author: 2CLARENCE E. McMANUS, Judge. | ¶ DALEY, J.,

text:
    STATE of Louisiana v. David MARSHALL.
    No. 02-KA-747.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    Writ Denied June 6, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for State.
    Jane L. Beebe, Gretna, LA, for defendant-appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court erred in allowing the state to introduce other crimes evidence and whether defendant’s sentence is excessive. For the following reasons, we affirm the conviction and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

This case arises out of an incident that occurred in March 2001, when defendant, David Marshall, dragged his ex-girlfriend, Shedanna Smith, by the hair into his house, physically abused her, and locked her in a bedroom with burglar bars for several hours.

Officer Brian LaBruzza responded to a dispatch on March 2, 2001, at 1629 Garden Road. The call concerned a woman who had been beaten and locked in a bedroom against her will. He was advised that the perpetrator left the premises in a dark-colored Chevrolet vehicle. However, when he arrived, he saw that the vehicle was there and surmised that the perpetrator and the victim were still inside. At the same time, Officer LaBruzza remembered that he had previously been to this address to handle another domestic abuse incident.

When he approached the residence, he saw that the front door was open. After a brief struggle, Officer LaBruzza arrested the defendant and went back into |sthe house to check on the victim, Shedanna Smith. He found her and some children extremely upset and together in the back bedroom. Officer LaBruzza observed and photographed Ms. Smith’s injuries which included a swollen right eye and multiple bruising about her body, legs, and back. Ms. Smith was taken to East Jefferson General Hospital for medical attention. A relative came to the house and took the children away.

Officer LaBruzza described the scene as “chaotic” and “pretty violent.” He observed that the windows of the bedroom in which Ms. Smith was held were secured by burglar bars, that the bedroom door could only be unlocked from the outside, that the front door was dead-bolted, and that Ms. Smith did not have a key. Additionally, there was no working telephone in the house.

On June 6, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, David Marshall, with the second degree kidnapping of Shedanna Smith in violation of La R.S. 14:44.1, Defendant was arraigned on June 7, 2001 and pled not guilty. On October 31, 2001, the state filed |4a notice of intent to use evidence of other crimes. In that notice, the state detailed a prior incident in which defendant physically attacked his daughter, Bianca Lewis, on October 13, 2000. The state also asserted that the purpose of using the other crime was to show defendants knowledge, intent, guilty knowledge, system and motive. At the Prieur , hearing, the state produced Officer Brian La-Bruzza as a witness. Following the Prieur hearing on January 7, 2002, the trial court ruled that the other crimes evidence was admissible.

Officer Brian LaBruzza testified at the hearing and at trial that, on October 13, 2000, he responded to a dispatch at 1423 31st Street involving a man, later identified as defendant, who had physically abused his daughter, Bianca Lewis. After Officer LaBruzza arrived at the scene and interviewed a female witness. He subsequently went to defendant’s house, 1629 Garden Street, approximately one block away. When he arrived, he saw Miss Lewis hiding inside a van. Officer La-Bruzza asked Miss Lewis to exit the van and he observed physical injuries including a contusion to her eye, bumps and bruises all over her body, and a welt on her legs and her back. Officer LaBruzza interviewed Miss Lewis and went inside the house to look for defendant. He found defendant, interviewed him then placed him under arrest.

Bianca Lewis, corroborated the October 13, 2000, incident as well as the events giving rise to appeal. Miss Lewis testified that around March 1, 2001, she saw her father pick up Ms. Smith, throw her down on the sofa, and hit her in the face and other places. Miss Lewis was scared, so she went back into the bedroom with the other children. Her father subsequently brought Ms. Smith into the bedroom. He told Ms. Smith to look at the children, and he continued hitting her. Miss Lewis’ father subsequently started cutting off Ms. Smiths hair and fingernails, stating that he did not pay for them. She saw Ms. Smith fall to the | ¿floor complaining of chest pains. Miss Lewis was able to call Ms. Smith’s mother to tell her what happened, before her father brought her home.

Before she left, Ms. Lewis observed defendant lock the doors with his keys. Ms. Smith had a set of keys to the house but not with her. Miss Lewis testified there were burglar bars on the windows, that there was no way out of the house except through the front and back doors and that her father had taken Ms. Smiths cell phone. When Miss Lewis left the house, Ms. Smith was still in the bedroom.

The victim, Shedanna Smith, testified at trial that she was 21 years old, and that defendant was her ex-boyfriend. She and defendant began dating in July of 1997, and a year later, they moved in together. Ms. Smith worked for McDonald’s from 1999 to 2001. She testified that, at first, their relationship was fine, but later defendant began to complain about everything. Defendant did not approve of the way Ms. Smith dressed and at times, he would tell her what to wear. In the first year they were together, defendant worked a lot as a truck driver. . However, defendant subsequently could not work due to his high blood pressure. Therefore, Ms. Smith was the sole source of income when she lived with defendant. Ms. Smith also testified about the other crimes incident occurring on October 13, 2000, involving Miss Lewis.

As to the criminal conduct at issue in this case, Ms. Smith stated that defendant pulled her hair from the back and dragged her inside the house. He threw her on the sofa and punched her in the face. He told one of his daughters to grab a stick. When he got the stick, defendant continually hit Ms. Smith on her leg and arm with it. Subsequently, defendant dragged Ms. Smith into the children’s bedroom.

The next morning, defendant woke up and got the children ready for school. He told Ms. Smith to write an essay on where she had been for the past two | ¿months. Defendant brought the children to school. Ms. Smith tried to get out of the house, but all the doors were locked and there were bars on every window. She had keys to the house, but not with her. There was no telephone, and defendant had taken away her cell phone. She was afraid to break a window for fear there would be negative repercussions. Nevertheless, had Ms. Smith somehow been able to climb out of a window despite the bars she felt she could not because her legs were in excruciating pain.

Michael Marshall testified on behalf of defendant, his younger brother. Mr. Marshall stated that his brother’s house had burglar bars when defendant moved in. Thus, he did not think defendant put the bars on the windows. Mr. Marshall testified that the back door was “never really locked,” and that if someone did lock it, the lock would “pop right open.”

After a three day jury trial in January 2002, defendant was found guilty of second degree kidnapping. Defendants motion for new trial was denied on January 16, 2002. On January 22, 2002, the trial court sentenced defendant to imprisonment at hard labor for 20 years. Defendant filed this motion for appeal on January 28, 2002.

DISCUSSION

Defendant asserts that the trial court erred by granting the states 404(B) motion and allowing evidence of other criminal activity into evidence at trial because it was highly prejudicial to him and lacked sufficient probative value. Defendant further argued that the evidence served no purpose other than to depict him as a bad person. Defendant also contends that there were no material questions in this case regarding plan, knowledge, identity, intent, motive, mistake or accident.

He claims that the other crimes evidence could only have been offered by the state to show modus operandi, but that there was no real connection between 17the incident involving his daughter, Bianca Lewis, and the alleged second degree kidnapping of his girlfriend, Shedanna Smith. He explains that the two events were six months apart and were the result of two different provocations. Defendant argues that, in the incident involving Miss Lewis, he was merely disciplining an unruly child. In the incident involving Ms. Smith, he argues that it was a girlfriend/boyfriend argument, and that Ms. Smith voluntarily came to his house that day with her son and Miss Lewis. Citing the differences between the two incidents, defendant contends there was no reason to present the aggravated battery testimony and no probative value in that testimony.

The state responded that it offered evidence to prove motive. It claims that motive was at issue in this case, because defendant argued that the kidnapping was merely a girlfriend/boyfriend argument, and that the aggravated battery was merely the normal disciplining of a child. The state contended that defendant’s motive in both crimes was discipline; when defendant felt he was “losing control” he would physically abuse females close to him in the name of discipline. The state alternatively argued that even if the evidence was improperly admitted, the error was harmless given that there was substantial eyewitness testimony to prove the second degree kidnapping charge.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404 B(l); State v. Prieur, 277 So.2d 126, 128 (La.1973); State v. McGinnis, 00-219 (La.App. 5 Cir.8/29/00), 768 So.2d 216, 218. However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Silguero, 608 So.2d 627, 629 (La.1992); State v. Hopson, 98-943, pp. 12-13 (La.App. 5 Cir.3/30/99), 735 So.2d 81, 87, writ denied, 99-1315 (La.11/12/99), 749 So.2d 650.

IsLSA-C.E. art. 404 B(l) provides:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Other crimes evidence may not be a mere subterfuge for depicting a defendant’s bad character. Its probative value must outweigh its prejudicial effect. LSA-C.E. art. 403. If a defendant so requests, the court must instruct the jury as to the limited purpose for which other crimes evidence may be considered. State v. Prieur, 277 So.2d at 130. The appellate court will not overturn a ruling by the trial court on the admissibility of evidence of other crimes, absent an abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La.1992); State v. Bridgewater, 98-658 (La.App. 5 Cir. 12/16/98), 726 So.2d 987, 993.

Louisiana jurisprudence has long sanctioned the use of other crimes evidence to show modus operandi as it bears on the question of identity when the prior crime is so distinctively similar to the one charged, especially in terms of time, place, and manner of commission, that one may reasonably infer that the same person is the perpetrator in both instances. State v. Hills, 99-1750, p. 5 (La.5/16/00), 761 So.2d 516, 521. However, to assure that modus operandi or system evidence involving crimes similar to the charged offense does not become a means of introducing character and propensity evidence otherwise prohibited by LSA-C.E. art. 404(B), such evidence must be closely analyzed to determine whether it exhibits “such peculiar modes of operation to distinguish them as the work of one person.” Hills, 99-1750 at pp. 6-7, 761 So.2d at 521 (quoting State v. Gaines, 340 So.2d 1294, 1297 (La.1976)). Thus, in order to be admissible, “the modus |9operandi employed by the defendant in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person.” Hills, 99-1750 at p. 7, 761 So.2d at 521 (quoting State v. Henry, 436 So.2d 510, 513 (La.1983)). However, even if the evidence was improperly admitted, an improper reference to other acts evidence is subject to the harmless error rule. State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 852 (citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 101-102). The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Id.

The state argues that it introduced the other crimes evidence to show motive; however, defendant contends that motive was not a material issue in the case. Defendant also contends that the other crimes evidence was not admissible for the purpose of proving plan, system, or modus operandi, because the other crime, the aggravated battery of Miss Lewis, was completely different in nature from the charged offense, the second degree kidnapping of Ms. Smith. While we agree with defendant that admission of the evidence was wrong, we find the error to be harmless.

Comparing the charged offense to the legal requirements of La. R.S. 14:44.1, we conclude that the record supports the conclusion that defendant went to Ms. Smith’s mother’s house and enticed her to accompany him, her son and Miss Lewis back to his house. Once there, he physically abused Ms. Smith by dragging her into the house by her hair, beating her with a stick while children present in the home. He then locked her in a bedroom from which she could not escape. Further, she had no keys to the house and no way to call anyone for help. Regardless of his reasons for doing so, his conduct represents a violation of that statute. Thus, we believe the guilty verdict was not attributable to the other crimes evidence, but is amply supported by the record.

| ipDefendant next argues that his 20-year sentence was constitutionally excessive. He contends that the evidence was not overwhelming. He did not perform any activities that would warrant a 20-year sentence. He had no prior criminal history. He worked, bought a house and was raising his four daughters. He took care of Ms. Smiths son even after she left home. He was under tremendous pressure and stress. He was sorry for the incident and that he was trying to rear his children the same way he had been. He believes that the trial court failed to consider the factors in La.C.Cr.P. art. 894.1.

The state contended that defendant’s sentence was well within legislative guidelines, and that it was imposed by the judge to deter recidivism and to protect defendants children. As such, the sentence was not constitutionally excessive. Defendant orally objected to the ex-cessiveness of the sentence at the sentencing hearing, but he did not urge any specific grounds in support of his objection. Additionally, he failed to file a motion for reconsideration 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. Accordingly, defendants sentence is examined only for constitutional excessiveness.

A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 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. The issue on appeal is whether the trial court abused its Indiscretion, 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, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

Defendant was convicted of second degree kidnapping and sentenced to 20 years of imprisonment at hard labor. La. R.S. 14:44.1 provides that the penalty for a conviction of second degree kidnapping is imprisonment at hard labor for not less than five nor more than 40 years. At least two years of the sentence is to be imposed without benefit of parole, probation, or suspension of sentence. At the sentencing hearing, the trial judge stated that she read numerous documents defendant gave her.

The trial judge noted that defendant wrote a lengthy letter to the court, and she read some excerpts from that letter. She concluded defendant was convinced he did nothing wrong, and that he believed he was following the dictates of the Old Testament. She stated:

Mr. Marshall does not understand the mores of American society. Mr. Marshall makes a good point. Maybe his family was out of control. Maybe his ex-wife was, or his girlfriend or whatever she was, was behaving in a manner that was displeasing to him.
A man in this country does not thereby gain the right to restrain a woman against her will, locked in a room without a key, or a telephone, or means of escape. A man in this country, within the social mores of our civilization as distinguishable of [sic] those of some other, is not permitted by the rules of criminal law to violently correct or discipline either a woman with whom he has an intimate relationship, nor his child. Mr. Marshall does not understand that. He honestly does not understand that in American society we beat neither our wives nor our children either with a stick named Justice, or with anything else for that matter, and I am firmly convinced that Mr. Marshall will not, without a long period of time in which to reflect away from the individuals upon whom he has visited this violence, have any chance of coming to grips with the notion that this is not permissible or legal within the confines of American society.
h?! am firmly convinced that if Mr. Marshall was free to go about his way in our society, he would continue to visit violence upon the child from whom we heard testimony, and from his other children in this case.
Therefore, it is my understanding that Bianca is 14, and there are other younger children, therefore this Court views its job in part, this Court views it [sic] job as doing several things; one, to punish Mr. Marshall; two, to attempt to rehabilitate Mr. Marshall; and three, and foremost, which should be first, to protect his children and the rest of society from Mr. Marshalls views of his role in society large and small, that being two [sic] discipline at time through violence with a stick, or with his hands those with whom he comes into some sort of social contact, be it small or great.
This is third, however my first and most important goal of sentence is not accomplished in this case if Mr. Marshall is free to visit himself upon his children and other women in society, therefore it is the sentence of this Court that Mr. Marshall serve 20 years at hard labor, with credit for time served.

The trial court’s reasons for imposing the sentence reflect that it was sentencing defendant for something other than the offense for which he was convicted. To our knowledge, defendant has not yet been tried for the incident involving, his daughter. While we agree that defendant’s conduct toward his children and Ms. Smith is without justification, we find his sentence to be excessive in light of the fact that this is his first offense and in fight of the prevailing jurisprudence. Accordingly, we set aside defendant’s sentence and remand this matter to the trial court to impose a sentence more narrowly tailored to punish defendant for this conviction, the second degree kidnapping of Ms. Smith.

CONCLUSION

Based on the foregoing, we affirm defendant’s conviction but set aside his sentence and remand this matter to the trial court to resentence defendant.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

DALEY, J. dissents with reasons.

| ¶ DALEY, J.,

dissenting with reasons.

I respectfully dissent from the majority’s affirmance of the defendant’s conviction. I agree with the majority that the trial court erred in admitting the other crimes evidence. It appears from the record that the State introduced evidence of the other crime to show that defendant committed the charged offense, or that he was simply a bad person, and not to prove motive, system, plan, or modus operandi. In addition, I find that that evidence of prior bad acts was extremely prejudicial to the defendant, and thus, find its introduction to be reversible error.

While the record contains independent evidence of defendant’s guilt I cannot say the wrongful introduction of prior bad evidence was harmless. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 852. In this case there were repeated references to the prior bad acts by multiple witnesses. The evidence of aggravated battery over shadowed the evidence of kidnapping so as to create prejudice. A reasonable juror would not ignore this prior bad act evidence in determining the defendant’s guilt on the second degree kidnapping charge. Therefore, I would vacate the defendant’s conviction and remand the matter for a new trial.

      . La. R.S. 14:44.1 provides:
      A.Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
      (1) Used as a shield or hostage;
      (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
      (3) Physically injured or sexually abused;
      (4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
      (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
      B. For purposes of this Section, kidnapping is:
      (1) The forcible seizing and carrying of any person from one place to another; or
      (2) The enticing or persuading of any person to go from one place to another; or
      (3) The imprisoning or forcible secreting of any person.
      C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

      . State v. Prieur, 277 So.2d 126, 130 (La.1973).


source: Caselaw Access Project

author: 2SUSAN M. CHEHARDY, JUDGE.

license: Public Domain

text:
    STATE of Louisiana v. Silas ANTOINE.
    No. 02-KA-1068.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Appellate Counsel, Nancy Miller, Vincent Paciera, Jr., Gretna, LA, for Appellee, State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Appellant, Silas Antoine.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, JUDGE.

On April 5, 2000, the Jefferson Parish District Attorney’s Office charged defendant, Silas Antoine, with armed robbery in violation of La. R.S. 14:64. After defendant was arraigned and pled not guilty, he filed omnibus pre-trial motions, including motions to suppress identification and his statement, which were both denied. On December 7, 2001, after a two-day trial, the twelve-person jury unanimously found defendant guilty as charged. On December 13, 2001, the trial judge sentenced defendant to 60 years at hard labor without the benefit of parole, probation or suspension of sentence.

FACTS

On September 14, 1999, James Stanford, his girlfriend, Natacha Kimbrough, and their one-year-old daughter returned home between 2:00 a.m. and 3:00 a.m. to their apartment on Aberdeen Drive in Harvey. James brought their baby inside and laid her on the couch then went back outside to help Natacha unload the bags of groceries from the car. He grabbed several bags and went inside. Natacha followed with the remaining bags after locking the car doors. As Natacha was | .¡approaching the apartment, a man put a gun to her back and forced her inside. Two more men followed them into the apartment.

Once inside, one perpetrator, armed with a handgun, ordered Natacha to sit on the couch next to the baby and a second perpetrator, armed with an AK 47 assault rifle, ordered James to get on his knees. The third perpetrator searched the apartment. The assailant with the handgun put it to the baby’s head and said “give it up” or he would kill the baby. Meanwhile, the assailant with the AK 47 hit James on the head.

James gave the perpetrators his car keys and told them whatever they were looking for was in the car. The three perpetrators left and James immediately closed and locked the apartment door. James subsequently discovered his 1977 blue Cutlass was missing.

When the police arrived, James identified one of the perpetrators as Demarco Washington, a man that had attended high school with James. The other two perpetrators had their faces somewhat covered; neither James nor Natacha recognized them or could later identify them.

James’ stolen Cutlass was discovered within a few hours of the robbery with the radio and speakers missing. When the vehicle was dusted for fingerprints, a match was made to someone other than defendant. After further investigation, however, defendant was implicated in the crime and later arrested. After he was arrested, defendant gave a statement to the police admitting his involvement in the armed robbery.

On April 5, 2000, defendant was charged with armed robbery. On December 5, 2001, trial commenced. After hearing the evidence presented by the State, the jury unanimously found defendant guilty as charged. Defendant appeals his conviction and sentence.

| Jn his first assignment of error, defendant argues that the trial court erred in denying the defense motion for mistrial. Specifically, defendant contends that the prosecutor’s reference in her opening statement to Stephen Roy’s identification of defendant as a participant in the armed robbery warranted a mistrial. Defendant asserts that he was prejudiced by this reference because defense counsel was unable to cross-examine Roy about this statement since Roy did not testify at trial. The State, relying on State v. Horne, 554 So.2d 820 (La.App. 5 Cir.1989), responds that the prosecutor was not in bad faith and the defendant was not substantially prejudiced so a mistrial is unwarranted.

In her opening statement, the prosecutor remarked:

The latent prints ... come back to a Stephen Roy. Stephen Roy is here today. Stephen Roy has pled guilty to this case — to this armed robbery. He’s here and he’s going to testify, and I’ll be very frank with you, ladies and gentlemen, I don’t know what he will tell you. I do not know.
Detective John Carol [sic] was assigned to this case. He interviewed Stephen Roy and at the time of the interview, [Roy] gave a taped statement. He said it was himself, a guy named Demarco Washington, and a guy named Daniel, who did this armed robbery.
A little while later he gave another taped statement saying that it wasn’t really Daniel, it was a guy who went by the street name of Chuck — Silas Antoine.

At that point, defense counsel moved for a mistrial on the basis that the State referred to certain statements by a witness who may not testify at trial. The trial court denied the motion for mistrial as premature.

Subsequently, the State called Stephen Roy to testify. Roy refused to respond to any questions, which prompted the trial court to hold him in contempt of court. Defense counsel renewed his motion for a mistrial arguing that defendant was prejudiced by the State’s reference to Roy’s testimony in its opening statement since the State could not produce Roy’s testimony at trial. The trial court again | .¡denied the motion for mistrial finding the State was in good faith in its reference to Roy’s testimony in its opening statement because the State was under the impression that Roy would testify.

Additionally, the trial court found that defendant was not substantially prejudiced by the prosecutor’s remarks during opening statements noting, “when the statement was made it was very — in opening, it was, in my opinion, rather insignificant. She [the prosecutor] didn’t dwell on it — it was just part'of a series of things they said that the State was going to prove.”

Mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, 126, writ denied, 00-0908 (La.4/20/01), 790 So.2d 13. Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. Id.

La.C.Cr.P. art. 766 requires the State to give an opening statement explaining “the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” In State v. Green, 343 So.2d 149, 151 (La.1977), the Louisiana Supreme Court explained:

[t]he prosecutor’s statement is not evidence and has no probative force. Rather, it is designed to inform the jury so that they may understand the evidence as it unfolds and to protect the defendant from surprise.

This Court has held that “[w]hen a prosecutor details evidence in his opening statement which is subsequently not admitted, he takes the risk that a mistrial may have to be granted.” State v. Horne, supra at 824. The general rule is absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible or not | fiproduced is not a ground for a mistrial. State v. Green, 343 So.2d at 151; State v. Horne, 554 So.2d at 824. A trial court’s determination as to the good faith of the prosecutor is entitled to great weight. State v. Green, supra at 152.

In Horne, supra, defendant was charged with first degree murder. The prosecutor’s opening statement set forth details of the murder which were to be established by the testimony of two co-defendants who had already pled guilty in connection with a plea agreement wherein they agreed to testify against defendant. When the State called the two witnesses to the stand to testify, the witnesses refused to answer any questions.

The defendant in Home objected to the State’s opening statement but, rather than moving for a mistrial, defendant waited until after the guilty verdict and moved for a new trial because the State failed to produce evidence referred to in its opening statement. This Court concluded the denial of the new trial was proper under La C.Cr.P. art. 851.

In its analysis, the Home court reiterated the general rule that the failure of the State to produce evidence referenced in the opening statement absent bad faith or clear and substantial prejudice is not a ground for a mistrial. This Court concluded that the State was not in bad faith when it referred, in its opening statement, to testimony that it believed, based on plea agreements, would be elicited from two witnesses but found rather that the State was surprised by the witnesses’ refusal to testify. This Court also noted that the jury was advised twice that the argument of counsel was not evidence.

Here, the trial judge specifically found the prosecutor was in good faith when she referred to Stephen Roy’s testimony in her opening statement. Our |7review of this record reveals that even defense counsel, who subpoenaed Roy, also expected Roy to testify. The trial court’s determination regarding the good faith of the prosecutor is entitled to great weight. On appeal, we will not disturb that finding absent abuse of discretion. We have found nothing in the record that indicates that the trial judge abused his discretion.

The trial court also specifically found defendant was not substantially prejudiced by the State’s reference to Roy’s testimony in opening statement. Again, we find no error in the trial court’s ruling. The trial court specifically instructed the jury that the opening statements made by the attorneys were not evidence. Based on Horne, supra, this instruction was sufficient to prevent substantial prejudice to the defendant where evidence is referred to in opening statement but not later produced.

Additionally, as noted by the trial court, the prosecutor’s reference to Roy’s testimony in her opening statement was minimal and was not the main focus of the statement. Furthermore, according to the prosecutor’s opening statement, Roy’s testimony would implicate defendant as a participant in the armed robbery. In his own statement to the police, defendant confessed to his participation in the armed robbery. Based on the foregoing, we cannot say that defendant was prejudiced by the State’s failure to produce evidence of Roy’s identification of defendant as a participant in the crime. Defendant’s first assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in permitting the hearsay identification of the defendant by Detective John Carroll. He specifically contends that the trial court erred in allowing hearsay into evidence when the trial judge allowed Detective John Carroll to testify that Stephen Roy identified defendant as a participant in the armed robbery. He contends the State used Deputy Carroll’s testimony regarding Roy’s identification of defendant was inadmissible because it was introduced to prove the truth of the matter spoken, that Isdefendant was identified by his co-perpetrator as a participant in the armed robbery. Defendant further asserts the erroneous admission was not harmless error.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(A)(1) and (C). Hearsay evidence is inadmissible except as provided by the Louisiana Code of Evidence or other legislation. La. C.E. art. 802; State v. Dyer, 00-1866 (La.App. 5 Cir. 4/24/01), 794 So.2d 1, 12.

A police officer, in explaining his own actions, may refer to statements made to him by other persons involved in the case. Such statements are admitted not to prove the truth of the assertion, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the officer. State v. Dyer, supra at 12. In State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), the Louisiana Supreme Court explained:

Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. [Citations omitted].

Broadway, supra, at 809.

The Broadway court, quoting the supreme court’s earlier opinion of State v. Hearold, 603 So.2d 731, 737 (La.1992), further stated:

Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by |9the likelihood that the jury will consider the statement for the truth of the matter asserted.

State v. Broadway, supra at 809.

In Broadway, defendant contended that the prosecutor presented hearsay testimony from two police officers that a witness, a co-perpetrator who did not testify at trial, implicated defendant as one of the principals in the murder. The officers both testified that they learned of defendant’s name during the course of their interview with the co-perpetrator. The prosecutor argued that the testimony was being offered to show the sequence of events leading to defendant’s arrest and not for the truth of the assertion, but, later, argued the truth of the assertion during her closing argument. The supreme court found the testimony that a co-perpetrator had identified defendant by name as a participant in the crime to be inadmissible hearsay. The supreme court, however, ultimately determined that the admission was harmless error.

In this case, Detective John Carroll was called to testify after co-defendant, Stephen Roy, refused to testify. During Detective Carroll’s testimony, he was asked about his investigation. During direct examination of Detective Carroll by the prosecutor but before Detective Carroll mentioned Stephen Roy, defense counsel objected on the basis the information the prosecutor was seeking, the identification of defendant by Stephen Roy, was hearsay. The State responded the officer was only testifying about what he saw, heard and did in his investigation and, therefore, it was not hearsay. The trial court ruled that the officer’s testimony on the issue was admissible.

As a result, Detective Carroll testified that, after he interviewed Stephen Roy, he compiled a photographic lineup that contained defendant’s picture and showed the lineup to Roy. After viewing the lineup, Roy identified defendant. Detective Carroll testified that he interviewed defendant and obtained a confession [infrom defendant to his participation in the armed robbery. When defense counsel cross-examined Detective Carroll, he specifically elicited that Stephen Roy had been shown two lineups, one in which he identified defendant. However, we note that Detective Carroll did not testify, either on direct or cross-examination, as to the purpose of Roy’s identification, i.e., that defendant was a participant in the armed robbery.

In analyzing this testimony under Broadway, we note that, although the information was presented under a so-called “explanation” exception to the hearsay rule, the testimony here was used as an indirect method of placing before the jury the substance of an out-of-court assertion implicating defendant in the crime. In other words, Roy did not testify that he identified defendant in a lineup so the State used Detective Carroll to explain that, during his investigation, Roy identified defendant in a lineup. Even though Detective Carroll did not testify that Roy identified defendant as a participant in the armed robbery, the fact that defendant was identified by a co-perpetrator, who had already pled guilty to this crime, was important because neither of the victims could identify defendant as a perpetrator of the armed robbery. Under Broadway, we find that Detective Carroll’s testimony that co-defendant Roy identified defendant from a photographic lineup was inadmissible hearsay.

In his third assignment of error, defendant contends that the erroneous rulings of the trial court were not harmless error. The admission of inadmissible hearsay is subject to a harmless error analysis. State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 963, writ denied, 99-2551 (La.2/18/00), 754 So.2d 964. The proper inquiry is whether the guilty verdict rendered was surely unattributable to the error. Factors to be considered in making this determination luinclude: 1) the importance of the witness’ testimony; 2) the cumulative nature of the testimony; 3) the existence of corroborating or contradictory evidence regarding the major points of the testimony; 4) the extent of cross-examination permitted; and 5) the overall strength of the State’s case. Id. at 963.

Here, although Detective Carroll’s testimony may have been important, it was clearly cumulative considering defendant’s confession, which was played to the jury before Detective Carroll testified. Further, the victims’ account of the events corroborated defendant’s confession. Finally, the defense was allowed full cross-examination of Detective Carroll on Roy’s identification of the defendant. We find that the hearsay testimony was essentially cumulative to defendant’s confession and, thus, the guilty verdict was unattributable to the error. Based on the foregoing, we find that the erroneous admission of Detective Carroll’s testimony regarding the co-perpetrator’s identification of defendant as a participant in the armed robbery was harmless error.

Lastly, according to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and found none requiring remand.

CONVICTION AND SENTENCE AFFIRMED.

      . Co-defendant, Stephen Roy, who was also charged with armed robbery, pled guilty before trial. His conviction is not the subject of this appeal.

      . We note that Home, which is factually identical to this case, was decided in a different procedural context than this case. Defendant in this case moved for a mistrial during the State's opening statement and renewed that motion after Roy refused to testify, whereas defense counsel in Home objected during the prosecutor’s opening statement and later moved for a new trial based on the State’s failure to produce the testimony. The procedural variance does not affect the reasoning or result.

      . In this assignment of error, defendant asserts that both rulings of the trial court of which he complains do not constitute harmless error. We found no error in the trial court’s denial of defendant's motion for mistrial. Therefore, a harmless error analysis pertaining to defendant’s first assignment of error is moot.


author: 2THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Mario A. MARSHALL.
    No. 02-KA-1067.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Peter R. Borstell, Law Offices of Douglas Schmidt, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   2THOMAS F. DALEY, Judge.

Defendant, Mario A. Marshall, appeals his conviction of possession of cocaine with intent to distribute. On appeal, he assigns four errors:

1. The State did not prove beyond a reasonable doubt that appellant possessed the cocaine that was found at 3401 Edenborn Ave., Apt. 304, Me-tairie, Louisiana.
2. The State further did not prove beyond a reasonable doubt that the Appellant intended to distribute the cocaine found at said apartment.
3. The trial court committed reversible error by admitting evidence of other crimes pursuant to L.S.A.C.E. 404.
4. The trial court gave appellant an excessive sentence.

Considering the law and the evidence, we find that the evidence was sufficient to support the jury’s conclusion that defendant was in constructive possession of the cocaine found in the Metairie apartment, and that this cocaine was packaged in a way consistent with distribution. We also find that the introduction of other crimes evidence was not error. Finally, defendant’s sentence was not excessive. Therefore, we affirm defendant’s conviction and sentence.

|3The charge against defendant in this ease was the result of a joint investigation by the New Orleans Police Department and the Jefferson Parish Sheriffs Office. Sergeant Charles Little (Sergeant Little) testified that he is commander of the Narcotics Unit of the New Orleans Police Department’s Third District. Based on information his division received, Sergeant Little and other narcotics officers initiated a surveillance on defendant, Mario Marshall, at 11:45 p.m. on October 30, 2000.

Sergeant Little testified that defendant was in a green Ford Explorer, parked near 518 South Murat Street in the Mid-City area of New Orleans. A subject named Barry Bowie (Bowie) was a passenger in the vehicle. Sergeant Little stated that he had seen defendant in the Explorer on several previous occasions. Sergeant Little saw Bowie pour something into an orange juice bottle. Bowie then exited the vehicle and leaned against the front fender. After 10 to 15 minutes, defendant exited the vehicle, crossed South Murat Street, and met with an unknown black male. ’The men conversed briefly, although Sergeant Little could not hear what they said.

The black male reached into his right pants pocket, removed a single bill, and handed it to defendant. Defendant placed the money in his right front pants pocket. Defendant then removed a clear plastic bag from the back of his pants and pulled out a small object. He handed the object to the black male. The man examined it, and then left the scene on foot. Defendant returned the plastic bag to the back of his pants. Defendant sat on the front steps of the residence at 518 South Murat Street. A short time later, a woman exited the house and joined defendant on the steps.

Sergeant Little continued to watch the house, and he saw an unknown man and woman arrive. He watched the group for several minutes, and then ordered the other surveillance officers to move in and detain defendant and Bowie. The men | ¿were transported to the Task Force and Narcotics offices at the Third District station. Sergeant Little ordered Detectives Martin, Vappie, and Davis to conduct a strip search of defendant’s person in the men’s bathroom there. Sergeant Little did not participate in the search.

Detective Jules Martin (Detective Martin) testified that defendant was led into the bathroom in handcuffs. Once inside, Detective Martin removed the handcuffs. He ordered defendant to remove his shirt and to unbutton his pants. Defendant unbuttoned his pants as instructed, but then reached into the area of his buttocks and retrieved a bag containing what appeared to be cocaine. Defendant quickly put the cocaine to his mouth.

Detective Martin testified that he knew ingestion of cocaine could be fatal, and that he also believed defendant was attempting to destroy evidence. He, therefore grabbed defendant in an attempt to prevent him from swallowing the contraband. A struggle ensued. Defendant began to chew the substance. When Detective Martin tried to remove the bag from defendant’s mouth, defendant bit him. Detective Martin and the other officers present were eventually able to subdue defendant and secure the evidence. The material was field tested, and the result was positive for cocaine. Detective Martin testified that a little over half an ounce of cocaine was seized. Defendant also had $18.00 in cash and a set of keys on his person at the time of his arrest.

Deputy Joseph Lopinto (Deputy Lopin-to) testified that he is assigned to the Narcotics Division in the Detective Bureau of the Jefferson Parish Sheriffs Office. He testified that, during October, 2000, he conducted a surveillance on an apartment at 3401 Edenborn Drive in Metairie, where he believed defendant resided. During that time, Deputy Lopinto passed the apartment complex 15 to 20 times. He also set up five or six extended surveil-lances at that location. He watched for a green Ford Explorer.

| ¡¡During his extended surveillances, Deputy Lopinto saw defendant on three occasions. At those times, defendant left the apartment complex, driving the Explorer. Deputy Lopinto followed defendant to a location in the Mid-City area of New Orleans. Deputy Lopinto determined that the Explorer was registered to Yale Washington, who was defendant’s wife. The officer noted that the telephone number at the Edenborn apartment was also registered to Ms. Washington.

Deputy Lopinto testified that, on October 30, 2000, he was contacted by Detective Jules Martin (Detective Martin) of the New Orleans Police Department. Based on what Detective Martin told him, he went to the Third District station in New Orleans. Deputy Lopinto learned that Detective Martin’s investigation of defendant had led to a seizure of crack cocaine. Based on the New Orleans arrest, Deputy Lopinto applied for and obtained a Jefferson Parish search warrant for the Eden-born apartment. Detective Martin gave Deputy Lopinto the keys seized from defendant.

Deputy Lopinto went to the Edenborn apartment in the early morning hours of October 31, 2000, in order to execute the search warrant. He was accompanied by Detectives Robby Gerdes and Bruce Harrison, and Lieutenant Timmy Miller. The officers knocked on the door. When they received no response, they used the keys seized from defendant to gain entry. They found Yale Washington and an infant inside the apartment.

Ms. Washington led the officers to where cocaine and currency were hidden. Deputy Lopinto testified that a coffee maker above the refrigerator held 38 individually wrapped rocks of what appeared to be crack cocaine, along with currency and other items. They found a total of $830.00, most of which was in small denominations. The rocks were field tested, and the result was positive for cocaine. On the kitchen table, the officers found a card addressed to Mario and Yale Marshall at 3401 Edenborn. Deputy Lopinto testified that he also found and | fiseized a package of plastic bags located on top of the refrigerator, next to the coffee maker.

Criminalist Edgar Dunn, an expert in the identification and analysis of controlled dangerous substances, testified that he tested a sampling of the rocks seized at the Edenborn apartment, and that the results were positive for cocaine. Detective Bruce Harrison, an expert in the use, packaging, distribution, and valuation of narcotics, testified that, in his opinion, the amount of cocaine found during the search, and the manner in which it was packaged, were indicative of possession with intent to distribute.

ASSIGNMENT OF ERROR NUMBER ONE

The State did not prove beyond a reasonable doubt that appellant possessed the cocaine that was found at 3401 Eden-born Ave., Apt. 304, Metairie, Louisiana.

ASSIGNMENT OF ERROR NUMBER TWO

The State further did not prove beyond a reasonable doubt that the Appellant intended to distribute the cocaine found at said apartment. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604.

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. Williams, supra. When circumstantial |7evidence 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.

In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court 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.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the 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.

The crime of possession with intent to distribute cocaine requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. State v. Manson, 01-159, p. 16 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761; State v. Snavely, 99-1223, p. 11 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, 958, writ denied, 00-1439 (La.2/16/01), 785 So.2d 840. Guilty knowledge is an essential element to the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Manson, supra. Possession can be either “actual” or “constructive.” State v. Brisban, 00-3437, p. 8 (La.2/26/02), 809 So.2d 923, 929.

A person not in physical possession of a drug may have constructive possession when the contraband is under the person’s dominion and control. State v. Schieffler, 00-1116, p. 4 (La.App. 5 Cir. 2/13/02), 812 So.2d 7, 9. The key factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that illegal drugs were in the area, his relations with a person found to be in actual possession, the defendant’s access to the area where the drugs were |sfound, evidence of recent drug use by the defendant, the existence of drug paraphernalia, and evidence that the area was frequented by drug users. Id; State v. Manson, 01-159 at pp. 6-7, 791 So.2d at 761.

The evidence supports a finding that defendant had dominion and control over the cocaine seized in the apartment sufficient to constitute constructive possession. Deputy Lopinto testified that he watched the apartment complex on Edenborn on numerous occasions during the month leading up to defendant’s arrest. On at least three occasions, he saw defendant leave the complex in a green Ford Explorer. Deputy Lopinto learned the Explorer was registered to Yale Washington, defendant’s wife.

The telephone at the Edenborn apartment was registered to Ms. Washington. Police found mail addressed to defendant and his wife at the apartment. Some of the items bore the Edenborn address, indicating a connection between defendant and the apartment. Moreover, defendant was in possession of the key to the apartment when he was arrested in New Orleans. Defendant’s wife and son were inside of the apartment when officers arrived to execute the search warrant.

Defendant argues that the contraband was found in the kitchen, a public area of the apartment to which defendant did not have exclusive access. It is true that being a resident of the premises where drugs are found is not in and of itself sufficient to prove constructive possession. State v. Kelly, 01-321, p. 4 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 01-3266 (La.11/1/02), 828 So.2d 565. Moreover, while it can be inferred that a defendant lives at a residence where contraband is discovered because his spouse lives there, there must'be direct evidence (such as utility bills or other correspondence mailed to the defendant at that address), to support a finding of constructive possession. See, State v. Martin, 98-1507 (La.App. 4 Cir. 4/5/00), 788 So.2d 1. A subject can have constructive 1 possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control the drugs. Id. From the evidence that Ms. Washington had the lease on the Edenborn apartment, that she and defendant were married, that defendant came and went to and from the apartment at will, that he frequently used Ms. Washington’s truck, and that mail was found at the apartment addressed to defendant, it can be inferred that defendant and Ms. Washington shared the residence.

While Ms. Washington knew where the cocaine was hidden, it was defendant who was found in possession of cocaine by New Orleans officers, and who was seen engaging in what appeared to be a narcotics sale on South Murat Street. These facts strongly support the jury’s conclusion that the cocaine in the apartment belonged to defendant, and that his wife shared with him knowledge of and access to the contraband.

Some of the mail seized at the apartment was addressed to defendant at 1025 South Clark Street and at 4219 D’hemec-ourt Street in New Orleans. Brenda Price testified that in October 2000, defendant was living with her and her brother at the Clark Street address. Ms. Price further testified that her sister lived at the D’he-mecourt address. Detective Harrison testified that it is common practice for drug dealers to sell their goods in one neighborhood, and to reside in an area removed from the place where their drug deals are made. Detective Harrison stated that the place where the defendant actually lives is referred to as a “stash house,” “drop house,” or a “safe house.”

While it is possible that defendant stayed from time to time at the South Clark and D’hemecourt addresses, the evidence tends to show that the Edenborn apartment was his “stash house.” This would explain why Deputy Lopinto did not, during his surveillance activities, see defendant engage in any drug transactions at the Edenborn address. It would also explain why no evidence of drug use (such as | mparaphernalia) was found in the search. Deputy Lopinto testified that he regularly followed defendant from Metairie to the Mid-City area in New Orleans. Sergeant Little and Detective Martin saw defendant frequently in Mid-City, and it was in that area that Sergeant Little saw defendant conduct a drug transaction. Based on the foregoing, the evidence is sufficient to support the element of possession.

Defendant argues that the State failed to prove he had specific intent to distribute cocaine. In State v. Hearold, 603 So.2d at 735, the Louisiana Supreme Court listed a series of factors that might give rise to a reasonable inference that a defendant had the specific intent to distribute a controlled dangerous substance:

(1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

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. State v. Snavely, 99-1223 at p. 12, 759 So.2d at 958.

Sergeant Little saw defendant engage in what appeared to be a drug transaction at 518 South Murat Street in New Orleans. Defendant was then arrested, and found to possess a relatively large amount of crack cocaine on his person. This is evidence that defendant was a cocaine dealer. It satisfies the first of the aforementioned criteria. With respect to the fifth factor, Deputy Lopinto testified that a package of plastic sandwich bags was found on top of the refrigerator, next to where the crack was hidden. The three remaining criteria are covered by the testimony of Detective Bruce Harrison, an expert in the use, packaging, distribution, and valuation of narcotics.

L detective Harrison testified that the most important factors he looks at in determining whether an individual is selling or simply using narcotics are the quantity of drugs recovered, and the manner in which they are packaged. Detective Harrison further stated that if the quantity of drugs is large enough, he assumes distribution is involved, regardless of the packaging.

According to Detective Harrison, a drug user is not likely to possess a larger amount of narcotics than he can readily use. Users buy drugs in small increments as they are able to obtain the money to feed their habits. A user is also generally fearful of possessing a large quantity of narcotics, as this would make him susceptible to robbery or arrest. Finally, a user is rarely without the paraphernalia (such as a crack pipe) necessary to use the drugs. Detective Harrison testified that someone who has a large quantity of narcotics, but none of the associated paraphernalia, is generally a dealer.

The prosecutor presented Detective Harrison with the facts of the instant case in the form of a hypothetical situation. Detective Harrison testified that, if an individual were found to have 15 grams of cocaine on his person, and 38 individually wrapped rocks of crack were found in his residence, it would indicate to him that the individual was involved in distribution. Detective Harrison explained that if the possessor of this cocaine had plans to use it all himself, he would not have gone to the trouble of cutting it into individual pieces and packaging each piece separately in plastic. A typical user would leave the substance in one large piece and cut off one piece at a time as he smoked it. Detective Harrison testified that the quantity and packaging of the rocks were, to him, indicative of distribution.

Defendant argues that Detective Harrison’s testimony conflicts with that of Crim-inalist Edgar Dunn (Dunn), who testified that the gross weight of the individually wrapped rocks was 6.61 grams. Dunn further testified that he | ^estimated the weight of the cocaine, without the wrapping, to be no more than two grams. Detective Harrison examined State’s Exhibit 1, the 38 individually wrapped rocks of crack. He estimated, based on his experience, that the rocks weighed about .2 grams each, and that they were fairly large for sale on the street. They would sell for at least $20.00 each. Detective Harrison testified that he has weighed plastic “baggies,” and that a whole baggy weighs .7 grams. Detective Harrison noted that something less than a whole baggy was used in the wrapping in State’s Exhibit 1.

When Detective Harrison was asked how much each of the 38 rocks would weigh if the total weight amounted to Dunn’s estimated two grams, he testified that each piece would be approximately .05 grams. Detective Harrison said a rock that size would sell for about $5.00 on the street. However, he has never encountered a situation in which rocks that small were sold on the street. Detective Harrison testified that he did not feel two grams of crack was indicative of intent to distribute, but that factors such as packaging might change his opinion. Neither Dunn nor Detective Harrison testified that he actually weighed the crack without the plastic wrap. Therefore, their testimony regarding the net weight of the cocaine (i.e., without the plastic wrapping) in evidence was based on estimation. It appears the jury gave more credence to Detective Harrison’s testimony regarding the weight, deferring to his considerable hands-on experience with narcotics sales.

Detective Harrison testified that a street to mid-level dealer would generally have cash in small denominations, based on the nature of their transactions. A total of $830.00 was found with the cocaine during the search of the Edenborn apartment. In all, there were two $100.00 bills, twenty $20.00 bills, twelve' $10.00 bills, nineteen $5.00 bills, and fifteen $1.00 bills. Detective Harrison testified that 113those denominations were consistent with distribution. A dealer generally has a large number of tens and twenties, with the occasional $100.00 bill.

Based on Detective Harrison’s testimony, as well as the testimony regarding defendant’s actions before and after his arrest in New Orleans, the evidence was sufficient to support the jury’s verdict that defendant had specific intent to possess cocaine with the intent to distribute.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court committed reversible error by admitting evidence of other crimes pursuant to LSA-C.E. art. 404.

DISCUSSION

Defendant argues that the admission of detailed testimony regarding his arrest in New Orleans constituted reversible error, as it was inadmissible “other crimes” evidence, used by the state to bolster its ease against him. Evidence of other crimes committed by the defendant is generally not admissible at trial. LSA-C.E. art. 404 B(l); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when such evidence tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Silguero, 608 So.2d 627, 629 (La.1992); State v. Aleman, 01-743, p. 8 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1064.

LSA-C.E. art. 404 B(l) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that |T constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Under Prieur, the State must satisfy several requirements before other crimes evidence may be admitted at trial. The first is to provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. One of the factors enumerated in Article 404 B(l) must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 625 So.2d 146, 149 (La.1993); State v. Maise, 99-734, p. 13 (La.App. 5 Cir. 3/22/00), 759 So.2d 884, 893, writ granted, 00-1158 (La.9/14/01), 795 So.2d 1219, judgment aff'd, 00-1158 (La.1/15/02), 805 So.2d 1141.

The probative value of the extraneous evidence must outweigh its prejudicial effect. State v. Maise, 99-734 at p. 13, 759 So.2d at 894. The burden is on the defendant to show he was prejudiced by the trial court’s admission of Prieur evidence. State v. Temple, 01-655, p. 20 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709.

Prior to trial, the State filed a Notice of Intent to Use Evidence of Other Crimes, detailing defendant’s activities and his arrest on South Murat Street in New Orleans in the early morning of October 31, 2000. On September 21, 2001, the court heard the matter. The State presented testimony by Detective Jules Martin regarding the events leading up to defendant’s New Orleans arrest. The parties stipulated to the police incident report made in connection with that arrest. The report detailed the joint investigation conducted by the Jefferson Parish Sheriffs Office and the New Orleans Police Department.

The defense argued that the State did not show any connection between the narcotics seized from defendant after his New Orleans arrest and the cocaine found at the Edenborn apartment. The State argued that the evidence was admissible launder C.E. art. 404 B to show knowledge and intent. The State further argued that the probative value of the evidence was not outweighed by any prejudicial effect it might have on defendant’s case. The trial court ruled, “The Court, under 404(B), will allow the evidence in as showing evidence of plan, knowledge, intent, motive and preparation of the defendant. And I think it meets the criteria of 404(B).”

The trial court did not err in allowing admission of evidence relating to defendant’s New Orleans arrest. The evidence was relevant for a purpose other than to show that defendant committed the charged offense, or that he was simply a bad person. The testimony that defendant was seen engaging in what appeared to be a drug transaction, and was subsequently found to be in possession of cocaine, was valid to show specific intent to sell the cocaine found in the Edenborn apartment, an element of the charged offense. The fact that defendant was arrested in possession of a key to the apartment also went toward proving defendant had knowledge of the cocaine hidden in the apartment.

It is arguable that the evidence at issue was admissible under the doctrine formerly known as res gestae. When evidence of other crimes or bad acts tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted. State v. Charles, 00-1586, p. 5 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close connexity between the charged and uncharged conduct is required to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” State v. Noten, 01-1818, p. 2 (La.6/25/01), 791 So.2d 607, 609 (per curiam) (quoting State v. Haarala, 398 So.2d 1093, 1097 (La.1981)).

In the instant case, Jefferson and Orleans Parish law enforcement worked together in investigating defendant. Defendant’s arrest in Orleans Parish was used |1(ias a basis for the search warrant in Jefferson Parish. The New Orleans arrest and accompanying seizure of cocaine from defendant’s person formed part of a chain of events connecting the surveillance of the defendant as he sold drugs on South Murat Street to the recovery of the evidence at the Edenborn apartment. The arrests in Orleans and Jefferson Parishes possess the close connexity required under res ges-tae. See, State v. Noten, supra. This Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues that his 30-year habitual offender sentence is excessive, given his age, family ties, and the fact that he does not have a history of violence.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). The trial judge is given wide discretion in determining a sentence, and if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. LSA-C.Cr.P. art. 881.4 D; State v. Richmond, 98-1051, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38. Factors an appellate court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentences imposed for similar crimes by the same court and |17other courts. State v. Ulmer, 99-1079, p. 4 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019.

In imposing the habitual offender sentence, the trial judge commented:

I vacate the sentence previously given of 20 years at hard labor in this matter and sentence him to 30 years at hard labor after considering all of the guidelines of 894.1 of the Code of Criminal Procedure, including all of his past, and I am going to say all of his past arrests, which have been admitted in the record, I know with objection by counsel, and his prior convictions.

The numerous prior arrests to which the judge referred were contained in the Criminal History Report and police rap sheets introduced by the State, and admitted by the court at defendant’s original sentencing. Many of the arrests listed in those reports were for minor municipal offenses. However, there were also arrests for possession of narcotics, aggravated battery, aggravated criminal damage, aggravated assault, aggravated burglary, and flight from an officer. The documents show there were numerous outstanding attachments for defendant for various offenses.

Defendant argues his sentence is severe, considering the relatively small amount of cocaine recovered at the Edenborn apartment. In State v. George, 34,621 (La.App. 2 Cir. 4/4/01), 785 So.2d 975, however, the court affirmed a 30-year sentence for a first felony offender who sold only $20.00 worth of cocaine to an undercover police officer. The trial judge noted that the defendant had a lengthy criminal record (at least eight prior felony convictions). In affirming the sentence, the court of appeal pointed out that the defendant had “demonstrated that he is not capable of leading a law-abiding life” because the record showed he had spent his entire adult life either committing crimes or in prison. George, 34,621 at p. 7, 785 So.2d at 980. See also, State v. Champ, 01-434, p. 6 (La.App. 5 Cir. 11/27/01), 803 So.2d 167, 170. Based on the foregoing, the trial judge did not abuse his sentencing discretion.

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

AFFIRMED.

      . Defense witness Brenda Price, defendant’s aunt, testified that defendant was married to Yale Washington, and the couple had a son named Mario. She further testified that the couple separated in October 2000.

      . Detective Harrison testified that he has weighed thousands of street level rocks this size, and that they have generally weighed between .1 and .2 grams.

      . It is noted that defendant did not file a written Motion to Reconsider Sentence, nor did he make a specific oral motion as prescribed by LSA-C.Cr.P. art. 881.1. Such an omission normally precludes review of a sentence on appeal. See, State v. Ewens, 98-1096, p. 10 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, this Court has routinely reviewed sentences for constitutional excessiveness even absent a defendant’s compliance with Article 881.1. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961.

      . A sentencing judge may consider a defendant’s prior convictions, as well as past criminal behavior which did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522; State v. Gilbert, 00-1822, p. 5 (La.App. 5 Cir. 1/16/01), 788 So.2d 574, 577.