author: | ¿THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Arlene L. MASSEY.
    No. 03-KA-1166.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Gevin P. Grisbaum, Assistant District Attorneys, 24th Judicial District, Parish of Jefferson, Gretna, LA, for Plaintiff/Appel-lee.

      James A. Williams, Butch Wilson, Gret-na, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, CLARENCE E. McMANUS.
   | ¿THOMAS F. DALEY, Judge.

The Jefferson Parish District Attorney-filed a Bill of Information against the defendant, Arlene L. Massey, charging her with possession of cocaine in violation of LSA-R.S. 40:967(C), to which she pled not guilty at arraignment. After a hearing on July 30, 2003, the trial court denied Arlene Massey’s Motion to Suppress Evidence. Arlene Massey subsequently withdrew her former plea of not guilty and pled guilty as charged, reserving her right to appeal the trial court’s ruling on the Motion to Suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

That same day, the trial judge sentenced Arlene Massey to two years of imprisonment at hard labor. However, the judge suspended the sentence and placed Arlene Massey on active probation. The judge also imposed a fine and ordered Arlene Massey to pay a commissioner’s fee of $100.00 plus court costs. This timely appeal follows.

| aAt approximately 6:30 p.m. on November 4, 2002, Sergeant Joe Williams of the Jefferson Parish Sheriffs Office, along with other officers, responded to the 6000 and 6100 block of Field Street in Marrero. Sergeant Williams testified that the officers were responding to complaints from residents regarding individuals selling drugs in that area. When the officers arrived, Sergeant Williams observed three black males and one black female, later identified as the defendant, Arlene Massey. Sergeant Williams testified one of the black men, whom the officer knew from the area, spoke to the black female, who in turn put something in her mouth. Sergeant Williams testified that he “stopped for further investigation,” because in his 21 years experience in narcotics, he believed Arlene Massey may have concealed contraband in her mouth. He approached Arlene Massey and “requested her to extract it from her mouth.” Arlene Massey removed three off-white rocks from her mouth and dropped them to the ground. The rocks field-tested positive for crack-cocaine, whereupon Arlene Massey was arrested.

In denying Arlene Massey’s Motion to Suppress, the trial judge rendered the following oral reasons:

THE COURT:
All right. The area around the 6000, 6100 block of Field Street in Marrero, is notorious for drug activity and other crimes. The residents who live in that area, which is basically behind the McDonald’s and across the street from Teenie’s Bar, which is known, I think, by law enforcement, as well as the rest of the community, as a bar and an area and a corner where extensive drug activities and other crimes have taken place, historically.
There have been attempts to shut the bar down. There have been attempts by McDonald’s to somehow prevent people from congregating in the area, because it’s commonly known what activity is going on in that area.
There have been numerous complaints that have been lodged by the residents, because these are law abiding citizens — 14... there for generations and generations, about the concerns for the activity that takes place in that area. And there have been numerous arrests by narcotics officers in those areas.
So, therefore, when an officer approaches that area, especially acting upon information that they have been supplied at that time, as well as in the past, then they have a reasonable suspicion that the crowds that are hanging out in those areas, outside of the bar, and outside of McDonald’s, or outside of the McDonald’s parking lot, may be engaged in some questionable activity.
I do not find that the defendant was in any way being detained when she was observed to put something in her mouth, and it was requested that she remove the item from her mouth. She was not under arrest. She could have simply walked away. She could have simply walked away, upon being notified by one of the people who recognized Sergeant Williams, that the cops were approaching.
Therefore, I find that there was probable cause, and the motion to suppress is denied.

ASSIGNMENT OF ERROR

The defendant contends that the cocaine should have been suppressed because Sergeant Williams lacked reasonable suspicion of criminal activity when he told Arlene Massey to remove the cocaine from her mouth. According to Arlene Massey, she did not voluntarily expel the cocaine, but did so in response to Sergeant Williams’ “police command.” The State responds that the trial judge properly denied the Motion to Suppress because the cocaine was abandoned when Arlene Massey voluntarily took it out of her mouth and discarded it on the ground.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. An investigatory stop, authorized by LSA-C.Cr.P. art. 215.1 and Terry v. Ohio, must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is something less than probable cause to arrest. Rather, it | ¡^requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion. The reviewing court must consider the totality of the circumstances, according deference to the inferences and deductions of a trained police officer that might elude an untrained person.

In the present case, Arlene Massey contends the police lacked reasonable suspicion to approach her and lacked probable cause to search her, and that the evidence should have been suppressed based on the Louisiana Supreme Court’s decision in State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856. We disagree. We find that the police had reasonable suspicion to make this investigatory stop, based upon the citizen complaints of criminal activity, the area’s reputation as a high crime area, and Arlene Massey’s suspicious action placing something in her mouth. Temple is distinguishable.

In Temple, two New Orleans police officers responded to a call of an attempted burglary. The victim informed the officers that four individuals had attempted to enter her apartment without her permission. The officers canvassed the apartment building and observed four individuals sitting on a porch step. One of the individuals “quickly leaned against the wall” when he saw the officers. Thereafter, the officers decided to interview the individuals. Upon seeing the officers, a woman and the defendant sat down. The defendant handed the woman a white object, which the woman placed in her pocket, and attempted to walk away. The officers “detained” all four individuals at that point. State v. Temple, 854 So.2d at 858. Thereafter, a female officer was summoned to conduct a “pat-down” search of the woman. During the pat-down, the female officer found 60 bags of cocaine and 141 pieces of rock cocaine in the woman’s pocket. The woman said that the defendant had told her to hold the object he had handed her. The defendant was the only person arrested. Id. at 858.

The Temple court concluded that the evidence was unlawfully seized because the police, lacked reasonable suspicion of criminal activity when the defendant and the others were detained and further found that the seizure of the contraband did not fall into the “plain feel” exception of the warrant requirement. Id. at 861-863.

The officers in this case were responding to the specific area where Arlene Massey was located pursuant to a citizen complaint of narcotics activity. Sergeant Williams testified that “[u]pon receiving the complaint, I immediately responded to investigate what was going on in the immediate area.” Further, Sergeant Williams; a 21-year police veteran, described the area as being known for “[h]igh volume narcotics trafficking, prostitution, loitering, gambling....” Sergeant Williams also said that citizens had frequently complained about narcotics in this area.- An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 101-102. Further, the officer testified that he saw Arlene Massey place the object into her mouth upon being told of the officer’s presence by her companion. The officer testified that in his experience, people involved with drugs often place the contraband in their mouths to conceal it.

Although, the circumstances preceding the approach of Sergeant Williams and the other officers are similar to those in Temple, there are other factors that distinguish this case from Temple. As pointed out by the State’s brief; the |7contraband in Temple was discovered after the defendant and his group were detained. In the present case, however, we agree with the trial court that Arlene Massey was not physically detained before the contraband was discovered. The officers approached Arlene Massey and her companions and immediately asked that she produce what she had placed in her mouth, unlike the detention in Temple, where the group had to wait while a female officer was summoned to “pat-down” the woman. Additionally, the female officer removed the contraband from the woman’s person, while in the present case, no officer had any physical contact with Arlene Massey before she produced the contraband from her mouth.

In Martin, supra, this Court held that a police officer made a lawful investigatory stop based upon reasonable suspicion of criminal activity. Earlier that morning, Sergeant Joe Williams of the Jefferson Parish Sheriffs Office had received a complaint from a citizen who stated that several black males were dealing narcotics in and around Ivory Nolan’s lounge at 1322 Pailet Street in Harvey, a high-crime area. Sergeant Williams, Agent Crossen, and several other officers went to the lounge that evening to investigate these complaints. Id. at 100.

Sergeant Williams and Agent Crossen went inside the lounge, while the other officers remained outside. As Agent Cros-sen entered the lounge, he made “eye contact” with the defendant, who regarded the officer with a “surprised” expression and clenched his hand. Agent Crossen started moving toward the defendant with the purpose of further investigation. As he neared the defendant, the officer observed the defendant attempting to place his clenched fist into the right pocket of his pants. Agent Crossen then “took control” of the defendant’s hand and asked the defendant what was in his hand. The defendant told Agent Crossen that he had crack cocaine in his hand. The defendant opened his fist, revealing a clear plastic bag containing several rocks of off-white objects that field-tested positive for the presence of crack cocaine. Id. at 100.

IsThe Martin court found that the citizen’s tip, complaints from citizens in the past, the defendant’s presence in an area known to officers for high-crime and narcotics activity, combined with the defendant’s startled expression, the closing of his hand when he saw the officers, and the defendant’s attempt to place his closed hand into his pocket, provided reasonable suspicion to support the investigatory stop. State v. Martin, 738 So.2d at 102.

This case is similar to Martin. We find that there was reasonable suspicion for an investigatory stop based on the citizen complaint received that day, past complaints from citizens, Arlene Massey’s presence in an area known to officers for high-crime and narcotics activity, and Arlene Massey’s placing an object in her mouth at the sight of police, which in the investigating officer’s experience, was indicative of an attempt to hide contraband.

Even if the police lacked reasonable suspicion to support an investigatory stop, the evidence was lawfully recovered because Arlene Massey was not “seized” within the meaning of the Federal and State Constitutions at the time she dropped it on the ground. As pointed out by the State in its brief, the purpose of the Fourth Amendment is not to eliminate all contact between the police and citizens. See, Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Law enforcement officers enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In Florida v. Bostick, 501 U.S. 429, 484, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), the United States Supreme Court emphasized this point:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is | gconsensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.
Accord, State v. Fisher, 97-1133, p. 5 (La.9/9/98), 720 So.2d 1179, 1183.

A person is “seized” within the meaning of the Fourth Amendment only when that person either submits to the police show of authority or is physically contacted by the police. No bright-line rule exists for distinguishing between investigatory stops, characterized by brief restraint imposed on a lesser showing of reasonable suspicion (Terry stops), from arrests based on probable cause. State v. Cojoe, 2001-2465 (La.10/25/02), 828 So.2d 1101, 1103. But, because the Louisiana Constitution affords a higher standard of individual liberty than the Fourth Amendment, State v. Tucker held a “seizure” also occurs when an “actual stop” of the individual is “imminent.”

Tucker explained that “[i]t is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an ‘actual stop’ of the individual is ‘imminent.’ ” Id. at 712. (Emphasis in the original). Factors to consider in determining whether an actual stop is imminent, which this Court enumerated in State v. Riggins, 97-1194 (La.App. 5 Cir. 8/25/98), 718 So.2d 569, 571, writ denied, 98-2520 (La.1/15/99), 736 So.2d 206, are:

1. The proximity of the police in relation to the defendant at the outset of the encounter;
2. Whether the individual has been surrounded by the police;
3. Whether the police approached the individual with their weapons drawn;
4. Whether the police and/or the individual are on foot or in motorized vehicles during the encounter;
'5. The location and characteristics'of the area where the encounter takes place;
|in6. The number of police officers involved in the encounter.

We find that a consideration of the factors in Riggins shows that there was no seizure or imminent stop in this case. The Louisiana Supreme Court has reversed cases where the lower courts held that an actual imminent stop, occurred before the defendant discarded contraband. In State v. Johnson, 01-2436 (La.1/25/02), 806 So.2d 647, the trial court held that an actual imminent stop had occurred when two police officers in an unmarked car pulled up four feet from where the defendant was standing. In concluding that an actual stop was not imminent, the Johnson court focused on the fact that the officers had not “attempted to assert any official authority over him by ordering or signaling him to stop” before he threw down the contraband. State v. Johnson, 806 So.2d at 648. See also: State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124, which held that an actual stop was not imminent when defendant dropped crack cocaine as two officers exited their unmarked police car, approached defendant, and identified themselves as the police. In both cases, the Supreme Court recognized that tips by informants prompted the officers to approach the defendant with the subjective intent to stop the defendant, but nonetheless held that an actual stop was not imminent. State v. Johnson, 806 So.2d at 647-648; State v. Jackson, 824 So.2d at 1125-26.

While the record in the present case does not reveal the precise number of officers involved, nothing in the record indicates that the police came upon Arlene Massey with such force that an actual stop was virtually certain. Thus, it does not appear that an actual stop was imminent before Arlene Massey discarded the contraband.

We likewise find that a seizure of Arlene Massey was not caused by a “show of authority” that triggered the abandonment. The test for such a seizure is an Inobjective one, and it is whether the officer’s words and actions would have conveyed to a reasonable person that he was being ordered to restrict his movement. Hodari D., 499 U.S. at 628, 111 S.Ct. at 1551, citing Mendenhall. The critical issue in the present case is whether a police officer’s request to remove an object from one’s mouth is a show of authority that would cause a reasonable person to believe that she is not free to disregard the request and walk away. In State v. Duplessis, 391 So.2d 1116 (La.1980), the Louisiana Supreme Court held that the defendant’s constitutional rights were not violated when the defendant handed a leather pouch containing a gun to the police in response to the officer’s asking “What’s in the bag?” In affirming the defendant’s conviction, the Louisiana Supreme Court recognized that the discovery of the gun was the result of the defendant’s voluntary cooperation, rather than any unlawful police conduct. The Duplessis court emphasized that the police may lawfully seize evidence that is discovered as a result of a person’s voluntary actions:

We reiterate that no one is required to stop or to answer questions posed by police under circumstances in which the Fourth Amendment protections are operative. However, when one who is suspected of a crime voluntarily complies with a police request, to his own detriment, he cannot reclaim the rights which he has waived.

State v. Duplessis, 391 So.2d at 1118.

In United States v. Mendenhall, the Supreme Court held that the defendant was not seized within the meaning of the Fourth Amendment when agents approached her in an airport, asked her if she would show them her ticket and identification, and posed her a few questions. According to the Mendenhall court, “[s]uch conduct without more, did not amount to an intrusion upon any constitutionally protected interest.” Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877.

Mendenhall also discussed situations that might indicate a seizure within the meaning of the Fourth Amendment:

1 ^Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877.

The facts of the present case are similar to Duplessis and Mendenhall in that the police approached and addressed Arlene Massey. The record does not reflect that the officers had their guns drawn or that Arlene Massey was physically contacted by the police before Sergeant Williams addressed her. When property is abandoned before any unlawful intrusion into a citizen’s right of freedom from governmental interference, it may be lawfully seized by the police. State v. Belton, 441 So.2d at 1199.

We conclude that the officers had reasonable suspicion to conduct this investigatory stop. Further, we find that Arlene Massey was not seized -within the meaning of the Federal and State Constitutions when she removed the contraband from her mouth and discarded it. The trial judge properly denied the Motion to Suppress.

AFFIRMED.

      . The record does not clearly reflect the number of police officers who responded. Sergeant Williams refers to the officers as “we,” and referred to other officers on the scene, but he only names one of the officers, Agent Blanche. Accordingly, it is unclear whether there were more than two officers involved.

      . State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . State v. Belton, 441 So.2d at 1198; State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . State v. Belton supra.

      . State v. Huntley, 97-965 (La.3/13/98), 708 So.2d 1048, 1049.

      . In addition to the original two responding officers, a third officer also approached the group.

      . It is noted that the Martin court concluded that the evidence was discovered after Agent Crossen lawfully immobilized the defendant’s hand for the officer's safety. State v. Martin, 738 So.2d at 104.

      . California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Accord, State v. Tucker, 626 So.2d 707, 712 (La.1993), opinion reinstated on reh'g, 626 So.2d 720 (La.1993).


source: Caselaw Access Project

author: J^SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rendell F. WASHINGTON.
    No. 03-KA-1135.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Appellant, Rendell F. Washington.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Churita Hansell, Trial Counsel, Andrea F. Long, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Rendell F. Washington, Pine Prairie, LA, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J^SUSAN M. CHEHARDY, Judge.

On November 6, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rendell Washington, with possession with the intent to distribute marijuana within' 1,000 feet of Kenner Drug Free Zone #11, in violation of La. R.S. 40:981.3. Defendant pled not guilty and filed several pre-trial motions.

After a two-day trial that commenced on September 23, 2002,. defendant was unanimously found guilty as charged by twelve-person jury. On January 10, 2003, the trial judge sentenced defendant to eight years at hard labor and imposed a $50,000 fine.

On April 28, 2003, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. After a multiple bill hearing on April 30, 2003, the trial court found that the State had proven that defendant was a second felony offender. The trial judge vacated defendant’s original sentence for his underlying felony drug conviction and imposed an enhanced sentence of 22]/¿ Dyears without the benefit of probation or suspension of sentence. Defendant filed a timely motion for appeal.

Facts

On September 25, 2001, Detective Reynaldo Suarez of the Kenner Police Department was on patrol with his partner, Detective Sandino, in a high crime area in Kenner when they observed a black male on the corner of 27th Street and Panama flagging down vehicles. The detectives parked their unmarked police car about one block away and conducted surveillance.

During surveillance, Detective Suarez saw the man flag down a couple of vehicles. The man also walked. toward the middle of the block of 27th Street to meet another mam The two men engaged in a quick conversation. Detective Suarez then observed a hand-to-hand transaction between the men. Specifically, Detective Suarez saw the first man remove something from his left front pocket and hand it to the second man. Although Detective Suarez did not see what was exchanged, he believed the men exchanged money.

The detectives decided to approach the two men. When they did, the men ran in opposite directions. Detective Suarez chased the first suspect. As Detective Suarez was chasing his suspect, the man slowed down as he was reaching into his pocket. When the suspect slowed down, Detective Suarez caught him immediately after he discarded a clear plastic bag containing five smaller bags of marijuana. Detective Suarez subdued the suspect, later identified as the defendant. Detective Suarez also- retrieved the bag. When defendant was searched incident to his arrest, Detective Suarez found that defendant was holding a crumpled ten dollar bill in his right hand. No drug paraphernalia was found on defendant at the time of his arrest.

|4At trial, defendant testified that, on the evening in question, he borrowed his mother’s jeep to go to the store. On his way to the store, he stopped and talked to his friend, Terrell Hines. Defendant stated Hines had just given him two dollars to purchase a drink for him from the store when the police approached defendant’s vehicle. Washington’s mother and Hines corroborated these events. Defendant also testified that he ran from the police because he was driving on a suspended license and had an outstanding warrant for his arrest. He denied ever having or throwing down the marijuana.

In his first counseled assignment of error, defendant contends that the evidence was insufficient to support his conviction for possession of marijuana with the intent to distribute. He claims that the State failed to prove he had the specific intent to distribute the marijuana. He asserts there was no evidence that the amount of marijuana found was inconsistent with personal use.

The constitutional standard for sufficiency of the evidence 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When circumstantial evidence is involved, the evidence must exclude every reasonable hypothesis of innocence. LA. R.S. 15:438; State v. Gilbert, 02-922 (La.App. 5 Cir. 1/28/03), 839 So.2d 250, 253. The reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events” but rather 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. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (U.S.La.10/31/94).

|sThe 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); 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. We note that, on appeal, defendant 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. 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. State v. Kelly, 800 So.2d at 982. 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. Id. Mere possession of a drug does not evidence intent to distribute absent circumstances from which intent to distribute may be inferred unless the quantity is so large that no other inference is possible. State, v. Hearold, 603 So.2d 731, 735-736 (La.1992).

In the present case, defendant was observed discarding a clear plastic bag that contained five smaller bags of marijuana totaling 16.1 grams. Detective Blane Don-novan, an expert in the packaging, distribution and handling of narcotics, testified that the packaging of the marijuana was consistent .with distribution. He | ^explained that the five bags were “dime” bags and sold for ten dollars each on the street.

Detective Donnovan further stated that the lack of drug paraphernalia found on defendant evidenced his intent to distribute it rather than use it for personal consumption. He explained that the marijuana is smoked using a pipe or rolling papers. He testified the fact defendant did not have a pipe or rolling papers in his possession indicated defendant did not intend to smoke the marijuana himself.

Detective ■ Donnovan further noted that the area where the offense occurred was a high crime area. Detective Donnovan opined that the fact that defendant fled, discarded the marijuana when the police tried to stop him, and had ten dollars in his right hand when he was stopped indicate that the hand-to-hand transaction, which the police officers observed, was for “that ten dollar bill and one of these bags.” Although Detective Donnovan stated on cross-examination that it was not inconceivable that someone could buy five ten-dollar bags for his own use, he stated that, based on the factors present in the case, there was no doubt in his mind that the marijuana was for distribution.

Reviewing the factors from State v. Kelly, 800 So.2d at 982, which give rise to a reasonable inference that a defendant had the specific intent to distribute, the record reflects that a majority of the factors are present. Regarding the first factor, defendant testified that he had a prior conviction for distribution of cocaine. Regarding the . second factor, Detective Donnovan testified the marijuana was packaged in a form, “dime” bags, consistent with distribution. In support of the third and fourth factors, although Detective Donnovan stated it was not inconceivable the 16.1 grams of marijuana could be used by one person, he concluded, based on other existing facts, that defendant did not intend to personally consume the marijuana. Finally, Detective Donnovan further cited a lack of a pipe or rolling papers to show defendant did not intend to personally 17consume the marijuana. We conclude that the facts of this case support the inference that defendant had specific intent to distribute the marijuana. Furthermore, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that the State proved all of the essential elements of the crime of possession with intent to distribute marijuana beyond a reasonable doubt. Cf. State v. Gilbert, 02-922 (La.App. 5 Cir. 1/28/03), 839 So.2d 250, 256. We find that this assignment lacks merit.

In his second counseled assignment of error, defendant argues that the trial court erred in denying the motion for mistrial on the grounds that the prosecutor asked Mr. Washington about prior arrests. Defendant specifically argues that the State improperly asked him about prior arrests as opposed to prior convictions. He contends that he was prejudiced by the State’s question because he was forced to admit he had a prior arrest for the same charge for which he was presently on trial. The State responds, as the prosecutor did at trial, that defense counsel opened the door to questions regarding defendant’s prior arrests when counsel asked defendant, on direct examination, if he had ever been incarcerated. The State further claims even if the questions regarding defendant’s prior arrests were improper, they constituted harmless error.

At trial, defendant testified in his own defense. In explaining the events leading up to his arrest and why he ran from the police, defendant testified he had been incarcerated on a drug conviction and had been released in 2000. Defense counsel followed up by asking, “For what crimes were you incarcerated?” Defendant replied that he sold crack cocaine to an undercover officer. Defense counsel then asked defendant whether he had pled guilty to simple escape and possession of stolen property when he pled guilty to distribution of crack cocaine and defendant responded affirmatively. Defendant then stated that he served “13 months in Cot-tonport and was released on parole for 18 months.”

|ROn cross-examination, the prosecutor asked defendant, “Were you ever incarcerated for distribution of marijuana?” Then, the following exchange occurred:

Defendant: No, ma’am.
Prosecutor: Never. Not in 1996?
Defendant: I never was incarcerated for it. They had brung [sic] me to jail for marijuana.
Prosecutor: So, they arrested you for marijuana in 96, you recall this?
Defendant: Uh-huh.
Prosecutor: Any other arrests for marijuana or any other drugs?

At that point, defense counsel objected. The prosecutor argued defendant opened the door by talking about his arrests and convictions on direct examination. Without formally ruling on the objection, the trial court stated defense counsel only inquired into defendant’s convictions. The prosecutor resumed questioning by asking defendant about his convictions. Thereafter, the prosecutor again asked, “When were you arrested for distribution of marijuana?” Defendant replied he did not have any marijuana. The prosecutor then proceeded to question defendant on unrelated matters.

At the conclusion of defendant’s testimony and outside the presence of the jury, the parties had additional discussions regarding the prosecutor’s inquiries into defendant’s prior arrest. Defense counsel made a formal motion for a mistrial on the basis the State elicited testimony from the defendant regarding whether he had been incarcerated for distribution of marijuana. The prosecutor argued that defense counsel had opened the door to the question by asking defendant on direct examination about the crimes for which he had been incarcerated. Defense counsel stated he intended his question to refer to defendant’s incarceration in Cottonport. 1 flDefense counsel explained his question immediately followed defendant’s testimony about being incarcerated in Cottonport.

The trial court ordered the court reporter to play back portions of defendant’s testimony. After listening to the tape, the trial court denied defendant’s motion for a mistrial finding defense counsel specifically asked defendant, “for what crimes were you incarcerated?” The trial court concluded defense counsel did not limit his question to defendant’s convictions relating to his time in Cottonport and, therefore, opened the door for the State to question defendant regarding any incarceration whether it was for an arrest or a conviction.

Every testifying witness in a criminal case, including the defendant, subjects himself to limited examination relative to his criminal convictions. La. C.E. art. 609.1(A). Generally, evidence of arrests for which there has not been a conviction is not admissible upon the issue of credibility. La. C.E. art. 609.1(B); State v. Johnson, 94-1879 (La.11/27/95), 664 So.2d 94, 99.

La.C.Cr.P. art. 770 provides that a mistrial shall be ordered when the district attorney makes a remark or comment within the hearing of the jury referring directly or indirectly to “[a]nother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible!/]” The introduction of inadmissible other crimes evidence is subject to a harmless error analysis. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102.

It is well recognized that when one side has partially gone into a matter during its direct examination, the other side may fully go into it on cross-examination. State v. Edwards, 420 So.2d 663, 675 (La.1982). Any doubt as to the propriety or extent of cross-examination is resolved in favor of the cross-examination. State v. Edwards, 420 So.2d at 675.

The issue in the present case is whether inquiring into crimes for which a defendant has been incarcerated opens the door to a defendant’s arrest record. In State v. Cotten, 438 So.2d 1156, 1162 (La.App. 1 Cir.1983), writ denied, 444 So.2d 606 (La.1984), our brethren on the First Circuit found no error when the prosecution asked defendant questions about his prior arrests. The court acknowledged that references to an arrest, even for impeachment purposes, was impermissible and generally required a mistrial.

However, in finding no error, the court reasoned that defendant “opened up” the issue of his arrest record when defense counsel questioned defendant on direct examination about his previous arrest record. Defendant had denied on direct examination that he had ever been arrested. On cross-examination, defendant admitted had been arrested for driving without a license and use of an unauthorized movable vehicle. The court stated that the prosecution is “not precluded from contradicting the defendant’s testimony given on direct examination upon an issue which the defendant himself has brought into the case.” Id. at 1163. Additionally, in State v. Betancourt, 351 So.2d 1187 (La.1977), the Louisiana Supreme Court found no error when the defendant was cross-examined about prior arrests to impeach his testimony on direct that he had never “been in any kind of trouble with the law” in his life.

To the contrary, in State v. Jackson, 98-277 (La.App. 3 Cir. 2/3/99), 734 So.2d 658, our brethren on the Third Circuit found error when the State asked about the defendant’s arrests on re-direct examination of a police officer even h though defense counsel asked the police officer on cross-examination whether he had ever arrested defendant. The trial court ruled the defendant had “opened the door” to the issue. In reversing, the appellate court noted that the jurisprudence reviewing other crimes evidence being admitted after a defendant “opens the door” has produced separate lines of decision with inconsistent results.

The Third Circuit, citing State v. Smith, 418 So.2d 534 (La.1982), stated, “[t]he courts of this state have time and again refused to allow prosecutors to exploit a defense counsel’s inattention, omission, or mistake by making repeated and persistent prejudicial comments and references about inadmissible evidence of other crimes of the defendant.” State v. Jackson, 734 So.2d at 663. The Third Circuit determined the error in allowing details of a prior arrest began with a mistake by the defense counsel and was compounded by the State’s decision to exploit the error. Considering the evidence, the court found that the error in allowing the State to introduce other crimes evidence of a similar offense to what defendant was currently charged was not harmless error.

In the present case, it is questionable whether defense counsel opened the door for the State to inquire into defendant’s arrests. Defense counsel asked defendant, “[f]or what crimes were you incarcerated?” Defendant replied he had sold crack cocaine to an undercover officer and, at the same time, had pled guilty to simple escape and possession of stolen property.

When read in context, it appears defense counsel was asking defendant about the crimes for which he was incarcerated in Cottonport. The question follows a lengthy explanation by defendant about what happened on the day the incident occurred, during which defendant stated he had previously been “incarcerated for drugs” in Cottonport. Furthermore, the word “incarcerated” generally implies more than a mere arrest. There was no indication defendant was held in jail after his 1996 arrest for distribution of marijuana. Defendant’s initial |1aanswer to the State’s question about whether he had been incarcerated in 1996 for distribution of marijuana demonstrates he understood “incarcerated” to mean something more than an arrest. Defendant admitted he was brought to jail but was never incarcerated for the charge.

Unlike Cotten, defense counsel in the present case did not ask defendant about his arrest record on direct examination. And, unlike Betancourt, defendant in the instant case had not denied any prior criminal activity. In fact, he admitted several past convictions.

Considering the context in which defense counsel asked defendant about the crimes for which he was incarcerated, we do not agree that defense counsel opened the door for the State to ask defendant about his arrest. Thus, we find that the State’s questions into defendant’s arrest appear improper.

As stated above, inadmissible other crimes evidence which is disclosed to the jury is subject to a harmless error analysis. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102. An error is harmless when the guilty verdict actually rendered was surely unattributable to the error. Id. at 100.

In State v. Johnson, defendant was convicted of attempted second degree murder and aggravated burglary. On cross-examination, the defendant admitted several prior convictions, including one for simple burglary. Defendant denied any other convictions for burglary. The State then presented certified court minutes and six bills of information showing defendant had been charged with six counts of simple burglary and had pled guilty to five of the charges.

On appeal, the Court noted that defendant pled not guilty to one of the six charges and, thus, that charge constituted inadmissible other crimes evidence beyond the scope of La. C.E. art. 609.1. Additionally, the appellate court noted defendant pled guilty to one charge and the other five simple burglary charges were nolle prosequied by the State. The appellate court, therefore, reversed | ^defendant’s conviction on the basis evidence of the simple burglary charges, with the exception of the charge to which defendant admitted he pled guilty, were not evidence of prior convictions and were erroneously admitted.

The Louisiana Supreme Court applied a harmless error analysis and found the erroneous admission of the evidence showing defendant had been previously charged with five counts of simple burglary was harmless. In so concluding, the supreme court reviewed the evidence and noted defendant’s criminal history, consisting of several prior convictions including one for simple burglary, was known to the jury.

In the present case, we find that the State’s improper questions regarding defendant’s prior arrest were harmless. Here, defendant admitted having a conviction for selling cocaine. Thus, like Johnson, the jury was aware of defendant’s criminal history of selling drugs. We conclude that the additional evidence of a prior arrest for distribution of marijuana could not have further prejudiced defendant.

Moreover, we find that the verdict was not attributable to the State’s questions regarding defendant’s prior arrest for the same offense. In particular, the State presented evidence that the defendant was observed in a hand-to-hand transaction in an area that had received numerous complaints of narcotics activity. Defendant fled when approached by the police and discarded five “dime” bags of marijuana. Further, defendant was found with a ten dollar bill in his right hand which, according to the State’s expert, is consistent with selling one $10 bag of marijuana. Also, defendant did not have a pipe or rolling papers to indicate that the marijuana was for his personal consumption. Based on the foregoing, we find that this assignment of error lacks merit.

In his third assignment of error, which was submitted pro se, defendant argues that he was denied his right to the effective assistance of counsel as | ^guaranteed by both the Sixth Amendment to the United States Constitution and Article 1, Sec. 13, of the Louisiana Constitution. He first claims he received ineffective assistance of counsel because his trial counsel failed to object to the lack of a hearing or ruling on defendant’s motion to suppress the evidence. Defendant contends if his trial counsel had forced á hearing on the motion to suppress evidence, he would have learned only one of the five bags of marijuana was actually analyzed and that the State’s expert did not know what was in the other four bags. Defendant asserts trial counsel was further ineffective for failing to object to admission of the four bags which were not tested for marijuana. He maintains if his trial counsel had objected to the admission of the four untested bags, he would have been in a better position to argue simple possession as opposed to distribution of marijuana. Defendant also alleges trial counsel was ineffective for failing to object to the admission of the bags of marijuana because the State failed to establish the chain of custody of the evidence. Defendant next argues he received ineffective assistance of counsel because his trial counsel failed to investigate the case. Defendant alleges his counsel presented a lackluster defense that was contradicted by circumstantial evidence that counsel did not know existed because he failed to investigate. Defendant contends trial counsel failed to consult with him or his two witnesses before calling them to testify. Defendant maintains his counsel did not know he had a criminal past consisting of a prior conviction for distribution of drugs. Thus, defendant asserts trial counsel failed to advise defendant of the dangers in testifying. Defendant also questions trial counsel’s tactic in calling the police officer, who chased the other suspect, to testify when the State did not even call him.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In order to show ineffective assistance of counsel, the 11fidefendant must demonstrate that 1) his attorney’s performance was deficient, and 2) he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. An error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2064. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. at 2068.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied 98-1032 (La.9/18/98), 724 So.2d 753. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LA.C.Cr.P. arts. 924-930.8. State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095, writ denied 98-0673 (La.8/28/98), 723 So.2d 416.

In State v. Watson, 00-1580 (La.5/14/02), 817 So.2d 81, 83-84, the Louisiana Supreme Court found the appellate court erred in addressing defendant’s claim of ineffective assistance of counsel on appeal and referred defendant’s claim to post-conviction proceedings. The supreme court explained the limited testimony at trial did not provide enough evidence to fully explore defendant’s | ^ineffective assistance of counsel claim. In Watson, defendant claimed he received ineffective assistance when his trial counsel failed to file a motion to suppress evidence and failed to object to the introduction of the evidence, an aluminum foil packet, at trial. The appellate court determined the evidence was illegally seized and that defendant’s trial counsel was ineffective for failing to file a motion to suppress. The appellate court vacated defendant’s conviction and sentence which were subsequently reinstated by the Louisiana Supreme Court before the matter was relegated to post-conviction relief. See also, State v. Lipscomb, 00-2836 (La.1/25/02), 807 So.2d 218(the issue of ineffective assistance of counsel claim relating to a trial counsel’s failure to file a motion to suppress was more properly addressed in an application for post-conviction relief).

Additionally, in State v. Jordon, 98-823 (La.App. 5 Cir. 3/10/99), 732 So.2d 569, 573, writ denied, 99-998 (La.9/17/99), 747 So.2d 1098, this -Court refused to address defendant’s ineffective assistance of counsel claim on appeal on the basis the record did not contain any information to support defendant’s allegations. This Court determined defendant’s claim for ineffective assistance of counsel was better addressed in post-conviction relief, which allows for' a full evidentiary hearing thereby creating an adequate record for appellate review.

Based on Watson and Jordon, we decline to address defendant’s claim on appeal. This assignment of error is more properly addressed in post-conviction relief proceedings where defendant may have an opportunity to have an evidentiary hearing on his claims of ineffective assistance of counsel.

Finally, according to La. C.Cr.P. art. 920, we have reviewed the record errors patent and found the following errors, which require remediation. First, both the original commitment- and the multiple offender commitment show defendant was |17advised of the two-year prescriptive period for post-conviction relief pursuant to La.C.Cr.P. art. 930.8. Neither sentencing transcript reflects that defendant was advised of prescriptive period for La.C.Cr.P. art. 930.8. Generally, where there is a discrepancy between the transcript and commitment, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter with instructions that the -trial court inform that 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. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writ denied, 03-0200 (La.10/10/03), 855 So.2d 326.

Second, as noted by the State, the defendant received an illegally lenient sentence. When a defendant is sentenced as a habitual offender, “the penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Fletcher, 03-60 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222.

A defendant convicted of the underlying offense, possession with intent to distribute marijuana within 1000 feet of a drug free zone, is subjected to the maximum fine authorized by La. R.S. 40:966, which is $50,000.00. Further, La. R.S. 40:966(B)(2) requires that “at least five years” of the, sentence for a person convicted under that provision shall be served without benefit of parole, probation, or suspension of sentence.

In its appellee brief, the State notes that the trial court failed to impose the mandatory fine and failed to deny parole eligibility for a portion of defendant’s enhanced sentence. First, we note that the State failed to object to defendant’s illegally lenient sentence in the trial court. Further, while we have the authority to correct an illegally lenient sentence despite the failure of either party to raise the hsissue in the district court or even on appeal, pursuant .to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La. C.Cr.P. art. 882, our authority is permissive rather than mandatory. In this case, we will refrain from amending defendant’s sentence to impose the $50,000 fine. State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609, 614. Finally, we note that the statutory requirement that five years of defendant’s sentence be served without the benefit of parole, probation or suspension of sentence is self-activating under State v. Williams. See, State v. Jerome, 03-126 (La.App. 5 Cir. 4/29/03), 845 So.2d 1194, 1199.

AFFIRMED; REMANDED.

      . The record does not reflect that' the trial court ruled on defendants pre-trial motions; however, defendant waived this defect by proceeding to trial without objection. See, State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La.10/10/03), 855 So.2d 334. Defendant raises the lack of rulings as a pro se assignment of error.

      . On January 10, 13, and 24, 2003, defendant filed motions for appeal, which were all granted. Those motions were premature because they were filed after conviction and sentence,' but before the sentence as a multiple offender. However, this procedural defect was cured by the subsequent re-sentence. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354. After his multiple offender sentencing, defendant also filed a fourth motion for appeal on May 2, 2003.

      . State v. Cotten, supra, was decided when La. R.S. 15:495 was still in effect. La. R.S. 15:495 was repealed on January 1, 1989 when the Louisiana Code of Evidence went into effect. See, State v. Tolbert, 03-0330 (La.6/27/03), 849 So.2d 32, 35, fn. 2. Like La. C.E. art 609.1, repealed La. R.S. 15:495 prohibited the questioning of a witness concerning arrests.
      Repealed La. R.S. 15:495 provided:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

      . La. R.S. 40:981.3(E)

      . Defendant’s original sentence, which was vacated after he was found to be a multiple offender, was imposed with a fine of $50,000.00.


text:
    STATE of Louisiana v. Laura EUGENE.
    No. 03-KA-1128.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, Edgard, LA, for Plaintiff-Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   [¡.EDWARD A. DUFRESNE, JR., Chief Judge.

On October 18, 2000, the St. John the Baptist Parish Grand Jury issued a bill of indictment charging defendant, Laura Eugene, with second degree murder, a violation of LSA-R.S. 14:30.1. At the arraignment held on October 19, 2000, defendant pled not guilty.

On June 21, 2001, defendant filed a motion for mental examination, appointment of a sanity commission, and stay of prosecution. The trial judge appointed a sanity commission and thereafter conducted a competency hearing. After considering the reports of the doctors, the court found defendant incompetent to proceed to trial. Subsequently, in December of 2002, the court determined that defendant had regained competency to proceed to trial.

The matter proceeded to trial before a twelve person jury on January 14, 15 and 16, 2003. At the conclusion of trial, the jury returned a verdict of guilty as charged. Defendant filed a motion for new trial on January 24, 2003, which the judge denied. On February 10, 2003, the trial court sentenced defendant to a mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

\ .FACTS

At 1:00 a.m. on September 4, 2000, Fa-briel Anderson and Veronica Nicholson were riding to Ms. Nicholson’s home on Homewood Drive in Reserve. They had come from a Laplace nightclub called Wee-gie’s. One of Ms. Nicholson’s neighbors, Laura Eugene (defendant) flagged them down in front of 188 Homewood and asked them to help her. She said a car had fallen on her boyfriend. Ms. Nicholson testified that she had seen Ms. Eugene and her boyfriend earlier at Weegie’s. Ms. Nicholson was not inclined to stop at defendant’s house; she knew defendant and her companion often quarreled. Nevertheless, the women stopped to investigate.

Ms. Nicholson tried to call police on her cellular telephone. Ms. Anderson approached a car parked on the lawn, and did not see anyone under or near the vehicle. She did see defendant’s boyfriend, David John Fluence, lying face down in the open doorway of the residence. The house was in disarray. Furniture and other items had been turned over, and a leg was missing from a table. A broken broomstick was lying near Mr. Fluence. Ms. Nicholson approached the house. Defendant told her that a car had fallen on Mr. Fluence. Ms. Nicholson asked how that could be, since Mr. Fluence was lying inside the house. Defendant said she did not know. Defendant later said an unknown person ran into the house, stabbed defendant, and escaped. Ms. Nicholson testified she did not see a knife at the scene.

Ms. Anderson and Ms. Nicholson helped defendant to turn Mr. Fluence onto his back. Ms. Nicholson testified that she saw a small amount of blood on Mr. Fluence and on the floor. Ms. Nicholson started chest compressions on Mr. Fluence, and asked defendant to breath into his mouth. Defendant walked around the house picking up items as if she were cleaning. Defendant eventually helped 14Ms. Nicholson perform CPR on Mr. Fluence. Ms. Nicholson showed defendant how to do it properly, but defendant failed to follow her direction. Eventually Mr. Fluence started to breathe.

Deputy Scott Maillet of the St. John the Baptist Parish Sheriffs Office testified that he was the first officer to arrive at the scene. He saw David Fluence lying in the doorway. He called for medical assistance, and emergency medical personnel arrived shortly thereafter to transport the victim to a hospital.

Detective Todd Hymel testified that he arrived at the scene at 1:84 a.m. He observed smeared blood on the door’s threshold, and a few drops of blood outside the door on a small concrete walkway. He learned defendant was a resident of the house. He looked around the interior of the house, and did not see anyone else there. He advised defendant of her rights, and told her he wished to speak to her about what had happened. She responded that she understood her rights, and was willing to waiye them and answer Hymel’s questions without the assistance of a lawyer.

Defendant told the detective that she and Mr. Fluence returned home from an evening at Weegie’s. When Mr. Fluence got to the door, he told her he had been stabbed at the bar. He then collapsed. Detective Hymel testified that Weegie’s is approximately five miles away from defendant’s home.

The detective decided to question Ms. Anderson, Ms. Nicholson and defendant at his office. Sergeant Gary Cooper transported defendant to the Criminal Investigations Division of the sheriffs office. She had not been placed under arrest, nor was she handcuffed.

Detective Hymel placed the two witnesses and defendant each in a separate interview room. He questioned Ms. Anderson and Ms. Nicholson individually. He met with defendant alone at 3:14 a.m. By then, the detective knew that David Fluence had died. Hymel executed a waiver of rights form with defendant and 1 ^thereafter took a taped statement which was admitted into evidence and played for the jury. In this statement, defendant told the officer that she and Fluence got into an argument when she accused him of cheating on her. According to defendant, Fluence broke a broom stick, slapped her face, and threw her into a chair. She then went into another room and armed herself with a knife to scare Fluence. During the course of the altercation, her hand slipped, and the knife went into Fluence.

Sergeant Michael Davis, a crime scene technician with the St. John the Baptist Parish Sheriffs Office, testified that he collected all the evidence at the scene. He found a Gerber black-handled knife with a three-quarter inch blade inside a purse. The purse was located in a bedroom closet. Sergeant Davis also found broken pieces of a broomstick in that closet.

Dr. Susan Garcia, an expert in forensic pathology, performed an autopsy on David Fluence’s body. She testified that, in her opinion, the injury that led to Mr. Fluence’s death was a single stab wound to the chest. Her examination showed that the knife went through part of the cartilage adjacent to the sternum. It entered the heart and caused bleeding into the sac that encloses the heart. Dr. Garcia surmised that the knife went four to five inches into the heart. Toxicology tests showed the victim’s blood alcohol level measured .18, which is considered legally intoxicated under Louisiana’s driving laws. The victim had a superficial cut above his right eyebrow and a small abrasion on the back of his right elbow.

Sharon Eugene, defendant’s sister, testified for the defense. Ms. Eugene testified that three of defendant’s five children were inside defendant’s house at the time of the incident. She arrived at the scene shortly after 1:00 a.m., and saw Mr. Fluence lying in the doorway. She told Detective Hymel that she wanted to go into the house to retrieve the boys. He allowed her to do so.

IrMs. Eugene testified that defendant and Mr. Fluenee fought a great deal, although she did not know what they fought about. When they fought, the children would go to her house. Ms. Eugene testified that she had had occasion to call police to defendant’s house in the past.

Dwayne Eugene Kennedy, defendant’s thirteen-year-old son, testified that, at the time of the incident, he was in his bedroom in the Homewood Drive house. He heard defendant and Mr. Fluenee arguing in the living room over a woman Fluenee was secretly seeing. He got out of bed to use the bathroom, and heard Mr. Fluenee push defendant against a wall. Dwayne testified that he had seen Mr. Fluenee hit his mother on several occasions.

Dwayne saw defendant get a knife out of the kitchen and cut Mr. Fluence’s face with it. He testified that he saw defendant holding a broom at one point. Dwayne looked again to see defendant holding the knife. Fluenee did not have anything in his hand. Mr. Fluenee ran at defendant. He did not see defendant actually stab Mr. Fluenee, but he did see Fluence lying on the floor. Dwayne testified that police officers did not question him.

Brandon Jones, defendant’s fourteen-year-old son, testified that, in the early morning hours of September 4, 2000, defendant and Fluenee returned home after having been out together. The two began to argue. Brandon testified that defendant and Mr. Fluenee fought constantly, and that defendant often asked Fluenee to leave the house. Mr. Fluenee always returned. Brandon testified that Mr. Fluence pushed defendant into walls, and slammed her into the living room table: Defendant retrieved a knife from the kitchen. Mr. Fluenee hit her again. Brandon testified that he watched the altercation from the doorway of his bedroom. He could see the hallway, but not the living room. He testified that he did not see defendant stab Mr. Fluenee, but he saw Mr. Fluenee lying in the living room, face down. Brandon testified that he saw Mr. Fluenee hit defendant with a broom 17during the course of the fight. Brandon stated he was in his room when police arrived, and they did not question him.'

Defendant testified on her own behalf at trial. She stated that, on the evening of the incident, Mr. Fluenee left her house at 5:00 p.m. He told defendant he was going to deliver some clothes to defendant’s brother, Donald. Donald arrived at her house at 6:30 p.m. to ask where his clothes were, so she knew Fluenee had lied to her about where he' was going. Defendant testified that she left her house at 8:45 p.m., and went to Weegie’s with her sister, Sharon, and Sharon’s husband. She left three of her children at home with a babysitter. The other two were sleeping elsewhere.

Mr. Fluenee arrived at Weegie’s at 12:30 a.m. He and defendant left there together. Defendant testified that Mr. Fluenee had been drinking, and he started an argument. He continued to yell at her when they got home. Defendant prepared herself to go to bed, and still defendant yelled at her. She left the bedroom, and defendant followed. He went into the kitchen and broke a broomstick. He slammed her onto the living room table and started choking her. She was unable to breathe. Defendant testified that she was able to free herself from Fluence’s grasp, and she went to the kitchen for a knife. Fluence ran towards her, and as a result, ran into the knife. He fell to the floor, then got up and went to the children’s room. He then turned and walked back along the hallway. He fell towards the door.' Defendant attempted to summon help.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assigned error, defendant argues that the trial judge erred in failing to declare a mistrial when the jury informed him that it was deadlocked and could not reach a verdict. She complains-that the court instead gave, the jurors an improper instruction and insisted that they continue to deliberate.

|sThe record shows that the jury began its deliberations at 2:35 p.m. on January 16, 2003. At 3:05 p.m., the jury sent the judge a written request for the tape of defendant’s recorded police statement. The judge denied the request on grounds that the law prohibits jurors from examining such evidence during deliberations.

At 5:55 p.m., the jury sent the judge a second written note. The jury advised the court that it was deadlocked, and requested the court’s guidance as to how to. proceed. The judge stated:

The note tells me that the jury is right now deadlocked and that they are simply in need of guidance. Our proposition is that I will instruct them that in light of the effort that has gone onto the matter so far they must reapply themselves and deliberate a little harder and a little longer with an eye to reaching a just verdict. And I think I’m going to reread them a very, very short excerpt from our instructions, hoping that that will have some effect, hoping however slight....

When the judge asked the attorneys whether there was anything they wished to add, defendant’s counsel responded, ‘Tour Honor, I think you’re taking the right approach.” The judge had the jury brought into the courtroom and made the following comments:

In light of your note asking for a bit of guidance, I’m not going to tax you too much or insult you by reading to you a great deal, but I’m going to read you two paragraphs from my instruction Hoping that I can tell you that you must each consider each other views; you must discuss the evidence fully with an objective to reaching a verdict. That’s the important phrase here, that you must try to reach a just verdict. I know you understand now this is a very difficult proposition.
In light of the effort that has gone before, these two days and some number of months on both sides preparing for this matter, the time you spent so far, we’d like to ask you to spend a little more time, perhaps turning the issue on its head, thinking of some other approaches that you can obtain the result of a just verdict. It is only after that point if you remain deadlocked you’d have to talk to me once again in writing and I may have a different response. But at this time, it’s been roughly three hours and some minutes that you’ve been at this task.
Again, I can’t tell you how much we appreciate you being here and doing what you’re doing. But at this time, I’m compelled to ask you once again to try to seek a fresh viewpoint, while not surrendering 19your own viewpoint but perhaps a fresh way of analyzing this. Maybe you can take a short break even to clear your heads a little bit. But I’m going to have to ask you to attempt this a little while longer. And that’s the only response I can give you at this time to your letter. It may not be what you want to hear, but it’s what I must tell you. So I’m going to have to ask you to try once again. Thank you.

The jurors were sent to continue deliberations, and there was no objection to the judge’s comments from either the prosecutor or defense counsel. Defendant now argues the trial judge erred in giving the jury a prohibited “Allen ” charge after jurors declared they were deadlocked. We first note that defendant is not entitled to raise this issue, as she did not preserve it for appeal by making a contemporaneous objection, LSA-C.Cr.P. art. 841, or a timely motion for mistrial, LSA-C.Cr.P. art. 775.

Even assuming the issue is properly before this court, there is no merit to defendant’s claim. In State v. Collor, 99-0175 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 104, writ denied, 00-1487 (La.3/9/01), 786 So.2d 116, the appellate court explained:

The Allen charge originated in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.2d[L.Ed.] 528 (1896), where the United States Supreme Court approved a charge to break a jury deadlock and accomplish jury unanimity. However, the Louisiana Supreme Court has banned the use of the Allen charge, and subsequent modifications of it. State v. Nicholson, 315 So.2d 639 (La.1975). While our Supreme Court recognized the authority of a trial court to give further instructions to a jury unable to agree upon a verdict, it found the Allen charge problematic for two reasons. First, the charge emphasizes that the jury has a duty to reach a verdict, implying that the trial judge will not accept a mistrial. Second, when the duty to reach a verdict is coupled with an admonition by the trial judge that those in the minority should rethink their position, there exists an almost overwhelming pressure to conform to the majority’s view. State v. Campbell, 606 So.2d 38, 40 (La.App. 4 Cir.1992). Thus if a trial judge gives an Allen charge or any “coercive modification” of same, the trial court will have committed reversible error. Nicholson, supra.

First, the jury, in the present case, simply informed the judge that they had as yet been unable to reach a verdict, and that they wanted the court’s guidance on how to proceed. There was no reason at that point for the judge to declare a | ^mistrial. Secondly, the judge’s charge regarding further deliberations did not touch upon the elements that the United States Supreme Court found problematic in Allen. It is unlikely that the jurors interpreted the judge’s request that the jury spend “a little more time” deliberating as an implication that the court would not accept a mistrial. The jury did not arrive at a verdict until 9:23 p.m., more than three hours after the instruction at issue. Such a delay suggests that the jurors were not prompted to surrender their beliefs under pressure to arrive at a swift verdict. The judge, in fact, specifically told the jurors they should not surrender their own opinions.

Based on the foregoing discussion, we find that the trial judge did not err in failing to declare a mistrial when the jury informed him that it was deadlocked and could not reach a verdict. Thus, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment, defendant asserts that the evidence was insufficient to sustain a conviction for second degree murder because the state failed to prove beyond a reasonable doubt that she did not act in self-defense. LSA-R.S. 14:20 provides:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

When a defendant claims self-defense, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. The relevant inquiry on appeal is whether a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. State v. Cassard, 01-931 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071, 1076, writ denied, 02-0917 (La.12/19/02), 833 So.2d 327.

The determination of a defendant’s culpability focuses on a two-fold inquiry: (1) whether, from the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and (2) whether deadly force was necessary to prevent the danger. While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Cassard, 811 So.2d.at 1077.

Defendant cites, in support of her claim, testimony that she and Mr. Fluence fought routinely, that Mr. Fluence hit her often, and that Fluence attacked her on the morning of September 4, 2000, choking her until she lost consciousness. She also points to testimony that Mr. Fluence hit her with a broomstick, breaking it in the process. Defendant argues she was justified in arming herself with a kitchen knife and using it to stab Mr. Fluence.

Sharon Eugene, defendant’s sister, testified that defendant and David Fluence fought often, and that she reported some of their altercations to police. Ms. Eugene was not, however, a witness to what happened at the house prior to the stabbing.

Defendant’s son, Dwayne, testified that he has seen Fluence hit his mother’s face on several occasions. Dwayne stated that, on the morning of September 4, 2000, he was on his way from his bedroom to the bathroom when he heard defendant and Fluence arguing. He heard banging noises that led him to believe Fluence was throwing defendant against a wall. Dwayne was not, however, in a position to see what was happening. He testified that he saw bruises on defendant’s face on the morning of September 4, but he did not actually see Fluence hit defendant with his hand or with a broomstick.

| ^Brandon, another of defendant’s children, testified that he could not see what was happening in the living room during defendant’s altercation with Fluence. At one point, Brandon saw Fluence enter the hallway with, the broom and use it to hit defendant on her side. Fluence then dropped the broom and went back into the living room. Brandon did not see Fluence hit defendant in the face with the broom. When Brandon later saw Fluence lying on the living room floor, Fluence did not have anything in his hands.

Linda Allen testified that she is employed by Laplace Mobile Homes and that defendant has been a tenant of that company for ten to twelve years. Ms. Allen testified that, during the year 2000, she was called upon to arrange repairs for defendant’s front door, which had been kicked in. On another occasion, there was a broken window, and there was an incident involving cut telephone wires. Ms. Allen went to defendant’s home once to collect rent, and found defendant’s face beaten and bloody. Ms. Allen testified that she knew defendant was responsible for all of those incidents, as she saw the related police reports and heard calls for assistance over her police scanner. Ms. Allen did not, however, witness the altercation that led to the murder.

Donald Eugene, defendant’s brother, testified that David Fluence was always hitting defendant. Mr. Eugene did not testify as to anything that happened on the morning of September 4, 2000.

The evidence tends to show Mr. Fluence had a history of abusive behavior. However, evidence that Mr. Fluence actually choked defendant on September 4, 2000, or in some other way posed an immediate threat of death or seriously bodily harm, is tenuous. There was testimony that furniture at the scene was in disarray. This arguably supports defendant’s assertion that Fluence threw her against a table. However, Sergeant Michael Davis, the crime scene technician, testified that he did not observe any injuries on defendant’s person when he saw her at'the scene. |]S Sergeant Gary Cooper, who transported defendant from the scene to the Criminal Investigations Division, testified that defendant was not bleeding, and that he did not see any .injuries on her person.

Defendant testified that Mr. Fluence' did not arm himself with a knife. "Fabriel Anderson, one of the first witnesses at the scene, testified that she did not see anything (e.g., a weapon) in the victim’s hands. Defendant was the only witness who testified that defendant choked her. Moreover, she testified that she was able to push Fluence away from her and go into the kitchen. At one point in her testimony, defendant said she feared for her life during the altercation. Nevertheless, she later characterized the stabbing not as an act of self-defense, but an accident. She testified that Mr. Fluence ran into the knife as she held it.

Based on the foregoing evidence, rational jurors could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense, and therefore, that defendant was guilty beyond a reasonable doubt. This assignment of error is likewise without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assigned error, defendant challenges another aspect of the sufficiency of the evidence. She argues that, even if the state met its burden of proving she did not act in self-defense, the evidence at trial was insufficient to support a conviction for second degree murder. Defendant contends she acted in the heat of passion and with provocation, and therefore, at most, the state proved that she was guilty of manslaughter.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing, the evidence in the light most favorable to the prosecution, to find | uthe essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (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. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

To prove second degree murder, the state must show (1) the killing of a human being, and (2) that the defendant had the specific intent to kill 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 may be inferred from the circumstances and actions of the accused as well as from the extent and severity of the victim’s injuries. State v. Keating, 00-51 (La.App. 5 Cir. 10/19/00), 772 So.2d 740, 743.

Defendant argues that the state proved, at most, that she was guilty of manslaughter, a lesser included offense to second-degree murder. The manslaughter statute, LSA-R.S. 14:31, provides, in pertinent part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

“Sudden passion” and “heat of blood” distinguish manslaughter from murder, but they are not elements of the offense. Rather, they are mitigatory factors in the nature of a defense, and when the defendant establishes such factors by a preponderance of the evidence, he is entitled to a manslaughter verdict. State v. Lombard, 486 So.2d 106, 110-111 (1986); State v. Johnson, 01-1362 (La.App. 5 Cir. 5/29/02), 820 So.2d 604, 610, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).

Defendant testified at trial that Fluence left the house on the afternoon of September 3 to complete some errands. She did not see Fluence again until 12:30 on the morning of September 4, when he appeared at Weegie’s. Veronica Nicholson, defendant’s neighbor, testified that she saw defendant and David Fluence at Wee-gie’s prior to the incident, and that the couple were dancing, drinking, and having a good time.

Defendant testified that Mr. Fluence, under the influence of alcohol, initiated an argument. In her taped interview with Detective Hymel, defendant indicated it was she who started the altercation that led to Mr. Fluence’s death. While they were at Weegie’s, she confronted Fluence regarding where he had been that day. He told her he had taken his son to the hospital to have a sprained ankle treated. Defendant accused him of lying. She suspected he was seeing another woman. The two argued at the nightclub and continued to quarrel on the drive home.

After the couple arrived at the house, Mr. Fluence broke a broomstick in the living room, slapped her face, and shoved her against a chair. Defendant went into another room and armed herself with a knife. She returned to the living room. Her hand slipped, and the knife went into Fluence’s chest.

Defendant argues that the discovery of Fluence’s infidelities was a situation sufficient to deprive the average person of self-control and cool reflection. In some instances, such might be the case. However, in her statement, defendant told the officer that she suspected that Fluence was being unfaithful to her for quite some time. This argument about Fluence’s infidelities was apparently a | ^continuation of an ongoing dispute between defendant and Fluence. On the night of the stabbing, defendant provoked Mr. Fluence by questioning him about his activities.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the state proved the essential elements of second degree murder beyond a reasonable doubt. We also find that defendant failed to prove by a preponderance of the evidence that she acted in sudden passion or heat of blood. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his last assignment of error, defendant requests that we review the record for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent.

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

CONVICTION AND SENTENCE AFFIRMED.

      . Detective Todd Hymel testified that he did not know of anyone who was in defendant’s house aside from defendant and the victim. He stated that if anyone else had been there, he would have learned about it as supervising officer of the investigation.

      . Dr. Susan Garcia, who performed an autopsy on the victim's body, testified that the knife wound was four to five inches deep.

      . According to defendant’s trial testimony, Fluence’s explanation was that he had been with his siblings.