author: I, VICTORY, J. 11 CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. John SYLVIA.
    No. 2001-K-1406.
    Supreme Court of Louisiana.
    April 9, 2003.

      William R. Campbell, Jr., New Orleans, Counsel for Applicant.
    Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Valentin M. Solino, Leslie P. Tullier, Counsel for Respondent.
   I, VICTORY, J.

We granted this writ to determine whether the court of appeal erred in finding that the State presented evidence sufficient to sustain the defendant’s conviction for possession of cocaine. After reviewing the facts and the applicable law, we affirm the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On December 23, 1999, Officers Joshua Burns and Stanley Doucette of the New Orleans Police Department Downtown Development District Station were on patrol. At approximately 3:50 p.m., the officers observed the defendant and another man screaming and pushing one another at the comer of St. Joseph and Carondelet Street. Upon stopping to investigate, the officers immediately noticed that both subjects appeared to be intoxicated and smelled strongly of alcohol. Both subjects were placed under arrest for public intoxication. Subsequently, during a search incident to this arrest, Officer Burns discovered a short metal tube with a piece of wire mesh inside in the defendant’s rear pants pocket. The tube was burned at both ends. Officer Burns testified that he immediately recognized this object as a device commonly used to smoke crack cocaine. In addition to the “crack pipe,” a cigarette lighter was found in defendant’s coat pocket. No cigarettes were found on the defendant. Officer Burns confiscated the crack pipe and cigarette lighter, and defendant was charged with possession of drug paraphernalia, a violation of La. R.S. 1,40:1033.

Upon returning to the station, the confiscated pipe was sent to the Crime Laboratory of the New Orleans Police Department. Officer Harry O’Neal of the New Orleans Police Department Crime Lab testified as an expert in the identification and analysis of controlled dangerous substances. Officer O’Neal testified that he performed a gold chloride crystal test and a gas chromatograph test to determine if the pipe contained any illegal drug residue. Both tests revealed the presence of cocaine. Subsequently, defendant was charged with possession of cocaine, a violation of La. R.S. 40:967(0(2).

Defendant was tried by a jury of six and was found guilty of the lesser included offense of attempted possession of cocaine. The trial court adjudicated the defendant a habitual offender, and he was sentenced to five years imprisonment at hard labor. On April 11, 2001, the Fourth Circuit Court of Appeal, in an unpublished opinion, affirmed defendant’s conviction, finding the evidence constitutionally sufficient to support the conviction. State v. Sylvia, 00-1638 (La.App. 4 Cir. 4/11/01), 793 So.2d 572. We granted defendant’s writ application. State v. Sylvia, 01-1406 (La.6/21/02), 818 So.2d 792.

DISCUSSION

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/2896), 668 So.2d 1132. A reviewing court must consider the record as a whole, as would any rational trier of fact. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the ^prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988). The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319 (La.1992).

The defendant in the instant case was charged with possession of cocaine, a violation of La. R.S. 40:967. To support a conviction for possession of cocaine, the State must present evidence establishing beyond a reasonable doubt that the defendant was in possession of the drug and that he knowingly and intentionally possessed it. La. R.S. 40:967(C); State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. Guilty knowledge is an essential element of the crime of possession of cocaine. State v. Edwards, 354 So.2d 1322 (La.1978). The elements of knowledge and intent are states of mind and need not be proven as facts, but may be inferred from the circumstances. State v. Trahan, 425 So.2d 1222 (La.1983). Evidence which would support a conviction of a charged offense would necessarily support a conviction of a lesser included offense. State v. Simmons, 01-0293 (La.5/15/02), 817 So.2d 16. Attempted possession of cocaine is an authorized responsive verdict to a charge of simple possession of cocaine. La. C.Cr.P. art. 814(50).

The defendant’s sole assignment of error is that the evidence was insufficient to support a conviction for attempted possession of cocaine. There is no question that a conviction for possession of cocaine may rest upon possession of any amount of the drug. La. R.S. 40:967(C). Thus, the issue before us today is whether the defendant’s possession of drug paraphernalia containing trace amounts of cocaine is sufficient to prove beyond a reasonable doubt that defendant “knowingly” possessed the cocaine, i.e., that defendant had the requisite “guilty knowledge” to support a conviction for possession of cocaine.

LDrug residue cases are certainly not uncommon. Found in these cases are several examples of corroborating evidence which would be sufficient to support the inference of guilty knowledge to defendants who are in possession of residue-containing drug paraphernalia. For example, cocaine residue, visible to the naked eye, would be evidence sufficient to support a conviction for possession of cocaine. State v. Shields, 98-2283 (La.App. 4 Cir. 9/15/99), 743 So.2d 282; State v. Porter, 98-2280 (La.App. 4 Cir. 5/12/99), 740 So.2d 160. Evidence of flight or furtive behavior by the defendant may also support a finding of guilty knowledge sufficient to prove the defendant’s knowing possession of cocaine. State v. Postell, 98-0503 (La.App. 4 Cir. 4/22/99), 735 So.2d 782. Possession of multiple pieces of drug paraphernalia, or evidence of recent drug use, are factors evidencing guilty knowledge. State v. Knight, 00-1051 (La.App. 4 Cir. 5/23/01), 794 So.2d 33 (citing State v. Drummer, 99-0858 (La.App. 4 Cir. 12/22/99), 750 So.2d 360 and State v. Monette, 99-1870 (La.App. 4 Cir. 3/22/00), 758 So.2d 362). Finally, physical possession by the defendant of an instrument with no utility other than the ingestion of drugs is indicative of his guilty knowledge that the instrument contained controlled dangerous substances. State v. Spates, 588 So.2d 398 (La.App. 2 Cir.1991).

In State v. Spates, supra, officers were executing a search warrant on a residence in Bossier City. The defendant, who was standing in the front yard of that residence, was searched in connection with the execution of the warrant. The officer conducting the search found a metal tube with a piece of Brillo pad on the end in defendant’s pants pocket. The officer testified that this tube was known as a “straight shooter,” and was a device used exclusively for smoking crack cocaine. The officer seized the crack pipe and subsequent testing revealed that the tube contained cocaine residue. In affirming the defendant’s conviction for possession of cocaine, the Second Circuit pointed to State v. Porter, 344 So.2d 1031 (La.1977), wherein this | Rcourt concluded that a defendant’s possession of narcotics paraphernalia is relevant evidence of a defendant’s guilty knowledge of his possession of controlled dangerous substances. Spates, 588 So.2d at 402. The Spates court continued, noting that such a “straight shooter” is “utterly without utility other than for the ingestion of ... cocaine.” Id. As such, the court found that “from the nature of the defendant’s possession of an object with no other use, save as drug paraphernalia, there is no other reasonable explanation but that [the defendant] had guilty knowledge that the straight shooter contained cocaine residue.” Id.

The Spates decision has been cited with resounding approval by a majority of circuits. See State v. Jones, 94-1261 (La.App. 3 Cir. 5/17/95), 657 So.2d 262 (“Physical possession of an instrument with no utility other than the ingestion of crack cocaine is sufficient under the Jackson v. Virginia standard.”); State v. McMooain, 95-2103 (La.App. 1 Cir. 9/27/96), 680 So.2d 1370 (“Defendant in the present case could be convicted for possession of cocaine using only evidence of the crack cocaine residue found in the pipe on his person.”); State v. Recasner, 98-2518 (La.App. 4 Cir. 12/22/99), 750 So.2d 336 (Although defendant did not attempt to flee or exhibit furtive behavior when the officers approached, “the peculiar nature of the ... ‘straight shooter’... used exclusively for smoking crack cocaine, was indicative of guilty knowledge that the pipe contained cocaine residue.”); State v. Gaines, 96-1850 (La.App. 4 Cir. 1/29/97), 688 So.2d 679 (physical possession of a “straight shooter” is one of several independent circumstances from which guilt can be inferred); State v. Jones, 00-1942 (La.App. 4 Cir. 7/25/01), 792 So.2d 117; State v. Tassin, 99-1692 (La.App. 4 Cir. 3/15/00), 758 So.2d 351; State v. Lavigne, 95-0204 (La.App. 4 Cir. 5/22/96), 675 So.2d 771; State v. Guillard, 98-0504 (La.App. 4 Cir. 4/7/99), 736 So.2d 273; State v. Handy, 00-0051 (La.App. 4 Cir. 1/24/01), 779 So.2d 103; State v. Knight, supra; State v. McKnight, 99-0997 (La.App. 4 Cir. 5/10/99), 737 So.2d 218. | fiIt is important to note that the majority of the above cases which have directly approved of the Spates reasoning came out of the Fourth Circuit, the very court from which the instant appeal is now taken.

Furthermore, this court has recently expressed approval of Spates and its progeny in State v. Lipscomb, 00-2836 (La.1/25/02), 807 So.2d 218. The issue in Lipscomb was whether the crack pipe seized from the defendant during a protective frisk for weapons was discovered pursuant to a valid exercise of the “plain feel” exception to the warrant requirement. In concluding that the seizure was valid under the “plain feel” exception, this court stated that “[b]ecause of their peculiar association with narcotics, crack pipes provide circumstantial evidence of an individual’s guilty knowledge that he is in possession of cocaine even when the amount involved constitutes no more than the residue coating the pipe’s walls.” Id. at 220. As support for this reasoning, this court cited Spates, Jones, and Knight, supra.

Notwithstanding, the defendant contends that the instant case is indistinguishable from State v. Postell, supra. In Postell, two police officers approached the defendant as he was standing on the sidewalk. One of the officers testified that as the officers neared the defendant, he saw the defendant look at him and then stoop and drop something on the ground. The officer then shined his flashlight in the area where the defendant had dropped the object and observed a shiny metal pipe laying on the ground. The officer testified that he was unable to accurately detect the presence of drugs in the pipe. The defendant was arrested for possession of drug paraphernalia, and the pipe was seized and sent to the crime lab for testing. The pipe tested positive for cocaine. The defendant was subsequently charged with and convicted of possession of cocaine.

In reversing the defendant’s conviction for possession of cocaine, the Fourth Circuit stated that “without supporting evidence, guilty knowledge, as required to 17convict a person of possession of cocaine, cannot be gleaned from mere possession of the paraphernalia.” Id at 787. However, a close reading of Postell reveals that the court’s decision in that case rested heavily upon the fact that the defendant was not in physical possession of the crack pipe.

In discussing the merits of the case, the Postell court stated that the crack pipe “was found on the sidewalk near him, and not on his person. Therefore, the State presented circumstantial evidence in an effort to satisfy its burden of proof[.]” Id at 786 (emphasis added). Thus, although the court in Postell referred to the “mere possession of paraphernalia,” it was in fact declaring that the mere constructive possession of paraphernalia is not, by itself, enough to support a conviction for possession of cocaine. This interpretation of Postell is supported by the only case to date which has followed, rather than distinguished, Postell. See State v. Magee, 98-1325 (La.App. 4 Cir. 12/15/99), 749 So.2d 874. In Magee, the Fourth Circuit was presented with facts nearly identical to those in Postell. Because of this, the Magee court decided to follow Postell, and in the process distinguished Spates, supra. In its reasons, the court stated that “[i]n Spates, the Court noted that, ..., there was no failure to physically connect Spates with the cocaine because the cocaine was seized directly from the defendant’s person[.] However, in the case sub judice, the residue-containing pipe was not found on the defendant’s person; it was found on the ground.” Magee, 749 So.2d at 878.

Considering that constructive possession is a legal fiction, rather than a tangible fact, the additional corroborative element required by the Postell and Magee courts may be correct. However, we need not make this determination because these facts are not before us. The defendant herein was in physical possession of the crack pipe when it was discovered by the officers, and, as such, Postell is inapplicable to this case.

| sIn this case, the defendant was found to be in physical possession of a crack pipe known as a “straight shooter” which contained cocaine residue. As we have seen, physical possession of an instrument with no utility other than the ingestion of crack cocaine is one of several types of corroborating evidence which is sufficient to support the inference that the defendant knowingly possessed the cocaine. Although such evidence is, in itself, sufficient to support the conviction of the defendant herein, the defendant’s intent to possess the cocaine is further corroborated by the fact that he was in possession of a lighter, but no cigarettes were found on his person. The significance of this fact is underscored by Officer Burns’ testimony that “a lighter is used to heat up the pipe to burn the cocaine and inhale.” In addition, both officers testified that the pipe was burned at both ends. It is obvious that the instrument had been used for its intended purpose at some time in the past and had not been cleaned, thereby increasing the probability of cocaine residue being found in the pipe and making this probability significantly more obvious to the possessor of the pipe.

Unlawful possession of cocaine is a general intent crime. La. R.S. 40:966(C); La. R.S. 14:11; State v. Banks, 807 So.2d 594 (La.1975). General criminal intent is present “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2) (emphasis added). It was entirely reasonable for a jury to conclude that by the defendant’s possessing an obviously used pipe he must have realized, in the ordinary course of human experience, that it was also reasonably certain that he was possessing the residue contained in that pipe and, therefore, possessing the cocaine. Thus, viewing |gthe evidence presented in a fight most favorable to the prosecution, we find that the defendant’s possession of an obviously used instrument with no utility other than the ingestion of cocaine satisfies the State’s burden of proving the defendant had the requisite general intent to support a conviction for possession of cocaine.

DECREE

Accordingly, for the foregoing reasons, we affirm the judgment of the court of appeal.

AFFIRMED.

JOHNSON and KIMBALL, JJ„ dissent.

CALOGERO, C.J., dissents and assigns reasons.

11 CALOGERO, Chief Justice,

dissents and assigns reasons.

In this case, the defendant and another man were inebriated and fighting on the street when the police approached them to stop the disturbance. In a pat-down search, the officers retrieved a “crack pipe” from the defendant and arrested him for possession of drug paraphernalia. Neither the officers nor the laboratory technician who later tested the object could see any cocaine or cocaine residue in or on the object. It was not until the laboratory technician rinsed the seized object out with a solvent that chemicals which make up cocaine were detected in the rinsing solution. In my view of such evidence, there can be no rational basis for finding this defendant guilty of knowingly and intentionally possessing a controlled dangerous substance of which only chemical traces were later detected after laboratory testing.

Therefore, the issue presented in this case is whether a chemical trace amount of cocaine imperceptible to the naked eye and rinsed out of a “crack pipe” seized from the defendant’s person is sufficient to show that the defendant knowingly or intentionally possessed cocaine. Given that the legislature has enacted separate statutes prohibiting the possession of drug paraphernalia and prohibiting the knowing and intentional possession of cocaine, I do not believe that the legislature intended the latter statute to encompass the possession of an ostensibly used, but empty, “crack pipe” from which invisible, chemical traces of a dangerous substance may be rinsed |?;with a solvent. The jury’s compromise verdict of guilty of attempted possession of cocaine suggests that those citizens, too, believed that a trace amount of cocaine detectable only through chemical testing cannot support a conviction for the knowing and intentional possession of cocaine.

Even if I were to agree with the majority’s holding that corroborating evidence may be used to prove guilty knowledge in a residue case in which the defendant is found to be in possession of drug paraphernalia that is later determined by chemical testing to contain invisible trace amounts of a controlled dangerous substance, ante, p. 361, I disagree with the majority’s conclusion that the evidence actually introduced by the State in this case was sufficient to prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed cocaine, as required by La.Rev.Stat. 40:967(C). In my view, because insufficient circumstantial evidence was introduced to establish that the defendant knew the pipe actually contained any cocaine, residue or otherwise, the State failed to prove the defendant possessed the requisite knowledge or intent to support conviction of the charged offense.

In reviewing the sufficiency of the evidence, the court must determine that the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all the elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984). To support a conviction for possession of a controlled dangerous substance, the State must prove the defendant was in possession of an illegal substance and that he knowingly or intentionally possessed the substance. La.Rev. Stat. 40:967(C). “Guilty knowledge” is an essential element of the offense of possession of a controlled dangerous substance. State v. Goiner, 410 So.2d 1085 (La.1982).

|sThe majority holds that a conviction for possessing an illicit substance may rest on trace or residue amounts, but only in conjunction with other facts and circumstances from which a rational juror, viewing the evidence as a whole and in the light most favorable to the prosecution, might find beyond a reasonable doubt an intentional or knowing possession of a controlled dangerous substance. The majority relies primarily on State v. Spates, 588 So.2d 398 (La.App. 2nd Cir.1991). In Spates, the court of appeal found possession of a “straight shooter” pipe containing cocaine residue was sufficient evidence of guilty knowledge, because the police testified that the instrument had no purpose other than facilitating the ingestion of crack cocaine. Spates, 588 So.2d at 401.

The majority, in attempting to apply Spates to this case, strains vainly to find evidence of guilty knowledge in the trial record. The trial transcript reveals that the police came upon the defendant involved in a contretemps with another man, and both men exhibited signs of intoxication. In a search incident to the defendant’s arrest for public intoxication, the officers found a metal “crack pipe” in the defendant’s rear pocket. Neither of the arresting officers testified that the defendant attempted to flee when they approached or that the defendant attempted to conceal the pipe in any way. Nor did the defendant make any exculpatory statements. Furthermore, the State’s own expert in the identification and analysis of controlled dangerous substances testified that, when he received the pipe, he could not upon a visual inspection see any residue on the tube or inside the pipe. Although the court of appeal reasoned that the defendant’s failure to react in any way was perhaps more indicative of his inebriation than a lack of anxiety, the fact remains that the circumstantial evidence introduced by the State does not rule out a reasonable hypothesis of innocence that the defendant did not react because he in fact had no | ¿knowledge that the pipe contained cocaine residue.

Additionally, even though the State’s witnesses described how the pipe might be used to inhale crack cocaine, there was no testimony, as there was in Spates, that the drug paraphernalia seized from the defendant had no function except for the ingestion of cocaine. The majority, ante, p. 368-64, calls the item seized from the defendant a “straight shooter;” however, no witness testified as such at trial, nor did any witness testify that the object had no other function but to facilitate the ingestion of crack cocaine. And, while the majority makes much of the fact that a cigarette lighter was found on the defendant’s person, the arresting officer conceded that a lighter could be used for purposes other than to heat cocaine in a pipe. Finally, the mere fact that the pipe had previously been used does not support a finding that this defendant knew that the pipe contained a chemical trace of cocaine at the time of his arrest and that he intentionally possessed such a trace amount. If I pour out my bucket of sand at the beach, thump the bottom a couple of times, and then walk back to my car thinking I had disposed of all my sand, how can I be said to have knowingly and intentionally possessed the one speck of sand dust that stuck to the side of my empty bucket? Without more incriminating evidence, the fact that I was carrying a bucket I had taken to the beach and had used to hold sand does not support the inference that later I knowingly and intentionally possessed a sand particle that I thought I had disposed of at the beach. This remains so even if I were carrying a shovel in my other hand.

Because the defendant in the instant ease displayed no overt acts indicating guilty knowledge, because no residue was visible to the eye of even a trained laboratory scientist, and because no witness testified that the item seized from the defendant’s person had no purpose other than to facilitate the ingestion of crack Rcocaine, no circumstantial evidence was introduced by the State to establish that the defendant knowingly and intentionally possessed a controlled dangerous substance at the time of his arrest. Accordingly, in my view, the defendant’s conviction is not supported by sufficient evidence under the standard articulated in Jackson v. Virgi nia, and, therefore, the conviction and sentence should be reversed.

In sum, I disagree with the majority’s view that possession of a used crack pipe from which invisible, chemical traces of cocaine may be rinsed via a solvent is sufficient to support a conviction for the knowing and intentional possession of cocaine at the time the defendant was arrested. Moreover, even if I were to agree that circumstantial evidence may supply the required element of guilty knowledge, I do not believe the State has sufficiently introduced such evidence in the instant case. Consequently, I respectfully dissent.

      . It is important to note that the defendant herein was convicted, not of possession of cocaine, but rather of the lesser included offense of attempted possession of cocaine, a specific intent crime. La. R.S. 14:27(A). However, a finding of specific intent in this case is unnecessary. If an offense is statutorily designated as a responsive verdict, the defendant must timely object to an instruction of that verdict on the basis that it cannot be supported by the evidence. State ex. rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). If he does not so object, the reviewing court may affirm the conviction if the evidence would have supported the greater offense, regardless of whether the evidence supports a conviction for the statutory responsive verdict returned by the jury. Id.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Walter L. WILSON v. STATE of Louisiana.
    No. 2002-KH-2725.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Wilson, Walter L.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 6-80-432; to the Court of Appeal, First Circuit, No. 2002 KW 0545.

Relator represents that the district court has failed to act timely on a writ application he filed on or about December 8, 1999.. If relator’s representation is correct, the district court is ordered to consider and act on the application. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. James MORRISON v. STATE of Louisiana.
    No. 2002-KH-2811.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Morrison, James;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 233-762.

Relator represents that the district court has failed to act timely on a motion to correct an illegal sentence he filed on or about August 15, 2000. If relator’s representation is correct, the district court is ordered to consider and act on the motion. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Wade A. GUILBEAU v. Betty RAMSEY, et al.
    No. 2003-CC-1346.
    Supreme Court of Louisiana.
    May 19, 2003.
   In re St. Paul Insurance Company;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2001-1214; to the Court of Appeal, Third Circuit, No. CW-03-00287.

Stay denied. Writ denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Bradley COLE, Individually and on Behalf of His Minor Child, Leah Ashton Cole and Denise Cole, Individually v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2003-C-1330.
    Supreme Court of Louisiana.
    May 21, 2003.
   In re Louisiana Department of Public Safety & Corrections; Louisiana, State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 431,432; to the Court of Appeal, First Circuit, No. 2000 CA 1222.

Writ denied. Stay denied.


text:
    Bradley COLE, Individually and on Behalf of His Minor Child, Leah Ashton Cole and Denise Cole, Individually v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2003-C-1349.
    Supreme Court of Louisiana.
    May 21, 2003.
   In re Louisiana Department of Public Safety & Corrections; Louisiana, State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 431,432; to the Court of Appeal, First Circuit, No. 2000 CA 1222.

Writ denied. Stay denied.


text:
    Roy H. HARRISON, Jr., et al. v. RR MORRISON AND SONS, INC. et al.
    No. 2003-CC-1397.
    Supreme Court of Louisiana.
    May 21, 2003.
   In re Harrison, Roy H. Jr. et al.; Harrison, Roy H. Ill; Harrison, Zekeya M.; Blunt, Brittaini; Henderson, Jewel; Taylor, Roshandra; Rencher, Varnell; McDaniel, Sonjanita; Whitlock, Dinicia; McNeal, Kim; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 00-1947-H; to the Court of Appeal, Second Circuit, No. 37677-CW.

Stay denied. Writ denied.


author: | .GUIDRY, J. | ¶ FITZSIMMONS, Judge,

text:
    Barbara Dupre Wife of/and Ferrel DUPRE v. John FLOYD, M.D., Victor Tedesco, M.D., Charles Ledoux, M.D., and Terrebonne General Medical Center.
    No. 2002 CA 0153.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Estelle Mahoney, Louis St. Martin, Stephen J. Johnson, Houma, Counsel for Plaintiffs/Appellants Barbara Dupre and Ferrell Dupre.
    Stacy LeCompte, Joseph Reilly, Houma, Counsel for Defendants/Appellees John Floyd, M.D., Victor Tedesco, M.D., and Charles LeDoux, M.D.
    Carl T. Conrad, Houma, Counsel for Defendant/Appellee Hospital Service District No. 1 of Terrebonne Parish, the owner and opeator of Terrebonne General Medical Center.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

Plaintiffs, Barbara and Ferrel Dupre, appeal from a judgment dismissing with prejudice their suit against Hospital Service District No. 1 of Terrebonne Parish, the owner and operator of Terrebonne General Medical Center (TGMC). For the reasons that follow, we amend that portion of the judgment dismissing the action to provide that the dismissal is “without prejudice” and affirm.

FACTS AND PROCEDURAL HISTORY

On February 26, 2001, Barbara and Fer-rel Dupre (Dupre’s) in proper person filed a petition for damages naming as defendants John Floyd, M.D., Victor Tedesco, M.D., Charles LeDoux, M.D., and Terre-bonne General Medical Center. The petition contained service information, but by notation dated February 26, 2001, Barbara Dupre requested that service be withheld. Thereafter, on May 30, 2001, TGMC filed a declinatory exception raising the objection that service was not timely requested. A hearing on the exception was held on June 29, 2001, and in a judgment rendered and signed in open court, the district court found that the insufficiency of service of process under La. C.C.P. art. 1201(C) was not a defect in the proceeding which plaintiffs could cure by amendment or other action, and therefore dismissed plaintiffs action against TGMC with prejudice. It is from this judgment that the Dupre’s now appeal, asserting that the district court erred in dismissing their action with prejudice based on their failure to request service within the ninety-day period as provided in La. C.C.P. art. 1201(C).

DISCUSSION

Defendants, John Floyd, M.D., Victor Tedesco, M.D., and Charles LeDoux, M.D., filed a motion to dismiss on June 4, 2001, for plaintiffs failure to comply with the citation and service requirements of La. C.C.P. art. 1201. In a judgment signed on July 27, 2001, the trial court granted defendants’ motion and dismissed plaintiffs’ ease without prejudice. However, TGMC filed a declinatory exception | ¡¡raising the objection that service was not timely requested. Therefore, because TGMC filed a declinatory exception, rather than a motion to dismiss pursuant to La. C.C.P. art. 1672(C), the relevant procedural articles are La. C.C.P. arts. 925 and 932.

The exception of insufficiency of service of process is one of the declinatory exceptions enumerated in La. C.C.P. art. 925. When a judgment is rendered sustaining a declinatory exception, La. C.C.P. art. 932 provides the following:

When the grounds of the objection pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.
If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice. [Emphasis added.]

According to this language, the Code allows for an action to be dismissed when service of process is insufficient, but it neither mandates that such dismissal be “with prejudice” nor does it require that the dismissal be “without prejudice.” See Maxwell v. Swain, 524 So.2d 826, 827 (La.App. 3rd Cir.1988).

The function of a declinatory exception is to decline the jurisdiction of the court, but it does not tend to defeat the action. La. C.C.P. art 923. However, La. C.C.P. arts. 1673 and 1841 state that a dismissal with prejudice has the effect of a final judgment on the merits. A dismissal with prejudice based on the declinatory exception of insufficiency of service of process would therefore defeat the action, due to the operation of res judicata upon any refiled action, which is contrary to the underlying rationale of a declinatory exception, since such an exception should not defeat the action. See Maxwell v. Swain, 524 So.2d at 827. Therefore, we conclude that a judgment of dismissal based on an exception of insufficiency of service of process should be dismissed without prejudice, and it was error for the | ¿district court to dismiss the Dupre’s action with prejudice for failure to timely serve their petition. See Augustine v. Celebration Station, 99-0962 (La.7/2/99), 747 So.2d 3; Thomas v. Quality Inn Westbank, 01-379 (La.App. 5th Cir.11/27/01), 802 So.2d 930; Spears v. Parish of Jefferson, 00-332 (La.App. 5th Cir.10/18/00), 772 So.2d 747.

CONCLUSION

For the foregoing reasons, we amend that portion of the district court’s judgment dismissing the Dupre’s suit “with prejudice” to provide that such dismissal be “without prejudice.” All costs of this appeal are to be borne by the appellee, Hospital Service District No. 1 of Terre-bonne Parish, the owner and operator of Terrebonne General Medical Center.

AMENDED. AFFIRMED AS AMENDED.

FITZSIMMONS, J., concurs and assigns reasons.

| ¶ FITZSIMMONS, Judge,

concurring with reasons.

Although Louisiana Code of Civil Procedure article 932 provides the procedure following the sustaining of article 925 dec-linatory exceptions, Code of Civil Procedure article 1672(C) is more directly related to the lack of service at issue in this case. Code of Civil Procedure article 1672(C) specifically addresses the failure to serve a named defendant “within the time proscribed by [ajrticle 1201(C) .... ” Thus, under the particular facts here, procedural article 1672(C) controls and mandates dismissal of the action “without prejudice .... ” For these reasons, I respectfully concur in the result.


author: 1,PER CURIAM.

text:
    STATE of Louisiana v. Tommy P. VERDIN.
    No. 2002 KW 2671.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 3, 2003.

      Ellen Daigle Doskey, Assistant District Attorney, Counsel for Relator, State of Louisiana.
    Michael S. Zerlin, Attorney at Law, Counsel for Respondent, Tommy P. Ver-din.
    Before: DOWNING, GAIDRY, and CIACCIO, JJ.

      . Philip C. Ciaccio is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   1,PER CURIAM.

Defendant is charged with DWI third offense. He filed a motion to quash in which he argued his prior DWI guilty plea from February 21, 1995 should be quashed because the concept of enhancement was not explained during the Boykin colloquy. At the hearing held on the motion to quash, defendant also argued that the pri- or guilty plea was defective because it was conducted as a group Boykin. The trial court granted the motion to quash. The State of Louisiana seeks review of that ruling, and defendant has filed an opposition to the writ. For the following reasons, we grant the writ, reverse the trial court’s ruling, and remand for further proceedings.

In the prior DWI conviction from February 21, 1995, defendant was charged with DWI first offense. He was not represented by counsel. He and two other defendants pled guilty to first offense DWI during the same proceeding. In response to questioning by the court, defendant provided his full name, address, date of birth, social security number, and telephone number. The court advised the defendants of the nature of the offense and the elements of the offense. In response to questioning, each defendant told the court that he understood the charge. The court then advised the defendants extensively about their rights — the right to plead not guilty, the right to trial before a judge, the right to be represented by an attorney and to court-appointed counsel if indigent, the right to listen to the witnesses the state might call at trial, the right to have the state prove guilt beyond a reasonable doubt, the right against self-incrimination, the right to testify at trial and present a defense, and the right to subpoena witnesses to testify at the trial. The court advised the defendants that, if they pled guilty, it would be too late to change their minds later. The court further informed the defendants that the |3sentence would be imposed under a provision of law that would “hopefully” keep the offense off of their driving records, but the court warned that if they were arrested again for DWI they would be charged as a DWI second offender and the penalty would be “substantially greater” than for a first offense. The court advised the defendants that, if they went to trial, the state would be required to introduce testimony from the police officer who conducted the breath test about how the machine was used and the state would have to establish that certain regulations were followed. Finally, the court advised the defendants that, if they pled guilty, they would not have the opportunity to see the witnesses the state would call at trial. In response to questioning, each defendant said he understood his rights, had not been promised anything or threatened, and was pleading guilty because the charge was true.

All of the defendants were placed on probation and were told that they were being sentenced under article 894 of the Code of Criminal Procedure. The court explained the application of article 894 and told defendant that his driver’s license would be suspended as a result of the guilty plea. Prior to pleading guilty, defendant heard the sentence imposed on one of the other defendants. Defendant then pled guilty and was sentenced the same as that other defendant.

In order for a misdemeanor guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. It is the state’s burden to show that the defendant knowingly and expressly waived his Boykin rights when entering this guilty plea. To meet this requirement, the state may rely on a contemporaneous record of the 14guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. Everything that appears in the entire record concerning the predicate, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor, and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. State v. Cadiere, 99-0970 (La.App. 1st Cir.2/18/00), 754 So.2d 294, 296-97, writ denied, 2000-0815 (La.11/13/00), 774 So.2d 971.

Boykin only requires that a defendant be informed of the three rights enumerated above. The jurisprudence has been unwilling to extend the scope of Boy-kin to include advising the defendant of any other rights which he may have. Cadiere, 754 So.2d at 297. Although advice with respect to a defendant’s sentencing exposure and the possibility of enhancement may facilitate the taking of a voluntary guilty plea, such advice has never formed part of the Supreme Court’s core Boykin requirements for the entry of a presumptively valid guilty plea. See State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, 1164; State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517 (per curiam); State v. Wright, 517 So.2d 458, 460 (La.App. 1st Cir.1987), writ denied, 522 So.2d 1093 (La.1988).

Additionally, an uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity, and seriousness of the charge. Determining the ^defendant’s understanding of the waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. Generally, the court is not required to advise a defendant who is pleading guilty to a misdemeanor of the dangers and disadvantages of self-representation. The critical issue on review of the waiver of the right to counsel is whether the accused understood the waiver. What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge. Whether an accused has knowingly and intelligently waived his right to counsel is a question that depends on the facts and circumstances of each case. Cadiere, 754 So.2d at 297.

In the motion to quash, defendant claimed the prior guilty plea was improperly entered because the trial court did not advise him of the possibility of enhancement. The transcript refutes defendant’s allegation that the court did not advise of the possibility of enhancement. The court advised defendant that if he was arrested again for DWI he would be charged as a DWI second offender and the penalty would be “substantially greater” than for a first offense. In the writ, defendant argues that this limited advice was inadequate. As indicated above, advice about the penalty and the possibility of enhancement is not part of the core Boykin requirements. We are aware that a different panel of this court has said such advice is required for a valid waiver of the right to counsel. In State v. Deshotel, 98-0730 (La.App. 1st Cir.2/23/99), 730 So.2d 994, 997, the court said in dicta that, for the waiver of counsel in an uncounseled DWI first offense guilty plea to be valid, the defendant “[a]t a minimum” must have been advised of the possibility of enhancement. No authority was cited for this position, and such a position appears contrary to the position taken by the Supreme Court in State v. Strain, 585 So.2d 540 (La.1991), wherein the court noted the distinctions between the waiver of counsel at a felony trial (wherein advice of the penalty range is | ¿required) and the waiver of counsel in an uncomplicated misdemeanor guilty plea. See also State v. Rodrigue, 01-377 (La.App. 5th Cir.8/28/01), 795 So.2d 488, 494 (under the jurisprudence, advice with respect to sentencing exposure is not essential for the waiver of counsel in a misdemeanor DWI guilty plea). In any event, even under the position taken in Deshotel, under the facts and circumstances of the prior guilty plea the court’s advice was adequate to inform defendant of the possibility of enhancement.

In granting the motion to quash, the trial court expressed dislike for group Boykins. Although a personal colloquy between a trial judge and the defendant is preferred, group guilty pleas are not automatically invalid. See State v. Richard, 2000-0659 (La.9/29/00), 769 So.2d 1177 (per curiam); State v. Filer, 2000-0073 (La.6/30/00), 762 So.2d 1080 (per curiam); State v. Marler, 2000-0493 (La.App. 1st Cir.2/16/01), 797 So.2d 706, 711-12. In the prior DWI guilty plea, the court advised three defendants of their rights in the same proceeding. However, the court personally addressed each defendant and the proceedings were adequate to establish that defendant knowingly and expressly waived his Boykin rights and the right to counsel.

In his opposition to the writ, defendant relies on La.Code Crim. P. art. 556. Article 556 was amended in 2001 to regulate the entry of misdemeanor guilty pleas. Under article 556(B)(1), in a misdemeanor case in which the conviction can be used to enhance the grade or statutory penalty for a subsequent offense, the court shall not accept a guilty plea without informing the defendant of the mandatory minimum penalty and the maximum possible penalty. This requirement does not apply retroactively to predicate guilty pleas entered prior to the amendment of article 556. See State v. Phillips, 99-1629 (La.App. 1st Cir.5/12/00), 762 So.2d 172, 174. Moreover, even if article 556 applied to the prior guilty plea, a finding of invalidity would not be automatic. Violations of article 17556 which do not rise to the level of a Boykin violation are subject to harmless error review. See Guzman, 769 So.2d at 1164-66. See also La.Code Crim. P. art. 556(D).

Accordingly, the trial court’s ruling granting defendant’s motion to quash is reversed, and this matter is remanded to the district court for further proceedings.

RULING ON MOTION TO QUASH REVERSED; REMANDED.

      . In the opposition to this writ, defendant appears to also contest his prior DWI conviction from June 18, 1998. However, at the hearing held on the motion to quash he specifically told the court that he was attacking only the conviction from February 21, 1995.


author: | ¡¡GUIDRY, J. |,FITZSIMMONS, Judge,

text:
    Mary BEL, Individually and on Behalf of the Estate of Her Husband, Douglas Bel, Linda B. Mire and Carolyn B. Heard v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Allstate Insurance Company, Regal Insurance Company, Craig Lewis, Individually and dba Craig Lewis State Farm Agency.
    No. 2002 CA 1292.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 30, 2003.

      Craig J. Robichaux, Mandeville, Counsel for Plaintiffs/Appellants Mary Bel, Linda B. Mire, and Carolyn Heard.
    Adrianne L. Baumgartner, Covington, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company and Craig Lewis, individually and dba Craig Lewis State Farm Agency.
    Laura S. Schneidau, Metairie, Counsel for Defendant Regal Insurance Company.
    Barbara Stavis Wolf, Covington, Counsel for Defendant Allstate Insurance Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | ¡¡GUIDRY, J.

In this wrongful death and survival action, plaintiffs, Mary Bel, individually and on behalf of the estate of her husband, Douglas Bel, Linda B. Mire, and Carolyn B. Heard, appeal the trial court’s granting of defendant’s, Craig Lewis, individually and d/b/a Craig Lewis State Farm Agency (Craig Lewis), peremptory exception raising the objection of prescription/peremption. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 3, 1997, Douglas Bel was involved in a vehicular accident wherein he was fatally injured. On the date of the accident, Douglas Bel, and his wife Mary Bel, had in effect an automobile insurance policy with State Farm Mutual Automobile Insurance Company (State Farm). This policy provided for 100/300 limits on liability coverage as well as 100/300 limits on uninsured/underinsured motorist (UM) coverage. Additionally, Douglas and Mary Bel had a Personal Liability Umbrella Policy (PLUP) with a $1,000,000.00 limit on liability coverage. However, prior to the date of the accident, Douglas Bel executed a waiver on April 20, 1993, rejecting UM coverage under the PLUP on all vehicles.

As a result of the aforementioned accident, Mary Bel, individually and on behalf of the estate of her husband, Douglas Bel, Linda B. Mire, and Carolyn B. Heard filed a petition for damages on April 24, 1998, naming Craig Lewis, their State Farm agent, as a defendant, and alleging various acts of negligence in relation to the waiver of UM coverage under the PLUP. Thereafter, on November 29, 2001, Craig Lewis filed an Exception of Prescription/Peremption and/or Motion for Summary Judgment, claiming that all of the plaintiffs’ claims are preempted by the three-year peremptive period contained in La. R.S. 9:5606.

|SA hearing on Craig Lewis’ exception/motion was held on February 20, 2002. In a judgment signed on March 8, 2002, the trial court granted Craig Lewis’ exception raising the objection of prescription/peremption, and dismissed the plaintiffs’ claims against Craig Lewis with prejudice. Additionally, the trial court found that in light of its ruling regarding per-emption, Craig Lewis’ motion for summary judgment was moot. Because this judgment was not designated as final, the record on appeal was supplemented with a revised judgment, signed by the trial court on July 12, 2002, which designated the judgment as final pursuant to La. C.C.P. art. 1915(B).

ASSIGNMENTS OF ERROR

The plaintiffs now appeal from this judgment and assert the following assignments of error:

1. The trial court erred as a matter of law in defining the scope of duty that Craig Lewis owed to Mary Bel to insure that her interests were properly insured consistent with her insuring needs.
2. The trial court erred in failing to find that Mary Bel [was] never given the option of insuring her interests.
3. The trial court erred in finding that Mary Bel’s claim was preempted [sic],

DISCUSSION

Peremption

In support of his exception raising the objection of prescription/peremption, Craig Lewis relies on La. R.S. 9:5606, which governs actions against insurance Lagents and reads:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in subsection A of this Section are peremp-tive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended. [Emphasis added.]

Peremption differs from prescription in several respects. While prescription prevents the enforcement of a right by legal action, but does not terminate the natural obligation, peremption extinguishes or destroys the right. Coffey v. Block, 99-1221, p. 6 (La.App. 1st Cir.6/23/00), 762 So.2d 1181, 1186, writ denied, 00-2226 (La.10/27/00), 772 So.2d 651. Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period; it may not be interrupted or suspended and there is no provision for its renunciation. Reeder v. North, 97-0239, p. 12 (La.10/21/97), 701 So.2d 1291, 1298. However, as an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended. Dauterive Contractors, Inc. v. Landry and Watkins, A Law Partnership, 01-1112, p. 11 (La.App. 3rd Cir.3/13/02), 811 So.2d 1242, 1251.

Originally enacted in 1991, La. R.S. 9:5606 was amended by the legislature in 1999. The 1999 amendment substituted “peremptive” in subsection (C) for “preemptive” and added subsection (D), which expressly makes both the one-year and three-year periods of limitation per-emptive. 1999 La. Acts 905 § 1. However, the three-year limitation period, at issue in the instant case, is regarded as peremptive in both the original enactment and the 1999 amendment. As such, if a claim of negligence is not filed within three years of the alleged act, it is extinguished by peremption, regardless of whether or not it was filed within one year from the date of discovery. Huffman v. Goodman, 34,361 at 8, 784 So.2d at 725.

According to La. R.S. 9:5606(A), the three-year peremptive period commences on the date of the alleged act, omission, or neglect. In the instant case, plaintiffs’ petition alleges that Craig Lewis was negligent in misrepresenting the nature and type of coverage issued to and/or needed by Douglas and Mary Bel, in explaining the nature and purpose of UM coverage, and in misleading Douglas and Mary Bel into believing that UM coverage under the PLUP was not necessary as they already had UM coverage under their auto policy. Further, at the hearing on the exception/motion, plaintiffs argued that Craig Lewis, as Douglas and Mary Bel’s agent, had a duty to either procure the insurance that they were seeking, or to advise them that he was unable to place that coverage.

The record shows that Douglas and Mary Bel met with Craig Lewis two or three times in an effort to reduce their premium. At these meetings, they discussed |fitheir insurance options, namely the implications of eliminating certain coverage, which included coverage under the PLUP. However, the Bels did not want to eliminate any of the coverage suggested by Craig Lewis. Some of these suggestions included eliminating comprehensive or raising their deductible. However, Mary Bel stated during her deposition that she did originally think of eliminating the PLUP altogether, but that Craig Lewis suggested that she and her husband keep the PLUP if they had assets to protect. Additionally, Mary Bel stated that Craig Lewis explained that they had UM coverage under their auto policy and therefore they did not need it under the PLUP.

Sometime after these meetings, Douglas Bel signed a waiver, rejecting UM coverage under the PLUP on April 20, 1993. Additionally, Mary Bel signed a form rejecting UM coverage under the PLUP on June 3, 1994. Mary Bel stated in her deposition that she did not think that there were any changes to her policy nor did she think that she discussed her coverage with Craig Lewis after she signed the rejection form in 1994. Therefore, any negligence on the part of Craig Lewis in misrepresenting the type of coverage or explaining the nature of UM coverage under the PLUP occurred on or before these dates.

Additionally, in regard to Craig Lewis’ duty to procure the insurance Douglas and Mary Bel sought, such duty relates to the obtaining of the waivers rejecting UM coverage under the PLUP. It was at those times that Douglas and Mary Bel indicated what coverage they wanted Craig Lewis to place. Therefore, as the plaintiffs’ petition for damages was not filed until April 24, 1998, five years after the waiver was signed by Douglas Bel and almost four years after Mary Bel signed a form rejecting UM coverage, it falls clearly outside the three-year period within which the action had to be filed.

Further, according to La. R.S. 9:5606(C), the only statutory exception to the three-year peremptive period is a claim of fraud. See also Coffey v. Block, 99-1221 at 7, 762 So.2d at 1186. Plaintiffs did not argue the application of the fraud exception in the trial court, nor have they alleged any actions of fraud on the part of Craig Lewis. Rather, to avoid the harsh implications of peremption, plaintiffs contend that because the insurance policy renewed every six months, each time that policy renewed, Craig Lewis misrepresented the nature of their coverage and breached his duty as Mary Bel’s agent. As such, plaintiffs argue that there was a continuing tort or, in the alternative, that there was a new and distinct tort at each renewal.

We first address plaintiffs’ continuing tort argument. In Saia v. Asher, 01-1038 at 7 n.9, 825 So.2d at 1262, involving professional accounting liability, we stated that “plaintiffs’ assertion that defendants’ actions constituted a continuing tort thereby suspending 'prescription’ is erroneous, as the time limitations provided by La. R.S. 9:5604 are peremptive and as such cannot be suspended.” See also Dauterive Contractors, Inc. v. Landry and Watkins, A Law Partnership, 01-1112 at 26, 811 So.2d at 1259 (noting that continuous tor-tious conduct and continuous damages may suspend prescription, but the pertinent time limitation was peremptive, and per-emption may not be suspended). Because the time limitation in the instant case is peremptive, and the principle of continuing torts is a suspensive principle, ineffective against the effects of peremption, we find the continuing tort doctrine inapplicable to plaintiffs’ claims.

Plaintiffs also argue, in the alternative, that each renewal of the PLUP constituted a separate and distinct tort. In order for each renewal to be the basis of a separate tort, the complained of conduct must consist of separate and distinct acts, each of which gives rise to immediately apparent damages. See Bustamento v. Tucker, 607 So.2d 532, 540 (La.1992). However, we find that these renewals were nothing more than a continuation of the ill effects of an original unlawful act. See South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). It was at the time that Craig Lewis obtained Douglas and Mary Bel’s signatures on the 1993 waiver and 1994 rejection respectively that any damage would have been sustained, being the loss of UM coverage under the PLUP. After the rejections were signed, the rejection of UM coverage under the PLUP remained effective for the life of the policy, and no additional rejection was necessary when a renewal was issued. See La. R.S. 22:1406(D)(1)(a)(ii).

Further, Mary Bel stated in her deposition, as referenced above, that she did not change her coverage or discuss her coverage with Craig Lewis after she signed the rejection form in 1994. Therefore, after the rejections were signed, there was no occasion for Craig Lewis to misrepresent the nature of Douglas and Mary Bel’s coverage or the implications of not having UM coverage.

Additionally, the 1993 signing of the waiver and 1994 signing of the form rejecting UM coverage under the PLUP presumably directed Craig Lewis to place the insurance desired, elimination of UM coverage under the PLUP. As the desired coverage was placed or in effect at those times, and continued for the length of the policy unless another form was submitted by the insureds, it cannot be said that Craig Lewis failed to procure the desired coverage after 1994, when no such desire to add UM coverage under the PLUP was expressed by either Douglas or Mary Bel after that time. Therefore, we find that the insurance policy renewals do not constitute separate and distinct torts, commencing the peremptive period anew at each renewal.

IsTherefore, based on the law and facts as outlined above, we find that the trial court was correct in its determination that plaintiffs’ claims against Craig Lewis were preempted. Though presumably filed within one year of their discovery that UM coverage under the PLUP had been waived, the petition was not filed within the three-year peremptive period following the alleged act, omission, or neglect.

Motion for Summary Judgment

Because we find plaintiffs’ claims are preempted by La. R.S. 9:5606, we further find their remaining assignments of error to be without merit, as they relate to the motion for summary judgment, which the trial court found, and we agree, is moot as a result of the ruling on peremption.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court and all costs of the appeal are to be borne equally by the appellants, Mary Bel, individually and on behalf of the estate of her husband Douglas Bel, Linda B. Mire, and Carolyn B. Heard.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

|,FITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result. While the result of La.R.S. 9:5606 seems harsh, the role of the judiciary is limited to the interpretation of laws enacted by our legislative body.

      . The petition also named as defendants Anet-ta Leblanc, Melinda Leblanc, Regal Insurance Company, Allstate Insurance Company, and State Farm, none of whom are parties to the instant appeal.

      . In regard to the procedural posture by which the issue of peremption was raised, we note that this court has held, as a general rule, that the peremptory exception raising the objection of no cause of action is the correct procedural device for raising the issue of peremption. See Saia v. Asher, 01-1038, p. 4 n.5 (La.App. 1st Cir.7/10/02), 825 So.2d 1257, 1259 n. 5 and citations found therein. However, in Saia v. Asher, 01-1038 at 4, 825 So.2d at 1259, we stated because the objection of prescription raised in a peremptory exception may assert any of the defenses set forth in Title XXVI — Prescription of the Civil Code, and peremption is listed therein as a defense, the defendants in that case were correct in raising the issue of peremption via the peremptory exception raising the objection of prescription.

      . Prior to the 1999 amendment, the one-year limitation period was construed by courts to be prescriptive in nature. See Huffman v. Goodman, 34,631, pp. 6-7 (La.App. 2nd Cir.4/4/01), 784 So.2d 718, 724, writ denied, 01-1331 (La.6/22/01), 794 So.2d 791. We do not address the issue of retroactive application of the 1999 amendment, as it is not necessary for our determination of the case, and it was not raised by the appellants in the trial court or on appeal.

      . In the instant case, plaintiffs did not plead facts alleging a continuing tort in their petition, but introduced this argument for the first time at the hearing on Craig Lewis' exception/motion.

      . According to La. R.S. 22:1406(D)(l)(a)(ii), "[t]he form signed by the insured or his legal representative which initially rejects coverage ... shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement. .. policy is issued....”

      . Plaintiffs state that they were not aware that there was no UM coverage under the PLUP until after Douglas Bel died on May 3, 1997. As their action was filed on April 28, 1998, it was filed within the one-year limitation period following their discovery of the alleged act, omission, or neglect.


author: I «CARTER, C.J.

text:
    STATE of Louisiana v. Eric Peter HAMILTON.
    No. 2002 KA 1344.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Walter P. Reed, Covington, Dorothy A. Pendergast, Metairie, for PlaintiffAppel-lee, State of Louisiana.
    John W. Lindner, II, Covington, for Defendant/Appellant, Eric Peter Hamilton.

      Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Hon. Phillip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «CARTER, C.J.

The defendant, Eric P. Hamilton, was originally charged by bill of information with possession of cocaine, a violation of LSA-R.S. 40:967 C. He entered a plea of not guilty. The state later amended the charge to possession of cocaine with intent to distribute, a violation of LSA-R.S. 40:967 A, and the defendant entered a plea of not guilty to the amended charge. The defendant filed motions to suppress the evidence and confession, and the trial court denied both motions. After a trial by jury, the defendant was found guilty as charged. Upon the denial of the defendant’s motion for a new trial, the defendant waived sentencing delays and the trial court imposed a sentence of nine years imprisonment at hard labor, the first five years to be served without the benefit of probation or suspension of sentence. The defendant was then adjudicated a multiple offender under the provisions of LSA-R.S. 15:529.1. The trial court vacated the previously imposed sentence and sentenced the defendant to fifteen years imprisonment at hard labor, the first five years to be served without the benefit of probation or suspension of sentence. The defendant now appeals urging that the trial court erred in denying the motion to suppress the evidence and the motion for a mistrial and that the verdict is not supported by sufficient evidence. For the following reasons, we affirm.

FACTS

On June 3, 2001, Agents Mike Phelps and Doyle Roberts of the Louisiana Department of Public Safety and Corrections, The Division of Probation and Parole, received a tip from an anonymous female informant concerning drug activity of the defendant. The informant stated that the defendant was selling cocaine and that there was cocaine located at the defendant’s residence. The informant specifically provided that drugs could be found in a hidden compartment of a dresser located in the defendant’s bedroom.

^Detective Nick Mistretta of the Slidell Police Department received a similar phone tip on June 4th, also from an anonymous female informant, and he contacted Agent Phelps. Agent Phelps informed Detective Mistretta that he would be performing a residence check at the defendant’s home and asked the officer to assist him. Later that day, Agent Phelps and Detective Mistretta went to the defendant’s home along with Agent Roberts, the defendant’s parole officer, Sergeant Kevin Swann, and Detective John Hover.

When the officers arrived at the defendant’s home, he was not there. Agent Roberts and Sergeant Swann went to the defendant’s place of employment to look for him while Agent Phelps, Detective Hover and Detective Mistretta waited at the defendant’s residence. The defendant arrived at his home with his wife just before Agent Roberts and Sergeant Swann returned to the house. The parole officers and detectives entered the home and began the search in the master bedroom. Two small bags of a substance suspected to be cocaine were located in a hidden compartment of a small dresser drawer along with a set of pinky scales, a razor blade, an exacto knife, and men’s jewelry. Detective Mistretta also located a large bag of suspected cocaine inside of a knit cap in a separate dresser drawer. Sergeant Swann advised the defendant of his Miranda rights and placed him under arrest. The defendant was ultimately convicted of possession of cocaine with intent to distribute.

ASSIGNMENT OF ERROR NUMBER ONE

In the first assignment of error, the defendant argues that the trial court erred in denying his motion to suppress the evidence. He specifically avers that the war-rantless search of his residence was a mere subterfuge for police investigation. He submits that although he was a parolee at the time of the search, the search was instigated by police officers of the Slidell Police Department, Division of Narcotics, without the requisite probable cause.

A parolee has a reduced expectation of privacy, subjecting him to reasonable warrantless searches of his person and residence by his parole officer. See State v. Malone, 403 So.2d 1234, 1238 (La.1981). The reduced expectation of privacy is a | ¿result of the parolee’s conviction and agreement to report to a parole officer and to allow that officer to investigate his ac tivities in order to confirm compliance with the provisions of his parole. State v. Vailes, 564 So.2d 778, 780-781 (La.App. 2d Cir.1990). A parole officer’s powers, however, are not without some restraints. A parole officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search but lacks the necessary probable cause. The parole officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. In determining the reasonableness of a warrantless search of a parolee and his residence, the court must consider: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place it was conducted. State v. Vailes, 564 So.2d at 781.

In State v. Vailes, the probation officer had received information from a narcotic officer and a confidential informant that the defendant was possibly selling drugs out of, and keeping weapons in, his home. A search of the home revealed a shotgun in plain view in a bedroom and a rifle and other spare weapons parts on a table in a garage. The court concluded that this warrantless search was a reasonable exercise of the probation officer’s authority. State v. Vailes, 564 So.2d at 781.

It is an appropriate function of a parole officer to conduct unannounced, random checks on parolees. A parolee agrees to submit to such unannounced visits from his parole officer as a condition of parole. State v. Wesley, 28, 941, p. 8 (La.App.2d Cir.12/13/96), 685 So.2d 1169, 1174, writ denied, 97-0279 (La.10/10/97), 703 So.2d 603. While the decision to search must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search. State v. Epperson, 576 So.2d 96, 99 (La.App. 2d Cir.), writ denied, 580 So.2d 920 (La.1991).

In State v. Shields, 614 So.2d 1279, 1284 (La.App. 2d Cir.), writ denied, 620 So.2d 874 (La.1993), the Second Circuit Court of Appeal found that the search for a | .^probation violation was not a subterfuge for a criminal investigation where there was no ongoing investigation of the defendant at the time an informant reported a possible probation violation. It was also noted that the search of the residence was conducted by probation officers only. Likewise, in State v. Wesley, 685 So.2d at 1175, the court concluded that the search of the parolee’s residence was not a subterfuge for a police investigation when the parole officers testified that they often conducted routine visits or checks on parolees and that they called the sheriffs office for back-up only when they encountered suspected criminal activity.

In the instant case, according to their testimony, Probation and Parole Agents Roberts and Phelps both received a tip concerning drug activity by the defendant. At the time, the defendant was on parole for a previous conviction for possession of drugs and Agent Roberts was his parole officer. Detective Mistret-ta received the tip on the following day. The informant stated that she was the defendant’s sister-in-law. Although it is uncertain as to whether the parole officers and the detective received the tips from the same female informant, each person was informed that the defendant was selling illegal narcotics and that there was a substantial amount of cocaine at the defendant’s residence. The testimony presented at the motion to suppress hearing specifically provided that when Detective Mistretta contacted Agent Phelps, Agent Phelps said that he and Agent Roberts would be performing a residence check of the defendant’s home for a possible parole violation in response to the tip. Agent Phelps requested that Detective Mistretta provide assistance along with any other available officers. Agent Roberts explained the request for assistance as follows:

[A] lot of times we request the police to help us, and that has a lot of advantages for us as far as they have — like we don’t have police radios and so forth. So we do it a lot of times as a safety consideration or, you know, it’s back up. They help us out and if we can get them to go with us, then it’s a good thing for us.

lfiThe jurisprudence allows police officers to accompany parole officers in surprise searches. See State v. Odom, 34,054, pp. 6-7 (La.App.2d Cir.11/1/00), 772 So.2d 281, 287; State v. Shields, 614 So.2d at 1282-1284, and, most recently, U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In State v. Shrader, 593 So.2d 457 (La.App. 2d Cir.), writ. denied, 598 So.2d 353 (La.1992), the Second Circuit found that a warrantless search conducted by a parole officer was not a subterfuge for a criminal investigation. The court reasoned that the search conducted was based on reasonable suspicion that the defendant had violated the conditions of his parole. The court stated as follows:

Although there was police involvement, as Smith explained, it was departmental policy to have assistance when a probation officer intended to search or to effect an arrest. We do not find it unreasonable that the probation officer sought assistance from the sheriffs department given the dangers attendant to such a confrontation. We do not consider this search a ‘stalking horse or a subterfuge’ for criminal investigation. There is no evidence contradicting the parole officer’s testimony that he initiated the visit and searched defendant’s premises in order to ensure Shrader’s compliance with the terms of his parole.

State v. Shrader, 593 So.2d at 460.

When reviewing a trial court’s ruling on a motion to suppress based upon findings of fact, great weight is placed upon its determination, because the trial court had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. State v. Carr, 530 So.2d 579, 589 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La.1988), cert. denied, 489 U.S. 1098, 109 S.Ct. 1573, 103 L.Ed.2d 939 (1989). The search in the instant case offends neither the Fourth Amendment of the United States Constitution nor LSA-Const. art. 1, § 5. As the defendant’s parole officer, Agent Roberts was aware of the defendant’s previous conviction for a drug violation and the information provided in the tip consisted of the same type of behavior. When considered alone, the fact that the parole officers and a police officer all received the same information may not have been sufficient to form probable cause, but it certainly aroused a reasonable suspicion that the parolee might be in violation of his parole.

Applying the factors provided in State v. Vailes, the scope of the search conducted by the agents and officers was not unreasonable under the circumstances. 17 When the defendant arrived home, the agents and officers informed him of the reason for the residence check and the defendant allowed them to enter the home. Before discovering the substance suspected to be cocaine, Agent Phelps limited the search to the master bedroom in accordance with the information received in the tip. Agent Roberts and Sergeant Swann remained in the front of the home with the defendant. The defendant was handcuffed as a precautionary measure. Detective Mistretta and Detective Hover assisted Agent Phelps with the search of the bedroom. Detective Hover located the hidden compartment in the dresser of drawers. Agent Phelps opened the compartment and discovered the substance later determined to be cocaine. As previously discussed, the parole officers’ justification for initiating the search arose from their reasonable suspicion that the defendant was in violation of his parole. This reasonable suspicion was based on information received in a tip from a female informant who told the officers where drugs could be specifically located in the defendant’s home.

We do not find the search to be a subterfuge for a police investigation. According to the testimony of Agents Roberts and Phelps, the parole officers planned to perform the residence check based on the information received in the tip before they had any contact with the detectives. When Detective Mistretta contacted Agent Phelps, Agent Phelps told him that they would be performing the residence check and requested his assistance. There was no ongoing investigation of the defendant at the time of the search. All of the detectives’ testimony indicated that they were present in order to assist the parole officers. We find the parole officers’ request for police assistance to be reasonable under the circumstances.

We find no abuse of discretion by the trial court. The trial court was correct in denying the motion to suppress. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In the second assignment of error, the defendant avers that the trial court erred in denying his motion for mistrial. He claims that the state’s constant references to the defendant’s parole officer improperly introduced evidence of the defendant’s other | scrimes. He further submits that the parole officer could have been referred to as a law enforcement officer and that allowing the references to a parole officer caused undue prejudice.

Mistrial is a drastic remedy which should be declared only when unnecessary prejudice results to the accused. State v. Livas, 2000-0524, p. 9 (La.App. 1st Cir.1/17/01), 808 So.2d 415, 422. The determination of whether prejudice has resulted lies in the sound discretion of the trial judge. See State v. Sanders, 93-0001, p. 21 (La.11/30/94), 648 So.2d 1272, 1288-89, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996). LSAC.Cr.P. art. 770(2) prohibits reference by a judge, a district attorney, or a court official to other crimes by the defendant as to which evidence is not admissible under penalty of mandatory mistrial. LSAC.Cr.P. art. 771 provides:

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

During the cross-examination of Sergeant Swann, the defense counsel questioned him concerning the detention or “arrest” of the defendant during the time of the search. During the sergeant’s partial answer, he revealed that the defendant had a probation officer. The defense counsel objected to the answer as non-responsive. The trial court stated that the objection was premature and requested that the detective provide his full answer to the question at the bench. The defense objected stating that|9the jury had already been informed of the defendant’s criminal history by the detective stating, “his probation officer,” and the defense requested a mistrial at that point. The trial judge retired the jury from the courtroom and allowed the detective to finish his answer to the question outside the presence of the jury. The detective’s answer provided that the defendant was detained by the Department of Probation and Parole when they entered his home. He explained that it was common for that department to detain parolees and probationers and that no member of the police department handcuffed the defendant. He further explained that the members of the police department were present to provide police assistance to the Department of Probation and Parole. In ruling the trial court stated as follows:

Thank you. As to the objection, I overrule the objection based on the fact that, number one, it was premature. I think the answer was, in fact, responsive and that it is not objectionable in the sense that it does not refer to another crime merely by the reference to the probation officer. And you have an objection for the record based on that ruling.

The trial court later denied the motion for mistrial also. We find that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial. The initial reference that led to the defense motion for mistrial was not elicited by the state, but was given on cross-examination in response to a question by defense counsel. There is no suggestion or indication that the remark was made in order to prejudice the defendant; rather, the witness made the statement by way of explaining the detention of the defendant in direct response to the question asked -by the defense counsel. • The defense counsel did not request an admonition and the trial court was not mandated to grant a mistrial since the remark was not made by the judge, district attorney, or a court official. Furthermore, the defendant testified at trial and exposed the existence and nature of his criminal history to the jury. Thus, the defendant did not suffer any further prejudicial effect by the references to his parole officer during trial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, the defendant avers that the verdict was not supported by sufficient evidence. The defendant specifically avers that the state failed | into exclude, as a hypothesis of innocence, the possibility that the drugs belonged to defense witness Joey Sanchez. He submits that no evidence was offered to impeach the testimony of Sanchez providing that the drugs belonged to him and not the defendant.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Further, when the conviction is based on circumstantial evidence, LSA-R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Gordon, 2001-0236, p. 4 (La.App. 1st Cir.2/15/02), 809 So.2d 549, 552. When a case involves circumstantial evidence and the trier of fact reasonably rejects a 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. Gordon, 809 So.2d at 552.

Louisiana Revised Statute 15:438 does not establish a stricter standard of review than Jackson v. Virginia, it is merely an evidentiary guide for the jury when considering circumstantial evidence. See State v. Porretto, 468 So.2d 1142, 1146 (La.1985). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La.1987). The fact finder’s discretion should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. See State v. Bright, 98-0398, p. 23 (La.App. 1st Cir.4/11/00), 776 So.2d 1134, 1147. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Mercantel, 2000-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

The crime of possession with intent to distribute cocaine is defined as follows: “it shall be unlawful for any person knowingly or intentionally ... [t]o ... possess with intent to ... distribute ... a controlled dangerous substance ... classified in Schedule II.” LSAR.S. 40:967 A(l). Thus, in order to support a conviction, the state must prove beyond a reasonable doubt that the defendant possessed the drug with the intent to distribute it. One need not physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. State v. Gordon, 93-1922, p. 9 (La.App. 1st Cir.11/10/94), 646 So.2d 995, 1002. A person may 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. 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 possession. However, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. State v. Gordon, 646 So.2d at 1002.

A determination of whether or not there is “possession” sufficient to convict depends on the peculiar facts of each case. State v. Gordon, 646 So.2d at 1002. Several factors may be considered in determining whether or not a defendant exercised “dominion and control” over .a drug, including: a defendant’s knowledge that illegal drugs are in the area; the defendant’s relationship with the person found to be in actual possession; the defendant’s access to the area where the drugs were found; evidence of recent drug use by the defendant; the defendant’s physical proximity to the drugs; and any evidence that the particular area was frequented by drug users. State v. Gordon, 646 So.2d at 1002.

In order to prove the element of intent to distribute, the state must prove the defendant’s subjective specific intent to possess in order to distribute. Specific intent is a state of mind. It need not be proven as a fact and may be inferred from the circumstances present and the actions of the defendant. State v. Gordon, 646 So.2d at 1003.

In the instant case, the defendant’s parole officer received a tip from an anonymous female informant providing that the defendant was selling illegal narcotics and that there was a substantial amount of cocaine located in the defendant’s | ^residence. She provided that the drugs could be specifically found in a hidden compartment in a dresser of drawers. When the officers located the hidden compartment, it contained two small bags of cocaine, a set of pinky scales, a razor blade that appeared to have cocaine residue on it, an exacto knife, and men’s jewelry. The larger bag of cocaine was located in a separate dresser in the same bedroom. The defense presented the testimony of Joey Sanchez contending that he was leasing the master bedroom of the home from the defendant at the time of the search and that the drugs and other items belonged to him. Sanchez also testified that the defendant had no knowledge of the presence of the drugs in the home.

According to the officers’ testimony, there were documents in the bedroom where the drugs were located that belonged to the defendant. Sanchez was not present at the home during the search. Although the defendant was not there when the officers initially arrived at the home, he got there shortly thereafter, along with his wife and children. According to Sergeant Swann’s testimony, when the officers entered the home, the defendant stated that the master bedroom was his bedroom. Each officer’s testimony indicated that the defendant did not mention Sanchez or state that any other person was occupying the bedroom where the drugs were located. Also, during his testimony, the defendant admitted that the dresser of drawers with the hidden compartment and the other furniture in the master bedroom were his property. According to the defendant’s parole officer, Agent Roberts, at the time of the search the defendant admitted that he had recently used cocaine. He further recalled the defendant stating that his sister-in-law must have been the person that “ratted me out.” Sergeant Swann, Detective Mistret-ta, and Agent Phelps testified that the defendant stated that the two smaller bags of suspected cocaine belonged to him but were for his personal use only. The defendant denied making such statements during his testimony.

|1sAs the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 2002-0065, p. 6 (La.App. 1st Cir.6/21/02), 822 So.2d 764, 768. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Williams, 822 So.2d at 768. We do not find the jury’s rejection of the hypothesis of innocence presented by the defendant unreasonable. Viewing the evidence in the fight most favorable to the prosecution, a rational trier of fact could have found the state successfully excluded any reasonable hypothesis of innocence and proved the elements of the offense beyond a reasonable doubt. This assignment lacks merit.

CONCLUSION

Finding no error, we affirm the defendant’s convictions for possession of cocaine with intent to distribute and as a multiple offender. Likewise, we affirm the sentence imposed by the trial court.

CONVICTIONS AND SENTENCE AFFIRMED.

      . The trial court did not state that the first five years of the sentence would be served without the benefit of parole. However, according to LSA-R.S. 15:301.1, the sentence would automatically be served without such benefit.

      . The defendant’s parole officer, Agent Roberts, did not testify at the motion to suppress hearing but did testify during the trial. His testimony, along with other evidence adduced at trial, will be considered. An appellate court in reviewing a ruling upon a motion to suppress may consider not only the evidence presented at the motion hearing, but also the evidence adduced at trial. State v. Seward, 509 So.2d 413, 416 n. 8 (La.1987).

      . Although Sergeant Swann provided that the defendant had a probation officer, the record is clear that the defendant was on parole at the time of the search and Agent Roberts was his parole officer.

      . The record commonly refers to Wendy Hamilton as the defendant's wife. However, during his testimony the defendant indicated that she was the mother of his children but that he was not married.