author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Chelsea M. HARRISON, Appellant.
    No. 46,325-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Charles R. Scott, District Attorney, Jacob Broussard, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| defendant, Chelsea M. Harrison, was convicted of aggravated second degree battery and received a suspended sentence of ten years at hard labor and was placed on four years’ active probation subject to special conditions. Defendant now appeals. For the reasons stated herein, Defendant’s conviction is affirmed.

FACTS

In the early morning hours of May 29, 2006, Lori Dice, while driving her car, received serious facial injuries when a round exercise weight (the type that slides onto a barbell) was thrown from an oncoming vehicle and crashed through her windshield. Subsequent police investigations indicated that the weight was thrown from a silver car occupied by Defendant, Chelsea M. Harrison, and driven by her boyfriend, Shon Brocato. On July 20, 2006, the State filed a bill of information charging the Defendant with one count of aggravated second degree battery in violation of La. R.S. 14:34.7. Defendant was tried before a judge over seven non-consecutive days between March 29, 2010, and July 19, 2010. As stated, Defendant was convicted as charged and she now appeals.

This case revolves around whether or not the State presented evidence beyond a reasonable doubt that Defendant, with the requisite intent, threw the weight that crashed through Ms. Dice’s windshield and struck her in the face. Defendant testified at trial that Brocato was driving his rented silver car, she was sitting in the front passenger seat and a man named Aaron Wallace, a.k.a. “Miko,” was sitting in the back seat behind Brocato. Defendant maintains that Brocato asked Miko to hand him |2something off of the floor, that Miko complied and that Brocato threw the item out of the window. She claims that she did not see that it was a weight, nor did she actually see or hear the weight hit Ms. Dice’s windshield. The evidence presented by the State at trial contradicts the version of events presented in Defendant’s trial testimony. The various stories provided by the participants in the events leading up to the throwing of the weight are numerous, conflicting and confusing. The evidence is summarized as follows.

The victim, Ms. Dice, testified that, on the evening of May 29, 2006, she, her boyfriend, Doug Johnston, and two other male friends, Robert Cheatwood and Jake Cunningham, rode in her Dodge Stratus to a party on a sandbar on the Shreveport bank of the Red River. They had been invited to the party by Cheatwood’s girlfriend Brandy Hoskins, a coworker and friend of Defendant. They parked in the parking lot above the sandbar and rode in a Dodge pickup truck down to the party. Ms. Dice indicated that she had a glass of wine earlier that afternoon, but that she did not drink that night. She remembered that, at some point in the evening, someone in another group claimed to have had their beer stolen and was asking to check the vehicles on the sandbar. Ms. Dice testified that, in the midst of this activity, she and Defendant had a physical altercation that “came out of nowhere” and lasted several minutes. After the fight between Defendant and Ms. Dice was broken up, altercations broke out all over the sandbar. Fearing for her safety, Ms. Dice made her way back to the parking lot in another friend’s truck and got back in her car with her boyfriend.

liiMs. Dice and her boyfriend drove out of the parking lot and proceeded south on Clyde Fant Parkway toward the E. 70th Street exit. Her boyfriend was driving the car. Ms. Dice further testified that, once they were on E. 70th Street, a silver or white car in which Defendant was a passenger pulled up beside Ms. Dice’s car. Ms. Dice stated that she saw Defendant, who was sitting in one of the passenger seats, but assumed that, because she was not driving, there was another occupant of the vehicle. While on E. 70th Street, the silver car rammed Ms. Dice’s car. Ms. Dice called her parents and told them they were being chased. She also testified that, as the chase proceeded down E. 70th Street, the car in which Defendant was riding passed by them. Ms. Dice’s boyfriend then turned left onto Millicent Way to go toward Ms. Dice’s home in the University Terrace neighborhood. When they arrived at Ms. Dice’s home, she and her boyfriend exited her car and observed the silver car in which Defendant was riding drive by Ms. Dice’s house. Ms. Dice’s mother stated that they would need the license plate number on the silver car and, against her mother’s wishes, Ms. Dice reentered her car to try and locate the silver car in the neighborhood.

On Turtle Creek Drive, Ms. Dice saw taillights ahead as the car turned around and headed back in her direction. As the cars were about to pass each other, Ms. Dice turned her head to the left to try and read the license plate as the silver car passed. At that moment, she was struck on the right side of her face and blood began to pour into her eyes. Ms. Dice was able to see the reflection of taillights come to a stop. She testified that she |/eared what they might do to her so she drove herself home. Ms. Dice stopped the car in the street in front of her house where, just before losing consciousness, she told her mother she had been shot.

Mr. Johnston, Ms. Dice’s boyfriend, testified that he had accompanied her to the sandbar on the night of the incident. He witnessed the fight between Ms. Dice and Defendant, although he did not know exactly what had started the altercation. He testified that he was driving Ms. Dice’s car as they left the Hamel’s Memorial parking lot and proceeded toward Ms. Dice’s home. Mr. Johnston stated that, on E. 70th Street, a car pulled up beside them and rammed their car twice. He testified that Defendant was hanging out of the window, but Mr. Johnston could not hear what she was yelling. Mr. Johnston took a left on to Bert Kouns Industrial Loop, proceeded through the intersection at Youree Drive and took a left onto Millicent Way. The silver car followed them down Bert Kouns, but overshot Millicent Way due to the high rate of speed at which it was traveling. In an effort to catch back up to Ms. Dice’s car, the driver of the sliver car turned left into the parking lot of the Highland Clinic, from which Millicent Way can also be accessed.

Once in Ms. Dice’s neighborhood, Mr. Johnston drove directly to her home. Ms. Dice’s mother was on the phone with police when they arrived. Mr. Johnston also observed the silver car in which Defendant was riding drive by Ms. Dice’s home and recalled seeing only two individuals in the car. Mr. Johnston testified that, when Ms. Dice’s mother indicated that the police needed a license plate number, Ms. Dice re-entered her car and drove |,5off to locate the silver car. By this point, Brandy Hos-kins had arrived at Ms. Dice’s home, so Mr. Johnston got in the car with her to look for Ms. Dice. Mr. Johnston and Ms. Hoskins saw the silver car and were able to obtain the license plate number, so they returned to Ms. Dice’s home. They found Ms. Dice’s car in the middle of the road and saw Ms. Dice with blood all over her face.

Two Shreveport police officers responded to the disturbance call at Ms. Dice’s home and arrived to find Ms. Dice lying on the ground being attended by fire department personnel. The officers observed large amounts of blood and that the victim’s injuries were to her face. Officer L.B. Pittman testified to the contents of his report that he had recovered a three-pound weight from the driver’s side floorboard of Ms. Dice’s car.

As a result of the attack, Ms. Dice suffered a broken cheek and jaw bone, a broken nose and loss of vision in her right eye. She has undergone numerous surgeries, including 4 facial reconstruction surgeries and an eye surgery, during which she has had 5 plates and 22 screws implanted in her face. She has had to have the orbital floor of her right eye “replaced” twice. Ms. Dice, who had just graduated from high school, was unable to attend college the next year while she recovered from her injuries.

Two days after the incident, Defendant, Brocato and Brocato’s roommate, Steven Terry, appeared at the Shreveport Police Department with attorney Edward Mouton to give statements. They were interviewed by Detective Jeff Brown to whom the case had been assigned. Detective Brown testified that Terry was questioned first and initially claimed that he |fihad been with Defendant and Brocato on the night of the incident. Terry, however, recanted when he learned the extent of the injuries suffered by Ms. Dice and when the inconsistencies in his story made it evident to Detective Brown that Terry had not in fact been in the vehicle. Terry subsequently stated that Brocato and Defendant had asked him to give a statement that he had been with them on the night of the incident. When questioned about whether Defendant had thrown the weight from the car, Terry dropped his head and did not respond. Terry was arrested on a charge of obstruction of justice. While Terry was being booked, Detective Brown overheard Defendant comforting Terry by telling him that “[Terry] was just trying to help us out.”

Detective Brown next interviewed Bro-cato. Brocato began relating the same story that Terry had given, ie., that Terry had been in the car with him and Defendant. Once Brocato was informed that Terry’s story had “fallen apart,” however, Brocato confessed that he had been driving the car and had weights in the back of his car from having moved earlier. Broca-to also admitted that he rammed into Ms. Dice’s ear during the chase on E. 70th Street. Finally, we note that the report of Detective Brown reflects that Brocato stated that Defendant had thrown the weight out the window. Brocato was charged with aggravated property damage as a result of his intentionally ramming Ms. Dice’s car with his own.

Based on the interviews of Brocato and Terry, Detective Brown informed Defendant that she would be arrested on a charge of aggravated assault. She was read her Miranda rights after which, on the advice of |7Mr. Mouton, Defendant made a statement limited to what happened at the sandbar and concluding at the point where she got in Brocato’s car to leave.

At trial, Detective Brown was cross-examined extensively on why he failed to investigate the presence of a Jonathan Frye who had been identified as a potential occupant of the vehicle at the time of the attack on Ms. Dice. Detective Brown explained that he had no date of birth or address by which to locate him and that Brocato, the only person in the vehicle to have made a statement, had given conflicting information about whether Frye was even in the vehicle. Defense counsel also challenged Detective Brown’s failure to have the weight dusted for prints and failure to conduct any testing regarding the flight path of the weight. Detective Brown testified that the weight had been in Brocato’s car for several days and could have had multiple fingerprints on it. The weight also had blood and glass fragments on it. For these reasons, Detective Brown testified that a dusting for prints would have been unreliable.

Frye did, however, testify at trial and related that he had been at the sandbar that evening with his brother Byron. Frye was a friend of Defendant’s and had come to celebrate her birthday. He testified that he was not in the car with Broca-to and Defendant when they left the sandbar. The next time he saw them after they left the sandbar was at Brocato’s home later that morning when Brocato pulled up in his now “damaged” car. On cross-examination, Frye testified that Miko was a friend of his. He said that sometime during October 2006, he and Miko got in a fight at Miko’s home; and, because Frye was without transportation, he had called Defendant and | 8asked her to come to Miko’s home and get him. Frye testified that Defendant played on his anger at Miko and convinced him to go to her attorney’s office and state that Miko had been in the car with Brocato and Defendant on the evening that the weight was thrown. Frye agreed and relayed this information to defense counsel at his office on October 26, 2006. At trial, Frye maintained that his statement to defense counsel that Miko was in the car with Brocato and Defendant was untrue. He testified that he did not see Miko at all the night of the incident, much less in the car with Defendant and Brocato.

Brocato also testified against Defendant at trial as part of a plea agreement in which the State allowed him to plead to simple criminal damage to property for the damages to Ms. Dice’s car. He acknowledged that he had two prior felony convictions for simple burglary and illegal possession of stolen things. Regarding the instant offense, Brocato testified that Defendant and some of her friends had been celebrating her birthday on the sandbar. Brocato joined the group at approximately 2:30 a.m. He testified that there were approximately 30 people on the sandbar that morning, including individuals unknown to him and to Defendant, and that it was apparent to him that Defendant, among others, had been drinking.

Brocato testified that, within 30 minutes of his arrival, a dispute arose when one of Defendant’s male friends complained that someone had stolen his beer. For reasons not entirely clear from Brocato’s testimony, while the parties were arguing about the beer, Ms. Dice allegedly cursed Defendant and a fist fight ensued between the two young women. Brocato further | ¡testified that, while trying to separate the girls, he was struck with a beer bottle and a pipe. Brocato then stated that he, Defendant, Miko and a fourth individual got in his car and left the scene. According to Brocato, as he pulled onto Clyde Fant Parkway, he passed the car occupied by Ms. Dice and being driven by her boyfriend, Mr. Johnston. Brocato testified that he and Mr. Johnston engaged in a cat and mouse game during which they attempted to run each other off the road. Brocato admitted that, at one point, he rammed Ms. Dice’s car with his car. He also testified that, during the chase, Defendant was angry and was hanging out the window screaming at Ms. Dice. As previously mentioned, the chase eventually led the parties into the University Terrace neighborhood of Shreveport.

Brocato further testified that, while driving in the neighborhood, he turned onto a street that ended in a cul-de-sac forcing him to turn around. As he drove away from the cul-de-sac, he met Ms. Dice’s oncoming car. Brocato testified that he believed the driver of the vehicle was trying to block his exit. At this point in his testimony, Brocato stated that Defendant was seated behind him in the rear passenger seat. According to Brocato, as they passed Ms. Dice’s car, he saw out of the corner of his eye Defendant throw something out the window. He then heard glass shatter and Defendant screaming at him to “go, go, go.”

Brocato then testified that he drove to Bossier City to drop off one of the other occupants of the car, and then he and Defendant went to his home. Brocato admitted that he and Defendant then recruited Terry, Brocato’s |,0roommate at the time, to lie to the authorities by claiming to have been in the car with them.

Also during his testimony, Brocato identified two letters that Defendant had written to him while he was incarcerated. In the letters, Defendant makes arguably incriminating statements. The first letter is dated December 26, 2006, and reads as follows:

I just left ccc and I was going to put this letter in the mail and I just wanted to tell you again how sorry I am. I promise I will stay out of your way from now on. This way I can’t hurt you anymore. Please believe me when I say I love you and never meant for any of this to happen. You were right on everything you said. I’m a sorry excuse for a person. Somehow I’m going to fix that. I really hate that your haviny to pay the price for my mistakes. Thats why I want you to siyn the papers against me. I know your not doing it inspite of me. That was my mistake and so I deserve whatever happens. I love you and see that I need to suck it up and take one for the team, (even though I know we won’t be together again) Thats OK. I’ve screwed up and now I need to accept responsibility for my actions whatever the consequence may be. I’m trying not to be selfish and to think of others. So you can have whats left of me. This way I can start out fresh as a different person. You need to tell the D.A. that you want him to lift your parole violation since you did nothing wrong. Your giving him all the evidence he needs to satisfy Lori and her family. Plus this will make a good new story. Its what everyone wants. Then you can be home with your Family. Sign the paper, please, so I can own up to my mistakes. I promise I won’t write you or come see you anymore. I can’t promise that I won’t ever think about you, but hey life isn’t fair so I just have to go with that. Please just do this so I can make this right and close this chapter of my life. I pray GOD will touch your heart and bring you joy with the rest of your life. I wish you the best.
Chelsea Harrison
I sent you some Christmas money. Don’t spend it all at one time.

(Emphasis added.)

In the second letter, date unknown, Defendant wrote in pertinent part: “I’m really sorry I got you put in that place.”

| n Steven Terry also testified at trial. Terry stated that he had been at the sandbar when the fight broke out, but that he went straight home from the sandbar. He remembered numerous vehicles leaving at high rates of speed, including Brocato’s car. Terry further testified that Brocato and Defendant returned to Broeato’s house later and that Brocato’s car was “beat up.” He testified that Defendant told him that she had thrown a weight out the window. Nevertheless, Terry agreed to go with Defendant and Brocato to the police station and tell police that he had been in the car and that no weight was thrown from it. According to Terry, however, when the officer questioning him showed him pictures of the injuries suffered by the victim, he realized that he should tell the truth about not being in the car. Finally, Terry acknowledged that, in exchange for his truthful testimony, the obstruction of justice charge pending against him was to be dismissed.

The defense presented the testimony of Laura Whitlock, who was qualified as an expert in the field of physics. Whitlock had performed various tests intended to recreate the throwing of the weight that caused the injuries to Ms. Dice. Based on the results of various recreation-type tests, Whitlock opined that it would have been very difficult for someone of Defendant’s size to have thrown the weight while hanging out the window of the front passenger seat. Given the motion of the vehicles and the fact that the weight would have to travel over the car in which Defendant was riding, Whitlock testified it would have been very difficult to time with any degree of accuracy. On the other hand, Whitlock testified that, if the weight li2were to be thrown out of the driver’s side of the car, it would have been almost impossible to miss its target of an oncoming vehicle’s windshield.

Holly Santoro and her husband, Clarence Banks, also testified on behalf of Defendant. Both witnesses stated that they were on the sandbar celebrating Defendant’s birthday when Defendant and Ms. Dice started fighting. While neither San-toro nor Banks had ever met Miko before, they each testified that, when Brocato and Defendant were “chased” out of the parking lot, Miko was sitting in the back seat of their car. Neither one of them had any knowledge about what happened later because they remained at the sandbar to protect their campsite and speak to police about the alleged brandishing of a weapon by another individual. When cross-examined as to why she had not supplied Miko’s name to police in identifying witnesses, Santoro offered only that Miko had already left when the weapon was brandished. She admitted, however, that she had supplied the names of Defendant and Brocato who also could not have been present at the time of the brandishing of the weapon under Santoro’s description of events.

Next, Defendant took the stand in her own defense. She testified to the same basic fact scenario which gave rise to the exodus from the Hamel Memorial parking lot. She stated that, when she and Broca-to got in the car to get away, Miko, who had been brought to the party by Frye, jumped in the back seat. She said that people were swarming the car so she yelled at Brocato to “Go, go. Run them over. Just go.” Defendant further testified that, after they left the sandbar, they were chased by several different vehicles, including Ms. Dice’s car and a blue truck. According to 113Pefendant, the truck followed them into the Highland Clinic parking lot which, in turn, led Brocato to drive into the University Terrace neighborhood and pass directly in front of Ms. Dice’s house. Defendant adamantly testified that she was unaware that Ms. Dice lived in University Terrace and there was no reason for Brocato to have turned into the neighborhood. She maintained that ending up in that location was strictly coincidental. Once in the neighborhood, they found themselves on several dead-end streets requiring them to turn around. Defendant explained that, after turning around on one of the streets, they were met by the headlights of the car driven by Ms. Dice. As previously mentioned, Defendant claims that, prior to the cars passing each other, Brocato asked Miko to hand him something off the floorboard in the back seat. She then saw something being passed between the two men and then saw Brocato’s “arm go up.” Defendant testified that, despite this behavior, she was unaware until the next day that Brocato had thrown a weight out the window or that anyone had been injured as a result.

Also in her testimony, Defendant denied having asked Terry to lie on her behalf and explained her statement to him at the police department (that Terry was just trying to help them out) as an effort to comfort him because the police were being mean to him. She admitted that she had picked Frye up after he and Miko had had a fight, but denied that she had asked Frye to fabricate a story about Miko being in the car with Defendant on the night of the incident. When asked to explain why Frye would testify to that effect, Defendant asserted that Frye was protecting his friend Miko.

1^Defendant was also questioned about her ongoing romantic relationship with Brocato. Defendant was still in a relationship with Brocato at the time of trial. The couple had a child together shortly after the instant incident and, at the time of trial, Defendant was pregnant with a second child of Brocato’s. When asked why she was still living with Brocato even though, according to her, he was trying to frame her with a felony conviction, she testified that she had no choice. Defendant testified that she had a child, was pregnant with another and needed a place to live. As to why she again became pregnant by Brocato, Defendant stated that she felt obliged to have sex with him because he provided her a place to live. In explaining her letters to Brocato, Defendant testified that her claims of feeling responsible arose strictly from the fact that the party at the sandbar was her idea and that Brocato had not wanted to go to the sandbar on the night of the incident.

Prior to rendering its verdict, the trial judge reviewed his findings of fact. Citing the eyewitness testimony of Brocato and the testimony of Terry regarding Defendant’s admission, the judge found that the State had proven beyond a reasonable doubt that Defendant had in fact been the individual who threw the weight out of the car. The judge made no mention of Defendant’s failure to tell police her exculpatory version of events prior to trial. The judge further found that Defendant’s actions had caused the victim serious physical injuries. In addition, the judge concluded that there had been an effort by Defendant to “cover up” what had actually taken l1splace. Based on the foregoing, the trial judge found Defendant guilty as charged. A motion for post-verdict judgment of acquittal was denied.

Defendant was sentenced on August 9, 2010, to ten years at hard labor, suspended, with four years’ active supervised probation subject to the following special condition: six months in the parish jail, credit for time served; payment of restitution to the victim for any medical expenses; payment of a $500 fine and court costs; no contact with the victim; a psychological evaluation; and, if necessary, psychological treatment. This appeal ensued.

DISCUSSION

Defendant raises the following two assignments of error on appeal:

Assignment of Error Number One (verbatim): The prosecution violated Chelsea M. Harrison’s Fifth Amendment rights when it intentionally introduced evidence of her post -Miranda assertion of her right to remain silent to impeach her trial testimony.
Assignment of Error Number Two (verbatim): There was insufficient evidence to prove that Chelsea M. Harrison was guilty beyond a reasonable doubt of the offense of aggravated second-degree battery.

Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to prove that she threw the weight out of Brocato’s car; and, even if she did throw the weight, Defendant argues that the State failed to prove that she had the requisite intent to inflict serious bodily injury. We disagree.

When more than one assignment of error is raised on appeal, including the sufficiency of the evidence, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 |1fi(La.l992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to the trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.2d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

117The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 18124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of in ternal 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 conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. This includes the testimony of accomplices. An accomplice is a competent witness to testify against her coperpetrator even if the prosecution offers her inducements to testify; these inducements weigh on the witness’s credibility. State v. Jetton, 32,893 (La.App.2d Cir.4/5/00), 756 So.2d 1206, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299. The credibility of an accomplice’s testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

La. R.S. 14:34.7(A) defines aggravated second degree battery as “a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.” The statute defines “serious bodily injury” as “bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.”

Aggravated second degree battery is a crime requiring specific criminal intent. See State v. Fuller, 414 So.2d 306 (La.1982). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow 119his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126 (La.1982).

In the case sub judice, we find the evidence that Defendant threw the weight with the requisite intent to cause serious bodily harm to be sufficient to support the conviction. First, Brocato, who was driving the car, testified that Defendant was “hanging out” of the back seat driver’s side window when she threw the weight at Ms. Dice’s car. According to Brocato, Defendant then yelled at him to “go!” Second, Terry testified that Defendant told him that she had thrown the weight and that she had asked him to participate in a scheme to cover up what had actually happened. In addition, just days following the incident, when questioned by Detective Brown about whether Defendant had thrown the weight, Terry simply dropped his head and did not speak. Third, Frye testified that Defendant attempted to enlist his help in fabricating a story that would cover up her involvement as well. Fourth, the letters authored by Defendant to Brocato speak volumes as to Defendant’s self-proclaimed wrongdoing and attendant feeling of responsibility. The trial judge clearly discredited Defendant’s explanation of the meaning of her written words and we find no abuse of discretion in his credibility determination. Moreover, Defendant’s apology via telephone to her friend Ms. Hoskins also supports a finding of culpability on the part of Defendant.

12nSpecificalIy regarding the credibility determinations made by the trial judge as fact finder in this case, we note that all of the participants in the events of that evening who testified at trial are subject to credibility attacks based on their respective criminal histories. The trial judge, however, was in the unique position to hear the live testimony and weigh that testimony taking into consideration the factors affecting the credibility of each witness. After reading the transcript in its entirety, we cannot conclude that the trial judge was anything but sincere and justified in the credibility calls he made regarding the witnesses’ testimony in the case. The trial judge believed Brocato and found corroborating evidence in the testimony of Detective Brown, Terry, Frye and others. He found incredible the testimony of Defendant and those who testified on her behalf.

Defendant argues that she could not have thrown the weight because she was sitting in the front passenger seat; and, according to Ms. Whitlock’s testimony, it would have been very difficult for the weight to have been thrown with any precision from the passenger side of the car. While we do not find what seat Defendant was sitting in when the weight was thrown to be determinative, we note that both Ms. Dice and Johnston testified that there were only two people in the car in which Defendant was riding. Brocato testified that Defendant was sitting behind him in the back seat on the driver’s side and did not move around during the chase. The only people who unequivocally placed Defendant in the front seat of the car were Defendant, her friend Holly Santoro and her friend’s husband, Eddie Banks. Assuming that the trial judge found the testimony of the latter two to be |⅞1 credible, their testimony only placed Defendant in the front seat of the car as the parties left the Hamel’s Memorial parking lot. The same is true with Ms. Dice’s testimony that Defendant was in the “passenger seat” when the group of vehicles sped out of the parking lot and turned onto E. 70th Street. Regardless of where Defendant was sitting in the car at any given moment, it is apparent that the trial judge, without making a specific finding as to where Defendant was sitting in the car, credited the scenario where Defendant threw the weight from the car; and, again, we find that there is sufficient evidence in this record to support that conclusion.

As to whether the evidence was sufficient to establish the specific intent requirement of the crime, the court need only find that the specific intent to inflict serious bodily injury could be inferred from the circumstances of the actions of the defendant. State v. Graham, supra. We conclude that the specific intent to cause serious bodily injury could be reasonably inferred solely from the act of hurling a weight out of the window of a moving car and toward the windshield of another car. This conclusion is bolstered by the admission of Defendant that the two young women had engaged in a physical altercation and vehicular chase shortly thereafter. There is no question that Defendant’s emotions were high and that she was enraged at the victim. Moreover, Brocato testified that Defendant was hanging out of the window screaming at Ms. Dice’s car as the cars sped down E. 70th Street. The totality of the circumstances supports the reasonable inference of specific intent.

|22In summary, we conclude that the record contains sufficient evidence to support the conviction of Defendant for second degree aggravated battery.

Violation of Fifth Amendment Right

Defendant argues that the State’s reference to her post-Miranda silence during her trial testimony and during closing arguments exploited her invocation of her Fifth Amendment rights in derogation of the Supreme Court’s holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The State does not argue that a Doyle violation did not occur, but simply that, to the extent one may have occurred, it was harmless error.

During the State’s cross-examination of Defendant, the following exchanges occurred in regard to Defendant’s pre-arrest silence and omissions from her post-Miranda statement made to police on the day of her arrest:

Q. So once you know that Shon Broca-to has thrown this, you did some severe damage to someone’s face, you realize Aaron Wallace is involved in handing the weight, at no point — at any point, do you think that maybe you should do the right thing and tell the police who actually threw the weight?
A. Yes, sir.
Q. Why did you never do that?
A. I was told by Edward Mouton not to say anything.
|23MR. STROUD: Your Honor, I’m going to object to this. She was advised of her rights, and she agreed not to make a statement. He’s going into that. It’s perfectly legitimate what she did, and to suggest that there is something wrong isn’t proper.
MR. BROUSSARD: Mr. Stroud, is incorrect for two obvious reasons, one, he opened the door into it about her conversation with Mr. Mouton on direct examination, and, secondly, because she did give a statement to the police. She did not invoke her Fifth Amendment rights. She tried to tell the police everything that allegedly happened at the sandbar and all of this other stuff. So her Fifth Amendment was not invoked. And third, on direct examination she testified that she had not yet retained Mr. Mouton at that time.
MR. STROUD: Your Honor, that’s in error. The only thing she said was what was going on at the sandbar, and then she clearly invoked her rights. And for this prosecutor to go into that is improper. She asserted her Fifth Amendment privilege. There’s no assumption whatsoever that you can draw from that, and to quiz her why she didn’t tell the police, oh, by the way, after she was arrested was improper, because she was arrested down there that day. When she was arrested, out of the blue, she then invoked her rights, and Mr. Mouton did not represent her.
MR. BROUSSARD: Your Honor, I believe it’s clear from direct examination what happened.
THE COURT: I will overrule the objection, but I will also instruct you not to pry into privileged information between attorney-client.
MR. STROUD: Judge, I would note my objection for the record.
THE COURT: So noted for the record.
BY MR. BROUSSARD:
Q. So in giving your — while you are giving this statement in the police office, and you are telling them what happened at the sandbar, and you’re claiming that you had nothing to do with throwing the weight, why at some point did you not say l^what had actually happened, who was actually in the car.
MR. STROUD: Objection, Your Honor. After she said that, she specifically said that, she specifically asserted her right to counsel. And after she asserted her right to counsel, you can’t go into that. The reason she didn’t say it is that upon advice of counsel, she stopped after the sandbar.
MR. BROUSSARD: Your Honor, Mr. Stroud is attempting to testify into the record.
MR. STROUD: I am reading from the same transcript that he is. Ms. Harrison asserted her Fifth Amendment privilege. That was the whole — that was the groundwork for the statement. Mr. Mouton said she would talk about what happened on the sandbar only, and once that ends, it’s over.
MR. BROUSSARD: I believe, A, that has been ruled on; but, B, that’s not in the record; and, C, I believe that the testimony was that Mr. Mouton was not representing her at this time.
THE COURT: All right. You can rephrase your question.
MR. BROUSSARD: Sure, Actually, I’ll just move on.
BY MR. BROUSSARD:
Q. Why, when you are telling the story about the sandbar, before you allegedly invoked your Fifth Amendment against incrimination, when you are telling the story about the sandbar, why did you not once, not once mention Aaron Wallace’s name?
A. I didn’t know who he was.

During the State’s closing argument, the district attorney made the following references to Defendant’s failure to identify the alleged third occupant of the vehicle:

Jonathan Frye also testified in this trial as well and stated that he was asked by Chelsea to go to defense counsel’s office and to lie to defense counsel to bolster her story. This came out on the stand that’s what he was asked to do.... But what’s interesting is that nothing ever comes out of Chelsea’s mouth ^regarding Shon Brocato throwing the wait [sic] until the day of her trial, when he is already done with his part of the trial.
It seems like it would make a lot more sense if her story was true that you would point to the person you don’t know as the guilty one, the person that you don’t have any reason to want to protect, that this person, Miko, is someone she claims she doesn’t even know, and it’s very interesting that at no point in the investigation did she indicate he was in the car.
She also gave a statement about what happened at the sandbar, but nowhere in the statement about the sandbar did she say, oh, this guy, Miko, left with us in the car or this other third individual left with us in the car. I think what’s important is, if there was a third witness here in the car, a third person, who is going to say, I saw who threw the weight, it was Shon Brocato, why in the world has his name never come out in this investigation?

The use for impeachment purposes of a defendant’s silence at the time of arrest and after receiving Miranda warnings violates the Due Process Clause of the Fourteenth Amendment. Doyle, supra. In Doyle, the Supreme Court explained:

[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

The Due Process Clause, however, does not prohibit impeachment using a defendant’s pre-arrest silence, Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), or his post-arrest, pre-Miranda silence. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982).

12(jln Jenkins, supra, the prosecutor attempted to impeach the defendant’s credibility regarding his claim that he had killed in self-defense by suggesting that the petitioner would have reported the killing immediately. Defendant contended that the prosecutor’s actions violated the Fifth Amendment as applied to the states through the Fourteenth Amendment. Finding that the Doyle protections do not attach in the absence of the sort of affirmative assurances embodied in the Miranda warnings, the court concluded that the use of pre-arrest silence to impeach a defendant’s credibility did not deny him the fundamental fairness guaranteed by the Fourteenth Amendment. Furthermore, the court made it clear that, by taking the stand and exposing himself to cross-examination, “a defendant waives any Fifth Amendment privilege he may have against the use of his prearrest silence for impeachment purposes.” Jenkins, supra. The court in Jenkins then noted the common law practice allowing the impeachment of witnesses by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. Id.

As has been noted by the Louisiana Supreme Court, our courts have followed this tradition of allowing the substantive use of a defendant’s silence as a tacit admission under certain circumstances recognizing that “aside from the privilege against compelled self-incrimination ... in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause.” State v. Richards, 99-0067 (La.9/17/99), 750 So.2d 940.

| j>7In Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) (per curiam), the Supreme Court declined to extend Doyle to a situation in which the defendant did not invoke his Miranda rights, but waived them and gave a post-arrest statement inconsistent with his trial testimony. A defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. If a defendant tells different stories during post-arrest questioning and at trial, the prosecution may properly inquire into the prior inconsistent statements, even though the prior statements involve “silence” insofar as they omit facts contained in the later story. Anderson v. Charles, supra.

In addition, the Doyle proscription against referring to a defendant’s post-arrest silence is not without exceptions. The state is allowed to reference the defendant’s post-arrest silence when the evidence of post-arrest silence is relevant to rebut a defense-raised assertion that the arresting officers failed to properly investigate or that the defendant actively cooperated with the police when arrested. State v. Bell, 446 So.2d 1191 (La.1984).

A Doyle error is subject to a harmless error review. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 128 L.Ed.2d 353 (1993). The harmless error inquiry is “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

A review of Defendant’s cross-examination by the district attorney and references to Defendant’s silence in the closing argument are not ^unequivocal references to Defendant’s post-Miranda silence. In fact, the district attorney’s first question about Defendant’s failure to tell the police about the events of that evening is specifically qualified by a reference to Defendant’s failure to “at any point” tell the police who actually threw the weight. Defendant testified to a version of events in which she and her boyfriend were the victims of several batteries committed with beer bottles and lead pipes after which they were chased by numerous vehicles through the streets of Shreveport at high rates of speed and that she was not aware until the next day that a weight had even been thrown or that anyone had been injured. Under these circumstances, a reasonable conclusion would be that an ordinary person would have reported these events to the authorities immediately upon their occurrence. Under the above-cited jurisprudence, the State would be entitled to impeach Defendant with the failure to do so (pre-arrest silence) before she appeared at the police station two days after the event.

The subsequent questions after defense counsel’s initial objection were, however, about Defendant’s post-Miranda statement. The questions were not, however, about Defendant’s silence, but sought explanation from Defendant about the substantive differences between the statement she made to police about what happened at the sandbar and the statements she was making in her testimony. Specifically, the questions pertained to Defendant’s assertion at trial that, when she and Brocato jumped in the car to leave, an individual by the name of Miko jumped in with them. In her post-Miranda statement to Detective Brown, which was limited to the | ^events at the sandbar, Defendant referenced that “they” jumped into the car and yet did not specifically mention any other individual(s) in the car besides herself and Brocato. Defendant made a limited, yet voluntary, statement about the events at the sandbar and was impeached by the varying details provided by her in the statement to the detective and then at trial. A defendant should not be allowed to vary the details of the event during testimony while claiming the previously unspoken details are unassailable as a post-Miranda election to remain silent. Anderson v. Charles, supra.

Furthermore, defense counsel’s cross-examination of Detective Brown sought to create the impression in the trial judge’s mind that the police had conducted a sloppy investigation in failing to dust the weight for fingerprints, failing to question witnesses who had been identified as being in the car and in failing to conduct testing regarding the flight path of the weight. The. Fifth Amendment protects a defendant’s right to remain silent; it does not protect his effort to exploit that silence by requiring the government also to remain silent. Arguably, the district attorney’s purpose in questioning Defendant about her failure to identify Brocato as the thrower of the weight and Miko as an occupant of the car was to counter the allegation that police had failed to properly develop the case. State v. Bell, supra.

Assuming, arguendo, however, that a Doyle violation occurred, we find that any such error was harmless. Sullivan v. Louisiana, supra. There is a significant amount of evidence identifying Defendant as the individual who threw the weight that crashed through Ms. Dice’s windshield. The |snrecord shows that any Doyle violation did not contribute to Defendant’s conviction. Defendant’s conviction was attributable beyond a reasonable doubt not only to the witnesses against her, but to the numerous inconsistencies and unbelievable explanations by Defendant and her witnesses regarding the sequence of events that led to Ms. Dice’s injuries. The trial judge found Defendant’s testimony to be untrustworthy in its entirety. This finding was clearly attributable to the implausibility of Defendant’s version of events and not the fact she failed to provide information to law enforcement sooner.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Chelsea M. Harrison, is affirmed.

AFFIRMED.

      . We further note that, even if Defendant’s version of events is credited, i.e., Brocato was the thrower of the weight, Defendant would be guilty of being a principal to the aggravated second degree battery. As the individual who had physically fought with Ms. Dice just before the crime, the person who would have likely handed the weight to Brocato and the person who was verbally encouraging the continued conflict with the victim after leaving the sandbar, we conclude that Defendant would have "also actively desired ... great bodily harm to the victim." State v. Mitchell, 39,305 (La.App.2d Cir.2/17/05), 894 So.2d 1240, writ denied, 05-0741 (La.6/3/05), 903 So.2d 457.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Calvin J. WILSON, Sr., Appellant.
    No. 46,340-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Louisiana Appellate Project, Jonesboro, LA, by James E. Beal, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Brown, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

| ] Calvin Wilson Sr. appeals his conviction on one count of possession with intent to distribute a Schedule I controlled dangerous substance, marijuana. He contends that the district court erred in sustaining the state’s objection to, and excluding from evidence, his post-arrest statement that the marijuana was for his personal use. For the reasons expressed, we affirm the court’s ruling on the objection, the conviction and the second felony adjudication. However, because of various errors in Wilson’s sentencing for both this and another offense, we vacate the sentences and remand to the district court for resentencing.

Factual Background

On the afternoon of February 22, 2007, Caddo Parish deputies were conducting “drug corner checks,” riding unmarked cars by areas known for drug activity. Agent Walker drove to the corner of Bue-na Vista Street and Pierre Avenue, a vacant lot in the Allendale area known for drug trading and other illegal activity, and pulled to the curb. A man standing in the lot made eye contact with the agent, reached in his pocket, removed a small brown paper bag and dropped it to the ground. Agent Walker got out of his car, walked up to the man and asked him what he just dropped. Wilson replied, “I didn’t drop anything,” but Agent Walker picked it up and found that it contained suspected marijuana and cocaine. Agent Walker immediately placed him under arrest and read him his rights.

According to Agent Walker’s arrest report, Wilson said, “Man, I just got off work and was on my way home to smoke that little bit of marijuana,” and denied that the cocaine belonged to him. Laboratory analysis confirmed |2that the material in the paper bag was 2.1 grams of marijuana and 1.1 grams of cocaine. Agent Walker testified that these were small amounts consistent with personal use, and he charged Wilson with simple possession of both substances.

Procedural History

The state initially billed Wilson with one count of possession of a Schedule I CDS, marijuana, and one count of possession of a Schedule II CDS, cocaine. However, at a preliminary examination in October 2008, Wilson testified that he did not smoke marijuana and had bought the marijuana earlier that day to give to his sister. The state promptly amended the bill of information to upgrade the first charge to possession with intent to distribute a Schedule I CDS, marijuana. Wilson later waived his right to jury trial.

At a bench trial in January 2009, Agent Walker testified as outlined above. On cross-examination, defense counsel asked him about his arrest report in which Wilson stated that he was “going to use that [marijuana] for personal use at the time.” Agent Walker replied that he recalled their post-arrest conversation. Defense counsel then asked what Wilson said, but the prosecutor objected on grounds of hearsay, and the district court sustained the objection. This ruling is the subject of Wilson’s sole assignment of error.

In addition to Agent Walker’s testimony, the state offered the crime lab report verifying that the substances in the bag dropped by Wilson were marijuana and cocaine, and a transcript of Wilson’s testimony at the [¡¡preliminary examination, with emphasis on his statement that he was bringing the marijuana to his sister. Another deputy, Agent Witham, testified that he provided backup to Agent Walker that day. Although he did not participate in arresting Wilson or seizing the drugs, he testified that the marijuana was a “nickel pouch” which sold for $5 to $10 and was a common size for distribution.

Wilson did not testify in his defense, but he called two witnesses, Brown and Rivers, convicted felons who were standing by the corner when the arrest took place. Brown testified he did not see Wilson carrying any drugs that day, while Rivers admitted seeing Wilson toss a bag to the ground before one of the officers arrested him. Both witnesses were certain the officer said he was arresting Wilson for possession of marijuana, not cocaine.

The district court found Agent Walker credible and accepted his account of the incident. The court dismissed the defense witnesses as convicted felons who were also too far away to see or hear what happened. The court expressly accepted Wilson’s admission at the preliminary examination that he intended to distribute the marijuana to his sister. The court found him guilty as charged on both counts. The court sentenced him to concurrent terms of six years at hard labor and a fine of $2,000 for the marijuana and three years at hard labor and a fine of $500 for the cocaine.

The state later charged Wilson as a fourth felony offender for the possession with intent to distribute marijuana; Wilson ultimately agreed to plead guilty as a second felony offender. At the Boykin hearing on April 29, 42009, the court stated that pursuant to their agreement, the sentence would be the statutory minimum of 15 years at hard labor, but did not actually sentence him on that date. At a hearing two weeks later, on May 13, 2009, the prosecutor stated that the court had failed to sentence Wilson on the possession of cocaine. The court replied that it had, but for the sake of clarity it resentenced Wilson to concurrent terms of 15 years at hard labor for possession with intent to distribute marijuana, second felony offense, and 3 years at hard labor for possession of cocaine. Wilson was not present for this hearing.

Discussion

By his sole assignment of error, Wilson urges the district court erred in sustaining the state’s objection to the admission of the statement he made at the time of his arrest. He argues that if a statement constitutes hearsay, yet forms part of the res gestae of the crime, it is admissible in evidence. State v. Gibson, 359 So.2d 147 (La.1978), cert. denied, 441 U.S. 926, 99 S.Ct. 2038, 60 L.Ed.2d 400 (1979). The res gestae doctrine encompasses not only spontaneous utterances and declarations made before or after the commission of a crime, but also the testimony of witnesses and police officers as to what they heard or saw before, during or after the commission of the crime. State v. Kimble, 407 So.2d 693 (La.1981). The doctrine is now embodied in La. C. Ev. art. 801 D(4), under the rule that “things said or done” are not hearsay. State v. Milton, 99-2092 (La.App. 4 Cir. 5/17/00), 764 So.2d 1134. He contends that his statement, made at the time of his 15arrest and without coercion, was admissible under Art. 801 D(4). Finally, he argues that exclusion of his statement was not harmless because it was the only evidence of his true intent with regard to the marijuana at the time of his arrest.

The state responds that Wilson’s statement did not satisfy Art. 801 D(4) because it lacked an “integral connection to the event” but was rather a narrative recounting of what purportedly happened, and thus inadmissible. State v. Emerson, 31,-408 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470. The state further suggests that a self-serving, exculpatory statement is always inadmissible hearsay. State v. Lanham, 31,791 (La.App. 2 Cir. 3/31/99), 731 So.2d 936, writ denied, 99-1320 (La.1/14/00), 753 So.2d 207.

While we agree with Wilson’s general statement of the law of res gestae, we find that La. C. Ev. art. 801 D(4) does not truly address the situation presented here. This subsection provides that a statement is not hearsay if:

(4) Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

While Wilson’s comment to Agent Walker may have been impulsive and spontaneous, it appears to have been prompted not by the crime itself but by his unexpected arrest; hence, it constituted the words of a participant “when narrating the events” and was inadmissible hearsay. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749. Although the statement came much sooner after the crime than the one-hour delays in State v. Emerson and State v. Lanham, supra, the district court did not err in finding it to be narrative and not subject to Art. 801 D(4).

The applicable provision is La. C. Ev. art. 801 D(2), “Personal, adoptive, and authorized admissions.” This subsection provides that a statement is not hearsay if:

(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, either in his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement by a person authorized by him to make a statement concerning the subject.

Because Wilson did not testify but rather sought to introduce his post-arrest statement through Agent Walker, who recorded it in his arrest report, this was an attempt to offer a personal, adoptive and authorized admission under Art. 801 D(2). Such a statement is admissible only if it is “offered against a party”; self-serving and exculpatory statements are not admissible under this article. State v. Palmer, 45,627 (La.App. 2 Cir. 1/26/11), 57 So.3d 1099, and citations therein; State v. Hunter, 39,664 (La.App. 2 Cir. 6/29/05), 907 So.2d 200, writ denied, 2005-2027 (La.3/10/06), 925 So.2d 507; State v. Darjean, 94-1353 (La. App. 3 Cir. 4/5/95), 653 So.2d 812, writ denied, 95-1146 (La.9/29/95), 660 So.2d 855.

In a certain sense, Wilson’s statement was against his interest: he admitted possessing marijuana for his own use. However, he sought to introduce it for the exculpatory purpose of negating the intent to distribute. |7In State v. Darjean, the defendant told a treating physician, “I killed my wife.” When asked what happened, he replied, “She attacked me with a butcher knife.” The defendant sought to offer this statement to prove self-defense, but the trial court excluded it under Art. 801 D(2). The court of appeal affirmed, finding that the real thrust of the statement was to exculpate the defendant. Similarly, we find that the real thrust of Wilson’s statement was to negate the intent to distribute. In this sense, it was not admissible as a personal, adoptive or authorized statement.

Moreover, we find no merit in Wilson’s claim that this statement was the only evidence of his true intent with regard to the marijuana at the time of his arrest. His testimony at the preliminary examination clearly stated that he intended to distribute the marijuana by giving it to his sister. Agent Walker described Wilson’s futile attempt to toss the marijuana and cocaine when he made eye contact with a sheriffs deputy in an unmarked car. While Agent Walker admitted the amount of marijuana (2.1 grams, or under 1/10 ounce) was consistent with personal use, Agent Witham testified that the packaging was consistent with distribution. Viewed in the light most favorable to the state, there was ample evidence from which the district court could find all the essential elements of the offense, including the critical element of intent to distribute. This assignment lacks merit.

Sentencing Errors

On our own motion, we notice several errors in the sentencing process that must be corrected by vacating the sentences and remanding to the district court.

IsFirst, the transcript and minutes confirm that when the district court resen-tenced Wilson on May 13, 2009, Wilson was not present in court. “In felony cases the defendant shall always be present when sentence is pronounced. * * * If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.” La. C. Cr. P. art. 835. This provision applies to resentencing and cannot be waived. State v. Bradford, 29,654 (La.App. 2 Cir. 9/24/97), 700 So.2d 1046.

Second, the transcripts of the April 29 and May 13, 2009, sentence hearings do not show that the district court formally vacated Wilson’s original six-year sentence for possession with intent to distribute marijuana before imposing the enhanced 15-year sentence for a second felony offender. The court “shall vacate the previous sentence already imposed” when it imposes an enhanced sentence under the habitual offender law. La. R.S. 15:529.1 D(3).

Finally, at the May 13, 2009, sentence hearing, the prosecutor erroneously argued that the court had not yet sentenced Wilson for possession of cocaine. The court correctly responded that it had done so, giving him a three-year sentence, but then proceeded impose the same sentence again. It is unclear whether this was necessary.

For these reasons, we vacate Wilson’s sentences and remand the case to the district court for a new sentence hearing at which Wilson is present and otherwise fully complies with R.S. 15:529.1.

| ^Conclusion

For the reasons expressed, we affirm Wilson’s convictions and his adjudication as a second felony offender. However, we vacate his sentences and remand the case for resentencing in accord with this opinion.

CONVICTIONS AND SECOND FELONY ADJUDICATION AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.

      . The Louisiana Code of Evidence was adopted in 1988 and became effective on January 1, 1989. 1988 La. Acts. No. 515, § 3.

      . The court minutes for both these dates recite that the prior sentence was vacated but the transcript simply does not confirm this. In such a situation, the transcript prevails over the minutes. State v. Lynch, 441 So.2d 732 (La.1983); State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Larry D. LEWIS, Appellant.
    No. 46,344-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Dhu Thompson, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Larry Lewis, was charged by bill of information with possession of a Schedule II controlled dangerous substance (CDS), cocaine, in an amount greater than 28 grams, but less than 200 grams, in violation of LSA-R.S. 40:967(F)(l)(a). After a trial by jury, the defendant was found guilty as charged. The state then filed an habitual offender bill of information alleging that the defendant was a third-felony offender. The defendant’s motions for new trial and for post-verdict judgment of acquittal were denied. Subsequently, the trial court adjudicated the defendant a third-felony offender and, as per LSA-R.S. 15:529.1, imposed the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The court denied defendant’s motion to reconsider sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

At approximately 5 p.m. on June 16, 2009, Shreveport Police Officer Josh May-field was dispatched to investigate a narcotics complaint at a residence in Shreveport, Caddo Parish. Officer Mayfield knocked on the door and spoke with defendant, who said that he was the homeowner and that three other persons were in the house at the time. Officers Jason Frazier and Brandon Parker arrived on the scene as backup and the police checked the names of the individuals for any active arrest warrants. Because only the defendant was subject to an active warrant, the police allowed the other individuals to leave the scene.

When asked by Officer Mayfield if there were narcotics in the house, |2defendant said no and gave oral consent to a search of the residence. Police did not find any narcotics during this initial search, but found a digital scale, latex gloves and plastic sandwich bags, indicating possible illegal narcotic activity. Officer Mayfield then obtained the defendant’s written consent to have a K-9 unit search the home for narcotics. As a result of the K-9 search, police found 75 grams of crack cocaine inside a stereo speaker. After being informed of his Miranda rights, the defendant stated that he understood his rights and admitted that the cocaine was his. Defendant was arrested and charged with possession of more than 28 grams, but less than 200 grams, of cocaine. Following a hearing, the trial court found that the defendant’s statements to the police were freely and voluntarily made.

After a jury trial, the defendant was found guilty as charged. The trial court adjudicated the defendant a third-felony offender and imposed the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant’s motion to reconsider and deviate from the statutorily mandated sentence was denied. This appeal followed.

DISCUSSION

The defendant contends the evidence presented was insufficient to support his conviction. Defendant argues that the state failed to prove the element of knowing or intentional possession of the cocaine by relying solely on his statement to police that the cocaine belonged to him, despite the possibility that the other people who were in the house could have hidden the drugs while Officer Mayfield was talking to defendant outside.

|aThe criteria for evaluating. sufficiency of evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Gray, 26,115 (La.App.2d Cir.6/22/94), 639 So.2d 421. That standard, now legislatively embodied in La.C.Cr.P. art. 821, is applicable to cases involving direct and circumstantial evidence. State v. Charleston, 33,393 (La.App.2d Cir.6/23/00), 764 So.2d 322. A defendant’s confession is direct evidence, for it is an acknowledgment of guilt for which no inference need be drawn. LSA-R.S. 15:449; State v. Richie, 44,783 (La.App.2d Cir.10/28/09), 25 So.3d 879. LSA-R.S. 40:967(F)(l)(a) prohibits the knowing or intentional possession of 28 grams or more, but less than 200 grams, of cocaine.

In the present case, Officer Frazier testified that in June 2009, he responded to a narcotics complaint at a residence on Freewater Street to assist Officer May-field. Officer Frazier stated that when he arrived at the scene, he saw Mayfield and another officer speaking with defendant and several other individuals in front of the house. Frazier testified that the others were released because there were no outstanding warrants on them. He stated that defendant verbally agreed to a search of the residence. Officer Frazier testified that during the search the police found a digital scale, plastic baggies and latex gloves in the house and decided another search was necessary because these items suggested drug activity. A K-9 officer was called to the scene and defendant signed a form consenting to |4the second search. The police dog alerted to three separate areas in the home that the officers then searched. Officer Frazier testified that in the southwest bedroom of the house, the police found a cell phone box, which contained a large amount of cash and that “hash marks” were written on the inside cover, indicating that the owner had been counting something. Frazier stated that the police also found a bag containing crack cocaine inside a stereo speaker in the same room. Frazier testified that Mayfield advised defendant of his Miranda rights and that defendant admitted the crack cocaine was his.

Officer Mayfield testified that on June 16, 2009, he responded to a complaint of drug activity at a house on Freewater Street in Shreveport. Mayfield stated that he spoke with defendant, who said that he was the homeowner and that three other persons were present at the house. Officer Mayfield was assisted at the scene by Officers Frazier and Parker.. They checked the names of those present and learned that there was an active arrest warrant for defendant, but not for the others, who were allowed to leave the scene. Officer Mayfield testified that the defendant verbally consented to a search of the residence and the officers observed a small digital scale in the kitchen and boxes of plastic sandwich bags in a bedroom. Mayfield stated that in combination, those items caused him to suspect drug activity in the house. He then obtained the defendant’s written consent for a K-9 search of the residence. Officer Mayfield testified that after the K-9 search, police found a box containing a large sum of money and a bag of suspected crack cocaine that was hidden inside a stereo speaker. Officer | ¡¡Mayfield stated that a field test of the substance was positive for cocaine and that the material weighed 75.5 grams. Officer Mayfield stated that after the cocaine was found, he apprised defendant of his Miranda rights and then asked him about the cocaine. The defendant responded that there were no more drugs in the house and admitted that the cocaine belonged to him. On cross-examination, Officer Mayfield acknowledged that defendant had said he smoked- “dope,” and did not use the word cocaine. Officer Mayfield explained that the term “dope” is used by police to mean “narcotics,” and could refer to marijuana.

Officer Clint Cane, a K-9 dog handling expert, testified that he was dispatched to the scene to conduct a search. Officer Cane stated that the police dog alerted to several areas in the house. Officer Cane testified that within those areas police found the phone box containing money and the crack cocaine hidden inside the stereo speaker.

Bruce Stentz, an expert in forensic chemistry, testified that he worked at the North Louisiana Crime Lab. Stentz stated that the lab received from the police a bag, marked as State’s Exhibit No. 2, containing a white substance. Stentz testified that he performed tests which showed that the substance was crack cocaine, with a weight of 75 grams.

Contrary to defendant’s argument, sufficient evidence was presented to convict him of possession of cocaine in an amount greater than 28 grams, but less than 200 grams. The defendant’s statement to police that the cocaine belonged to him was direct evidence of his guilt. Defendant also told police that he used and sold “dope.” Although the testimony of police Rat trial supported the defendant’s claim that the term “dope” is susceptible to different meanings, the word is also used to describe cocaine. Therefore, defendant’s statement that he used dope corroborated his confession that the cocaine found in his bedroom belonged to him.

Additionally, Officer Mayfield testified that during the initial search he discovered certain items (sandwich bags, a digital scale and latex gloves) that he believed were associated with narcotics activity, given his past experience investigating narcotics cases. Then, after Officer Cane searched the residence with his K-9 partner, police found 75 grams of crack cocaine in the defendant’s bedroom. Thus, based upon the factual circumstances established by the evidence presented, the jury could have reasonably concluded that defendant knowingly possessed the cocaine seized from his residence and was not “covering” for another. Consequently, the record contains sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of possession of cocaine in an amount greater than 28 grams, but less than 200 grams. This assignment of error lacks merit.

Right to Counsel

The defendant contends the trial court erred in forcing him to go to trial without the attorney retained for him by his family. Defendant argues that he was denied his constitutional right to retain counsel of his choice when the court ordered the trial to proceed with appointed defense counsel.

Both the federal and state constitutions provide that an accused has the right to counsel of his own choosing to defend him in a criminal charge. |7However, this right does not permit the arbitrary action which obstructs orderly procedures in the courts. State v. Leggett, 363 So.2d 434 (La.1978); State v. Reeves, 2006-2419 (La.5/5/09), 11 So.3d 1031; State v. Wilson, 45,060 (La.App.2d Cir.3/10/10), 32 So.3d 1152. Rather, the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. State v. Leggett, supra. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and the resulting disruption to the orderly trial of cases. On the day of trial, the question of withdrawal of counsel rests largely within the discretion of the trial court. The Louisiana Supreme Court has consistently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney, but had ample time to retain private counsel. Leg-gett, supra.

In this case, on the day of trial, defendant sought a continuance on the grounds that the private attorney retained for him was not present in court. Following a recess, the trial court stated that the attorney whom defendant sought to retain had been contacted and had informed the court that it would be beneficial for him not to enroll if the trial was proceeding and counsel had been appointed. The trial court noted that the private attorney had not filed a motion to enroll as counsel and that the trial had previously been continued to give defendant time to retain an attorney. After ensuring that defendant’s appointed counsel was prepared, the trial court ruled that the |8case would proceed with appointed counsel representing defendant.

The record shows that the defendant requested the continuance on the day of trial after the trial date had already been continued once to allow defendant to retain counsel. The allegedly retained attorney never enrolled as counsel for defendant. To the contrary, the attorney informed the court that if the trial was to proceed and counsel had been appointed then he would not enroll. The defendant had more than adequate time to retain an attorney and was represented by appointed counsel who told the trial court they were prepared for trial. Consequently, the trial court did not abuse its discretion in denying defendant’s motion for a continuance seeking another opportunity to retain a private attorney to represent him at trial. This assignment of error lacks merit.

Motion to Quash

The defendant contends the trial court erred in denying his motion to quash the bill of information and allowing the state to amend the bill after jury selection. Defendant argues that a mistrial should have been ordered because the bill of information charged him with an offense that did not exist and this error of substance could not be amended once trial had begun.

The bill of information must inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. La. Const., Art. I, § 13; State v. Lee, 39,088 (La.App.2d Cir.10/27/04), 888 So.2d 305.

LSA-C.Cr.P. art. 487 provides, in pertinent part:

LA. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because of any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in any respect to any such formal defect, imperfection, omission or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

A jury trial commences when the first prospective juror is called for examination. LSA-C.Cr.P. art. 761. A defect of substance as contemplated by Article 487 is intended to mean a defect which will work to the prejudice of the party accused. City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974); State v. Lee, supra. Even when the bill of information supplies the completely wrong section number or statute, the conviction is upheld if the defendant was given fair notice and identity of the offense and does not claim surprise or prejudice. State v. Lee, supra.

After the jury was selected in this case, the defendant made an oral motion to quash the bill of information alleging that the crime charged in the bill did not exist under Louisiana law. Specifically, defendant explained that the bill of information incorrectly charged him with “possession with intent to distribute over 28 grams, but not more than 200 grams of cocaine.” The defendant claimed that this defect prevented his proper preparation for trial because the defense had already conducted voir dire based on a charge with a specific intent element. The trial court, noting that the issue of intent | into distribute was never raised during voir dire, denied the defendant’s motion to quash and allowed the state to amend the bill of information.

Because the amendment was made after the jury had been selected, the initial issue is whether the defect in the bill of information was one of substance or merely one of form. A review of the bill of information shows that the defect fell into the latter category. Prior to the state’s amendment, the bill of information charged defendant with:

COUNT 1: did knowingly or intentionally possess more than 28, but less than 200 grams of CRACK COCAINE with intent to distribute a controlled dangerous substance classified in Schedule II, CDS to-wit: CRACK COCAINE

The bill cited LSA-R.S. 40:967(A)(1)— the statute criminalizing possession with the intent to distribute cocaine. The state amended the bill to charge defendant with a violation of LSA-R.S. 40:967(F)(l)(a), possession of cocaine in an amount greater than 28 grams, but less than 200 grams. Although the pre-amended bill of information charged defendant with a combination of two offenses, he was aware that he was being charged with possession of more than 28 grams, but less than 200 grams, of cocaine. Thus, the defendant received fair notice and identity of the offense.

In addition, the defendant failed to demonstrate prejudice or surprise as a result of the defect in the bill. Although defendant argues that he was prejudiced during voir dire because of the erroneous bill of information, the trial court found that the prospective jurors were never questioned regarding the intent to distribute cocaine. We note that defendant did not include the voir dire proceedings in his designation of the record for appellate review. Based upon this record, the trial court did not commit reversible error inj^allowing the state to amend the bill of information. The assignment of error lacks merit.

Video Evidence

The defendant contends the trial court erred in admitting video evidence that was not timely provided to defense counsel. Defendant argues that the video should not have been shown to the jury because the defense was unable to finish viewing the material after the state had initially provided a blank disk, leaving the defense with inadequate time to prepare.

The purpose of discovery rules in criminal trials is to eliminate unwarranted prejudice from surprise testimony. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Williams, 25,835 (La.App.2d Cir.2/23/94), 632 So.2d 893. The failure of the state to comply with the discovery procedure will not automatically command reversal. The defendant must show prejudice in order for his conviction to be reversed. State v. Williams, supra.

In Williams, the accused was informed on the day of trial that the state intended to use inculpatory statements he made to the police. A free and voluntary hearing was conducted, and the defense was granted a recess to review the statements. On appeal, the defendant claimed that the state had violated discovery rules by producing the statement on the day of trial. This court affirmed the conviction after holding that the defendant was not prejudiced by the admission of the statements. The defendant had been notified earlier that the state intended to use any inculpa-tory statements made by the defendant. Additionally, any prejudice.resulting from the late 112disclosure was cured because the defense was granted a recess to prepare its defense. Williams, supra.

In this case, the defense requested at trial that the state provide a copy of the video recording of the defendant and his interactions with police on the day of his arrest. The defense acknowledged that the state had provided a video disk to the indigent defender’s office approximately one month prior to trial, but stated that the defense was unaware until several days before trial that the disk did not contain viewable video. The trial court granted the defense’s request and later that same day a jury was selected.

The following morning, on April 13, 2010, the defense counsel, who had already begun viewing the video after receiving it that morning, requested additional time to view the remainder of the video. The defense was given additional time while the court considered other matters. At 1:30 p.m., the defense notified the trial court that it had approximately one hour left of the video to review. The trial court granted the defense two hours to finish viewing the video. When court reconvened at 3:30 p.m., the defense, claiming there was another ten minutes of the video left to watch, moved for a continuance, or alternatively, a stay. Both motions were denied and the defendant notified the trial court of his intention to seek supervisory review with this court.

On April 14, 2010, trial testimony began when the state called Officer Frazier. At some point that afternoon, the trial court noted for the record that defendant’s writ application had not been considered by this court and set a new return date for the re-filing of defendant’s application. During 11sOfficer Mayfield’s testimony, selected portions of the video were played in open court. Later that day, following Officer Cane’s direct testimony, the trial court informed the parties that this court had granted defendant’s writ application and ordered a stay of the proceedings to give the defendant additional time to prepare his defense. State v. Lewis, 45,618 (La.App.2d Cir.4/15/10), 34 So.3d 1167 (unpublished). Accordingly, the matter was stayed until April 16, 2010, at 9:30 a.m., when trial resumed.

Contrary to defendant’s contention, there has been no showing that he was prejudiced by admission of the video evidence. The defense was aware in October 2009 that the state planned on using any inculpatory statements made by defendant. The defense requested such statements from the state and was provided a video purportedly containing those statements. However, the video was either blank or incompatible with the defense’s video viewing devices. Although the defense obtained the video disk one month before the trial date, defense counsel did not complain that the video could not be viewed until the day of trial.

In response to defendant’s request for a continuance, the trial court recessed proceedings for almost an entire day to allow the defense to view the video. Following a free and voluntary hearing, the defense then had that evening to watch the video before trial testimony began the next day. Additionally, this court granted the defendant a recess to allow additional time to prepare his defense. Based upon this record, the trial court did not commit reversible error by allowing the state to play video of defendant’s statements to police at trial. This assignment of error lacks merit.

| uSentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that he is entitled to a downward departure from the mandatory sentence of life imprisonment because he needs drug rehabilitation, not incarceration, and he does not have a violent criminal history.

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

LSA-R.S. 15:529.1(A)(l)(b)(ii) provides: If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisoranent for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.

Simple burglary is punishable for a period of “not more than twelve years” imprisonment. LSA-R.S. 14:62.

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 84,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. A court may 11sdepart below the minimum sentence only if it finds clear and convincing evidence in the particular case before it that would rebut the presumption of constitutionality. State v. Gay, supra. This court has held that defendant has the burden to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson, supra, 709 So.2d at 676; State v. Robbins, 43,240 (La.App.2d Cir.6/4/08), 986 So.2d 828, writ denied, 2008-1438 (La.2/20/09), 1 So.3d 494; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

Furthermore, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339; State v. Johnson, supra; State v. Henry, 42,416 (La.App.2d Cir.9/19/07), 966 So.2d 692; State v. Wade, supra.

In this case, the defendant has not shown that the trial court erred in denying his request for a downward departure from the mandatory life sentence imposed. Defendant was adjudicated a third-felony offender with prior convictions for possession with intent to distribute cocaine and simple 11fiburglary. Pursuant to LSA-R.S. 15:529.1(A)(l)(b)(ii), he was sentenced to the mandatory term of life imprisonment without the benefit of parole, probation or suspension of sentence. The defendant’s sentence is presumed constitutional; he failed to provide clear and convincing evidence to rebut that presumption. Although defendant claims he is in need of rehabilitation and not incarceration, the habitual offender statute was specifically designed to punish more severely those previously convicted under the Uniform Controlled Dangerous Substances Law.

Additionally, the defendant’s claim that his prior convictions were for nonviolent crimes is insufficient, by itself, to warrant a downward departure from the mandatory life sentence. Thus, we cannot say the mandatory sentence imposed is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.