author: | t CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Simmie L. ANDERSON, III, Appellant.
    No. 36,969-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      J. Wilson Rambo, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Brian Har-kins, Assistant District Attorney, for Ap-pellee.
    Before BROWN, CARAWAY and DREW, JJ.
   | t CARAWAY, J.

After a bench trial, Simmie Anderson (“Anderson”) was convicted of the crimes of possession of marijuana and phencycli-dine (“PCP”) with intent to distribute in violation of La. R.S. 40:966 and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. Anderson was adjudicated a second felony offender and received concurrent sentences of fifteen years at hard labor without benefit of probation or suspension of sentence on the two drug counts and ten years at hard labor, without benefit of parole, probation or suspension of sentence on the firearm conviction. After the denial of his timely motion for reconsideration of sentence, Anderson appealed raising as error, among other matters, the sufficiency of the evidence of his constructive possession of the drugs and gun. For the following reasons, we affirm the convictions and sentence imposed for the felon possession of a firearm conviction. However, we set aside the habitual offender adjudication and sentences for the possession of marijuana and PCP with intent to distribute convictions and remand for resentencing and adjudication since enhancement under the habitual offender law in this case may apply to only one of those convictions.

Facts

On November 3, 2000, the Metro Narcotics Unit of the Monroe Police Department executed a search warrant for a house owned by Anderson. No one was at the residence. During the search of the house, | ¡^police found what laboratory tests later determined to be nineteen grams of marijuana contained in two small plastic bags, seventy-two grams of PCP contained in a small bottle and placed in a cowboy boot, a bottle of Ivomel, a syringe and two needles found in the refrigerator, a partially smoked marijuana cigarette, one package of More brand cigarettes, two types of scales and one gun. The police also found mail belonging to Anderson and other personal effects. The seized gun was a Lor-cin .380 caliber pistol and was found under the mattress of a bed in the home. On November 15, 2000, Anderson called police and indicated he wanted to turn himself in. Thereafter, Anderson was arrested. At the time of his arrest, Anderson listed the address of the raided residence as his home address.

Discussion: Sufficiency of the Evidence

On appeal, Anderson argues that the evidence was insufficient to convict him because the state failed to prove that he resided in the residence. He thus contests the finding of his constructive possession of the drugs and the gun. He also insists that the state did not establish the requisite intent to distribute the marijuana.

In brief, Anderson concedes that he has failed to file a motion for post-judgment verdict of acquittal. The question of sufficiency of the evidence is properly raised by such a motion. La. C. Cr. P. art. 821. Nevertheless, this court will consider sufficiency arguments even in the absence of such a motion. State v. Henry, 36,217 (La.App.2d Cir.8/14/02), 823 So.2d 1064. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing |3court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for a sufficiency-of-evidenee claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Vir ginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant is guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists 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. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992). For circumstantial evidence to convict, it must exclude every reasonable hypotheses of innocence. La. R.S. 15:438.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984).

The crime of possession with intent to distribute a Schedule I drug requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the .specific intent to distribute it. State v. Dennis Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201; State v. Marshall, 02-1067 (La.App. 5th Cir.2/25/03), 841 So.2d 881

Regarding the element of possession of a controlled dangerous substance, the state need not prove the defendant was in physical possession of the narcotics found; constructive possession is sufficient to support a conviction. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge can be inferred from the circumstances. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. A determination of possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that the drugs were in the area, his relationship with the person found to be in actual possession, his [.¡access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. Id. A subject can have constructive possession if he wilfully and knowingly shares with a companion the right to control the drugs. State v. Marshall, supra.

It is unlawful for any person who has been convicted of any violation or attempted violation of the Uniform Controlled Dangerous Substances Law, which is a felony, to possess a firearm or carry a concealed weapon. La. R.S. 14:95.1. The state can prove possession of a firearm by a convicted felon by either actual or constructive possession. Constructive possession of a firearm is demonstrated when the state shows the firearm was subject to defendant’s dominion and control. State v. Ean Johnson, 36,854 (La.App.2d Cir.3/14/03), 839 So.2d 1247. A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature and even if the control is shared. State v. Neeley, 30,008 (La.App.2d Cir.12/23/97), 704 So.2d 443, 447. La. R.S. 14:95.1 requires only general criminal intent, which means that the circumstances indicate that the accused “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2); State v. Neeley, supra at 448.

The state’s case for constructive possession of the drugs and gun centered on the testimony of Detective Mark Johnson (“Johnson”), the Monroe police officer who executed the search warrant at the residence and discovered the drugs in the home. Johnson testified that his search of the | Jiouse produced mail and loan papers in the name of Anderson and Anderson’s photograph. Johnson also testified that he found only male clothing in the home, including three or four sets of City of Monroe Water Department uniforms which bore Anderson’s first name. In support of the officer’s testimony, the state introduced into evidence copies of the documents and photograph found in the house. These included loan documents reflecting that Anderson alone purchased the McGuire Avenue property. Additionally, police found a hospital bill, addressed to Anderson at the McGuire Avenue residence and postmarked October 16, 2000. The Lorcin .380 automatic pistol was purchased on December 5, 1996 by Anderson and registered in his name. The gun was located under the mattress of the bed in the master bedroom. The state also introduced into evidence a piece of mail addressed to Anderson at the McGuire Avenue location and postmarked October 31, 2000, as well as a water bill for the McGuire Avenue home in the name of Anderson and dated October 13, 2000.

In support of his claim that he had no knowledge regarding the drugs and gun, Anderson presented the testimony of three witnesses who stated that he did not reside at the house at the time of the raid. These witnesses included Anderson’s brother, Ron Brothers, and girlfriend, Ne-dra Jones. Additionally, a neighbor of Jones, Irene Dennis, also testified. Brothers stated that Anderson never stayed at the house where the drugs were found at 1511 North McGuire because he lived with Nedra Jones on 8th Street. Brothers also claimed that on August 21, 1997, Anderson sold him the |7Lorcin .380 found in the house. Anderson introduced into evidence a document which purported to memorialize the sale. Brothers also explained that Anderson and his father bought the McGuire Avenue house together. Anderson’s father, who was also called as a defense witness, confirmed Brothers’ statement regarding his co-ownership of the house, but could provide no information as to whether or not Anderson resided there. Nedra Jones also testified that Anderson lived with her on 8th Street. She stated that they were living together on November 3, 2000. Dennis testified that Anderson lived with Jones from October of 1999 until the time of trial.

Anderson also testified. He admitted that he knew he should not own a gun after his 1997 conviction and therefore sold his Lorcin .380 to Brothers in 1997. Anderson stated that he lived with Jones at her 8th Street address since December of 1999. He admitted to signing the deed on the McGuire Avenue house, but claimed that he merely acted as overseer of the property for his father. Anderson testified that the last time he had been to the McGuire Avenue house was a week before November 3, 2000 to take care of a problem with the security alarm at the residence. He denied having any pictures of himself or work uniforms at the house. On cross-examination, Anderson admitted that when he bonded out of jail on the present charges, he gave the North McGuire address as his residence.

A final defense witness, Tanya Ard, was Anderson’s ex-girlfriend and mother of his two children. She stated that she left Anderson in December, 1999. Nevertheless, she and the children stayed off and on overnight at Anderson’s McGuire Avenue house since 1999 and recalled spending the |snight at the house in October and early November of 2000. Ard also stated that Nedra Jones and Anderson’s brothers would stay there too. Ard testified that Anderson worked at the Monroe City Water Department. She had previously observed PCP in a vanilla extract bottle in the McGuire Avenue home and had in fact seen PCP the week before police executed the search warrant. She knew that Anderson kept the PCP in his bedroom closet in a vanilla extract bottle placed in a shoe box. She also observed scales under the cabinet in the house; she saw Anderson weigh marijuana and crack on the scales. Ard recalled Anderson selling drugs between August and November of 2000. She stated that Anderson sold drugs from McGuire Avenue. She also knew Anderson had a Lorcin .380 under the mattress and that the gun was registered in Anderson’s name.

Comparing the state’s evidence with the defense testimony, there exist opposing views of Anderson’s dominion and control over the McGuire Avenue residence and his constructive possession of the seized drugs and gun. Nevertheless, the testimony of the defense witnesses regarding Anderson’s nonresident status for the McGuire Street house is contradicted by the presence of numerous personal effects suggesting Anderson’s residency in the home. The search of the residence revealed that only one bedroom contained clothes and indicated that only one person resided there. The clothes included Anderson’s work clothing exhibiting his name. Additionally, Officer Johnson’s testimony revealed that his search of the residence was prompted by information from a confidential informant who identified Anderson’s dealings with PCP and marijuana and his possession |9of the .380 handgun. Despite its hearsay character, an informant’s tip, when proven accurate, may be used by the trier-of-fact in support of the conviction. State v. Butler, 99-1794 (La.5/1/00), 760 So.2d 322. Finally, it is significant to note that the trial court indicated in its oral ruling that little credibility could be given to the ex-girlfriend’s testimony. After claiming her access to the residence, her exculpatory accusations against Anderson were properly recognized as untrustworthy.

Faced with conflicting evidence concerning Anderson’s dominion and control over the residence, the trial court could make credibility determinations rejecting the defense testimony which suggested that other persons had more direct access to the residence. We decline to disturb these credibility determinations. When credited by the court, Johnson’s testimony is sufficient to prove beyond a reasonable doubt that Anderson resided in the house with dominion and control over the drugs and gun so as to establish proof of constructive possession. Therefore, we reject this portion of Anderson’s argument.

When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. State v. Dennis Johnson, supra. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. Id. Factors useful in determining whether the state’s circumstantial evidence is sufficient to prove intent to distribute 1 ^include (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant’s actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. Id.

In proof of Anderson’s intent to distribute marijuana, the state qualified Officer Johnson as an expert in the distribution of narcotics. He stated that the street value of the marijuana seized in the home was $40.00. He had earlier testified that the total amount of marijuana seized in the plastic bags was 19 grams. He explained that at the street level, marijuana is found in clear plastic bags or marijuana cigars. He testified that in distribution cases, it is very common to find scales because the drug dealer wants to make sure he is distributing the right amount of marijuana. As part of his expertise, Johnson was able to identify the smell of marijuana. At trial, he smelled the distinct odor of marijuana on one of the scales seized in the McGuire Avenue home. Johnson explained that users do not weigh marijuana, but dealers do. While the marijuana was packaged in a manner consistent with personal use, it was found in conjunction with other things like the scale and other packaging material consistent with street level distribution. In fact, the marijuana seized in this case was packaged in a manner consistent with intent to distribute. Finally, as indicated above, |1T Johnson testified that he had received information from other drug suspects and confidential informants that Anderson was distributing marijuana.

When viewed in the light most favorable to the state, we find this evidence sufficient to prove that Anderson possessed the requisite intent to distribute marijuana. The expert testimony is adequate to prove that the marijuana was packaged in a manner consistent with intent to distribute. Additionally, the evidence establishes that the marijuana was located near scales which were obviously used to measure the drug. The marijuana was found in association with the large quantity of PCP, which further indicates distribution activity. When viewed in its entirety, we find this circumstantial evidence sufficient to establish that Anderson possessed the specific intent to distribute marijuana.

Habitual Offender Adjudication

On appeal, Anderson challenges the use of his prior conviction for attempted possession of cocaine as a predicate offense because this offense was relied upon by the state to support his conviction for possession of firearm by a convicted felon. Thus, he contends that the state illegally used the same felony conviction to enhance punishment twice.

On February 8, 2002, the state charged Anderson as a second felony offender, using his 1997 conviction of attempted possession of cocaine to enhance only the convictions for possession of PCP and marijuana with intent to distribute. Notably, the same attempted possession of cocaine conviction formed the underlying felony in the firearm possession conviction. On April 22, 2002, Anderson sought to quash the habitual | ^offender bill on the same grounds now urged on appeal. After hearing arguments prior to the habitual offender hearing, the trial judge denied the motion. We find no error in this ruling.

In this case, the 1997 drug conviction was proven as an element of Anderson’s firearm conviction. That conviction had nothing to do with the subsequent enhancement of sentences for the two drug convictions. The firearm conviction was not the subject of the state’s habitual offender bill, only the two drug convictions. We are aware that jurisprudence holds that the La. R.S. 14:95.1 firearm conviction may not be used to enhance the penalty for a subsequent conviction if the underlying felony used as an element in the firearm conviction is also used in the same multiple bill. State v. Hymes, 513 So.2d 371 (La.App. 4th Cir.1987). Nevertheless, the present firearm conviction was not used in Anderson’s multiple bill/habitual offender proceeding. Therefore, we find no merit in Anderson’s argument regarding an impermissible double enhancement of punishment.

We do note as error patent, however, that Anderson could not be adjudicated a habitual offender and receive enhanced sentences on the two drug offenses which arose out of one criminal episode. The jurisprudence of Louisiana precludes habitual offender enhancement of more than one conviction obtained the same date arising out of a single criminal act or episode. Multiple convictions obtained the same day for offenses arising out of one criminal episode should be considered as one conviction for purposes of applying the habitual offender law in sentencing. State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991). Accordingly, we set aside the | ^adjudications and sentences for the drug offenses, and remand the case to the district court for resentencing on these two convictions, with adjudication and sentencing as a habitual offender on only one of the drug convictions.

Excessive Sentence

Anderson also contends that the remaining sentence imposed by the trial court for his possession of a firearm by a convicted felony is excessive. For this offense, the trial court imposed the statutory minimum sentence of ten years at hard labor. Specifically, Anderson contends that the trial court failed to consider his work history, property ownership and law-abiding life as mitigating factors in sentencing and erred in denying his request for downward departure from the mandatory sentencing provisions due to his limited intellectual ability.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a reviewing [ ucourt may not set aside a sentence. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

It is well established that the determination and definition of acts which are punishable as crimes is a purely legislative function. It is the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. Courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Dor- they, supra; See also State v. Walter Johnson, 97-1906 (La.3/4/98/), 709 So.2d 672.

In the context of the habitual offender law, the supreme court has stated that in order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that:

[He] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Walter Johnson, supra at 676.

On appeal, Anderson argues that these principles also apply to his sentencing on the felon possession of a firearm conviction. We agree that such reasoning can be read to extend to any legislatively-mandated minimum sentence. Nevertheless, in this case, we find no merit to Anderson’s argument.

Prior to imposing sentence, the court stated that it had reviewed a pre-sentence investigation report (“PSI”) which included Anderson’s social and [1Rcriminal history. The court also considered La. C. Cr. P. art. 894.1 factors as guidance in determining whether downward departure from the statutory minimum sentences was appropriate. In addition to Anderson’s prior 1997 conviction, the court also considered Anderson’s previous conviction for DWI and his arrests for traffic matters and disturbing the peace. In reviewing the Article 894.1 factors, the court determined that in this case, any lesser sentence than that imposed would deprecate the seriousness of the gun possession offense involved.

In mitigation, the court considered Anderson’s lack of education which is the basis for Anderson’s argument that he was the exceptional defendant for which downward departure from the sentencing guidelines was appropriate. The court pointed out that even though Anderson did not graduate from high school, documentation in Anderson’s PSI showed Anderson to be an average student who scored well on the California Achievement Test. A committee also determined that Anderson would do well in a GED program. The court also considered Anderson’s work history in mitigation which showed his ability to keep a job. The court also regarded the testimony of Anderson’s brother and mother which was presented at the sentencing hearing. Despite these factors, the court declined to depart from the mandatory minimum sentencing provisions.

The documentation mentioned by the court belies Anderson’s claim that he has limited intellectual capabilities which make him the exceptional defendant for which downward departure is appropriate. Clearly, the abilities which he possessed not only qualified him for a GED program, but | ^allowed him to perform satisfactorily in a work environment. Even if considered in mitigation, we agree with the trial court’s determination that these factors are outweighed by the seriousness of the offenses and Anderson’s obvious propensity toward drug activity which remained unaffected by prior probationary treatment. To depart downward from the mandatory sentencing provisions would, in this case, deprecate the seriousness of the offense involved. Accordingly, we find no merit to Anderson’s claim that the trial court erred in failing to depart from the mandatory minimum sentencing provisions of La. R.S. 14:95.1. This determination, however, in no way precludes further review of Anderson’s sentence upon his re-sentencing in accordance with this opinion.

Conclusion

For the foregoing reasons, we affirm Anderson’s three convictions and the sentence imposed for the firearm conviction. We vacate the habitual offender adjudication and sentences on the two drug charges and remand the case to the trial court for a habitual offender adjudication and sentence on only one of the drug charges and resentencing on the other drug conviction.

CONVICTIONS AFFIRMED; SENTENCE IMPOSED FOR POSSESSION OF A FIREARM BY A CONVICTED FELON AFFIRMED; HABITUAL OFFENDER ADJUDICATION SET ASIDE; REMANDED FOR FURTHER PROCEEDINGS AND RESENTENC-ING.

      . On November 20, 1997, Anderson pled guilty to attempted possession of cocaine and received a suspended two year sentence.


source: Caselaw Access Project

author: 1 .PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Latroy HOWARD, Appellant.
    No. 36,929-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Louisiana Appellate Project by J. Wilson Rambo, Paula Corley Marx, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert Randall Smith, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   1 .PEATROSS, J.

Defendant, Latroy Howard, was charged with one count each of attempted second degree murder, in violation of La. R.S. 14:27 and La. R.S. 14:30.1, and armed robbery, in violation of La. R.S. 14:64. Subsequently, the State agreed to accept Defendant’s guilty plea to reduced charges of aggravated battery, in violation of La. 14:34, and simple robbery, in violation of La. R.S. 14:65. The trial court imposed on Defendant the maximum authorized sentences of ten years at hard labor for the offense of aggravated battery and seven years at hard labor for the offense of simple robbery. Defendant was ordered to serve the sentences consecutively. Defendant moved for reconsideration of his sentences, but this motion was denied. Defendant appeals the sentences as excessive and contends that the court erred in directing them to be served consecutively. For the reasons stated herein, we affirm.

FACTS

On December 7, 1999, Walter Downey (“Downey”) was working alone in the Cash Quick Pawn Shop located in Haughton, Bossier Parish, Louisiana, when he was shot, beaten and robbed by Defendant and his accomplice. At approximately 9:30 a.m. on the day of the robbery, Defendant entered the store and asked Downey if he could look at an electric drill. Downey escorted Defendant to the rear of the store where a tool display was located. While in the back of the store, Downey heard a second person enter the store. Downey went to the front of the store and observed Defendant’s accomplice, Roy Griffin (“Griffin”). Griffin had | ^previously been a customer of the store, so Downey recognized and acknowledged him. Defendant lured Downey back to the rear of the store where Defendant then pulled out a pistol, pushed Downey to the floor and began striking him over the head with the pistol. Defendant then fired two shots at Dow-ney. One shot struck Downey and caused a non-fatal wound to the back of his head. While Defendant was in the back of the store with Downey, Griffin was stealing jewelry from a display case in the front of the store.

After the second shot, Griffin yelled at Defendant not to kill Downey because he (Griffin) could not find any money. Defendant grabbed Downey, pulled him to his feet and brought him to the front of the store. Defendant and Griffin forced Dow-ney to open a safe that was behind the counter at the front of the store, while threatening to kill him if he did not obey their commands. After the safe was open, Downey was pushed to the floor and was then beaten with the butt of a shotgun that had been propped up against a wall in the store. Before exiting the store, Defendant knocked a video surveillance camera off the wall and took it with him. Defendant and Griffin then fled the store, taking the victim’s wallet and over $12,000 in cash, jewelry and other items. When police investigators arrived, they found Downey bleeding from the back of his head and semiconscious. There was a large amount of blood throughout the area behind the counter. [3 Downey was, however, able to describe his assailants to the police before he was airlifted to LSU Medical Center in Shreveport.

After the robbery, Griffin filed a change of address form with the U.S. Postal Service, attempting to reroute Downey’s mail to an address on Highway 164 in Haugh-ton in order to gain access to credit cards that Griffin had ordered in Downey’s name. Bossier Parish detectives, however, discovered the attempt to change Dow-ney’s address and knew that two people, Emma Dorch (“Dorch”) and Ray Anthony Griffin, had previously lived at the Highway 164 address. Griffin met the description of one of Downey’s assailants. Police investigators monitored the change of address activity and later received calls from a couple of Downey’s current credit card providers who said that someone was attempting to use Downey’s credit cards at locations in Shreveport and Bossier City.

On December 23, 1999, police investigators received information from one of the credit card providers that someone had called the company attempting to change the address on one of the credit cards to the Highway 164 address in Haughton. The police traced the call to a house on Michigan Street in Shreveport and determined that the telephone number was listed under the name Joseph Griffin. A search warrant for the Michigan Street address was obtained and executed by Bossier Parish detectives and Shreveport Police detectives. Both Dorch and Griffin were present at the Michigan Street address when the search was conducted. During the search, Rpolice investigators found two credit cards in Downey’s name in Griffin’s wallet, numerous pawn tickets with a large amount of jewelry which matched the description of some of the stolen jewelry from Downey’s store and several receipts from K-Mart for items that were purchased with credit cards belonging to Downey. The pawn tickets were signed by either Dorch or Griffin. Griffin was arrested and both Dorch and Griffin gave statements which implicated Defendant in the robbery. An arrest warrant was issued for Defendant and he was arrested at his sister’s residence in Shreveport on December 30,1999.

A sentencing hearing was held in July 2001 in Griffin’s case. The trial court heard a victim impact statement from Downey’s daughter, who testified that, as a result of the robbery, her father had begun to suffer back pain, dizzy spells, nausea and a change in personality, all of which were likely to be permanent. She also stated that Downey suffered economic damage because his business had declined by 40 to 45 percent, as people were afraid to patronize the store due to the robbery. She testified that her father had lost over $14,000 in cash and property during the robbery. In addition, the rerouting of Downey’s mail had negatively affected his credit record because of missed bill payments.

Griffin was charged with attempted second degree murder and armed robbery, but agreed to plead guilty to armed robbery in exchange for dismissal of the attempted murder charge. He was sentenced to serve 40 years at hard labor, which this court affirmed in an unpublished opinion.

In As previously stated, Defendant was charged with one count each of attempted second degree murder and armed robbery, but the State agreed to accept Defendant’s guilty plea to reduced charges of aggravated battery and simple robbery. Defendant pled guilty to the reduced charges on October 8, 2001, and was sentenced on June 10, 2002. At the sentencing hearing, both Defendant’s mother and his GED teacher at the Bossier Parish jail testified. Dow-ney’s daughter also testified.

The trial judge imposed on Defendant the maximum authorized sentences of ten years at hard labor for the offense of aggravated battery and seven years at hard labor for the offense of simple robbery with the sentences to run consecutively. Noting that Defendant could have received up to 149 years at hard labor under the original charges filed against him, the trial judge based the sentences in particular on Defendant’s pre-sentence investigation report and the facts of the case. The trial judge specifically found the sentences appropriate under La. C.Cr.P. art. 894.1, noting that there would be an undue risk that, if Defendant was given a suspended sentence or probation, he was likely to commit another crime; that Defendant was in need of correctional treatment or a custodial environment that could best be provided by commitment to an institution; and that a lesser sentence would deprecate the seriousness of the crime. The trial judge further noted that Defendant’s conduct during the commission of the crime manifested a deliberate cruelty to the victim; that Defendant knew or should have known that the victim was particularly vulnerable; that |fiDefendant created a risk of death or great bodily harm during the commission of the offenses; that Defendant used threats of or actual violence in the commission of the offenses; that the offenses resulted in a significant permanent injury and a significant economic loss to the victim and his family; and that a dangerous weapon was used in the commission of the offenses. Defendant was ordered to serve his sentences consecutively.

Defendant filed a timely motion with the trial court to reconsider his sentence, claiming that his sentences were excessive and that Defendant should have been ordered to serve his sentences concurrently. Defendant argued that the trial judge did not take into account Defendant’s age (17) when the offenses were committed and that Defendant is the father of a young son whom Defendant will not be able to support financially or emotionally if he is incarcerated for 17 years. Defendant also asserted that the trial judge did not take into account his lack of any prior felony convictions. The trial judge denied the motion to reconsider the sentence. Defendant now appeals. On appeal, Defendant raises the following assignments of error:

1. The Honorable Trial Court erred in imposing upon Appellant excessive sentences;
2. The Honorable Trial Court erred in denying Appellant’s Motion to Reconsider Sentence;
3. The Honorable Trial Court erred in imposing upon Appellant consecutive sentences for conduct based on the same act or transaction, or constituting parts of a common scheme or plan, without the particular justification required by prevailing jurisprudence for this action;
4. The Honorable Trial Court erred in fashioning Appellant’s punishment by failing to give adequate consideration and appropriate weight to the presence of 17certain mitigating circumstances in contravention of the requirements of La.C.Cr.P. art. 894.1; and
5. The Honorable Trial Court erred in imposing upon Appellant maximum sentences.

DISCUSSION

The test imposed by the reviewing court in determining excessiveness of a defendant’s sentence is two-pronged. First, the record must show the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. It is the goal of La.C.Cr.P. art. 894.1 to provide a factual basis for the sentence imposed, thus providing a record that will allow for a reasoned review of the sentence. State v. Landos, 419 So.2d 475 (La.1982). The trial judge is not required to list every aggravating or mitigating circumstance as long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

The second prong used to determine if a defendant’s sentence is excessive is to examine whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. Id. The severity of an imposed sentence may be assessed with consideration of whether the defendant is allowed to plead guilty to an offense that does not adequately describe his conduct or where a significant reduction in potential exposure to confinement is obtained through advantageous plea bargaining. Id. Absent a showing of manifest abuse of the trial court’s discretion, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,-478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Among the factors to be considered in determining a defendant’s sentence are the defendant’s criminal history [State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986)]; the gravity or dangerousness of the offense [State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), unit denied, 496 So.2d 355 (La.1986)]; the viciousness of the crimes [State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986)]; the harm done to the victims [State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983)]; whether the defendant [flConstitutes an unusual risk of danger to the public [State v. Jett, 419 So.2d 844 (La.1982)]; defendant’s apparent disregard for the property of others [State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987)]; the potential for defendant’s rehabilitation [State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987)]; and whether defendant has received a benefit from a plea bargain [State v. Jett, supra, State v. Adams, supra].

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La.C.Cr.P. art. 883. Concurrent sentences arising out of a single cause of conduct are not mandatory. State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.5/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985). Rather, it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences. State v. Ortego, supra.

Defendant reiterates on appeal that the sentences imposed on him are excessive, that the trial judge faded to adequately articulate his reasons for Imsentence and that the trial judge failed to give sufficient consideration to Defendant’s age at the time of the offenses. Defendant further argues that the trial judge erred in directing the sentences to be served consecutively. After reviewing the record, we do not find that the trial judge committed error.

The trial judge, in the case sub judice, thoroughly examined all the factors in the instant case. Prior to imposing sentence, the trial judge considered both the pre-sentence investigation report and the facts of the case. The trial judge heard testimony from Defendant’s GED instructor, his mother and from the victim’s daughter. He also reviewed the victim’s medical records and noted the benefit Defendant received from his plea bargain. Although Defendant had maintained during his guilty plea that he was not the shooter in this case, the trial judge noted that the victim was certain that Defendant was the shooter.

Defendant had a juvenile record, but no prior felony convictions. He had completed the 8th grade and was working on his GED at the time of sentencing. The trial judge carefully analyzed and gave the proper consideration to the sentencing factors in La.C.Cr.P. art. 894.1. As previously stated, the trial judge determined that there was an undue risk that Defendant would commit another crime if granted probation, that he was in need of correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of the offenses. The trial judge also addressed Defendant’s age and noted that he would still be relatively young when his sentences were completed. The trial judge further In found that Defendant’s conduct manifested deliberate cruelty since the victim was particularly vulnerable due to his advanced age. Defendant had used threats and actual violence during the commission of these offenses, which resulted in significant permanent, physical injury to the victim and in significant economic loss to the victim and his family.

On this record, we do not find constitutional error. Defendant secured a substantial benefit from his plea bargain, which significantly diminished his sentencing exposure from 149 years at hard labor to only 17 years. Due to his young age Defendant had no prior adult criminal history, but the offenses he committed were extremely dangerous and were committed in a vicious manner. The physical harm done to the victim is severe and permanent. Defendant’s disregard for the property and lives of others is readily apparent and he constitutes a risk of danger to the public.

Our review of the record in the ease sub judice shows an adequate factual basis for the sentences imposed on Defendant. The sentences imposed are lawful and neither grossly disproportionate to the severity of the offenses, nor shocking to our sense of justice. Moreover, the trial judge properly addressed the factors in this case and determined that Defendant should serve his sentences consecutively. The trial judge was well within his discretion to make this ruling. There is no showing of an abuse of the trial court’s discretion in the imposition of the sentences here, which, under the facts and circumstances of this case, are not constitutionally excessive. The trial judge sentenced Defendant lawfully and Defendant’s assignments of error have no merit.

| ^CONCLUSION

For the foregoing reasons, the sentences imposed on Defendant Latroy Howard are affirmed.

AFFIRMED.

      . Downey owned the Cash Quick Pawn Shop.

      . Defendant had maintained during his guilty plea that he was not the shooter in this case, but the victim gave a statement to authorities in which he said the younger of his assailants was the shooter. Griffin was 41 years old, while Defendant was 17. Also, as previously stated, the victim knew Griffin as a prior customer.

      . Griffin had taken Downey’s wallet, which contained Downey’s social security card, driver’s license and other pertinent information that would enable Griffin to obtain a credit card in Downey’s name.

      . State v. Griffin, 35,849 (La.App.2d Cir.4/3/02), 817 So.2d 510.

      . A maximum sentence for attempted murder is 50 years. A maximum sentence for armed robbery is 99 years, without the benefit of parole.


author: I .WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Billy Ray SELF, Appellant.
    No. 36,887-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Cary J. Ellis, III, for Appellant.
    Richard P. Ieyoub, Attorney General, Paul J. Carmouehe, District Attorney, Tommy J. Johnson, Shenequa L. Grey, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   I .WILLIAMS, J.

The defendant, Billy Ray Self, was charged by bill of information with driving while intoxicated, third offense (“DWI-3rd”), a violation of LSA-R.S. 14:98. After a jury trial, the defendant was found guilty as charged. The trial court denied an oral motion for post-verdict judgment of acquittal. Thereafter, the defendant was sentenced to serve four years at hard labor, without the benefit of parole, probation or suspension of sentence, with credit for time served. The court also imposed a fine of two thousand dollars plus court costs, and ordered the forfeiture of the vehicle involved. Defendant timely filed for reconsideration of the sentence. As a result, the trial court withdrew the former sentence and ordered defendant’s four-year sentence to be served concurrently with any other sentence imposed. The defendant now appeals, challenging the sufficiency of the evidence to convict and the trial court’s failure to consider the amendment to LSA-R.S. 14:98(G) in imposing sentence. We affirm the defendant’s conviction; however, the sentence is vacated and the case is remanded for re-sentencing.

FACTS

On June 22, 2001, the defendant’s vehicle was seen leaving the scene of a hit-and-run near Joe’s Bar and Grill on East Kings Highway in Shreveport, Louisiana. The police were notified and a description of the vehicle was broadcast over the radio to all police units. A few minutes later, a police officer saw defendant’s truck weaving in traffic and across the center line. The vehicle ran over a curb while the defendant was making a turn. The officer stopped the defendant and commanded him to exit the ^vehicle. The defendant smelled of alcohol. He also had bloodshot eyes, slurred speech and difficulty standing. Defendant refused to submit to field sobriety tests and to the breathalyzer. A DWI task force officer was called to the scene. Both officers believed defendant was under the influence of alcohol. Defendant was arrested for driving while intoxicated. Defendant had two prior convictions for DWI.

DISCUSSION

ASSIGNMENT OF ERROR NO. 1

Sufficiency of Evidence:

By his first assignment of error, defendant contends the evidence was insufficient to support his conviction of DWI-3rd. To support a conviction of driving while intoxicated, the state must prove that the defendant was operating a vehicle, and he was under the influence of alcohol or drugs. State v. Bourgeois, 00-1585 (La.App. 5th Cir.3/14/01), 785 So.2d 848. Additionally, to convict a defendant of driving while intoxicated, third offense, the state must show that the defendant had two other valid convictions. LSA-R.S. 14:98(D).

At trial, the state offered certified copies of the transcripts and minutes of the defendant’s prior two convictions for driving while intoxicated. Certified copies of the transcript of the defendant’s 1998 guilty plea to DWI in Caddo Parish and the bill of information were introduced into evidence. Sharon Bivens, deputy clerk of court, identified the bill of information and pertinent court minutes for the 1998 conviction. Sergeant Owen McDonnell, a fingerprint analysis expert, matched the Lfingerprints on the bill of information to fingerprints taken from the defendant. Additionally, certified copies of the court minutes, a transcript of the guilty plea and the affidavit charging the defendant with DWI in 1999, in Baton Rouge City Court were introduced into evidence. The jury unanimously found the defendant guilty as charged.

The standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992); State v. Emerick, 499 So.2d 195 (La.App. 2d Cir.1986).

Intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La.1983). Some behavioral manifestations, independent of any scientific tests such as blood or breath alcohol tests, are sufficient to support a charge of driving while intoxicated. What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Berkeley, 00-1900 (La.App. 5th Cir.5/31/01), 788 So.2d 647, 652; State v. Pitre, 532 So.2d 424 |4(La.App. 1st Cir.1988), writ denied, 538 So.2d 590 (La.1989); State v. Holley, 32,156 (La.App.2d Cir.8/18/99), 742 So.2d 636. The observations of an arresting officer may be sufficient to establish guilt. State v. Allen, supra.

In the present case, Officer Jack Miller of the Shreveport Police Department testified that he stopped defendant after a hit- and-run call was broadcast and a description of the vehicle involved matched the defendant’s truck. Officer Miller first noticed the vehicle because it was swerving in its traffic lane. As Officer Miller followed behind the vehicle for one block, it crossed the center line twice and almost ran off the road to the right. The vehicle “jumped a curb” as it made a right turn. According to Officer Miller, he suspected the driver was impaired from drinking and turned on his roof rack. Officer Miller then noticed the license plate number was that of the wanted hit-and-run vehicle.

Officer Miller testified that he is a six-year veteran of the Shreveport Police Department. He also testified about his training in detecting impaired drivers and administering field sobriety tests. Through his work, Officer Miller comes in contact with intoxicated drivers two or three times each week. Officer Miller testified that the defendant was the only person in the vehicle. When the defendant got out of the truck, he was very unsteady on his feet. Defendant kept leaning on the truck for support. Defendant’s eyes were “real red and bloodshot.” When the defendant spoke, he had a distinct odor of alcohol on his breath and his speech was slurred.

IsAfter the defendant refused to take the field sobriety test, Officer Dena West was called to the scene. Officer West was assigned to the Shreveport DWI task force. Officer West had been with the DWI task force for two years and had come in contact with 350 intoxicated drivers within the past year. She was trained to detect an impaired driver. Officer West testified that when she first saw the defendant, she noticed he had a strong odor of alcohol on his breath and his eyes were glassy and blood shot. According to Officer West, the defendant’s speech was slurred and he was unsteady on his feet. Officer West transported the defendant to the enforcement facility, which was about ten minutes away from the location of the traffic stop. While he was being transported, defendant fell asleep in the back of the police car. A video tape of the defendant was made at the enforcement unit. This video tape was played to the jury at trial. The jury witnessed the defendant fall asleep while standing, his slurred speech and his drunken behavior. Officer West testified that defendant exhibited definite characteristics of a person that was intoxicated.

Although the defendant did not call any witnesses or present evidence in his defense, he argues on appeal that the state failed to exclude every reasonable hypothesis of innocence. Contrary to the defendant’s contention, the evidence shows beyond a reasonable doubt that he was operating a motor vehicle, while he was intoxicated. The vehicle was stopped mere minutes after it was observed leaving the scene of a hit-and-run collision. Defendant weaved in traffic, drove over the center line and drove over the curb while turning a street corner.

IfiThe experienced police officers testified that defendant had many indicators of intoxication and that they both believed that he was intoxicated. As stated above, it is not necessary that a conviction of DWI be based upon a blood or breath test, and the observations of an arresting officer may be sufficient to establish the defendant’s guilt. Intoxication is an observable condition about which a witness may testify. See State v. McDonald, 38,013 (La.App.2d Cir.3/1/00), 754 So.2d 382. We find that the testimony of the officers with regard to the defendant’s behavior and physical condition was more than sufficient to establish the defendant’s guilt. Thus, viewing the evidence in a light more favorable to the prosecution, we conclude that every essential element of the crime of DWI-3rd offense was proven beyond a reasonable doubt.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Excessive Sentence:

The defendant argues on appeal, and the state concedes, that the district court should have imposed a penalty within the reduced range provided by the Legislature via a statutory amendment to the statute of conviction which became effective (August 15, 2001) after defendant committed the offense (June 22, 2001) of which he was found guilty, but before he was sentenced (April 15, 2002).

Based on the ruling of the Supreme Court of Louisiana in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, we are constrained to vacate the sentence imposed and remand for resentencing. Although defendant |7committed the instant offense prior to the August 15, 2001 effective date of 2001 La. Acts 1163, under the quasi retroactive ruling of Mayeux, the amended sentencing provisions are to be applied in this case. It is the role of this court to uphold the sentencing provisions that are clearly stated by the legislature. Accordingly, we remand this case for re-sentencing.

CONCLUSION

For the above reasons, the defendant’s conviction is affirmed. The defendant’s sentence is vacated, and the matter is remanded for resentencing in conformity with the amended sentencing provisions of LSA-R.S. 14:98(G).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.


author: hKOSTELKA, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. Victor DURDEN, Appellant.
    No. 36,842-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Peter J. Black, Indigent Defender Office by Kurt J. Goins, Shreveport, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before GASKINS, MOORE and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

Victor Durden (“Durden”) was convicted as charged of armed robbery, La. R.S. 14:64, and as a second felony offender was sentenced to forty-nine and one-half years at hard labor without benefit of probation, parole or suspension of sentence. He now appeals his conviction and sentence. We affirm.

Facts

On the morning of February 25, 2000, four men dressed in dark clothing and masks robbed the Greenwood Road Branch of the Hibernia Bank in Shreveport, Louisiana. The four men were seen immediately before the robbery in a car which had backed into a parking space just outside the bank. During the robbery, the men threatened the lives of the employees and customers of the bank. At least two of the men were armed with handguns. By chance, a fire truck had stopped at the bank, temporarily blocking the bank’s parking area. One of the bank’s customers fled the bank, ran to the fire truck and told the firemen that the bank was being robbed. Apparently frightened by the arrival of the fire truck, the driver of the car used by the four men sped away leaving the men afoot. After leaving the bank and seeing they had no transportation, the four men dispersed, but not before a red dye pack, placed by one of the tellers in the bag with some of the stolen money, exploded, staining the money and the clothing of the four robbers. Durden was seen coming from the bank and running behind Willis-Knighton North Hospital Complex located near the bank. A hospital security guard apprehended Durden in one of the hospital 12parking lots. Durden was wearing a white tee shirt that had a red stain on the front of it. He was the only suspect apprehended.

Durden gave the name Derrick Porter when apprehended, but he was correctly identified by his fingerprints. He gave a taped confession wherein he asserted that he went to the bank alone to rob it and the other armed men showed up. He denied any involvement with them.

On September 26, 2001, Durden was found guilty as charged of armed robbery by a unanimous jury. On June 3, 2002, he was sentenced as a second felony offender to forty-nine and one-half years at hard labor without benefit of probation, parole or suspension of sentence. This appeal ensued.

Disoussion

Sufficiency of the Evidence

Durden argues that his taped confession should be inadmissible since it was partially inaudible and without it there is no evidence to connect him to the crime. We disagree.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for insufficiency of evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. When thus viewed, the facts established by the direct evidence, and inferred from the circumstances established by that evidence, must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that a defendant is guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. William Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

Whether or not Durden’s confession is admissible is determined by La. R.S. 15:450, which provides:

Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.

The trial court ruled that the tape was admissible even though parts were inaudible and the speed of the tape had somehow been altered. The detective who was present during the taping testified that the entire confession was on the tape. After the trial court ruled that the tape was admissible, the defense attorney asked, and the state agreed, that portions of the tape making references to an earlier robbery, Durden’s gang affiliation, and his request for an attorney would not be played for the jury.

At trial, the defense did not object to the edited tape being heard by the jury and allowed it to be admitted into evidence. Based on the rationale in State v. Griffin, 618 So.2d 680 (La.App. 2d Cir.1993), writ denied, 625 So.2d 1063 (La.1993), we find the tape admissible since it was played for the jury without objection to its sound quality or contents.

It is well settled that a person cannot be convicted on his confession alone. State v. Hopkins, 35,146 (La.App.2d Cir.11/02/01), 799 So.2d 1234. This Court interprets this corroboration rule to require only that there be some evidence other than the confession that a criminal act was committed. State v. Cutwright, 626 So.2d 780, 783 (La.App. 2d Cir.1993).

This court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. Bosley, supra.

The jury heard the testimony of five bank employees, a bank customer, a firefighter, and four employees of the hospital where Durden was apprehended. There is nothing in the record to show that the witnesses contradicted one another or that the physical evidence contradicts their testimony. Thus, this Court is bound to uphold the findings of the trier of fact since the record supports the jury’s finding. This assignment lacks merit.

Modification of the Verdict

Durden was denied a motion for “post verdict judgment of modification” (sic) and argues that his conviction should be reduced to first degree robbery since there was no evidence that he was ever armed. We disagree.

^Louisiana C.Cr.P. art. 821 provides for a trial court to review the evidence and modify a jury’s finding. It reads in pertinent part:

C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

In its review, the trial court is to make changes “only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency.” State v. Harris, 36,-036 (La.App.2d Cir.08/14/02), 823 So.2d 1054.

Durden desires that a rational person believe that he just happened to arrive at the bank at the same time and dressed in the same manner as the other armed and masked robbers. He wants that same rational person to find that while he did rob the bank, he did so alone and was not armed.

The state may prove a defendant guilty by showing that he served as a principal to the crime. La. R.S. 14:24; State v. Allen, 36,180 (La.App.2d Cir.09/18/02), 828 So.2d 622; State v. Smith, 513 So.2d 438 (La.App. 2d Cir.1987). Under this theory, the defendant need not actually take anything or have personally held a weapon to be guilty of armed robbery. Allen, supra, citing, State v. Dominick, 354 So.2d 1316 (La.1978). 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 |ficrime, depending upon 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).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Demease, 33,047 (La.App.2d Cir.04/05/00), 756 So.2d 1264, writ denied, 2000-1488 (La.05/25/01), 792 So.2d 750. Though intent is a question of fact, it need not be proved as a fact, but it may be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (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 (La.1982); Demease, supra.

Although it is possible that a person could arrive at a bank at the very same time another armed group arrives to rob the same bank, the evidence does not even hint that one of the robbers was acting alone. The trial court heard the same evidence as the jury, evaluated the witnesses’ testimony firsthand and heard Durden’s recorded statement. The record simply does not support Durden’s position. The evidence viewed in the light most favorable to the prosecution proves beyond a reasonable doubt that Durden was part of the group of armed robbers who stormed the bank and took money. This assignment lacks merit.

Use of Prior Guilty Plea

Durden argues that his prior conviction in California should not be used to convict him as a multiple felony offender since a district attorney, |7not the judge, conducted the plea colloquy when Durden waived his rights under Boykin v. State, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We disagree.

There are two statutory provisions in Louisiana that address how a guilty plea should be entered and how a defendant can contest the use of a prior conviction in subsequent proceedings.

Louisiana C.Cr.P. art. 556.1 gives the framework for the taking of a guilty plea or nolo contendere in felony cases. It reads:

A. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
B. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
|SC. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
D. In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

Louisiana R.S. 15:529.1(D)(1)(b) provides both the procedure for invalidating a plea and the burden and who bears it. It reads:

(b) Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

We consider Durden’s motion to quash the use of two prior convictions, filed in response to the habitual offender bill of information, as a written response as required in La. R.S. 15:529.1(D)(1)(b). At the hearing on whether Durden should be sentenced as a third felony offender, the state had only the minute entry and no transcript of the guilty plea for one of the 19convictions. Since there was nothing to show that Durden had been apprised of his rights under Boykin, the trial court ruled it inadmissible.

As to the other conviction, the trial court found that Durden had knowingly and voluntarily entered a guilty plea and, therefore, sentenced him as a second felony offender. The court based its ruling on the transcript of the plea colloquy. It shows that with his court-appointed counsel in a California tribunal, an assistant district attorney, not the judge, gave information and questioned Durden when he entered a no contest plea to one count of possession of marijuana for sale. He was advised of all three rights he was waiving under Boykin. He was also specifically asked whether he had been given any promises other than the agreed sentence or if he had been threatened to enter the plea. He replied no to both of those inquiries.

Durden now raises an issue regarding the plea colloquy that he did not argue in the trial court. He argues that because the rights under Boykin were explained to him by the district attorney, rather than the judge, the plea was not voluntary. His rationale is that a prosecutor’s presentation may have intimidated him and compelled him to enter the plea. However, before accepting the plea, that judge made an independent inquiry as to whether Dur-den understood the rights the district attorney explained. Durden answered yes. The judge also asked whether Durden had any questions before the plea was entered. Durden’s response was no.

It is well-founded in our law that the grounds for an objection must be stated at the time the objection is made, and grounds therefor may not be |inurged for the first time on appeal. La.C.Cr.P. art. 841; State v. Green, 390 So.2d 1253 (La.1980); State v. Nicholas Johnson, 389 So.2d 372 (La.1980); State v. Woodard, 387 So.2d 1066 (La.1980); cf. Tyler v. Phelps, 643 F.2d 1095 (5th Cir.1981).

However, the issue of allowing an assistant district attorney to voice certain rights on the record has been addressed in our jurisprudence. In State v. Blackmon, 1999-391 (La.App. 3d Cir.11/03/99), 748 So.2d 50, writ denied, 1999-3328 (La.04/28/00), 760 So.2d 1174, the court found:

As the defendant alleges no misunderstanding as to the nature of the charge pled and the plea colloquy demonstrates that the defendant had adequate information on which to enter an intelligent and voluntary plea pursuant to [Boykin], we conclude that the mere fact that the trial court invited the assistant district attorney to read the charges and possible penalties is not reversible error.

Applying this rationale and scrutinizing both the transcript of the prior guilty plea and the hearing to invalidate it, we find that Durden did not meet his burden under La. R.S. 15:529.1(D)(1)(b) of showing that the plea was involuntary or unknowingly entered. Furthermore, Durden cannot now raise on appeal an issue not raised previously in the trial court. This assignment lacks merit.

Excessive Sentence

Durden argues that the sentence is constitutionally excessive and the trial court erred since it did not deviate from the mandatory minimum sentence provided in the habitual offender statute. We disagree.

When a defendant fails to file a La.C.Cr.P. art. 881.1 motion to reconsider sentence, an appellate court’s review is limited to the bare claim l^that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.02/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

A sentence is considered grossly disproportionate to the offense if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. La. Const, art. 1, § 20.

The definition of criminal conduct and the provisions of penalties for such conduct are purely legislative functions. State v. Carlos Johnson, 31,448 (La.App.2d Cir.03/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653. Pursuant to this function, the Legislature enacted the habitual offender statute which has been held, on numerous occasions, to be constitutional. State v. Walter Johnson, 97-1906 (La.03/04/98), 709 So.2d 672. Since that statute in its entirety is constitutional, the minimum sentences it imposes on repeat offenders are presumed constitutional. Id.

In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that he is exceptional, which, in this context, means that because of unusual circumstances, Durden is a victim of the Legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Carlos Johnson, supra. Additionally, in determining whether a | ^defendant has met this burden, the trial judge must consider that the goals of the Habitual Offender Law are to deter and punish recidivism. Id. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the Habitual Offender Law should occur only in rare instances. Id.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La.C.Cr.P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.04/04/01), 784 So.2d 714; State v. Charles Owens, 32,642 (La.App.2d Cir.10/27/99), 743 So.2d 890, writ denied, 2000-0438 (La.09/29/00), 769 So.2d 553. It would be an exercise in futility for the trial court to discuss the factors enumerated in Article 894.1 when the court has no discretion in sentencing a defendant. State v. Carlos Johnson, supra.

Although in State v. Dorthey, 623 So.2d 1276 (La.1993) the court found that a punishment required by statute can be shown to be an excessive punishment, the appellate courts of this state have recognized that declaring a sentence under the Habitual Offender Law constitutionally excessive should be a rare act, not a commonplace practice.

As this Court stated in State v. Ponsell, 33,543 (La.App.2d Cir.08/23/00), 766 So.2d 678:

Although, in State v. Dorthey, supra, the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. (Citations omitted.)

113Prior to imposing sentence, the trial court reviewed a presentence investigation report and considered the facts of the case. The court noted that Durden had a prior felony conviction. While Durden’s prior conviction was for drug charges, not a crime of violence, the information on him showed that he was a recognized gang member in California. Further, authorities here had identified him as one of the people who had come to Shreveport with a group to commit crime.

In reviewing the harm done to society, the evidence shows that there were nine bank employees, at least three customers and two young children on the bank premises during the robbery. At least two employees of the bank were physically abused and their lives threatened.

After close scrutiny of the record, it cannot be said that Durden has shown he is the exceptional defendant for whom downward departure from the mandatory statutory minimum sentence is required. This assignment lacks merit.

Conclusion

For the foregoing reasons, Durden’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.