author: 11 JOAN BERNARD ARMSTRONG, Judge.

text:
    The ESTATE OF HICKERSON, Jr., Valorie Hickerson and Adoracion Hickerson v. George ZIMMERMAN, Orleans Parish School Board, And National Union Fire Insurance.
    No. 2002-CA-1195.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 2003.

      Craig B. Mitchell and Janet M. Ahern, Mitchell-Ahern, New Orleans, LA, for Plaintiff/Appellant.
    Clare Jupiter, Bryan & Jupiter, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge, DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   11 JOAN BERNARD ARMSTRONG, Judge.

This is a wrongful death and survival action arising from a vehicle-pedestrian collision. Both the plaintiffs and the defendants appeal as to the allocation of fault and as to the amounts of general damages awarded. Because we find that the trial court was not clearly wrong-manifestly erroneous as to the allocation of fault, and did not abuse its discretion as to the amounts of general damages, we will affirm.

The pedestrian involved was Emmett Hickerson. The driver involved was George Zimmerman. At the time of the collision, Mr. Zimmerman was driving a vehicle owned by the Orleans Parish School Board and he was in the course and scope of his employment with the School Board.

The collision occurred on Chef Menteur Highway near Flake Street. Mr. Hicker-son was crossing Chef Menteur when he was struck by the vehicle driven by Mr. Zimmerman. The collision occurred about ten feet from the intersection of Flake Street so Mr. Hickerson was crossing near, but not quite at, the corner. Mr. Hickerson was proceeding from the neutral ground in the center of Chef Menteur l?and was most of the way across Chef Menteur when the collision occurred. It was about 7:00 p.m. and the area of the collision was lit by streetlights. The lighting was good although not as light as daytime. Nothing obstructed the view of the neutral ground from where Mr. Hick-erson left to cross Chef Menteur. The speed limit was 40 miles per hour and Mr. Zimmerman was driving, at most, 48 miles per hour and, possibly, less than 40 miles per hour. An autopsy showed that Mr. Hickerson’s blood had sufficient alcohol in it to impair his judgment and reactions to some degree. Mr. Zimmerman was not intoxicated. Despite the adequate lighting and the lack of any obstruction to his vision, Mr. Zimmerman testified that he did not see Mr. Hickerson either prior to the collision or as the collision occurred. In fact, he testified that, when the collision occurred, he thought that someone had thrown a brick at his windshield.

Mr. Hickerson’s widow, Valorie Hicker-son, and his adult daughter by a previous marriage, Adoración Hickerson, brought the present action against Mr. Zimmerman, the School Board and their insurer. A bench trial was held. The trial court found Mr. Hickerson and Mr. Zimmerman each 50% at fault. The trial court awarded these damages of $400,000 general damages, $144,182 lost wages and $5,768.65 funeral expenses to the estate of Mr. Hickerson. The trial court awarded $200,000 general damages to Valorie Hick-erson and $100,000 general damages to Adoración Hickerson. The damages were reduced by 50% due to the 50% comparative fault assigned to Mr. Hickerson.

1 sThe defendants appeal and argue that the trial court should have assessed 100% of the fault to Mr. Hickerson and no fault at all to Mr. Zimmerman. The defendants also argue that the $400,000 general damages award to Mr. Hickerson’s estate should be reversed or, alternatively, reduced. The plaintiffs appeal and argue that the trial court should have assessed 100% of the fault to Mr. Zimmerman and no fault at all to Mr. Hickerson. The plaintiffs also argue that the general damage awards to Valorie Hickerson ($200,-000) and to Adoración Hickerson ($100,-000) should be increased. With respect to the allocation of fault, the Supreme Court restated the standard of appellate review thus:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96); 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id. Therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement, 666 So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977).
The appellate courts determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). In Watson, we said “various factors may influence the degree of fault assigned,” including:
|4(1) Whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Watson, 469 So.2d at 974. These same factors guide the appellate court’s determination as to the highest or lowest percentage of fault that could reasonably be assessed. Clement, 666 So.2d at 611

Duncan v. Kansas City Southern R.R. Co. 00-0066 (La.10/30/00), 773 So.2d 670, 680-681. Thus, we may not disturb the trial court’s allocation of fault unless it is clearly wrong-manifestly erroneous.

The duties of care of pedestrians and motorists are set out in general terms in a series of three statutes:

A. When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a cross-walk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching closely from the opposite half of the roadway as to be in danger.
B. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
La. R.S. 32:212 (in pertinent part).
A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an lRunmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.
La. R.S. 32:213 (in pertinent part).
Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.
La. R.S. 32:214 (in pertinent part).

Thus, both pedestrians and motorist have statutory duties of care.

Because motor vehicles pose such a hazard to pedestrians, motorists owe a duty of special care to pedestrians. Blair v. Tynes, 621 So.2d 591, 596-97 (La.1993). However, this does not mean that the motorist is necessarily at fault whenever there is a motor vehicle-pedestrian collision. Mutart v. Allstate Ins. Co., 622 So.2d 803, 806 (La.App. 4th Cir.), writ denied, 629 So.2d 416 (La.1993). Thus, the conduct of both the motorist and the pedestrian must be considered when assessing fault in a motor vehicle-pedestrian collision case.

In the present case, Mr. Zimmerman had a special duty of care towards Mr. Hickerson as a pedestrian. His failure to observe Mr. Hickerson preparing to cross and crossing Chef Menteur is indicative of Mr. Zimmerman either failing to look or failing to see what should have been seen and, in either event, is indicative of negligence. Winfield v. Dih, 2001-1357 (La.App. 4 Cir 4/24/02), 816 So.2d 942, 951. On the other hand, Mr. Hickerson also had a clear field of view, and should have been able to observe oncoming vehicles, and evidently was somewhat | fiintoxicated when he crossed Chef Menteur. Given the circumstances, we cannot say that the trial court was clearly wrong-manifestly erroneous in finding both Mr. Zimmerman and Mr. Hickerson each 50% at fault.

As to the award of general damages to Mr. Hickerson’s estate, the defendants argue that the award was erroneous because neither pre-impact fear nor pre-death pain and suffering of Mr. Hickerson was proven. Survival damages, including both fear and pain and suffering of the deceased, may be awarded if there is a scintilla of evidence to support them Declouet v. Orleans Parish School Board, 96-2805 (La.App. 4 Cir. 06/03/98), 715 So.2d 69, 78; In re Medical Review Panel of Bilello, 621 So.2d 6, 9 (La.App. 4th Cir.), writ denied, 629 So.2d 1139 (La.1993). Also, Louisiana law “recognizes a presumption of continuing life where the time of death is uncertain, until evidence is presented sufficient to establish that death occurred at some specific time or until a presumption of death established by law attaches”. Shroyer v. Grush, 555 So.2d 534, 547 (La.App. 4th Cir.1989) (automobile-pedestrian collision case), writ denied, 559 So.2d 139, 140 (La.1990). Based upon the autopsy report in the present case, the trial court could reasonably find that Mr. Hickerson survived for some time after the impact and suffered pain. This is particularly so in light of the presumption of continuing life. Expert testimony would have been helpful in this regard but was not presented. From the circumstances of the accident, the trial court could reasonably find that Mr. Hickerson suffered pre-impact fear. This cannot be known for certain, as Mr. Hickerson died, Mr. Zimmerman never saw Mr. Hickerson before the collision and |7no witness actually saw the collision. However, the trial court could reasonably find that, more likely than not, Mr. Hickerson saw that he was about to be hit by Mr. Zimmerman’s vehicle.

The defendants also argue that the $400,000 amount of general damages awarded to Mr. Hickerson’s estate was too high. It is well-established that the trial court as finder of fact has “vast” discretion as to the amount of general damages. E.g., Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). While the $400,000 amount is high, we may not disturb it upon appeal absent an abuse of discretion, id., and the $400,000 amount is not so high as to constitute an abuse of the trial court’s “vast” discretion.

The plaintiffs argue that the general damages awards of $200,000 to Valorie Hickerson and $100,000 to Adoración Hick-erson are too low. Again, the trial court as finder of fact has “vast” discretion as to the amount of general damages. Youn, supra. The evidence shows that Valorie Hickerson, as spouse, and Adoración Hick-erson, as daughter, had close relationships with Mr. Hickerson. Large awards of general damages for wrongful death were justified. However, the trial court did make large awards. Reasonable minds could differ as to whether larger awards were justified or whether the amounts awarded were the most appropriate. Because the trial court’s awards were not unreasonable, they do not constitute an abuse of the trial court’s “vast” discretion and, therefore, those awards may not be disturbed upon appeal. Id.

|sLastly, the plaintiffs argue on appeal that the trial court erred by awarding $144,182 in lost wages of Mr. Hicker-son, rather than $180,228 in lost wages, and by not awarding $17,591 for lost household services of Mr. Hickerson. The plaintiffs argue that these amounts were set out in the report of Holly Sharp, CPA, and that the parties stipulated to the admissibility of Ms. Sharp’s report. However, a stipulation as to the admissibility of Ms. Sharp’s report is not a stipulation as to the correctness of her report. Further, as to the lost wages, Ms. Sharp’s report offered two alternative calculations, based upon differing income assumption, which calculations were $144,182 and $180,228. Thus, the trial court simply selected the lesser of the two of Ms. Sharp’s alternative calculation, presumably because the trial court found the income assumed for that calculation to be more appropriate, and the plaintiffs do not show why the trial court was unreasonable to do so. The trial court did not award the $17,591 for the value of lost household services calculated by Ms. Sharp. Again, presumably, this was based upon the trial court’s view of the appropriateness of Ms. Sharp’s assumptions underlying her calculation. The plaintiffs do not show why the trial court was unreasonable in this regard.

In sum, the stipulation as to the admissibility of Ms. Sharp’s report was not binding upon the trial court as to the correctness of Ms. Sharp’s conclusions, and so the trial court’s findings as to the correctness of Ms. Sharp’s conclusions is a factual issue subject to review upon appeal under the manifest error-clear 19wrongness standard and it has not been shown that the trial court was clearly wrong-manifestly erroneous as to these issues.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Rodney WALKER.
    No. 03-KA-188.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Nancy A. Miller, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.

      A. Bruce Nettervifle, Gretna, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

Defendant, Rodney Walker, appeals his conviction of possession of cocaine. For the reasons which follow, we affirm his conviction and sentence.

The Jefferson Parish District Attorney filed a bill of information charging defendant with possession of cocaine, a violation of LSA-R.S. 40:967(C). Defendant pled not guilty and subsequently filed a motion to suppress evidence, which was heard and denied by the trial judge. The matter thereafter proceeded to trial before a six person jury which found defendant guilty as charged.

Defendant filed a motion for new trial which was heard and denied by the trial court. After waiving sentencing delays, the court sentenced defendant to four years at hard labor with credit for time served.

The state then filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant admitted the allegations of the multiple bill and was sentenced, in accordance with the plea agreement, to five years of imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

On the night of December 20, 2000, Deputy Kurt Sanderson, of the Jefferson Parish Sheriffs Office, was dispatched to 6160 August Street in reference to a 911 [.hang up call. Upon arriving at the location, Deputy Sanderson observed two vehicles in the driveway of the home, one a Chevy Lumina and the other, a compact car. As he exited his vehicle, the Lumina backed out of the driveway with its lights off and rapidly accelerated from the location. Deputy Sanderson was told by a woman at the scene that the driver of the Lumina was the “dope man” and possessed crack cocaine inside of his car. Upon hearing that information, Deputy Sanderson notified his backup officer, Deputy Ricky Bou-dreaux, who was en route to the area.

Deputy Boudreaux testified that, within 10 to 20 seconds of receiving the call, he stopped the vehicle at the intersection of August and Ames. Boudreaux testified that the vehicle did not have functioning headlights when he performed the stop. After making the stop, Boudreaux ordered defendant out of the vehicle and conducted a pat down search and field interview of defendant. During this time, the driver’s door of the vehicle was open, and the officer observed, in plain view, a small off-white, rock-like substance on the floorboard of the vehicle. The officer seized the substance. Subsequent tests revealed the rock to be crack cocaine.

Boudreaux then called for a K-9 unit to search the car for possible additional narcotics. Deputy Curtis Roy arrived at the scene with a K-9 dog and a search of the vehicle was conducted. As a result of the search, Boudreaux located and seized a bag containing small rocks of what appeared to be crack cocaine from the center console of defendant’s vehicle. Subsequent testing revealed that these rocks were also crack cocaine.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress evidence.

|4The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652. Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Hicks, 733 So.2d at 654-655.

In the present case, defendant asserts that the stop of the vehicle was illegal because the officers lacked reasonable suspicion of criminal activity. He specifically asserts that the sheriffs deputies had “nothing upon which to suspect illegality” and the only information concerning defendant’s suspected possession of cocaine came from an unidentified woman. Defendant contends that the tip from the unidentified woman failed to give the investigating officer any information about the identity or address of the driver or any information concerning the make, model, and color of the automobile. We find no merit to this argument. In fact, the issue of whether the citizen’s complaint provided reasonable suspicion for the stop is of no consequence because the officers were justified in stopping defendant on other grounds.

|5The evidence, at both the suppression hearing and the trial, was clear that defendant was driving the vehicle at night without headlights. Driving at night without lighted headlights is a violation of LSA-R.S. 32:301, which requires that every vehicle upon a highway within this state shall display lighted lamps and illuminating devices at any time between sunset and sunrise. LSA-R.S. 32:301(1). It has been held that a traffic violation constitutes reasonable cause for a stop. State v. Curtis, 98-1283 (La.App. 5 Cir. 6/1/99), 738 So.2d 657; State v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So.2d 514, writ denied, 98-1452 (La.10/9/98), 726 So.2d 27. Therefore, the police clearly had reasonable cause to stop defendant’s vehicle because it was being operated without headlights as required by statute. Additionally, Deputy Boudreaux had the authority to order the defendant out of the vehicle pending the completion of the traffic stop. State v. Curtis, 738 So.2d at 660.

After defendant exited his vehicle, Deputy Boudreaux performed a pat down of defendant and conducted a field interview. Deputy Boudreaux then looked through the open driver’s side door and observed a small off-white, rock-like substance. Suspecting the item was crack cocaine, Deputy Boudreaux collected the item. Under the plain view exception to the warrant requirement, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Stamp, 98-193 (La.App. 5 Cir. 7/28/98), 718 So.2d 531, 533; State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120, 126. Because the crack cocaine was in plain view, we find that it was lawfully seized. Based on the foregoing discussion, we find that the trial judge did not err in denying defendant’s motion to suppress evidence. This assigned error is without merit.

| ^ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant challenges the sufficiency of the evidence used to convict him of possession of cocaine.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.

To support a conviction for possession of cocaine under LSA-R.S. 40:967, the state must prove beyond a reasonable doubt that defendant was in possession of the cocaine and that he knowingly possessed it. State v. Ruffin, 96-226 (La.App. 5 Cir. 8/28/96), 680 So.2d 85. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to |7the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

On appeal, defendant contends that the state failed to prove that he possessed the cocaine. He points to the fact that no cocaine was found on his person. He also points out that no evidence was submitted establishing that he owned the vehicle which he was driving.

In the instant case, defendant was stopped driving a vehicle in which crack cocaine was found in plain view on the driver’s side floorboard. Additional cocaine was found in the center console of the vehicle. As driver and sole occupant, defendant had custody of the car and the cocaine was within his immediate control. The possible lack of ownership of the vehicle does not negate defendant’s control over the car and its contents.

In State v. Ashlock, 526 So.2d 511, 512-513 (La.App. 3 Cir.1988), the Third Circuit found that defendant’s use of an automobile was sufficient to show he had constructive possession of marijuana found in the automobile, even though it was never established who the registered owner was. Similarly, in State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, this court found that a defendant had constructive possession of cocaine where he was the driver of the vehicle, despite testimony the car belonged to another person. Also, in State v. Williams, 01-644 (La.App. 5 Cir. 11/27/01), 802 So.2d 909, this court found that a defendant was in constructive possession of cocaine where cocaine was found in plain view within the car he was driving, although the car belonged to another person.

IsBased on the foregoing discussion, we find that the state proved beyond a reasonable doubt that defendant had constructive possession of the cocaine.

To establish possession of cocaine, the state was also required to show that defendant knowingly or intentionally possessed the cocaine. The element of knowledge and intent are states of mind that need not be proven as facts, but may be inferred from the circumstances. State v. Reyes, 98-424 (La.App. 5 Cir. 12/29/98), 726 So.2d 84, 88, writ denied, 99-1474 (La.10/8/99), 750 So.2d 967. With regard to this element, defendant contends that the “trace amount” of cocaine found, without other relevant circumstantial evidence, was insufficient to establish his guilty knowledge.

Contrary to defendant’s arguments, there was additional evidence presented by the state establishing defendant’s guilty knowledge. Deputy Sanderson testified that, after he received the call, he proceeded to the origin of the hang up 911 call using his vehicle’s lights and siren. When he arrived at the scene, he exited his vehicle and, as he approached the location, a dark colored Chevy Lumina rapidly pulled out from the driveway and began accelerating from the scene with its lights off. Further, when defendant was stopped, he was the sole occupant and driver of the car, and, according to his mother, defendant had possession of the car for approximately two weeks prior to his arrest. Given these circumstances, it can be inferred that defendant had the requisite mental intent.

Based on the foregoing discussion, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was in constructive possession of fycocaine and that he knowingly or intentionally possessed it. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assigned error, defendant asserts that the sentence imposed was excessive. The appellate court record does not contain a transcript of the sentencing proceedings. This court, on April 28, 2003, ordered defendant to supplement the appellate record with all transcripts of the post-trial/post-verdict proceedings on or before May 7, 2003. Defendant has failed to comply with this order, and therefore, we consider this assignment of error to be abandoned. Moreover, we note that the sentence was apparently imposed pursuant to a plea agreement.

ERROR PATENT DISCUSSION

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

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction for possession of cocaine and his sentence to five years imprisonment at hard labor without benefit of probation or suspension of sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . At trial, Deputy Boudreaux testified that, after defendant exited the vehicle, he examined defendant's driver’s license, registration, and proof of insurance, and determined that defendant was the owner of the vehicle. However, defendant’s automobile registration was ruled inadmissible at trial.

      . Defendant contends that only a “trace amount'' of cocaine was found in the vehicle. Daniel Waguespack testified that the amount of cocaine found was one-tenth of a gram. While such an amount is small, it does not appear to qualify as a "trace amount.” In cases discussing "trace amounts” of crack cocaine, the amounts appear to consist of residue contained within or on drug paraphernalia, which is much less that the amount in the present case. See, State v. Daggs, 32, 216 (La.App. 2 Cir. 8/19/02), 823 So.2d 1093, 1098 and State v. Carter, 99-0779 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 277.


author: JgCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Darryl D. PARKER.
    No. 03-KA-288.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for State.
    Bruce G. "Whittaker, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   JgCLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

The Defendant, Darryl D. Parker, was charged with one count of simple burglary by bill of information on November 9, 1999. He pled not guilty and a jury trial was held on April 26, 2000. The six-person jury found the defendant guilty as charged. On May 8, 2000, the trial court sentenced defendant to twelve years imprisonment at hard labor, to run consecutively with any other sentence that defendant may be serving. On the day of sentencing, the state filed a multiple offender bill of information alleging that the defendant was a third felony offender. The defendant denied the allegations of the multiple offender bill and a hearing was held on October 5, 2000. The trial court found the defendant to be a third felony offender. The trial court then vacated the previous sentence and sentenced the defendant to life imprisonment without the benefit of parole, probation or suspension of sentence.

Defendant filed a motion to reconsider sentence and a motion for appeal on October 12, 2000. The trial court minute entry for December 7, 2000, reflects that neither the defendant, nor his counsel, appeared for the motion hearing so it was continued without date. At that time, the defendant’s appeal addressed only one ^assignment of error which was that the May 8, 2000 sentence was unconstitutionally excessive. This Court rendered an opinion on that appeal on January 31, 2001. State v. Parker, 00-1365 (La.App. 5 Cir. 1/30/01), 778 So.2d 1167, writ denied, 01-615 (La.2/22/02), 809 So.2d 981. This Court noted that the May 8, 2000 sentence had been vacated and defendant had been resentenced as a multiple offender. Since the defendant’s sole assignment of error was that he had received an excessive sentence for his simple burglary conviction, and that sentence had been vacated, this Court found that the appeal was moot.

On August 21, 2001, defendant filed a motion to correct an illegal sentence, arguing that he should have been found to be a second felony offender and not a third felony offender. A hearing on the motion was held and the State agreed with the defendant that the use of the defendant’s prior violation of LSA-R.S. 14:95.1 to enhance the sentence was erroneous. The State agreed that the defendant should be resentenced as a second felony offender, rather than a third felony offender. Counsel for the defendant agreed and stipulated that the defendant had one prior felony conviction. As a result, the trial court vacated the previous life imprisonment sentence and sentenced defendant to 12 years at hard labor. The defendant orally moved that the trial court reconsider the sentence, which was denied.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court imposed an excessive multiple offender sentence. He contends he received a sentence of 12 years at hard labor for the routine burglary of an automobile in which the vehicle sustained damage but nothing was taken.

The record shows no evidence that defendant filed a written motion to reconsider sentence under the provisions of LSA-C.Cr.P. art. 881.1. Defendant made an oral objection to the sentence at the time of sentencing and moved for | ¿reconsideration, but those objections were not specific enough to satisfy the requirements of the article. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342). Accordingly, defendant’s sentence is examined only for constitutional excessiveness.

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. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069. 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. We will further consider three factors in reviewing a judge’s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1040-1041.

In the instant case, defendant was convicted of simple burglary in violation of LSA-R.S. 14:62 and originally sentenced to imprisonment at hard labor for 12 years. Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both. LSA-R.S. 14:62(B). The trial court found defendant to be a [ Rthird felony offender, vacated the original sentence, and sentenced defendant to life imprisonment at hard labor. The trial court subsequently granted defendant’s motion to correct illegal sentence, found defendant to be a second felony offender, vacated the life sentence, and sentenced defendant to 12 years of imprisonment at hard labor. He did not provide reasons for sentencing, although the defendant does not challenge this on appeal. Defendant challenges his 12-year enhanced sentence as excessive.

LSA-R.S. 15:529.1A(l)(a) provides as follows:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction[.]

In light of the foregoing, defendant, as a second offender, was exposed to a minimum sentence of six years and a maximum sentence of 24 years.

The jurisprudence suggests that defendant’s 12-year sentence is neither shocking nor grossly disproportionate to the severity of the crime committed. See, State v. Battle, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 856, writ denied, 99-1785 (La.11/24/99), 750 So.2d 980 (holding that a six-year sentence as a second felony offender was not excessive for a defendant convicted of simple burglary); State v. Anderson, 603 So.2d 780, 785 (La.App. 1 Cir.1992) (holding that 20 years was not excessive for second felony offender convicted of simple burglary), writ granted in part and denied in part, 609 So.2d 831 (La.1992) (requiring an “articulated justification for the near-maximum sentence”); State v. Sanders, 542 So.2d 1134, 1138 (La.App. 3 Cir.1989) (holding that 18 years for a second offender convicted of simple burglary was not excessive); State v. Jones, 537 So.2d 848, 850 (La.App. 5 Cir.1989) (holding that 15 years for a second offender convicted of simple burglary was “clearly not excessive”).

|fiIn the instant ease, defendant argues that his sentence was excessive considering that he committed a routine burglary of an automobile in which the vehicle sustained damage but nothing was taken. However, it is noted that defendant’s 12-year sentence was at the lower end of the sentencing range, and that he could have received up to 24 years of imprisonment. Additionally, defendant had a prior conviction in 1986 for simple robbery. In light of the facts and circumstances of this case and the above-cited jurisprudence, we find that the sentence is not excessive and that the trial judge did not abuse his discretion in imposing the sentence.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals errors patent in this case.

Defendant’s motion for appeal was premature when it was filed after he was convicted, originally sentenced, resen-tenced the first time under the multiple offender statute, but before he was resen-tenced the second time as a multiple offender. However, this procedural defect was cured by the subsequent resentencing. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.

A multiple offender bill of information was filed against defendant. When a multiple offender bill of information is filed, LSA-R.S. 15:529.1D(l)(a) provides that the trial court shall order the defendant to appear before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. The statute also requires that the court advise the defendant of his right to remain silent.

|7In the instant case, the trial court failed to advise defendant of his multiple bill rights on the record. However, in State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir.1992), overruled on other grounds in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131, this Court held that the failure of the trial court to advise the defendant of his right to a trial and to remain silent was harmless error where the multiple offender status was established by competent evidence offered by the State at the hearing, rather than by admission of the defendant.

In the instant case, defendant denied the allegations of the multiple bill, and the State presented competent evidence at a hearing to establish defendant’s multiple offender status.

At the hearing on the motion to correct illegal sentence, held after the multiple offender hearing, defendant stipulated to a prior felony conviction. However, the court did not advise defendant of his rights pursuant to LSA-R.S. 15:529.1(D) before he did so. Such failure to advise defendant of these rights may constitute reversible error. State v. Dearmas, supra. However, the State had already proved at the multiple offender hearing that defendant had two prior convictions, and that even though one prior conviction was dropped, the other conviction remained the same. Based on these circumstances, we find that the failure to advise defendant of his multiple offender rights at the hearing on the motion to correct illegal sentence was harmless error. State v. Knight, 01-881 (La.App. 5 Cir 2/13/02), 811 So.2d 947, 949.

In accordance with the above, we affirm the defendant’s adjudication as a second felony offender and the defendant’s sentence of 12 years imprisonment.

AFFIRMED.


author: UCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Charles E. BATES.
    No. 03-KA-352.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.

      Paul D. Connick, Jr., District Attorney, Margaret E. Hay, Terry M. Boudreaux, Nancy A. Miller, Assistant District Attorneys, Gretna, LA, for State.
    Holli Herrle-Castillo, Marrero, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. MCMANUS.
   UCLARENCE E. McMANUS, Judge.

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Charles Bates, with distribution of cocaine, a violation of LSA-R.S. 40:967(A). The defendant pled not guilty at arraignment. On May 14, 2002, a twelve-person jury found the defendant guilty as charged. Defendant was sentenced on May 22, 2002 to serve fifteen years of imprisonment at hard labor.

Thereafter, the State filed a multiple offender bill of information alleging defendant to be a third felony offender based on two previous convictions. The State commenced the multiple offender hearing but amended the multiple bill to allege defendant to be a second felony offender. After defendant executed a multiple offender waiver of rights form, the trial judge advised defendant of his multiple offender rights, and accepted his stipulation that he was a second felony offender. The trial judge vacated the original sentence and imposed a multiple offender sentence of fifteen years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appeal followed.

FACTS

On May 3, 2000, Agent Megan Carter, a narcotics agent with the Jefferson Parish Sheriffs Office, was working undercover •with the Kenner Police | ^Department driving a vehicle equipped with video and audio recording devices, as well as an audio transmitter. Detective George Ansardi was a member of the surveillance team and monitored the transaction at issue on the audio transmitter.

At trial, Agent Carter testified that she pulled into a trailer park at 150 West Airline Highway in Kenner and stopped her vehicle. Agent Carter asked a woman there, later identified as Natalie Turner, if she knew where to obtain a “20,” which Agent Carter explained was street language for one rock of crack cocaine. Turner replied that she could help her and that a man was on his way over to Turner’s trailer to bring some crack cocaine. Turner also stated that a friend of hers in the trailer park had some crack cocaine. Turner then walked through the trailer park and talked to someone as Agent Carter followed slowly in her vehicle.

Turner returned to Agent Carter’s vehicle and explained that the man who was on his way to Turner’s trailer was the son of a man (later identified as defendant) who lived in the trailer park. Turner also told Agent Carter that the son was the person whom she really ought to deal with, but that “this guy’s cool too.” The defendant walked up to Agent Carter’s vehicle, and Agent Carter said, “You got that bro?” The defendant said to “hold up,” and walked away from the car for a moment. Agent Carter said she would turn the car around, and defendant replied that was okay. Agent Carter drove to the front of the trailer park and waited while defendant and Turner were inside of another trader near the entrance of the park. Agent Carter testified that when the defendant returned to her car, she exchanged $20 for one rock of crack cocaine with defendant.

The videotape of this transaction was played for the jury at trial. According to Agent Carter, the rock-like object that defendant sold her weighed .10 gram.

After the transaction, Agent Carter gave Detective Ansardi the rock-like object and the videotape of the transaction. The State’s narcotics expert, Charles Krone, testified the rock-like substance tested positive for the presence of cocaine. |4Mr. Krone testified that he did not weigh the material because the material was in “small fragments” when he received it.

Sometime after the transaction, Detective Ansardi obtained still photographs from the videotape and showed them to a confidential informant, who supplied the defendant’s name to the police. After viewing a photographic lineup prepared by Detective Ansardi, Agent Carter identified the defendant as the person who sold her the crack cocaine. Agent Carter also positively identified defendant at trial.

DISCUSSION

Defendant contends that the evidence was insufficient to convict him of distributing cocaine as he established a defense of entrapment. The State asserts that the evidence was sufficient to support defendant’s conviction and that defendant failed to meet his burden of proving entrapment.

The constitutional standard 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 all of the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See, State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437. The defendant was convicted of violating LSA-R.S. 40:967(A), distribution of cocaine. Pursuant to that statute, the State was required to prove that defendant knowingly or intentionally distributed cocaine. See, State v. Raines, 00-1941, p. 7 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 640, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

Entrapment is a defense that arises when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of a crime, originates the idea of the crime and then induces the person to engage in conduct constituting the offense when that person is not otherwise disposed to do so. State v. Brand, 520 So.2d 114, 117 (La.1988); State v. Petta, 98—745, pp. 7-8 (La.App. 5 Cir. 2/10/99), 729 So.2d 29, 32, writ denied, 99-0692 (La.9/3/99), 747 So.2d 533, cert. denied, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000).

The entrapment defense is composed of two elements, which are (1) an inducement by a state agent to commit an offense, and (2) the lack of defendant’s predisposition to commit the offense. The defendant has the burden of proving by a preponderance of evidence that a state agent induced him to commit a crime. Once the defendant meets this burden, the State has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. State v. Lewis, 01-1084, p. 6 (La.App. 5 Cir. 3/13/02), 815 So.2d 166, 171, writ denied, 02-1053 (La.11/15/02), 829 So.2d 424.

However, it is not entrapment if the officers or agents have merely furnished a defendant who is predisposed to commit the crime the opportunities to do so. As stated by the Louisiana Supreme Court, “In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” State v. Brand, 520 So.2d at 116; Accord, State v. Petta, supra.

The first inquiry is whether defendant proved by a preponderance of the evidence that he was induced to commit the crime. If so, the next inquiry is whether the State adduced evidence of the defendant’s predisposition to commit the crime such that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that it was the defendant’s predisposition to commit the crime, rather than the State’s inducement that caused the defendant’s conduct. State v. Petta, supra.

Addressing an entrapment defense in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the United States Supreme Court commented on undercover narcotics operations:

| fiThus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition. See United States v. Sherman, 200 F.2d 880, 882 (C.A.2 1952).

Jacobson, 503 U.S. at 549-550, 112 S.Ct. at 1541.

The record reflects that rather than inducing defendant Agent Carter merely furnished defendant the opportunity to distribute crack cocaine. Agent Carter testified that she had never met Turner or defendant before the day of the offense. Agent Carter further testified that she had never spoken to defendant until he approached her vehicle. Additionally, defendant, not Agent Carter, directed the sequence of the events leading up to the drug transaction. After Agent Carter made known her desire to purchase cocaine, she simply waited until the defendant brought the cocaine to her vehicle. Defendant’s willingness to commit commission of the crime demonstrates his predisposition to do so.

The videotape depicts the defendant returning from the trailer with something in his hand and putting something in his pocket after Agent Carter said, “thank you.” Agent Carter testified that she gave defendant $20 for the object in defendant’s hand, which was a rock of crack cocaine. The jury apparently believed Agent Carter’s testimony that the defendant sold her crack cocaine. In State v. Deruise, 98-0541, p. 26 (La.4/3/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court reiterated that “[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243, p. 12 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

Considering the foregoing, the drug transaction between Agent Carter and the defendant merely provided an opportunity for him to commit a crime for which he was predisposed. Thus, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt, that the defendant’s predisposition, independent of the State’s actions, caused him to distribute cocaine. This assignment merits little consideration.

The defendant next argues that he received an illegal sentence because the trial judge imposed the entire multiple offender sentence without benefit of parole. The defendant further contends that only the first two years of the sentence should be without benefit of parole. The State maintains that the defendant’s sentence is illegal, but contends that the first five years of the sentence should be served without benefit of parole.

When a defendant is sentenced as a habitual offender, “[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Taylor, 99-385 (La.App. 5 Cir. 8/31/99), 743 So.2d 749, 754 (citing State v. Bruins, 407 So.2d 685, 687 (La.1981)). Further, the applicable penalty provision is the one in effect at the time of the commission of the offense. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520; Accord, State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354.

At the time defendant committed the instant offense on May 3, 2000, distribution of cocaine was punishable by imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of the sentence served without benefit of parole, probation, or suspension of sentence. See, LSA-R.S. 40:967(B)(4)(b), West 2000. However, in 2001, the Louisiana Legislature ^reduced the amount of imprisonment to be served without parole eligibility from five to two years. See, 2001 La. Acts 403, § 4.

Both the sentencing transcript and the commitment reflect that, on February 5, 2008, the trial judge imposed defendant’s multiple offender sentence without parole eligibility for the entire term of imprisonment. In accordance with the law in effect when the crime was committed, the trial judge should have restricted parole eligibility for the first five years of the sentence. According to LSA-C.Cr.P. art. 882(A), “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” In State v. Lewis, 815 So.2d at 178, the trial court improperly restricted parole eligibility when sentencing defendant as a multiple offender. This Court found that the sentence was illegal, amended the sentence to delete the word “parole” and remanded for the trial court to correct the commitment to reflect the amendment.

Accordingly, we amend the defendant’s sentence to provide that only the first five years of the defendant’s sentence is served without benefit of parole, and remand the matter for the trial court to correct the minute entry and commitment to reflect the amendment.

ERROR PATENT DISCUSSION

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

The record reveals that the trial judge failed to advise the defendant of the prescriptive period for fifing post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. In such cases, this Court has remanded the matter and instructed the trial court to send appropriate written notice to defendant of the prescriptive period for post-conviction relief, and to file written proof in the record that defendant received the notice within ten days of the rendering of the opinion. State v. Badeaux, 01-406, p. 12 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, 241, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414.

Next, we note that there are several discrepancies between the transcript and the corresponding minute entries in the record. First, minute entry number five indicates the proceedings were conducted on April 23, 2002 while the transcript indicates the proceedings occurred on April 2Jp, 2002. Next, minute entry number six indicates that the first day of trial was on May 8, 2002, while the transcript indicates the date was May IS, 2002. Finally, we point out that there are two minute entries for October 23, 2002. Both entry numbers 11 and 12 contain the same date and virtually the same information. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter to the trial court to correct the dates on the minute entries to conform with the corresponding transcripts. Further, we order the trial court to reconcile the two minute entries for October 23, 2002 so that there is only one minute entry for that one date.

CONCLUSION

Based on the foregoing, we affirm defendant’s conviction and sentence as amended and remand this matter for further proceedings consistent with this opinion.

AFFIRMED AS AMENDED; REMANDED FOR FURTHER PROCEE-DIGNS.

      . Accord, State v. Francis, 98-811 (La.App. 5 Cir. 1/26/99), 727 So.2d 1235, 1238, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.


text:
    STATE of Louisiana v. Clifford J. DUPLESSY.
    No. 03-KA-185.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Martin E. Regan, Jr., Attorney, Kris A. Moe, Attorney, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   1 ¡¿EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information on August 1, 2001, charging defendant, Clifford Duples-sy, with simple criminal damage to property where the damage exceeded $500, in violation of LSA-R.S. 14:56. Defendant pled not guilty, and the matter proceeded to trial on December 10, 2001. After considering the evidence presented, the six person jury found defendant guilty as charged. On January 25, 2002, the trial judge sentenced defendant to one year of imprisonment at hard labor at which time he made an oral motion for appeal.

Thereafter, the state filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction for second degree battery. On March 8, 2002, defendant admitted the allegations in the multiple bill, and in accordance with the plea agreement, the trial judge vacated defendant’s original sentence and resentenced him to two years. Additionally, the trial court ordered defendant to pay restitution in the amount of $500 and previously court-ordered monthly child support in the amount of $657. During the sentencing hearing, defendant withdrew his oral motion for appeal in compliance with the plea agreement in which defendant agreed not to appeal.

On April 12, 2002, through newly retained counsel, defendant filed a motion to vacate illegal sentence, motion for out-of-time appeal, and motion for appeal bond. The state responded by fihng a motion to withdraw the plea agreement. After a hearing on May 2, 2002, the trial court granted the state’s motion to withdraw the plea agreement on the basis defendant violated the terms of the plea |sagreement. The trial court reinstated defendant’s original one year sentence and, consequently, found defendant’s motion to vacate illegal sentence to be moot.

Subsequently, on July 19, 2002, a multiple offender hearing was held. The state offered a certified copy of defendant’s pri- or conviction and defendant stipulated to his identity. Thereafter, the trial court found defendant to be a second felony offender, vacated his original one year sentence, and resentenced him as a multiple offender to three years. Defendant now appeals.

FACTS

At approximately 12:30 p.m. on July 2, 2001, Charles Kirchem was leaving his place of employment at Doctor’s Hospital to run errands when he heard a loud hissing noise as he was walking to his vehicle in the parking garage. He saw someone, whom he later identified as defendant, squatted down beside a vehicle near one of its tires. Mr. Kirchem was suspicious and slowed down by piddling with his keys. Defendant then walked towards Mr. Kir-chem at which time Mr. Kirchem noticed defendant carrying a white rag in one hand and a white aerosol can in the other. Mr. Kirchem made eye contact with defendant and nodded at him as defendant proceeded to walk toward the elevator and stairs.

Mr. Kirchem continued to walk to his truck at which time he noticed that the car of his co-worker, Kim Hughes, had a flat tire. He called Ms. Hughes from his cell phone and told her to check her car. As Mr. Kirchem was exiting the parking garage, he again saw defendant coming down the stairs near the elevators. Mr. Kir-chem was suspicious so he circled around the area. He saw defendant walk through the nearby Rite Aid parking lot before losing sight of him.

Meanwhile, Ms. Hughes went to the parking garage and discovered her 1994 Mustang had been damaged. Both tires on the passenger side of the car had been slashed and some sort of substance had been poured on her car that faded the paint and damaged the headlights and rear fights. The damage was estimated at $2,200. 14 Ms. Hughes called the police who came to the scene. She told the police that she thought defendant, who was the ex-husband of her friend Sharon, had done it. By this time, Mr. Kirchem had returned to the scene. He subsequently gave the police a description of the perpetrator. Approximately one week after the incident, Mr. Kirchem was shown a photographic lineup from which he identified defendant as the person he saw near Ms. Hughes’ car.

At trial, defendant, the owner of Top to Bottom construction company, presented alibi testimony that he was on a job with Gina Michel the time the incident took place. Ms. Michel, owner of G & L Home Improvements, testified that she and defendant were at a home in Violet around 11:30 a.m. on July 2, 2001 so defendant could give his opinion as to why the home’s roof was leaking. Thereafter, the two went to lunch at Par-3 Diner in Chal-mette. Ms. Michel testified she and defendant were at lunch until 1:00 — 1:30 p.m.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues the trial court abused its discretion in denying his Batson challenges. Defendant, who is white, asserts that the trial court erred in allowing the state to use its peremptory challenges to strike three prospective black jurors. Defendant contends the race neutral explanations offered by the state to justify the use of its peremptory challenges were weak and insufficient to overcome the impermissible discriminatory use of its strikes.

It is well established that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court established a three step analysis to determine whether a peremptory challenge has been used in violation of the Equal Protection Clause.

lr;To prevail on a Batson challenge, a defendant must first establish a prima fa-cie case of discrimination by showing facts and relevant circumstances that raise an inference that the prosecutor used his or her peremptory challenges to exclude potential jurors on the basis of race. Batson, 476 U.S. at 94, 106 S.Ct. at 1721, 90 L.Ed.2d at 86; State v. Joseph, 01-360 (La.App. 5 Cir. 10/17/01), 802 So.2d 735, 739, writ denied, 02-232 (La.12/13/02), 831 So.2d 979. In State v. Green, 94-887 (La.5/22/95), 655 So.2d 272, 288, the Louisiana Supreme Court discussed how a defendant may establish his prima facie case:

The defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

If a prima facie case is established, the burden shifts to the state to come forward with a race neutral explanation for its peremptory challenges. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995). To be facially valid, the prosecutor’s explanation need not be persuasive, or even plausible; thus, unless the discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839; State v. Joseph, supra. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Purkett, supra; Batson, supra.

A trial court’s determination on a claim of purposeful discrimination rests largely on credibility determinations, so his findings are entitled to great deference by the reviewing court and will not be overturned absent a finding of manifest |fierror. State v. Toussaint, 98-1214 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 964, writ denied, 99-1789 (La.11/24/99), 750 So.2d 980

In the present case, during the course of voir dire, defense counsel raised a Batson claim based on the state’s use of peremptory challenges to excuse black jurors Margaret Hunter, Lois Washington, and Lovina McIntyre. When the defendant made his Batson challenges, the trial judge immediately requested a race neutral explanation from the state.

With regard to Ms. Hunter, the prosecutor responded that she was not very observant when the trial judge asked questions regarding her employment, whether she had been a victim of crime, and whether she had ever served on a jury. The prosecutor also commented that Ms. Hunter was hesitant in her answers. In denying this Batson challenge, the trial court agreed that Ms. Hunter was not very attentive.

As to Ms. Washington, the prosecutor explained that she believed her to be sympathetic because she is a sitter with five children. The prosecutor noted a sitter cares for people. The prosecutor also noted the domestic issues involved in the case and believed Ms. Washington would be sympathetic because she was divorced and had five children. In responding to this explanation, the trial court commented that the state’s race neutral explanation was weak. The trial judge stated that he was not persuaded by the fact Ms. Washington was a sitter and found that fact not to be the strongest of race neutral reasons. However, the trial court made its own observations of Ms. Washington noting that she was inattentive and appeared disinterested. The trial court stated Ms. Washington did not make eye contact when the jury venire was asked about the Fifth Amendment and she failed |7to nod her head or respond in any way. The trial court thereafter denied this Batson challenge.

Lastly, concerning Ms. McIntyre, the prosecutor responded that she was a social worker who worked “on call” at Ri-varde Juvenile Detention Center. The prosecutor explained that Ms. McIntyre’s employment made her more oriented towards rehabilitation than punishment. The prosecutor believed Ms. McIntyre would “go outside this case based on sympathy.” The trial court accepted the state’s race neutral reason and denied defendant’s Batson challenge. In weighing the race neutral explanation with the proof of purposeful discrimination, the trial court stated, “I’m familiar with Rivarde and the workers that they have in there are as much perhaps more often advocates for juvenile delinquents or juvenile status offenders.” The trial court accepted the state’s race neutral reason and denied defendant’s Batson challenge.

Defendant now argues that the trial court erred in accepting these explanations as race neutral. In previous cases, these same basic explanations have been found to be race neutral. The inattentiveness of a prospective juror is a sufficient reason to overcome a Batson challenge. State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401, 408-409; State v. Galliano, 96-1736 (La.App. 1 Cir. 6/20/97), 696 So.2d 1043, 1048, writ denied, 97-1963 (La.1/9/98), 705 So.2d 1098. This court has also held that perceived hostility, lack of interest, and unresponsiveness are race neutral reasons to exclude prospective jurors. State v. Williams, 545 So.2d 651, 655 (La.App. 5 Cir.1989), writ denied, 556 So.2d 53 (La.1990). Furthermore, challenges based on other reasons supplied, namely the jurors’ professions, have also been upheld as race neutral. State v. Moody, 587 So.2d 183 (La.App. 3 Cir.1991); State v. Rose, 606 So.2d 845 (La.App. 2 Cir.1992).

In the present case, the trial judge was in the best position to observe the entire voir dire and thus, to make the most informed decision as to whether the state used its peremptory challenges in a discriminatory manner. We find that the trial judge did not abuse his discretion in deciding that the prosecutor’s explanations were race neutral and in thereafter denying defendant’s Batson claims. The arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant challenges the sufficiency of the evidence used to convict him of simple criminal damage to property.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the state is required to prove the identity of the perpetrator. Where the key issue is identification, the state is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69.

On appeal, defendant argues that the state failed to prove his identity as the perpetrator. He challenges Mr. Kirehem’s identification on several grounds. Defendant first contends he does not match the physical description of the perpetrator as given by Mr. Kirchem. Defendant alleges the evidence established he was clean shaven around the time of the incident while the perpetrator was described as having a goatee and moustache. Second, defendant points out that 19Mr. Kirchem’s description of the perpetrator did not include one of his most distinguishing physical characteristic of dark circles under his eyes. Third, defendant asserts Mr. Kirchem’s identification of him was tainted because of his work relationship with the victim. Defendant contends Mr. Kirchem was previously given a description of defendant by the victim so he could identify defendant in a lineup. Fourth, defendant relies on his alibi that he was working with Gina Michel at the time of the incident as evidence of his misidentifieation.

To prove identification in this case, the state offered the testimony of the only eyewitness, Charles Kirchem. Mr. Kir-chem testified that he saw the perpetrator two times. He first saw the perpetrator in the parking garage at the scene of the crime and again as he was exiting the parking garage. Mr. Kirchem explained that the garage has overhead lighting that was on at the time of the incident and ventilation vents that provide additional light. He stated he became suspicious and paid close attention after hearing the hissing noise and seeing a man crotched down beside a vehicle. He even made eye contact with the perpetrator as the perpetrator walked near him. Mr. Kirchem then gave a description of the perpetrator to the police. In that description, Mr. Kir-chem stated he believed the perpetrator had a moustache or goatee but noted it was not very distinguished. Approximately one week after the incident, Mr. Kir-chem identified defendant in a photographic lineup. He testified he had no doubt that defendant was the man he saw next to Ms. Hughes’ vehicle. Mr. Kirehem also identified defendant in court as the man who he saw next to Ms. Hughes’ car on the day of the incident.

In contrast to this testimony, defendant presented the testimony of Mary Parkman, a secretary at defendant’s Top to Bottom construction company. She testified that defendant did not have a mous-tache in the summer of 2001 and further that she never remembered defendant wearing a goatee. Gina Michel, owner of G & L Home Improvements, also testified for defendant and stated that |indefendant was with her at the time of the incident. She stated defendant did not have a mous-tache or goatee on July 2, 2001.

The jury listened to all the evidence and apparently found the testimony of Mr. Kirehem to be more credible. During trial, Mr. Kirehem was fully cross-examined about the description he gave the police. He was specifically asked about the perpetrator’s moustache and goatee. Mr. Kirehem explained that the perpetrator’s facial hair was not very distinguished. Although two of the defense witnesses testified defendant was clean shaven, the photographic lineup showed defendant with a moustache thereby demonstrating that defendant did, at times, wear facial hair. The jury was also made aware that Mr. Kirchem’s initial description of the perpetrator omitted his distinguishing physical feature of dark circles under the eyes. In addition, the jury heard about Mr. Kirchem’s work relationship with the victim. After hearing all this testimony, the jury chose to accept Mr. Kirchem’s identification testimony and reject defendant’s alibi testimony. It is the fact finder’s function to determine the weight of the evidence bearing on defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So.2d 400.

Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found, beyond a reasonable doubt, that defendant was the perpetrator of the crime. Thus, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, defendant contends that this court erred in denying his motion for a remand to the trial court which he filed on two separate occasions while this appeal was pending.

|nOn January 25, 2002, after his conviction and prior to sentencing, defendant filed a motion for new trial based on newly discovered evidence and the matter was set for hearing. However, on March 8, 2002, prior to a hearing on the motion for new trial and at the beginning of the first multiple offender hearing, defendant withdrew the motion for new trial.

On July 19, 2002, at the commencement of the second multiple bill hearing, defendant filed a second written motion for new trial. The trial court ruled that the motion was not docketed for that day and declined to hear it. The multiple bill hearing proceeded and defendant was found to be a second felony offender. He was resen-tenced as a multiple offender on July 22, 2002. Immediately after being sentenced as a multiple offender, defendant made an oral motion for appeal which was granted.

Approximately one and one-half months later, on September 12, 2002, defendant filed a motion to set the motion for new trial for hearing. Four days later, without hearing, the trial court denied the motion to set stating the following three reasons: 1) it was divested of jurisdiction pending appeal, 2) the motion for new trial was untimely because it was filed after sentencing, and 3) there were no grounds alleged in the motion for new trial.

Thereafter, on December 9, 2002, defendant filed with this court a motion for remand to the district court for a new trial hearing. In his motion for remand, defendant asserted that he filed a motion for new trial based on newly discovered evidence but the motion was denied by the trial court because it was divested of jurisdiction pending the current appeal. He requested the matter be remanded to the trial court for a hearing on his motion for new trial. The motion was denied by this court on December 10, 2002. On March 11, 2003, defendant again filed with this court a motion for remand to the district court for a new trial hearing. On March 25, 2003, this court denied defendant’s second motion.

ligOn appeal, defendant is asking this court to review its own ruling. In State v. Guillory, 526 So.2d 1164, 1168 (La.App. 3 Cir.1988), writ granted and cause remanded, 531 So.2d 258 (La.1988), the Third Circuit was faced with this exact situation. In Guillory, defendant filed a motion to remand the case for a hearing on his motion for new trial while the appeal was pending. The motion to remand was denied. On appeal, defendant assigned as error the Third Circuit’s denial of his motion to remand. The Third Circuit summarized that defendant was seeking the court to review its own ruling and stated, “[w]e know of no procedure by means of which this can be done and accordingly this assignment is not considered.” The Louisiana Supreme Court subsequently granted writs and remanded the case to the district court for a hearing on the motion for new trial pursuant to LSA-C.Cr.P. art. 853. State v. Guillory, 531 So.2d 258 (La.1988).

In the present case, defendant did not seek review of either denial of his motion for remand until this appeal. We conclude, as did the Third Circuit, that there is no procedure by which this court can review its own motion rulings on appeal, and accordingly, this assignment is not considered.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975).

For the reasons set forth herein, we hereby affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . A white defendant has standing to challenge the use of peremptory challenges to exclude black jurors. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

      . Although the trial judge did not expressly rule that the state had established a prima facie case of discrimination, a trial judge’s demand for race neutral justification for peremptory strikes is tantamount to a finding that enough evidence has been shown to support an inference of intentional discrimination. State v. Green, 655 So.2d at 288.

      . While, ‘‘[t]he reason certainly is stronger if the attorney is able to articulate an objective fact, such as that the juror was slow in answering questions or had to have questions repeated ... the judge is free, based upon all the information presented and that judge’s eyewitness observation of counsel, to conclude that the reason is offered in good faith and not as a subterfuge for race.” United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.1993). This federal case was cited with apparent approval by the Louisiana Supreme Court in State v. Taylor, 99-1311 (La. 1/17/01), 781 So.2d 1205, 1212, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).