author: | .CARTER, C.J.

text:
    STATE of Louisiana v. Arlen BROWN.
    No. 2003 KA 1076.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Anthony G. Falterman, District Attorney, Gonzales, by Donald D. Candell, Assistant District Attorney, for Appellee State of Louisiana.
    Patti Durio Hatch, Baton Rouge, for Appellant Arlen Brown.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .CARTER, C.J.

The defendant, Arlen Brown, was charged by grand jury indictment with: three counts of second-degree kidnapping, a violation of LSA-R.S. 14:44.1; two counts of aggravated crime against nature, a violation of LSA-R.S. 14:89.1; one count of attempted aggravated rape, a violation of LSA-R.S. 14:27 & 42; and one count of attempted second-degree murder, a violation of LSA-R.S. 14:27 & 30.1. The offenses involved three separate victims and were alleged to have occurred on three different dates. On the morning of trial, the State amended the bill of indictment to delete one count of second-degree kidnapping and one count of aggravated crime against nature. The remaining counts involved only two victims, K.S. and P.T. Defendant pled not guilty to all counts.

After a trial by jury, defendant was found guilty as charged on one count of second-degree kidnapping and one count of attempted second-degree murder with respect to K.S. He was found guilty as charged on one count of aggravated crime against nature with respect to P.T. Defendant was acquitted on one count of second-degree kidnapping and one count of attempted aggravated rape with respect to P.T. He filed a motion for new trial, which was denied. He was sentenced to twenty-five years’ imprisonment for his conviction of second-degree kidnapping; to five years’ imprisonment for his conviction of aggravated crime against nature; and to twenty-five years’ imprisonment for the crime of attempted second-degree murder. All sentences were imposed at hard labor and without benefit of parole, probation, or suspension of sentence. The trial judge ordered all sentences to run concurrently.

On appeal, defendant relies on the following assignments of error for reversal of his convictions and sentences:

|31. The evidence was insufficient to support the verdict of attempted second-degree murder of K.S.
2. The evidence was insufficient to support the verdict of second-degree kidnapping of K.S.
3. The evidence was insufficient to support the verdict of aggravated crime against nature as to P.T.
4. The trial court erred in denying defendant’s motion for new trial.

For the following reasons, we affirm defendant’s convictions and sentences.

FACTS

This case involves offenses that occurred on two different dates and with respect to two different victims. P.T., the first victim, testified that at about 9:30 p.m. on January 4, 1998, she was at Church’s Fried Chicken on Scenic Highway in Baton Rouge. Defendant, who was stopped nearby, called her over to his truck. He asked her if she wanted to go for a ride with him, and she agreed to do so. She saw he had a large gun in his lap, but she thought nothing of it, because she knew many people who carried weapons in that area of town. According to P.T., defendant was nice looking and had a nice vehicle. She hoped a relationship might develop with him.

As defendant drove an increasing distance from the area where they began their ride, P.T. became concerned and asked to be taken home. Her concern increased as he passed up exit after exit on Interstate 10. He insisted she keep her head down in the vehicle so she would not be seen. Defendant eventually exited 1-10 in Ascension Parish and stopped on a small dirt road. He accidentally backed into the tail light of an empty truck parked at a nearby business. The two got out to look at the damage. Then defendant told P.T. to take her clothes off, grabbed her by the hair, ordered her to listen to him, and told her he had just gotten out of prison for murdering someone.

|4P.T. testified that she complied with the defendant’s demands because she was afraid of him and his gun. Defendant attempted to have sex with her against her will, but he was unable to complete the act. All the while, his weapon was within reach. Then he ordered P.T. back into the truck and forced her to perform oral sex on him. He threatened to kill her if she did not satisfy his demands. Afterward, he ordered her out of the truck and onto her knees. He initially pointed his gun at the back of her head and threatened to “blow [her] brains out.” Then he let her get up and told her to run. When she heard the truck pull away from the area, P.T. went to the road and found a service station. There she asked an attendant to telephone the police and report that she had been kidnapped.

After investigating this incident and a subsequent similar incident, police officers compiled a photographic lineup, and P.T. pointed defendant out as her assailant. She also identified him in court as the man who forced her to go to Ascension Parish with him against her will. P.T. insisted at trial that she had not wanted to have sex with defendant. She admitted during cross examination that she had “hustled” sex for money in the past, but she insisted such was not her intention that night with this man and she did not ask him for money.

K.S., the second victim, testified that at about 3:00 a.m. on February 1, 1998, she spotted the defendant at a car wash on Plank Road in Baton Rouge. She admitted she was “dating” that night to make money to get drugs. When the defendant approached her, she told him what she would charge to have sex with him, and she willingly got into his truck to go to a place where they could consummate their transaction.

Defendant got on I — 10 eastbound, over KS.’s objection. She did not want to leave her “turf’ where she felt relatively safe. She asked defendant to take her back to her area. He refused and proceeded to Prairieville. Defendant was going too | Sfast for her to jump out of his truck, and she repeatedly asked him to return her to North Baton Rouge. Defendant got off I-10 and proceeded to a small dirt road. When they stopped, he pulled a gun out and ordered K.S. to undress.

At this point, she tried to figure out how to escape. She told defendant she had to go to the bathroom. Just before she got out of the truck, defendant said, “Bitch, if you run, I’m going to kill you.” K.S. jumped out of the vehicle and ran behind some other trucks parked nearby. Defendant then fired his gun at her and missed. He continued firing and eventually hit her in the arm, but she was able to hide until he left the area.

K.S. asked for assistance from residents in the area, who called the police to the scene. She helped generate a composite sketch and eventually picked defendant out of a photographic lineup. She took police to the scene of the crime and described defendant’s vehicle as a dark truck with a gray interior.

On cross examination, K.S. admitted previous convictions for prostitution. She also admitted she had smoked cocaine in defendant’s truck. According to K.S., she finished a small amount of cocaine in a cocaine pipe shortly after she got on the road with defendant. She insisted she was not high when they stopped in Prairieville and denied, having a switchblade with her that evening.

Neither P.T. nor K.S. had any idea of the identity or occupation of the man they accused as their assailant. Detective Knoll King, Jr., of the Ascension Parish Sheriffs Office investigated both incidents. After receiving P.T.’s report, he found evidence of damage to the front of an 18-wheel truck at the crime scene, just as P.T. had described. In addition, he found part of a red tail light suspected to belong to the perpetrator’s truck. The tail light was identified as coming from a Dodge pickup truck of the 1994 to 1998 series.

| ^Detective King also took the report from K.S., who took him to the same crime scene that P.T. had described. There, he recovered five spent .40-caliber shell casings. One was recovered from the area where the perpetrator appeared to have parked. A blood trail began about 60 to 70 feet from that location. The other four spent casings were recovered from under a large white truck and a tractor-trailer rig where K.S. had sought cover. The spent casings were found within 10 feet of each other. Based on the evidence collected and victim accounts, investigating officers felt the same perpetrator had committed both offenses.

In the course of his investigation, Detective King contacted auto dealerships. A sales representative at a nearby dealership recalled selling a left rear tail light to a man in a black Dodge truck that had a Marine Corps license plate. Further information led officers to an apartment complex in Gonzales, where a black Dodge truck with gray interior was parked. It had left rear damage and a Marine Corps license plate. The truck belonged to defendant.

Detective King then discovered defendant was a Gonzales police officer who had been issued a .40-caliber Glock weapon. It fired the same caliber bullets as those used at the crime scene. The victims identified defendant from photographic lineups, and officers obtained an arrest warrant and search warrants. Defendant was located and consented to a search of his truck and apartment. A semi-automatic gun was found at his residence with .40-caliber Winchester bullets matching those found at the scene. Officers also found ostrich skin cowboy boots that matched the victims’ descriptions of those worn by their assailant. A work schedule was obtained showing defendant was off duty at the time of both crimes. Forensic scientist Patrick Lane confirmed at trial that each of the five shell casings found at,the crime scene came from defendant’s service weapon.

|7After being given his Miranda rights, defendant was questioned by officers. Initially, he claimed the damage to his truck had occurred six months before on a fishing trip. He denied ever carrying his duty weapon when not on duty. Yet, he indicated the last time it was. fired was six months before on the fishing trip. Defendant continually denied involvement with the two women who accused him. Eventually, however, he admitted taking P.T. and K.S. to the Prairieville site. But he gave accounts radically different from the stories told by the two women.

Defendant claimed P.T. and K.S. willingly traveled with him to Ascension Parish to have oral sex with him in exchange for money. Defendant indicated P.T. had performed consensual oral sex on him while they were en route. After stopping in Prairieville, she continued. He then offered to pay her five dollars for her services,'even though he admitted they had agreed on a ten-dollar payment. When P.T. complained about the payment, he made her get out of his truck and paid her nothing. Defendant described standing at the back of his truck to conceal his license plate and ordering P.T. to go behind some buildings so she would not see the license plate when he drove away from the scene. Although he admitted his gun was in the car, he denied ever pulling it out in P.T.’s presence. He also denied ever attempting to have sexual intercourse with her.

Defendant similarly admitted meeting K.S. and agreeing on a price for oral sex, after which she willingly went with him to Prairieville. He claimed when they got there, she started to smoke cocaine, and he objected. According to defendant, she was under the influence of drugs, and he ordered her out of his truck. K.S. refused to get out of the vehicle and pulled a switchblade out of her purse. He then pushed her out of the truck onto the ground, but she got up and kept coming at him with the switchblade.

| ¡¡Defendant testified he got out of the truck and pulled his gun to frighten K.S. He shot over her head several times, but she continued to advance. Finally he aimed closer, still intending to scare her, but accidentally hitting her. According to defendant, he did not know he had shot K.S. when he left the scene. Defendant contended the two women made up their stories against him, because they were angry about not getting paid.

At the conclusion of trial, the jury found defendant guilty of the second-degree kidnapping of K.S., guilty of the attempted second-degree murder of K.S., and guilty of aggravated crime against nature with respect to P.T. The jury acquitted defendant of the charges of second-degree kidnapping and attempted aggravated rape of P.T. On appeal, defendant argues the evidence presented by the State was insufficient to support his convictions, and the trial court should have granted his motion for new trial for that reason.

SUFFICIENCY OF THE EVIDENCE

The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and defendant’s identity as perpetrator of that crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La.App. 1 Cir.1984). When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La.App. 1 Cir.), writ denied, 532 So.2d 130 (La.1988). When a case involves circumstantial evidence, however, and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that | hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984).

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues there was insufficient evidence adduced to support his conviction of the attempted second-degree murder of K.S. Louisiana Revised Statute 14:30.1(A)(1) defines second-degree murder, in pertinent part, as the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. Louisiana Revised Statute 14:27 provides, in pertinent part, that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended. It is immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Although the statute for the completed crime of second-degree murder allows for a conviction based on specific intent to kill or to inflict great bodily harm, attempted second-degree murder requires specific intent to kill. State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434, 437. Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Specific intent need not be proven as a fact but may be inferred' from the circumstances and actions of the accused. State v. Graham, 420 So.2d 1126, 1127 (La.l982). The trier of fact determines whether the requisite intent is present in a criminal case. State v. Huizar, 414 So.2d 741, 751 (La.1982).

In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the defendant’s guilt beyond a reasonable doubt as to every element of the offense. Id. 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. Ford, 28,724 (La.App. 2 Cir. 10/30/96), 682 So.2d 847, 849-850, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

In this case, defendant claimed his actions were justified and he shot at K.S. in self-defense. The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. LSA-R.S. 14:18. In a non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances, and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Navarre, 498 So.2d 249, 252-253 (La.App. 1 Cir.1986).

Louisiana law is unclear as to who has the burden of proving self-defense in a non-homicide case. See State v. Freeman, 427 So.2d 1161, 1163 (La.1983). In previous cases dealing with this issue, we have analyzed the evidence under both standards of review; namely, whether the defendant proved self-defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. See State v. Willis, 591 So.2d 365, 370-372 (La.App. 1 Cir.1991), writ denied, 594 So.2d 1316 (La.1992); State v. Aldridge, 450 So.2d 1057, 1059-1060 (La.App. 1 Cir.1984). Similarly, in the instant case, we need not decide the issue of who has the burden of proving or disproving self-defense because under either standard the evidence sufficiently established defendant did not act in self-defense.

K.S. testified that, after parking in a deserted spot in Prairieville, defendant suddenly pulled a gun from between his legs, pointed it at her face, and ordered her to undress. She was frightened and decided to try to escape by pretending she wanted to get out of the truck to go to the bathroom. Defendant threatened: “Bitch, if you run, I’m going to kill you.” Nevertheless, K.S. hopped out and ran between two trucks parked nearby. At that point, K.S. testified defendant fired at her and missed.

As she was running away, he came around his truck and fired several more times. When he fired these shots, she was quite a distance from him. She slipped down in wet mud and grass several times as he was firing. Each time, she got up and kept running. A bullet from defendant’s gun struck K.S. in her left arm as she continued to run away. A blood trail began about 60 to 70 feet from where his truck was parked.

1 ^Defendant’s version of the events was entirely different. Although he admitted at trial he was at the Prairieville location with K.S., he denied that he threatened her or intended to kill her. He claimed he shot at K.S. in self-defense, intending only to scare her, because she slashed at him with a switchblade in a drug-induced craze. Defendant described firing all the shots at close range, while he was backing away from K.S., right after he got out of the driver’s side of the truck as K.S. continued to advance toward him, crawling across the seats of the truck to get at him.

At other times during his testimony, defendant indicated the shots were fired when K.S. was outside of the truck. Since he testified he had already pushed her out of the passenger side when he exited the driver’s side, he would have had to go around the truck to shoot at K.S. if she was outside of the vehicle, a scenario inconsistent with his testimony that he was backing up as she advanced toward him. Defendant at no time suggested that K.S. traveled around the truck to get to him.

Alternatively, if K.S. scrambled across the inside of the truck toward him as he fired, all of the spent shell casings would likely have been found near the truck. Defendant acknowledged he weighed about 230 pounds at the time and K.S. appeared to weigh about 120 pounds. Yet, defendant claimed he did not think to try to disarm K.S. because she was “out of control.”

In comparison to defendant’s testimony, K.S.’s trial testimony was internally consistent and was not at variance with the physical evidence found at the scene of the crime. The jurors, who had an opportunity to see and hear the witnesses, were entitled to accept KS.’s testimony as true and to reject defendant’s account. Accepting KS.’s testimony that defendant told her he would kill her if she ran from him, and then fired multiple shots at her as she tried to escape, finally wounding 11sher in the arm, it was entirely reasonable for the jurors to conclude defendant intended to make good on his threat to kill her.

The jurors were likewise reasonable in believing that K.S. never threatened defendant with a switchblade or did not present a threat sufficient to justify defendant’s firing a gun at her. The jurors evidently rejected defendant’s argument that his actions were justified. We have no trouble concluding the State presented sufficient evidence to prove each element of the offense of attempted second-degree murder beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. Moreover, when all the evidence is viewed in the light most favorable to the State, any rational trier of fact could have concluded beyond a reasonable doubt that defendant’s conduct was not in self-defense. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant claims there was insufficient evidence presented to support his conviction for the second-degree kidnapping of K.S. He argues KS.’s testimony is suspect, and the only reason she was injured was because she attacked him with a switchblade. We do not agree.

Second-degree kidnapping, is defined, in pertinent part, as the forcible seizing and carrying of any person from one place to another, or the imprisoning or forcible secreting of any person, wherein the victim is physically injured. LSA-R.S. 14:44.1(A)(3) & (B)(1), (3). This is not a case of circumstantial evidence. Direct evidence in the form of KS.’s testimony, as well as the defendant’s, | uestablished that K.S. was physically injured when shot by the defendant, proving the element of the offense required by LSA-R.S. 14:44.1(A)(3). The jury clearly did not accept defendant’s testimony that he fired at K.S. only because she was threatening him with a switchblade. K.S. denied having a switchblade at all, and the jury was entitled to accept her testimony as true.

The jury was also entitled to believe K.S.’s testimony that, although she initially agreed to get into defendant’s truck, she did not wish to leave the North Baton Rouge area. K.S. was steadfast in her testimony that defendant took her to Ascension Parish against her will, under circumstances that prevented her from exiting the moving vehicle. Thus, there was ample evidence adduced to establish that defendant forcibly carried K.S. from one place to another. See State v. Davies, 35,783 (La.App. 2 Cir. 4/5/02), 813 So.2d 1262, 1266-1267, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389. After a thorough review of the record, we are satisfied the State presented sufficient evidence to prove each element of the offense of second-degree kidnapping and defendant’s identity as the perpetrator of the offense beyond a reasonable doubt.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, defendant challenges the sufficiency of the evidence to support his conviction for committing an aggravated crime against nature as to P.T. He argues that, since the jury acquitted him of the second-degree kidnapping and attempted aggravated rape of P.T., conviction on this charge was inconsistent and demonstrated the jury’s determination that P.T. was not credible.

A crime against nature is defined, in pertinent part, as the unnatural carnal copulation by a human being with another of the same sex or opposite sex. Emission is not necessary, and when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to ^constitute the crime. LSA-R.S. 14:89(A)(1). A crime against nature is considered aggravated when the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. LSA-R.S. 14:89.1(A)(3).

At trial, P.T. testified that when defendant ordered her to take her clothes off in Prairieville, she was frightened. She believed defendant might kill her, because he told her he had just gotten out of prison for murdering someone. After unsuccessfully attempting sexual intercourse, with his gun at all times within reach, defendant told P.T. to get back into his truck and ordered her to perform oral sex on him. When she hesitated, he grabbed her head and forced her to do his bidding. He threatened to kill her if she did not comply to his satisfaction. At trial, defendant did not dispute that P.T. performed oral sex on him on the evening in question. Indeed, he testified at trial that she performed oral sex both en route to Prai-rieville and after they arrived there. Defendant also admitted he had a gun with him in a side compartment on the door of his truck.

As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Gordon, 582 So.2d 285, 292 (La.App. 1 Cir.1991). In returning a guilty verdict of aggravated crime against nature, the jurors obviously believed P.T. and discounted the defendant’s self-serving testimony on the issue of whether she was forced to perform oral sex and prevented from resisting because defendant was armed with a dangerous weapon. The credibility of the witnesses’ testimony is a matter of the weight of the evidence. A determination of the weight to be given the evidence is a question of fact for the trier of fact and is not subject to appellate review. State v. Tate, 506 So.2d 546, 551 (La.App. 1 Cir.), writ denied, 511 So.2d 1152 (La.1987).

Our review of the record satisfies us that, viewing all of the evidence in the light most favorable to the State, any rational trier of fact could have concluded the |1fiState proved that defendant committed the crime of aggravated crime against nature beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment of error, defendant contends the trial court erred in denying his motion for new trial. He argues the trial court abused its discretion in denying the motion, which was based on the same arguments of insufficiency of the evidence made in defendant’s other assignments of error.

Under LSA-C.Cr.P. art. 851, in ruling on a motion for new trial, the trial court can consider only the weight of the evidence. The court makes a factual review of the evidence as a thirteenth juror. State v. Gaines, 633 So.2d 293, 298 (La.App. 1 Cir.1993), writ denied, 93-3164 (La.3/11/94), 634 So.2d 839. An appellate court, on the other hand, is constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases; that determination rests solely within the trier of fact’s sound discretion. State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir.1993), writ denied, 94-0141 (La.4/29/94), 637 So.2d 460.

We have previously concluded the State presented sufficient evidence to support each of defendant’s convictions. Accordingly, there is no indication the trial court abused its sound discretion by denying defendant’s motion for new trial. Thus, we find no merit in this assignment of error.

PATENT ERROR

In reviewing the record for patent error, we have discovered the trial court did not wait the required twenty-four hours after denial of defendant’s motion for new trial before imposing sentence, nor did defendant waive the waiting period. See LSA-C.Cr.P. art. 873. Thus, the court erred when it sentenced defendant within 117twenty-four hours after denial of the motion. However, because defendant does not raise this issue on appeal and has not challenged the sentences on appeal, the error is not reversible unless defendant can show he was prejudiced. See State v. Augustine, 555 So.2d 1381, 1333-1334 (La.1990); State v. Claxton, 603 So.2d 247, 250 (La.App. 1 Cir.1992). On appeal, defendant has not cited any prejudice resulting from the court’s failure to delay sentencing, nor has defendant even noted this as error. We have reviewed the record and find no indication defendant was prejudiced by the error. Thus, the error is not reversible.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The indictment filed by the State charged defendant generally with attempted second-degree murder. It did not specify whether the State intended to prove that defendant had specific intent to kill K.S. or that he attempted to kill her while committing or attempting to commit an enumerated felony. Because the only enumerated felony involved was second-degree kidnapping, of which defendant was also found guilty, we review the conviction only as a specific intent crime. Since the evidence supported the finding that defendant had the specific intent to kill K.S., and the trial court charged the jury regarding specific intent, we need not consider other theories. Compare State v. Davies, 35,783 (La.App. 2 Cir. 4/5/02), 813 So.2d 1262, 1267-1269, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389.

      . Defendant argues in brief to this court that the trial court’s instructions to the jury regarding the attempted second-degree murder charge were confusing. However, defendant made no contemporaneous objection to the jury charges at trial. Thus, any issue regarding the jury charges is not properly preserved for appellate review. See LSA-C.Cr.P. arts. 801 & 841.

      . In Freeman, 427 So.2d at 1163, the Louisiana Supreme Court indicated, in dicta, that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. Several cases decided thereafter have agreed with that view. See State v. Harris, 02-2099 (La.App. 4 Cir. 3/5/03), 842 So.2d 432, 436-437; State v. McClure, 34,880 (La.App. 2 Cir. 8/22/01), 793 So.2d 454, 457; State v. Rainey, 98-0436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1103-1105, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28; State v. Perkins, 527 So.2d 48, 50 (La.App. 3 Cir.1988); State v. Mason, 499 So.2d 551, 555 (La.App. 2 Cir.1986); State v. Barnes, 491 So.2d 42, 47 (La.App. 5 Cir.1986).

      . Other courts have also utilized this approach and analyzed the evidence under both standards. See State v. Martin, 520 So.2d 1079, 1080 (La.App. 3 Cir.1987); State v. Agnelly, 515 So.2d 821, 823 (La.App. 5 Cir.1987); State v. Zeno, 469 So.2d 337, 340 (La.App. 2 Cir.), writ denied, 474 So.2d 1303 (La.1985).

      . Defendant argues in brief that the prosecutor conceded to the jury that there were problems with the State's evidence on this charge. In closing, the prosecutor informed the jurors that the evening before, during an aborted effort to recreate the crime for the jury at the scene, K.S. had indicated that defendant's words were, “Bitch, if you run, I'll shoot you,” as opposed to her prior statement, “Bitch, if you run, I’ll kill you.” The prosecutor pointed out this variance, but advised the jury that it was up to them to determine if defendant was guilty of attempted second-degree murder. We cannot say the jury erred in concluding defendant had the requisite specific intent based on the evidence adduced at trial.


source: Caselaw Access Project

author: | ¡>KUHN, J.

license: Public Domain

text:
    STATE of Louisiana v. Robert PETERSON.
    No. 2003 KW 1806.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Doug Moreau, District Attorney, Baton Rouge, by Aaron Brooks, Assistant District Attorney, Counsel for Plaintiff/Respondent State of Louisiana.
    Kevin P. Monahan, Baton Rouge, Counsel for Defendant/Relator Robert Peterson.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | ¡>KUHN, J.

Relator has been indicted with second degree murder of Gary Butler. He filed various motions to suppress evidence in which he sought suppression of statements, test results, and physical evidence on the ground there was no probable cause to believe relator committed.the offense, the affiant for the arrest and search warrants omitted material facts with intent to deceive, and, if the misstatements were made without intent to deceive, the remainder of the warrants were not sufficient to support a finding of probable cause. The trial court denied the motions to suppress, and relator filed an application for supervisory writs seeking review of that ruling. This court granted certio-rari to determine if the court erred when it denied the motions to suppress.

On February 17, 2001 at about 3:35 a.m., Gary Butler was found dead at his residence. He had been cut and stabbed numerous times, and there was a large amount of blood on the floors, walls, and furniture. Detectives Lonnie Lockett and Madeline Brooks of the Baton Rouge Police Department investigated the murder. They talked to several people and secured fingerprint samples from those individuals. None of the samples matched to prints left at the scene.

During the investigation, the detectives interviewed Gerald Lane, a man who had known the victim for several years. He told the detectives that, at about midnight (prior to the victim’s body being found), he saw the victim get into a dark green car. The victim was alone when Lane saw him. About three months after the offense, Mark Williams called detectives to say he had been talking to a friend in the neighborhood when the two of them saw a car drive by. The friend told Mark it was the same vehicle he had seen the victim in on the night of the Rmurder. The vehicle matched the description provided earlier by Gerald Lane. Mark gave the detectives the license number for the vehicle, and the detectives determined the car was registered to relator (Robert Peterson). Earlier, family members had told Lockett that the victim had been hanging out with someone named “Rob.”

Lockett included relator’s picture in a photographic display, and he showed that display to people who knew the victim. Lockett testified that those people said relator looked like the man the victim “had been seen with just prior to him getting killed.” Upon further examination, Lock-ett admitted the witnesses who viewed the display were unsure if “Rob” was in the photographic lineup but they thought the person in position number 2 (relator’s picture) was the man they knew as Rob.

The detectives then went to talk to relator. Lockett testified that “one of my objectives” was to get relator to give palm prints. Detective Brooks testified that getting the prints was the “main goal.” The detectives located relator at home at about 9 a.m. Lockett knocked on relator’s door, identified himself, and asked relator, “Do you mind coming downtown to answer some questions.” Relator agreed to go to the police station. Lockett did not tell relator he had to come, and he did not give relator any information about the crime. The detectives were investigating relator for the murder, but they did not tell him he was under investigation for the murder.

On the way to the police station, relator rode in the back seat of Lockett’s vehicle. He was not in handcuffs, and he was not under arrest. If he had wanted to open the door, he could have. According to Lockett’s testimony, if relator had |4asked to follow them in a different vehicle, he probably would have allowed it. The detectives did not view the encounter as being a custodial situation, and they did not advise relator of his rights.

Upon arrival at the detective office, Lockett “asked” relator to provide fingerprints and relator “submitted.” According to Lockett, relator submitted “voluntarily.” Detective Brooks testified that when they asked relator to submit to giving palm prints, he said, “no problem.” Lockett did not tell relator why they wanted the prints, and he did not tell relator he was not required to give the prints. The prints were taken before relator was advised of his rights or had signed a rights form.

After the detectives got the prints, they told relator they were investigating a homicide. They advised relator of his rights and secured a waiver. Relator then made a statement. He told the detectives he did not really know the victim. When the detectives told relator people had seen him with the victim, relator admitted he had gone to the victim’s apartment to help the victim move. Relator said he did not go into the apartment, and he claimed he did not know exactly where the apartment was located. Lockett told relator he did not believe him, and he gave relator the opportunity to take a voice stress analysis test. Relator said he did not want to take the test until he talked to his wife and he did not want to answer any more questions. The officers then brought relator home. Lockett estimated relator was with the officers for about one and one-half hours.

The detectives submitted the prints to the crime lab. When the crime lab notified the detectives that relator’s prints matched those left at the scene, Lockett secured a warrant for relator’s arrest and a warrant to search relator’s residence Land car. In the affidavit for the arrest warrant, Locked stated: “During the investigation detective interviewed friends of the victim and learned that the victim was last seen with the defendant prior to the stabbing.” The affidavit submitted in connection with the state’s request for the search warrant (prepared on the same date as the arrest warrant) contains somewhat different language: “During the investigation detective learned that the victim had been with the defendant (Robert W. Peterson W/M DOB 3/17/67) prior to the stabbing.”

While executing the search warrant, the officers seized relator’s car. Although it is not clear from the motions or the testimony exactly what physical evidence, other than the palm prints, relator sought to suppress, discovery responses contained in the record indicate the crime laboratory determined that bloodstains found inside relator’s vehicle matched to the victim’s DNA.

Relator testified at the hearings held on his motions to suppress. He said the officers arrived at his residence, asked if he was Robert Peterson, and asked if he would “come down to the shop with them.” He had recently been fired from Wild’s Car Care, and he thought the officers were investigating a recent theft at that business and were taking him to his former place of employment. Relator said only two officers came to his residence, and their guns were not drawn. He was not dressed when the officers arrived, and they came inside while he dressed. They did not follow him into his bedroom, and he did not object to them coming inside his residence. They did not frisk him. He had two cars at the residence, but he did not ask to drive himself. He explained that his license had been taken from him in a recent DWI arrest.

| ^Relator further testified that, after he arrived at the police station, the detectives put him in a “little room for a short period of time.” Then Lockett brought him upstairs to be printed. Lockett did not tell him he had the right to not give the prints and did not tell him he was being investigated for a murder.

Relator testified that, while he was at his house with the officers, he did not consider himself to be under arrest. It was not until Lockett took him to get the fingerprints that he considered himself to have been arrested. The officers never told him he was being arrested. When he later asked to go home, the officers waited about 10 minutes before bringing him home. When the officers dropped him off, they gave him a business card and asked him to call if he remembered or heard anything. Relator testified that he did not think he was under arrest when the officers brought him home, but he had thought he was under arrest while he was being fingerprinted.

Relator argues the evidence of his palm prints should be suppressed because he was not advised of either the reason for the detention or of his Miranda rights before his palm prints were obtained. Relator also claims there was no probable cause for his detention, and the trial court erred when it made a factual determination that he consented to the taking of his prints.

In denying the motion to suppress evidence of the palm prints, the trial court stated:

This case in my opinion smelled of deception and subterfuge. But does it equate to unlawful conduct by law enforcement? The defendant testified that he thought there was a possibility that he was being asked to go to the station to be questioned for a theft that possibly-occurred at his former place of employment .... But he never testified to any fact that leads the court to believe that he was detained against his will or [that] he was under lawful arrest either subjectively or objectively.

17Thus, the trial court concluded it was not necessary for Detective Lockett to advise relator of his Miranda rights or the reason for the request.

Under the Fifth Amendment it is not necessary to advise a defendant of his Miranda rights prior to taking his prints. See State v. Allen, 440 So.2d 1330, 1333 (La.1983). See also Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-31, 16 L.Ed.2d 908 (1966); State v. Sheppard, 350 So.2d 615, 639 (La.1977). The higher standard of individual liberty provided by the Louisiana Constitution in article I, section 16 has not been extended to include evidence that an accused might be compelled to give (such as blood, urine, hair, saliva, and prints), and the Louisiana Constitution does not provide any greater protection in this area. State v. Pierre, 606 So.2d 816, 818 (La.App. 3d Cir.), writ denied, 607 So.2d 568 (La.1992).

The Louisiana Constitution does require authorities to advise a person “fully of the reason for his arrest or detention” and of his constitutional rights if the person “has been arrested or detained in connection with the investigation or commission of any offense.” La. Const, art. I, § 13. See also La.C.Cr.P. art. 218.1. Whether or not relator was being detained when his prints were taken is also relevant for federal Fourth Amendment purposes. Mere communications between officers and citizens implicate no Fourth Amendment concerns if there is no coercion or detention. State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1183.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the U.S. Supreme Court held that fingerprints obtained as a result of an unlawful detention were obtained in violation of the Fourth and Fourteenth |sAmendments. and were inadmissible as evidence. In Davis, police officers in Meridian, Mississippi, took at least twenty-four young black men (including the 14-year-old defendant) to police headquarters where the men were questioned briefly, fingerprinted, and then released without charge. At the time of the defendant’s detention, the state did not have probable cause to arrest or a warrant for the defendant’s arrest, and the defendant did not consent to being taken to the police station. The FBI compared defendant’s prints with prints lifted at the scene of a rape and determined they matched. In response to the defendant’s argument that the fingerprint evidence should be suppressed, the State of Mississippi argued that the exclusionary rule should not apply to the fingerprint evidence because of its inherent trustworthiness. The Court rejected this argument and held that detentions for the sole purpose of obtaining fingerprints are subject to the constraints of the Fourth Amendment. 89 S.Ct. at 1397-98.

The Supreme Court reaffirmed Davis in Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985): “[N]one of these cases have sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes, whether for interrogation or fingerprinting, absent probable cause or judicial authorization.” 105 S.Ct. at 1646. The Court said that probable cause or a warrant would be required for the police to forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, even if just briefly, for investigative purposes. 105 S.Ct. at 1647. The Court also said the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion the suspect has | flcommitted a criminal act, if there is a reasonable basis for believing the fingerprinting will establish or negate the suspect’s connection with the crime, and if the procedure is carried out with dispatch (such as a brief detention in the field). 105 S.Ct. at 1647.

In the instant case, the detectives did not have probable cause when they asked relator to come to the station. Thus, if relator was under arrest or being detained at the time his prints were taken, such detention was unlawful. However, if, as the trial court determined, relator was not being detained and voluntarily agreed to provide his prints, then there was no constitutional violation.

When reviewing a trial court’s ruling on a motion to suppress based on findings of fact, great weight is placed on the trial court’s determination because the court had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. State v. Aucoin, 613 So.2d 206, 209 (La.App. 1st Cir.1992). Appellate courts will not set a credibility determination aside unless it is clearly contrary to the record evidence. But the legal findings of the trial court on a motion to suppress are subject to review without the great deference standard attached to credibility determinations. State v. Payne, 2001-3196, p. 6 (La.12/4/02), 833 So.2d 927, 933.

Arrest is defined as “the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.” La.C.Cr.P. art. 201. Whether a person has been arrested is determined by an objective test; neither the person’s subjective impression nor the lack of formality of the arrest resolves the issue. The | ^determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty. State v. Fisher, 97-1133 at p. 6, 720 So.2d at 1183. See also State v. Dickinson, 492 So.2d 173, 176 (La.App. 1st Cir.), writ denied, 498 So.2d 14 (La.1986).

In the instant case, two detectives appeared at relator’s residence at 9 a.m. They asked relator if he would come to the police station, and relator agreed. The detective’s guns were not drawn, and they did not frisk relator or put him in handcuffs. The detectives transported relator to the station in the back of a police vehicle. The detectives did not consider relator to be under arrest, but their intent was to get his prints. They did not advise him of the nature of the investigation, and they did not tell him he did not have to go with them. It was not until the fingerprinting took place at the station that relator believed he was under arrest. However, when relator refused to answer any further questions and asked to leave, the detectives stopped the questioning and brought him home. Under these circumstances, the trial court did not err when it determined relator was not being detained when he agreed to provide his prints.

Relator further argues the arrest and search warrants are invalid because the affidavits contain false and misleading information and are based on the unlawfully obtained prints. Insofar as the motion to suppress the “arrest warrant” l^was concerned, the trial court said the statement that the victim was last seen alive with relator was “not accurate,” was misleading, and was not based on fact. The trial court believed the affidavit should have instead said the victim was seen with relator between 48 and 72 hours before his death. Excising the misstatement, the trial court concluded the remaining allegations in the affidavit were sufficient to support a finding of probable cause. Regarding relator’s claim that the “search warrant” should be suppressed, the trial court found no support for relator’s allegations because the palm prints were not taken illegally.

Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed a crime. The fact that a better showing of probable cause could be made by the affiant does not detract from the showing of probable cause that is made. Minor inaccuracies in assertions in the affidavit may not affect the validity of the warrant. However, if intentional misrepresentations designed to deceive the issuing magistrate are made by the affiant seeking to obtain the warrant, the warrant must be quashed. Alternatively, if unintentional misstatements are included, these misstatements must be excised and the remainder used to determine if probable cause for the issuance of a warrant is set forth. Similarly, when the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included and retest the sufficiency of the showing of probable cause. State v. Williams, 448 So.2d 659, 662-68 (La.1984). The term “intentional” means a deliberate act made |12for the purpose of deceiving the magistrate. State v. Rey, 351 So.2d 489, 492 n. 1 (La.1977).

The same body of law applies to search warrants. The making of material and intentional misrepresentations to a magistrate in an effort to secure a search warrant involves a fraud upon the court and results in the invalidation of the warrant and suppression of the items seized. If the misrepresentations or omissions are inadvertent or negligent, the warrant should be retested for probable cause after supplying that which had been omitted or striking that which had been misrepresented. State v. Byrd, 568 So.2d 554, 559 (La.1990).

In the instant case, the allegation in the arrest warrant affidavit that “the victim was last seen with the defendant prior to the stabbing” is inaccurate and misleading, and the related statement in the search warrant is similarly misleading, although to a lesser extent. Lockett admitted in his testimony that Gerald Lane, not relator, was the last person detectives located who was known to have spoken to the victim prior to his death. When asked where he got information for the affidavit that relator was the last person seen with the victim prior to the stabbing, Lockett explained that he received information from the family that the victim had been hanging out with an unknown man named “Rob,” he received information from Lane that the victim was seen just prior to the murder getting into a particular vehicle, he received a report from Williams containing the license number for the same type of vehicle and that license number matched to relator’s vehicle, and he showed a photographic display to some of the victim’s Mends and they thought relator’s picture looked like the man the victim had been seen with.

| ^Lockett admitted that, when Gerald Lane spoke to the victim, the victim was alone and that was actually the last report of anyone seeing the victim alive. Lane testified at the hearing that he saw the victim get into the driver’s side of the vehicle. When the car passed, he did not see anybody else in the car. Lane was not asked if he provided that information to the officer. Lockett testified that he did not ask Lane if the victim got into the driver’s seat or the passenger seat, and Lane did not tell him if the victim was alone in the car or if someone else was in the car.

When asked to reconcile the allegation in the affidavit with the evidence, Lockett said,

Well, we got a dead guy there. We find out it’s just him that lives there. So then we say, well, he gets killed in his house. Who does he — who has access to be in his house with him? So we go there and we start asking, you know, his family and friends, “Okay, well, who he’s been hanging with?” You know, and everybody keeps saying he’s hanging with this white dude. And then we find that the white dude is Robert Peterson. And we found out — I forgot the ladies’ name — the ones we showed the photo lineup to. And they more or less helped to confirm that that was Robert Peterson, the guy who he’s been hanging with.

Lockett agreed he should have said in the affidavit that the victim was “last seen hanging” with relator instead of “last seen with Robert Peterson.” He said the language used in the affidavit implied that the victim was seen with the relator shortly before his death, but “hanging with” would not have implied that the victim was seen with relator so close to the time of the murder. Lockett said he did not intend to deceive anyone when he drafted the warrant. He admitted the people who saw the victim with relator saw them together two days before the murder.

| uUnder these circumstances, the trial court did not err when it denied the motions to suppress based on allegations in the affidavits. There is no indication Lockett intended to deceive the judge who signed the warrants. He knew the victim had been seen with relator, and he knew the victim was seen getting into relator’s car shortly before the murder. Excising the misleading portion of the affidavits, probable cause for issuance of the warrants still exists.

Accordingly, there being no error in the trial court’s denial of the motions to suppress evidence, the writ of certiorari is recalled, and defendant’s writ application is denied.

WRIT OF CERTIORARI RECALLED; WRIT APPLICATION DENIED.


author: I,KUHN, J.

text:
    STATE of Louisiana v. Ashley SMITH.
    No. 2003 KA 0917.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Camille A. Morvant, District Attorney, Steve M. Miller, Donald T. Carmouche, Jr., Martin Caillouet, Assistant District Attorneys, Thibodaux, Counsel for Appellee State of Louisiana.
    Stephen P. Callahan, Houma, Counsel for Defendant/Appellant Ashley Smith.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   I,KUHN, J.

The defendant, Ashley Smith, was charged by bill of information with possession with intent to distribute marijuana, a violation of La. R.S. 40:966. He pled not guilty and, after a trial by jury, was convicted as charged. Defendant filed a motion for a new trial, which the trial court denied. The trial court sentenced the defendant to imprisonment at hard labor for ten years. Subsequently, the State filed a bill charging the defendant as a third felony habitual offender. See La. R.S. 15:529.1. After a hearing, the court adjudicated the defendant a third felony habitual offender, vacated the previously imposed sentence, and resentenced the defendant to imprisonment at hard labor for twenty years. The defendant filed a pro se motion to reconsider the sentence, and the trial court denied the motion. Defendant has appealed, urging three assignments of error: 1) The trial court erred in failing to grant a mistrial and in failing to effectively admonish the jury to disregard the inadmissible testimony of Detective Bryan Fontenot; 2) The State failed to prove that defendant possessed a specific intent to distribute marijuana; and 3) The sentence imposed upon defendant is excessive and constitutes cruel and unusual punishment. Finding no merit in these assigned errors, we affirm the defendant’s conviction, habitual offender adjudication, and sentence.

FACTS

On March 21, 2002, Detective Paul La-graize of the Thibodaux Police Department observed a green Lexus traveling northbound on Canal Boulevard in Thibodaux. The Lexus, driven by the defendant, matched the description of a “be on the lookout” notice issued by the Houma Police Department earlier that day. Upon noticing that the driver was not wearing a seat belt, Lagraize conducted a |3traffic stop of the vehicle. As the driver prepared to stop, an unidentified black male exited the passenger side of the vehicle and fled.

Lagraize approached the vehicle and ordered the defendant to step out. The defendant exited and walked over to La-graize’s unit. As Lagraize conducted a safety pat down of the defendant, he observed a strong odor of marijuana in the defendant’s clothing.

Lagraize asked the defendant to produce his driver’s license and the vehicle’s registration and insurance information. The defendant indicated that the information was inside the vehicle, and Lagraize accompanied the defendant to the vehicle to retrieve it. At the vehicle, the marijuana odor was stronger. As the defendant leaned into the vehicle in search of his license, Lagraize observed, on the back seat, in plain view, a large plastic bag containing a green leafy substance, later determined to be marijuana. The defendant was arrested and the vehicle was seized.

Because the defendant refused to consent to a search of his vehicle, Lagraize secured a search warrant. Among other things, approximately 888 grams of marijuana, a digital scale, a package of cigarette papers, a Nike box with cut up cigar “blunts” (marijuana cigars), and forty-eight hundred dollars in cash were recovered from the vehicle. Defendant was charged with possession of marijuana with intent to distribute.

SUFFICIENCY OF EVIDENCE

In cases such as this one, where the defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence |4before discussing the other issues raised on appeal. State v. Hearold, 603 So.2d 731, 734 (La.1992). When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. Hearold, 603 So.2d at 734. Accordingly, we will first address the defendant’s second assignment of error, which challenges the sufficiency of the State’s evidence.

The defendant attacks his conviction of possession of marijuana with intent to distribute on two grounds. First, he contends the evidence is insufficient to prove he possessed the marijuana found in the vehicle because the State failed to exclude, as a hypothesis of innocence, the possibility that the marijuana belonged to either the owner of the vehicle or the unidentified passenger who fled the scene. Next, the defendant avers the evidence presented by the State failed to establish the requisite element of intent to distribute the marijuana.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.Code Crim. P. art. 821(B). The Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, i.e., “assuming every fact to be proved that the evidence tends to prove,” every reasonable hypothesis of |sinnocence is excluded. La. R.S. 15:438. See State v. Northern, 597 So.2d 48, 50 (La.App. 1st Cir.1992). The reviewing court is required to evaluate the circumstantial evidence in the light most favorable to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Fisher, 628 So.2d 1136, 1141 (La.App. 1st Cir.1993), writs denied, 94-0226 & 94-0321 (La.5/20/94), 637 So.2d 474 & 637 So.2d 476. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).

To support a conviction for the crime charged, the State had to prove beyond a reasonable doubt the defendant: 1) possessed the controlled dangerous substance; and 2) had the intent to distribute the controlled dangerous substance. La. R.S. 40:966(A)(1); State v. Young, 99-1264, p. 10 (La.App. 1st Cir.3/31/00), 764 So.2d 998, 1006.

On the issue of whether the evidence sufficiently proved possession, the state is not required to show actual possession of the narcotics by a defendant in order to convict. State v. Trahan, 425 So.2d 1222, 1226 (La.1983). Constructive possession is sufficient. A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, regardless of whether or not it is in his physical possession. Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the | fright to control the drug. State v. Hamilton, 2002-1344, p. 11 (La.App. 1st Cir.2/14/03), 845 So.2d 383, 392. However, the mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located is insufficient to support a finding of constructive possession. State v. Harris, 94-0970, p. 4 (La.12/8/94), 647 So.2d 337, 338 (per curiam).

A determination of whether or not there is “possession” sufficient to convict depends on the peculiar facts of each case. State v. Gordon, 93-1922, p. 9 (La.App. 1st Cir.11/10/94), 646 So.2d 995, 1002. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute possession include his knowledge that 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. State v. Toups, 2001-1875, p. 4 (La.10/15/02), 833 So.2d 910, 913.

In the instant case, the State presented the testimony of Det. Lagraize. The detective’s unrebutted testimony established that the defendant, whose clothing reeked of marijuana odor, was the driver of the green Lexus vehicle, which also smelled of strong marijuana odor and contained a large amount of marijuana in plain view on the backseat. According to Det. Lagraize, the marijuana was located a distance of approximately eighteen to twenty-four inches away from the seat in which the defendant sat.

We find that the evidence presented provided a sufficient basis upon which the jury could have inferred that the defendant was aware of the presence of the |7marijuana in the vehicle and that he exercised dominion and control sufficient to constitute constructive possession. The defendant undoubtedly had knowledge of the presence of the marijuana in the vehicle in that it was located in plain view in close physical proximity to his seat and it emitted a strong odor. It is impossible to believe that anyone inside the vehicle could avoid seeing and/or smelling the large amount of marijuana, just as Det. Lagraize had from his position outside the vehicle.

Through cross-examination and closing arguments, the jury was made aware of the hypotheses of innocence urged by the defendant, i.e., that the vehicle owner or the passenger possessed the marijuana. The verdict indicates that the jury apparently rejected these hypotheses as unreasonable. We find no error in the jury’s conclusion on this issue.

As to the evidence of defendant’s intent to distribute the marijuana, it is well settled that intent to distribute may be inferred from the circumstances. State v. Hearold, 603 So.2d at 735. Factors useful in determining whether the State’s circumstantial evidence is sufficient to prove intent to distribute 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 Isparaphernalia evidencing intent to distribute. State v. House, 325 So.2d 222, 225 (La.1975).

In the absence of circumstances from which an intent to distribute may be inferred, mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. State v. Greenway, 422 So.2d 1146, 1148 (La.1982). For mere possession to establish intent to distribute, the State must prove the amount of the drug in the possession of the accused and/or the manner in which it was carried is inconsistent with personal use only. See State v. Hearold, 603 So.2d at 736. The presence of large sums of cash also is considered circumstantial evidence of intent to distribute. State v. Young, 99-1264 at p. 11, 764 So.2d at 1006; State v. Jordan, 489 So.2d 994, 997 (La. App. 1st Cir.1986).

Analyzing the facts of the instant case and applying the House factors, we conclude that the trier of fact’s finding of specific intent to distribute marijuana was sufficiently supported by the circumstantial evidence presented. The state proved through expert testimony that the large amount of marijuana the defendant possessed was inconsistent with personal use. The marijuana, approximately 888 grams, was packaged in one large Ziploc plastic bag, a packaging method consistent with upper level drug distribution. Det. Fonte-not, the State’s expert witness, testified that 888 grams of marijuana makes approximately 592 marijuana cigarettes, an amount inconsistent with personal consumption. Further supporting the finding of intent to distribute was the drug paraphernalia (a digital scale) and the large amount of cash (approximately $4,700) found inside the vehicle.

| aThus, viewing the totality of the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt, and to the exclusion of any reasonable hypothesis of innocence, that the defendant possessed the marijuana with the specific intent to distribute it. The evidence presented by the State, both direct and circumstantial, clearly supports the charged offense. This assignment lacks merit.

MOTION FOR MISTRIAL

In his first assignment of error, the defendant contends the trial court erred in failing to grant his motion for a mistrial when the State’s expert witness provided opinion testimony on an ultimate issue to be decided by the jury; namely, whether the amount of marijuana seized was consistent with drug distribution. Defendant further contends the trial court erred in failing to effectively admonish the jury to disregard the opinion testimony of the State’s witness.

As proof of the defendant’s specific intent to distribute, the State tendered Det. Bryan Fontenot of the Thibodaux Police Department as an expert in the area of narcotics. Thereafter, over the defendant’s objection, the trial court accepted Det. Fontenot as an expert in “the activities conducted by individuals engaged in the distribution of marijuana.”

Fontenot testified regarding the characteristics and activities of drug users and/or dealers. Fontenot testified that the street value for the amount of marijuana found in the defendant’s possession (approximately 888 grams) is approximately $5,070.48. Officer Fontenot opined that, in his experience, 888 grams of marijuana would not be for personal consumption. The exact language of the contested testimony was as follows:

lm[Counsel for the State]: Is it your expert opinion that 888 grams of marijuana would not be for personal consumption?
[Fontenot]: That is correct. That is not for personal consumption.

Prior to the submission of the case to the jury, the defendant moved for a mistrial based upon Fontenot’s expert testimony. He argued that Fontenot presented prejudicial opinion testimony on his guilt, an ultimate issue for determination by the jury. Following a hearing, the trial court denied the motion. The court admonished the jury regarding Fontenot’s statement.

La.Code Evid. art. 704 provides as follows:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Louisiana jurisprudence has condemned the use of hypothetical questions that parallel the actual fact situation of the case when the prosecutor gets the expert witness to give an opinion that the person described “would be involved in the distribution of marijuana,” State v. Wheeler, 416 So.2d 78, 79 (La.1982), or an opinion that the person described “would be there for the purpose of selling or distributing.” State v. White, 450 So.2d 648, 649 (La.1984).

In his testimony, Fontenot stated that in his opinion 888 grams of marijuana (the amount seized from the defendant’s vehicle) was not for personal consumption. We find that this was permissible opinion testimony, since knowledge of the amount of marijuana usually possessed for sale or distribution, _[jjas distinguished from amounts used or possessed for personal consumption, was not a fact within the knowledge of the average individual. Fon-tenot’s testimony in no way expressed an opinion as to whether the defendant was guilty of the offense charged. Fontenot did not testify that the defendant, or a hypothetical person under similar facts, intended to distribute marijuana. The jury, as the ultimate finder of fact, was still required to decide the ultimate issue of whether the defendant possessed the requisite intent to distribute the marijuana. See State v. Hollins, 99-278, p. 19 (La.App. 5th Cir.8/31/99), 742 So.2d 671, 684, writ denied, 99-2853 (La.2/5/01), 778 So.2d 587.

Furthermore, we find no error in the language of the admonition provided by the trial court. As noted above, we do not find that Fontenot presented any prohibited testimony. Thus, the trial court’s instruction to the jury indicating that it was the ultimate trier of fact was more than sufficient. See State v. Ducre, 2001-2778, p. 2 (La.9/13/02), 827 So.2d 1120, 1121 (per curiam). This assignment of error lacks merit.

EXCESSIVE SENTENCE

In his final assignment of error, the defendant contends the trial court erred in imposing an excessive sentence. While he acknowledges that the twenty-year sentence imposed is the statutory minimum sentence under the Habitual Offender Law, the defendant argues the sentence is excessive based upon the facts and circumstances of this case. Specifically, the defendant notes that he is a youthful offender with no history of prior violent crimes.

The Habitual Offender Law, La. R.S. 15:529.1, provides in part as follows:

(A)(1) Any person who, after having been convicted within this state of a felony... thereafter commits any subsequent felony within Lathis state, upon conviction of said felony, shall be punished as follows:
* * *
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. ...

At the time of the instant offense, La. R.S. 40:966(B)(2) provided that any person convicted of possession of marijuana with intent to distribute shall be sentenced to “a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence, and pay a fine of not more than fifty thousand dollars.”

In the instant case, the defendant’s underlying conviction is possession with intent to distribute marijuana. The predicate offenses are two cocaine possession convictions; the first in 1996 and another in 2000. As a third felony habitual offender with these predicates, the defendant was exposed to a potential sentence of imprisonment at hard labor for a minimum of twenty years to a maximum of sixty years, with at least five years being served without the benefit of parole. See La. R.S. 15:529.1(A)(l)(b)(i) & La. R.S. 40:966(B)(2).

The Louisiana Supreme Court has repeatedly upheld the constitutionality of the Habitual Offender Law and, accordingly, the minimum sentences it imposes |13are likewise presumed to be constitutional. State v. Johnson, 97-1906, pp. 5-6 (La.3/4/98), 709 So.2d 672, 675; State v. Dorthey, 623 So.2d 1276 (La.1993).

A sentencing judge must always start with the presumption that a mandatory sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it that would rebut this presumption of constitutionality. In order to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, that is, that because of unusual circumstances he 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. Downward departures from the minimum sentence under the Habitual Offender Law should occur only in rare situations. State v. Lindsey, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343, citing State v. Johnson, 97-1906 at p. 9, 709 So.2d at 677.

In addition, the trial judge must keep in mind the goals of the habitual offender statute, which are to deter and punish recidivism, and that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Lindsey, 99-3302 at p. 5, 770 So.2d at 343.

As noted above, defendant’s sentence of twenty years is the minimum under the statute and, thus, is presumed constitutional. It is therefore incumbent upon |uthe defendant to rebut this presumption. In support of his claim that he is one of those rare persons who is deserving of a downward departure from the mandatory minimum sentence, the defendant cites only his age (23 years) and the fact that both of his prior convictions involved non-violent crimes.

Based upon our review of the record in this ease, we do not find that the defendant has clearly and convincingly shown that he is exceptional. The defendant made no showing of exceptional circumstances to justify a lesser sentence. The defendant’s age and lack of history of prior violent crimes are insufficient circumstances to warrant a downward departure from the mandatory minimum sentence of imprisonment at hard labor for twenty years. As explained by the Supreme Court in Lindsey, the mere fact that none of a defendant’s crimes were crimes of violence has already been taken into account by the habitual offender laws.

Furthermore, we find that this defendant, who has repeatedly committed felony drug offenses, is exactly the type of recidivist that the Habitual Offender Statute intends to punish severely. Accordingly, we find no error in the trial court’s imposition of the twenty-year sentence in this case. The sentence was not excessive. This assignment of error lacks merit.

For the foregoing reasons, the defendant’s conviction, habitual offender adjudication, and sentence are affirmed.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The defendant did not testify or present any evidence at trial of this matter.

      . It is noted that although there was no contemporaneous objection to this testimony at the time it was presented, the defendant objected to such testimony prior to the trial court accepting Fontenot as an expert witness.


author: LSOL GOTHARD, Judge.

text:
    Brian GIBBS v. DELASANDRO PAINTING AND DECORATING.
    No. 03-CA-1144.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Sean P. Early, New Orleans, LA, for Plaintiff/Appellant.
    Wade A. Langlois, III, Windhorst, Gau-dry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   LSOL GOTHARD, Judge.

In this workers’ compensation case claimant, Brian Gibbs, appeals a decision that found he suffered a work-related accident which aggravated a preexisting condition, but found further that he forfeited his rights to the payment of benefits pursuant to La. R.S. 23:1208. Defendant, Delasan-dro Painting and Decorating (Delasandro), filed an answer to the appeal challenging the lower court’s finding that claimant had suffered an aggravation of a preexisting injury. Defendant also argues the court erred in failing to award repayment of all benefits previously paid to the claimant, as well as reasonable litigation and investigation expenses, and in the failure to impose a fine.

Mr. Gibbs, who was employed as a painter with Delasandro, fell from a ladder while painting the side of a two-story home in the course and scope of his employment on March 6, 2001. He was taken by ambulance to Charity Hospital. He sustained injuries to his face, head, knee, leg, arm, back and neck in the fall. Delasandro paid workers’ compensation benefits until May, 2002. Because benefits were terminated, Mr. Gibbs filed a disputed claim for compensation shortly thereafter. Discovery was conducted and in due course the matter went to a trial on the merits, after which the judgment complained of was rendered.

|sAt the trial, the fact that claimant fell from the ladder while painting in the course and scope of his employment was the subject of a stipulation by both parties. The parties also stipulated to the introduction of various documents and depositions regarding claimant’s medical treatment.

At the hearing, the court heard testimony from Marco Delasandro, who is the owner of Delasandro Painting and Decorating. Mr. Delasandro testified that he knew claimant for about fifteen years and that Mr. Gibbs worked for the company as a painter off and on. Mr. Delasandro classified Mr. Gibbs as a hard, but somewhat unreliable, worker. Mrs. Delasandro, who does the payroll for Delasandro testified that claimant earned $10.00 per hour and sometimes worked a forty hour week. Mrs. Delasandro also testified that she went to the hospital after she was informed of Mr. Gibbs’s accident. When she arrived, Mr. Gibbs was standing outside smoking. His face and hands were bloody. His face was bruised and swollen.

Mr. Gibbs testified that he is thirty-six-years old and has been doing construction work since he was sixteen. He is currently unemployed and living in a motel room. Mr. Gibbs stated that he worked for Dela-sandro several times over the past ten years. As Mr. Gibbs explained it, he would work for a while, then quit, and then return. He testified that he has had minor injuries while working in the past, but nothing for which he filed a workers’ compensation claim. He acknowledged that he did file a lawsuit as a result of an automobile accident, which was subsequently settled. Mr. Gibbs admitted having problems with his neck prior to this accident in question herein. He stated that he had bone spurs on his neck which caused arthritis. This condition was discovered after diagnostic X-rays were conducted at East Jefferson Hospital. However, he denied ever having an MRI. Mr. Gibbs further testified that he made several visits to the emergency room of East Jefferson Hospital, some of which were for neck problems.

14Mr. Gibbs stated that when he fell from the ladder, his head hit the metal edge of the ladder, causing a large gash on his forehead. He estimated he fell about twenty-two feet and landed on his head. He was taken to Charity Hospital by ambulance where he was treated for a sprained knee and wrist, and a jagged gash between his eyes. As a result of the fall he had to undergo plastic surgery on his face.

In regard to the neck injury, Mr. Gibbs testified that after the fall more X-rays of the cervical area were conducted. The tests confirmed that Mr. Gibbs had bone spurs and he was told by doctors that his pain was from an old injury. He was released to return to work. Mr. Gibbs attempted to return to work shortly after the fall, but the pain in his neck was too intense. He consulted Dr. Robert Steiner who ordered an MRI. As a result of the findings in the MRI, Dr. Steiner recommended surgery. Mr. Gibbs was referred to Dr. Gregory Dowd, who performed a cervical fusion at the C5-6 disc level on October 8, 2001. During this period Mr. Gibbs was receiving weekly workers’ compensation and medical benefits. However, all benefits were stopped on February 1, 2002. Since that time, Mr. Gibbs attempted to work with his father, who owns a construction company, doing sheetrock finishing and painting. However, the pain was unbearable and Mr. Gibbs was, unable to work more than a few days at a time without resting for several days. Because he was unable to complete the work given him in a timely manner, Mr. Gibbs can no longer work in construction work.

On cross-examination, Mr. Gibbs testified that he sprained his neck and hurt his back in an automobile accident in 1997. At that time he consulted Dr. Stewart Altman for that injury. The neck pain lasted longer than the back pain, and over the years he has developed some arthritis and bone spurs in his neck which have caused pain. Mr. Gibbs stated that he did not recall Dr. Altman referring him to ^another physician for treatment at the time of the 1997 injury. Mr. Gibbs stated that he has been taking Vicodine for his neck pain since the accident in 1997.

Mr. Gibbs also acknowledged that he injured his neck in two work-related accidents in 1998, and in motor vehicle accidents in April and September of 2000. He further stated that he began to see Dr. Isadore Briekman for the neck and shoulder pain in May of 2000, and continued seeing him on a monthly basis until the fall in question herein. Mr. Gibbs also admitted hurting his neck and right shoulder pulling up a tree stump in December of 2000. At that time he had a CAT scan of his neck and was told he had bone spurs. Mr. Gibbs denied being told he had a herniated disc in his neck and that he should see a neurologist or an orthopedist. However, he did recall Dr. Briekman telling him to get an MRI. In conclusion, Mr. Gibbs maintained that the pain he was experiencing before the fall was made considerably worse by the fall, and that he is now unable to work.

Diane Gibbs, Mr. Gibbs’ mother, testified for the claimant. She stated that her son had some minor pain before the fall, but was considerably worse afterward. He is now unable to work in construction as he was doing for years before the fall.

Dr. John Olsen, a neurologist who also treated Mr. Gibbs, testified that Mr. Gibbs came in after the surgery complaining of headaches, neck pain radiating into the right arm, and back pain radiating into both hips. Dr. Olsen testified that Mr. Gibbs had multiple disc herniations including the C5-6, C4-5 and C6-7, as well as some cord compression. Dr. Olsen explained that Mr. Gibbs had herniations above and below the fusion, and it is a surgical decision whether to fuse all three levels.

Dr. Olsen’s findings after testing were that Mr. Gibbs had evidence of root involvement on the right side at C6-7, with some involvement at C5. He also had feet and ankle problems secondary to cord damage sustained in the fall.

Dr. Olsen referred Mr. Gibbs to Scott Vaughn, a physical therapist, for a functional evaluation. The results of the evaluation showed a right sided strength | filoss of 13%, with a five percent impairment for the shoulder flexation with involvement of the axillary nerve. He also showed a 13% strength loss in elbow flexion with involvement of the brachial plexus, which gives rise to a total upper extremity impairment of 17%. The evaluation also showed a spine impairment of 23% and a right upper extremity impairment of 10%, giving rise to a 31% impairment of the whole person.

Dr. Olsen reviewed the findings of earlier diagnostic tests conducted before the surgery and opined that Mr. Gibbs’ condition has improved dramatically, but his cervical spine remains significantly compromised. In conclusion, Dr. Olsen stated that he found Mr. Gibbs to be disabled for his former occupation, which required him to do a significant amount of heavy work. Dr. Olsen attributed the injury to the fall and stated that Mr. Gibbs may need further surgery in the future.

On cross-examination, Dr. Olsen testified that Mr. Gibbs first consulted him over a year after the fall and related that the pain began as a result of the fall. When Dr. Olsen took Mr. Gibbs’ medical history, he did not indicate any prior neck problems. Dr. Olsen also testified that he had the MRI reports taken at the time of the surgery, but he did not have the records from Charity Hospital or Dr. Dowd.

Dr. Isadore Brickman, a general surgeon who treated Mr. Gibbs before the fall, testified that Mr. Gibbs first came in for treatment on May 11, 2000. He complained of neck pain and shoulder pain from a motor vehicle accident about one year earlier, although he indicated to the doctor that the pain was ongoing for about five years. Dr. Brickman ordered X-rays, gave him some pain medications, and gave him a letter of referral to an orthopedic physician. Dr. Brickman understood that the physician treating Mr. Gibbs at the time of the accident wanted an MRI, but Mr. Gibbs was unable to afford one. Dr. Brickman saw Mr. Gibbs monthly and prescribed Vicodine, Prozac and Arthrotec for pain, depression and 17inflammation. Mr. Gibbs did not see a specialist because he had no insurance and could not afford to pay the cost himself. Although Dr. Brick-man wrote several referrals for Mr. Gibbs to go to LSU Medical Center to have the necessary tests, he did not go. Dr. Brick-man suspected that Mr. Gibbs had a herniated disc of the cervical spine with neuro-pathy, but without the diagnostic tests, he could not be certain. By December 18, 2000, the pain in Mr. Gibbs’ neck and upper extremities became acute and Dr. Brickman advised his patient to go to Charity Hospital immediately. At that time Mr. Gibbs was experiencing continuous pain with decreased sensation, par-aestheia, decreased motor function, and Dr. Brickman felt Mr. Gibbs needed immediate orthopedic consultation and probable admission. When Mr. Gibbs returned to Dr. Brickman’s office on January 9, 2001, he had scheduled an MRI for February 5th, and was still in great pain. Dr. Brick-man encouraged Mr. Gibbs to return to Charity Hospital Emergency Room and have the procedure sooner. Mr. Gibbs returned to Dr. Brickman’s office on January 25, 2001 and February 5th and 26th. Mr. Gibbs’s pain was unrelenting in his neck and right arm. Dr. Brickman explained that he was unable to order the MRI, consequently he was relying on Charity Hospital to order the test. He did not see an MRI report while he was treating Mr. Gibbs.

When Mr. Gibbs returned to see Dr. Brickman on March 20, 2001, he told the doctor about the fall on March 6th which is the subject of this litigation. This fall worsened the neck pain and intensified the radiculopathy.

The record also contains documentary evidence including a report from Dr. Gordon Nutik dated April 4, 2001, shortly after the fall. In the report, Dr. Nutik stated that “(p)ast history is significant for a neck injury following a motor vehicle accident in 1997. He states that he did have a CT scan of his neck in 2000 but no previous MRI. He states he was having no ongoing symptoms referable to his neck after recovery.”

|sThe deposition of Dr. Gregory Dowd is in the record. In that deposition Dr. Dowd stated that he first saw Mr. Gibbs on June 12, 2001 for the purpose of a neurosurgical consultation. At that time Mr. Gibbs reported neck and right arm pain caused by his fall on March 6, 2001. Mr. Gibbs gave Dr. Dowd a medical history at that time which included mention of prior back and neck pain. Dr. Dowd’s understanding of Mr. Gibbs’ pain was that he had more constant pain in his neck after the March 6th fall and that the pain was now radiating into his arm. Dr. Dowd conducted an MRI which showed that Mr. Gibbs had an uncovertebral hypertrophy at the C5-6 level, with posterior bony projection from the disc space. These findings were consistent with Mr. Gibbs’ complaint of pain. Dr. Dowd explained that the uncovertebral hypertrophy found in the MRI could be from the bone spurs or from a fresh herniation. Although Dr. Dowd felt that it was caused by the bone spur, he admitted there is no way of telling for certain it was not a fresh herniation. Dr. Dowd continued in his testimony and stated that even if the cervical area affected was developing gradually, the fall he experienced likely aggravated and triggered his radiculopathy.

At the deposition, Dr. Dowd was shown medical records from East Jefferson Hospital in December of 2000 which included a CT scan that showed a similar diagnosis to the MRI taken by Dr. Dowd. Dr. Dowd commented that such findings would explain the neck, shoulder, and arm pain experienced by Mr. Gibbs. Dr. Dowd again stated that he knew of the prior injury to the neck as a result of the 1997 vehicle accident, but was unaware that the pain had radiated into the arm before the March 6th fall.

After conservative treatment failed to relieve the pain, Dr. Dowd performed a C5-6 anterior discectomy on Mr. Gibbs on October 8, 2001. The surgery relieved the pain in the shoulder and arm and lessened the numbness. Dr. Dowd testified further that Mr. Gibbs is progressing normally, but does have some |9residual pain in his neck. Mr. Gibbs was released for regular activity on April 30, 2002. In June of 2002, Mr. Gibbs returned to Dr. Dowd with complaints of pain which indicated a different distribution of nerve irritation. To determine if this pain was related to the neck injury or a new injury in the arm, Dr. Dowd ordered an EMG nerve conduction study. However, that test was not conducted because it was not approved by the workers’ compensation provider. In Dr. Dowd’s opinion from the examination he conducted, Mr. Gibbs’ new problem was a new injury to the ulnar nerve and unrelated to the fall in March of 2001.

When questioned about Mr. Gibbs’ ability to return to work in construction, Dr. Dowd testified that he should be able to return to activity without limitations. However, the doctor did acknowledge that a fusion at one level of the cervical spine puts greater force on the discs surrounding the fusion which can lead to new problems.

Dr. Dowd was asked directly whether the March 2001 fall necessitated the surgery. Dr. Dowd opined that the fall caused the need for the surgery. He stated, “I would say yes but for his fall of March 2001 he may not have needed that surgery.”

As previously stated, the trial court rendered a judgment after trial in which it found that Mr. Gibbs sustained a compen-sable injury in the fall of March 6, 2001. The court further found that the fall aggravated a preexisting condition. However, the court also found that Mr. Gibbs forfeited his rights to the payment of workers’ compensation benefits from defendants pursuant to La. R.S. 23:1208.

Both parties appealed the decision. Claimant argues the trial court erred in finding he forfeited his rights to compensation. Defendant maintains the trial court was correct in that finding, but argues the trial court erred in not ordering claimant to repay all benefits paid. In the alternative, defendant argues the trial court erred in finding that claimant aggravated a prior condition in the fall.

|inLa. R.S. 23:1208A provides:

It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

La. R.S. 23:1208 authorizes forfeiture of benefits upon proof that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The party who requests that the benefits be forfeited must show that the employee’s statements were not only false, but they must also show that the statements or misrepresentations were willful and deliberately done with the intent to obtain benefits. Resweber v. Haroil Const. Co., 94-2708 (La.9/05/95), 660 So.2d 7. This Court has fully summarized the appropriate interpretation and application of La. R.S. 23:1208 in Marler v. New Orleans Council, Boy Scouts, 01-1167 (La.App. 5 Cir. 3/13/02), 815 So.2d 131.

The requirements for forfeiture under Section 1208 are broadly worded and are applicable to false statements or representations, including those concerning prior injuries. In reviewing the findings of fact, we also are mindful that statutory forfeiture is a harsh remedy and, therefore, must be strictly construed. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. False statements that are inadvertent or inconsequential will not result in forfeiture. After establishing that a claimant has made a false statement or misrepresentation which could result in forfeiture of benefits, the hearing officer must make a factual determination as to whether, based on the record, the statement was willfully made specifically to obtain benefits, and thus defraud the workers’ compensation system.
Whether a claimant forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal unless the finding is clearly wrong or manifestly erroneous. Reasonable evaluations of credibility and reasonable inferences of fact by the trial court will not be disturbed, even though our appellate review may lead us to another reasonable evaluation.
(citations omitted)
Id. 815 So.2d at 135.

Inin the instant case, there is no indication in the record of findings of fact on which the workers’ compensation court based its finding that compensation for the exacerbation of the preexisting condition was forfeited. The court does not specify the misrepresentations made by claimant that it considered willful and consequential enough to warrant the severe penalty of forfeiture.

In brief to this court, defendant argues that claimant made false statements regarding his prior neck injuries by “down playing his neck injury.” Defendant cites several misrepresentations regarding prior neck injuries made to doctors about the extent of the neck injury and the number of accidents which occurred before the fall at issue herein on March 6, 2001. Defendant does not maintain that Mr. Gibbs was untruthful about having a prior neck injury; rather, the argument is restricted to the statements made by Mr. Gibbs regarding the extent of the prior injury and the deterioration of the cervical disc before the fall.

We are reminded that the statutory forfeiture of workers’ compensations benefits is penal in nature and must be strictly construed. Town of Grand Isle v. Eschette, 02-96 (La.App. 5 Cir. 5/29/02), 820 So.2d 1122, writ den. 02-1810 (La.10/4/02), 826 So.2d 1131. We have reviewed the evidence presented to the lower court and find that claimant’s inconsistencies and misrepresentations in this case do not rise to the level of willfulness required to forfeit compensation pursuant to La. R.S. 23:1208. We hold that the lower court was clearly wrong in that determination.

Mr. Gibbs has been consistent from the outset in his statements that he had a prior neck injury which began with a motor vehicle accident in 1997. He has also consistently maintained that the degree of pain he experienced after the fall was more intense than that suffered before the fall. He did not have an MRI before the _Jjgfall because he was unable to afford one and he had no insurance. Thus, the exact extent of the cervical problem before the fall cannot be determined. Neither party disputes that claimant fell about 20 feet from a ladder, landing on his head and face, while working in the course and scope of his employment.

Although claimant clearly had cervical and other complaints of pain, he was able to work during his treatment. Both Dr. Brickman and Dr. Dowd testified that the fall worsened Mr. Gibbs’ cervical condition. Dr. Dowd specifically testified that but for the fall Mr. Gibbs would not have needed the surgery. Dr. Dowd stated that Mr. Gibbs reported neck problems since a motor vehicle accident in 1997 which have continued to varying degrees, but became worse after the fall. While defendant did point out that Mr. Gibbs did not tell Dr. Dowd that the pain radiated into his left arm, we do not find that inconsistency to be of a nature to penalize claimant in such a harsh way. See; Ivy v. V’s Holding Co., 02-1927 (La.App. 1 Cir. 7/2/03), 859 So.2d 22.

We understand that the Legislature enacted the anti-fraud provisions of the Louisiana Workers’ Compensation Act to address the growing problem of fraudulent claims made for workers’ compensation benefits. However, we do not find this to be a fraudulent claim. Claimant herein has worked in construction work for many years in spite of cervical problems. He suffered a severe fall in which the trial court found he aggravated that preexisting condition. We believe this is the type of worker who is entitled to workers’ compensation benefits and we find that the inconsistencies in this case do not rise to the level of fraud.

We have considered defendant’s alternative argument that the lower court erred in finding the Mr. Gibbs had a preexisting condition that was aggravated by the fall and find it unconvincing. The testimony of the treating physicians is more than ample evidence to support the trial court’s finding of fact on that issue.

|13For the reasons given herein, we reverse the judgment of the trial court in so far as it decrees that claimant forfeited his rights to the payment of workers’ compensation benefits from defendants pursuant to La. R.S. 28:1208. In all other aspects, we affirm the judgment. Costs of this appeal are assessed to defendant.

REVERSED IN PART; AFFIRMED IN PART