, in my opinion, are only a small step away from a murder. If someone uses a weapon, in this case they used firearms to commit a robbery, it’s not going to be tolerated by this Court and my sentence is going to reflect the severity of what these two defendants did. And I’ve looked closely at their criminal history, their conduct and the case as it was proven at trial.

The trial judge subsequently sentenced defendants to the maximum sentence of ninety-nine years on each count without benefit of parole, probation or suspension of sentence, to run concurrently.

The trial court later found defendants to be second felony offenders. Under the multiple bill statute, the sentencing range for second felony offenders with underlying convictions for armed robbery is years to 198 years. LSA-R.S. 15:529.1(A) (2) (a); LSA-R.S. 14:64. The trial judge vacated the sentences on count one and re-sentenced defendants under the multiple bill statute to imprisonment at hard labor for 110 years, to run concurrently with the ninety-nine-year original sentences on counts two, three, and four.

A review of the jurisprudence reveals that ninety-nine-year sentences imposed upon defendants convicted of armed robbery have been previously upheld in many cases, including cases in which the victims were not physically injured. See State v. Dempsey, 02-1867 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037; State v. Douglas, 389 So.2d 1263 (La.1980); State v. Williams, 482 So.2d 1090 (La.App. 3 Cir.1986); State v. James, 545 So.2d 560 (La.App. 4 Cir.1989), writ denied, 551 So.2d 618 (La.1989); State v. Carter, 570 So.2d 234 (La.App. 5 Cir.1990); and State v. Wilson, 452 So.2d 773 (La.App. 4 Cir.1984).

In the instant case, the trial court imposed a 110-year enhanced sentence upon both defendants on count one, to run concurrently with the ninety-nine-year sentences on counts two, three, and four. This Court and other courts have upheld similar sentences for defendants who were convicted of armed robbery and subsequently found to be second felony offenders. See State v. McNeal, 99-1265 (La.App. 4 Cir. 6/14/00), 765 So.2d 1113, writ denied, 00-2134 (La.9/28/01), 797 So.2d 684; State v. Freeman, 00-238 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, writ denied, 00-3101 (La.10/5/01), 798 So.2d 963; State v. Doleman, 02-957 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, writ denied, 02-3101 (La.9/19/03), 853 So.2d 633; and State v. Redditt, 03-354 (La.App. 5 Cir. 10/28/03), 868 So.2d 704, writ denied, 03-3484 (La.4/8/04), 870 So.2d 268.

In the instant case, defendant Falkins and Larry Simms walked into the bank with guns, cursing and yelling at everyone to get on the floor, and subsequently robbed four tellers of approximately $20,000, thereby creating the risk of death and great bodily harm to approximately ten bank employees and customers who were in the bank at the time of the robbery. Defendant Simms waited in the car outside, ready to drive away, and drove off when defendant Falkins and Larry Simms got in the car. Additionally, defendant Falkins had two prior armed robbery convictions, and defendant Simms had two prior convictions, one for armed robbery and one for attempted carrying of an illegal weapon by a convicted felon, which shows a propensity for felonious behavior. In light of the circumstances | usurrounding the armed robberies, defendants’ extensive and violent criminal records, and other sentences imposed by this Court and other courts on defendants similarly situated, we find that the trial court did not abuse its discretion in sentencing, because the sentences on counts one through four are not constitutionally excessive. Accordingly, this assignment of error is without merit.

Defendant Simms filed a pro se brief on his own behalf, in addition to the brief filed by counsel on behalf of both defendants. In his pro se brief, defendant Simms argues that the guilty verdicts as to four counts of armed robbery resulting from a single incident are contrary to law, and the evidence presented by the State was insufficient to support his conviction as a principal to armed robbery. He contends that there was no evidence to suggest that he had any knowledge that the two perpetrators were going to commit an armed robbery or that they had committed an armed robbery. He further contends that there was no direct testimony, the circumstantial evidence was weak and contained inconsistencies, his mere presence was insufficient to support the verdict, and that at most he could only be found guilty of accessory after the fact.

A principal is any person concerned in the commission of a crime, whether present or absent, and whether he directly commits the offense, aids and abets in its commission, or directly or indirectly counsels or procures another to commit the crime. LSA-R.S. 14:24. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending on the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981).

Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428. An individual may only be convicted as a principal for those crimes for |1swhich he personally has the requisite mental state. State v. Pierre, supra. Though intent is a question of fact, it may be inferred from the circumstances. State v. Kahey, 436 So.2d 475, 488 (La.1983). Flight and attempt to avoid apprehension are circumstances from which the jury may infer guilty conscience. State v. Fuller, 418 So.2d 591, 593 (La.1982).

In several cases, this Court has found that the evidence was sufficient to establish that defendant was a principal to armed robbery when he acted as the driver of the getaway vehicle. In State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122, juvenile J.B. was walking near his home when a black Dodge Neon occupied by two black males pulled up alongside him. The passenger in the Dodge jumped out of the vehicle with a gun, placed it at the victim’s head, and demanded money. J.B. only had a key ring, which he gave to the robber. The vehicle drove away, and J.B. was able to see the license plate.

Defendant, the driver of the vehicle, was convicted of armed robbery. The victim testified that defendant transported the gunman to and from the scene, that defendant appeared to keep watch during the commission of the crime, and that defendant took no actions to prevent the crime. This Court stated that the factfinders could have reasonably inferred that defendant had the requisite intent to commit the crime in that he aided its commission by acting as the lookout and driver of the getaway car. This Court concluded that a rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant was a principal to armed robbery.

In State v. Jackson, 99-1256 (La.App. 5 Cir. 7/25/00), 767 So.2d 848, two co-defendants entered an apartment wearing disguises, pointed handguns at twelve to fourteen women who were playing cards, and demanded money. The two men took money and jewelry and left. Defendant, the driver of the vehicle, the two cojdefen-dants16 and a fourth man split the stolen cash. After dropping off one of the co-defendants, the remaining three men were involved in a high-speed chase with the sheriffs office. The three men abandoned the car and fled on foot. Defendant was later arrested. The two co-defendants turned themselves in and gave recorded statements indicating that defendant was not only involved in the robbery, but that he planned it and gave them weapons.

Defendant was convicted of eight counts of armed robbery. This Court concluded that the evidence was sufficient to support defendant’s convictions for seven counts of armed robbery, noting that defendant was the driver of the getaway car and was involved in the crime. It stated that, although defendant did not actually participate in the armed robbery, he was a principal to the action.

In the present case, during the robbery, defendant waited for Simms and Falkins in his vehicle which he parked away from the bank in a parking lot near Rite Aid. The record further indicates that the vehicle was sitting at an angle “waiting and ready to go” with the back doors open.

Following the robbery, two men were seen walking fast toward Rite Aid, one of whom had a bag in his hand with red smoke coming out of it. The two men, one of whom was wearing a mask or hood, subsequently entered the parked vehicle, and defendant immediately drove away from the scene. After the police pulled the vehicle over, defendant got out and attempted to escape by jumping over the side of the expressway. Numerous items of physical evidence found in the vehicle linked defendant to the armed robbery, including, but not limited to, a black bag with red dye on the inside containing the money stolen from the bank, two guns fitting the victims’ descriptions along with ammunition, a black knit ski mask, and a hooded sweat shirt.

The defendant argues that there was no evidence to suggest that he knew the perpetrators were going to commit an armed robbery or that they had committed an|17armed robbery. However, the record shows that the factfinders could have reasonably believed that defendant knew Simms and Falkins were going into the bank to rob it. Simms did not park in front of the bank, but rather away from the bank with the back doors open, and he drove away immediately after the two men got into the vehicle. A gun was found in the front of the vehicle indicating that defendant was a conscious participant whose role in the crime was to drive the getaway car. Additionally, the record indicates that Simms and Falkins were not strangers to defendant, but were in fact, his brothers. Based on the foregoing, the factfinders could have reasonably inferred that defendant had the requisite intent to commit the crime in that he aided its commission by acting as the driver of the getaway car. Accordingly, we find that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty as a principal to armed robbery, and the first error asserted by defendant Simms in his pro se brief is without merit.

In the second and final argument raised by defendant Simms in his pro se brief, he argues that the trial court erred by denying his motion for a mistrial and in overruling the objection made by defense counsel during closing argument. He contends that the prosecutor’s closing argument was improper, prejudicial, and in violation of LSA-C.Cr.P. art. 774, because the prosecutor implied that the defense had a duty to adduce testimony from a witness at the doctor’s office, and because the prosecutor implied that he had excluded any hypothesis of innocence as to why defendant attempted to flee from the arresting officer.

The first exchange at issue occurred during the state’s rebuttal argument as follows:

MR. PACIERA [The prosecutor]:
And, no matter how hard Mr. Regan tried to get her to say it, that car wasn’t parked in front of a doctor’s office, it was parked on a [ ^sidewalk in a totally illogical place where it would have been in the way. And, if it had been there for him to go in the doctor’s office, why didn’t you hear somebody from the doctor’s office come here and say, oh, yeah, Mr. Simms had a doctor’s visit that day? MR. REGAN [Defense counsel]:
Judge, there’s an objection at this point. May we approach the Bench?
MR. PACIERA:
I will say that they don’t have that duty.
THE COURT:
Let him state — Come to the Bench and let him state his objection.
(THE FOLLOWING IS A CONFERENCE AT THE BENCH.)
MR. REGAN:
The objection is that counsel cannot suggest the defendant should call witnesses at this point. I did not put on a case, there were no witnesses to put on, and for counsel to suggest I should have called the doctor or anybody else is improper. I object, and I move for a mistrial.
MR. PACIERA:
And I will tell the jury at this point that they don’t have a duty to put on any evidence, any witnesses, and they can’t hold it against them, but they’re asked to use their common sense.
MR. REGAN:
The damage is already done, Your Honor.
THE COURT:
I’m going to deny the motion for a mistrial. But I’m going to ask Mr. Paci-era to make that statement.
MR. PACIERA:
Yes, Your Honor.
MR. REGAN:
Your Honor, I would ask, and the trilogy requires me to ask, that the Judge instruct the jury that they’re to disregard that argument and advise. Not Mr. Paciera but the Court should advise 119them now that that’s improper, and there’s no burden on the defendant to call witnesses.
MR. PACIERA:
And my close was interrupted, and I would like to be able to do it for my own continuity.
THE COURT:
Step back.
(END OF BENCH CONFERENCE)
THE COURT:
I’m going to deny the motion request, but I’m going to sustain the objection to the statements. And I just want the jury to be aware of one thing before Mr. Paciera continues with his closing argument, that under the law as I instruct you — and I will do it again in a minute— the defendants are not required by law to call any witnesses or produce any evidence. Okay?
Let’s continue.

The second exchange at issue also occurred during the state’s rebuttal argument:

MR. PACIERA:
And what did Dwayne Simms do when he got caught? First off, he refused to cooperate when the officer told him to get out of the car and come to the police car. He got back in his car, then got out, and, instead of coming back to the police car when he was ordered to do so, he walked to the front of the car and then jumped over. Is that the action of an innocent person? Obviously not.
There is a photograph here — Oh, because one of the things that Mr. Regan said was something about a gun being pointed at his client. Well, I’m not sure what trial he was in, but the trial that took place in this courtroom had no such testimony that—
MR. REGAN:
Excuse me. Judge, I do object. He has to argue from the Record. He said his partner pulled his gun. I object to counsel arguing unless it’s from the Record.
THE COURT:
I overrule the objection.
UMR. REGAN:
Note my objection.
THE COURT:
The jury is to rely upon — the jury heard the testimony, they heard the evidence, and they’re going to be able to rely upon their memories as to what was produced at trial.

LSA-C.Cr.P. art. 774 provides that the scope of closing argument must be limited to the evidence admitted, the lack of evidence, conclusions of fact therefrom and 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. However, even if closing arguments go beyond the scope of LSA-C.Cr.P. art. 774, the errors are harmless unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, 1050, writ denied, 02-866 (La.11/22/02), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003).

The law regarding mandatory mistrials is set forth in LSA-C.Cr.P. art. 770, and the law regarding discretionary mistrials and admonitions is set forth in LSA-C.Cr.P. art. 771.

LSA-C.Cr.P. art. 771 provides as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
121 In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and, except in instances in which it is mandatory, a mistrial is warranted only when trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, 126, writ denied, 00-0908 (La.4/20/01), 790 So.2d 13. Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. Id.

With regard to the first exchange at issue, the prosecutor’s comment that the defense failed to call a witness from the doctor’s office did not warrant a mistrial. The record indicates that defense counsel suggested during the cross-examination of Ms. Pierre that defendant was parked in front of the doctor’s office because he had been inside of that office. During rebuttal, the prosecutor’s comment about the defense’s failure to call a witness from the doctor’s office was simply a response to that suggestion. Further, defense counsel requested an admonition following those comments, pursuant to LSA-C.Cr.P. art. 771, which was given by the trial judge when he informed the jury that the defendant had no duty to call witnesses. Also, the trial judge instructed the jury that the statements and arguments of counsel were not evidence. After reading the argument as a whole and considering the entirety of the record, we do not find that the prosecutor’s statements regarding the defense’s failure to call a witness were sufficient to influence the jury’s verdict. Accordingly, the trial court did not err in failing to grant a mistrial.

With respect to the second exchange at issue, regarding the prosecutor’s comments about the gun during rebuttal argument, the record indicates that defense counsel argued during closing argument that defendant jumped over the side of the 122expressway when the police pulled the gun on him and his co-defendants. Thus, the prosecutor’s rebuttal argument was properly confined to answering the argument of the defendant. LSA-C.Cr.P. art. 774. However, it appears that the prosecutor was incorrect when he stated during rebuttal argument that there was no testimony that a gun was being pointed at defendant. During the cross-examination of Deputy Giron, the deputy testified that, although he did not have his weapon out when he ordered defendant out of the vehicle, his partner did. Deputy Giron further explained that, at the time defendant jumped over the rail, the weapon had been drawn.

Although defense counsel objected to the prosecutor’s comment that there was no such testimony, he did not move for a mistrial or request an admonition. However, the trial judge gave an admonition anyway, stating that the jurors were to rely upon their memories as to the evidence and testimony that was introduced at trial. Further, as was noted above, the trial judge instructed the jury that statements and arguments of counsel were not evidence. Thus, considering the strong circumstantial evidence and the trial judge’s admonition and instruction to the jury, it is clear that the comments regarding the gun did not influence the jury or contribute to the verdict. Accordingly, we find that the prosecutor’s comments regarding the gun were harmless, and this assignment of error is without merit.

In their fourth assignment of error, the defendants ask this Court to review the record for errors patent. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review did not reveal any errors that require corrective action by this Court.

|a ^DECREE

For the reasons set forth above, we affirm the defendants’ convictions and sentences.

AFFIRMED.

      . A third defendant, Larry Simms, was also charged with four counts of armed robbery in the bill of information; however, he is not a party to this appeal.

      . The trial judge did not impose Falkins’ enhanced sentence without benefit of parole, probation, or suspension of sentence, though Falkins' sentence as a habitual offender based on an underlying conviction of armed robbery should be without parole, probation, or suspension of sentence. Nevertheless, this error does not require any action by this Court because LSA-R.S. 15:301.1(C), as interpreted by State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790, 799, imposes these restrictions by operation of law. State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 79, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

      . The correct license plate number was actually "JGP 866.”

      . Det. Carroll identified a photograph of the currency removed from the vehicle. The photograph shows that the currency was covered with red dye.

      . Ms. Domingue testified that the amount of money taken in the robbery was a little less than $20,858, and that all of the money taken in the robbery was not recovered. As stated previously, Det. Carroll testified that $15,839 was found in the back of Dwayne Simms’ vehicle.


author: 11 DREW, J.

text:
    Geraldine W. OUZTS, Plaintiff-Appellee v. SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, Defendant-Appellant.
    No. 38,634-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 29, 2004.

      Neal R. Elliott, Jr., Baton Rouge, for Appellant.
    Culpepper & Carroll, PLLC, by Teresa C. Carroll, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   11 DREW, J.

The Louisiana Department of Health and Hospitals (“DHH”) appeals the district court’s reversal of DHH’s denial of Medicaid benefits. We affirm.

FACTS

In March of 2001, Geraldine Ouzts entered the Baptist Retirement Center. The next year, an application for Long-Term Care (“LTC”) vendor payment benefits under the Louisiana Medicaid Program was made on Mrs. Ouzts’ behalf by her husband, John Ouzts, who was acting as her authorized representative. A determination of Mrs. Ouzts’ eligibility was then instituted.

The Ouztses owned 59 acres of land in Bienville Parish. Mr. Ouzts inherited 39 of these acres in 1974, and he and Mrs. Ouzts purchased the remaining 20 acres in 1982. All of these acres are contiguous to the family home, and the Ouztses own the mineral rights underlying the property. As home property, these acres were not considered a countable resource under the Medicaid regulations.

At issue are the mineral rights underlying the home property, for which the Ouztses have received royalty checks from companies leasing the mineral rights. The Ouztses argued that because the rights arose from exempt land, they were not to be counted as a resource in determining eligibility for LTC benefits. DHH responded that the value of these mineral rights were to be considered as a resource on the grounds that the rights | awere real rights and not subject to the exemption. The mineral rights on the 59 acres were valued at $65,744.35 by DHH. The addition of the value of the mineral rights gave the Ouztses resources of $127,743. This amount exceeded the allowed resource limit of $89,280. Accordingly, the Shreveport Regional Medicaid Office of DHH rejected the application. An administrative hearing to review this decision was held before an administrative law judge (“ALJ”), who affirmed the denial of Medicaid eligibility on the grounds that the mineral rights are not part of the exempt family home but are real property rights.

On March 26, 2003, Mrs. Ouzts filed a petition for judicial review. The district court reversed the ALJ decision and remanded the matter to DHH for a redeter-mination of eligibility. DHH appeals.

DISCUSSION

The Medicaid Program, 42 U.S.C. § 1396, et seq., authorizes federal financial participation in state medical assistance plans that provide funds to persons whose income and resources are insufficient to pay for the cost of necessary medical treatment. Case of Hamner, 427 So.2d 1188 (La.1983); Estate of Messina v. State, Dept. of Health and Hospitals, 38,220 (La.App.2d Cir.3/3/04), 867 So.2d 879.

States that participate in the program are required to institute reasonable standards for eligibility determination that are consistent with the objectives of the assistance program [42 U.S.C. § 1396a(a)(17)(A)], and Lthese standards must consider only resources and income available to the applicant and provide a reasonable method of evaluation of such resources and income [42 U.S.C. § 1396a(a)(17)(B) & (C) ]. Hargrove on Behalf of Hargrove v. State, Dept. of Health and Hospitals, 96-1072 (La.App. 1st Cir.3/27/97), 692 So.2d 30, writ denied, 97-1072 (La.6/13/97), 695 So.2d 983.

DHH argues on appeal that the trial court erred in failing to follow the standard of review set forth in La. R.S. 49:964(G), which governs the judicial review of a final decision or order in an agency adjudication. That statute provides:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

|4When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Blair v. Stalder, 99-1860 (La.App. 1st Cir.1/31/01), 798 So.2d 132; Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121 (La.App. 1st Cir.2/20/98), 710 So.2d 799, writ denied, 98-0780 (La.5/8/98), 719 So.2d 51.

DHH contends that the trial court failed to state the enumerated ground under La. R.S. 49:964(G) upon which it based its reversal of the agency determination. Such a statement was unnecessary as the obvious basis for the reversal was the trial court’s different interpretation of the Medicaid regulations pertaining to Mrs. Ouzts’ eligibility. In other words, the trial court presumably believed that the administrative decision was “affected by other error of law.”

The standard of review of a legal determination by DHH has been addressed by the First Circuit:

The question of whether or not- the assets comprising the Douglas Sanders Trust can be considered as a resource for determining Douglas’ Medicaid eligibility clearly requires an interpretation of statutory law and an application of the law to the facts of this case. Thus, the Department is incorrect in its assertion that its prior resolution of this question constitutes a finding of fact which must be afforded great deference upon review. Appellate review of questions of law is simply review |Rof whether the lower court was legally correct or legally incorrect. Oliver v. Department of Public Safety & Corrections, Office of Alcoholic Beverage Control, 94-1223, p. 3 (La.App. 1st Cir.6/23/95), 657 So.2d 596, 597. If the district court was correct in its determination that the Department’s decision to discontinue Medicaid benefits was contrary to law and public policy, its reversal of the Department’s decision would be appropriate.

Sanders v. Pilley, 96-0196 (La.App. 1st Cir.11/8/96), 684 So.2d 460, writ denied, 97-0352 (La.3/21/97), 691 So.2d 90.

As La. R.S. 49:964(G) is written, any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Blanchard v. Allstate Ins. Co., 99-2460 (La.App. 1st Cir.10/18/00), 774 So.2d 1002, writ denied, 01-0285 (La.3/23/01), 787 So.2d 997.

DHH next contends that the trial court improperly interpreted and applied the applicable Medicaid policy. Section I of the Medicaid Eligibility Manual (“Manual”) sets forth the eligibility factors to be considered, and Section 1-1634 of the Manual governs the types of resources. Titled “Property,” Section 1-1634.28 states:

Ownership of Property
Property can generally be divided into two categories:
• movable property, and
• real property (immovable property).
Real Property Rights
Count as a resource the value of real property rights. These rights are resources for which separate values can be determined.
Real property rights include:
In*surface rights, including timber rights and easements,
• water rights,
• mineral rights to oil, natural gas, gravel, sand, coal, and salt,
• usufruct, and
• remainder interest.
* * *
Types of Property
For Medicaid purposes, property includes:
• business assets,
• home property,
• * * household goods and personal effects, and
• other real property.
Home Property
Home property includes:
• the house or lot which is the usual residence,
• all contiguous property,
• any other buildings on the home property.
Note:
Definition of Home Property: property in which he or she has an ownership interest and that serves as his or her principal place of residence.
Property is contiguous to the residence if it is touching the residential property (even corner to corner) and is not separated by property owned by others. Property separated by a public right of way, such as a road, is considered contiguous.

The acreage owned by the Ouzts-es as separate and community property qualifies as home property that is not counted as a resource because Mr. Ouzts lives there. Section 1-1634.28 states, in part:

|7Po not count home property if the applicant/recipient is living:
• in the home,
• away from home temporarily because of natural disaster, such as flood,
• away from home because of his medical condition, and
— is keeping this home available, and
— intends to use it as his home when his condition permits, or
• away from home, and
— the spouse and/or dependent relative lives there, or
— an SSI eligible has joint ownership of the home, or
— it is income producing and meets the $6,000/6% return rule. Refer to Other Real Property.

Because the mineral rights are under land that is excluded home property, the rights should likewise be excluded. Of course, if the mineral rights were under land that was not home property, they would be a countable resource as “other real property” rights.

A mineral right is an incorporeal immovable. La. R.S. 31:18. The value of the mineral rights in this instance is their capacity to produce income. Section 1-1610 of the Manual states, “Resources are cash assets or those assets which can be eon-verted to cash to meet basic needs.” The mineral rights would have produced cash in the form of the royalty checks received by the Ouztses.

The income received from the mineral rights was apparently considered by DHH when determining Mrs. Ouzts’ eligibility. We note that when Mr. Ouzts completed the Louisiana Medicaid Program application for long-term care, the application contained a section which asked for income information, including “Interest/Dividends/Royalties.” (Our emphasis.) |sMr. Ouzts wrote that he received approximately $2,200 per month from Cody Energy and Philips Petroleum. The Ouztses ultimately received $47,704.35 in income from the mineral rights in 2002. Moreover, this income from 2002 presumably would have already been reflected in some of the resources counted against them, despite the ALJ’s statement in his “summary of the evidence” that the $47,704.35 is “irrelevant in determining the amount of resources.” These resources included $1,913.36 in a checking account and $29,095.39 in a savings account, which surely would have included some of the royalty checks already received.

DHH further contends that the mineral rights are a countable resource because the equity value of the home property exceeds the $6,000/6% test. The $6,000/6% Rule provision in Section I-1634.28 states:

If property not excluded as trade or business property produces income at an annual net rate of 6% or more of the equity value, up to $6,000 of the equity value may be excluded.

This is apparently a reference to an earlier provision in Section 1-1634.28 which states, in part:

Business Assets (Property Essential For Self-Support)
Effective May 1, 1990, exclude from resources all property used in a trade or business and all property used by an employee in connection with employment as property essential to self support.

However, the $6,000/6% rule would not apply to home property in this instance. As stated earlier, home property is not counted if the applicant is living away from home, and the spouse lives there or it is income producing and meets the $6,000/6% return rule. Accordingly, the 19home property is excluded because Mr. Ouzts lives there, even if it produces income and runs afoul of the $6,000/6% rule.

DECREE

With costs of $447.31 assessed against The Louisiana Department of Health and Hospitals, the judgment is AFFIRMED.

      . In February of 2002, 4.53 acres were donated to a daughter, but the mineral rights on this tract were reserved. We note that in the Administrative Law Judge's summary of the evidence, he considered all of the 59 acres to be exempt, although he later referred to 54.47 acres as home property in his legal analysis and conclusions.

      . This amount was reached by multiplying $26,297.74, the royalties received during the first nine months of 2002, by 2.5.

      . The Ouztses had a checking account with a balance of $1,913.36 as of September 2002, and Mr. Ouzts had additional resources that were valued at $60,085.39.

      . La. R.S. 13:5112 requires that court costs assessed against a state department are to be expressed in a dollar amount in the appellate court's decree.