author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Lon ADAMS.
    No. 10-KA-855.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    Rehearing Denied Jan. 24, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler-Appellate Counsel, Jacquelyn F. Maloney-Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Roy A. Raspanti, Attorney at Law, Me-tairie, LA, for Appellant, Lon Adams.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|20n January 8, 2009, the Jefferson Parish Grand Jury indicted defendant, Lon Adams, on one count of second degree murder, in violation of La. R.S. 14:30.1, for the homicide of his father, Leroy Adams, Sr. Trial before a twelve-person jury commenced on September 21, 2009. After five days of testimony and evidence, the unanimous jury found defendant guilty of the responsive verdict of manslaughter, a violation of La. R.S. 14:31. On December 11, 2009, the trial judge sentenced defendant to imprisonment at hard labor for 20 years.

Facts

In 2005, like many homes in the Greater New Orleans area, Leroy Adams, Sr.’s house in New Orleans East was destroyed in the aftermath of Hurricane Katrina. When Mr. Adams, who was 79 years old at that time, returned from evacuating the area, he moved in with his son, Lon, and his grandson, Chad, to Lon’s house in Me-tairie. Although Mr. Adams evacuated with both of his children and their families, he did not move in with his daughter, Lynn Landreneau, and her family when they returned because the Landreneaus were housing two other elderly relatives, who had been left homeless after the storm.

| sIn the Fall of 2005, as was their custom, Mr. Adams, Lon, and Chad joined the Landreneaus for family celebrations several times. On December 25, 2005, Lon brought Mr. Adams and Chad to the Lan-dreneau’s house to celebrate the holiday. Mrs. Landreneau recounted that, when her father first arrived with Lon, her father did not seem to recognize her but, after lunch, he seemed more like himself. Several family members also recounted that Mr. Adams had lost a lot of weight in only a few months. That day was the last time that Mrs. Landreneau saw her father alive.

Mrs. Landreneau stated that, over the next several months, she called Lon’s house many times trying to speak to her father, but she usually got the answering machine. Mrs. Landreneau reported that, if Lon did answer the phone, he would not let her speak to their father. She remembered Lon telling her either that their father was sleeping and did not want to be awakened, or that their father was angry with Lynn and did not want to speak with her.

On July 26, 2006, Mrs. Landreneau contacted the Jefferson Parish Sheriffs Office (“JPSO”) regarding her brother’s refusal to allow her to communicate with their father. Mrs. Landreneau stated that the deputy informed her that, without further indication of criminal activity, the Sheriffs Office would not investigate a family squabble. She was warned that she could not enter Lon’s house without his permission.

That day, Mrs. Landreneau and her husband went to Lon’s house anyway, but Lon refused to let them inside. She remembered smelling a “horrible” odor, which was not a “Katrina” smell, from inside of Lon’s house when he opened the door. However, immediately after opening the door, Lon exited the house, slamming the front door to her and her husband.

|4Lon went straight to his vehicle but, before he left, Lon told Lynn Landreneau that he had put their father into a nearby nursing home in Metairie. That day, when the Landreneaus went to that particular nursing home to confirm Mr. Adams presence, the staff found no record that Mr. Adams had been placed into their care.

In November of 2006, Lynn called Lon to invite him, her father, and nephew to celebrate Thanksgiving with her family. Lon accepted for himself and his son but explained that their father would only come to dinner on the condition that Lynn agreed not to talk to him because he was still not speaking to her. Lynn refused to agree, which, she remembered made Lon seem relieved. That year, Lon and Chad came to Thanksgiving dinner without Mr. Adams.

Over the next eighteen months, Lon and Chad went to the Landreneau’s house for family functions without Mr. Adams, claiming that Mr. Adams refused to attend because he was still not speaking to Lynn. During that same time frame, Lynn Lan-dreneau filed a complaint with Elderly Protective Services, a service of the Louisiana Governor’s Office of Elderly Affairs. Further, during that time frame, Mrs. Landreneau noticed that there were monthly deposits from Social Security and other sources into Mr. Adams bank account, but only one withdrawal — a check to Lon Adams.

On the afternoon of June 2, 2008, Mrs. Landreneau went to the Jefferson Parish Sheriffs Office in Metairie to again try to report her father as missing. Within the hour, Jefferson Parish Sheriffs Officer Joseph Ventola went to Lon’s residence. Lon refused to admit Officer Ventola into his house stating that his father was sleeping and the house was messy. Officer Ventola told Lon that the investigation into his father’s alleged disappearance was “not going away.”

|sThe next morning, Sergeant Lisa Lunsford contacted local hospitals, nursing homes, and correctional facilities in an attempt to ascertain Mr. Adams’ whereabouts. When her search was unsuccessful, Sergeant Lunsford notified her supervisor, Captain Hilda Montecino, that JPSO needed to determine whether Mr. Adams was in the residence.

Sergeant Lunsford and Captain Montec-ino went to the residence and knocked on the door, but there was no response. The officers decided to maintain surveillance on the house.

A little while later, the officers observed a vehicle matching the description of Lon’s vehicle turn onto Lon’s street. After turning onto the street, however, the driver drove past Lon’s house without stopping. Deputy David Randall and Detective Todd Giacona immediately conducted a traffic stop and removed Lon and Chad from the vehicle. Officer Randall advised Lon of his rights and asked for consent to search his residence. As Captain Montecino was filling out the consent to search form, she got a call from another officer informing her that a judge had signed a warrant allowing JPSO to search the house.

Immediately, Detective Giacona entered the house. Deputy Randall stood outside for officer safety with Captain Montecino and Lon, while Detective Giacona went inside. When Detective Giacona went to the second floor of the house, he observed three rooms at the top of the stairwell — a bedroom to the left, a bathroom in front, and another bedroom to the right, later identified as Chad’s bedroom. To Detective Giacona, it appeared that the entire second floor area had suffered water incursion as a result of roof damage. Although the entire second floor smelled like mildew, a “really disgusting smell” came from the left bedroom.

| ^Detective Giacona, using his shoulder, forced the door to the left bedroom open about a foot and found debris behind it. It was dark inside and the windows were closed. Using his flashlight, he was able to see skeletal remains on top of the bed. The remains were later identified as those of Leroy Adams, Sr.

As Detective Giacona descended the stairs from the second floor, Lon asked about his father. When Detective Giacona told him that his father was dead, Lon did not react emotionally to the news.

JPSO deputies then transported Lon to the investigations bureau where he was again advised of his constitutional rights. Lon waived his rights then gave a statement to Lieutenant Donald Meunier. In that statement, which was played for the jury at trial, Lon said that the last time he entered his father’s bedroom was in 2006, and that he did not know when his father had died. Lon claimed neither he nor anyone else ever physically abused or harmed his father. He could not explain why he did not go into the room after that time, and he believed that the examination of the remains would show that his father died of old age.

After giving the statement, Detectives Roger Gorumba and Keith Locascio transported Lon to West Jefferson Medical Center so he could undergo a psychological evaluation. Lon stayed there for nine days — from June 3 to June 12, 2008. During that nine-day period, Lieutenant Meu-nier received preliminary findings regarding the skeletal remains, which showed that the victim sustained substantial bone damage, including 24 rib fractures, multiple fractures of the hyoid bone, a fractured toe, and a fractured finger.

|7On June 12, 2008, Lieutenant Meunier learned from the Jefferson Parish Coroner’s office that Lon was going to be released from the hospital at approximately 1:00 p.m. After obtaining that information, he and Detective Locascio went to West Jefferson Medical Center. When they saw defendant leaving, Lieutenant Meunier approached him to ask if he would come to the JPSO Detective Bureau for additional questions. Lieutenant Meu-nier testified that Lon willingly agreed. Lieutenant Meunier and Detective Locas-cio transported Lon to the detective bureau where they again advised Lon of his rights. Lon gave four more statements that day.

In his first statement on June 12, 2008 at 1:28 p.m., Lieutenant Meunier told Lon that the preliminary medical findings suggested that his father died as a result of trauma. When asked about his father’s injuries, Lon recalled that, in late 2005 or early 2006, his father fell out of bed onto an army footlocker and injured his ear. Lon also recalled that his father fell down the stairs twice, but was not injured. Lon denied hurting his father and maintained that any trauma would have been from one of the falls that his father had taken. Finally, he indicated that he might have been concerned about reporting his father’s death because he felt as if he did not adequately care for his father.

In his second statement on June 12, 2008 at 2:14 p.m., Lieutenant Meunier asked Lon if he had told his son, Chad, not to say certain things to the police that might get Lon into trouble. Lon explained that he was concerned that Chad, who is developmentally disabled, might report that Lon and his father argued.

Lon thought his father was alive in the first quarter of 2006, but not after that. Lon agreed that he might not have cared for his father as well as he should have. Lon admitted that it was possible that his father died from starvation. He |8claimed that he concealed his father’s death because he was embarrassed and ashamed that he had allowed his father to die “on his watch.”

In his third statement on June 12, 2008 at 4:55 p.m., Lieutenant Meunier asked Lon for more specific information about his father’s injuries. Lon said that, when his father urinated on the bathroom flooi’, the floor became slippery, which caused his father to fall. After a fall, Lon would have to help his father up from the floor. Lon explained that he would lift his father up with one hand underneath his father’s ann and one underneath his neck. Lon asserted that his father’s neck could have been injured when Lon picked him up.

Lon also stated that his father frequently fell out of bed. Lon said that the last time he helped his father back into bed was during the first quarter of 2006. He stated that the last time he put his father into bed, his father was conscious. Lon denied hitting his father but admitted that he may have pushed his father down onto the bed. He said that his father could have been injured by falling out of his bed onto a footlocker, which was about 18 inches from the side of the bed. He also conceded that he probably did not sufficiently attend to his father’s nutrition or supervision.

In his fourth and last statement of June 3, 2008, which was given at 8:52 p.m., Lon remembered the event that could have caused his father’s injuries. He recounted that, one night in the second quarter of 2006, he heard a thump and thought his father probably had fallen out of bed. Lon went into the bedroom to pick up his father, who was very difficult to lift. He picked his father up by putting both hands underneath him and “almost throwing” him into bed. Lon lost his balance and fell on top of his father. He thinks his right forearm landed across his father’s throat. Mr. Adams cried out in a small gasp of pain; however, his father was still conscious. Lon said the pain would have been pretty severe, but his father |9did not say anything. His father curled up like he always did, and Lon either covered his father or his father covered himself.

After that incident, Leroy Adams never exited the room, and Lon never went back in again. Before that incident, his father used to come downstairs to eat, but after that incident, he did not. Lon knew after a while that his father was dead, but it was difficult for him to admit it, especially since he had accidentally hurt his father “that bad.”

After Lon gave his statements, Lieutenant Meunier drove him back to his house. The officers did not arrest Lon at that point because his father’s death had not yet been ruled a homicide. Specifically, the medical examiner had not yet rendered her report declaring the manner and cause of the victim’s death.

Mary Manhein, an expert forensic anthropologist, testified that she and her assistants recovered the skeletal remains from the defendant’s house. Dr. Manhein opined that the victim died between six months to three years before the remains were discovered. Dr. Manhein noted that the remains revealed, among other things, evidence of perimortem trauma, which is trauma that happened at or around the time of death.

Dr. Manhein testified that the victim sustained multiple perimortem bone fractures: two of the hyoid bone; two of the ossified thyroid cartilage; two fingers of the left hand; thirteen on the left ribs, eleven on the right ribs; one of the eleventh thoracic vertebrae and one of the right big toe. Dr. Manhein opined that the perimortem trauma was likely caused by a direct blunt force trauma inflicted in one or more events. She said that, in order for the hyoid to break, it would have been subjected to squeezing or pressure from side-to-side. She also said that the thyroid cartilage could have been broken by blunt force, which could have occurred if the area was hit from the front.

|inDr. Manhein asserted that considerable force was required to inflict such a wide scale pattern of damage to the back and front of the body. Dr. Manhein testified that she had only seen this type of widespread trauma one other time, in a person who was most likely run over by a car. Dr. Manhein testified that the damage shown in the skeletal remains was not sustained as the result of the victim falling from the bed onto the footlocker because the height was not great enough.

Dr. Karen Ross, an expert forensic pathologist employed as Assistant Coroner for the Jefferson Parish Coroner’s Office, also examined the remains to determine manner and cause of death. She testified that the manner of death was homicide and the cause of death “most likely was intentionally inflicted blunt force injuries.” Dr. Ross relied heavily upon the anthropo-logic exam in forming her opinion.

Dr. Ross explained that the injury to the victim’s hyoid bone was more consistent with pressure being applied by a hand or a finger, rather than a fall. Further, the victim’s neck injuries could also have been caused by blunt force trauma, i.e., a direct blow to the neck. She stated that the types of injuries sustained by the victim were the result of high-impact force seen in motor vehicle or industrial accidents.

Dr. Ross testified that, given the extent of bone damage present in this victim, he would have likely experienced bruising and/or hemorrhage in the lungs; “likely tears of the pleura with pneumothorax;” blood and air collecting in the chest; and bleeding from the arteries, which would have been fatal. Dr. Ross stated that, in her opinion, the victim’s death would have been painful and not instantaneous. Dr. Ross testified that, if the victim had been brought to the hospital after sustaining the injuries, it is possible that he would have survived.

_J_yDr. Ross testified that it was' not possible, in her opinion, that the victim sustained the distinct injuries by falling out of bed onto a footlocker. Dr. Ross disagreed that all 29 rib fractures occurred at the same time because only 24 of the fractures were perimortem, i.e., at or near the time of death.

Additionally, Dr. Ross noted that the victim’s skeleton did not exhibit signs of significant osteoporosis. Further, the most common injuries to osteoporosis sufferers were head injuries and hip fractures, which the victim did not have.

Chad Adaras, defendant’s son, testified, in late 2005 or early 2006, he saw his grandfather fall down the stairs once. He also testified that, around that same time, defendant told him that his grandfather fell again and was injured. After the second fall, defendant told Chad that his grandfather was in the hospital. Chad testified that, whenever he asked defendant where his grandfather was, defendant told him that his grandfather was sick in the hospital.

Chad could not remember the last time that he saw his grandfather alive. Chad stated that he did not know his grandfather was hurt in the bedroom and did not know his grandfather was dead before the skeletal remains were found. Chad remembered smelling a weird smell in the house, but he thought it was dead rats or mice.

Chad remembered telling his cousin on Christmas Day in 2005 that their grandfather sometimes beat on the walls of his bedroom with a cane and screamed for food and water, which was “driving him crazy.” Chad testified that, when his grandfather did that, he and defendant would bring his grandfather food and water. He stated that neither he nor defendant ever hit his grandfather.

Salvadore Brocato, defendant’s next door neighbor, testified that in mid to late 2006, he and his wife noticed flies in the top left window on the second floor of defendant’s home. He thought that the flies were attracted to a dead animal in 112the second floor area because the roof was damaged and that area of the house was exposed. He never saw anyone, other than Chad and defendant, going into the house.

The defense presented testimony from Dr. Charles Cefalu, an expert in the fields of geriatrics, elder abuse, and osteoporosis, who reviewed the reports of Drs. Ross and Manhein, defendant’s statements, and the victim’s Methodist Hospital medical records. Dr. Cefalu stated that Mr. Adams was an 80-year-old man who was relatively immobile, diabetic, suffering with chronic lung disease, increased risk of osteoporosis, and Alzheimer’s disease. In his opinion, if the victim had rolled off of his bed and hit the edge of a wooden box, i.e. the footlocker, he could have suffered the injuries present at the time of death. Dr. Cefalu opined that the victim’s injuries were probably caused in this way.

Dr. Cefalu testified that Mr. Adams’ injuries were consistent with a one-impact injury because the injury was linear. He did not think defendant stumbling and falling onto his father was the cause of death. Based on Mr. Adams’ neck injuries, Dr. Cefalu thought there was a pretty significant chance that Mr. Adams had suffered an acute airway obstruction, which could lead to death within minutes if not resolved. He testified that it would take minimal trauma in an individual with severe osteoporosis, like Mr. Adams, to cause the injuries seen in the skeletal remains.

On cross-examination, Dr. Cefalu admitted that his opinion that Mr. Adams suffered with Alzheimer’s disease was based on testimony that Mr. Adams failed to recognize his daughter on Christmas Day of 2005. Dr. Cefalu also stated that his opinion that Mr. Adams experienced chronic lung disease and osteoporosis was based on risk factors, not medical records. He did not remember seeing the question marks after the word “diabetes” in the victim’s medical records.

| isThe defense also presented testimony from Dr. Jaime Garza, an expert in the fields of head and neck trauma, airway management, and reconstructive surgery, whose opinion was developed from reviewing the reports of Drs. Ross and Manhein. Dr. Garza testified that falling out of bed and landing on the corner of the footlocker could have caused the injury to Mr. Adams’ hyoid bone and cartilage, and if that occurred, it was very likely Mr. Adams’ airway would have been compromised. He said the victim would have thrashed for about 90 seconds trying to get oxygen then suffered brain death after about eight minutes. Dr. Garza disagreed with the police and the medical experts who said there was no other reasonable scenario to explain Mr. Adams’ injuries other than homicide.

Dr. Garza said the gasp that the defendant heard after he fell on his father made sense because often a person on the verge of dying releases such a sound. He did not think calling 911 would have saved Mr. Adams’ life, because it would have been too late. He expected that an 80-year-old man with Alzheimer’s and who smoked, as Mr. Adams did, to have osteoporosis.

Defendant testified, on his own behalf, that his father’s health deteriorated rapidly after Hurricane Katrina. In fact, defendant retired in November of 2005 to eliminate “job stress” and to care for his father. Defendant maintained that his father fell down the stairs twice, but was not injured and did not want to go to the doctor. Defendant stated that his father fell in his bedroom two or three times a week.

Generally, he would find his father on the floor on the side of the bed, either the left or the right side. Defendant knew his father had fallen before on the footlocker when he fell out of bed. He last saw his father alive in the spring of 2006. Defendant was asleep on the sofa downstairs when he heard a loud noise he had heard several times before, and he assumed his father had fallen out of the bed. 114Pefendant went upstairs and found his father on the floor on the side of the bed. He lifted his father to put him on the bed.

Defendant guessed he hit the side of the bed which caused him to drop his father on the bed and then fall across his father with his forearms. He heard a gasp or small cry and could tell his father was in pain. Defendant testified that it then became apparent to him that his father was not breathing, and he realized his father had passed away. He thought he might have accidentally hurt his father and caused his death. He did not call 911 because he could not admit it to himself or anyone else that he might have accidentally killed his father.

After hearing the testimony and evidence, the twelve-person jury found defendant guilty of the responsive verdict of manslaughter. On appeal, defendant raises six assignments of error:

• first, the court erred in denying the March 27, 2009 Motion to Suppress filed by defendant herein in that the statements sought to be suppressed therein were obtained in violation of the Fourth Amendment of the United States Constitution;
• second, the court erred in allowing the statements of defendant obtained in violation of the Fourth Amendment to be entered into evidence at the trial of this matter, which allowance prejudiced defendant at the trial of this matter;
• third, the jury erred in finding that the State proved every element of the crime of manslaughter beyond a reasonable doubt in that, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found the essential elements of the offense of manslaughter proved beyond a reasonable doubt;
• fourth, the court erred in denying defendant’s Motion for New Trial;
• fifth, the court erred in denying defendant’s Motion for Post Verdict Judgment of Acquittal; and
• sixth, the court erred in sentencing defendant Lon Adams to twenty (20) years imprisonment.

| ]rJuaw and Argument

In his third assignment of error, the defendant argues that the jury erred in finding that the State proved every element of the crime of manslaughter beyond a reasonable doubt in that, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found the essential elements of the offense of manslaughter proved beyond a reasonable doubt. He contends that Dr. Karen Ross, the State’s main witness, testified that the injuries were most likely intentionally inflicted by blunt force trauma, a standard he asserts was insufficient to meet the State’s burden of proof. Defendant further contends that the only evidence of guilt were his statements, which were obtained in violation of the Fourth Amendment and should have been suppressed.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory | ^explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

In the instant case, defendant was charged with second degree murder, but convicted of the lesser included offense of manslaughter. Under La. R.S. 14:31(A)(2)(a), manslaughter is a homicide committed, without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in the definitions of first and second degree murder, or of any intentional misdemeanor directly affecting the person. In this case, the jury was instructed that, in order to find defendant guilty under this theory, it had to find that defendant killed the victim and defendant was engaged in the perpetration or attempted perpetration of cruelty to the infirmed or simple battery.

Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged personf.] La. R.S. 14:93.3(A). The term “intentional” as used in this statute refers to a general criminal intent to mistreat or neglect and does not require an intent to cause unjustifiable pain and suffering. State v. Scott, 582 So.2d 864, 867 (La.App. 5 Cir.1991), writ denied, 584 So.2d 1171 (La.1991).

“Unjustifiable,” within the meaning of La. R.S. 14:93.3, is a term of limitation intended to distinguish that pain and suffering, which is an inevitable consequence of care and treatment from that which is not justified by medical needs. State v. Brenner, 486 So.2d 101, 104 (La.1986). “Mistreatment” is in common us age and is equated with “abuse.” State v. Comeaux, 319 So.2d 897, 899 (La.1975).

“Caregiver” is defined as any person ... who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes, but is not limited to, adult children. La. R.S. 14:93.3(B). For the purposes of this Section, an aged person is any individual sixty years of age or older. La. R.S. 14:93.3(C).

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741, 751 (La.1982).

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

11sIn the instant case, we find that there was ample evidence presented to support defendant’s manslaughter conviction. The testimony established that, in 2005, Mr. Adams was 79 years old and, therefore, an “aged person” pursuant to La. R.S. 14:93.3(C). The testimony also established that defendant qualified as a “caregiver,” as defined in La. R.S. 14:93.3(B).

Here, defendant stated that he “swung” his father onto the bed, stumbled, and fell on top of his father. Defendant stated that, when he fell, he landed with his forearm pressing on top of his father’s neck. Defendant knew that his father was injured because his father let out a heavy sigh. Defendant did not seek medical treatment for his father.

Although at trial defendant claimed that calling “911” was useless at that point because his father was dead, he told detectives immediately after his father’s remains were discovered that his father was alive the last time defendant left his room. Dr. Ross testified that Mr. Adams’ death would have been painful and not instantaneous but that he might have survived if he had been brought to a hospital after he was injured.

Moreover, even if his father was only slightly injured in that accident, defendant knew that his father was not mobile but did not check on him for over two years. Further, defendant admitted that he thought that his father died of starvation because he did not provide his father with either food or water for more than two years.

In light of the foregoing, we find that the State presented sufficient evidence for a reasonable trier of fact to find that Lon Adams committed manslaughter under La. R.S. 14:31(A)(2)(a), in that Lon killed his father without any intent to kill or to inflict great bodily harm while Lon was engaged in the perpetration or attempted perpetration of cruelty to the infirmed. Cf. State v. Booker, 42,596 (La.App. 2 Cir. 10/31/07), 968 So.2d 1190, writ denied, 07-2295 (La.4/25/08), 978 So.2d 364, (evidence was sufficient to support defendant’s conviction for cruelty to the infirm, where defendant grossly neglected even the most basic duty of care, which caused needless suffering to the victim and placed her in great danger, and abandoned victim in deplorable conditions.) We find that this argument lacks merit.

Returning to defendant’s first two assignments of error, he argues that the court erred in denying his motion to suppress statements obtained in violation of the Fourth Amendment of the United States Constitution and in allowing those statements to be introduced into evidence at trial. Specifically, defendant argues that he was arrested without probable cause when the officers handcuffed him after the skeletal remains were found on June 3, 2008. He contends that, since the officers had no probable cause to arrest him that day, his arrest was illegal, and his statement obtained as a direct result of that arrest should have been suppressed. He further asserts that the JPSO did not have probable cause to arrest him on June 12, 2008 and, as such, his inculpatory statements were inadmissible.

At the outset, we note that this issue is not properly before this Court. We have carefully reviewed defendant’s motion to suppress inculpatory statements. Although defendant alleged that “his arrest was not supported by probable cause and, therefore, his statements must be suppressed as the fruits of an illegal arrest,” defendant did not provide any facts or evidence to support that argument. Furthermore, at the suppression hearing, defense counsel did not argue that defendant’s statements were inadmissible because they were obtained after an illegal arrest. The Fourth Amendment issue was not argued in the trial court and, | aithus, not ruled on by the trial judge. We find that this issue is not properly before this Court on appeal and, thus, we are precluded from addressing it. U.R.C.A. 1-3.

In the next two assignments of error, defendant argues that the trial judge erred by denying his post-trial motions for new trial and post-verdict judgment of acquittal. After trial, defendant moved for a new trial on the basis that the verdict is contrary to the law and evidence presented. At the hearing on the motions, defense counsel argued that a new trial should be granted because the verdict was based on inadmissible evidence, including statements that defendant made to the officers after an illegal arrest, which prejudiced the defendant.

La.C.Cr.P. art. 851(1) provides that, on motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. However, the denial of a motion for new trial based on the verdict being contrary to the law and evidence fails to present an issue reviewable on appeal. State v. Condley, 04-1349, p. 11 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied; 05-1760 (La.2/10/06), 924 So.2d 163. Hence, there is no issue for review by this Court.

After trial, defendant also moved for post-verdict judgment of acquittal on the basis that the State failed to meet its burden of proof of homicide. The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La.C.Cr.P. art. 821; State v. Hampton, 98-331, p. 12 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999). Here, we have reviewed the sufficiency of the evidence in an earlier assignment of error and found that the State presented sufficient evidence to support the jury’s verdict. As such, we find no error in the trial court’s denial of defendant’s motion for post-verdict judgment of acquittal.

12i In his final assignment of error, the defendant argues that the court erred in sentencing him to twenty (20) years imprisonment. Defendant argues that his 20-year sentence is constitutionally excessive. He contends that the trial judge erred by basing the sentence on the fact that he heard nothing about mitigation or the reasons why defendant treated his father so badly. Defendant asserts that he had nothing to mitigate because he did not kill his father.

At sentencing, the trial judge spoke at length about the case. The trial judge, who had been a seasoned prosecutor, stated that this case was the most difficult of his career and weighed heavily on his mind.

The trial judge stated that he wanted to hear some mitigation, some explanation as to what would cause defendant to treat his father like that. He remarked that dealing with Alzheimer’s patients was not an easy job but could not think of an excuse for defendant’s treatment and neglect of his father nor imagine what defendant’s father in his confused state must have experienced.

The trial judge stated that he did not believe the testimony of the defense’s expert witnesses, who testified that Mr. Adams rolled out of bed, hit a footlocker, and fractured 29 ribs, crushed the hyoid bone, and fractured a toe. He said he was convinced by the testimony of the State’s experts, Dr. Ross and Dr. Manhein.

The trial judge stated he had read all the letters submitted by the State and the defense and the pre-sentence investigation. The trial judge commented:

I can’t imagine somebody would allow his own father to lie in a bed to decompose without the human decency to at least make some sort of attempt to save his life or do something.

| ¡.¡.The trial judge then said he had taken into consideration La. C.Cr.P. art. 894.1. The trial judge noted that defendant maintained his position that he did not commit a crime. The trial judge sentenced defendant to serve 20 years at hard labor.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In re viewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id., 07-332 at 15-16, 975 So.2d at 656.

In the instant case, defendant was convicted of manslaughter. Whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years. La. R.S. 14:31(B). Defendant received a 20-year sentence.

In State v. Anseman, 607 So.2d 665 (La.App. 5 Cir.1992), writs denied, 613 So.2d 989 (La.1993) and 613 So.2d 990 (La.1993), a mother and father were convicted of manslaughter based on the predicate felony of cruelty to juveniles stemming from the death of their 13-month-old daughter, who died from wasting and nutritional deprivation. The defendants’ flea-infested apartment had dog hair throughout, feces smeared on the walls, smelled of urine, and had trash and dirty dishes accumulated in the kitchen. They were each sentenced to 21 years at hard labor, the maximum sentence at that time.

This Court found that the sentences were not constitutionally excessive, noting the 13-month-old helpless child died at the hands of her own parents; the defendants had every opportunity to prevent this senseless death; and friends and government agencies offered needed assistance to the defendants who chose to ignore those offers of assistance, despite the ever worsening physical condition of their daughter prior to her death. This Court further found that the action and inaction of the defendants, as parents of this young victim, were inexcusable, and that the offense was particularly cruel and heinous and, therefore, warranted imposition of the maximum sentence. Id., 607 So.2d at 675.

In the instant ease, defendant knew that his father was injured, yet he did not call 911 or seek medical treatment for him. He left his father to die alone in his room. Defendant never went back into his father’s room again to check on him or bring him food or water; instead defendant lived in the house while his father’s body was decomposing.

Dr. Ross testified that Mr. Adams’ death would not have been instantaneous based on what she had seen, and Mr. Adams’ death would have been painful. SheJ^also testified that if Mr. Adams had been brought to the hospital, it is possible he would have survived.

Furthermore, defendant lied in an effort to hide his father’s death and body from his family, governmental agencies, and then the police. Considering the nature of the crime, the nature and the background of the offender, and the sentences imposed for similar crimes, we do not find that the 20-year sentence was constitutionally excessive. This assignment lacks merit.

Finally, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920. We note that the trial judge failed to adequately advise defendant of the two-year prescriptive period for seeking post-conviction relief as mandated by La.C.Cr.P. art. 930.8. Therefore, we advise defendant, by this opinion, that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 and 922. State v. Smith, 08-579, p. 10 (La.App. 5 Cir. 2/25/09), 9 So.3d 238, 244. In all other respects, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . After the storm, Mr. Adams mail, including his bank statements was forwarded to Mrs. Landreneau.

      . Detective Roger Gorumba testified that there were holes in the roof, including one in Mr. Adams' bedroom and one in Chad's bedroom. Detective Locascio testified that the ceiling had collapsed upstairs. Further, a neighbor also testified that there were a number of holes in the roof after Hurricane Katrina.

      . The hyoid bone, also known as the "lingual bone,” is a horseshoe-shaped bone situated in the anterior midline of the neck between the chin and the thyroid cartilage. At rest, it lies at the level of the base of the mandible in the front and the third cervical vertebra behind.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.

      . At the suppression hearing, defense counsel argued that defendant’s statement of June 12 was not voluntary because he was questioned immediately after being confined for nine days to the psychiatric ward at West Jefferson Medical Center.

      . It is noted that Dr. Ross testified that it was unlikely that the injuries occurred from one event, and that it was not possible for all 29 rib fractures to have occurred at the same time because only 24 were recent or perimor-tem. Dr. Manhein testified that the injuries could have occurred from one or more events.

      . The pre-sentence investigation concluded that due to the nature of the crime coupled with defendant’s intentional and deceptive actions of disregard for life, defendant should be sentenced to the maximum term of incarceration in the Department of Corrections.

      . Anseman states, in dicta, that the duty to see that children are properly cared for includes seeking appropriate medical care when a child appears in need of same. State v. Anseman, 607 So.2d at 671.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Tracy L. COMMON.
    No. 10-KA-996.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis-Appellate Counsel, Michael Smith-Trial Counsel, Andrew Doss-Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, the State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant, Tracy L. Common.
    Panel composed of SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS, Judges.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his conviction, multiple offender adjudication, and enhanced sentence. For the following reasons, we affirm defendant’s underlying conviction, vacate his multiple offender adjudication and enhanced sentence, vacate defendant’s underlying sentence and remand for resentencing.

Procedural History

On January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging Tracy L. Common with one count of possession of MDMA with intent to distribute, in violation of La. R.S. 40:966(A), and one count of possession of hydrocodone, in violation of La. R.S.40:967(C). Thereafter, defendant filed, inter alia, a motion to suppress evidence and a motion to quash the bill of information, which were both denied. The defendant sought supervisory review, which this Court denied after finding no error in the trial court’s rulings. See, State v. Common, 08-K-567 (La.App. 5 Cir. 7/25/08) (unpublished writ disposition).

IsTrial in this matter commenced on May 25, 2010. After a three-day trial, the twelve-person jury found defendant, on count one, guilty of the responsive verdict of possession of MDMA, and, on count two, not guilty of possession of hydrocodone. Following his conviction, the defendant filed motions for post-verdict judgment of acquittal and new trial.

On June 4, 2010, the trial court sentenced the defendant to seven years at hard labor on count one for possession of MDMA. The trial court then denied the defendant’s motions for post-verdict judgment of acquittal and new trial.

That same day, the State filed a bill of information alleging that defendant, in addition to his underlying conviction for possession of MDMA, had three prior felony convictions, and should be adjudicated and sentenced as a fourth felony offender. After some discussion, the defendant stipulated that he was a third felony offender. The trial court vacated the underlying sentence and imposed an enhanced sentence of ten years imprisonment at hard labor, without benefit of probation or suspension of sentence. This appeal follows.

Facts

Detective Brian Rico of the Gretna Police Department testified that, at 9:00 p.m. on December 31, 2006, he was off-duty and running errands in Westwego. Detective Rico, who was on 24-hour emergency call for his department, was driving an unmarked police vehicle equipped with police lights and siren.

As Detective Rico travelled on the West-bank Expressway, he observed a Chevy S-10 pickup truck traveling near him. Detective Rico testified that he noticed that the S-10 “swerv[ed] a little bit” for “quite a few blocks.” The S-10 then veered from the center lane into the left lane, towards a vehicle “causing that vehicle to go off the roadway slightly.” Eventually, the swerving truck went “all |4the way into the left lane” so Detective Rico moved into the middle lane of the highway. Detective Rico testified that, as he attempted to pass the S-10, it veered “straight towards my vehicle almost crashing into it ... I ended up swerving over to the right side, to the right lane of traffic.” The S-10 continued to “swerve directly in front of me positioning itself directly in front of my vehicle.”

Detective Rico immediately contacted Westwego police for assistance because he believed that something was wrong with the driver. He testified that he could not see into the vehicle to monitor the driver because the vehicle’s windows were heavily tinted. He decided to stop the S-10 “to protect the public so that the [driver] wouldn’t crash into somebody and possibly hurt or kill somebody.”

When Detective Rico, who has worked in Narcotics for most of his law enforcement career, decided to initiate the traffic stop, he pulled on his bulletproof vest marked “Police” in large lettering on the front and the back. Further, although Detective Rico was in civilian clothes, he was wearing his police badge around his neck and his service firearm.

Detective Rico testified that the heavy tint prevented him from assessing the number of occupants in the vehicle so he immediately “approached the vehicle instead of waiting for Westwego [police] to finally get there.” As Detective Rico approached the vehicle, he was able to see that the driver was the only occupant of the vehicle.

When Detective Rico knocked on the driver’s side door, the driver immediately stepped out of the vehicle, which is unusual for a traffic stop. Because Detective Rico “didn’t know why all of a sudden [the driver] hopped out of the vehicle in that manner,” Detective Rico escorted the driver to the side of the truck to conduct a pat-down for officer safety. During this pat-down, as Officer Rico patted the driver’s right front pocket, the driver raised his right arm and |sbecame “very aggressive to where he turned in a right turning motion towards me.” Detective Rico immediately restrained then handcuffed the driver for officer safety.

Detective Rico then finished patting down the driver. During this pat-down, Detective Rico recovered a clear bag containing approximately 50 pills and United States currency totaling more than $1,100.00 from the defendant’s right front pants pocket. Detective Rico also recovered a single oval green pill from the defendant’s left front pants pocket.

Officer Brett Taylor of the Westwego Police Department testified that on the evening of December 31, 2006, he received a call from dispatch that an off-duty Gret-na police officer needed assistance on a traffic stop in Westwego. When he arrived at the scene, Officer Taylor saw Detective Rico’s vehicle parked behind a truck with its lights on. Officer Taylor testified that Detective Rico told him that he spotted the erratic driver “swerving in and out of lanes.” Detective Rico transferred the evidence that he had seized from the defendant to Officer Taylor then departed the scene.

Officer Taylor advised the driver of his constitutional rights as required under Miranda v. Arizona and informed the driver that he was under arrest. After he placed the defendant under arrest, Officer Taylor observed a metal cylinder on defendant’s keychain, which, he testified, is commonly used to store knives, blades or other sharp instruments that can be used as weapons. When Officer Taylor opened the cylinder, he discovered three partial pieces of “circular shaped pills which tested positive for ecstasy.” Officer Taylor also noticed an odor of burnt marijuana emanating from the defendant’s vehicle. When Officer Taylor investigated, he recovered a bag containing green vegetable matter that field-tested | B'positive for marijuana and $2,000.00 in United States currency from the interior of the defendant’s vehicle. After hearing the testimony, evidence, and law, the twelve-person jury found defendant guilty of the responsive verdict of possession of MDMA and not guilty of possession of hydrocodone.

On appeal, defendant challenges his underlying conviction and multiple offender adjudication. Defendant presents two assignments of error: first, the trial court erred in failing to suppress the evidence, and second, the guilty plea to the habitual offender bill is invalid.

Law and argument

In his first assignment of error, the defendant contends that the trial court erred in denying his motion to suppress. More specifically, the defendant contends that the evidence in this case should have been suppressed because the evidence was seized after an illegal stop, detention, and arrest by an “off-duty, out-of-jurisdiction police officer.”

The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Notably, a search or seizure by a private citizen, acting in his capacity as a private citizen, is not prohibited by the Fourth Amendment because the amendment only protects individuals against actions by government agents. See, United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); State v. Gentry, 450 So.2d 773, 776 (La.App. 5 Cir.1984), remanded, 462 So.2d 624, 628 (La.1985).

La.C.Cr.P. art. 214 allows the arrest of a person by a private person when the person arrested has committed a felony, whether in or out of the presence of the |7person making the arrest. See also State v. Jackson, 584 So.2d 266, 268 (La.App. 1st Cir.), writ denied, 585 So.2d 577 (La.1991). La. R.S. 14:96 defines aggravated obstruction of a highway of com merce as “the intentional or criminally negligent ... performance of any act, on any ... road, highway, thoroughfare, ... wherein it is foreseeable that human life might be endangered.” Further, a violation of La. R.S. 14:96 is a felony offense, punishable by imprisonment with or without hard labor for up to fifteen years. See, La. R.S. 14:2(A)(4) (felony is any crime punishable by death or imprisonment at hard labor.)

Driving “erratically” on an interstate highway constitutes a violation of La. R.S. 14:96. State v. Lavergne, 08-0044 (La.App. 1 Cir. 5/2/08), 991 So.2d 86, writ denied, 08-1459 (La.2/20/09), 1 So.3d 494. Further, La. R.S. 14:96 prohibits the “performance of any act” on a highway endangering human life. State v. Cox, 08-0492 (La.1/21/09), 5 So.3d 869, 873.

In State v. Lavergne, a volunteer firefighter from Texas observed the defendant driving erratically on Interstate 10 near Baton Rouge. Id. at 88. The firefighter’s passenger called local law enforcement while the firefighter engaged the sirens and strobe lights equipped on his personal vehicle and conducted a stop. Id. Soon afterwards, state troopers arrived and arrested the defendant for the misdemeanor offense of driving while intoxicated. The firefighter provided a written statement regarding his observations and left the scene. Id.

Our brethren on the First Circuit held that the defendant’s erratic driving was sufficient to justify a stop for the felony offense of aggravated obstruction of a highway of commerce, a violation of La. R.S. 14:96, which authorized a private citizen to make the arrest. Id. at 90-91. The Lavergne court also rejected the defendant’s argument that the firefighter was acting under color of state law when he stopped his vehicle. The court reasoned:

| s[The firefighter’s] explanation of the motivation for his actions (concern for public safety), and the fact that he never spoke with or was directed by law enforcement supports the trial court’s conclusion that he acted as a private citizen and not as a government agent when he stopped the defendant’s vehicle. The first governmental action occurred when [the state trooper] arrived, questioned the defendant in connection with the citizen’s report, and performed the field sobriety tests. Absent any governmental action in connection with the initial stop, the Fourth Amendment does not apply.

Id. at 89-90

In this case, as in Lavergne, Detective Rico observed the defendant driving erratically when his vehicle swerved across three lanes of traffic on the Westbank Expressway and nearly collided with Detective Rico’s vehicle. Detective Rico, who was off-duty and running errands, specifically stated that he observed the erratic driving for several blocks before deciding that defendant’s conduct was dangerous to public safety. Here, as in Lavergne, we see no error in the finding that a private citizen who witnessed aggravated obstruction of a highway is authorized to arrest a defendant pursuant to La.C.Cr.P. art. 214.

Once the arrest was affected, there are two exceptions to the warrant requirement that arise. First, evidence seized pursuant to a search by a private citizen, acting in his capacity as a private citizen, is not excluded under the Fourth Amendment because the amendment only protects individuals against governmental intrusion. United States v. Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652. Thus, the pills confiscated by the private citizen would not be excluded under the Fourth Amendment.

Second, a search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition against warrantless searches. See also State v. Bergman, 04-435 (La.App. 5 Cir. 10/12/04), 887 So.2d 127, 130-31. The police may conduct a warrantless search of a person they have legally arrested in order to discover and seize evidence of the crime. State v. Doussan, 05-586 (La.App. 5 Cir.2/14/06), 924 So.2d 333, 342, writ denied, 06-608 (La.10/13/06), 939 So.2d 372. The police can search the arrestee’s person and the area within his immediate control in order to remove any weapons from his person and to prevent evidence from being destroyed. State v. Bergman, 887 So.2d at 129-30. Even though a person is not in physical possession of a drug, he may have constructive possession when the drugs are under that person’s dominion or control. State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/01), 812 So.2d 7, 9, writ denied, 02-0712 (La.9/13/02), 824 So.2d 1188. Thus, once Officer Taylor arrived to take the defendant into custody, he was allowed to conduct a search of defendant’s person to prevent evidence of a crime from being destroyed and to remove weapons from the area within his immediate control.

Trial courts are vested with great discretion in ruling on a motion to suppress, and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). Based on the foregoing, we see no abuse of the trial court’s great discretion in its denial of defendant’s motion to suppress evidence. This assignment of error lacks merit.

|inIn his second assignment of error, defendant argues that his multiple offender adjudication is invalid. The defendant contends that the trial court did not adequately explain the nature of a multiple offender bill of information, and that he was not advised of his right to remain silent at any hearing that was held. We agree.

Louisiana jurisprudence has consistently held that, in a multiple offender proceeding, a trial court must advise a defendant of his right to a hearing at which the State is required to prove the allegations of the multiple offender bill of information, and of his right to remain silent. La. R.S. 15:529.1(D)(3); State v. Perrilloux, (La. App. 5 Cir. 11/14/01), 802 So.2d 772, 777-778; State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1094. If the record reflects that the defendant was advised of his rights by the trial court and/or his attorney, then the defendant intelligently waived his rights. State v. Francis, 98-811 (La.App. 5 Cir. 1/26/99), 727 So.2d 1235, 1239, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.

In general, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the State at a hearing, rather than by admission of the defendant. State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. Id.

In At the multiple offender hearing in question, defense counsel stated that the defendant would stipulate that he was a third felony offender. Although the trial court informed the defendant of his right to a hearing, the trial judge did not inform defendant of his right to remain silent. Further, we cannot say that defendant was advised of his right to remain silent as the record is devoid of a properly-executed waiver of constitutional rights with respect to defendant’s stipulation to the allegations of the multiple offender adjudication.

Because there was no competent evidence introduced at the hearing that the defendant was the same person that was convicted of two previous felonies, defendant’s stipulation without prior advisement of his rights constitutes reversible error. Therefore, we vacate defendant’s multiple offender adjudication and enhanced sentence and reinstate defendant’s underlying sentence.

Finally, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following ei*rors, which require correction.

With respect to defendant’s underlying sentence, the trial court failed to rule on the defendant’s motions for post-verdict judgment of acquittal and new trial before sentencing the defendant on the underlying conviction and failed to observe the mandatory twenty-four hour delay between ruling on the motion for new trial and sentencing.

La.C.Cr.P. art. 821 requires that a motion for post-verdict judgment of acquittal be filed and disposed of before sentencing. La.C.Cr.P. art. 853 requires that a motion for new trial be filed and disposed of before sentencing. La.C.Cr.P. art. 873 requires a twenty-four hour delay in sentencing after denial of a motion for |12new trial or in arrest of judgment, unless the defendant waives the delay. In this case, the defendant did not waive the delay.

Because we have vacated the enhanced sentence and reinstated the underlying sentence, these errors could affect a substantial right of the accused. La.C.Cr.P. art. 921. Accordingly, we vacate defendant’s underlying sentence and remand for resentencing. See, State v. Randolph, 409 So.2d 554 (La.1981); State v. Brooks, 00-106 (La.App. 5 Cir. 9/26/00), 769 So.2d 1242, 1246; State v. Wilson, 96-251 (La.App. 5 Cir. 10/1/96), 683 So.2d 775, 777.

In conclusion, based on the foregoing, we vacate defendant’s multiple offender adjudication and sentencing, and vacate defendant’s underlying sentence and remand for resentencing. In all other respects, defendant’s conviction is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED; MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED

      . See error patent discussion, infra.

      . Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      . Although defendant raises several other issues in' this assignment of error, defense counsel raised only one argument for suppression in the lower court, specifically, the detaining party's lack of authority for effecting a traffic stop. Our jurisdiction is limited to issues that are submitted to the trial court. U.R.C.A. 1-3.

      . In State v. Bergman, the defendant was stopped after his truck was observed striking the guardrail five times. State v. Bergman, 887 So.2d at 128. The deputy conducted a patdown search of defendant, advised him of his Miranda rights, and placed him under arrest for careless operation of a motor vehicle. Id. at 129. The violation, a misdemean- or offense, was committed in the presence of the police officer subjecting the defendant to arrest without a warrant. Id. at 130. Then, the defendant advised the deputy that he had a handgun in his vehicle. The deputy went to the truck to retrieve the handgun. He first looked under the driver’s seat and found a pill bottle containing Xanax tablets. The gun was subsequently located between the console and the driver’s seat. Id. at 129. On appeal, the defendant argued the search of his automobile's interior exceeded the permissible scope of a search incident to an arrest because the vehicle was not within his immediate control once he was detained out of reach of the vehicle. This Court found that even though the defendant remained outside the vehicle by the curb, he was in close proximity to the vehicle and gun. Therefore, the deputy was justified in searching the vehicle and opening the containers incident to the defendant's lawful arrest. Id. at 131.

      . La. R.S. 15:529.1(D)(3) reads in pertinent part that, "When the judge finds that [defendant] has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section,_"


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Tommy L. MOUTON.
    No. 11-KA-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for PlaintifftAppel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON, Judges.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Tommy L. Mouton (“Mouton”), was charged with failing to maintain his registration as a convicted sex offender in violation of La. R.S. 15:542. Mouton pled not guilty to this charge at his arraignment and, subsequently, a competency hearing was conducted at which time Mouton was found competent to stand trial. He proceeded to trial, following which trial a twelve-person jury found him guilty of failing to maintain his registration as a convicted sex offender. Mouton was sentenced to five years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. This appeal ensued.

Sergeant Joel O’Lear of the Jefferson Parish Sheriffs Office testified that he works in the Forensic Identification Section of the Crime Laboratory, and he was accepted as an expert during trial for the taking and identifications of latent prints. Sergeant O’Lear identified Mouton in court and testified that he accompanied another latent print examiner to take Mouton’s prints, identifying State’s Exhibit 2 as a fingerprint card with those fingerprints. State’s Exhibit 3 was also admitted as ^evidence at trial. The State presented this exhibit as certified convictions in Mouton’s name for sexual battery, oral sexual battery, and indecent behavior with a juvenile. Defense counsel found no basis for an objection. Sergeant O’Lear testified that State’s Exhibit 3 included convictions for which Mouton was required to register as a sex offender. Sergeant O’Lear compared the fingerprints on this documentation to the fingerprints in State’s Exhibit 2 and determined that Mouton created the fingerprints. He testified that he had no doubt that Mouton was the individual whose fingerprints were included with the certified convictions. Sergeant O’Lear testified that State’s Exhibit 4 included Mouton’s fingerprints from the date of his initial registration and that these fingerprints were compared to Mouton’s fingerprints that were taken in court. Sergeant O’Lear had no doubt that these fingerprints were created by Mouton.

Lieutenant Luis Munguia, Commander of the Fingerprint Identification Division of the Jefferson Parish Sheriffs Office, testified that he had the duty of maintaining accurate records of sex offender registration. He testified that he had a record of Mouton who had come to his office to register on September 16, 2008. Lieutenant Munguia explained that Mouton had been registered in Orleans Parish, but he moved to Jefferson Parish and had three days to register in Jefferson Parish. State’s Exhibit 5 was identified as a copy of the form Mouton filled out when he appeared in Lieutenant Munguia’s office. This form explained Mouton’s registration requirements and advised him of the next day that he was required to come to the office, and also the annual date he was required to appear. State’s Exhibit 5 reflected that Mouton had to register for twenty-five years. Lieutenant Munguia testified that Mouton had to come in every six months. According to State’s Exhibit 5, Mouton was required to return for registration on March 16, 2009. However, Lieutenant Munguia testified that Mouton did not appear in hperson to update his registration on that date. Further, Lieutenant Munguia testified that they checked the database used by the State and confirmed Mouton had not registered anywhere other than Jefferson Parish. Lieutenant Munguia further testified that Mouton had to register for an offense of oral sexual battery, but he also was required to register as a sex offender for the other offenses presented in State’s Exhibit 3.

Mouton testified at trial that he had resided at 237 8th Street in Bridge City since July 2008. He admitted that he had been convicted of sexual crimes and registered on September 16, 2008 as a sex offender in Jefferson Parish. He claimed that, during his move, he misplaced the document with the dates to return for his registration, and he did not recall any of the dates. Mouton claimed that someone from the Jefferson Parish Sheriffs Office came to his residence to verify where he was living in January 2009, and he had to sign some papers. He testified that he was arrested in this case while residing at the address to which he was registered. Mouton admitted that he initialed State’s Exhibit 5 after it was read to him and that he signed the form. He further admitted that, after he lost his paper, he made no efforts to contact the agency or get another copy of the paper. He said he was told that he would be notified because of his history of memory problems and forgetfulness because of his medications. Mouton also admitted that, in 1997, he was convicted of pornography involving juveniles while he was in prison. When asked about registration for that conviction, Mouton said he was told he would have to report to law enforcement, and they would help him get all of it done. Mouton agreed that the law required him to appear in person to the Sheriffs Office and admitted that, on March 16, 2009, he did not do so. He admitted that he only went there when he initially registered in 2008.

| r>On appeal, Mouton argues that the trial court imposed an excessive sentence. He contends that his five-year sentence was imposed without taking into consideration mitigating circumstances in the case, including that he was a Vietnam veteran who suffered from anxiety and depression and had a poor memory either due to his medicine, his wartime service, or from a mental illness. He argues such factors should have mitigated his sentence toward the lower end of the sentencing range. Mouton contends he was not reminded of his six-month check-in date as promised and was found in the same home he provided he would be living. He concludes that, although his five-year sentence was within the sentencing range, it was excessive in light of these facts.

In the present case, the trial judge stated that he had considered the sentencing guidelines under La.C.Cr.P. art. 894.1. He then sentenced Mouton to five years at hard labor without benefit of parole, probation, or suspension of sentence. Defense counsel orally objected to the sentence imposed. However, Mouton did not file a motion to reconsider sentence in the trial court below, nor did he make specific objections at the time of sentencing as required by La.C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. Mouton did not challenge the sentence in the trial court on the basis that the judge failed to comply with La.C.Cr.P. art. 894.1. Nevertheless, he is entitled to a review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory [¿range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. See also, La.C.Cr.P. art. 881.4(D). An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.

In considering whether the sentencing court abused its discretion, the reviewing court should consider 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate.

La. R.S. 15:542.1.4(A)(1) provides (in part) that a person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence. Mouton’s sentence is less than mi-drange. Rather, Mouton received an 17illegally lenient sentence in that the mandatory fine was not imposed. In the present case, we do not find that the sentence imposed is constitutionally excessive. The record reflects Mouton had been convicted of several sex offenses and showed a recidivist history of sex offenses. We find no abuse of discretion in the five-year sentence. This assignment of error is without merit.

Our error patent review reveals, as indicated above, that Mouton received an illegally lenient sentence by the trial court’s failure to impose the fine mandated by La. R.S. 15:542.1.4. The appellate court may correct an illegal sentence at any time regardless of whether either party raises the issue. This authority is permissive rather than mandatory. This Court has used that authority to notice the failure of the trial court to impose a mandatory fine and to remand the matter to the trial court for imposition of a mandatory fine. However, often in indigent defender matters, this Court has decided not to use this authority.

In the present case, Mouton is represented on appeal by the Louisiana Appellate Project. Under the circumstances, we refuse to disturb Mouton’s sentence.

We find no other errors patent requiring correction by this Court. Therefore, Mouton’s conviction and sentence are affirmed.

AFFIRMED

      . State v. Ragas, 07-3, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, writ denied, 07-1440 (La. 1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

      . State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104.

      . Id.

      . State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646.

      . State v. Morgan, 10-416 (La.App. 5 Cir. 3/29/11) 63 So.3d 261.

      . Id.

      . See, La.C.Cr.P. art. 882; State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842 (citing State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790).

        . See, State v. McKenzie, 09-893 (La.App. 5 Cir. 2/15/11), 61 So.3d 54; State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370; State v. McGee, 09-102, p. 12 (La.App. 5 Cir. 9/29/09), 24 So.3d 235.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Brett J. BALLEW.
    No. 11-KA-401.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

UThe defendant, Brett J. Ballew, was charged with possession of heroin in violation of LSA-R.S. 40:966 C. On January 13, 2011, defendant’s case was tried before a 12-person jury which found defendant guilty of attempted possession of heroin. On February 4, 2011, defendant’s motion for new trial was denied and he was sentenced to imprisonment at hard labor for two years; the sentence was suspended and defendant was placed on active probation for two years. Also on that date, defendant filed a timely motion for appeal which was granted. For the following reasons, defendant’s conviction is affirmed, and this matter is remanded to the trial court for the limited purpose of correcting the commitment.

FACTS

At trial, Louisiana State Trooper Gus-tave Bethea testified that on June 20, 2010, at approximately 12:50 a.m., he was on patrol on U.S. Highway 90 in Gretna, LA, when he observed a vehicle next to him in which the driver and the front seat passenger were not wearing their seat belts. Trooper Bethea then | ^maneuvered behind the vehicle, activated his overhead lights, and signaled for the driver to pull over. The driver pulled into an empty parking lot. Trooper Bethea then ordered the driver to exit the vehicle and meet him at the rear of the vehicle. The driver complied with that order. Trooper Bethea asked the driver for his identification, insurance, and registration papers. Trooper Bethea then explained that as he and the driver approached the vehicle on the passenger side to obtain the insurance and registration papers, he saw a rear seat passenger, whom he later identified as defendant. Trooper Bethea testified that he was concerned for his safety because defendant was hunched over, his hands were not visible, and his eyes and his face were “pointing to something.” Trooper Bethea recalled that there was some sort of movement going on, and that when defendant noticed that he was standing outside the vehicle next to him, defendant appeared startled. At that point, defendant “kind of popped up” quickly and looked left to right as if he was checking the surrounding area. Trooper Bethea testified that he could see that defendant was sweating, noting that there was a “glossiness” to his face, and that his eyes were wide open with a “deer in a headlight” look.

Trooper Bethea testified that because he was unsure what defendant was doing, or whether he was hiding something or pulling something out, he ordered all occupants to exit the vehicle. They complied. Trooper Bethea then asked the driver if he could search the vehicle, and the driver replied affirmatively. During his search of the vehicle, Trooper Bethea saw a black toolbox on the back seat on top of which was a small plastic bag with white powder in it. Trooper Bethea testified that based on his experience, he thought the substance was cocaine. Officers from the Gretna Police Department responded to his request for assistance. Upon their arrival, Trooper Bethea handcuffed all the occupants and recovered the plastic bag containing the white powder. He asked the occupants if ^anyone claimed ownership of the contraband, but no one responded. After putting the contraband in the trunk of his vehicle, Trooper Bethea returned to the group of occupants, at which time defendant admitted to ownership of the white powdered substance. Defendant was arrested and transported to lockup. The other two occupants were released.

Shawn Kazmir, a forensic chemist with the Louisiana State Police crime lab, was qualified as an expert in the field of forensic chemical analysis. She testified that the substance recovered from the vehicle tested positive for heroin and negative for cocaine.

After the State rested its case, defendant testified that on the date in question, his car broke down, and a friend of his brother, Andrew Barbazon, gave him and defendant’s cousin, Enis Cheramie, a ride home. Defendant explained that before he got into the car, he asked Barbazon if he had “anything” on him because Barbazon was known for being a drug addict. Bar-bazon replied negatively. Defendant testified that when Barbazon realized that the trooper was pulling them over, Barbazon started “freaking out.” Defendant testified that he asked Barbazon what was wrong, and Barbazon admitted that he had a bag of “dope” on him. Defendant testified that Barbazon then threw the bag in the back seat as the trooper was walking up to the car. Defendant testified that the trooper pulled them out of the vehicle and handcuffed them. Defendant testified that his hands never left his lap when he was sitting in the car. When the trooper asked Barbazon if he could search the car, Bar-bazon replied that he would rather him not. Defendant recalled that at one point, Barbazon was crying, saying that the Navy would not take him now. At trial, defendant testified that he did not tell the trooper that the drugs were his, the drugs did not belong to him, and he did not know the drugs were there before Barbazon threw them in the back seat. On cross-examination, defendant | r,admitted that he signed an evidence property receipt for a clear plastic bag containing a white powdered substance believed to be cocaine; however, he explained that the document had no writing on it when he signed it.

Enis Cheramie testified similarly to defendant. He explained that before they got in the car, defendant asked Barbazon if he had any illegal substances in the car because defendant, his cousin, had prior convictions and wanted no more. Chera-mie also testified that when the police pulled them over, Barbazon reached into an ashtray or center console, grabbed something, and threw it over his shoulder. Cheramie could not see exactly what the object was. When Cheramie asked the driver why he did that, Barbazon said he panicked. Cheramie testified that the officer searched the car and produced a bag of something. When the officer asked whose it was, they all denied ownership. Chera-mie recalled that Barbazon stood behind his car crying asking defendant and Cher-amie to help him out, but they refused. On cross-examination, Cheramie testified that he did not tell the trooper that Barba-zon had thrown something over his shoulder when they were pulled over.

ASSIGNMENT OF ERROR — Sufficiency of the evidence

In his sole assignment of error, defendant argues that the evidence was insufficient to support the verdict. He contends that the evidence showed that the narcotics were in possession of the driver of the vehicle, who threw the contraband into the back seat as the trooper approached. Additionally, defendant notes that the small bag containing the narcotics was found in plain view on top of a tool box and was not hidden. He asserts that it was more reasonable to conclude that his nervous behavior upon the approach of the trooper was his fearful and innocent reaction to what the driver had just tossed into the back seat, rather than that he | ^placed the narcotics in the precise spot where they would be most noticed by the trooper.

The State responds that the evidence was sufficient to support the charged offense, and therefore, it was sufficient to support the responsive verdict of attempted possession of heroin. It argues that a rational trier of fact could have reasonably inferred that defendant exercised dominion and control over the heroin and therefore that he possessed it. The State notes that the heroin was located in the back seat where defendant was seated, and that defendant admitted to the trooper that the heroin was his.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events; rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

In this case, defendant was charged with possession of heroin, but found guilty of the responsive verdict of attempted possession of heroin, in violation of |7LSA-R.S. 14:27 and R.S. 40:966 C. To convict a defendant for possession of heroin under LSA-R.S. 40:966 C, the State must prove beyond a reasonable doubt that defendant was in possession of the heroin and that he knowingly or intentionally possessed the heroin. LSA-R.S. 14:27 A provides: “any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” Specific intent is a state of mind and, as such, need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Davenport, 08-463, p. 7 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 449, writ denied, 09-158 (La.10/16/09), 19 So.3d 473. LSA-R.S. 14:27 C provides that an attempt is a separate but lesser grade of the intended crime.

The element of possession may be established by showing the defendant exercised either actual or constructive possession of the substance. State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/01), 812 So.2d 7, 9, writ denied, 02-712 (La.9/13/02), 824 So.2d 1188. A person not in physical possession of a drug may have constructive possession when the drugs are under that persons dominion or control. Id.

At trial, the State presented evidence to show that defendant was in constructive possession of the heroin. Trooper Bethea testified that when he approached the vehicle, he observed defendant acting suspiciously in that he was hunched over, his hands were not visible, he was moving and sweating, he appeared startled to see the officer; and he looked around to check out his surroundings. The trooper was concerned for his safety and unsure if defendant was trying to hide something or pull something out, so he ordered all occupants out |sof the vehicle. After obtaining the driver’s consent to search the vehicle, the trooper subsequently found a small bag of white powder on top of the tool box in the back seat next to where defendant had been seated. Additionally, the trooper testified that defendant admitted the bag and its contents belonged to him. Defendant took the stand and denied telling the trooper that the drugs were his, explaining that the drugs did not belong to him. Also, defendant and his cousin both insisted at trial that the driver threw the bag into the back seat as the trooper was approaching the vehicle.

After listening to the testimony of the witnesses and considering the evidence, the jury found defendant guilty of the responsive verdict of attempted possession of heroin. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. For these reasons, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support a conviction of either the charged offense, possession of heroin, or the responsive verdict, attempted possession of heroin. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir.1990). The review reveals errors patent.

19First, we note that the trial judge failed to advise defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Accordingly, defendant is advised by way of this opinion that pursuant to LSA-C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. State v. Arias-Chavarria, 10-116, p. 13 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 434, writ denied, 10-2432 (La.2/25/11), 58 So.3d 460.

Next, the transcript reflects that the trial judge suspended the sentence; however, the commitment indicates the sentence was deferred. Further, the commitment states that defendant pleaded guilty and that he was found guilty by a jury; however, the transcript reflects that defendant did not plead guilty but was found guilty by a jury. When there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Lastly, the commitment shows that defendant was found guilty on “count 1) amended charge 40:979/966C F II ATT OR CONSPIRACY TO POSS A CDS (Heroin).” However, the record does not reflect that the charge was amended; rather, the transcript reflects that the jury found defendant guilty of the responsive verdict of attempted possession of heroin. Accordingly, this matter is remanded to the trial court which is ordered to amend and correct the commitment to conform to the transcript. State v. Burks, 04-1435, pp. 16-17 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, 404, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176.

\,«CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed. This matter is remanded to the trial court for the limited purpose of correcting the commitment as noted above.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Additionally, when a defendant does not object to a legislatively enacted responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State v. Austin, 04-993, p. 13 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 878, writ denied, 05-0830 (La. 11/28/05), 916 So.2d 143. There is no indication in the record that defendant objected to the responsive verdict of attempted possession of heroin.