author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Broc J. LEE.
    No. 02-KA-0704.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry Bourdreaux, Andrea F. Long, George Wallace, Assistant District Attorneys, Gretna, LA, for Appellee.
    Jane L. Beebe, Gretna, LA, for Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

Defendant, Broc Lee, appeals his conviction of possession of a firearm by a convicted felon. We affirm.

Lee was charged by bill of information with a violation of LSA-R.S. 14:95.1. Lee waived his presence at arraignment, and counsel entered a plea of not guilty on his behalf. Lee filed a Motion to Suppress the Evidence, Confession and Identification, which motion was referred to the merits of the case.

On the day of trial, the trial judge advised Lee of his right to a trial by jury. Lee opted to waive that right and requested a bench trial. Trial on the merits was held that day, and, at its conclusion, the court found Lee guilty as charged.

The trial court subsequently sentenced Lee to ten years at hard labor, without benefit of parole, probation or suspension of sentence. On March 11, 2002, defendant filed an application for post-conviction relief, seeking an out-of-time appeal, which was granted.

Testimony and evidence taken at the trial disclose the following. At 3:00 p.m. on August 24, 1999, Deputies Bryan Huesman and Chad Dear of the Jefferson Parish Sheriffs Office were on patrol in Gretna. They were dressed in uniforms identifying them as members of the Street Crimes Division and were traveling in |san unmarked police vehicle. Hues-man drove the vehicle and Dear rode in the passenger seat.

The officers testified that they passed a white Honda Accord automobile on the Westbank Expressway. Huesman stated that he could see the driver of the vehicle, which was on his left, was not wearing a seatbelt, in violation of traffic laws. Deputy Huesman slowed the police unit and pulled behind the Accord in order to make a traffic stop. Without signaling, the driver of the Accord made a sharp turn into a bus terminal located in the median of the expressway. Huesman was required to make a U-turn in order to follow. The officers saw the front seat passenger of the vehicle bend down in his seat as if he were attempting to conceal himself from them. The driver of the vehicle parked it in the bus terminal. Huesman activated his vehicle’s police lights and parked behind the Accord.

The deputies exited their vehicle, identified themselves as police officers, and ordered the two men in the Accord to get out of their car. The subjects complied, leaving the car’s doors open. Huesman approached the driver, Melvin London, and Dear walked toward the passenger, Lee. Huesman explained to London that he had been stopped for traffic violations and asked for his driver’s license, proof of automobile insurance, and registration. The officers issued London traffic citations for failure to wear a seatbelt and for failure to use a turn signal.

Through the open door, Dear could see, on the floorboard under the passenger seat, a chrome-plated .25 caliber handgun. He informed his partner of his discovery, and Huesman immediately handcuffed both subjects for purposes of the officers’ safety. Upon retrieving the gun from the floorboard, Dear found a second .25 caliber handgun under the front passenger seat. Both weapons were loaded. Lee and London both denied ownership of the guns.

|4The officers ran the subjects’ names and the guns’ serial numbers through the NCIC system and found that Lee was a convicted felon. Lee was placed under arrest. Huesman conducted a pat-down search of Lee’s person and discovered he was wearing a gun holster clipped to the waistband of his pants, concealed by his shirt.

The officers called Louis Mungia, a crime scene technician, to the scene. Mungia took custody of the evidence. He also attempted to lift fingerprints from the guns but was unsuccessful.

Melvin London testified at trial that he is related to Lee by marriage. He stated that the Honda Accord is his car but that the guns did not belong to him. Lee had the guns on his person, and London did not see them until the police made the traffic stop. Lee then removed the guns from under his shirt.

Lee’s parents, Arthur and Linda Lee, testified that Lee has never owned guns, and they have never seen him in possession of one. During his testimony, Lee admitted to two prior felony convictions for possession of cocaine. However, he denied that the guns seized by the officers were his, or that he was ever in possession of them.

Lee argues that the state failed to prove his guilt beyond a reasonable doubt, as it did not show he had possession of the guns found by Deputy Dear. When issues are raised on appeal as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot.

|ñThe 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.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

The elements necessary to sustain a conviction under LSA-R.S. 14:95.1 are: (1) possession of a firearm, (2) prior conviction for an enumerated felony, (3) absence of the ten-year statutory limitation period, and (4) the general intent to commit the crime. Actual possession of a firearm is not necessary to satisfy the possession element of the statute; it is sufficient that the subject had constructive possession. A person is in constructive possession of a thing if it is subject to his dominion and control. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. The jurisprudence additionally requires proof that the offender was aware that a firearm was in his presence, and that he had the general criminal intent to possess the weapon.

Ijn the present case, Lee testified to his previous conviction of possession of cocaine. Therefore, the only contested fact at trial was whether he possessed the weapons. Lee argues the evidence does not show he had possession of the two guns found in the car, and that in fact, all indicators point to Melvin London as the guilty party. Our review of the record discloses no support for this contention. It is correct that neither Deputy Dear nor Deputy Huesman saw Lee in actual possession of the two guns. Moreover, the crime scene technician did not recover any fingerprints from the guns to show that Lee had held them. However, Melvin London testified that he saw Lee take the guns from under his shirt and place them under the seat. London’s testimony, if believed, is direct evidence of actual possession, as well as of intent. The court obviously found this testimony to be credible. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with the judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence.

The other evidence of possession admitted at trial was circumstantial. Deputies Dear and Huesman both testified that they saw Lee duck down in the passenger seat when he spotted their police car. Deputy Dear discovered the guns on the floorboard on the front passenger side of the vehicle, immediately after Lee exited the passenger seat. Even excluding London’s testimony, there is a strong inference that Lee bent over in an attempt to hide the weapons when he saw he was the subject of a traffic stop. Equally telling is Hues-man’s testimony that he found a Raven .25 caliber holster on Lee’s person. At trial, Huesman demonstrated that the Raven .25, the first gun found on the floorboard, fit perfectly into the holster.

^^Considering the foregoing, there was sufficient evidence under the Jackson standard to prove the charge of possession of a firearm by a convicted felon. This assignment of error has no merit.

Lee urges that the trial court erred in failing to suppress the guns seized as evidence at the time of the traffic stop. The parties agreed to refer the motion to the trial on the merits, and because Lee opted for a bench trial, the court was able to try the case simultaneously with the Motion to Suppress.

The transcript does not show that the judge explicitly denied Lee’s motion. However, in rendering the guilty verdict, the court stated that the evidence indicated “that the police officers had probable cause to make the traffic stop, and that once that traffic stop was made, what they observed led them to search cursorily the vehicle.” We construe this finding, along with the guilty verdict, as denial of the Motion to Suppress. Moreover, the transcript shows that defense counsel responded to the verdict by stating, “We’d note our objection for the ruling on the motion to suppress.”

Lee argues that the seizure was illegal, as it was based on a stop for failure to use a safety belt, a violation of LSA-R.S. 32:295.1. Prior to its amendment, that statute provided, in pertinent part:

A. (1) Each driver of a passenger car, van, or truck having a gross weight of six thousand pounds or less, commonly referred to as a pickup truck, in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion.
F. No vehicle, the contents of the vehicle, driver, or passenger in a vehicle shall be inspected, detained, or searched solely because of a violation of this Section.

Subpart A, as amended by 1999 La. Acts 926, now reads, in part:

A. (1) Each driver of a passenger car, van or truck having a gross weight of ten thousand pounds or less, commonly referred to as a pickup truck, in this state, [sshall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion.

Subpart F, as amended by 1999 La. Acts 1344, now reads:

F. Probable cause for violation of this Section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Section. A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.

Lee argues that the amendment to Subpart F became effective in “January 2000,” after the date of the instant offense. He asserts that because the earlier version of Subpart F prohibited traffic stops based solely on a seatbelt violation, the stop was illegal, and the guns seized pursuant to the stop should have been suppressed.

Lee does not provide authority for his claim that Act 1344 took effect in January of 2000. The state argues that the amendment took effect on August 15, 1999, nine days prior to the offense, citing to Article 3, § 19 of the Louisiana Constitution, which provides that all laws enacted during a regular session of the legislature shall take effect on August 15 of the calendar year in which the regular session is held, unless the bill designates an earlier or late effective date.

A legislative history of Act 1344 (Senate Bill 362) shows that the amendment, passed during the 1999 regular legislative session, had an effective date of August 15, 1999. There is nothing -in the act itself that designates an alternate effective date. It is clear, then, that the actual effective date of the amendment to Subpart F was August 15, 1999. Lee’s claim that the earlier version of the statute is applicable to his case has no merit.

Having determined that the present version of the statute was in effect on August 24, 1999, the record illustrates that Deputies Dear' and Huesman had | aprobable cause to stop Lee and his companion if they had a “clear and unobstructed view” of either or both subjects not properly restrained. Huesman testified that while driving alongside the Honda Accord, he could clearly see that the driver was not wearing a seatbelt, although Deputy Dear testified that he could not recall whether he saw the violation, or whether Huesman advised him of it. Melvin London, the driver of the vehicle, testified that he was in fact not wearing a seatbelt when the officers stopped him.

At trial, Lee argued that the officer could not have had an unobstructed view of the car’s occupants, as the car’s windows were tinted. Lee introduced photographs of a white Honda Accord in support of this assertion, and London identified the car in the photographs as his own, stating that the windows were tinted at the time of the incident. The officers nonetheless testified that they were able to see clearly into the car. Dear stated that, had the windows been tinted to the extent that he was unable to see through them clearly, he would have cited the driver for having illegally tinted windows. As it was, the officer did not issue such a citation. The trial court obviously found the testimony of the officers to be credible.

Moreover, Lee’s failure to use a turn signal offered the officers a basis, independent of the seatbelt violation, to stop London’s vehicle. LSA-R.S. 32:104B provides:

Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

Huesman and Dear both testified that they saw London make a turn without using a turn signal. London himself testified that he did not use a turn signal when turning into the bus terminal. The courts have found that the decision to stop an | mautomobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The standard is purely objective, and does not take into account the subjective beliefs or expectations of the detaining officer.

After lawfully stopping the vehicle, and ordering the occupants to exit, Officer Dear could plainly see, through the open door, a handgun on the floorboard under the passenger seat. At that point, the seizure of the gun was lawful because of the plain view exception to the warrant requirement. In order for evidence to be lawfully seized pursuant to this exception, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Having seen the first gun, the officer was justified in entering the car to retrieve it, as well as to search the vehicle. Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within may conduct a search of the vehicle that is as thorough as a magistrate could require in a warrant.

Based on the foregoing, the officer’s traffic stop was legal. This assignment of error is without merit.

The record was reviewed for errors patent. In so doing we note that neither the minute entry nor the transcript shows that the trial court advised Lee of the two-year prescriptive period for applications for post-conviction relief under LSA-C.Cr.P. art. 930.8. We remand the case with an order that the district court notify InLee of the prescriptive period in writing and that proof of such notification be placed in the district court record.

Further, we note that Lee’s sentence is illegally lenient, as the trial court failed to impose a mandatory fine. LSA-R.S. 14:95.1B provides:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand nor more than five thousand dollars.

Although the state failed to make an objection at the time of sentencing, it raises the issue on appeal. LSA-C.Cr.P. art. 882 allows a trial court to amend an illegal sentence at any time. The case is remanded for the additional purpose of re-sentencing in compliance with the statutory requirements.

For the foregoing reasons, the conviction is affirmed. The matter is remanded to the trial court for further proceedings in accordance with this opinion.

AFFIRMED; REMANDED.

      . State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Noil, 01-521, p. 12 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, 305.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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.

      . State v. Williams, supra.

      . State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Rogers, 99-1378 (La.App. 5 Cir. 11/28/00), 772 So.2d 960, writ denied, 01-0204 (La.12/7/01), 802 So.2d 641.

      . State v. Gordon, 00-1013, p. 14 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 142.

      . State v. Blount, 01-844, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, 775.

      . Id; also State v. Bush, 02-0247, pp. 5-6 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 864.

      . State v. Blount, supra; State v. Jackson, 97-1246, p. 6 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, 937, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37.

      . State v. Gordon, 00-1013 at p. 14, 803 So.2d at 143.

      . State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983); State v. Cassard, 01-931 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071.

      . Id.

      . Whren v. United States, 517 U.S. 806, 116 S.Ct 1769, 1774, 135 L.Ed.2d 89 (1996); State v. Neuman, 01-1066, p. 6 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 183.

      . State v. Neuman, supra citing Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994 (2001); State v. Waters, 00-356, p. 3 (La.3/12/01), 780 So.2d 1053, 1056.

        . Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v.

        Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 116, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464. State v. Jones 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958

        . United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). 778 So.2d 23, 00-1014 La.App. 5 Cir. 12/13/00, State v. Jackson, (La.App. 5 Cir.2000)

      . 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).

      . See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

      . See, State v. Williams, 00-1725, pp. 9-17 (La.11/28/01), 800 So.2d 790, 798, 802; State v. Butler, 01-0907, pp. 12-13 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 127-128.


source: Caselaw Access Project

author: J^SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Daryl A. MERCANTE.
    No. 02-KA-712.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendants Appellant, Daryl A. Mercante.
    Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys, Cameron M. Mary, Assistant District Attorney, Gretna, LA, for Plaintiff-Appellee, The State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

On March 1, 2002 Daryl Mercante was charged by bill of information with possession of a controlled dangerous substance, Oxycodone, a violation of La.R.S. 40:967(C). At arraignment on April 1, 2002 he entered a plea of not guilty. On June 7, 2002 the defendant filed a motion to suppress evidence, which is the subject of this appeal. On June 13, 2002 the court heard and denied the motion to suppress, whereupon the defendant advised the court that he wished to plead guilty to the charge, reserving his right to appeal the ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Following the defendants entry of a guilty plea subject to a Crosby appeal and the courts acceptance of it, the trial court sentenced the defendant to the sentence previously agreed upon (two years of imprisonment, suspended, two years of active probation with periodic drug testing, and the payment of costs and fines). Defendant filed a timely appeal.

At the hearing on the motion to suppress, Sergeant Daryl Scheuermann of the Jefferson Parish Sheriffs Office testified as follows: On February 12, 2002, which was Mardi Gras, he was on parade assignment in the 1500 block of Veterans | aBoulevard. As he was patrolling the roadway Scheuermann observed the defendant place a can of beer on the hood of a truck, expose his penis, and urinate in public. Scheuermann advised the defendant that he was under arrest for urinating in public, advised him of his rights, and handcuffed him. According to Scheuer-mann, “he was intoxicated, he had slurred speech, and also had trouble standing straight.”

Officer Scheuermann searched Mercante for weapons and contraband. In the right front pocket of Mercante’s jeans, the officer found a single yellow pill in plastic wrapping. He removed the object from the defendant’s pocket and asked him. After being Mirandized, the defendant told Scheuermann it was Oxycodone.

On appeal the defendant asserts the trial court erred denying the motion to suppress.

Defendant concedes that a search incident to a lawful arrest is a recognized exception to the constitutional prohibition against warrantless searches. Nevertheless, he argues that an arrest for the misdemeanor offense of lewd conduct does not justify a full search of the person, as was done in the present case. He reasons that until recently an officer did not have the discretion to arrest for a misdemeanor offense.

The State counters that requirements for an arrest were met under La.C.Cr.P. art. 211 and that a search incident to a misdemeanor arrest was also sanctioned by pthe United States Supreme Court in Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001).

In denying the motion to suppress evidence and statements, the trial judge gave the following reasons: “Based upon the testimony of this officer, I am going to deny the Motion to Suppress. It was a search incident to arrest. He can do what he needs to do for protection of himself, the prison, looking for contraband of any kind.”

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Manson, 01-159, pp. 6-7 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. Id. at pp. 8-9, 791 So.2d at 757, citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

A search incident to a lawful arrest is one of the clearly recognized exceptions to the prohibition of warrantless search. Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685, 697 (1969). In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. Id.; State v. Andrishok, 434 So.2d 389, 391 (La.1983); State v. London, 01-1016, p. 9 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 166.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Jones, 99-972, pp. 5-6 (La.App. 5 Cir. 2/29/00), 757 So.2d 110, 112. The trial judges determination on the motion to suppress will not |Rbe disturbed on appeal, unless it is clearly wrong. State v. Casey, 99-0023, pp. 11-12 (La.1/26/00), 775 So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In reviewing the ruling on the motion to suppress, the appellate court will look to the totality of the evidence as presented at the hearing of the motion and the trial. State v. Wilson, 00-0178, pp. 3-4 (La.12/8/00), 775 So.2d 1051, 1052; State v. Manson, 791 So.2d at 755.

At the hearing on the motion to suppress the evidence, Officer Scheuermann testified that he observed the defendant as defendant exposed his penis and urinated in public.

For a custodial arrest, the officer must have probable cause to believe that the person has committed a crime. State v. Fisher, 97-1133, p. 7 (La.9/9/98), 720 So.2d 1179, 1183. Probable cause exists when the facts and circumstances known to the arresting officer, based on reasonably trustworthy information, are sufficient to justify a belief in a man of ordinary caution that the person to be arrested has committed a crime. State v. Edwards, 00-1246, p. 8 (La.6/1/01), 787 So.2d 981, 986 n. 4.

In the recent United States Supreme Court decision in Atwater v. City of Lago Vista, supra, the Court considered the issue of whether a misdemeanor arrest grounded on probable cause violates the Fourth Amendment. In Atwater, the officer observed a female driver and her children not wearing their seatbelts. This was a misdemeanor offense in Texas and was subject to the payment of a fine. At-water unsuccessfully argued that since this offense was a misdemeanor, subject only to a fine, and not involving a disturbance of the peace, she should not have been subject to a custodial arrest. The Supreme Court rejected her argument and found:

1 Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applies to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.” ... If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. [Citations omitted.]

Atwater v. City of Lago Vista, 532 U.S. at 354, 121 S.Ct. at 1557, 149 L.Ed.2d at 577.

In the present case, there was probable cause for the defendant’s arrest because the offense of lewd conduct was committed in the presence of the officer. Because the lewd conduct offense is a misdemeanor, the officer’s response to the crime is controlled by La.C.Cr.P. art. 211, which provides as follows, in pertinent part:

A. When it is lawful for a peace officer to arrest a person without a warrant for a misdemeanor, or for a felony charge of theft or illegal possession of stolen things when the thing of value is one hundred dollars or more but less than five hundred dollars, he may give a written summons instead of making an arrest if all of the following exist:
(1) The officer has reasonable grounds to believe that the person will appear upon summons;
(2) The officer has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property or will continue in the same or a similar offense unless immediately arrested and booked;
(3) There is no necessity to book the person to comply with routine identification procedures. [Emphasis added.]

In State v. Morgan, 445 So.2d 50, 54 (La.App. 4 Cir.1984), writ denied, 446 So.2d 317 (La.1984), the Fourth Circuit reversed a ruling by the trial court that granted a motion to suppress evidence in a case similar to the present one.

|7In Morgan, the officer observed defendant riding a motorcycle without protective eyewear, a misdemeanor offense under La.R.S. 32:190.1. The officer pulled the defendant over for purposes of issuing a summons and asked to see the subject’s license. The license had no motorcycle endorsement. The officer arrested the defendant for the failure of the license to have the proper endorsement, a misdemeanor violation under La.R.S. 32:423. The officer then conducted a full search of the arrestee, which resulted in the discovery of weapons and evidence of a crime. The trial court suppressed the evidence. On appeal, the defendant alleged that the search was illegal and the evidence improperly seized because the officer had authority only to issue him a summons, not to make a full custodial arrest.

The Fourth Circuit disagreed and reversed the trial court ruling, citing La.C.Cr.P. art. 211:

The unstated corollary to art. 211 is that if all three of the article’s requirements are not met, the officer shall make an arrest rather than issue a summons. In this case the officers were prohibited from issuing defendant a summons under La.C.Cr.P. art. 211 because the requirement of Art. 211 A(2) was not satisfied. Absent a motorcycle endorsement on defendant’s license, the officers did not have reasonable grounds to believe that defendant could safely operate the motorcycle without causing injury to himself or another or damage to property. Further, if the officers had only issued a summons and allowed defendant to drive away, they would have permitted him to continue committing the same offense, as he would still not be authorized to drive a motorcycle.
We conclude that the officers in this case acted properly by making a full custody arrest of defendant.
* * *
Incident to that full custody arrest defendant was subject to a full search of his person and the area within his immediate control. Any evidence seized as a result of such a search is not suppressible on the ground that the search was unconstitutional.

445 So.2d at 54.

| sLikewise, in the present case, the officer was prohibited from issuing a summons because the requirements of La.C.Cr.P. art. 211(A)(2) were not satisfied. Officer Scheuermann testified that at the time of this incident, the defendant appeared intoxicated, because his speech was slurred and he could not stand straight. Under these circumstances, one reasonably could conclude the defendant could cause injury to himself and to others. In addition, given his impaired condition, there was a reasonable likelihood that he would continue the same or similar lewd conduct, if he were not arrested and taken into custody.

The officer’s actions in making a full custodial arrest, therefore, were warranted by the express language of La.C.Cr.P. art. 211. Because the arrest was lawful, the search of the defendant’s person incident to the arrest also was lawful. Chimel v. California, supra; State v. Andrishok, supra; State v. London, supra.

Accordingly, the trial correct did not err in refusing to suppress the contraband that was the product of the search.

The defendant’s second assignment of error is “all errors patent.” However, our review of the record reveals no patent errors. La.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).

For the foregoing reasons, the conviction is affirmed.

AFFIRMED.

      . The defendant was charged with violation of Jefferson Parish Ordinance § 20-83.5, which states:
      It shall be unlawful for any person to perform or engage in any lewd conduct as hereinafter defined:
      (1) Lewd conduct is the intentional performing of any lewd act in a public place or place open to public view.
      (2) As used in this section a “lewd act’’ is:
      3: s, *
      d. Urination or defecation.
      (Ord. No. 16791, § 1, 2-19-86; Ord. No. 16828, § 1, 3-19-86)

      . See La.C.Cr.P. art. 211 (prior to its amend-mentby 1982 La. Acts 180).


author: JjSUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Edmond F. STACKER.
    No. 02-KA-768.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, for Appellee, State Of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, for Appellant, Edmond F. Stacker.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   JjSUSAN M. CHEHARDY, Judge.

On December 5, 2001, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Edmond Stacker, with attempted second degree murder in violation of La. R.S. 14:27 and 14:30.1. Defendant pled not guilty on December 6, 2001.

The matter proceeded to trial on April 8, 2002. After two days of testimony, the jury unanimously found the defendant guilty as charged. Defendant’s motion for new trial was heard and denied on April 26, 2002. That day, the defendant waived the statutory sentencing delay. The trial court then sentenced defendant to 50 years at hard labor without benefit of probation, parole or suspension of sentence, but with credit for time served.

Defendant’s written motion to reconsider sentence was denied. Defendant filed a timely appeal.

1 oFacts

In early October of 2001, the defendant “put his hands” on his neighbor, Dina Noil, during a discussion about the defendant’s niece. On October 5, 2001, Dina Noil told her brother, Cornelius Singleton, about the incident.

That evening, while Singleton was visiting his sister, he approached the defendant to speak with him about the incident. During that conversation, the defendant became “rowdy,” pulled out a pistol, and aimed it at Singleton. Mthough the defendant pulled the trigger, the gun did not fire properly and no bullet was released from the chamber.

The defendant then returned to his apartment to fix the gun; he fired two shots inside of his apartment. Immediately, he exited his apartment across the alley from Dina’s apartment, with the gun in hand. He ran toward Singleton, who was standing in the alleyway. When the defendant attempted to strike Singleton in the face with his left hand, Singleton blocked the blow. The defendant, who was holding the gun in his right hand, then shot Singleton in the mouth.

After being shot, Singleton ran toward his sister’s apartment, with the defendant chasing him and shooting at him. After he entered the apartment, he ran upstairs. Dina Noil, who was still outside of her apartment in the alleyway, begged the defendant not to fire at the house because her children were inside. The defendant, however, fired two shots into the apartment. The Noils discovered one of the bullets on the floor of their home a few days later.

Robert Reddman, one of the emergency medical technicians who responded to the scene, found Singleton bleeding from the mouth. After examining Singleton, Redd-man found a bullet hole through the victim’s tongue and the roof of his mouth. X-rays later revealed that the bullet was lodged in his neck. According to the vie-tim, the bullet was still lodged in his neck at the time of trial.

14Discussion

In his first assignment of error, the defendant argues that the State failed to provide sufficient evidence to support the conviction for attempted second degree murder. He contends that the witnesses’ statements at the time of the initial complaint varied greatly from the testimony at trial. He further contends that the statements of the witnesses at trial were inconsistent when compared to each other. Defendant further argues that the testimony of Cornelius Singleton, as to the attempted blow blocked by Singleton, indicates that attempted manslaughter is a more appropriate verdict.

Defendant initially contends that Dina and Irvin Noil’s statements to the police were inconsistent with their testimony at trial. First, Irvin Noil did not testify at trial so his trial testimony could not have been inconsistent with his pre-trial statement. More importantly, Dina Noil’s pre-trial statement was not introduced at trial and, as such, does not constitute part of the record in this case. We are precluded from considering evidence, which is not part of the record. State v. Pertuit, 95-935 (La.App. 5 Cir. 3/13/96), 673 So.2d 1055, 1057. Defendant also contends that witness, Dina Noil, and victim, Cornelius Singleton, contradicted each other during their trial testimony. We have reviewed their testimony and disagree with defendant’s characterization.

In addition, defendant claims that attempted manslaughter is a “more appropriate” verdict than attempted second degree murder. 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. A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35.

A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in Jackson. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

To support a conviction for attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that the defendant committed an overt act in furtherance of that goal. LSA-R.S. 14:27 and 14:30.1; State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but attempted first or second degree murder requires a specific intent to kill. Id.

Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Harrell, supra. Because specific intent is a state of mind, it need not be proven as a fact but may be inferred from the circumstances and actions of the defendant. Id. Specific intent to kill may be inferred from a defendant’s relentless pursuit of the victim through a neighborhood with a dangerous weapon. State v. Armant, 97-1256 (La.App. 5 Cir. 5/27/98), 719 So.2d 510, 517, writs denied, 98-1884 (La.11/20/98), 729 So.2d 3, and 98-1909 (La.11/20/98), 729 So.2d 4. Specific intent to kill may be inferred from the extent and severity of the victim’s injuries. Harrell, supra.

In State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, this Court upheld defendant’s conviction for attempted second degree murder by finding that specific intent to kill could be inferred from the fact that the defendant pointed the gun at close range directly at the victim’s head and fired. In Slang, the defendant entered a taxicab and told the operator to drive to a non-existent address. The defendant, during the course of the cab ride, pulled a pistol, demanded that the victim relinquish his money, and fired a shot at the victim’s head.

In State v. Armant, supra, the defendant was convicted of attempted second degree murder. In Armant, this Court concluded that the State proved that the defendant had specific intent to kill based on the defendant’s relentless pursuit of the victim through the neighborhood with a barbeque fork. The victim suffered several stab wounds which required sutures and an injury to her eye which showed that the defendant used a great deal of force in attacking her.

Similarly to Slang, the defendant in this case aimed and pointed a gun directly at the victim on more than one occasion. First, the defendant aimed the gun at Singleton’s face and pulled the trigger but the bullet failed to exit the chamber. After that, defendant returned to his apartment and fired the gun twice. Immediately, defendant ran out of his apartment toward Singleton, attempted to strike Singleton with his left hand, and shot Singleton in the mouth.

When Singleton tried to flee into his sister’s apartment, the defendant, as in Armant, pursued Singleton and fired twice into the Noils’ apartment. Further, the EMT testified to the severity of Singleton’s injuries. Based on the testimony presented at trial, we find that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could, and did, find, beyond a reasonable doubt, that the defendant had the specific intent to kill Cornelius Singleton and that he committed an overt act in furtherance of that goal. This argument lacks merit.

17In his second assignment of error, defendant argues that the sentence imposed is excessive. He contends that the 50-year sentence at hard labor is constitutionally excessive and that the trial court erred in failing to comply with tiie requirements of La.C.Cr.P. art. 894.1. He further argues that the trial court failed to give any factors to support the maximum sentence and that there is no evidence that the sentence was tailored to him. Defendant contends that the trial court erred in failing to consider the mitigating factors that defendant had no criminal background and is a relatively young man.

La.C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider the legality, under statutory sentencing guidelines, of a sentence within 30 days of sentencing. The motion be made orally at the time of sentencing or in writing thereafter, and must set forth the specific grounds on which the motion is based. The failure to state the specific grounds upon which the motion is based, precludes the defendant from raising the issue on appeal. State v. Knightshed, 00-1410 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504.

In State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855, writ denied, 99-1785 (La.11/24/99), 750 So.2d 980, the defendant contended that the trial court erred by failing to state for the record the considerations taken into account and the factual basis for imposing sentence as required by La.C.Cr.P. art. 894.1(C). This Court noted that the defendant did not raise the issue of failing to comply with La.C.Cr.P. art. 894.1(C) in either her motion to reconsider sentence or her hearing on the same. Id. This Court held that defendant’s failure to raise the issue in the trial court precluded her from raising the issue on appeal. Id.

In this case, the defendant did not raise failure to comply with La.C.Cr.P. art. 894.1 in his written motion to reconsider sentence or at the hearing on the motion to reconsider sentence. Therefore, defendant is precluded from raising this [tissue on appeal. However, we will still review defendant’s sentence for constitutional excessiveness. Knightshed, 783 So.2d at 504.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. VIII; La. Const., Art. I, § 20. Even a sentence within the prescribed statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. In reviewing a sentence for excessiveness, the appellate court must consider -the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Snyder, 97-226 (La.App. 5 Cir. 9/30/97), 700 So.2d 1082.

Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. However, 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. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. This Court should 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, 646 So.2d at 1041.

A sentence for attempted second degree murder ranges from ten to 50 years at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27 and 14:30.1. The trial judge in the instant case sentenced the defendant to the maximum of 50 years without giving any reasons for sentence or referencing a pre-sentence investigation. Therefore, this Court must examine whether the record supports the sentence imposed and examine sentences imposed for similar crimes.

In State v. Camese, 00-1943 (La.App. 4 Cir. 7/23/01), 791 So.2d 173, writ denied, 01-2324 (La.8/30/02), 823 So.2d 937, the defendant was convicted of attempted second degree murder and armed robbery. The trial court sentenced the defendant to serve 50 years at hard labor on the attempted second degree murder charge and 49 years on the' armed robbery charge. The defendant in Cómese had a prior criminal record although the Court did not specify those prior convictions. In Camese, the defendant approached the victim, who in fact knew him, put a gun to his head, and took his car as the victim was trying to enter his own residence. After the victim gave him the car, the defendant shot him in the head, leaving a bullet in his jaw. The victim survived the attack. The Fourth Circuit found that the sentences imposed were not excessive.

In State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713, the Third Circuit affirmed the defendant’s sentence of 50 years at hard labor on his conviction for attempted second degree murder. The defendant shot the victim in the back as the victim was lying on the ground after being beaten by a group of individuals. The court noted that the victim has a nine millimeter bullet lodged in his back and that he will carry it to his grave. The court noted that defendant was classified as a first felony offender, although the pre-sentence investigation report indicated that the defendant had prior crimes against the person as a juvenile, and as an adult.

In State v. Meads, 98-1388 (La.App. 1 Cir. 4/1/99), 734 So.2d 792, writ denied, 99-1328 (La.10/15/99), 748 So.2d 465, the First Circuit upheld a 50-year sentence of a defendant with no prior criminal record for attempted second degree murder. In Meads, the defendant, the victim’s former boyfriend, entered a hospital room where the victim’s son was hospitalized. The defendant pulled a gun and struck the victim several times. The victim broke free and ran into the hallway at which point the defendant dragged her back into the room and shot her three times. l10He then pointed the gun at the victim’s head, but the gun jammed when the trigger was pulled. The victim was thereafter able to break free and fled down the hall. The First Circuit, in upholding the sentence, noted the trial court’s reasons for sentencing in which the trial judge considered that the incident took place in the presence of a child, multiple gun shots were fired, the intent of defendant was clear, the defendant endangered numerous individuals, and that the defendant had pending charges of aggravated battery and illegal use of a weapon.

Similar to the cases above, the defendant used a firearm to shoot the victim at relatively close range, which, in the present case, resulted in a bullet-hole through the victim’s tongue and a bullet lodged in his neck. Defendant then pursued the victim as the victim attempted to flee into his sister’s apartment, firing two shots into the apartment where the victim’s two nephews were present. Like Meads, this defendant was a first felony offender, fired multiple shots at the victim, and endangered the lives of others, including children, in the process.

While we note that the trial judge in the instant case did not give any reasons for sentencing, we do not find that he abused his wide discretion in determining a sentence. Furthermore, the record supports the imposed sentence of 50 years. This assignment of error lacks merit.

Lastly, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920. We have found an error patent, which requires remand. The transcript of the sentencing hearing reflects that the trial judge did not adequately advise the defendant of the commencement date for the prescriptive period for filing post-conviction relief pursuant to La.C.Cr.P. art. 930.8. We remand the matter for the district court to inform the defendant of the provisions of La.C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record.

| ^Accordingly, the defendant’s conviction and sentence are affirmed. The case is remanded with instructions to the trial court to send written notice to defendant of the provisions of La.C.Cr.P. art. 930.8.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The record does not show that defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821. However, such failure does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La.1982); State v. Hicks, 01-1064 (La.App. 5 Cir. 4/10/02), 817 So.2d 192, 202.


author: JaSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Elbert JORDAN.
    No. 02-KA-820.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Lisa B. Schneider, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and CLARENCE E. McMANUS.
   JaSOL GOTHARD, Judge.

Defendant, Elbert Jordan, appeals his conviction and sentence on a charge of distribution of cocaine within 1000 feet of the Frank Lemon Playground in violation of LSA-R.S. 40:981.3. For reasons that follow, we affirm.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Elbert Jordan, with distributing cocaine within 1,000 feet of the Frank Lemon Playground in violation of LSA-R.S. 40:981.3. Defendant was arraigned and pled not guilty. The defendant filed a motion to quash the bill of information, which the trial judge denied.

On November 29, 2001, the case was tried before a 12-person jury, which found the defendant guilty as charged. Defendant made an oral motion for new trial, which was denied on December 10, 2001. Defendant waived sentencing delays and was sentenced to imprisonment at hard labor for 15 years without benefit of parole, probation or suspension of sentence. After sentencing, defendant made an oral motion for appeal.

|3 FACTS

On August 23, 2000, Agent Megan Carter, a narcotics officer with the Jefferson Parish Sheriffs Office, was driving an unmarked car on Montford Street near Frank Lemon Playground. A black female approached the car, and Agent Carter asked if she “could get two 20s,” which Agent Carter explained was two $20 rocks of crack cocaine. The black female replied, “Yes. Make the block.” Before Agent Carter left to drive around the block, however, a black male, later identified as the defendant, asked Agent Carter what she wanted. When Agent Carter said that she wanted two 20s, the defendant walked away from the car. The defendant then gave the female two rocks of crack cocaine, which she handed to Agent Carter in exchange for $40 in cash. According to Agent Carter, the drug transaction took place approximately 250 feet from the Frank Lemon Playground. This entire transaction was captured by the videotape recorder in Agent Carter’s unmarked car. The State played this videotape for the jury at trial.

The substance was field tested and found to be cocaine. The State and the defendant stipulated that, if the forensic chemist were called, he would testify that the laboratory tests on the rocks confirmed the presence of cocaine, and that he prepared a report to that effect. The court accepted the lab report into evidence without objection from the defendant. The defense rested without presenting any evidence.

In brief to this court, defendant assigns one error. The defendant contends that the trial judge improperly denied his motion to quash and motion for new trial because the State failed to establish that the playground was school property as defined by LSA-R.S. 40:981.3(0(2). The State responds that the defendant’s argument is not properly before this Court because the defendant did not urge this claim in either the motion to quash, or the new trial motion.

|4As pointed out by the State in its brief, the ground now asserted by the defendant was never raised in the trial court. The defendant’s motion to quash asserted that Jefferson Parish had not complied with its duties prescribed in LSA-R.S. 17:405, that the application of LSA-R.S. 40:981.1 was unconstitutionally vague and overbroad, and that the statute, as applied, unconstitutionally discriminated against “African-Americans and /or person [sic] of low economic status.” At the hearing, the defendant only argued one of these grounds, namely that Jefferson Parish failed to comply with its duty in LSA-R.S. 17:405 regarding posting the area as a drug-free zone. The trial judge denied the defendant’s motion on the basis that the charged offense, LSA-R.S. 40:981.3, did not impose a duty upon the Parish to post “drug free zone” signs on school property.

Before sentencing, the defendant made an oral motion for new trial on the basis that the defendant was convicted under an unconstitutionally broad statute and that the statute violated the defendant’s right to due process. After hearing argument from the State and defense, the court denied the motion.

LSA-C.Cr.P. art. 536 requires a motion to quash to be in writing and to specify the grounds upon which it is based. It is well established in our law that a new basis for an objection cannot be raised for the first time on appeal. LSA-C.Cr.P. art. 841; State v. Cressy, 440 So.2d 141 (La.1983); State v. Bacuzzi, 97-573, (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1069. Further, in State v. Pelas, 99-0150, (La.App. 1 Cir. 11/5/99) 745 So.2d 1215, 1217, the court held that the defendant was precluded from raising a new basis for his motion to quash on appeal.

Pursuant to LSA-C.Cr.P. art. 851, the motion for new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. LSA-C.Cr.P. art. 852 provides that a motion for new trial shall be in writing, and shall state the grounds upon which it is based.

On appeal, the defendant does not challenge either the rulings on the motion for new trial or the motion to quash on any of the grounds raised in the trial court. Rather, for the first time on appeal, the defendant raises a new basis for his motion to quash and new trial motion. Further, defendant’s motion for new trial was oral and most importantly, did not contest the sufficiency of the evidence.

Nevertheless, although the defendant does not clearly articulate the argument in his brief, we find a close reading of the assignment indicates that the defendant’s chief complaint is that evidence presented at trial is insufficient to support his conviction because the State failed to establish that the Frank Lemon Playground is within the definition of school property.

In State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 760, this Court stated that “[t]he courts have long recognized a defendant’s right to appellate review for sufficiency of the evidence, even in the absence of a written motion for new trial or for post verdict judgment of acquittal.” See, State v. Washington, 421 So.2d 887, 889 (La.1982). Thus, the substance of the defendant’s claim is properly before this Court.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-0569, (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

LSA-R.S. 40:981.3(A)(1) prohibits certain violations of the Uniform Controlled Dangerous Substances Law on school property as follows:

(1) Any person who violates a felony provision of R.S. 40:966 through 970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.
C. For purposes of this Section:
(1) “School” means any public or private elementary, secondary, vocational-technical school, or any public or private college or university in Louisiana.
(2) “School property” means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.

Defendant asserts that the State failed to meet its burden of proof because there was no evidence to establish that the Frank Lemon Playground was “owned by the State or by a political subdivision and used or operated as a playground or recreational facility.” However, we find that the record reflects otherwise. At trial the prosecutor showed Agent Carter aerial photographs depicting the vicinity of the Frank Lemon Playground. On one of the photographs, Agent Carter pointed out the “gym area” and the “kiddy playground.” Agent Carter also identified the |7location where the drug transaction occurred. On cross-examination, Agent Carter described the drug-free sign that was posted on the side of the gym:

It says, “Drug-free zone.” It has a red circle with a slash on it, and it’s going to have the L.R.S.... The L.R.S. [40] 981.3 for the school zone charge ... And, I believe it has what the statute— you know, within 1,000 feet.

This testimony by Agent Carter was uncontested. Agent Carter’s specific, un-controverted testimony regarding the sign placed on the side of the gym at the Frank Lemon Playground provides sufficient evidence for a rational trier of fact to conclude that the playground met the statutory definition of school property as defined by LSA-R.S. 40:981.3(C)(2). See; State v. Bannister, 95-172 (La.App. 5 Cir. 6/28/95), 658 So.2d 16. Viewing the evidence in the light most favorable to the State, the evidence was sufficient for a rational trier of fact to find the defendant guilty as charged.

Review of the record 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), shows that the trial court imposed an illegally lenient sentence by failing to impose the mandatory fine. When defendant committed the instant offense, LSA-R.S. 40:981.3(E)(1) provided that a first time violator of this statute “shall be punished by the imposition of the maximum fine ... authorized by the applicable provisions of R.S. 40:966 through R.S. 40:970_” The maximum fine for distributing cocaine is $50,000. LSA-R.S. 40:967(4)(b). The current statute provides the same sentencing as to fines.

LSA-C.Cr.P. art. 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, provides that an appellate court may recognize and correct an illegally lenient sentence under the authority of LSA-R.S. 15:301.1(A) and LSA-C.Cr.P. 882 as follows:

In the present case, the authority of the appellate court to recognize sentencing error arises in part from the self-aetivat-ing provisions of LA.REV.STAT. ANN. § 15:301.1(A) (i.e., the failure to impose sentence without benefit of parole, probation, or suspension of sentence) and under the general provisions of LA.CODE CRIM. PROC. ANN. art. 882 (the sentencing errors other than those which fall under LA.REV.STAT. ANN. § 15:301.1(A)). Under the provisions of article 882, “[a]n illegal sentence may be corrected at any time by ... an appellate court on review.” ... Accordingly, the appellate court on its own properly noticed the numerous sentencing errors in the punishment that the sentencing court imposed without the need to concern itself with the time limitations of Paragraph B.

More specifically, the Williams court -addressed the issue of the authority and appropriateness of correction of an illegally lenient sentence in that the trial court failed to impose a mandatory fine of $2000.00. In Williams neither the sentencing court nor the district attorney sought to amend the sentence. The appellate court has the authority under LSA-C.Cr.P. art. 882 to recognize and to correct the sentence “at any time.” Williams, supra, 800 So.2d at 802. We note, however, that the language of article 882 is permissive rather than mandatory. In this case we will not correct the illegally lenient sentence.

AFFIRMED.

      . LSA-R.S. 17:405 provides in pertinent part:
      B. The local governing authority which has jurisdiction over zoning matters in which each drug free zone is located shall publish a map clearly indicating the boundaries of each drug free zone in accordance with the specifications in Subsection A. The drug free zone map shall be made an official public document and placed with the clerk of court for the parish or parishes in which the drug free zone is located.
      C. (1) The state superintendent of education, with the approval of the State Board of Elementary and Secondary Education, and the commissioner of higher education, with the approval of the Board of Regents, shall develop a method by which to mark drug free zones, including the use of signs or other markings suitable to the situation. Signs or other markings shall be located in a visible manner on or near each school and on and in each school bus indicating that such area is a drug free zone, that such zone extends to one thousand feet of school property, and that a felony violation of the Uniform Controlled Dangerous Substances Law will subject the offender to severe penalties under law. The State Department of Education shall assist each school system with providing for the posting required in this Subsection.

      . It is noted that State v. Williams, 01-2009, (La.App. 1 Cir. 6/21/02), 822 So.2d 780, 785-786, recognized that compliance with LSA-R.S. 17:405(B) is not required in order to establish a violation of LSA-R.S. 40:981.3. Williams held that the trial judge properly denied defendant's motion to quash made on the basis that the maps showing the locations and boundaries of drug free zones had not been published pursuant to LSA-R.S. 17:405(B).

      . It is noted that the penalty provision for LSA-R.S. 40:967 has been amended since defendant committed the instant offense to reduce the minimum term of imprisonment from five years to two years. LSA-R.S. 40:981.3 has also been amended to eliminate the minimum term of imprisonment. See 2001 La. Acts 403, § 4, effective June 15, 2001.


author: I «WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana, v. Joe W. MILLER.
    No. 02-KA-729.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Rick Pickens, Doug Freese, Assistant District Attorneys, Gretna, for State of Louisiana, Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, for Joe W. Miller, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD And WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

Defendant, Joe Miller, was charged in a bill of information on August 28, 2001 with aggravated flight from a police officer in violation of LSA-R.S. 14:108.1 and possession of a stolen thing, a 1985 Pontiac Grand Prix, valued in excess of $500 in violation of LSA-R.S. 14:69. He pled not guilty and filed several pre-trial motions including a motion to suppress confession, identification and physical evidence. The record does not indicate that defendant’s pre-trial motions were ever ruled upon. Defendant proceeded to trial on October 16, 2001 without any objection regarding the lack of rulings on his pre-trial motions. A twelve-person jury unanimously found defendant guilty as charged on both counts.

Thereafter, the State filed a multiple offender bill of information alleging defendant to be a second felony offender based on his current conviction for possession of a stolen thing and a 1998 conviction for theft of goods. Defendant stipulated to the allegations contained in the multiple bill and was sentenced as a multiple offender to 20 years on count two. The court also sentenced defendant |3to two years on count one, aggravated flight from a police officer, and ordered the two sentences to run concurrently.

Defendant appeals his conviction for possession of a stolen thing and his sentence on the basis of two assignments of error. Defendant also requests a review of the record for errors patent.

FACTS

At approximately 3:20 a.m. on July 31, 2001, Trooper Robert Harris was conducting stationary radar on the elevated portion of the Westbank Expressway near the Harvey Canal when he observed a vehicle westbound in the center lane being driven without its headlights and without a license plate. Trooper Harris activated his lights and siren and attempted to stop the vehicle. He signaled the driver of the vehicle, later identified as defendant, to pull over.

Defendant continued past the Barataría exit, put on his hazard lights and then exited at Ames. Through his loudspeaker, Trooper Harris instructed defendant to turn into the McDonald’s parking lot at the corner of Ames and the Westbank Expressway. However, defendant ran the red light at Ames, turned onto Ames, crossed into opposing traffic and increased his speed. He pulled into the Villa De Ames apartment complex, bailed out of the car and started running. The car, which was still running, left the roadway and ran into the apartment building.

Trooper Harris and Trooper Joseph Pig-lia, who had arrived to assist Trooper Harris, chased after defendant on foot. During the foot pursuit, defendant discarded his shirt and baseball cap. Defendant was apprehended one to two minutes later wearing a white T-shirt and blue jeans.

Trooper Piglia went to turn off the car, which was still running, and discovered the car had no keys and a defeated steering column. The car, a 1985 Pontiac Grand Prix, belonged to Patricia Nunnery and had been stolen from the front of Ms. Nunnery’s cousin’s house where it had been parked for several |4months. Ms. Nunnery made an insurance claim for the damages to her car and received $2,100 as a result of the claim.

DISCUSSION

By his first assignment of error, defendant argues the evidence was insufficient to establish that he was the perpetrator of the crime. He asserts that he is a victim of misidentification by the police. He contends there were many people in the apartment complex that evening during the chase and the police caught the wrong man.

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, 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. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

The entire incident was recorded on Trooper Harris’ video equipment, which automatically records when the unit’s lights are activated. Defendant argues the Isvideotape is of such poor quality the thiefs identity cannot be established. However, during his testimony, Trooper Harris identified defendant as the person he saw driving the car. He stated he never lost sight of defendant during the entire chase and was never more than five to six feet behind the defendant. He testified that, after defendant was apprehended, defendant initially identified himself as “Joe Williams” as opposed to his real name “Joe Miller.” Trooper Harris stated there was no doubt in his mind that defendant was the person he chased and who was driving the car.

Additionally, Trooper Piglia identified defendant as the person he and Trooper Harris were chasing. He explained he was approximately two seconds behind Trooper Harris during the chase. Trooper Piglia testified he maintained view of the fleeing suspect and had no doubt that defendant was the person driving the vehicle.

Defendant contends there was a discrepancy between the shoes and socks of the perpetrator in the video and the clothing in evidence. However, Trooper Piglia stated the clothes in evidence were the same clothes defendant was wearing the night of the arrest.

It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made 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.

In State v. Bridgewater, 01-507 (La.App. 5 Cir. 10/17/01), 800 So.2d 964, defendant also argued that she was a victim of mis-identification by the police. She alleged her companion was the one who attempted to steal the store’s merchandise. She claimed that because she and her companion were similar in appearance, the police officer mistakenly identified her as the one who took the merchandise. The ^police officer testified that he never lost sight of the defendant from the time he saw her take the clothing items off the rack until he apprehended her in the store’s parking lot and that he was certain it was defendant, and not her companion, who discarded the merchandise. This Court noted that the jury’s verdict was based on a credibility determination and concluded there was sufficient evidence of defendant’s identity as the perpetrator of the crime.

In the present ease, both Trooper Harris and Piglia testified that defendant was the person they saw driving the stolen car. The jury was shown the videotape and had the opportunity to compare the contents of the videotape to the testimony of the troopers. The jury obviously believed the troopers’ testimony that defendant was the perpetrator. Viewing the evidence in a light most favorable to the prosecution, it appears there was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the offense.

This assignment of error is without merit.

Defendant next argues that his sentence is excessive. Defendant received a 20-year enhanced sentence, the maximum allowed by law. He asserts he does not deserve the maximum sentence considering his minimal criminal history for nonviolent crime. Defendant maintains he is not the worst offender for which the maximum sentence is reserved and points out that no one was injured or threatened by his conduct. He also contends the trial court failed to mention LSA-C.Cr.P. art. 894.1 when sentencing him. The State alleges defendant received his enhanced sentence in conformity with a plea agreement and, therefore, cannot seek review of the sentence.

Defendant admitted the allegations in the multiple bill and was found to be a second felony offender. Prior to the plea colloquy on the multiple bill, the following exchange occurred:

|7Prosecutor: I’m going to file a multiple bill of information alleging Mr. Miller to be a double offender. I believe we’ve reached an agreement that he agrees to plead guilty to the multiple bill and twenty years.
Defense Counsel: That’s correct, Your Honor. Emma Vaughn representing Joe Miller in this matter, Your Honor. And he does stipulate to the double bill.

The trial court then conducted a plea colloquy advising defendant of his right to a hearing, right to confront his accusers and right against self-incrimination. There was no discussion regarding the terms of the plea agreement during the plea colloquy and there is no written waiver of rights form in the record setting forth the terms of the plea agreement.

Under LSA-C.Cr.P. art. 881.2A(2), a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” The record demonstrates there was a plea agreement where defendant agreed to stipulate to the multiple bill and receive 20 years. Defendant received a 20-year sentence in conformity with the plea agreement and, therefore, is precluded from seeking appellate review of his sentence. See, State v. Francis, 98-811 (La.App. 5 Cir. 1/26/99), 727 So.2d 1235, 1240, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.

Appellant requests, pursuant to La. C.Cr.P. art. 920, a review of the record for errors patent: any error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

As requested by defendant, 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 matter was discovered:

IsWhile the minute entry shows that defendant was advised of the prescriptive period for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8, the transcript does not. Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, the trial court is hereby instructed to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice. State v. Cordero, 99-44 (La.App. 5 Cir. 6/1/99), 738 So.2d 84, 93, writs denied, 99-1877, 750 So.2d 981 and 99-1878 (La.11/24/99), 750 So.2d 981.

CONCLUSION

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant, Joe Miller, are hereby affirmed. Further, the case is remanded to the trial court with instructions for the court to notify defendant and correctly inform him of the prescriptive period for seeking post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8 and to file written proof in the record that defendant received such notice.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Motions pending at the commencement of trial are waived when the defendant proceeds to trial without raising as an issue the fact that the motions were not ruled upon. State v. Jackson, 99-401 (La.App. 5 Cir. 10/13/00), 746 So.2d 698, 703.

      . It is specifically noted that defendant only challenges the excessiveness of his sentence and does not challenge the validity of his guilty plea on the basis he did not knowingly and intelligently plead guilty.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Raymond WALKER.
    No. 02-KA-761.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Jane L. Beebe, Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

The Defendant, Raymond Walker, appeals from his conviction of distribution of cocaine and his enhanced sentence, as a third felony offender, of 22 years imprisonment at hard labor. For the reasons which follow, we affirm.

On December 14, 2001, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with distribution of cocaine, in violation of La. R.S. 40:967(A), which allegedly occurred on or about December 7, 2001. The Defendant was arraigned on December 17, 2001 and pled not guilty. On March 19, 2002, the case was tried before a 12 person jury.

At trial, Sergeant Claude Koenig, also known as “C.J.,” a State witness, testified that he had been employed by the Gretna Police Department for 17 years and that he had been assigned to the narcotics division for the past seven or eight years. He testified that the Gretna Police Department belonged to a municipal task force consisting of the police departments of the cities of Harahan, Grand Isle, Ken-ner, and Westwego. The task force decided to conduct a “cop-in-the-box” _Jjinvestigation, whose purpose was to make narcotics arrests in known drug trafficking areas. Sergeant Koenig procured a van and installed a video and audio surveillance system to use in the investigation. On December 7, 2001, they began the investigation at approximately 5:00 p.m. in Gretna. At approximately 6:21 p.m., Detective Bennie Bazley, an undercover agent and the driver of the van, drove to the area of Le Boeuf and Kepler Streets, where there was a grocery store. He met with a black male subject, later identified as the Defendant, who sold him one rock of crack cocaine.

At that time, Sergeant Koenig was in the rear of the van along with six others, the arrest team. A television monitor was also in the back of the van. After the drug purchase was complete, Sergeant Koenig instructed the arrest team to arrest the Defendant outside by the window of the van, which they did. Detective Bazley advised the arrest team that, prior to the transaction, the Defendant had walked over to a black female with red hair, later identified as Brown. She removed an object from her bra area and gave it to the Defendant, who, in turn, brought the object back to him. Sergeant Koenig exited the van, and he and the arrest team also arrested Brown. Officer Koenig asked-Brown whether she had any more crack cocaine in her possession and she answered that she had given the Defendant her last piece. Sergeant Koenig testified that he knew the Defendant “from the street,” and that he did not tell the Defendant to buy crack cocaine from Brown and sell it to the undercover agent. He further testified that the Defendant was not working for him that night.

Detective Bazley, a State witness, testified that he had been employed by the Kenner Police Department for five years and that he worked in narcotics. He testified that, on December 7, 2001, he was involved in a narcotics investigation known as “cop-in-the-box.” Detective Bazley explained that the investigation involved going to areas known for drug trafficking and attempting to buy narcotics |4from street level dealers. Detective Bazley, who was the driver of the van, drove to a corner grocery store next to a donut shop. There were two or three people standing on the corner. Detective Bazley rolled down his window, yelled to a man, later identified as the Defendant, and asked him whether he had any marijuana or anything to smoke.

The Defendant walked up to the side of the van and said he did not have marijuana, but that he could take the detective to Holmes Boulevard where he could buy some. Detective Bazley asked the Defendant what he had, and the Defendant asked the detective what he was looking for. Detective Bazley asked the Defendant if he had any crack cocaine, and that he wanted to get “a twenty” from him, which he explained was a street term for twenty dollars worth of crack cocaine. The Defendant walked over to the corner by the store, to a female, later identified as Brown, retrieved something from her, walked back to the window of the van, and handed him a small, off-white rock-like object. Detective Bazley gave him twenty dollars in return. Detective Bazley identified State’s Exhibit 2 as the crack cocaine which he had purchased from the Defendant. He identified State’s Exhibit 3 as a videotape of the transaction. The videotape was played for the jury.

The State and the Defense stipulated that, if Daniel Waguespack, an expert in forensic science, were called as a witness, he would testify that he analyzed an off-white, rock-like substance, State’s Exhibit 2, and that it tested positive for cocaine.

The Defendant testified that he had previously informed patrolling officers, including Sergeant Koenig, about the drug activity in the area. The Defendant testified that, on December 7, 2001, he got to the corner of Kepler and Le Boeuf Streets at approximately 4:30 p.m. When the van pulled up, he thought the driver might be a police officer, because the van had its lights on and the engine was | ¡¿running, and because he had heard there were “sweeps” being conducted. However, he thought that the driver might not be a police officer because he did not recognize him. The driver asked the Defendant if he had any “weed.” The Defendant knew then that the driver was not a regular and that something was wrong. He told the driver he could buy marijuana near the Oakwood Mall on Holmes Boulevard and that he would take him there. When the driver then said that he wanted crack cocaine, the Defendant thought the driver was targeting Brown, because she was the only person who had been engaging in drug transactions for the previous 20 minutes on the street corner.

The Defendant walked over to Brown and told her to go the van. He did so because he wanted the police to catch her selling drugs. Brown did not want to go, because she was afraid that the driver might be a police officer. Therefore, the Defendant took the drugs from Brown and gave them to the driver of the van. The Defendant testified that the driver of the van started to hand him a twenty-dollar bill, but before the Defendant could take it, officers came from the back of the van and attacked him. He said that the twenty dollar bill fell to the ground. The Defendant claimed that people in the neighborhood thought he was a police officer because of the way he conducted himself, and because his sister was a police officer in New Orleans. The Defendant thought that the police would let him go in this case. He testified that he had seen Sergeant Koenig let other suspects go in the past, even though the suspects had drugs in their possession, because Sergeant Koe-nig had gotten the suspect, Brown, whom he wanted.

The Defendant claimed that he had been giving Sergeant Koenig, Officer Scott, and other officers information regarding drug activity for approximately one and a half years. He stated that he talked to Sergeant Koenig approximately seven or eight times during the previous year and a half, and he did not know why Sergeant Koenig testified that he did not remember those conversations. The |fiDefendant testified that he never officially signed up to work for the officers, nor had he ever worked undercover for them or been paid for his services. The Defendant stated that he did not give information to the officers for money or to “work off charges.” The Defendant felt that he had to do something about the “deplorable” drug problem in his girlfriend’s neighborhood. His intent on December 7, 2001 was not to sell drugs, but to lure Brown, the person that he thought the police wanted, to the van.

The jury found the Defendant guilty as charged. The trial court denied the Defendant’s motion for a new trial on April 10, 2002. On that same date, the Defendant waived sentencing delays and the trial court sentenced the Defendant to imprisonment at hard labor for 15 years without benefit of parole, probation, or suspension of sentence. The Defendant’s oral motion to reconsider sentence was denied. The Defendant orally moved for an appeal. On April 11, 2002, the Defendant filed a written motion for appeal that was granted. The State filed a habitual offender bill of information on May 15, 2002, alleging the Defendant to be a third felony offender. On June 13, 2002, the Defendant stipulated to the habitual offender bill of information. The trial court found the Defendant to be a third felony offender, vacated the original sentence, and sentenced the Defendant to imprisonment at hard labor for 22 years. It is from this conviction and sentence that the Defendant appeals.

On appeal, the Defendant assigns one error. He argues that the trial court erred in overruling the defense objections to improper remarks made by the prosecutor in the presence of the jury while questioning the Defendant and in failing to grant a mistrial. The Defendant contends that the prosecutor gave his |7personal opinion regarding the Defendant’s credibility before asking the Defendant the first question on cross-examination, asked the Defendant how many convictions he had, even though the Defendant had not denied any of them, and asked the Defendant why he had not called Officer Scott as a witness. The Defendant claims that these remarks prejudiced him and that he was denied a fair trial.

The Defendant first argues that the trial court erred by failing to sustain his objection to remarks that the prosecutor made when he first started questioning him. The Defendant argues that the prosecutor made a prejudicial remark concerning the Defendant’s credibility such that he was denied a fail' trial. The testimony at issue is as follows:

MR. OUBRE: (The prosecutor)
It’s really a shame, Raymond, because you appear to be a smart man, and this ís a — and for you to sit and think that you, in front of this Jury, to think that you were a law enforcement officer, while your sister sits here wearing a uniform, is a disgrace. How many convictions you got [sic]?
MS. DAPONTE: (Defense counsel)
Objection, Judge. I — I’m going to object to that, Your Honor, that’s argumentative and it’s improper.
MR. OUBRE:
Mr. Walker, how many convictions do you have?
MS. DAPONTE:
Judge,..
THE COURT:
Alright, excuse me.
I’ll overrule your objection.
MR. OUBRE:
How many convictions do you have, Raymond?
RMS. DAPONTE:
Your Honor, that’s an improper question. I object. Mr. Walker has not denied any convictions. If Mr..
MR. OUBRE:
It’s a direct question.
MS. DAPONTE:
If Mr. Oubre has convictions that he knows about, that Mr. Walker did not mention, he can certainly ask about those. But Mr. Walker has not denied having criminal convictions.
MR. OUBRE:
How many convictions do you have?
THE COURT:
I’ll allow the question to stand.

In his argument on appeal, the Defendant refers to Ms entitlement to a mistrial as a result of these remarks. However, what he is arguing is that he is entitled to a reversal of his conviction as a result of this trial error that resulted in such prejudice to the Defendant that he was denied a fair trial. The State responds that, because the Defendant failed to move for a mistrial following the question regarding the Defendant’s convictions, the issue was not preserved for appellate review.

The State is correct that the question of whether the trial court erred in not granting a mistrial as a result of the remarks was not preserved for appellate review, where a mistrial was not timely requested by defense counsel at trial. However, the objection to the trial court ruling was preserved for review.

Under La. C.E. art. 609.1, the State is allowed to ask the Defendant how many convictions he has. Therefore, we find that the trial court correctly overruled defense counsel’s objection regarding the question pertaining to the number of convictions.

3 Further, considering the overwhelming evidence of the Defendant’s guilt, we find that the verdict rendered in this matter was surely unattributable to the erroneous admission of any inappropriate comments by the prosecutor. We find that any error in the trial court’s ruling on these remarks by the State was certainly harmless.

Upon review, while we agree that the prosecutor was walking very close to the line of improper remarks, we do not find that a reversal of the conviction is warranted based on this remark.

The Defendant next argues that the trial court erred in failing to grant a mistrial under La.C.Cr.P. arts. 771 and 775 after the State asked the Defendant why he did not call Officer Scott as a witness.

During cross examination, the State asked the Defendant why he did not call Officer Scott as a witness to support his defense that he was soliciting the drugs for the police. Defense counsel objected and moved for a mistrial, arguing that the Defendant was not required to call any witnesses. The trial judge denied the motion for a mistrial but agreed to and did admonish the jury. The trial judge told the jury that there had been some confusion as to witnesses and that the jury was to disregard the State’s question. He further stated that the defense did not need to do anything and that whether or not a witness was called was of absolutely no consequence. Defense counsel thanked the trial judge for the admonition to the jury and did not request a mistrial.

The State contends that the Defendant has not demonstrated that he was prejudiced by the remark or that the error was not cured by the immediate admonition to the jury.

La.C.Cr.P. art. 770 states:

Upon motion of a the defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by Imthe judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4)The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be giveri, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

La C.Cr.P. art. 770 is not applicable in this case, because the comment at issue is not within the scope of that article. The comment at issue herein falls under La.C.Cr.P. art. 771, which states as follows:

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

LA.C.Cr.P. art. 775 provides as follows:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
In(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, it is warranted only when trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Forrest, 95-31 (La.App. 5th Cir.2/14/96), 670 So.2d 1263, writ denied, 96-0654 (La.6/28/96), 675 So.2d 1117. Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Brown, 96-1002 (La.App. 5th Cir.4/9/97), 694 So.2d 435, writ denied, 97-1310 (La.10/31/97), 703 So.2d 19.

The trial judge determined that an admonition to the jury was sufficient to rectify any adverse effects from the question posed to the Defendant by the State. Defense counsel thanked the trial judge for the admonition and did not renew her request for a mistrial. We find no error, under the facts presented, in the trial court’s determination that an admonition was sufficient to rectify any problem that might have been created by the State’s comment. This assignment of error is without merit.

TERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals no errors.

Accordingly, we affirm the Defendant’s conviction for distribution of cocaine and his enhanced sentence, as a third felony offender, to 22 years imprisonment at hard labor.

AFFIRMED.

      . Millie V. Brown (Brown) was also charged. However, this appeal pertains solely to Raymond Walker.

      . Sergeant Koenig was referred to in the transcript variously as detective, officer, and sergeant. In this opinion, he will be referred to as "sergeant.''

      . The Defendant’s motion for appeal was premature when it was filed after conviction and sentence, but before imposition of his enhanced habitual offender sentence. That procedural defect was cured, by the subsequent resentencing. State v. Balser, 96-443 (La.App. 5th Cir.11/14/96), 694 So.2d 351.