author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Joshua A. GONZALEZ.
    No. 07-KA-449.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Thomas J. Butler, Appellate Counsel, Donald A. Rowan, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    James A. Williams, Attorney at Law, Gretna, Louisiana, for Appellant, Joshua A. Gonzales.
   Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.

SUSAN M. CHEHARDY, Judge.

|2On December 16, 2004, the Jefferson Parish Grand Jury returned an indictment charging defendant, Joshua A. Gonzalez, with second degree murder of Akbar Smith, in violation of La. R.S. 14:30.1, and attempted second degree murder of Raymond Nelson, in violation of La. R.S. 14:30.1 and 14:27. Defendant was arraigned and pled not guilty.

On October 5, 2006, defendant waived his right to a jury trial and the matter proceeded in a bench trial. After the presentation of evidence, the trial judge found defendant guilty as charged of second degree murder but acquitted defendant on the charge of attempted second degree murder. On October 20, 2006, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant filed a timely motion for appeal, which was granted.

Facts

At trial, Joshua Nieves testified that, on October 22, 2004, defendant called him to inquire about purchasing marijuana and cocaine. Nieves agreed to sell the narcotics to defendant for $400.00. Nieves, Akbar Smith, and Raymond Nelson |adevised a plan to rob defendant, instead of selling him narcotics. According to the plan, Nieves would take defendant’s money and proceed on foot to retrieve the narcotics from an undisclosed location. Smith would pretend to assault Nieves and take defendant’s money before Nieves had retrieved the narcotics. Smith and Nieves would then flee with defendant’s money.

At approximately 10:30 p.m., Nieves met defendant at an apartment complex in Ter-rytown. As planned, Nieves took defendant’s money, under the guise of obtaining the drugs from a hidden location. As Nieves walked away from defendant, Nieves passed a breezeway between apartment buildings and Smith knocked him down, causing Nieves to drop the money. Smith then picked up the money and fled. Nieves immediately followed Smith. At that point, Nieves heard five or six shots and saw Smith fall to the ground. Nieves did not see what defendant was doing because it was dark.

Dr. Susan Garcia, a stipulated expert in the field of forensic pathology, testified that she performed an autopsy on Smith. She further testified that a bullet entered the back of his Smith’s neck, severed his spinal cord, and killed him.

Detective David Morales of the Jefferson Parish Sheriffs Office (JPSO) testified that he developed defendant as a suspect. When defendant eventually turned himself in, Detective Morales advised him of his rights. After defendant waived his rights, he gave a statement.

In his first statement on October 24, 2004, defendant explained that he had stopped for gas when he saw the apartment complex. Because he was looking for a new place to live, he parked in the lot to check out the area. As he was doing so, Nieves came up to him. While they were talking, two other people came up to defendant, pushed him to the ground and took his money. Defendant said that he “blacked out,” went to his car to get his Smith and Wesson 9 mm semi-automatic | ¿handgun, and chased them. Defendant stated that he did not want to shoot at them but that he meant to shoot in the air to try to stop them so he could get his money back. He admitted that he “could not” lift his arm when he was shooting and could not stop firing. Defendant explained that, after the shooting, he got scared and left. He told the detective that the gun he used was in the trunk of his vehicle.

When Detective Morales realized that defendant’s statement was inconsistent, he took a second statement from defendant. In his second statement dated October 24, 2004 at 2:33 p.m., defendant said that he did not tell the complete truth during the first statement because he was scared. Defendant explained that he received a call from his friend, Daliah, who told him that she knew some people who could get any drugs he wanted. After a few phone calls with Nieves, defendant agreed to purchase marijuana and cocaine for $425.00.

Defendant went to the parking lot near the Chevron station and waited there. After another phone call from Nieves in which he heard several other voices in the background, he thought that the men intended to rob him. Before exiting his vehicle, defendant picked up his gun, chambered a round and put the gun in the back of his belt.

Nieves suddenly approached him and told him that “they” needed the money before they could give him the drugs. Defendant gave Nieves the money and then began to follow him to see where he was going.

Defendant indicated that, before Nieves turned the corner, he was “assaulted,” but he was “not touched.” Nieves fell backwards and threw the money in the air. Defendant said that the other “guy” picked up the money and “they” ran off. He stated that the assault appeared “fake” to him, and he thought that they had set him up. He indicated that he “just got mad,” “lost control,” and |5“blacked out.” He “meant to shoot at the air to try and get them to stop running but ... just couldn’t lift [his] arm up, ... just couldn’t stop shooting.”

Defendant stated that he was approximately 50 or 60 feet away from them, so he did not think that he was going to hit any of them when he fired his weapon. He saw one of the black males dive down like he was trying to avoid being shot. Defendant admitted that he was surprised that two of the males were wounded because he only aimed at one. He also stated that he was “only firing at one and the other one was way out of reach.” He told the detectives that he had placed the ammunition clip that he used on the night of the shooting near the trunk of a tree at his cousin’s house in Gonzales, Louisiana.

Detective Morales testified that, after obtaining a search warrant for defendant’s vehicle, he recovered a Smith and Wesson semi-automatic 9 mm pistol from defendant’s trunk. Upon checking the pistol, Detective Morales discovered that there was one live round in the chamber. Detective Morales also recovered two Smith and Wesson 9 mm clips: one from defendant’s cousin’s backyard in Gonzales, and one from defendant’s house in Marrero.

Defendant testified at trial that his friend, Daliah Hackling, called and told him she knew some people from whom he could purchase drugs. Through a series of telephone calls, Nieves gave defendant directions to the apartment complex. During those calls, defendant heard voices in the background. Defendant testified that he was in his car at the apartment complex when Nieves showed up, and that Nieves did not see him at first. When he saw Nieves coming up by himself, defendant grabbed his gun, chambered a round, and put the gun in the back of his belt underneath his shirt.

After defendant exited his vehicle, Nieves approached him and asked for the money. Defendant gave Nieves $430.00. Nieves, in turn, told defendant that he | ¿was going to get the drugs, and to wait in that spot. Defendant did not know where Nieves was going, so he followed him. He testified that Nieves had barely made it to the corner of the first apartment building, when an unknown man, later identified as Smith, assaulted Nieves. Defendant said he knew that the men were trying to set him up, because Nieves fell backwards, even though Smith had barely touched him.

After Nieves dropped the money on the ground, Smith picked it up and started running. Defendant testified that he intended to chase Smith to get his money back, but, when he turned the corner, he saw Nelson coming towards him. He admitted that he did not mention seeing Nelson in his statements.

When defendant realized they were trying to rob him and that anything could happen, defendant ran back towards his car. As he did so, he aimed the gun in their direction and fired three shots. Defendant testified that he could not see what he was shooting at because there were no lights in the area, and he was at least 40 or 50 feet away from them. After-wards, defendant got in his car, drove back to Gonzales, and stayed at his cousin’s house. He claimed that he did not know at that time he had hit any of them.

In his sole assignment of error, defendant argues that the trial court erred in finding the defendant guilty of second degree murder where there were no facts to support this conclusion. Defendant contends that the evidence was insufficient to support a second degree murder conviction because the State failed to show that he had the specific intent to kill or to inflict great bodily harm. He contends that the trial judge erred when he stated that defendant’s conduct amounted to criminal negligence, yet still found him guilty of second degree murder. He also contends that the trial judge misstated the law applicable to manslaughter. He maintains that the evidence shows, at most, that he committed manslaughter.

|7The State responds that, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of second degree murder.

After hearing the testimony and considering the evidence, the trial judge found defendant guilty as charged of the second degree murder of Akbar Smith. He stated in pertinent part:

Article 32 of our Criminal Code, negligent homicide reads, that negligent homicide is the killing of a human being by criminal negligence, and it certainly was criminal negligence.
Then we get to manslaughter, which is a homicide which would be murder under Article 30, Article 30.1, where the offense is committed in sudden passion or heat of blood, immediately caused by provocation sufficient to deprive an average person of self control and cool reflection.
Provocation, the way I read the statute, would mean that the defendant — the defendant would have to be in fear of his life, or the life of someone else.
Even the police aren’t allowed to shoot a felon running away from them, so I’m going to have no — I don’t believe that any shots were fired towards Mr. Gonzalez, and we have no evidence that any of the — either the victim or the other subjects there had weapons, so I’m going to have to find him guilty of this charge.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of Isinnocence.” State v. Boss, 03-133, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 77, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508.

[I]n cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt.

State v. Pigford, 05-0477, p. 6 (La.2/22/06), 922 So.2d 517, 521.

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A). See State v. Kirkland, 01-425, p. 6 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. In the instant case, the State apparently proceeded under the first theory of second degree murder.

Under the first theory of second degree murder, the State must prove that defendant had the specific intent to kill or to inflict great bodily harm. State v. Kirkland, 01-425, p. 7, 798 So.2d at 268. 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.” La. R.S. 14:10(1). Id. Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La.1982); State v. Young, 05-702, p. 6 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 95. The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Hidalgo, 95-319, pp. | fl14—15 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188, 1197-98. Whether a defendant possessed the requisite intent in a criminal case is for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Meyers, 95-750, p. 8 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378, 1383, writs denied, 97-0015 (La.5/9/97), 693 So.2d 766, 98-2530 (La.2/5/99), 737 So.2d 745, 00-0995 (La.12/8/00), 775 So.2d 1079.

In this case, we find that there was ample evidence to support defendant’s second degree murder conviction. Specifically, the facts established by the direct evidence and inferred from the circumstances established by that evidence, viewed in the light most favorable to the prosecution, were sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime.

The record reflects that defendant loaded his gun and hid it in the back of his belt prior to the drug transaction because he thought Nieves and his friends were going to rob him. After defendant gave his money to Nieves, witnessed the staged robbery, and realized he had been robbed, he aimed the gun in the direction of Smith and Nieves, who were fleeing, and fired three shots. He admitted that he was aiming mainly at one of the men so he was surprised that he shot both of them. Although defendant claims that he did not have the specific intent to kill Smith or to inflict great bodily harm on him, the act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Hidalgo, 668 So.2d at 1197-98.

Defendant further argues that the trial court erred when it stated that his conduct amounted to criminal negligence, yet still found him guilty of second degree murder. Negligent homicide is “the killing of a human being by criminal |10negligence.” La. R.S. 14:32.A. “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La. R.S. 14:12. We agree that the trial judge stated that the defendant’s actions were criminally negligent but our reading of the judge’s comments indicate that he found that defendant’s act of shooting at the fleeing robbers went beyond negligent to become intentional, which supports the finding of second degree murder.

Defendant next argues that the trial court erred when it misstated the law applicable to manslaughter. To support a conviction of manslaughter, the evidence must show that the homicide, which would have been second degree murder, was 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.” La. R.S. 14:31(A)(1). See also State v. Hicks, 01-1064, p. 7 (La.App. 5 Cir. 4/10/02), 817 So.2d 192, 197, writ denied, 02-1580 (La.5/30/03), 845 So.2d 1068. The provocation shall not reduce the homicide to manslaughter, if it is proven 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. La. R.S. 14:31(A)(1). See also State v. Gant, 06-232, p. 10 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1112, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors which may reduce the grade of the offense. State v. Johnson, 01-1362, p. 11 (La.App. 5 Cir. 5/29/02), 820 So.2d 604, 610, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory Infactors by a preponderance of the evidence. Id., 01-1362 at pp. 11-12, 820 So.2d at 610. Provocation and time for cooling are questions for the fact finder to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Deal, 00-434, p. 5 (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).

In State v. Armant, 97-1256 (La.App. 5 Cir. 5/27/98), 719 So.2d 510, writs denied, 98-1884 (La.11/20/98), 729 So.2d 3, and 98-1909 (La.11/20/98), 729 So.2d 4, the defendant was convicted of attempted second degree murder in a bench trial. On appeal, the defendant argued that the State failed to prove he had the specific intent to kill, which was required to support a conviction for attempted second degree murder. Id., 97-1256 at p. 9, 719 So.2d at 514-15. This Court noted that the trial judge might have misapplied the law in arriving at his verdict, since the trial judge stated that he had to look at whether there was specific intent to kill or to inflict great bodily harm. With due process considerations in mind, this Court found that the test to be applied depended upon the facts of the particular case. Id., 97-1256 at 15, 719 So.2d at 517. After a lengthy discussion of the law, this Court used a harmless error analysis. Id.

• This Court in Armant found that the evidence proved that defendant had the specific intent to kill the victim. It further found that the trial judge’s verdict was unattributable to the statements he made prior to convicting the defendant. Even though the trial judge referred to the threat of bodily injury, this Court noted that other comments made by the trial judge indicated that he also believed the defendant intended to kill the victim. Id., 97-1256 at p. 16, 719 So.2d at 517-18.

In a case similar to Armant, State v. Lewis, 34,805 (La.App. 2 Cir. 6/22/01), 793 So.2d 302, the defendant was convicted of attempted second degree murder in a bench trial. On appeal, the defendant argued that the trial court used the wrong l^law in finding him guilty. The appellate court stated that, even though the trial court made an incorrect utterance regarding specific intent, its factual finding that the defendant shot the victim in the face or head was sufficient to infer the defendant’s specific intent to kill the victim. Citing Armant, the appellate court found that any error in the trial court’s utterance was harmless under the particular facts of this case. Id., 34,805 at p. 10, 793 So.2d at 308.

In the instant case, defendant is correct that the trial judge misstated the law on manslaughter when he said that the provocation referred to in the statute meant that defendant would have to be in fear of his life or the life of someone else. Nevertheless, under the facts of this case, we find that those errors were harmless, since there was ample evidence to show that defendant had the specific intent to kill or to inflict great bodily harm on the victim sufficient to convict him of second degree murder. See Armant, supra; Lewis, supra.

Based on the foregoing, we find that, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of second degree murder. Accordingly, this assignment of error lacks merit.

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that the trial court failed to inform defendant of the time limitations within which he must apply for post-conviction relief. La.C.Cr.P. art. 930.8 provides that a defendant has two years from the date the judgment of conviction and sentence has become final in which to apply for post-conviction relief. Therefore, we remand this matter to the trial court to properly inform defendant of the prescriptive period by sending him written notice within ten days of the rendition of this opinion and to file written |isproof in the record that defendant received such notice. State v. Vance, 06-465, p. 9-10 (La.App. 5 Cir. 12/12/06), 948 So.2d 1106, 1112, writ denied, 07-0062 (La.9/21/07), 964 So.2d 331.

AFFIRMED; REMANDED.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dartainan N. TAYLOR.
    No. 07-KA-474.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appel-lee.
    Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

| .This is a criminal proceeding in which the defendant Dartainan N. Taylor timely appeals his simple criminal damage to property conviction, a violation of La. R.S.14:56, and his two-year suspended hard labor sentence. We affirm the conviction and sentence. We remand with instructions.

On April 11, 2007, the defendant entered into a colloquy with the trial judge and waived his right to a jury trial. That day, the trial judge found the defendant guilty of simple criminal damage to property over $500.00. After the defendant waived sentencing delays, he was sentenced.

J¿FACTS

According to victim Claude Moses, Jr., on December 6, 2005, the defendant bashed Moses’ car with a baseball bat and pulled a gun on Moses. On the other hand, the defendant testified denying the allegations. Moses’ other vehicle — a truck — had been previously vandalized. Moses stated he had stayed with the defendant for about two days prior to the incident. Moses testified he had a conversation with the defendant regarding Moses’ girlfriend and Moses’ truck, which had previously received four flat tires and sugar in its tank. Moses, however, stated he did not believe his girlfriend damaged this car, but admitted she knew the location of the defendant’s house.

Moses testified that on the day of the incident, he went to the defendant’s house. The defendant was not there at the time, but when Moses called him, the defendant said he was on his way. Moses and the defendant’s younger brother went to the store and bought a pizza. When they returned to the defendant’s house, someone was dropping the defendant off. Moses and the defendant’s brother went inside to start cooking the pizza. Moses stated that the defendant never came inside. While Moses was inside, he heard the breaking of glass and went outside to find the defendant holding a baseball bat with tape around it and bashing the windows out of his car. Moses testified that he did not know of anyone who was outside with the defendant at this time. According to Moses, when he asked the defendant what was going on, the defendant responded for him to get away from his house and that he did not want to catch Moses there again. Moses testified that |4the defendant also pulled out a gun. Moses stated that he entered his car and drove to a Time Saver, where he called the police.

Deputy Thelma Hill responded to the call. Deputy Hill testified that the victim was upset about his damaged car and fearful for his life. The victim named the defendant as the perpetrator.

At trial Moses identified the defendant as the individual who hit his car with a baseball bat and threatened him with a gun. Moses also identified photographs of his damaged 1996 Toyota Avalon. An estimate from Lakeside Toyota on the windows and body damage to the car totaled $4064.73.

Aderious Simmons, the defendant’s brother, testified that he knew Moses’ tires were flattened and sugar was put in the tank of his truck. He testified that Moses believed Moses’ girlfriend was responsible. Simmons also testified that the defendant was not present when he and Moses returned with the pizza. Simmons acknowledged there was a wooden bat with black tape around the handle behind the door of a bedroom. He testified that Moses went outside the house, yelling, and that he did not hear the defendant or any loud noises.

The defendant testified that he knew Moses for over ten years and Moses had been staying with him for a couple of days. According to the defendant, Moses was hiding his new car because Moses’ girlfriend had destroyed Moses’ truck. He testified that when he got home, Moses’ car was there so he told Moses to come outside and then told him to leave because of things he had been hearing about drugs. The defendant agreed that a bat was kept in his brother’s room. He also stated that sometimes it was behind the front door. He owned a gun, but denied pulling a gun on Moses.

Moses testified that the defendant told him he bought a gun from a State Trooper. The defendant, however, denied telling Moses this, and the defense |Rpresented a firearm receipt to dispute the claim the defendant purchased the gun from a trooper.

The defendant stated that the car was still intact when it left his house.

ASSIGNMENT OF ERROR NUMBER ONE

THE TRIAL COURT ERRED IN FINDING SUFFICIENT EVIDENCE TO CONVICT MR. TAYLOR OF SIMPLE CRIMINAL DAMAGE TO PROPERTY OVER $500.00.

DISCUSSION

The defendant argues the State failed to prove beyond a reasonable doubt that he damaged Moses’ car because Moses was not a credible witness and his testimony was not corroborated. He contends the State did not exclude the reasonable hypothesis that someone else, such as the victim’s girlfriend, could have damaged the car.

The State disagrees.

The defendant was convicted of simple criminal damage to property in violation of La.R.S. 14:56. According to R.S. 14:56(A), “[s]imple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.” (Footnote added). “The crime of simple criminal damage to property requires only general criminal intent.” State v. Shaw, 37,168, p. 10 (La.App. 2 Cir. 6/25/03), 850 So.2d 868, 875 (citing LSA-R.S. 14:11). An owner’s lack of consent to malicious vandalism of an owner’s property can often |fibe inferred circumstantially from the evidence presented. State v. Jupiter, 06-93, p. 6 (La.App. 5 Cir. 6/28/06), 934 So.2d 884, 888 (citation omitted).

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, supra, at 319, 99 S.Ct. 2781 (citation omitted), the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See also State v. Holmes, 98-490, p. 3 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

“Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, ‘assuming every fact to be proved that the evidence tends to prove.’ La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).” State v. Watson, 00-1580 (La.5/14/02), 817 So.2d 81, 92, cert. denied, Draughn v. Louisiana, — U.S. -, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

The crux of the defendant’s argument is that Moses’ testimony was not credible. Thus, the trial judge should have rejected it. Thus, the argument questions the credibility of the witness.

“The requirement that the evidence be viewed in the light most favorable to the prosecution obliges the reviewing court to defer to ‘[t]he actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.’” State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56. (citation omitted). “The reviewing court is not permitted ‘to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.’ ” Id. “It is not |7the function of an appellate court to assess credibility or re-weigh the evidence.” Id. (citation omitted).

“In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding.” State v. Addison, 00-1730 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549 (citation omitted).

The defendant suggests that an ex-girlfriend could have been responsible for the damage to Moses’ car. At trial, testimony was presented regarding previous damage to Moses’ truck and that Moses believed his ex-girlfriend was responsible for this. However, Moses testified that his ex-girlfriend was not responsible for the damage to his car. Moses said he believed the defendant was alone outside with his car. Further, Moses testified that he observed the defendant damaging his car with a bat. He testified that he immediately called the police after leaving the defendant’s house.

The defendant denied that he vandalized Moses’ car and stated that the car was still intact when it left his house. However, after hearing the testimony and evaluating the credibility of the witnesses, the trial judge apparently believed that the defendant committed simple criminal damage to property.

After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant guilty of simple criminal damage to property beyond a reasonable doubt.

This assignment of error lacks merit.

ERROR PATENT DISCUSSION

|sThe record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

We note a non-reversible error patent in the bill of information. There are three grades for the criminal damage to property offense based on the damage value. The grades determine the sentencing exposure. These are: (1) less than $500.00; (2) $500.00 but less than $50,000; and, (3) $50,000 or more. La.R.S. 14:56(B)(1), (B)(2), and (B)(3). The bill of information charged the defendant with criminal damage to property of Claude Moses’ 1996 Toyota Avalon with a value greater than $500.00. La.C.Cr.P. art. 465(A)(19) authorizes the following short form indictment:

Simple Criminal Damage to Property— A.B. committed simple criminal damage to_(state the property damaged) with the damage amounting to _dollars.

In this case, the bill did not specify the amount of damage but stated it was greater than $500. Moreover, it did specify the amount was less than $50,000. Thus, the bill was deficient for failure to specify the amount as required by the short form indictment. We held in State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403 that although the bill was defective in that it only stated the minimum and not the maximum damage, it was sufficient.

We further note that at the conclusion of trial, the trial judge merely stated that he found the defendant guilty of criminal damage to property valued at over $500.00. He failed to include the maximum amount for the grade of the offense.

The Louisiana Supreme Court cases of State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015 (guilty plea to a crime that was not responsive to the crime charged in the bill of information), and State v. Jones, 05-0226 (La.2/22/06), 922 So.2d 508 (conviction returned by an improper configuration of | ;jurors) signal a recent change of direction for the appellate courts regarding defects in the proceedings as “error patent.” State v. Price, 05-2514 (La.App. 1 Cir. 12/28/06) 952 So.2d 112, 124.[E]ven violations of the constitution, that are not inherently prejudicial to the defendant are no longer considered reversible “patent error.” Id.

We find the error is not inherently prejudicial to the defendant. We conclude it is sufficiently clear from the testimony of the victim that the damage to his car was less than $50,000, and that the trial judge found the defendant guilty of simple criminal damage to property where the damage done amounted to $500.00 or more, but less than $50,000.00. Compare, State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403 (jury verdict not so defective as to be reversible).

We note, however, that the eommitment/minute entry does not reflect the proper grade of the offense. The commitment reflects defendant was found guilty of simple criminal damage to property “$500 +This notation is inaccurate, since defendant’s offense was simple criminal damage to property where the damage done amounted to $500.00 or more, but less than $50,000.00. Compare, State v. Chisley, 06-900 (La.App. 5 Cir. 4/24/07), 957 So.2d 226, 229; State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 513 (La.App. 5 Cir. Dec 27, 2006). The district court is directed to make an entry in the minutes/commitment reflecting the proper grade of the offense, i.e. simple criminal damage to property where the damage done amounted to $500.00 or more, but less than $50,000.00. The clerk of court is directed to transmit the original of the minute entry/commitment to the officer in charge of the institution to which the defendant has been committed. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

ImFinally, we note that the trial court failed to advise the defendant of the prescriptive period for post-conviction relief as provided in La.C.Cr.P. art. 930.8.

Accordingly, it is ordered that the defendant’s conviction and sentence are affirmed. We further order that this case be remanded to allow the trial court to amend the commitment as directed above. Finally, we order that the trial court send the defendant written notice of the prescriptive period for post-conviction relief applications within 10 days of this judgment, and that evidence of said notice be filed in the record. See State v. Jupiter, 06-93 (La.App. 5 Cir. 6/28/06), 934 So.2d 884, 895 (citation omitted).

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The trial judge imposed a two-year sentence. He then suspended the sentence and placed the defendant on two-years active probation. Next, he added that the defendant pay a $300 fine plus costs, and make restitution to the victim in the amount of $4,064.73. The trial judge awarded a lump sum payment to the victim in accordance with La.C.Cr.P. art. 895.1(A)(1). The probation conditions form signed by the judge and the defendant recognized that the fine, costs, and restitution were conditions of probation. The commitment signed by the judge also reflects that those are the probation conditions. The failure of the trial judge to precisely state in the sentencing transcript that these were “probation conditions” was not inherently prejudicial and did not affect the substantial rights of the defendant. See, La.C.Cr.P. art. 921; Compare, State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309, 310 (per curiam) (To the extent that the commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant's confinement, the failure of the transcript of the multiple offender hearing to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant). Here, the defendant clearly was aware as was the trial judge of the probation conditions.

      . Defense counsel filed an appellant brief on August 20, 2007, raising three assignments of error: (1) insufficient evidence; (2) no judge finding of guilt; and, (3) no jury trial waiver. The State filed a brief in response and had the record supplemented. The supplement corrects the record. The supplemental transcripts show a judge finding of guilt and a jury trial waiver. Later, defense counsel filed a supplemental brief on October 15, 2007, only raising the first assignment of error previously asserted in the original brief. Defense counsel requested that this Court only consider the supplemental brief filed.

      . La.R.S. 14:55 provides in pertinent part that “[alggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.”


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Francis HOTARD, Jr.
    No. 07-KA-498.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Harry J. Morel, Jr., District Attorney, Juan Byrd, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
   Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.

GREG G. GUIDRY, Judge.

| ¡.The Defendant, Francis Hotard, appeals from his conviction by a jury of molestation of a juvenile, a violation of La.R.S. 14:81.2. We affirm.

The victim, B.T., is the youngest of Ms. V’s three children. The Defendant is the father of her other/two children. The child claimed that the Defendant kissed her genitals on or about October 28, 2005. B.T. was five years old at the time.

The sole issue on appeal is whether defense counsel was ineffective for objecting on allegedly incorrect grounds to the admission of a letter written by the Defendant containing sexual comments about his minor daughter, and the testimony of his ex-wife, Cassandra Hotard, concerning his sexual interest in her niece, also a minor.

laThe Defendant argues that his attorneys’ arguments and objections to the admission of the evidence were erroneously based on the need for a Prieur hearing, rather than the prejudicial nature of the evidence. He asserts that neither of the communications at issue fall within the evidentiary rules regarding prior crimes evidence.

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. State v. Lagarde, 07-123, p. 17 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1117. In assessing a claim of ineffectiveness, a two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is employed. The defendant must show that (1) his attorney’s performance was deficient and (2) the deficiency prejudiced him. To establish prejudice, the defendant must show that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Lagarde, 07-123 at 17, 960 So.2d at 1117. “The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which ... will often be so, that course should be |4followed.” State v. Stewart, 00-2960, p. 10 (La.3/15/02), 815 So.2d 14, 19 (per curiam) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2069).

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. However, this record is adequate to address the claims. See: State v. McIntyre, 97-876, pp. 10-11 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753 (citations omitted).

La.C.E. art. 412.2 provides for the introduction of evidence in sex offense cases as follows:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
⅝ ⅜ ⅝ ⅝
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule. [Emphasis added.]

La. C.E. art. 403 provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

Following selection of the jury, but prior to the presentation of testimony at trial, defense counsel requested that the State instruct its witnesses not to discuss other crimes. The State contended that it had the authority to present evidence of the Defendant’s lustful behavior under La.C.E. art. 412.2. Defense counsel argued that La.C.E. art. 412.2 required a pretrial Pri-eur hearing. The trial judge found that a pretrial hearing was not required under the Article. He further stated that he lswould rule on whether the evidence was admissible under La.C.E. art. 403 when it was introduced, and that he would instruct the jury that the Defendant was not on trial for other crimes. The judge cautioned the State that the evidence had to be competent to be admitted, and to refrain from eliciting hearsay.

The letter at issue was written by the Defendant and handed to Ms. Y. in March or April of 2005. It concerned their daughter A.H. Ms. V. read a portion of the letter to the jury. In it, the Defendant states that, “I don’t think I just love her but fell in love with her,” and he indicated that he wanted to have a relationship with her. Ms. V. testified that the letter upset her. In discussing it with the Defendant, he stated that, even though society thought it was wrong, he felt a sexual relationship with his daughter was not inappropriate. This constitutes evidence of lustful disposition toward children as described in La. C.E. art. 412.2. The defense attorneys did not object to the admission of the letter, but noted their pretrial request.

Ms. Hotard testified that she had a conversation with the Defendant about her 11-year-old niece in which he told her that “he wanted to go down” on the child. The Defendant further stated that he did not want a relationship with the girl, and he did not think it mattered whether he or some inexperienced young boy first engaged in sexual activity with the child. Ms. Hotard said that the Defendant later told her that he only made that statement to make her angry. This also constitutes evidence of lustful disposition toward children as described in La. C.E. art. 412.2. Defense counsel objected to the testimony as inadmissible evidence of other crimes.

Defense counsel did not contemporaneously object to the letter or the testimony being admitted as evidence of lustful disposition. To preserve the right to seek appellate review, counsel must state an objection contemporaneously with | fithe occurrence of the alleged error as well as the grounds for that objection. State v. Housley, 05-502, p. 9 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 664-65, writ den., 06-1183 (La.11/17/06), 942 So.2d. 531 (citing La.C.Cr.P. art. 841). A new ground for an objection cannot be presented for the first time on appeal. Housley, 05-502 at 9, 922 So.2d at 665 (citation omitted). Nevertheless, the conduct of the Defendant’s two defense attorneys in this case do not constitute ineffective assistance of counsel.

The trial judge correctly concluded that it was not required to conduct a pre-trial hearing prior to admitting evidence under La.C.E. art. 412.2. State v. Williams, 02-1030, 02-0898, p. 6 (La.10/15/02), 830 So.2d 984, 987. Furthermore, La.C.E. art. 412.2 allows for the admission of evidence of the Defendant’s lustful disposition toward children. It does not require that the evidence be a prior criminal act or evidence of an actual sexual offense.

In State v. Miller, 98-0301, pp. 11-14 (La.9/9/98), 718 So.2d 960, 966-67, the Louisiana Supreme Court held that a “prurient and highly inappropriate statement” by the defendant to his neighbor’s child was relevant to show the defendant’s lustful disposition toward young girls. This case, decided prior to the enactment of La.C.E. art. 412.2, held that the evidence was admissible under La.C.E. art. 404(B)(1) on the basis that the statement made to the victim was independently relevant to prove intent, an element of the offense. The court noted that the defendant’s statement was conduct far less serious than the crime for which the defendant was charged and would not unduly inflame the jury. The court stated that “[t]he ‘other crimes, wrongs or acts’ sought to be admitted ‘need not be acts that violate the law. Nor need the acts constitute misconduct.’ ” Miller, 98-0301at 13, 718 So.2d at 967, nt. 10 (citing John E.B. Meyers, Uncharged Misconduct Evidence in Child Abuse Litigation, 1988 Utah L.Rev. 479, 479 (1989)).

Although the trial judge here failed to specifically rule on the admissibility of the evidence under La.C.E. art. 403, he admitted it and implicitly found that the probative value was substantially outweighed by the danger of “unfair prejudice, confusion of the issues, or misleading the jury....” This is especially true in light of his stated intention to conduct a La.C.E. art. 403 analysis when the evidence was introduced. Furthermore, there is no indication that the lustful disposition evidence confused the jury. It was presented in an orderly manner, the evidence of the Defendant’s prior conduct was presented clearly through the testimony of witnesses other than the victim, and the trial judge gave a limiting instruction concerning the evidence. Thus, there was little chance that the jury would confuse the facts of the prior conduct with the conduct involving the victim at issue. In any event, any error in the admission of the evidence is subject to a harmless error analysis. See State v. Williams, 05-318, p. 4 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1036, unit denied, 06-0973 (La.11/3/06), 940 So.2d 654. An error is harmless when the verdict is “surely unattributable to the error.” Id.

In this case, the jury’s verdict was surely unattributable to the alleged error. The evidence presented at trial was more than sufficient to convict under the Jackson standard, without consideration of the evidence of lustful disposition. Despite minor inconsistencies in the victim’s testimony, the jury chose to believe the victim. This was a reasonable conclusion further supported by the testimony of others. The Defendant has not shown that, but for the failure of counsel to object Ron the correct basis, the outcome of trial would have been different. Consequently, we find that the Defendant’s attorneys were not ineffective.

Accordingly, the conviction is hereby affirmed.

AFFIRMED.

      . The Defendant was sentenced on April 19, 2007, to 10 years with the Department of Corrections and ordered to register as a sex offender.

      . In accordance with La.R.S. 46:1844(W), the initials of the victim and those of certain family members are used herein to protect the victim’s identity.

      . State v. Prieur, 277 So.2d 126, 128 (La.1973) held that evidence of other crimes, wrongs, or acts is generally inadmissible to impeach the character of the accused. See: La.C.E. art. 404(B). State v. Blank, 04-0204, p. 39 (La.4/11/07) 955 So.2d 90, 123. However, such evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or ... (res gestae).” La.C.E. art. 404(B)(1).

      . La. C.E. art. 404 B(1) provides:
      (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.

      . The standard for review under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) is whether, "the conviction was 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.” See also: State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310.

      . The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310. The review reveals no errors patent in this case.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Wynn S. JONES, Jr.
    No. 07-KA-512.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Donald A. Rowan, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Wynn Jones, Angola, Louisiana, Defendant/Appellant, pro se.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.

MARION F. EDWARDS, Judge.

| ?Defendant/appellant, Wynn S. Jones, Jr. (“Jones”), appeals his conviction on four counts of armed robbery, one count of simple robbery, and one count of attempted simple robbery. We affirm his convictions and remand with instructions.

Jones entered a plea of not guilty and filed several pre-trial motions, including motions to suppress his confession, evidence, and identification, all of |swhich were denied after a hearing. Prior to trial, Jones withdrew his not guilty plea and entered a plea of guilty pursuant to North Carolina v. Alford and State v. Crosby. On counts one through four, Jones was sentenced to 49 years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Additionally, he was sentenced to seven years of imprisonment at hard labor on count five and three years and six months of imprisonment at hard labor on count six. The court ordered all sentences to run concurrently.

The following facts are taken from the suppression hearing: Detective Dax Russo (“Detective Russo”) of the Jefferson Parish Sheriffs Office participated in an investigation regarding a series of robberies that occurred from December 2004 until January 19, 2005. Jones was arrested on January 19 for a robbery of a cellular telephone business, NEXTECH, that had occurred that day. A search incident to an arrest was conducted, and, as a result of the search, Detective Russo received a 20 dollar bill, a nine millimeter live cartridge, a pay-out stub for NEXTECH, and a roll of coins, which was consistent with items taken in the robbery.

On the day Jones was arrested, Detective Russo advised him of his rights and Jones signed a waiver of rights form, acknowledging he understood his rights. Two recorded statements were taken, one at 7:50 p.m. and the second at 8:34 p.m. that same evening. At the beginning of his first statement, Jones acknowledged he understood his rights and was waiving them. At the beginning of his second statement, Jones was reminded of his rights and acknowledged that he again was waiving them. Detective Russo testified that Jones was not forced or coerced or promised anything of value for his statements.

UAccording to Detective Russo, the first statement concerned the NEXTECH robbery while the second statement concerned other robberies that occurred from December 2004 until January 19, 2005 on the Westbank. The statements were admitted into evidence. In his first statement, Jones admitted he received money from the register after he grabbed an employee by her arm and put a kitchen knife to her throat during the robbery. In his second statement, Jones admitted he robbed a cashier at Philly’s Steak House with a knife and was given money from the cash register. He then admitted that, on another occasion, he robbed a different employee at the Philly’s Steak House using the same knife and that he took money out of the register himself. Jones then stated he robbed a gas station on the Expressway, snatching money from the register while unarmed. He also discussed two other robberies at gas stations. He explained that, in one attempt, he tried reaching into the register after purchasing a drink at a Shell Station on the Expressway, but the employee closed the register, grabbed a baseball bat, and ran him out of the store. He did not get any money and was unarmed. Jones then discussed a second robbery on the same day at a Shell Station on Ames and Lapalco. He explained that he asked the employee for change for his dollar to use the phone, and, when the cashier tried to give him change, he reached and grabbed the money. He stated that he showed the cashier a knife, and she backed up. Jones identified himself as the person shown in photographs, taken from surveillance video, given him by the detective.

Detective Russo testified that, as to the NEXTECH robbery, three employees gave an account of what happened and were taken to the scene where Jones was apprehended. All three employees identified him as the suspect. Regarding the other robberies that occurred prior to January 19, photographic line-ups that included Jones’ photograph were used. Detective Russo testified that Julia |fiMartin identified Jones from a photographic lineup as the suspect in the January 14, 2005 robbery of the Shell Gas Station on Lapal-co Boulevard. Rosie Johnson identified Jones in a photographic line-up as the suspect in a January 14, 2005 robbery at the Shell Gas Station on the Westbank Expressway.

Detective Kevin Decker of the Jefferson Parish Sheriffs Office also participated in the investigation of the robberies. He testified that he showed a photographic lineup to victim Carl Howell and witness Henry Diamond regarding a December 22, 2004 robbery at Philly’s Steak House on the Westbank Expressway. Separately, both identified Jones in a photographic lineup. With regard to a January 9, 2005 robbery at the Shell Gas Station on the Westbank Expressway, Haroon Iqbal identified Jones in a photographic lineup. In both of these robberies, a still photograph from the surveillance video was available.

On appeal, counsel for Jones argues his statements were given involuntarily because he was under the influence of heroin and cocaine, and also because, after he resisted arrest (but prior to questioning), he was intimidated and manhandled by the police, causing injuries that had to be treated at Charity Hospital. Jones urges that he was in no physical condition to comprehend the seriousness of the charges and waiver of rights, and, thus, had a diminished capacity to fully understand either his rights and/or their waiver. He argues he did not knowingly, intelligently, and voluntarily enter his pleas with a full understanding of the pleas and their consequences. Jones urges that he received ineffective assistance of counsel when his attorney failed to object to the admission of his statements during the suppression hearing, making his guilty pleas invalid as being coerced.

Jones also makes a pro se argument that his attorney was ineffective in failing to object to the trial court’s acceptance of his plea under Alford without | ^ascertaining that he had a full understanding of the elements of the crime, and that there was no factual basis established in the record to support such plea.

Although a guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the plea and precludes review of such defects either by appeal or post-conviction relief, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. To the extent that Jones entered his guilty pleas pursuant to Crosby, he did not specify the pre-trial ruling he wished to reserve for appeal. Neither the waiver of rights form nor the plea colloquy refers to any pretrial rulings. A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby may limit the scope of appellate review, but does not preclude review altogether. The types of rulings that should be reviewed in the absence of an express designation include the denial of a motion to suppress evidence or a confession and would exclude rulings that affect the conduct of the trial, but do not substantially relate to guilt, such as the denial of a continuance or a severance.

Here, Jones does not challenge the denial of his motion to suppress but, rather, requests that he be allowed to withdraw his guilty plea due to ineffectiveness of counsel.

The Alford plea is one in which the defendant pleads guilty while maintaining his innocence. According to Alford, a defendant may plead guilty, without foregoing his protestations of innocence, if “the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant,] |7... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.”

Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what is justifiably believed to be a plea bargain, and that bargain is not kept.

Jones has not filed a motion to withdraw his guilty plea. However, this does not prohibit a constitutionally infirm guilty plea from being set aside either by means of appeal or post-conviction relief. Jones argues that his guilty pleas were constitutionally infirm because, due to the ineffectiveness of his attorney, they were not entered freely and voluntarily.

The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. In assessing a claim of ineffectiveness, the defendant must show that (1) his attorney’s performance was deficient and (2) the deficiency prejudiced him. To establish prejudice, the defendant must show that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. In the context of a guilty plea, the defendant must prove that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded | ¡¡guilty and would have insisted on going to trial. Although a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy.

In the present case, the record is adequate to address the claims on appeal. Jones argues his counsel was ineffective for failing to object to the admission of his involuntary statements during the suppression hearing because his statements were not free and voluntary, but were given under the influence of heroin and cocaine, and after he was treated at the hospital for injuries sustained from being manhandled by the police.

The record does not support these claims. Defense counsel did file several motions to suppress, which included Jones’ statements. Further, defense counsel challenged these statements made to the police at the motion to suppress hearing.

At the suppression hearing, defense counsel cross-examined Detective Russo. He asked questions regarding discussions with Jones that were not recorded and whether Jones told the detective at the time of the statement that he was on cocaine and heroin. Detective Russo denied that Jones had told him he was on cocaine and heroin at the time the statement was made. The detective explained that Jones told him he did take drugs, but, at the time of the interview, Jones said he was not under the influence and was fully aware of what he was doing. Detective Russo referenced Jones’ first statement where he specifically said that, while he was under the influence at the time of the robbery, he had “sobered up some to the point where I am understanding [sic] what has happened.” Defense counsel asked ^Detective Russo what time the robbery occurred that same day. When asked if they discussed how much drugs Jones was on at that time, Detective Russo responded, “no,” but knew he was on drugs that day. Detective Russo testified that no tests were performed to determine if defendant was on drugs at the time of his statement, but Jones was alert and coherent while giving his statements. According to Detective Russo, Jones did not indicate he did not understand his rights. Defense counsel also questioned Detective Russo about Jones’ treatment at Charity Hospital, wherein the detective stated he was aware that Jones was taken from the scene of his arrest to Charity Hospital for treatment, prior to giving his statements.

A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Intoxication renders a confession involuntary when the intoxication is of such a degree as to negate the defendant’s comprehension and to make him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact; a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence.

The evidence adduced at the suppression hearing supports the admissibility of Jones’ statements. On review, we find Jones’ claim that his guilty pleas were not | inknowing and voluntary but were forced because his counsel failed to properly object, is without merit.

Jones also makes a due process argument that his rights were violated when his counsel rendered ineffective assistance by failing to object to the acceptance of his Alford pleas without a factual basis to support the pleas. Where a defendant pleads guilty under Alford, “constitutional due process requires that the record contain ‘strong evidence of actual guilt’.”

On review, we find the evidence presented at the hearing on the motion to suppress the identification demonstrated strong evidence of Jones’ actual guilt and, therefore, supported his Alford plea.

We have examined the record for patent errors and note the following: LSA-C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. In the present case, while the commitment reflects the trial court properly advised Jones of the prescriptive period for post-conviction relief, the transcript does not. Further, the waiver of rights form contains incorrect advice regarding the prescriptive period for filing post-conviction relief because it informed Jones that he must file his application for post-conviction relief within “two (2) years of the date of this plea.” In later denying Jones’ motions for appeal without prejudice, the court properly noted that Jones had two years from the finality of the judgment of conviction and sentence to file for post-conviction relief.

Failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisal incomplete. Due to the potential confusion of these inconsistent advisals, we deem it prudent to Inremand the matter with instructions for proper notification. The trial court is instructed to inform Jones of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to him after the rendition of this Court’s opinion and to file written proof into the record that Jones received the notice.

Further, the sentencing transcript provides that Jones’ sentences would “run concurrent with whatever he’s doing.” However, the minute entry/commitment reflects the sentences were “to run concurrently with any other sentence.” On remand, the trial court is instructed to correct the commitment to assure accuracy with the transcript, and we direct the clerk of court to transmit the original of the corrected minute entry to the officer in charge of the institution to which Jones has been committed.

CONVICTIONS AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . 338 So.2d 584 (La.1976).

        . State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630; State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120.

      . See, State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196.

      . Id.

      . See, State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120.

      . State v. McCoil, supra; State v. Gross, 95-621 (La.App. 5 Cir. 3/13/96), 673 So.2d 1058.

      . State v. McCoil, supra.

      . State v. Ebright, 04-972 (La.App. 5 Cir. 1/11/05), 894 So.2d 359.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . State v. Johnson, 02-254 (La.App. 5 Cir. 2002), 822 So.2d 840 (citing State v. Washington, 491 So.2d 1337 (La.1986)).

      . State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

      . State v. Lagarde, supra.

      . State v. Washington, 491 So.2d 1337 (La.1986); State v. Montalban, 2000-2739 (La.2/26/02), 810 So.2d 1106.

      . State v. Washington, supra.

      . State v. Redditt, 03-0354 (La.App. 5 Cir. 10/28/03), 868 So.2d 704, writ denied, 2003-3484 (La.4/8/04) 870 So.2d 268 (citations omitted).

      . Id.

      . State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129-30, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745.

      . State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767-68, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Leroy CAREY.
    No. 07-KA-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Jacquelyn Maloney, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and GREG G. GUIDRY.

EDWARD A. DUFRESNE, JR., Chief Judge.

laThe Jefferson Parish District Attorney filed a bill of information charging defendant, Leroy Carey, with possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A. At the arraignment, defendant pled not guilty. He thereafter filed a motion to suppress evidence which was heard and denied. On March 11, 2003, the matter proceeded to trial before a twelve person jury. After considering the evidence presented, the jury found defendant guilty as charged. On March 24, 2003, the trial judge sentenced defendant to fifteen years at hard labor. On the same date, the state filed a multiple offender bill of information alleging defendant to be a second felony offender based on a prior conviction of distribution of cocaine. After being advised of his multiple offender rights, defendant admitted to the allegations contained therein. The trial court then vacated defendant’s original sentence and imposed an enhanced sentence of fifteen years at hard labor without the benefit of probation or suspension of sentence and |swithout the benefit of good time. Defendant now appeals challenging the sufficiency of the evidence used to convict him.

FACTS

On August 21, 2002, Agents Curtis Matthews and Darryl Delsa of the Jefferson Parish Sheriffs Office Narcotics Division, participated in a search of defendant’s residence. The search was conducted pursuant to consent which was given by defendant’s girlfriend. After this consent was given, defendant led the officers to the cocaine, which was located in a jacket pocket inside a closet in the master bedroom. The police officers then searched other portions of the residence and recovered a black razor blade case containing razor blades, some Ziploc baggies, and some paperwork from a nightstand in the master bedroom. During the course of the search, defendant gave a taped statement to the officers after being advised of his rights. In the statement, defendant admitted that the cocaine was his and further admitted that the razor blades and Ziploc baggies were used for bagging the cocaine.

At trial, Charles Krone, a forensic scientist with the Jefferson Parish Sheriffs Office, testified as an expert in the field of identification of controlled dangerous substances. In connection with this case, he examined the white powder substance that was recovered from defendant’s residence. Mr. Krone testified that his testing of the substance proved positive for cocaine. He further testified that it had a gross weight of 14.48 grams.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him. Specifically, he does not contest that he possessed the cocaine, but Prather claims the state failed to prove that he possessed it with the intent to distribute.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

In this case, defendant was charged with possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967. To prove that offense, the state was required to show that the defendant knowingly and intentionally possessed the drug, and that he did so with the specific intent to distribute it. State v. Clark, 05-61 (La.App. 5 Cir. 06/28/05), 909 So.2d 1007, 1011-12, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538.

Specific criminal intent is “that state, of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure'to act.” LSA-R.S. 14:10(1). The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. Factors that may give rise to a reasonable inference that a defendant had the specific intent to distribute include: 1) previous attempts to distribute; 2) whether the drug was in a form consistent with distribution to others; 3) the amount of the drug; 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only; and 5) paraphernalia evidencing an intent to distribute. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 786, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

|5On appeal, defendant does not challenge that he possessed the cocaine; rather he claims that the cocaine was for his personal use and that the state failed to prove that he possessed the cocaine with the intent to distribute. To support this argument, defendant points to several alleged deficiencies in the state’s evidence. First, he claims that although evidence was presented that the cocaine recovered from defendant’s jacket was packaged in plastic bags, the state did not present evidence that this form of packaging was in any way associated with distribution. Next, defendant contends that the state failed to produce evidence that the amount of cocaine was such to create a presumption of possession with intent to distribute. Defendant further claims that the state did not present any expert testimony indicating that the amount of cocaine possessed by defendant was inconsistent with possession for personal use.

We have reviewed all the arguments presented by defendant relating to the sufficiency of the evidence and find them to be without merit. Although the state did not offer proof of all five factors, we find, nonetheless, that the evidence presented by the state was sufficient to prove possession with intent to distribute. At trial, Agents Curtis Matthews and Darryl Delsa testified that they participated in the search of defendant’s residence after receiving consent from defendant’s girlfriend. Defendant, who was present at the time, led the officers to the cocaine which was located in a jacket pocket inside a closet in the master bedroom. During a subsequent search of the bedroom, the police also recovered a black razor blade case containing razor blades, some Ziploc baggies and some paperwork belonging to defendant. During this search, defendant, after being advised of his rights, gave a taped statement to Agent Matthews. This statement, in which defendant admitted | fithat the cocaine was his, was played for the jury. In the statement, defendant further admitted that the razor blades and the Ziploc baggies were used for bagging the cocaine. Further, the state presented the expert testimony of Charles Krone, a forensic scientist for the Jefferson Parish Sheriffs Office. He testified that he examined the white powder substance recovered from defendant’s residence. His testing revealed that the substance was positive for cocaine hydrochloride and that it had a gross weight of 14.48 grams. Mr. Krone also detailed the packaging of cocaine. He testified that the evidence consisted of seven plastic bags, and each of the seven plastic bags contained smaller knotted plastic bags which contained cocaine. Mr. Krone testified that there were a total of 65 smaller bags.

Viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could conclude that the state proved, beyond a reasonable doubt, that defendant was guilty of possession with intent to distribute cocaine. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with 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 that the trial court erred in ordering that defendant’s multiple offender sentence be served without benefit of good time. Although defendant is apparently ineligible for good time credit, the trial court, with certain exceptions, has no role in determining eligibility for diminution of sentence. See LSA-R.S. 15:571.3 and State v. Hotard, 04-1092 (La.10/15/04), 885 So.2d 533. Therefore, we amend defendant’s sentence to delete the denial of good time diminution.

|7For the reasons set forth herein, we affirm defendant’s conviction and sentence, as amended.

CONVICTION AFFIRMED, SENTENCE AMENDED AND CONFIRMED.

      . Prior to this search, defendant had been stopped by New Orleans police officers in Orleans Parish. These officers transported defendant to his Jefferson Parish residence.

      . This weight included the weight of the plastic baggies that the cocaine was packaged in.

      . We acknowledge that the state did not offer proof of each of the five factors that may give rise to a reasonable inference of intent to distribute. However, there is no requirement that all five factors be present. See State v. Lassere, 95-1009 (La.App. 5 Cir. 10/1/96), 683 So.2d 812, writ denied, 96-2655 (La.4/18/97), 692 So.2d 445, and State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Jerry C. HOLLINGSWORTH.
    No. 07-KA-691.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney Terry M. Boudreaux, Andrea F. Long, David M. Abdullah, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.

THOMAS F. DALEY, Judge.

[¡>The defendant, Jerry Hollingsworth, has appealed his conviction of possession of cocaine in violation of LSA-R.S. 40:967(C). The conviction is affirmed for the reasons that follow.

FACTS:

On July 30, 2006, defendant was arrested at his residence at 404 21st Street in Gretna, after an investigation regarding a narcotics complaint involving a white male named “Jerry” living at this residence. Sergeant Bill Johnson of the Gretna Police Department testified that in response to the confidential information regarding narcotics activity, he knocked on the door of defendant’s residence at about 4:30 a.m. According to Sergeant Johnson, defendant answered the door and was asked if his name was Jerry. Both Sergeant Johnson and Officer Lester Cambre III, who assisted in the investigation, testified that defendant immediately answered when they knocked on the door. They both opined that defendant had to be in the living room to answer the door so quickly. After defendant said his name |3was Jerry, Sergeant Johnson advised him they had received a narcotics complaint regarding his residence. Sergeant Johnson testified that defendant denied the allegations of the complaint, but signed a Consent to Search form.

Both police officers testified that defendant and two other males were in the living room. Officer Cambre testified that the other two males in the living room were sitting on the day-bed in the living room. Sergeant Johnson noted that besides the day-bed, there were no other chairs or couches to sit on in the living room.

Officer Cambre stated that he went into the house and cleared it of its occupants for his safety after defendant consented to the search. He found another individual, Cornelius Singleton, sitting down in the bedroom. Sergeant Johnson stood outside with the occupants of the residence while the residence was searched. Officer Cam-bre searched the living room and found, in plain view, crack cocaine on the day-bed. On an end table, within an arm’s length reach, there were two crack pipes, a spoon with white residue on it, and a metal socket used in the form of a crack pipe. These items were entered into evidence by the State. A search of the bedroom where Mr. Singleton was located revealed marijuana and a marijuana pipe. However, Mr. Singleton was not arrested for the marijuana because defendant gave a statement claiming that the marijuana was his. No one claimed ownership of the crack cocaine. Officer Cambre testified that the individuals in the house were wearing “regular clothes.” Three of the four occupants of the residence were arrested; Mr. Singleton was released.

Thomas Angelica, an expert in the identification and the analysis of controlled dangerous substances, analyzed the two pieces of off-white material, and testified that they contained cocaine.

RDefendant took the stand and testified that he arrived at his home at around midnight. He explained that upon his arrival, Shelby Pusateri, who was staying with him for a couple of weeks, and Sam Reed were at his residence watching television. Defendant stated that he did not see them engaged in criminal conduct nor did he participate in criminal conduct. Defendant testified that he talked to them for a couple of minutes and then went straight to sleep because he had to wake up early.

Defendant testified that about 4:00 in the morning someone knocked on the door and Mr. Pusateri answered it. Mr. Pusa-teri woke defendant up and told him Mr. Singleton wanted to talk to defendant about money Mr. Singleton owed him from when Singleton and his girlfriend stayed with defendant and failed to pay rent. Defendant told Mr. Pusateri to let him in, and Mr. Singleton pulled up a chair and defendant talked to him in the bedroom.

According to defendant, 10 or 15 minutes later there was another knock at the door. Defendant stated that he walked out of the bedroom and just as he got to the door, Mr. Pusateri opened the front door. Defendant denied that he opened the door when the officer’s knocked. Defendant testified that the police were at the door and they asked for Cornelius Singleton. Defendant testified that he told the police that Mr. Singleton was in the bedroom, and defendant yelled for Mr. Singleton to come out. According to defendant, by the time he turned his head, the officers were in the front room. Defendant denied that the officers were invited in.

Defendant testified that Sergeant Johnson brought him into the kitchen and explained that a confidential source told them drugs were being sold out of his house that night. Defendant testified that he told Sergeant Johnson that he did not know anything about that, stating that when he went to bed at midnight there were no drugs in the house, to his knowledge. Defendant testified that he believed Mr. Singleton was the confidential source because defendant had told Mr. Singleton to leave defendant’s house for not paying rent. However, Officer Cambre was called as a defense witness and denied that Mr. IsSingleton was the confidential source.

Defendant testified that the officers discovered he, Mr. Pusateri, and Mr. Reed had traffic attachments, and they were handcuffed. Defendant said he had been sleeping, so he was wearing only boxer shorts. He received permission to put clothes on. Defendant testified that he went to the officer’s car and was asked to sign a consent form to search the residence and he signed it. Defendant testified that the officers said they found some crack and wanted to know who it belonged to, but no one claimed it. According to defendant, he never saw the cocaine or crack pipes that were discovered in his living room and did not know the contraband was in his apartment. Defendant testified that a girl was at his house two days before with the marijuana and pipe, and he did not know she left it there. Defendant testified that he took responsibility for the marijuana because it was his house, even though the marijuana was not his. He testified that he did not use cocaine and could not use such substances because of a quadruple bypass he had in 2003. He stated that he does not allow people to use narcotics in his residence and that Mr. Pusateri was given strict rules not to bring drugs into his house.

Defendant was charged with possession of cocaine, possession of drug paraphernalia, and possession of marijuana. The cocaine charge was tried to a jury. At the conclusion of trial the defendant was found guilty as charged. He was sentenced to one year at hard labor, the sentence was suspended and he was sentenced to one year active probation. He pled guilty to the marijuana and paraphernalia charges and received probation for those charges which was to run concurrently with the cocaine sentence. This appeal involves only the cocaine conviction.

| ^ASSIGNMENTS OF ERROR:

In his sole Assignment of Error, defendant argues the evidence in this case was insufficient to support his conviction of possession of cocaine. He argues that the State failed to exclude beyond a reasonable doubt that the cocaine was in the possession of one or both of the males who were in the residence in very close proximity to the cocaine and not defendant. He contends that beyond his mere presence in the area, no evidence was presented to show that he knew of or exercised dominion and control over the cocaine.

The State responds that the record demonstrates that, viewing the evidence in the light most favorable to the prosecution, the jury could have found the essential elements of possession of cocaine beyond a reasonable doubt.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, supra, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

“Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833 (citation omitted). When circumstantial evidence is used to prove the commission of an offense, LSA-R.S. 15:438 provides 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.” This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. 17All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181, (La.App. 5 Cir. 6/1/99), 738 So.2d 672, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

To support a conviction for possession of cocaine, the State was required to prove that defendant was in possession of the drug and that he knowingly or intentionally possessed it. LSA-R.S. 40:967(C); State v. Robinson, 04-964, (La.App. 5 Cir. 2/15/05), 896 So.2d 1115.

The element of possession may be established by showing defendant exercised either actual or constructive possession of the substance. State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382 (La.3/31/06), 925 So.2d 1257. A person not in physical possession of the drug is considered to be in constructive possession of the drug, even though the drug is not in his physical custody, when it is under that person’s dominion and control. Id. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include the following: (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. Lewis, 04-1074 at p. 8, 916 So.2d at 299.

“A subject can have constructive 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.” Lewis, 04-1074 at p. 7, 916 So.2d at 299. “Mere presence in an area where drugs are found or mere association with the person in actual possession does not constitute constructive possession.” State v. Jones, 04-1258, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 426, 431. However, “[p]roximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence.” Jones, 04-1258 at pp. 7-8, 902 So.2d at 431.

In the case at bar, we find the evidence presented by the State was sufficient for the jury to reasonably conclude that defendant exercised dominion and control over the cocaine constituting constructive possession. Despite defendant’s contention that he did not know there was cocaine at the residence, his guilty knowledge can be inferred from the circumstances. Defendant resided at the premises where the cocaine was found and clearly had access to this area of his home. Further, two police officers testified that when they arrived at 4:30 a.m., defendant was present, awake, and wearing “regular clothes”. The cocaine was found in the living room in plain-view on a day-bed, which was the only place to sit in the living room. The officers testified that defendant answered the door immediately, leading them to believe that defendant had been in the living room when they knocked.

The State also presented evidence indicating there was drug activity occurring at defendant’s residence. Evidence was presented that the officers were conducting an investigation based on a narcotics complaint. Further, after knocking at the door, the officer asked for “Jerry.” Defendant, whose first name is Jerry, was one of three individuals in the living room. Besides the cocaine, two crack pipes, a socket in the form of a crack pipe, and a spoon with white residue were found on the end table, a short distance from the day-bed.

Defendant testified that Mr. Pusateri was living with him at the time and had a key. Defendant testified that he had suspicions that Mr. Pusateri possibly smoked crack, but that he gave Mr. Pusateri strict rules not to bring drugs into his |flhouse. Further, defendant claimed responsibility for the marijuana found in the bedroom, although defendant testified it belonged to someone else. Defendant denied that he answered the door and stated he came from the bedroom, wearing only his boxer shorts, when he heard the knock. He also denied that he knew the cocaine was present.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. As such, the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052.

Given the evidence presented, we find the jury could have rationally rejected the hypothesis of innocence advanced by defendant, and found that the evidence proved beyond a reasonable doubt that the defendant was in possession of cocaine. Thus, viewing the evidence in the light most favorable to the State, we find the evidence was sufficient to convict defendant of possession of cocaine.

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920. This review indicates there is a discrepancy between the commitment and the transcript regarding whether the fíne and costs were made part of defendant’s sentence or were ordered as condition of probation. However, this discrepancy is moot because the record reveals the defendant was released from probation and his probation was “terminated satisfactorily”.

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.