author: I ¡.SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Jamie SIMMONS, a/k/a Joseph Simmons, a/k/a Julian Simmons.
    No. 02-KA-960.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Bruce G. Whittaker, New Orleans, LA, for Defendant-Appellant, Jamie Simmons a/k/a Joseph Simmons a/k/a Julian Simmons.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff-Appellee, The State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I ¡.SUSAN M. CHEHARDY, Judge.

On July 12, 2000 the Jefferson Parish District Attorney filed a bill of information charging Jamie Simmons with distribution of cocaine, a violation of La.R.S. 40:967(A). The defendant entered a plea of not guilty at arraignment. After a two-day trial, on September 29, 2000 a twelve-member jury found the defendant guilty as charged.

On April 25, 2001 the defendant was sentenced to serve fifteen years of imprisonment at hard labor, with the first five years of the sentence to be served without benefit of parole, probation, or suspension of sentence and to be served concurrently with the sentence he was then serving on a parole violation. The State filed a habitual offender bill of information alleging defendant to be a third felony offender. The defendant denied the allegations.

Following a hearing on August 2, 2001, the trial judge found the defendant to be a third felony offender as alleged by the State. The trial judge delayed sentencing so that the State and defense could submit memoranda on which version of La.R.S. 15:529.1 should be applied in defendant’s case.

Finding that the pre-2001 amendment to La.R.S. 15:529.1 applied, the trial judge imposed the mandatory sentence of life imprisonment at hard labor without 1 -.benefit of parole, probation or suspension of sentence. This timely appeal follows.

FACTS

The following factual statement was developed from the State’s witnesses presented at trial. The defense rested without presenting any testimony.

On August 11, 1999, Agent Mason Williams of the Jefferson Parish Sheriffs Office was working undercover in the Bridge City (Westwego) area of Jefferson Parish, purchasing narcotics. Agent Williams was driving a vehicle equipped with a video camera and an audio transmitter. Agent Derek Castine was a member of the surveillance team and monitored the transaction on the audio transmitter.

At trial, Agent Williams testified that he stopped the vehicle when he saw a man, later identified as the defendant, riding a bicycle. Agent Williams asked the defendant if he had a “20,” which Agent Williams explained was street language for one rock of crack cocaine. The defendant told Agent Williams to drive around the block and Agent Williams complied. The defendant approached Agent Williams’ vehicle, and Agent Williams asked the defendant to let him see the object. The defendant, however, instructed Agent Williams to drop the money on the ground. Ultimately, the defendant handed Agent Williams a rock-like object, then Agent Williams dropped the money on the ground. As Agent Williams drove away, he observed the defendant in the rear-view mirror retrieving the money. The videotape of this transaction was played for the jury at trial and the tape was entered into evidence as State’s Exhibit 3.

After the transaction, Agent Williams gave Agent Castine the rock-like object and the videotape of the transaction. Agent Castine testified that the object field-tested positive for the presence of cocaine. According to Thomas Angelica, |4who was accepted as an expert forensic scientist at trial, the rock-like object weighed .30 grams and tested positive for the presence of cocaine.

Sometime after the transaction, Agent Castine and Sergeant Joe Williams viewed the videotape. Sergeant Williams testified that he recognized the defendant and supplied the defendant’s name to Agent Cas-tine. After viewing a photographic lineup prepared by Agent Castine, Agent Williams identified the defendant as the person who sold him the crack cocaine. Agent Williams also positively identified defendant at trial.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court imposed an excessive sentence.

The defendant contends that his life sentence as a third felony offender is constitutionally excessive. The State responds that this mandatory minimum sentence is not excessive.

By 2001 La. Acts 403, § 7, the Louisiana Legislature enacted Act 403, which became effective on June 15, 2001. It amended the penalty provisions of numerous statutes, including the underlying offense in this case and the penalty provisions under the habitual offender statute for third and fourth felony offenders. Act 403 also created a Risk Review Panel to “evaluate the risk of danger” certain convicted individuals pose to society if released from confinement. 2001 La. Acts 403, § 2. In Section 6, the Act specified that the provisions “shall only have prospective effect.”

Since the effective date of Act 403, this Court has held that the pre-amendment version of LA.R.S. 15:529.1 applies when the underlying offense is committed before the effective date of Act 403, even when the sentence is imposed after Act 403’s effective date. See State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 380-383; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 209-212.

I ¡fin State v. Sugasti, 01-3407(La.6/21/02), 820 So.2d 518, the Louisiana Supreme Court held that Act 403’s amendment to the penalty provision of La. R.S. 40:966(C), possession of heroin, did not apply to a defendant who committed the offense before Act 403’s effective date.

In the present case, the trial judge sentenced the defendant under the pre-amendment version of La.R.S. 15:529.1. Based on Sugasti, Flagg, and Ventress, the trial judge properly sentenced defendant pursuant to the version of La.R.S. 15:529.1 in effect before the 2001 amendment. Defendant correctly acknowledges that, under either version of La.R.S. 15:529.1, he is subject to a mandatory sentence of life imprisonment.

The record does not reflect that the defendant made or filed a motion to reconsider his sentence pursuant to La.C.Cr.P. art. 881.1. Rather, the defendant merely asked the court to “note an objection” to the sentence. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. See State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342. Accordingly, we shall conduct a review of the defendant’s sentence for constitutional excessiveness.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for | ^constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993).

When a trial court determines that the minimum sentence mandated by La.R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280. However, the Johnson court cautioned that a trial judge’s determination that a mandatory minimum sentence is excessive requires more than merely uttering the above-quoted phrases. State v. Johnson, 709 So.2d at 676.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, 1093, writ denied, 98-3201 (La.4/23/99), 742 So.2d 876. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislatures failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, 709 So.2d at 676.

If the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive, with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. State v. Johnson, 709 So.2d at 677. However, “[a] sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual l70ffender Statute only under rare circumstances.” State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339, 345.

Before the enhanced sentence was imposed, the defendant urged that a life sentence would be “extremely harsh” considering the “very very small” amount of cocaine involved in the instant case. After the enhanced sentence was imposed, the defendant objected to the sentence as excessive, but did not urge any specific basis for the court to deviate from the mandatory minimum. On appeal, the defendant asserts that his enhanced sentence is excessive because he has a history of nonviolent drug offenses, which indicates that he has been addicted to cocaine all of his adult life.

After reviewing the evidence of the defendant’s predicate offenses presented at the habitual offender hearing, it does not appear that the defendant is the type of exceptional individual contemplated by State v. Johnson. To the contrary, he seems to be the very type of recidivist individual for whom the Habitual Offender Law has been designed. The defendants first predicate conviction, simple burglary of an inhabited dwelling in 1989, arose out of a three-count bill of information that charged defendant with two other counts of simple burglary of inhabited dwellings within a two-month period. Defendant pleaded guilty as charged to all three counts and received concurrent sentences of four years at hard labor on each count. In connection with the guilty pleas, the State agreed not to file a multiple bill against defendant.

The second predicate conviction, distribution of cocaine in 1994, arose out of a six-count bill of information that charged defendant with five other counts of distribution of cocaine within a one-month period. Defendant pleaded guilty as charged to all counts and received concurrent sentences of ten years at hard labor. Once again, the State agreed not to file a multiple bill against the defendant. While |son parole, the defendant committed the third and underlying offense of distribution of cocaine in 1999.

At the time of the commission of the underlying offense in 1999, the Habitual Offender Law provided that, if one of the predicate felonies or the underlying felony is a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years, a life sentence of imprisonment without benefit of parole, probation or suspension of sentence is mandated.

In the instant case, the defendant’s sentence of life imprisonment without benefit of parole, probation, or suspension of sentence is mandatory because both the underlying offense and the second predicate offense of distribution of cocaine are violations of the Uniform Controlled Dangerous Substances Law punishable by more than five years of imprisonment. See La.R.S. 40:967(A); La.R.S. 15:529.1(A)(l)(b)(ii).

Based on the foregoing, we find that the defendant has failed make a showing of exceptional circumstances sufficient to justify a downward departure from the mandatory sentence of life imprisonment. Although the defendant has no violent predicate offenses, the Johnson court pointed out that a “lack of prior non-violent crimes has already been factored into the minimum sentence under the Habitual Offender Law.” State v. Johnson, 709 So.2d 672.

Further, La.R.S. 15:529.1 treats the defendant with multiple felony convictions “as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law.” State v. Johnson, 709 So.2d at 677.

|0In light of the defendant’s criminal history, the defendant appears to be the typical recidivist offender for whom the Habitual Offender Law was designed; hence, the mandatory life sentence is not excessive.

ASSIGNMENT OF ERROR NUMBER TWO

Pursuant to our usual procedure as well as the defendant’s second assignment, we reviewed the record for patent errors. We note a patent error in that the transcript of the enhanced sentencing fails to show that the trial court vacated the original sentence prior to imposing the enhanced sentence. However, the minute entry/commitment states that the original sentence has been vacated.

In State v. Mayer, 99-3124 (La. 3/31/00), 760 So.2d 309, the Louisiana Supreme Court found that an enhanced sentence in such circumstances was valid:

To the extent that the ... commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

This Court followed Mayer in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126,130, and State v. Cushinello, 01-109 (La.App. 5 Cir. 7/30/01, 792 So.2d 926), writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159.

Accordingly, this issue requires no action by this Court.

We note another patent error, in that the trial court failed to comply with La.C.Cr.P. art. 930.8 following the defendant’s sentencing as a multiple offender. The court failed to advise the defendant that he has two years from the date the judgment becomes final within which to file for post-conviction relief.

Pursuant to our usual procedure, we shall remand the matter with directive to the trial court to provide proper notice to the defendant as required by law.

ImDECREE

For the foregoing reasons, the defendants conviction and sentence are affirmed. The matter is remanded and the trial court is ordered to provide written notice to the defendant of the provisions of La.C.Cr.P. art. 930.8 within ten days of the rendition of this decision, as well as to file into the record written proof that the defendant received such notice. See State v. Russell, 99-767 (La.App. 5 Cir. 11/30/99), 750 So.2d 1074, 1076.

AFFIRMED.

      . The defendant is also known as “Joseph Simmons” and "Julian Simmons.”

      . The defendant filed an application for post-conviction relief, seeking reinstatement of his appeal rights, which the trial judge granted. However, this application was superfluous, since defendant had already asserted his appeal rights at his original, as well as his enhanced sentencing.

      . Defendant's prior conviction for simple burglary of an inhabited dwelling is punishable by imprisonment for not more than 12 years and the two cocaine distribution convictions are punishable by imprisonment for not more than 30 years. La.R.S. 14:62.2 and 40:967(A). The new amendment to the habitual offender statute makes a life sentence mandatory for a third felony offender when the last felony and the two prior offenses drug offenses are punishable by imprisonment for more than 10 years, and any other crime punishable by imprisonment for 12 years or more. La.R.S. 15:529.1 (A)(l)(b)(ii). Prior to the amendment, other crimes had to be punishable by imprisonment for “more than twelve years."

      . See La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).


source: Caselaw Access Project

author: | .MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana, in the Interest of B.L.
    No. 02-KA-923.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Laurence P. Alterman, Assistant District Attorneys, Gretna, LA, for Appellee.
    Timón Webre, Harvey, LA, for Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

Juvenile defendant B.L. appeals his conviction of possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966(A) and resisting an officer in violation of LSA-R.S. 14:108. Following a petition filed by the Jefferson Parish District Attorney, an adjudication hearing was held before the juvenile court judge and B.L. was adjudicated a delinquent on both charges. He was committed to the Department of Corrections for one year on the possession with intent to distribute marijuana conviction and six months on the resisting an officer conviction.

B.L. appeals only his adjudication as a delinquent for possession with intent to distribute marijuana.

At the hearing, Causeway Bridge Police Department Officer John Jones testified that on July 11, 2002, he stopped a gray 1982 Oldsmobile Cutlass, driven by B.L., on South Clearview near the Huey P. Long Bridge. The stop was made because the auto had an expired motor vehicle inspection sticker. Officer Jones asked B.L. for identification, vehicle registration and proof of insurance, none of which B.L. was able to produce. B.L. was asked to place his hands on the police [¡¡unit at which time Sergeant Dwain Rullman conducted a pat down search. Sgt. Rullman testified that he felt something in the left pocket of the B.L.’s pants.

B.L. resisted the pat down search and turned on the officer. Sgt. Rullman attempted to regain control of the situation and ultimately handcuffed the juvenile. Sgt. Rullman subsequently found nothing in the juvenile’s pants, but testified that B.L. put whatever was in there into his mouth. After being handcuffed, B.L. spit out one clear plastic baggie with 16 individually wrapped baggies containing green vegetable matter from his mouth. The substance was later identified as 22.46 grams of marijuana.

B.L. argues the evidence was insufficient to prove that he had the requisite intent to distribute the marijuana in his possession. He contends that mere possession of marijuana is insufficient to prove “intent to distribute,” and maintains there was no evidence suggesting the amount the marijuana was inconsistent with personal use. He points out that no drug paraphernalia or cash was seized from him and alleges he had never been convicted of distribution of a controlled dangerous substance in the past.

In a juvenile delinquency proceeding, the State’s burden of proof is the same as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition. The constitutional standard for evaluating the sufficiency of the evidence is the same in a juvenile proceeding as it is in an adult proceeding, that is, whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt.

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did |4so with the specific intent to distribute it. B.L. does not challenge the finding that he was in possession of marijuana but rather challenges the determination that he had specific intent to distribute marijuana.

Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. Factors which may give rise to a reasonable inference that defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute.

The possession of large sums of cash may also be considered circumstantial evidence of intent as may the possession of weapons. “In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible.”

This court has previously determined that there was insufficient evidence to convict a defendant of possession with intent to distribute 74 grams of loose marijuana, plus 9 grams found in hollowed out cigars. In that ease, there was no | -.evidence that the defendant had ever been convicted of selling or attempting to sell narcotics. While there was testimony relative to common packaging methods, and plastic bags commonly used to package marijuana were found in the home, none of the marijuana was divided into nickel or dime bags. No paraphernalia for preparing joints was found. We found there was no “large sum” of money such as to imply that it was necessarily derived from any source other than drug sales, and that none of the officers who testified was qualified as an expert in the packaging and sales of narcotics. In determining the evidence was insufficient to show the defendant’s intent to distribute, this Court focused on the lack of testimony as to whether the amount of marijuana was consistent with personal use.

In a comparable case in the Fourth Circuit, the factors indicating intent were considered and determined to be insufficient:

... However, the officers — the State’s only witnesses — provided extremely limited circumstantial evidence of defendant’s intent. Turning to the Hearold factors, the officers admitted that they never saw defendant distribute or attempt to distribute the marijuana. Defendant carried only thirteen dollars, limiting his ability to provide change for a sale; and he carried no weapons. Officer Quetant did not provide any expert testimony concerning the packaging of marijuana for retail sales, nor did he address the question of whether the amount of marijuana defendant possessed was inconsistent with personal use. Officer Walker testified that they arrested defendant for possession with intent to distribute because of the quantity of marijuana and the packages of individual baggies. However, the State did not tender Officer Walker as an expert, and the trial court allowed the testimony only to show the basis for defendant’s arrest. Thus, the State did not produce any expert testimony on quantity and/or packaging of marijuana for retail sales. Similarly, it produced no evidence on the consistency of the amount possessed with strictly personal use.

The Second Circuit has similarly found insufficient evidence to support a defendant’s conviction for possession with intent to distribute marijuana. In that case, the defendant was found with 32 “dime” bags of marijuana. The court noted there was no testimony that the amount of marijuana in defendant’s possession was | ^inconsistent with personal use, although there was evidence that the packaging of the marijuana was in a form consistent with distribution. However, the court found there was “no evidence as to how much marijuana by weight is contained in a dime bag or the number of cigarettes which may be rolled from a dime bag.” As such, it concluded “[tjhere was simply no evidence for the jury to consider in deciding whether this was an amount of marijuana sufficient to create a presumption of intent to distribute.” The court commented that it was just as reasonable to assume defendant had just bought the drugs in the packaged form for his personal use.

In the present case, B.L. was found with a large plastic bag containing 16 smaller bags of marijuana, totaling 22.46 grams. There was no expert testimony that the amount of marijuana found in his possession was inconsistent with personal use and no testimony on quantity and/or packaging of marijuana for retail sales. Additionally, there was no evidence that any drug paraphernalia, large amount of cash, or a weapon was found on B.L. or in the vehicle. While the record demonstrated that B.L. had numerous prior adjudicated delinquencies, including possession of cocaine, none of the prior delinquencies were for distribution. Under these circumstances, we find that it was reasonable to assume B.L. had obtained the drugs for his personal use, and hold that the State failed to prove possession with intent to distribute.

However, the discharge of a defendant is neither necessary nor proper when the evidence supports a conviction of a lesser and included offense which is a legislatively authorized responsive verdict. La. C.Cr.P. art. 821(E). This rule is applicable to juvenile proceedings. This court is authorized to enter a judgment |7of guilty of a lesser and included offense. Possession of marijuana is a legislatively authorized responsive verdict to a charge of possession of marijuana with intent to distribute. LSA-C.Cr.P. art. 814(A)(49). We vacate B.L.’s adjudication of delinquency for possession of marijuana with intent to distribute, and enter an adjudication of delinquency for possession of marijuana. The matter is remanded to the juvenile court for resentencing on that offense in accordance with this opinion.

We have conducted an error patent review. In so doing, we note that the record is unclear whether B.L. answered the allegations of the petition. The Children’s Code is silent as to the remedy in this situation. La.Ch.C. art. 104 states the Louisiana Code of Criminal Procedure governs in matters not provided for in the Children’s Code. La.C.Cr.P. art. 555 provides that the failure to arraign a defendant or the fact that he did not plead is waived if the defendant enters upon trial without objecting thereto and that it shall be considered as if he had pled not guilty. Because B.L. proceeded to the adjudication hearing without objection, any irregularity in the arraignment was waived.

In addition, the trial judge did not inform B.L. of the prescriptive period for seeking post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Relative to the second sentence, we remand the matter and instruct the trial court to inform the juvenile of the delays for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.

CONVICTION REVERSED IN PART AND MODIFIED; SENTENCE VACATED; REMANDED.

      . LSA-Ch.C. art. 883; State in Interest of R.T., 00-0205 (La.2/21/01), 781 So.2d 1239, 1241.

      . State in Interest of R.T, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . LSA-R.S. 40:966(A); State v. Kelly, 01-321 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 01-3266 (La. 11/1/02), 828 So.2d 565.

      . State v. Kelly, 800 So.2d at 982.

      . Id.

      . State v. Hearold, 603 So.2d 731, 736 (La.1992); State v. Taylor, 99-1154 (La.App. 5 Cir. 2/29/00), 757 So.2d 63, 72, writ denied, 00-1021 (La.3/30/01), 788 So.2d 441.

      . State v. Hearold, supra, at 735-736.

      . State v. Taylor, supra.

      . State v. Mamon, 98-1943 (La.App. 4 Cir. 9/8/99), 743 So.2d 766; writ denied 1999-2715 (La.3/17/2000), 756 So.2d 326.

      . State v. Coleman, 552 So.2d 513 (La.App. 2 Cir.1989), writ denied 559 So.2d 138 (La.1990).

      . Id., at 515.

      . State in Interest of Pigott, 413 So.2d 659, 663 (La.App. 1 Cir. 1982); State in the Interest of J. W., 597 So.2d 1056 (La.App. 2 Cir.1992).

      . La.C.Cr.P. art. 821(E); State v. Byrd, 385 So.2d 248, 251-53 (La.1980); State v. Mamon, supra.

      . 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); State in the Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39, 41.

      . Also see State in the Interest of Z.S., 01-1099 (La.App. 5 Cir. 2/26/02), 811 So.2d 1003, 1008.


author: JgJAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Freddie GILBERT.
    No. 02-KA-922.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Margaret S. Sollars, Thibodaux, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux — Appellate Counsel, Alison Wallis — Counsel of record on Appeal, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   JgJAMES L. CANNELLA, Judge.

The Defendant, Freddie Gilbert, appeals his conviction by a jury of attempted possession of marijuana with intent to distribute. We vacate the sentence, enter a verdict of guilty under La.R.S. 40:966(D), the lesser included charge of simple possession of marijuana, and remand the matter for sentencing.

On December 12, 2001, the Defendant was charged by a bill of information with knowingly and intentionally possessing with the intent to distribute marijuana in violation of La.R.S. 40:966(A). The Defendant pled not guilty to the charge on December 21, 2001 and filed motions for a preliminary examination and to suppress the evidence.

After a two-day trial commencing on March 6, 2002, a twelve-person jury found the Defendant guilty of the lesser responsive verdict of attempted possession of marijuana with the intent to distribute, a violation of La.R.S. 40:966(A) and R.S. 14:27. On March 13, 2002, the Defendant was sentenced to two years | «imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Officer John Doyle of the Jefferson Parish Sheriffs Office (JPSO), Street Crimes Division, testified that on December 5, 2001, at approximately 2:00 p.m., he was patrolling the area near 1028 Manhattan Boulevard with his partner, Officer Shane Cline. Officer Doyle testified that he and his partner were patrolling that area because the JPSO had received numerous complaints that narcotics sales were being conducted in front of the Manhattan Food Store at 1028 Manhattan, and because a couple of narcotics arrests had been made two nights earlier at the same location. Officer Doyle testified that located near the Manhattan Food Store are two apartment complexes, The Tensis and West Chasse Apartments, where he had previously made numerous arrests.

When he initially pulled into the parking lot of the Manhattan Food Store, Officer Doyle saw several people standing near the pay phones next to the building. He noticed one man turn his head toward the patrol vehicle, act physically nervous, and immediately turn and walk away from the other individuals. Officer Doyle exited his vehicle and walked parallel to the man, later identified as the Defendant. His partner detained the other three individuals. Officer Doyle observed the Defendant walk behind a bush and discard a cellophane bag. The bag contained four individually wrapped bags of marijuana, as well as another bag with numerous empty eight ball zip lock baggies. Officer Doyle retrieved the drugs while his partner arrested the Defendant.

Charles Krone (Krone) of the Jefferson Parish Crime Lab testified as an expert in the field of identification and analysis of controlled dangerous substances. Krone testified that he performed microscopic and chemical examinations on the samples found in the four baggies and determined that the | ¿samples tested positive for marijuana. He also testified that the marijuana in the four baggies weighed approximately three grams.

According to the Defendant, on December 5, 2001 he was standing outside the Manhattan Food Store with a group of people. He testified that he had gone to the store to get his girlfriend something to eat and, as he was coming out of the store, a police officer stopped him, put him on top of the car and asked, “Who sell crack?” The Defendant testified that he was then placed into the police car. The Defendant denied ever having or throwing down marijuana.

On appeal, the Defendant only argues that his conviction is based on insufficient evidence. He contends that the evidence is insufficient because only a small amount of marijuana was recovered and, although it was separated into four different baggies, the amount recovered is consistent with personal use.

The State responds that the jury could have found the Defendant guilty of attempted possession of marijuana with the intent to distribute, given the high crime reputation of the area where the arrest occurred, the individual baggies containing marijuana and the Defendants attempt to conceal or abandon the baggies when he saw the police.

The standard for appellate review of the sufficiency of 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 82; State v. Williams, 99-223, p. 6 (La.App. 5th Cir.6/30/99), 742 So.2d 604, 607. This review does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Mitchell, 99-3342 at p. 7, 772 So.2d at 83.

|RIn cases involving circumstantial evidence, the evidence must exclude, every reasonable hypothesis of innocence. La. R.S.15:438; Mitchell, 99-3342, p. 7, 772 So.2d at 83. However, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623, p. 11 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the reviewing court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id. 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. Williams, 99-223, p. 8, 742 So.2d at 608. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. 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. Percy, 02-255 (La.App. 5th Cir.6/26/02), 822 So.2d 823.

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La.R.S. 40:966(A). The first element, “possession,” includes both “actual” and “constructive” possession. State v. Brisban, 00-3437, p. 8 (La.2/26/02), 809 So.2d 923, 929; State v. Quest, 00-205, p. 21 (La.App. 5th Cir.10/18/00), 772 So.2d 772, 786. A person who was not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion or control. Brisban, 00-3437, p. 8, 809 So.2d at 929; Quest, 00-205 at p. 21, 772 So.2d at 786. Guilty knowledge is an essential element and may be inferred from the circumstances. Brisban, 00-3437, p. 8, 809 So.2d at 929.

liAn attempted offense under La.R.S. 14:27(A) is when

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Thus, in order to convict the Defendant of the offense, the State had to prove that the Defendant had the specific intent to possess marijuana, that he had the intent to distribute the drug, and that he acted directly toward the accomplishing of that goal.

Specific criminal 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.” La.R.S. 14:10. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. Factors which may give rise to a reasonable inference that a defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. State v. Hearold, 603 So.2d 731, 735 (La.1992); Quest, 00-205, p. 21, 772 So.2d at 786. Mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible, and if the amount is inconsistent with personal use. Hearold, 603 So.2d at 735-736 (La.1992); Hollins, 99-278, p. 8, 742 So.2d at 678.

In regard to the first factor, the State did not introduce any evidence that Defendant had ever distributed or attempted to distribute drugs in the past. The only evidence as to the Defendants criminal history was elicited during his |7testimony when he stated that he had no prior felony convictions. Thus, we have no evidence of prior actions to consider.

The second factor is whether the drug was in a form usually associated with possession for distribution to others. Officer Doyle testified that the marijuana was in four individual baggies, which were wrapped in a larger bag. There was no further testimony as to whether this was a form of transport usually associated with possession for distribution to others. In State v. Jack, 97-351 (La.App. 3rd Cir.10/8/97), 700 So.2d 1177, writ denied, 97-2726 (La.2/13/98), 706 So.2d 993, the Third Circuit reasoned that a jury could reasonably infer that “baggies” of marijuana, individually wrapped and then wrapped in a single, larger bag, indicate intent to distribute. However, the court noted that this element, standing alone, is not disposi-tive because it is possible that the defendant could have simply purchased the marijuana wrapped in this fashion. Id. at 1179.

The third factor is whether the amount of drugs created an inference of intent to distribute. Krone testified that the four baggies filled with marijuana weighed 4.58 grams, but if the marijuana were weighed without the baggies, it would have weighed approximately three grams. The Third Circuit in Jack found that an amount of marijuana sufficient to “roll” approximately 30 to 40 hand-rolled cigarettes was not enough to create a presumption of intent to distribute. In State v. Green, 18,547 (La.App. 2nd Cir.6/10/97), 508 So.2d 602, the Second Circuit found that 1.62 ounces of marijuana was not a sufficient amount to create a presumption of intent to distribute. In this case, we find that, standing alone, and considering the other facts herein, three grams of marijuana do not create an inference of intent to distribute marijuana.

With respect to factor number four, no expert evidence was produced to show that the amount of marijuana was inconsistent with personal use only.

RThe last factor is whether there was any evidence of paraphernalia, such as baggies or scales, that would evidence the intent to distribute. The testimony of Officer Doyle indicated that several zip lock baggies labeled with eight ball symbols were also found with the discarded marijuana. Although Officer Doyle was not qualified as an expert in the packaging and sale of narcotics, he testified that the types of bags were nickel bags that would hold five dollars worth of marijuana. Officer Doyle testified that the particular bags recovered were used for the packaging and reselling of narcotics. He further testified that the packaging can possess a range of symbols that will signify a certain dealer.

Officer Doyle also testified that he was trained to look for other signs of possession with the intent to distribute such as money, cell phones, or pagers. He testified that none of those items were found on the Defendant, but explained that those items are not always indicative of drug dealing, depending upon the area and the level of the drug dealer. Officer Doyle stated that pay phones are often used in certain areas and it is often the case that when a young individual is selling drugs, he will not have money because he must bring the money directly to someone to whom he is answering. Officer Doyle also testified that known drug dealers lived in the apartments across the street from where the Defendant was arrested.

In State v. Taylor, 99-1154 (La.App. 5th Cir.2/29/00), 757 So.2d 68, writ denied, 00-1021 (La.3/30/01), 788 So.2d 441, 74 grams of loose marijuana were found under the defendants bed, along with about nine grams of marijuana contained in hollowed-out cigars. Plastic sandwich bags, commonly used in packaging marijuana, were also found in that defendants home, although no marijuana was packaged into these bags. This Court held that the evidence was insufficient to convict the defendant of possession with intent to distribute marijuana, stating that the State failed to satisfy more than one or two of the five enumerated factors in support of intent to distribute, and noted that there was no | flevidence of a key element, that the marijuana seized was not consistent with personal use.

In State v. Kelly, 01-321 (La.App. 5th Cir.10/17/01), 800 So.2d 978, writ denied, 01-3266 (La.11/1/02), 828 So.2d 565, the possession of 21 small colored plastic bags containing 31.7 grams of marijuana was sufficient to convict the defendant of possession of marijuana with the intent to distribute. There, we distinguished Taylor, noting that there was expert testimony that the amount of the marijuana combined with the way it was packaged in individual packets was indicative of retail sale as opposed to personal consumption. In addition, the evidence showed the existence of paraphernalia in that case.

Similar to the Kelly case above, here the marijuana was packaged in individual baggies. In addition, paraphernalia in the form of eight ball labeled zip lock bags was found. However, in the present case, unlike Kelly and similar to Taylor, the State failed to introduce evidence that the amount of marijuana or the packaging of the marijuana was inconsistent with personal use.

In this case, the State produced evidence of only one, or at the most two, of the factors we must consider in determining whether, under Jackson, the Defendant had the intent needed to be convicted of attempted possession of marijuana with the intent to distribute. Thus, we find that the evidence is not sufficient to convict the Defendant of that crime. Further, we need not grant a post-judgment verdict of acquittal. The evidence is sufficient to convict him of simple possession.

Under La.C.Cr.P. art. 821 E, “If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.” Thus, after vacating the Defendants conviction and sentence imposed for attempted possession with the intent to | indistribute marijuana, we will enter a verdict of guilty under La.R.S. 40:966(D), the lesser included charge of simple possession of marijuana, and remand the matter for sentencing.

Accordingly, the Defendants conviction and sentence are vacated. We hereby enter a verdict of guilty under La.R.S. 40:966(D), the lesser included charge, of simple possession of marijuana, and remand the matter for sentencing.

CONVICTION AND SENTENCE FOR ATTEMPTED POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE VACATED AND CONVICTION OF SIMPLE POSSESSION OF MARIJUANA HEREBY ENTERED. CASE REMANDED FOR SENTENCING.

      . The record does not reflect a ruling on those motions. However, 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. Day, 00-64 (La.App. 5th Cir.5/30/00), 762 So.2d 264, 268.

      . The zip lock bags were labeled with eight ball symbols.

      . We reviewed the record for patent errors pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Perrilloux, 99-1314, p. 12 (La.App. 5th Cir.5/17/00), 762 So.2d 198, 206. No patent errors were found.


author: LWALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Rodney A. MARTIN.
    No. 02-KA-897.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for The State of Louisiana, Plaintiff/Appellee.
    Gwendolyn K. Brown, Baton Rouge, LA, for Rodney A. Martin, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   LWALTER J. ROTHSCHILD, Judge.

On August 23, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rodney A. Martin, with Count 1, distribution of cocaine in violation of LSA-R.S. 40:967(A), which allegedly occurred on January 12, 2000; Count 2, distribution of cocaine in violation of LSA-R.S. 40:967(A), which allegedly occurred on January 12, 2000; Count 3, distribution of cocaine in violation of LSA-R.S. 40:967(A), which allegedly occurred on December 15, 1999; and Count 4, distribution of cocaine in violation of LSA-R.S. 40:967(A), which allegedly occurred on December 15, 1999. Defendant was arraigned on August 24, 2000 and pled not guilty. On December 12, 2000, defendant withdrew his pleas of not guilty and entered pleas of guilty on all four counts. On that same day, defendant initialed and signed a “waiver of constitutional rights plea of guilty” form. On January 8, 2001, the trial court sentenced defendant to imprisonment at hard labor for 25 years on each count to run concurrently. Defendant filed a motion for reconsideration of sentences on February 2, 2001. On February 6, 2002, the trial court granted the motion for reconsideration of sentences, vacated the original sentences, and sentenced defendant to |3imprisonment at hard labor for 15 years on each count to run concurrently. Defendant orally objected to the sentences and moved for an appeal. This appeal followed.

FACTS

On December 12, 2000, defendant advised the trial court he wished to withdraw his pleas of not guilty and enter pleas of guilty on all counts. The trial judge advised defendant of his constitutional rights. He told defendant he would be sentenced to 25 years at hard labor on all counts to run concurrently, that the state intended to file a multiple bill against him, and that he would receive the same 25-year sentence on the multiple bill. Defendant signed and initialed the “waiver of constitutional rights plea of guilty” form, which set forth the same terms as stated by the trial judge in court. Defendant waived his constitutional rights and entered a plea of guilty.

The prosecutor stated that there was a factual basis for the offenses, that all of the offenses occurred by hand-to-hand transaction with an undercover Jefferson Parish Sheriffs officer, and that the transactions on Counts 1 and 2 were videotaped. The trial judge stated he was satisfied there was a factual basis to support the pleas, that he believed defendant was making a knowing and intelligent waiver of his rights, and that defendant had done so freely and voluntarily. The trial judge subsequently accepted the pleas. Defendant requested that sentencing and the multiple bill hearing be delayed.

On January 8, 2001, after an off-the-record discussion, the trial judge stated that, on December 12, they had agreed that defendant would get a 25-year sentence on the four counts, that defendant would plead guilty to the multiple bill, and that defendant would get a 25-year sentence on the multiple bill. The trial judge stated it was now his understanding that defendant was ready for sentencing on the cocaine charges, but that he would not admit the allegations of the multiple bill. ^Defendant said that was correct. The trial judge informed defendant, at the request of defense counsel and the prosecutor, that if he did not admit the allegations of the double bill, the state was going to charge him as a triple offender. Defendant said he understood. The trial judge advised defendant that he could get a greater sentence, and defendant said he understood. The prosecutor then stated that it might bill him as a quad offender, and defendant said he understood. The trial judge told defendant that it was still his intent to sentence him to 25 years. He asked defense counsel whether he needed to talk to defendant. Defense counsel said, “No, Your Honor, you can go ahead with the plea.” The trial judge subsequently sentenced defendant to 25 years on all four counts to run concurrently.

On February 6, 2002, during a hearing on defendant’s motion to reconsider sentence, the following exchange occurred:

MR. BUTLER: [The prosecutor]
Judge, this is here on defendant’s motion to reconsider sentence. We have discussed or had an off the record pretrial as to what a sentence would be and it’s the State’s position that we would not object if the court amended the sentence to one of 15 years and the State would not file a multiple bill.
THE COURT:
All right, Mr. Benz, does that satisfy your motion?
MR. BENZ: [Defense counsel]
Well, no, Your Honor. I still think it ought to be reduced lower than that. The initial agreement was seven with the D.A.’s office and Mr. Regan? [sic]
THE COURT:
The initial agreement was seven?
MR. BENZ:
That’s my understanding with Mr. Re-gan. It’s up to Your Honor.
THE COURT:
|J realize that. When you say initial agreement — I was unaware of any agreement—
MR. BENZ:
No, we had no written agreement but that’s what we talked about when I filed my motion.
MR. BUTLER:
Judge, if we could pass on this matter so that we can determine whether that’s something that occurred. Perhaps Mr. Benz could contact Mr. Regan.
THE COURT:
That’s all right with me.
(A recess was held)
MR. BUTLER:
If we can return to number 1, Rodney Martin, Your Honor. The State will reiterate its earlier statement for the court that based upon my review of the file and I believe that a 15 year sentence would be applicable in this case and I would have no objection to a 15 year sentence? [sic] The state had previously agreed not to multiple bill and of course we would not be seeking a — to multiple bill him on that 15 year sentence. I don’t believe that there was, at least in my discussions with my office, their recollection is that there was an agreement that it would be amended to 15 years, not seven, so I would stand by that earlier statement, Your Honor.
THE COURT:
Mr. Benz, you called them up there too?
MR. BENZ:
Yes, Your Honor, and Mr. Regan’s recollection is different from mine.
THE COURT:
All right, considering the agreement of both sides here and my knowledge of the case, I’m in agreement with that consent or that motion. The court finds that the sentence is disproportional and I therefore re-sentence the defendant to 15 years at hard labor on each count to run concurrently. The first one was 25 on each to run concurrently, all right, and this one is 15 on each.
MR. BUTLER:
|fiAs a formality, Your Honor, would you need to vacate the original sentence?
THE COURT:
Excuse me, yes. I’m sorry. The court vacates the previous sentence and re-sentences the defendant to 15 years, all to run concurrently....

The record shows that defense counsel then objected to the excessiveness of the sentence and moved for an appeal.

DISCUSSION

In two assignments of error, defendant argues that the trial court erred in imposing excessive sentences and in failing to comply with the procedures specified in LSA-C.Cr.P. art. 894.1. Defendant contends these issues can be reviewed on appeal, even though the sentences were imposed in conformity with a plea agreement, because the trial court found the original sentences were disproportional and vacated them. He claims the sentences were excessive because no one was injured, endangered, or threatened during the commission of the crime, and no property loss was sustained.

The state responds that the sentence was statutorily permissible, that the trial judge did not abuse his discretion, and that the sentences should not be set aside.

The record in this case indicates that defendant, with the assistance of counsel, pled guilty in a negotiated plea agreement. He agreed to plead guilty to four counts of distribution of cocaine in exchange for the court’s promise that his sentence would be 25 years on all counts to run concurrently. He also agreed to admit the allegations of the multiple bill and be sentenced to 25 years. Defendant subsequently refused to admit the allegations of the multiple bill, but he agreed to the 25-year sentences on all four counts to run concurrently. Defendant did so even though he knew the prosecutor might file a multiple bill alleging him to be a third or fourth felony offender and, therefore, that his sentence might be higher |7than 25 years if found to be a multiple offender. The trial judge subsequently sentenced defendant to 25 years on all counts to run concurrently.

Defendant filed a motion for reconsideration of sentence. Defense counsel and the prosecutor attempted to renegotiate the sentence in off-the-record discussions. The prosecutor stated he agreed to a 15-year sentence and not to multiple bill defendant. Defense counsel argued it should be seven years based upon the off-the-record discussions. The trial judge considered the issue of excessiveness, granted the motion for reconsideration of sentence, vacated the original sentence, and sentenced defendant to 15 years on all counts to run concurrently.

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. LSA-C.Cr.P. art. 881.2(A)(2); State v. Johnson, 02-254 (La.App. 5 Cir. 6/26/02), 822 So.2d 840, 843-844. In a case in which a specific sentence or sentence cap has been agreed to as a consequence of a plea agreement, a sentence imposed within the agreed upon range cannot be appealed as excessive and there is no need for the trial court to give reasons for the sentence as required by LSA-C.Cr.P. art. 894.1. State v. Bell, 412 So.2d 1335, 1336 (La.1982); State v. Alexander, 34,328 (La.App. 2 Cir. 12/06/00), 774 So.2d 1089, 1090.

Defendant agreed to a 25-year sentence and ultimately received a 15-year sentence. Therefore, we find that defendant is precluded from seeking review of his sentence on appeal, since the sentence was imposed in conformity with a plea agreement set forth in the record at the time of the plea. Nevertheless, we have reviewed the merits of defendant’s claim, and we fail to find that the sentence imposed was excessive.

Defendant orally objected to the excessiveness of the sentence at the sentencing hearing, but he did not urge any specific grounds in support of his |sobjection, including the trial court’s failure to adhere to LSA-C.Cr.P. art. 894.1. Additionally, he failed to file a motion for reconsideration of the sentence as required by LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 1999-3217 (La.4/20/00), 760 So.2d 342. Accordingly, defendant’s sentence is examined only for constitutional excessiveness.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

Defendant was convicted of four counts of distribution of cocaine and sentenced to imprisonment at hard labor for 15 years on each count to run concurrently. LSA-R.S. 40:967(A). At the time the crimes were committed (December 15, 1999 and January 12, 2000), LSA-R.S. 40:967(B)(4)(b) provided for a term of imprisonment at hard labor of not less than five years nor more than |fl30 years, with the first five years of said sentence being without benefit of parole, probation, or suspension of sentence, and a possible fine of not more than fifty thousand dollars.

In State v. Lucas, 00-258 (La.App. 5 Cir. 8/29/00), 767 So.2d 921, 926-927, defendant was convicted of distribution of cocaine and sentenced to 15 years of imprisonment at hard labor. This Court found that the sentence was not excessive in light of his previous convictions for attempted murder and armed robbery, and because this Court had recently upheld a similar sentence for the distribution of cocaine in State v. Williams, 99-737 (La.App. 5 Cir. 11/30/99), 748 So.2d 1212.

In State v. Champ, 01-434 (La.App. 5 Cir. 11/27/01), 803 So.2d 167, 169-170, this Court found that a 20-year sentence for a conviction of distribution of cocaine was not excessive, even though a relatively small amount of cocaine was involved, defendant’s criminal history record reflected prior convictions for felonies and misdemeanors over a period of 27 years, there was no indication of mitigating factors which would compel a lesser sentence, and defendant’s sentencing exposure was significantly reduced by the state’s dismissal of the multiple bill.

In the instant case, the trial judge could have sentenced defendant to 30 years on all four counts to run concurrently; however, defendant received a mid-range sentence of 15 years. The trial judge could also have ordered the sentence | inon Count 3 or 4 to run consecutively rather than concurrently to the sentence on Count 1 or 2, since Counts 8 and 4 were committed on different days than Counts 1 and 2. LSA-C.Cr.P. art. 883. If the trial judge had done so, defendant could have received a sentence of up to 60 years. Additionally, defendant received a substantial benefit when the state agreed not to multiple bill him. According to the state, defendant could have been billed as either a second, third or fourth felony offender. Had defendant been found to be a multiple offender, he could have received a sentence much longer than 15 years, depending on the predicate offenses. Furthermore, the jurisprudence supports the 15-year sentence.

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. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors which require corrective action.

Based on the foregoing, we find defendant’s 15-year sentence was not constitutionally excessive. Accordingly, defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Even in the first motion to reconsider sentence defendant filed, defendant did not raise the claims he raises now on appeal.

      . 2001 La. Acts, No. 403, which became effective on June 15, 2001, amended 40:967(B)(4)(b) to provide a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence. It is well settled that "the law in effect at the time of the commission of the offense is determinative of the penalty which the accused must suffer.” State v. Cook, 02-104 (La.App. 5 Cir. 5/29/02), 820 So.2d 1144, 1145 (citing State v. Wright, 384 So.2d 399, 401 (La.1980)). The fact that a statute is subsequently amended to lessen the possible penalty does not extinguish liability for the offense committed under the former statute. State v. Cook, 820 So.2d at 1145 (citing State v. Narcisse, 426 So.2d 118, 130 (La.1983), cert, denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)).


author: LSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Amin Elsayed AMIN.
    No. 02-KA-916.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Harry J. Morel, Jr., District Attorney, Kim K. McElwee, Assistant District Attorney, Parish of St. Charles, Hahnville, LA, for PlaintiffAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   LSOL GOTHARD, Judge.

Defendant, Amin Amin, appeals his conviction and sentence on a charge of second degree murder. For reasons that- follow, we affirm.

The record shows that defendant was indicted by a St. Charles Parish Grand Jury for the first degree murder of Debra Matthews in violation of LSA-R.S. 14:30. Defendant was arraigned and pled not guilty. The indictment was subsequently amended to reduce the charge against defendant to second degree murder. Defendant was again arraigned and pled not guilty. The matter proceeded to a jury trial, after which, defendant was found guilty as charged. Defendant filed motions for a new trial and for a post-verdict judgment of acquittal, both of which were denied. After waiving all delays, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant made a timely motion for appeal, which was granted.

FACTS

The record shows that on Friday, March 26, 1999, Michelle Cortez, and the victim, Debra Matthews, went to Kenny’s Key-west. Cortez testified that Debra met the defendant and Vincent Teal at Kenny’s and later left with them while Cortez remained at the bar. Cortez testified that she next saw Debra, defendant and Teal at Debra’s house on the afternoon of Saturday, March 27, 1999. Cortez’s | .¡testimony indicated that on Saturday evening she accompanied Debra as they drove defendant and Teal to his apartment on Independence Street in Kenner. Cortez next saw the defendant and Teal on the night of Sunday, March 28, 1999 when she and Debra picked the two up at the apartment on Independence Street. She testified that everyone spent the night at Debra’s house that evening. Cortez testified that on Monday, March 29, 1999, she and Debra drove to Mississippi during the day and, after running some errands, returned to Debra’s house where they “chilled” with defendant and Teal. Cortez’s testimony indicated that she left Debra’s home at around 10:30 or 11:00 p.m. and that Debra, defendant and Teal remained at the house. She testified that when she left Debra’s, the house was spotless except for a stray beer can.

On cross-examination, Cortez testified that she, Debra, Teal and defendant had access to and consumed a number of drugs including Vicodin, Soma, Xanax, Marijuana and alcohol. Cortez also testified that at one point Teal began acting crazy because she failed to inform him that she was making a trip to the store. She testified that defendant remained quiet throughout the evening.

Officer Michael Folse of the St. Charles Parish Sheriffs Office testified that, on the morning of March 30, 1999, he received a dispatch call at approximately 3:43 a.m. that a car was on fire on Highway 90. With the help of the fire department, the vehicle fire was extinguished. It was subsequently determined that the victim, Debra Matthews, was the owner of the vehicle.

Louis J. Morales, Jr., the victim’s brother, testified that, on March 30, 1999, the St. Charles Parish Sheriffs Office contacted him concerning his sister’s car. He testified that when he drove to the scene he discovered his sister’s car had been burned and her television and VCR, among other things, were loaded into her car. He then loaded the vehicle onto his flatbed truck and brought it to his shop. He testified that he contacted his father about the situation and subsequently went to phis sister’s home where he discovered the house “destroyed” and his sister’s body stuffed underneath a mattress.

Dr. Susan Garcia of the Jefferson Parish Forensic Center testified as an expert in the field of forensic pathology. Dr. Garcia performed an autopsy on the body of Debra Matthews and determined that the cause of death was multiple sharp force injuries that involved the victim’s head, chest, and torso. The doctor stated that she counted approximately 102 stabs, cuts, punctures, and slashes. The testimony of the doctor also revealed that the victim had defensive injuries on her arms and her left leg. Doctor Garcia further testified that a toxicology analysis was performed on the victim’s body, which detected ben-zodiazepine, a metabolite of marijuana and nicotine. The doctor also opined that the injuries could have been made by different knives, but she testified that she could not say whether more than one person inflicted the wounds.

Several members of the St. Charles Parish Sheriffs Office testified regarding crime scene investigation. Ultimately, the officers’ testimony showed that physical evidence collected from the scene included a knife blade found several inches from the body, a telephone receiver with a blood-like substance on it, and a cigarette butt containing a latent fingerprint and a blood-like substance. Fingerprints were also collected from the scene. Tests showed that fingerprints found on the cigarette butt were those of defendant, Amin.

Detective Sergeant Rodney Madere, Jr. from the St. Charles Parish Sheriffs Office testified that he was called to assist in a homicide investigation located at 431 Acorn Street in Boutte. Sergeant Madere testified that in the course of his investigation, he developed two suspects, Vincent Teal and defendant, Amin Amin. The two suspects were eventually located at an apartment on Independence Street in Ken-ner and subsequently detained with the help of the Jefferson Parish Sheriffs Office. Sergeant Madere testified that the suspects were escorted out of | sthe apartment and pictures of Vincent Teal were taken. Sergeant Madere testified that the pictures of Teal showed a cut on his right hand. Sergeant Madere also testified that he advised the defendant of his rights, and with the defendant’s permission conducted an interview in the front seat of his police unit. The interview was recorded and the taped statement was played for the jury in open court.

In his statement, defendant told Sergeant Madere that he and his friend, Vincent Teal, went to Kenny’s Keywest on Friday, March 26, 1999. He stated that they met a couple of girls, Debra and Michelle, and left the club around 11:30 p.m. After leaving the club, they picked up some beer and went to Debra’s house where they remained until approximately 5:00 p.m. on Saturday, March 27, 1999. Defendant stated that he and his friend went to Debra’s house on other occasions, with the following Monday, March 29, 1999, being the last time they were there. Defendant stated that the last time he saw Debra was at about 12:40 a.m. on Tuesday, March 30, 1999, when Debra dropped him and Teal off at home.

Sergeant Madere testified that, after taking the statement, defendant and Teal were escorted to the Kenner lockup where defendant’s fingerprints were taken. The defendant and Teal were then returned to their apartment on Independence Street and released. Sergeant Madere testified that the defendants were arrested the next night on April 1,1999.

Teal subsequently pled guilty to the murder of Debra Matthews, and the defense presented a portion of Vincent Teal’s guilty plea colloquy in which Teal pled guilty to second degree murder. The “Factual Basis for Guilty Plea” was read to the jury. In the portion that was read, Teal acknowledged that, on the night of March 29, 1999, an argument occurred between Teal and Debra Matthews, which escalated and culminated in Teal committing the second degree murder of Debra Matthews. A knife was involved in the commission of the crime. Teal also | fiacknowledged that the defendant, Amin Amin, was present in the apartment at the time of the crime. After the crime, Teal took Debra Matthews’ car and set it on fire after it ran out of gas. Teal also acknowledged that he made phone calls from the victim’s home at the approximate time of the crime.

Donald Carter, an investigator with the Louisiana State Fire Marshal’s Office, testified as an expert in the cause and origin of fire. He examined Debra Matthews’ vehicle at the St. Charles Parish Sheriffs Office and determined that the fire was intentionally set. Other testimony indicates the car was out of gas.

Gina Pineda of Reliagene Technologies testified as an expert in forensic DNA analysis. Pineda testified that defendant’s DNA was taken from a cigarette wrapping paper with human blood recovered from the crime scene. DNA from a bloodstain taken from Debra Matthews’ living room floor matched Teal’s DNA. DNA on a knife blade found at the crime scene matched that of the victim, Debra Matthews. DNA from the filter of a cigarette butt matched the defendant’s DNA. DNA from a bloodstain on a phone receiver matched the DNA of Teal.

Pineda testified on cross-examination that she also tested a beige striped shirt that yielded no match. She also tested samples obtained from beneath the victim’s fingernail, which matched only the victim’s DNA. Pineda testified that the DNA from the cigarette butt was not in the form of blood but was likely from saliva.

John Martin, Security Manager for Bell-south Telecommunications, testified as to telephone records. Martin testified the phone records indicated that numerous calls were made from Debra Matthews’ phone to Louis Franklin and Ann Sartala-macchia. Martin also testified that numerous phone calls were made from a pay phone on Clearview Parkway to Louis Franklin and the apartment on Independence Street. Both Ms. Sartalamacchia and Mr. Franklin testified at trial to verify that the phone calls were received from defendant and Teal.

|7Piane Migliore testified that she knew of the defendant and Teal because they were dating her daughters and living with Migliore in March and April of 1999. She also testified that the phone rang in the early morning hours of March 30,1999 and that her boyfriend- at the time, Tom Rhodes, answered it. Her testimony indicated that, as a result of the phone call, Rhodes left the house and returned some time later with defendant and Teal.

Thomas Rhodes, a truck driver and heavy machine operator, testified that he knew defendant and Vincent Teal through his former girlfriend, Diane Migliore’s, daughters, Amanda and Heidi Barnett. Rhodes testified that on the early morning hours of March 30, 1999, Heidi received a telephone call from the defendant and Teal. As a result of the call, Rhodes testified that he drove to an EZ Serve convenience store off of Clearview Parkway, and picked up defendant and Teal. Rhodes testified that, after a stop at his apartment, he brought defendant and Teal back to his girlfriend’s apartment on Independence Street.

Heidi Barnett, Vincent Teal’s girlfriend at the time of the murder, testified that defendant and Teal were living with her, her sister and mother during the months of March and early April of 1999. She testified that defendant and Teal left the apartment on Friday, March 26, 1999, and that she did not see the men again until Tuesday, March 30, 1999, at around 5:00 a.m. She testified that she washed both Teal and defendant’s clothing, which included a brown striped shirt. She also testified that Teal had a cut on his hand.

Amanda Barnett, Heidi’s sister and defendant’s former girlfriend, testified that she did not see the defendant and Teal the weekend of Friday, March 26, 1999. She testified that she saw the defendant again on the morning of Tuesday, March 30, 1999. She testified that defendant had a little bit of blood on the left side of his shirt and that his clothes were wet, and that Teal had a cut on his hand. She testified that both defendant and Teal were acting really nervous and pacing.

\rLAW

On appeal, defendant presents two issues for our review. Defendant first asserts the evidence was insufficient to support the verdict of second degree murder. Defendant further argues that the evidence proved at most that he was guilty of accessory after the fact to the homicide committed by Vincent Teal.

The standard for appellate review of the sufficiency of 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the 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 could have found guilt beyond a reasonable doubt. State v. Joseph, 01-1211 (La.App. 5 Cir. 4/10/02), 817 So.2d 174; State v. Lapell, 00-1056 (La.App. 5 Cir. 12/13/00), 777 So.2d 541, 545.

Evidence may be either direct or circumstantial. 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. State v. Shapiro, 431 So.2d 372, 378 (La.1982). When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

A different standard is applied on appellate review. The Louisiana Supreme Court has commented:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” ... Rather, the court must | flevaluate the evidence in a light most favorable to the state and determine whether the possible alternative is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
(emphasis in original, citation omitted). State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83

Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. 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. Percy, 02-255 (La.App. 5 Cir. 6/26/02), 822 So.2d 823, 828. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant, that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Chester, 97-1001 (La.12/19/97), 707 So.2d 973; State v. Jackson, 98-1254 (La.App. 5 Cir. 3/30/99), 733 So.2d 657, 661.

To prove second degree murder, the State must show the killing of a human being and that the defendant had the specific intent to Mil or inflict great bodily harm. LSA-R.S. 14:30.1(A). 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.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Principals are defined as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime.” LSA-R.S. 14:24. In order to obtain a conviction as a principal to a crime, the State must prove more than mere presence at the crime scene. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427;

State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 269, writ denied 01-2967 (La.10/14/02), 827 So.2d 415. An accessory after the fact is “any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” LSA-R.S. 14:25.

In the present case, the evidence shows that defendant was present in Debra Matthews’ home on the night of the murder. Along with Vincent Teal’s guilty plea colloquy, there was additional evidence that placed defendant in Debra Matthews’ residence at the time of the murder. Michelle Cortez testified that defendant and Vincent Teal were present at Debra Matthews’ residence when she left at approximately 10:30 to 11:00 p.m. on Monday, March 29, 1999. There is also testimony from Ann Sartalamacchia and Louis Franklin indicating that they received phone calls from the defendant and Teal in the early morning hours of Tuesday, March 30, 1999. John Martin, a BellSouth Security Manager, testified that phone records indicated numerous calls were made from Debra Matthews’ home phone to Ann Sartalamacchia’s residence and additionally to Louis Franklin’s residence between the hours of 11:52 p.m. and 2:44 a.m. on the night of March 29,1999 through March 30, 1999. In addition to being present in defendant’s home, there was DNA and fingerprint evidence establishing that defendant was present in Debra Matthews’ bedroom. The DNA and fingerprint evidence was extrapolated from blood and saliva left on a cigarette butt found on the top of a dresser in Debra Matthews’ bedroom.

Defendant argues that his mere presence at the residence or in Debra Matthews’ bedroom does not establish that he assisted Teal in the murder and does not exclude the hypothesis that he was merely an accessory after the fact to a homicide committed by Teal.

In However, the State introduced additional evidence as to the circumstances of the crime including a photograph of defendant, which was taken by Officer LeBlanc during the execution of the search warrant for the bodies of Teal, and defendant. The photograph showed scratches on defendant’s chest suggesting that it was a possible source of the blood found on the cigarette. The State also introduced into evidence the murder weapon, a Forgecraft serrated kitchen knife containing the victim’s DNA, as well as evidence that a second knife not recovered was involved in the homicide. The State presented evidence that a knife, fitting an empty black knife sheath found in Debra Matthews’ kitchen, was missing. Testimony from Michelle Cortez established that Debra Matthews kept a knife next to her bed that fit the empty knife sheath. The State questioned Dr. Susan Garcia, the forensic pathologist who conducted the autopsy of Debra Matthews’ body, as to whether a knife fitting the sheath could have caused the injuries to Debra Matthews’ body, to which Dr. Garcia replied, “It’s possible, yes,” although she could not be certain whether the wounds on the victim’s body were caused by more than one knife or by more than one person.

We also note that the State introduced evidence that the defendant assisted in the post-murder theft of numerous items from Debra Matthews’ home, including her TV, VCR, CD player and automobile. Through Vincent Teal’s guilty plea and other testimony, it was established that Teal stole certain items from Debra Matthews’ home, including her vehicle. After the vehicle ran out of gas, Teal intentionally set the vehicle ablaze. Although Teal’s guilty plea colloquy did not implicate the defendant in the murder and post-murder theft, the evidence established that defendant was present during the theft. Officer Robert Toups testified that the television in the trunk of the vehicle was very large and that he was not able to remove it without the help of another officer indicating that Teal would have needed help in stealing the television.' The evidence also established |1gthat defendant was present with Teal after the theft of the vehicle. Thomas Rhodes testified that, after receiving a call from the defendant and Teal, he picked them up at an EZ serve located off of Clearview near the Huey P. Long Bridge.

Amanda Barnett testified that defendant and Teal were acting nervously and pacing after returning home to the apartment on Independence Street. She also testified that the defendant had a bit of blood on the left side of his shirt. When Amanda Barnett asked defendant how he got blood on his shirt, defendant told her the blood came from Teal’s hand which was cut in a bar fight. Heidi Barnett testified that she washed both Teal and defendant’s clothing, including a bloody shirt.

The jurors also heard defendant’s statement taken by Sergeant Madere in which defendant stated that the last time he saw Debra Matthews was about 12:40 a.m. on Tuesday, March 30, 1999, when Debra dropped him and Teal off at the Independence Street apartment. However, there was ample evidence that the statement was untrue. Evidence introduced at trial indicated that defendant was present at Debra Matthews’ home as late as 2:44 a.m. on the morning of March 30, 1999. There was further evidence that defendant did not return home until 5:00 a.m. Such a finding of purposeful misrepresentation reasonably raises the inference of a “guilty mind,” just as the case of “flight” following an offense or the case of a material misrepresentation of fact by a defendant following an offense. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 85, citing, State v. Davenport, 445 So.2d 1190 (La.1984).

There was also evidence presented that established specific intent to kill or inflict great bodily harm. Dr. Susan Garcia, the forensic pathologist who conducted the autopsy of Debra Matthews’ body, testified that the cause of death was multiple force injuries that involved the victim’s head, chest and torso. In all, Dr. Garcia counted approximately 102 stabs, cuts,, punctures and slashes. Dr. |1sGarcia also testified that the victim had numerous defensive wounds to her arms and leg, which indicate that she was struggling while being stabbed. The severity of such an attack on the victim indicates that the perpetrator had the specific intent to kill or to inflict great bodily harm. See, State v. Richard, 525 So.2d 1097 (La.App. 5 Cir. 1988), writ denied, 538 So.2d 609 (La.1989).

Additionally, the State introduced numerous photographs depicting the crime scene, which were shown to the jury. One of these photographs evidenced the brutal nature of the crime, showing Debra Matthews’ body stuffed underneath a mattress. There were also photographs showing Debra Matthews’ home in total disarray. Most of the destruction was confined to the bedroom where the victim’s dresser drawers were thrown onto the floor with their contents scattered about. There was also evidence showing a broken mirror and picture frame, overturned chairs, a smashed telephone and holes punched into a wall. Such photographs exhibited the violent nature and severity of the attack, providing evidence to the jury that defendant must have been aware of what was occurring in Debra Matthews’ home and more particularly in her bedroom.

In the present case, the jury was given instructions on the law regarding principals and accessory after the fact. The jury rejected defendant’s argument that Teal acted alone in killing Debra Matthews and that defendant was merely an accessory after the fact to the homicide. The jury heard evidence that the victim’s home was ransacked, that the defendant was present in the victim’s home during the murder, that a knife was missing from the home of Debra Matthews, that defendant’s blood was found on a cigarette butt at the murder scene, that defendant participated in the theft of the victim’s property after her murder, and that he had blood on his shirt when he returned home on the morning after the crime. Based on the totality of the evidence presented at trial, and viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found, beyond |14a reasonable doubt, that defendant was more than merely present at the crime scene and that he was a principal to the commission of this murder. We find no merit in this assignment.

In the second assignment of error, defendant contends the State improperly vouched for the integrity of its case against the defendant. Defendant argues that the State, in its closing argument on rebuttal, made an improper reference to the quality of the police work and investigation in violation of LSA-C.Cr.P. art. 774. The defendant further argues that the prosecutor’s comments constituted improper vouching for the evidence such that a mistrial should have been declared.

The allegedly impermissible resort to personal experience came in the State’s closing argument on rebuttal in which the prosecutor, in an attempt to address defense counsel’s assertion that the police failed to match a knife imprint on a bed to the murder weapon, stated:

Ms. McElwee [Prosecutor]:
What is this about the knife blade not being tested? The knife blade was tested. Look at it. It still has blood on it, Debra Matthews’ blood. I don’t know what he’s talking about. Her DNA. If anything, if there’s anything about this, this DNA evidence should ring true for you, it is that this knife blade that helped kill Debra Matthews had her blood on it. And the fingernail scrapings were hers.
I’m not trying — do I look like I’m trying to hide something from you? That is laughable. I brought everything in this case — the police did an unbelievable job in this case. This is the best example of police work I’ve ever seen in my life in my career.

Defense counsel promptly objected to the statement and the trial court overruled the objection noting that it was argument.

The scope of closing argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom and to the law applicable to the case. The State’s rebuttal shall be confined to answering the argument of the defendant. LSA-C.Cr.P. art. 774. Although prosecutors are allowed broad latitude in choosing closing argument I ^tactics, prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. Nevertheless, a conviction is not reversed due to improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Rochon, 98-717 (La.App. 5 Cir. 8/10/99), 733 So.2d 624, 630.

In the case of State v. Wiley, 513 So.2d 849 (La.App. 2 Cir.1987), writ denied, 522 So.2d 1092 (La.1988), a prosecutor made the statement, “This is the best fingerprint case I’ve ever had.” The Second Circuit held that while the statement may have gone beyond the proper scope of argument, but only barely so, it could not be said to have denied defendant a fair trial before an impartial jury. The court further noted that the trial judge had properly instructed the jury that closing arguments were not to be considered as evidence.

In State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995), the Louisiana Supreme Court noted that “much credit should be accorded to the good sense and fair mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.”

We find that, although the prosecutor’s remarks in the present case constitute an improper resort to personal experience, those remarks did not deny defendant a fair trial before an impartial jury. The trial court twice informed the jury that the statements and arguments made by the attorneys were not to be considered as evidence. We find no merit in this assignment.

For reasons discussed herein, we affirm defendant’s conviction and sentence.

AFFIRMED.