author: JACHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Charles WILSON.
    No. 2002-KA-0776.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Harry F. Connick, District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Charles Wilson.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MICHAEL E. KIRBY.
   JACHARLES R. JONES, Judge.

Charles Wilson appeals his conviction for possession of crack cocaine, and his sentence as a multiple offender to life imprisonment. Because we find that Wilson’s sentence may present extenuating circumstances, which warrant a lesser sentence, we affirm his conviction, vacate his sentence and remand to the district court for resentencing.

PROCEDURAL HISTORY

Wilson was charged by bill of information with possession of crack cocaine, violation of La. R.S. 40:967(C). He entered a plea of not guilty and waived pretrial motions. The district court reopened motions at the oral request of Wilson and a hearing was held on probable cause and Wilson’s motion to suppress evidence. The minute entry indicates that the district court found probable cause for the preliminary hearing, and denied the motion to suppress evidence. The defense objected to the ruling of the court, and the district court set the matter for ruling on the objection. The transcript, however, reflects that at the conclusion of testimony at the hearing, the matter was submitted to the district court with legal memoranda to be submitted by each side prior to the court’s ruling. Subsequently, the district court denied the motion to suppress evidence and set the matter for trial. Wilson Lwas tried by a six-member jury and found guilty as charged. He was sentenced to two years imprisonment, credit for time served.

The State of Louisiana filed a multiple bill charging Wilson as a fourth felony offender under La. R.S. 15:529.1. On this same date, a multiple bill hearing was held, and the district court found Wilson to be a fourth felony offender. At that time, without first vacating the original sentence imposed, the district court sentenced Wilson to life imprisonment without benefit of parole, probation, or suspension of sentence. Immediately after sentencing, Wilson filed motions to reconsider the sentence and to quash the multiple bill, both of which were denied by the district court. This timely appeal follows.

STATEMENT OF FACT

Police officers Corey Robinson, Merlin Bush and Jamal Little testified at trial that they were assigned to the COPS unit at the St. Bernard housing development. They were executing a plan they had devised to catch possible trespassers who might be dealing in narcotics at the housing development. The officers were patrolling in response to numerous complaints about illegal narcotics in certain parts of the housing development. They planned to go into one of the suspected narcotics areas in the 1400 block of St. Denis Street and approach anyone they found, regardless of whether they were residents, in an attempt to prevent such persons from running away.

In execution of their plan, the officer selected an apartment budding in the 1400 block of St. Denis, and Officer Robinson parked his marked patrol unit in the rear driveway of St. Denis and came around the front on foot. Officers Bush and Little drove into the St. Denis courtyard in their marked patrol unit After observing someone on the front porch of the building, they stopped their car fifteen to twenty |3feet away, and illuminated the area with their spotlight while Officer Robinson approached the porch from the side. Wilson was alone on the porch. Officer Robinson described him as leaning against a window ledge and Officers Bush and Little described him as sitting on the steps of the porch. Officer Robinson testified at trial that he was ten or thirteen feet away when the spotlight hit Wilson, who he described as looking nervous. Officer Robinson further testified that he saw Wilson walk about three feet toward the front of the porch and discard something from his hand over the edge. Officer Bush testified at trial that he also saw Wilson make a motion with his hand. Officer Little testified at trial that he saw Wilson stand up and walk towards them, but he did not see Wilson discard anything.

Officer Robinson testified at trial that he gave a planned signal to the other officers to come and handcuff Wilson while he distracted him with casual conversation. At trial, Officers Bush and Little testified that as they exited their vehicle, Officer Bush handcuffed Wilson, gave him his Miranda warnings and placed him under arrest after Officer Robinson advised them of the discarded suspected narcotics he had retrieved. As Officers Robinson and Bush were detaining Wilson, Officer Little further testified that he noticed two other subjects “moving about off that porch”, and realized that the female was not a resident of the building. Officer Bush testified that he briefly detained and questioned the female and her male companion long enough to ascertain that there were no warrants out for them. Officers Robinson and Bush testified that they recalled Officer Little detaining subjects but that they were not on the porch. At the time of Wilson’s arrest, the officers cited him for criminal trespass on HANO property after determining that he did not have a legitimate reason to be on the porch of the building.

|4At trial, the defense presented a version of the facts very different from the testimony of the state. Sheila Ann Dickson was the sole witness for the defense. Ms. Dickson, who lives around the corner from the porch, testified at trial that she was standing on the porch with her fiancé, Lester Antoine, and Wilson on the evening in question when a young girl walked up on the porch. The officer approached and asked the young girl why she was standing there, and the girl replied that she was waiting for the twin daughters "of Ms. Dickson. The officers told the girl to go about her business, and told Ms. Dickson, Mr. Antoine, and Wilson to get on then-knees and empty their pockets. The officer flashed a light on the ground, discovered the bag of cocaine, and asked who it belonged to. The three denied ownership, and Ms. Dickson told the officers that the bag of cocaine was dropped by the young girl. The officer allowed Ms. Dickson and Mr. Antoine to leave after confirming that there were no warrants out for them. Ms. Dickson further testified that she had never been arrested, and that she had grown up with Wilson and known him for forty years.

ERRORS PATENT

A review of the record reveals one potential error patent. There is no indication in the record that the district court vacated the original sentence before imposing sentence pursuant to La. R.S. 15:529.1. Wilson suggests this fact in passing, in his brief, but he does not argue the point. In State v. Moffett, 572 So.2d 705 (La.App. 4 Cir.1990), this Court held that a multiple offender sentence must be vacated and the case remanded for resentencing where the district court failed to vacate the original sentence prior to imposing the multiple offender sentence. However, this Court recently held that in cases wheré it is clear that the district court intended to replace the original sentence with the multiple offender sentence, | sany failure of the district court to vacate the original sentence before imposing the multiple offender sentence does not affect a defendant’s substantial rights. State v. Norwood, 2001-0482, p. 4-5, (La.App. 4 Cir. 8/29/01), 802 So.2d 721, 724-725, interpreting State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309, 816 and citing State v. Jackson, 2000-0717 (La.App. 1 Cir. 2/16/01), 814 So.2d 6. In applying Mayer, this Court stated:

Here, the State did not supply the commitment form, as was present in Mayer. However, as in Jackson, the transcript of the May 18, 1981 sentencing indicates the trial court intended that the multiple offender sentence take the place of the original sentence. * * * At neither of the 2001 hearings did the defendant argue that the D.O.C. considered him to have both the original sentence and the multiple bill sentence pending against him, and there is no indication in the application before this court that he is facing two sentences in this case. Indeed, he did not raise any such claim in any of his earlier writs to this court. Thus, the D.O.C. considers he has only one sentence, and it follows that any failure of the trial court to vacate his original sentence in 1981 before imposing the multiple offender sentence did not affect his substantial rights.

Norwood, 2001-0432, p. 5-6, 802 So.2d 721, 724-725. As in Norwood, the transcript herein suggest that the district court intended for the original two-year sentence to be replaced by the habitual felony offender sentence of life imprisonment; as evidenced by this colloquy:

The Court: Based on the submissions by the State the Court at this time is going to find that under Louisiana Revised Statute 15:529.1 that the defendant, Charles Wilson, is a fourth felony offender, and with two of the predicate offenses being possession with intent to distribute cocaine. Ms. Renfroe, are you now ready for sentencing?
Ms. Renfroe: Yes, your Honor.
The Court: Since this is a fourth felony ..., at this time Mr. Wilson I am going to sentence you to life |fiimprisonment without benefit of parole, probation or suspension of sentence for the remainder of your natural life. I’m sorry to have done that but the statute mandates that.

The failure of the district court to vacate Wilson’s original sentence was an oversight, and the district court intended for the multiple offender sentence to replace the original sentence. In addition, Wilson did not object to this oversight at the multiple bill hearing and does not argue the point on appeal. Therefore, we find that any failure of the district court to vacate Wilson’s original sentence before imposing the multiple offender sentence did not affect his substantial rights.

ASSIGNMENT OF ERROR NUMBER 1

On appeal Wilson first argues that the district court erred in denying his motion to suppress evidence after concluding that an actual stop was not imminent at the time he allegedly discarded the zip loc bag containing cocaine.

The Fourth Amendment and Article I § V of the Louisiana Constitution protect individuals from unreasonable searches and seizures. However, the right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed, or is about to commit a crime is recognized by State and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Keller, 403 So.2d 693, 697 (La.1981); State v. Portis, 2000-2665 (La.App. 4 Cir. 2/13/02), 811 So.2d 951. When property is abandoned without any prior unlawful intrusion into a person’s right to be free from governmental interference, that property may be lawfully seized. State v. Belton, 441 So.2d 1195, 1199 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Handy, 2002-1025, p. 2 (La.App. 4 Cir. 9/25/02), 828 So.2d 1207.

An individual is not “seized” within the meaning of the Fourth Amendment until that individual either submits to a police showing of authority or is physically contacted by the police. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The Louisiana Supreme Court adopted the Hodari D. definition of an actual stop in State v. Tucker, 626 So.2d 707, 712 (La.1993), opinion reinstated on reh’g, 626 So.2d 720 (La.1993). An imminent actual stop occurs when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. Tucker, 626 So.2d 707, 712.

The Supreme Court in Tucker listed the following factors to be considered in assessing the extent of police force employed in determining whether that force was “virtually certain” to result in an actual stop of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id., at 712.

In State v. Johnson, 01-2436 (La.1/25/02), 806 So.2d 647, the district court held that an actual imminent stop had occurred when two police officers in an unmarked car pulled up four feet from where the defendant was standing. In concluding that an actual stop was not imminent, the court in Johnson focused on the fact that the officers had not “attempted to assert an official authority over him lsby ordering or signaling him to stop” before he threw down the contraband. Johnson, 806 So.2d 647, 648. Likewise, in State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124, the Louisiana Supreme Court held that an actual stop was not imminent when the defendant dropped crack cocaine as two officers exited their unmarked police car, approached the defendant, and identified themselves as the police. The Court recognized that, even though the officers had positioned themselves in such a manner that “intentionally left respondent with no easy route of escape,” the officers had not chased the defendant or otherwise communicated their intent to stop him. Jackson, 00-3083, p. 2, 824 So.2d 1124, 1125.

In a recent case from this Court, State v. Jackson, 2001-1062 (La.App. 4 Cir. 2/13/02), 812 So.2d 139, three officers, driving in one vehicle down a one-way street with parked cars on both sides, approached a group of men loitering on the steps of an abandoned building at approximately 11:00 p.m. As they approached, the officers observed the defendant separate himself from the group of young men loitering in front of an abandoned house and throw something over a fence and return to the group. The officers secured Joseph Jackson and the other men with him, and Officer McCabe retrieved the object tossed by Joseph Jackson. The object was a plastic bag which contained white rock-like objects Officer McCabe believed to be crack cocaine. This Court found that the object was discarded by the defendant without police interference, and therefore, the officers could retrieve it.

In the instant case Wilson argues that the officers were not simply driving down the street but were executing a plan intended to box in suspects and shine their spotlight on him, leaving him unable to disregard the encounter and walk |flaway. In State v. Chopin, 372 So.2d 1222 (La.1979), the Louisiana Supreme Court reversed a defendant’s conviction, concluding that the police did not have reasonable suspicion to stop the man who was walking down the service road of a highway carrying a brown paper bag. The officer drove past the man, turned around, and came back toward him, shining their bright lights and stopping three to four feet in front of him. At that point, the man dropped his bag and began to run. The bag was later found to contain marijuana. Chopin, 372 So.2d 1222, 1224. The district court found Chopin to be distinguishable from the facts of the instant case, and it appears that the trial court was correct in that judgment. The defendant in Chopin was walking in a well lit, well traveled area and carrying a brown paper bag. The officers had received no reports of suspicious or illegal activity in the area or regarding the defendant. Therefore, the court concluded that the officers lacked reasonable suspicion to stop the man.

In contrast to Chopin, Wilson was on a porch in a poorly lit area where the three officers were patrolling in response to numerous complaints about illegal narcotics in certain parts of the housing development. The officers also knew that trespassing was a common problem in the area. The officers initially approached Wilson from two directions, Officer Robinson on foot from the rear of the building and Officers Bush and Little in their vehicle from the front, which they parked fifteen to twenty feet from Wilson. Wilson walked toward the officers’ vehicle, and by the time the officers turned on their spotlight, he was ten to thirteen feet away. It was only when Officer Robinson noticed Wilson drop a zip loc bag, a known container for drugs, that Wilson was handcuffed, patted down, and Mirandized. The officers did not brandish weapons or come upon him with a show of force. At the time Wilson dropped the zip loc bag, he was not seized and a stop |inwas not imminent. At the time he abandoned the zip loc bag, there had been no prior unlawful intrusion into his right to be free from governmental interference, and the zip loc bag was lawfully seized. Therefore, the district court did not err in denying his motion to suppress.

ASSIGNMENT OF ERROR NUMBER 2

Wilson next argues that the district court erred in sentencing him under La. R.S. 15:529.1(A)(l)(c)(ii), as he should have been sentenced under the new law as amended by Act 403 of 2001. He concedes that this Court has previously held that the amendments to La. R.S. 15:529.1 do not apply to persons who committed their offenses prior to the date the amendments took effect. Citing, State v. Rice, 807 So.2d 350, 353 (La.App. 4 Cir. 1/16/02). He also argues that the Louisiana Supreme Court has not yet ruled on this issue and that there are compelling reasons to apply the amendments to him, citing. State v. Flagg, 815 So.2d 208 (La. App. 5 Cir. 3/26/02) (Daley, J., dissenting).

The crux of this issue, however, has been decided by the Louisiana Supreme Court. In State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518, the court reaffirmed its long held position that a defendant must be sentenced according to the sentencing provisions in effect at the time of the commission of the crime. The court explained that “[t]he mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.” Sugasti, 2001-3407, p. 4, 5, 820 So.2d 518, 520. The court noted that, by its very terms, Act 403 specifies that it shall only have prospective effect, and concluded that “[h]ad the legislature intended for the more lenient sentencing provisions to take effect immediately, language signifying that intent could have [^easily been incorporated into the act.” Sugasti 2001-3407, p. 5, 820 So.2d 518, 521, citing 2001 La. Acts No. 403, § 6. Thus, Wilson was properly sentenced under the version of La. R.S. 15:529.1(A)(l)(c)(ii), in effect at the time of the commission of his crime. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

Wilson further argues that his sentence is constitutionally excessive. He was adjudicated and sentenced as a fourth-felony habitual offender. La. R.S. 15:529.1(A)(l)(c)(ii), as it existed at the time of the offense, provided that when the fourth felony or any of the prior felonies is a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years, as were two of his three prior convictions for possession with intent to distribute cocaine, the only sentence is life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The district court imposed the sentence provided for in the statute.

This Court recently reviewed the mandatory nature of the habitual felony offender sentencing scheme and the discretion that remains with the district court in such matters:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be | ^substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means 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. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.

Rice, 2001-0215, p. 5-6, 807 So.2d 350, 354. Just as in Rice, the district court determined that it had no discretion but to sentence Wilson to the mandatory life sentence stating: “I’m sorry to have done that but the statute mandates that. I’ll note your objection to the sentence.” However, the district court erroneously believed that it could not, under any circumstances, impose any sentence other than life. This Court in Rice explained as follows:

... [The] Louisiana Supreme Court’s decision in Dorthey, which makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence. While the Court is not required to consider Dorthey in sentencing a defendant, considering the enactment of Act 403, a signal that our legislature desires to revisit harsh sentencing in our state, we conclude that it was error for the district court not to have considered Dor-they in sentencing Rice. The district court did have the judicial powers to consider a sentence other than life imprisonment and the district court was erroneous in not considering an alternative sentence upon Rice’s request.

Rice 2001-0215, p. 7, 807 So.2d 350, 354-355.

113This assignment of error has merit, and we vacate Wilson’s sentence and remand the matter to the district court for consideration of sentence as permitted in Dorthey, and in consideration of La. C.Cr.P. art. 894.1.

DECREE

For the reasons herein stated, we affirm the conviction of Charles Wilson; however, we vacate and remand for resentencing in light of Dorthey, and in consideration of La.C.Cr.P. art. 894.1.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.


source: Caselaw Access Project

author: JjWILLIAM H. BYRNES, III, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph H. PHAM.
    No. 2001-KA-2199.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Harry F. Connick, District Attorney, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Robert Jenkins, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).
   JjWILLIAM H. BYRNES, III, Chief Judge.

The defendant, Joseph H. Pham, appeals his conviction and sentence for possession of cocaine. We affirm.

Procedural History

On May 9, 2000, Joseph Pham was charged by bill of information with one count of possession of more than two hundred grams but less than four hundred grams of cocaine in violation of La. R.S. 40:967. Pham pleaded not guilty at his May 17, 2000, arraignment. After a hearing on June 9, 2000, and June 28, 2000, the trial court denied Pham’s motion to suppress the evidence. After trial on March 12, 2001, and March 14, 2001, a twelve-member jury found Pham guilty as charged. On March 29, 2001, the trial court denied Pham’s motion for new trial. The trial court ordered a pre-sentence investigation, and on August 17, 2001, the trial court sentenced Pham to twenty-five years in the Department of Corrections. The trial court also denied Pham’s oral motion to reconsider his sentence and granted his motion for appeal.

Facts

On June 29, 2000, Officer Joseph Williams, of the New Orleans Police Department, testified at the motion to suppress hearing that he received information from a confidential informant that a large quantity of cocaine had arrived from Houston, Texas into the New Orleans area. The drugs were first taken to a location in Avondale, Louisiana and then disbursed to other locations including New Orleans East. The informant stated that one of the New Orleans East locations was 4830 Treves Street. The informant further stated that ■ at that location the police would find an Asian woman named Tu Wit [Tuyet Doung], who was involved in the dealing or distribution of drugs. The informant communicated that the information was based on personal observation of drugs at the Treves Street location.

Detectives Nicole Gouch and Eugene Landry conducted a surveillance of the Treves Street location to verify the informant’s information. Officer Williams testified that on December 7, 1999, the detectives observed a brown Lexus and a red Acura Integra arrive at the Treves Street location. Two Asian males were driving the vehicles. An Asian woman, later identified as Tu Wit [Tuyet Doung], greeted the males. While the males were at the Treves Street location, Officer Williams testified that he received further information from his informant that a delivery would be made from the Treves location to the area of a church at Dwyer and Willow-brook Roads. The detectives observed the males exit the Treves Street location, and Pham entered the Lexus carrying a box. Pham then went to the church location where he parked next to a white Oldsmobile, also being driven by an Asian male. The two vehicles went to 5103 Lemans Street, a location known for drug activity. Pham and the other Asian male exited their vehicles and entered the Lemans address.

The detectives observed Pham still carrying the box when he exited the Lemans location. Officer Williams testified that the informant told him that Pham |3would be carrying cocaine in the box, and that Pham would be making deliveries of the drugs concealed in the box. The detectives notified Detectives Christian Hart and Jake Schnapp that Pham was in the process of making deliveries of the drugs contained in the box.

Detective Hart testified that they stopped Pham’s vehicle at Lemans and Dwyer Road. Detective Hart further testified that as he approached the driver’s side of the vehicle, he saw Pham attempt to conceal the box in a large pocket on his sweatshirt. Detective Hart testified that Pham was removed from his vehicle, the detective removed the box from Pham’s pocket, and Pham was handcuffed. Detective Hart opened the box and it contained a white powder substance that appeared to be cocaine. Pham was advised of his rights and arrested. Detective Hart also confiscated four hundred thirty-two dollars and a cell phone.

Errors Patent

A review of the record revealed no errors patent.

Standard of Review of a Motion to Suppress

The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The appellate court reviews the district court’s findings of fact on a motion to suppress under a clearly erroneous standard, and will review the district court’s ultimate determination of Fourth Amendment reasonableness de novo. U.S. v. Seals, 987 F.2d 1102 (5 Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. United States v. O’Keefe, 128 F.3d 885 (5 Cir. 1997), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). An appellate court reviews the district court’s determinations of reasonable suspicion and probable cause de novo. U.S. v. Green, 111 F.3d 515 (7 Cir.1997), cert. denied sub nom. Green v. U.S., 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997). Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993). In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence from the motion hearing. It may also consider the evidence presented at trial. State v. Nogess, 98-0670, p. 1 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

Reasonable Suspicion for an Investigatory Stop

A police officer may engage anyone in conversation, even without reasonable grounds to believe they have committed a crime. Goins v. Wal-mart, 2001-1136 (La.11/29/01), 800 So.2d 783; State v. Duplessis, 391 So.2d 1116, 1117 (La.1980). In the present case, the officers stopped Pham’s vehicle.

La.C.Cr.P. art. 215.1 provides in part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and demand of him his name, address, and an explanation of his actions.

In State v. Anderson, 96-0810, p. 2 (La.App. 4 Cir. 5/21/97), 696 So.2d 105, 106, this Court noted:

A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct.... Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge | Bof particular facts and circumstances to justify an infringement upon an individual’s right to be free from governmental interference....
The totality of the circumstances must be considered in determining whether reasonable suspicion exists.... An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct....
[Citations omitted.]

In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Short, 96-1069, p. 4 (La.App. 4 Cir. 5/7/97), 694 So.2d 549, 552.

In the present case, the officers had reasonable suspicion to stop the vehicle. At issue is whether the officers also had probable cause to arrest Pham when they seized the box that Pham placed in the oversized pocket of his sweatshirt.

Probable Cause to Arrest

La.C.Cr.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24, 995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied sub nom. Gates v. Jones, 94-0640 (La.6/17/94), 638 So.2d 1091. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032, writ denied, 2000-1414 (La.6/23/00), 765 So.2d 1049. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. Id.

Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. State v. Franklin, 598 So.2d 1147 (La.App. 1 Cir.1992), writ denied, 604 So.2d 1317 (La.1992). The reputation of the area is an articulable fact upon which a police officer may legitimately rely. Id. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or a preponderance standard demands. State v. Green, 98-1021 (La.App. 4 Cir. 12/22/99), 750 So.2d 343, writ denied, 96-2610 (La.6/20/97), 695 So.2d 1348. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549. Deference should be given to the experience of the police who were present at the time of the incident. Id. The fundamental philosophy behind .the probable cause requirement |7of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. Police are not required to arrest an individual at the point at which probable cause for arrest arises. State v. Coleman, 412 So.2d 532 (La.1982).

Pursuant to a lawful arrest, the officer may lawfully conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. State v. Morgan, 445 So.2d 50, 51 (La.App. 4 Cir.1984), writ denied, 446 So.2d 317 (La.1984).

In State v. Shepherd, 470 So.2d 608 (La.App. 1 Cir.1985), the First Circuit upheld the stop and arrest of a suspect based on a reliable confidential informant’s tip that was corroborated by the police. The police did not observe the possession of narcotics until after the suspect was arrested. The appellate court reviewed Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Draper v. U.S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Ruffin, 448 So.2d 1274 (La.1984), and State v. Raheem, 464 So.2d 293 (La.1985). The First Circuit stated:

The instant case is more factually similar to Draper and Gates than to Ruffin and Raheem. In the instant ease, as in Draper and Gates, the informant predicted future acts of the suspect and those acts occurred and were corroborated by police surveillance. In the instant case, the informant predicted the suspect would leave her home, go to her mother’s home and pick up drugs, leave her mother’s home and get on the Interstate in her vehicle to deliver the drugs in South Baton Rouge and would exit the Interstate on the Washington Street exit. All of these predicted actions occurred and were corroborated, except for the ultimate fact of possession of the drugs and the delivery of the drugs. [FN3 omitted.] As indicated in Draper and Gates, when the future actions of a suspect are accurately predicted by a Cl and corroborated by the police, there is a reasonable basis to believe the Cl’s unverified | ^allegation of drug possession is also true. The accurate prediction of Shepherd’s travel plans herein indicates a “fair probability” that the Cl’s basis of knowledge was either Shepherd herself or someone she trusted. As indicated in Draper and Gates, the corroboration of the “innocent” behavior provides probable cause to believe the allegation of drug possession in the informant’s tip is reliable. The instant case is stronger than Draper and Gates because the reliability of the Cl herein is strengthened by a three year period of reliable cooperation with the police. We conclude, after considering the totality of the.circumstances, there was probable cause to stop and arrest Shepherd and search her vehicle. [FN4 omitted.]
Id., 470 So.2d at 616.

In the present case the corroboration of the informant’s information by independent police surveillance gave the officers reasonable cause to believe that Pham was engaging in illegal activities. The informant was not anonymous or untested, but was reliable and had previously given information to the police that led to prior arrests. Officer Joseph Williams testified that: “... the informant has provided information which resulted in the arrest of individuals engaged in narcotics violations.” The informant’s reliability and the observations by the police officers supported the informant’s information and were sufficient for the officers to have probable cause to arrest and search Pham.

The reliable informant communicated to the police that a shipment of narcotics had been distributed to a residence at 4830 Treves Street, where an Asian female would be present. The informant knew about the contraband from personal observation of its distribution within the last 48 hours. The presence of the Asian female was corroborated when the officers saw two Asian males, one of whom was Pham, approach the residence in separate cars and was greeted by an Asian female at the residence.

|9The reliable informant contacted the police again and gave additional information that a delivery would be made from the residence to the area of a church located at the intersection of Dwyer and Wil-lowbrook Road. At. 6:15 p.m., the police observed Pham leave the residence while holding a box in his hand. He entered his vehicle with the box and drove to the church as predicted by the informant. The officers saw Pham in the church parking lot with another male who drove a white Oldsmobile when Pham left in the light brown Lexus.

The two vehicles went to a location on East Lemans known for drug trafficking. Officer Joseph Williams testified at the motion hearing that: “After a brief meeting they departed the church parking lot and went to 5103 East Lemans Street. That location is a known drug trafficking outlet where we have made arrests in the past.” Pham entered the 5103 East Le-mans residence with the box.

The reliable informant again contacted the police to advise them that Pham was in the process of making deliveries of cocaine concealed in the box. Pham came out of the residence and drove on East Lemans back towards Dwyer, when the police stopped the vehicle.

The officers’ observations supported the reliable informant’s information, and the totality of circumstances, including being located in the area of known drug activity, were consistent with a drug trader’s actions. The police corroborated the reliable informant’s information under the totality of circumstances that supported the officers’ belief that the box contained contraband. At trial, Detective Hart testified that when the officers stopped the Lexus, the detective went to the driver’s side and shouted to Pham: “Show me your hands. Show me your hands.” Detective Hart stated: “The whole time I was yelling this he wasn’t showing his hands. The male reached to the right, apparently the passenger seat, and took a |inbox and tried to place it into the front pocket of the sweatshirt that he was wearing.” Pham’s movement to conceal the box in the front pouch pocket of his sweatshirt provided additional support to give the officers reasonable cause to believe that Pham was engaged in illegal drug activities.

The trial court found that the automobile exception applied and exigent circumstances existed. The automobile exception was established due to the mobility of automobiles. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 548 (1925). The exception was then extended to packages located within the vehicle. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The detective saw Pham enter the vehicle with the box. The automobile exception applied where the officers had probable cause to believe drugs were in the vehicle, and exigent circumstances existed for search of the vehicle and the defendant.

Based on their information and observations, the officers had probable cause to arrest Pham before they actually seized the box of contraband and confirmed that its contents consisted of illegal narcotics. Under the totality of circumstances, the stop and search of the defendant, as well as the seizure of the contraband in the box, were lawfully conducted pursuant to the existence of probable cause for Pham’s arrest.

Standard of Review for an Excessive Sentence

The defendant complains the trial court erred in sentencing him to twenty-five years as a first time offender because his sentence was excessive.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive luif it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App.3 Cir. 6/5/96), 677 So.2d 532, 535, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924, citing State v. Howard, 414 So.2d 1210 (La.1982).

Under La. R.S. 40:967(F)(l)(b) the penalty for a first time possession offender provides:

(b) Any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fíne of not less than 11?,one hundred thousand dollars, nor more than three hundred fifty thousand dollars.

Pham avers the trial court based its sentence on Pham’s failure to appear in court and on the amount of cocaine found in Pham’s possession. Because the sentence is determined by the amount of cocaine found in his possession, the trial court properly considered this factor. The trial court may have been concerned with what Pham may have been doing when he failed to appear, but the trial court also was concerned that Pham’s actions could have jeopardized the lives of others. The trial court stated:

Everybody that’s involved in drug activity anywhere in this community is jeopardizing the lives of others, setting up the opportunity for random drug shootings with innocent children being shot and you’re dealing heavily. You’re in it big time. Anybody in possession of eight and one-half ounces of cocaine isn’t a passive player, isn’t a recreational user.

In State v. Sider, 96-508 (La.App. 5 Cir. 12/11/96), 686 So.2d 929, writ denied, 97-0094 (La.5/16/97), 693 So.2d 797, the Fifth Circuit found that a sentence of twenty-five years was not excessive for a conviction of possession of over two hundred grams of cocaine. In the present case, Pham failed to prove the trial court abused its liberal discretion allowed in sentencing. He also failed to rebut the presumption that the sentence is constitutional.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: 11 JAMES F. McKAY III, Judge. ARMSTRONG, J., | MURRAY, J.,

text:
    DAYBROOK FISHERIES, INC. v. Warner A. KETNOR.
    No. 2001-CA-0388.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2003.

      Peter B. Sloss, James M. Jacobs, Charles B. Wallace, Murphy, Rogers & Sloss, New Orleans, LA, for Plaintiff/Appellant.
    Alan K. Breaud, Timothy W. Basden, Breaud & Lemoine, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   11 JAMES F. McKAY III, Judge.

The defendant, Warner A. Ketnor, was employed by the plaintiff, Daybrook Fisheries, Inc., as a fishing captain between 1981 and 1997. Due to frustration with Daybrook as well as significant family pressures, Captain Ketnor decided to take a shore-based position with Omega Protein. Word began to circulate among the Daybrook fleet that Captain Ketnor was leaving Daybrook for Omega Protein. Another Daybrook captain, Calvin Moore, approached Captain Ketnor about also pursuing opportunities with Omega Protein. Captain Ketnor referred Captain Moore to the management at Omega Protein. Captain Moore was also offered a job with Omega Protein, which he accepted. Captain Ketnor was the most productive captain in the Daybrook fleet. After he left Daybrook, the fleet’s overall productivity decreased.

Daybrook filed suit against Captain Ket-nor under several theories of law. Prior to trial, Daybrook voluntarily dismissed all of its claims except for two: (1) a claim for breach of an alleged term employment contract as a result of Captain Ketnor’s decision to leave; and (2) alleged tortuous interference with contract as a result of Captain pMoore’s separate decision to leave.

The trial court dismissed Day-brook’s claim on the grounds that Day-brook failed to show that it suffered any compensable injury due to the departure of Captain Ketnor or his fellow captain, Calvin Moore, and because the agreements between Daybrook and the captains were not mandatory labor contracts. These are factual findings which may not be reversed absent manifest error. Under the “manifest error” or “clearly wrong” standard, the reviewing court must give great weight to the factual conclusions of the lower court. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), 666 So.2d 612, 615.

Ordinarily, maritime contracts are interpreted pursuant to federal common maritime law. Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). However, there are no settled principles of maritime law controlling the interpretation of employment between a captain and a vessel owner. In the absence of a specific and controlling federal rule, state law governs marine contracts. Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 886 (5th Cir.1991); See also Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992). According to Louisiana Civil Code Article 2747: “A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The | «servant is also free to depart without assigning any cause.” This is the law that governs the employment relationship that existed between Daybrook and Captains Ketnor and Moore. In fact, several rules have been developed for determining whether an employment contract is at-will or for a definite term. First, the fact that an employee signs a written agreement with his employer specifying the amount he is to earn or the terms of his employment over a period of time does not necessarily create an employment contract for a definite term. Weaver v. Purple Shield Life Ins. Co., 356 So.2d 519 (La.App. 1 Cir.1977). Rather, for a mandatory term employment contract to exist, “the parties [must] have clearly agreed to be bound for a certain period of time during which the employee is not free to depart without assigning cause and the employer is not free to depart without giving a reason.” Williams v. Touro Infirmary, 578 So.2d 1006 (La.App. 4 Cir. 1991) citing Terrebonne v. Louisiana Assoc. of Educators, 444 So.2d 206 (La.App. 1 Cir.1983).

In the instant case, the agreements between Daybrook and Captains Ketnor and Moore fall far short of what is needed to establish a contract under which neither Captain Ketnor nor Captain Moore were free to terminate their employment. First, and most importantly, the documents contain no agreement by Captains Ketnor and Moore to remain employed, and no agreement by Daybrook to employ them for the term of the agreement. Rather, the agreements merely spell out the duties of Captains Ketnor and Moore regarding their employment, and RDaybrook’s agreement with regard to what they will be paid for their services. The agreements also contemplate the right of the parties to terminate the employment relationship and the result of such termination.

For the foregoing reasons, the trial court’s judgment dismissing Daybrook’s claims against Captain Ketnor is affirmed.

AFFIRMED.

ARMSTRONG, J., DISSENTS.

MURRAY, J., CONCURRING.

ARMSTRONG, J.,

dissents.

I respectfully dissent. The trial court granted a motion to dismiss at the close of plaintiffs case. Because I would find that the plaintiff presented evidence to establish a prima facie case, I would reverse and remand for further proceedings. Of course, on remand, the defendant would attempt to rebut the plaintiffs case as the defendant puts on his case.

| MURRAY, J.,

concurring.

This is an action for breach of contract and for tortuous interference of contract. In granting Mr. Ketnor’s motion for involuntary dismissal as to all Daybrook Fisheries’ damage claims, the trial court reasoned that even assuming Daybrook could establish either of its causes of action, it could not establish with sufficient certainty any compensable loss. I agree. For that reason, I concur.

      . This is in keeping with the principle that maritime employment is "at will.” Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir.1981).


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

text:
    STATE of Louisiana v. Dwayne PUCKETT, a/k/a Dee Puckett, a/k/a Dwayne Brown.
    No. 02-KA-997.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appel-lee.
    Jane L. Beebe, Attorney, Louisiana Appellate Project, Gretna, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   |,EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish Grand Jury returned an indictment charging defendant, Dwayne Puckett, with aggravated rape in violation of LSA-R.S. 14:42, and aggravated oral sexual battery, in violation of LSA-R.S. 14:43.4. The matter proceeded to trial before a twelve person jury which found defendant guilty as charged on both counts. The trial judge thereafter sentenced defendant to life imprisonment without benefit of parole, probation or suspension on the aggravated rape conviction and fifteen years on the aggravated oral sexual battery conviction. The judge ordered that the sentences be served consecutively. Defendant now appeals.

FACTS

On April 14, 2001, the victim, V.P., went to Mike’s bar in Kenner with her fiancé, Norman Johnson, and her brother, J.P. At the bar, they saw defendant, whom they knew. Norman and J.P. went outside the bar at one point leaving V.P. inside. V.P. thought they had left her so she walked home alone. When Norman and J.P. returned to the bar and discovered V.P. was no longer there, they became concerned and went to her home to see if she was there. They found V.P. in her |sapartment dressed in her nightgown getting ready for bed. Norman and J.P. then returned to Mike’s.

V.P.’s doorbell rang shortly after Norman and J.P. left. V.P. thought it was Norman so she opened the door at which time defendant grabbed her, ripping her nightgown. He slammed the door and pushed her onto the sofa bed while cursing her, pulling her hair and punching her ear and back. Defendant then grabbed V.P. off the sofa bed and pushed her onto the floor near the refrigerator. He took a bottle of syrup out of the refrigerator and poured it all over V.P. calling her a “no good bitch.” Defendant forced V.P. to perform oral sex by pushing her head towards his penis and holding it there. He then raped her by inserting his penis into her vagina. Thereafter, defendant left through the back door telling V.P. not to tell her flaneé.

V.P. got dressed and went to Mike’s where she told Norman she was just raped. V.P. was taken back to her apartment and the police were called. Based on what V.P. told him, Norman ascertained that it was defendant who raped V.P. Norman and J.P. left the apartment to find defendant and to confront him about the rape. They encountered defendant on the street at which time defendant pulled out a gun. After a brief verbal exchange, defendant hit Norman with the gun. At some point, defendant was detained on the street by the police.

Meanwhile, Detective Brian McGregor arrived at V.P.’s apartment to investigate the rape. Upon his arrival, Detective McGregor observed V.P. holding an ice pack to her head. He drove V.P. to where defendant was being detained and V.P. identified defendant as the person who raped her.

V.P. was subsequently taken to Lakeside Hospital where a rape examination was performed by Dr. Neal Wolfson. Dr. Wolfson testified that V.P. had a sticky substance on her back, shoulder and arm that had seeped through her clothes. She also had a torn toenail, an abrasion on the inside of her right foot and her calf and |4head were sore to the touch. Dr. Wolf-son noted that V.P. was visibly upset. Dr. Wolfson’s examination revealed no visual trauma to the vaginal area. However, Dr. Wolfson explained he would not expect to see physical evidence of vaginal trauma in a woman of V.P.’s age. Dr. Wolfson noted a yellowish discharge in the back of V.P.’s vagina that contained non-motile sperm. DNA analysis of the sperm was consistent with defendant’s genetic profile. Bonnie Dubourg, an expert in DNA analysis, testified that the odds of finding someone other than defendant who has the genetic profile to match the sperm was ten billion to one, more than the population of the world.

Defendant denied raping V.P. He admitted seeing V.P. at Mike’s bar but denied going to her apartment that night. Defendant testified that he and V.P. had sexual relations several times over a nine-month period before the alleged rape. He stated he and V.P. had sex one day before the April 14 incident. However, V.P. denied ever having sexual relations with defendant before the rape.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him of aggravated rape and aggravated oral sexual battery.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Hubbard, 97-916 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1103, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415.

Un the present case, defendant was convicted of aggravated rape. That offense is defined in LSA-R.S. 14:42, in pertinent part, as follows:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

Defendant was also convicted of aggravated oral sexual battery. LSA-R.S. 14:43.4 sets forth the elements of that offense and provides in part, as follows:

A. Aggravated oral sexual battery is an oral sexual battery committed when the intentional touching of the genitals or anus of one person and the mouth or tongue of another is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

In challenging the sufficiency on appeal, defendant first argues that the state failed to prove he and the victim had non-consensual sex. Defendant asserts that the victim’s testimony was so unclear and inconsistent that it was questionable whether a rape had even occurred. He claims that he and the victim had a consensual sexual relationship for months prior to the alleged rape. To support his contention, defendant points to the testimony of Kimberly and Royal Butler, his neighbors. They both testified that they had seen defendant and the victim walking together in the neighborhood two to three times. Mrs. Butler testified the [ f¡two were having a civil conversation and Mr. Butler testified the two were laughing and smiling.

In the present case, the victim testified that defendant forced his way into her home when she opened the door. He grabbed her, ripped her nightgown, and threw her down on the sofa bed all while pulling her hair and punching her. He then grabbed her off the sofa bed and pushed her onto the floor where he poured syrup all over her hair and body. Defendant tightly held the victim’s head and forced her to perform oral sex on him. The victim tried to move her head but was unable to because of defendant’s tight grip. The victim testified she tried to fight defendant off as hard as she could and that she never gave up her fight. She stated she tried to hurt defendant as she did not want to be raped. Nonetheless, defendant vaginally raped her.

The testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense. The credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, units denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

In this case, the victim’s testimony was corroborated by other evidence. The victim testified defendant ripped her nightgown when he grabbed her. A torn nightgown was introduced into evidence. Also, a button from the victim’s nightgown was recovered from the floor of her living room. The victim testified defendant repeatedly punched her. The police officer stated the victim was holding an ice pack to her head when he arrived at her apartment and the examining doctor noted the victim’s face and calf were sore to the touch. The victim also testified |7defendant poured syrup all over her. The police officer who responded to the call and the examining doctor noted the victim had a sticky substance on her. A bottle of Log Cabin syrup was found in the victim’s utility room inside her apartment and was introduced into evidence. The testimony of the victim’s fiancé, her brother, the police officer and the examining doctor established that the victim was visibly upset after the rape. Dr. Wolfson stated that he tends to give more credence to an allegation of rape where the person is obviously upset and emotionally traumatized. Additionally, defendant’s former girlfriend testified that prior to the rape, the victim told her about being harassed by defendant’s repeated requests for sex. The victim sought the ex-girlfriend’s help in stopping the harassment.

The jury obviously rejected defendant’s testimony that he and the victim engaged in a consensual sexual relationship. Bather, they chose to believe the victim’s version of events. As shown by the foregoing discussion, the record supports the jury’s credibility determination.

Defendant next argues that the state failed to prove the aggravated nature of the rape and oral sexual battery because the evidence did not show the victim resisted to the utmost or was prevented from resisting by force or threats of physical violence. Defendant argues that the state at most proved forcible rape.

The definitions of aggravated and forcible rape are very similar. The only difference between the two crimes is the “degree of force employed and the extent to which the victim resists.” State v. Parish, 405 So.2d 1080 (La.1981). In Parish, supra at 1087, the Louisiana Supreme Court concluded:

[I]t was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed.

JUThus, it is within the province of the jury to determine the degree of force employed in a particular case and to determine whether the act constituted aggravated, rather than forcible, rape. State v. Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 899.

A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. However, “there is no magic formula to determine which acts of coerced sexual intercourse warrant the greater punishment of aggravated rape rather than forcible rape. Each case must be examined on its own facts.” State v. Jackson, 437 So.2d 855, 858 (La.1983).

Nonetheless, the mere fact the defendant was unarmed and the victim suffered no extensive physical pain or injury does not negate the possibility that an aggravated rape occurred. “A victim need not suffer physical harm to constitute the high degree of force necessary to support a conviction of aggravated rape.” State v. Howard, 31,807 (La.App. 2 Cir. 8/18/99), 746 So.2d 49, 54, writ denied, 99-2960 (La.5/5/00), 760 So.2d 1190.

In the instant case, defendant physically abused the victim prior to raping her. He pulled her hair, punched her and ripped her nightgown. Dr. Wolfson found evidence of physical trauma including a torn toenail and abrasion on the inside of her right foot. The victim’s head and calf were sore to the touch. The victim testified she tried to fight off defendant as hard as she could. The jury had before it the responsive verdict of forcible rape but determined the amount of force employed and resistance exerted amounted to aggravated rape. Additionally, the jury heard testimony from both the victim and the defendant. The jury either concluded that the evidence proved that the victim resisted to her utmost and was overcome by force or was prevented from resisting by defendant’s acts of physical abuse immediately before the rape which were tantamount to threats of great bodily harm accompanied by apparent power of execution. We find that the 19evidence supports the jury’s determination that the amount of force employed constituted aggravated, rather than forcible, rape.

Finally, in a one-sentence allegation with no supporting argument, defendant contends the state failed to prove his identity as the perpetrator of the rape. The record shows that the victim identified defendant immediately after the rape as the perpetrator and again in court.

Based on the foregoing discussion, we find that the state proved the elements of the offenses beyond a reasonable doubt. Thus, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues that the trial court erred in denying his motion for new trial. Defendant contends that the trial court refused to let him use the bathroom during voir dire which adversely affected his concentration in assisting counsel during jury selection. He further asserts he was prejudiced when the jury saw that he had urinated on himself as a result of not being-allowed to use the bathroom.

At some point during jury selection, defense counsel moved for a mistrial stating:

As I indicated before, my client didn’t get to go to the restroom. Your Honor consistently refused to let him go to the restroom. It’s obvious to me now that he’s urinated all over himself and he needs new clothes and I don’t know how much that affected our consultations together with regard to this jury.

This motion for mistrial was denied. After defendant was convicted, he filed a motion for new trial claiming he received an unfair trial because he was unable to assist his attorney during jury selection due to his urgent physical need to urinate and he was prejudiced by having to appear before the jury in soiled clothes after | ^having urinated on himself. The trial court denied the motion for new trial after a hearing. In its ruling, the trial court stated:

When the defendant first asked, the first thing I noticed was that he had an obvious snicker on his face. I found that — And the fact that there was an immediate threat that he would urinate on himself if he didn’t get to go to the bathroom. Immediately that made me believe, coupled with the fact that he asked so early in the process, that it was contrived one way or the other. Either he didn’t have to go or he was going to make sure that before he left he had to go when he arrived here. Be that as it may, my decision was to tell him no, because I didn’t think it was sincere. Having seen him testify on the stand I think that assessment was well born out. That was my assessment. That was apparently the jury’s assessment....

A motion for new trial is based upon the supposition that injustice has been done to the defendant, and, unless such injustice is shown, the motion for new trial shall be denied no matter upon what allegations the motion is grounded. LSA-C.Cr.P. art. 851. The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, unit denied, 00-3187 (La.11/2/01), 800 So.2d 866.

In the present case, the record does not show defendant was unable to participate in the jury selection process due to his alleged urgent physical need to urinate. In fact, both at trial and at the hearing on the motion for new trial, defense counsel could not articulate to the trial court any effect defendant’s situation had on counsel’s consultations with defendant during jury selection. Defense counsel merely stated he “did not get the type of cooperation that I generally get with prisoners that I try with regard to picking a jury.” As noted by the trial court, defendant immediately threatened he would urinate on himself if he were not allowed to go to the restroom. Such a threat is not indicative of a cooperative |nperson. Additionally, defendant’s threat at the outset of the proceeding makes the veracity of his claim highly questionable.

Furthermore, the record does not demonstrate at what point during jury selection defendant relieved himself. Based on arguments made at the hearing, none of the parties present during jury selection, including the trial judge, had any knowledge of when the incident occurred. Defendant did not testify at the hearing. It is quite possible defendant relieved himself early in the jury selection process and, therefore, had no physical urge that allegedly prevented him from concentrating.

Defendant also contends the jury saw his soiled clothes and suggests that the jury’s observation of his condition prejudiced him. There is no evidence in the record that the jury was. aware defendant had urinated on himself. The jurors were not questioned after the incident as to whether they observed anything peculiar about the defendant or his clothes.

In the present case, defendant failed to prove he suffered any injustice by the fact he urinated on himself during the jury selection process. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s motion for new trial. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assigned error, -defendant asserts an excessiveness of sentence claim. Defendant was convicted of aggravated rape and aggravated oral sexual battery. He received a mandatory life sentence for his aggravated rape conviction and fifteen years for his aggravated oral sexual battery conviction. Defendant does not challenge the mandatory life sentence for aggravated rape. Rather, defendant asserts the consecutive nature of his sentences is excessive because both offenses arose out of the same criminal episode and the trial court failed to state factors 11 ¡.justifying the consecutive sentences. Defendant also claims his fifteen year sentence on count two, aggravated oral sexual battery, is excessive. .

A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

In reviewing a sentence for excessiveness, this court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

Regarding the imposition of consecutive sentences, LSA-C.Cr.P. art. 883 provides, in pertinent part, as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

|13The instant offenses were all part of the same transaction. Therefore, there was a presumption in favor of concurrent sentences under the article. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. Such sentences are justified when the offender poses an unusual risk to public safety. State v. Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 900; State v. Johnson, 97-867 (La.App. 5 Cir. 4/15/98), 711 So.2d 848, writ denied, 98-1293 (La.10/9/98), 726 So.2d 20.

In the present case, although the trial judge failed to articulate reasons for the sentences imposed, we find that the record nonetheless supports defendant’s fifteen year sentence on the aggravated oral sexual battery conviction, as well as the consecutive nature of the sentences. The record shows defendant has a significant criminal history involving three felony convictions for possession of cocaine and one conviction for possession of cocaine with intent to distribute. Additionally, defendant harassed the victim prior to this incident by repeatedly going to the victim’s apartment seeking sex. As a result, the victim was scared of defendant. Prior to the incident, the victim had sought the help of defendant’s girlfriend to stop the harassment. The actual incident was cruel and humiliating. Defendant physically assaulted the victim and then poured syrup all over her before forcing her to perform oral sex. Furthermore, defendant attacked a victim with compromised mental capacity due to a brain aneurysm. The record shows defendant was aware of the victim’s mental state based on his comment to the police when he was arrested: “I didn’t touch the girl, she’s crazy — she’s slow.” Considering the foregoing, we find that the trial judge did not abuse his discretion in the sentencing of defendant.

Moreover, even if the trial judge erred in imposing consecutive rather than concurrent sentences, the error was harmless in light of the fact that defendant was 114sentenced, on the aggravated rape conviction, to the mandatory term of life imprisonment without benefit of parole, probation or suspension. See State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So.2d 429: Thus, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.

For the reasons set forth herein, we hereby affirm defendant’s convictions and sentences.

AFFIRMED.

      . This statute was repealed in 2001 by Acts 2001, No. 301.

      . At the time of the offense, the crime of aggravated oral sexual battery carried a sentence of not more than twenty years without benefit of parole, probation or suspension of sentence.


author: J^CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Kevin D. COBB.
    No. 02-KA-967.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Nancy A. Miller, Richard Bates, Assistant District Attorneys, Gretna, LA, for State.
    Margaret S. Sollars, Thibodaux, LA, for defendant-appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

Defendant, Kevin Cobb, was charged on July 14, 1997 by bill of information with distribution of cocaine in violation of LSA R.S. 40:967 A. Defendant pled not guilty and was tried by a twelve person jury on March 3, 1999. The jury found defendant guilty as charged. Thereafter, on March 26, 1999, the state filed a habitual offender bill of information alleging defendant to be a second felony offender. On April 9, 1999, defendant admitted to the allegations after being advised of his constitutional rights. The trial court found defendant to be a second felony offender and sentenced him to 15 years at hard labor, without probation or suspension of sentence. No written or oral motion for appeal was filed by the defendant.

On July 18, 2000, defendant filed a pro se Motion for Production of Documents, Trial Transcripts, Motion to Suppress Evidence Transcripts, Sentencing Transcripts, Verbatim Copy(s). In that document, he noticed his intent to file an application for post-conviction relief, alleging insufficiency of the evidence and ineffective assistance of counsel. On August 1, 2000, the trial judge issued an Order finding the defendant entitled to the relief sought. The trial judge |3further stated that due to the large number of prisoners requesting copies of transcripts, the defendant should not expect to receive his transcript until December 28, 2000.

On May 17, 2001, defendant filed a pro se Motion for Appeal and Enrollment Appointment of Counsel. On May 22, 2001, the trial court denied the motion finding that the time period for filing a motion for appeal had lapsed and defendant must file an application for post-conviction relief requesting an out of time appeal. On March 19, 2002, defendant filed a pro se Application for Post Conviction Relief Seeking Out of Time Appeal alleging that his counsel failed to ask the court for a direct appeal and counsel was ineffective for failing to file the motion for appeal. On April 22, 2002, the trial court granted the defendant’s motion for an appeal and ordered that the Louisiana Appellate Project be assigned to the appeal.

FACTS

Detective Blaine Hebert, a narcotics detective with the Kenner Police Department, testified that, on the night of June 24, 1997, he participated in a sting operation in Kenner. Hebert testified that the police department had received numerous complaints of street-level drug dealers doing business in front of 312 and 314 Farrar Street. Hebert, who was working undercover, was equipped with an audio transmitter to allow surveillance officers to monitor his activities. Detective Glenn Sy-nigal, the officer overseeing the operation, supplied Hebert with between two hundred and three hundred dollars in currency with which to attempt drug transactions. Hebert and Synigal photocopied the money beforehand, so they could later compare the serial numbers on that money to the numbers on any money seized from arrestees.

Hebert testified that he drove an unmarked vehicle to the 300 block of Farrar Street. The surveillance or “cover” team, which included Synigal, Detective Jenell 14Godfrey, Officer Chris Yokum, and Officer Ronald LaBarriere, waited a short distance away on Third Street. Hebert testified that two men flagged him down. Hebert recognized both men from prior encounters. One was defendant, Kevin Cobb. The other man was Alex Wells.

When Hebert stopped his vehicle, both men approached. ‘ Defendant initiated verbal contact by saying, “How much?” Hebert said, “I want a big twenty.” Wells handed Hebert a “twenty,” and Hebert gave defendant a twenty-dollar bill. Hebert left the scene, and immediately radioed a description of the two subjects to the surveillance officers. He gave the subjects’ names as Kevin Cobb and Alex Wells.

The cover team moved in on the scene within seconds. Defendant was stopped in front of his residence at 312 Farrar Street. Detective Godfrey testified that she recognized defendant immediately, as she had had frequent contact with defendant during her years as a patrol officer in that neighborhood. She was also familiar with Alex Wells. Upon seeing the police officers, Wells fled on foot. He attempted to hide in a nearby residence, but was quickly apprehended by Godfrey and LaBarriere. LaBarriere testified that he was familiar with Wells.

Both defendant and Wells were detained in front of defendant’s house. Godfrey drove Hebert past the scene, and Hebert identified defendant and Wells as the men from whom he had bought the crack cocaine. Upon searching Wells’ person, Godfrey recovered a twenty-dollar bill, which matched one of the bills photocopied prior to the operation. Synigal testified that the officers field-tested the rock Hebert purchased, and the result was positive for cocaine. Defendant and Wells were placed under arrest. At trial, the parties agreed to stipulate that the rock-like material purchased by Hebert was tested by the Jefferson Parish Crime Lab, and that the result was positive for cocaine.

Defendant testified on his own behalf at trial. He stated that, on the night of June 24, 1997, he and his friend, Derrick Allen, were walking together on Farrar ^Street. Allen’s grandmother lives in that area. Police officers suddenly descended on him and ordered him to lie on the ground. When he asked an officer what he was being held for, he was told, “You gonna find out when you get there.” Officers appeared with Alex Wells, and ordered him to lie down. Defendant testified that he was not with Wells on the night of June 24, 1997, and that he was not the person who approached Hebert’s car and asked what he needed.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence was insufficient to support a guilty verdict because the testimony of the state’s witnesses was not credible and he was a victim of mistaken identity. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604. In applying this standard, the reviewing court will not assess the credibility of witnesses, nor reweigh evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986); State v. Ellwood, 00-1232, (La.App. 5 Cir. 2/28/01), 783 So.2d 423, 427. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251, (La. App. 5 Cir. 4/10/02), 817 So.2d 216, 219. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual finding. Rivers, 01-1251, 817 So.2d at 219.

Defendant was charged with and convicted of distribution of cocaine, in violation of LSA-R.S. 40:967A(1), which makes it “unlawful for any person | fiknowingly or intentionally ... [t]o produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance ... classified in Schedule II.” The state thus had the burden of proving that defendant knowingly and intentionally distributed cocaine, which is a controlled substance listed under Schedule II. LSA-R.S. 40:964A(4); State v. Raines, 00-1941, (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 640, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833. A defendant may be found guilty as a principal if he aids and abets in the distribution, or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance such as cocaine. State v. Bartley, 00-1370, (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 32-33, unit denied, 01-0717 (La.2/22/02), 809 So.2d 981.

Detective Hebert participated in the transaction, and was therefore the state’s only eyewitness. He testified that defendant and Wells flagged him down and approached his vehicle together. Hebert, who has worked undercover for ten years, explained that sometimes, street dealers work in groups. There might be several people standing on a street corner, and it is difficult to discern which is the supplier. They might all approach the buyer. The person who takes the buyer’s money might be working in concert with someone else. It was defendant who asked Hebert what he wanted. When Hebert said he wanted a “twenty,” Wells gave him a rock of crack cocaine. It was defendant who took Hebert’s money. Wells did not make' any attempt to obtain money from the officer. Even if he did not personally hand Hebert the crack, defendant’s actions made him a principal to the sale.

Defendant argues that the state’s witnesses gave varying accounts as to what time it was when the transaction took place, and that the question of whether it was light or dark when the buy took place was crucial to Hebert’s ability to clearly see the perpetrators. Encompassed in proving the elements of an offense is the |7necessity of proving the identity of the perpetrator. State v. Raines, supra. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Cowart, 01-1178, (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 283.

Sergeant Synigal, the officer supervising the operation, testified that the group began to set up at 9:06 p.m. Officer LaBarri-ere testified it was dark outside when the cover team went in to apprehend the perpetrators. Hebert testified that the operation began “probably somewhere around seven.” When asked whether it was dark outside when he made the purchase, Hebert responded, “If it — if it was dark it couldn’t have been too dark. I believe it was, you know, mid-June, and the sun doesn’t set until around 8:30, 8:20/8:30 at night, and this was before that time.” These discrepancies in the testimony go to the weight, and not the sufficiency of the evidence.

Hebert had had extensive dealings with Alex Wells, and would thus have been able to distinguish between the two men. Hebert knew defendant prior to the night of June 24, 1997. He had once stopped defendant in the 300 block of Hanson Street, a block away from where the instant transaction took place, based on reports of drug activity in that area. Hebert knew both men well enough to identify them by name when he gave descriptions to the surveillance team. Moreover, Hebert was able to identify defendant in person shortly after the transaction.

Detective Godfrey testified that she knew Wells’ voice very well from having dealt with him so many times in the past. The voice she heard over Hebert’s transmitting equipment was not Wells’, and must, she believed, have been defendant’s voice.

| «Defendant asserts that Detective God-frey’s trial testimony should be discounted, as she has since been convicted of tampering with evidence during her tenure as evidence custodian with the Kenner Police Department. Defendant’s argument has no merit. This information was not before the jury at trial, and is not part of the record herein. Even assuming such information was part of the record, it would go to Godfrey’s credibility, a matter not reweighed on appeal.

Defendant points out that no money was recovered from his person, while a twenty-dollar bill was seized from Wells. Defendant argues that the state failed to explain how he could have received the money from Hebert, then passed it to Wells in the seconds before the police surveillance team descended on him. Hebert’s testimony regarding the behavior of street-level dealers does provide an explanation. Considering that defendant and Wells worked in concert with each other during the transaction with Hebert, it is clearly possible that defendant slipped Wells the money immediately after Hebert gave it to him.

Defendant testified at trial that he was with his friend, Derrick Allen, when police stopped him. Although he knew Wells, he denied having been with Wells that night. Godfrey testified that she did not come in contact with Derrick Allen on June 24, 1997, and does not know who he is. Defendant also denied having lived on Farrar Street at the time of the incident. However, Sergeant Daniel Murphy of the Jefferson Parish Correctional Center testified that defendant’s June 24, 1997 arrest register listed his address as 312 Farrar Avenue in Kenner.

Considering the foregoing, we find that defendant’s conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Therefore, we affirm defendant’s conviction of distribution of cocaine.

^ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir. 1990). The review reveals no patent errors.

In accordance with the above, defendant’s conviction of distribution of cocaine is affirmed.

AFFIRMED.