author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Donald MORTON.
    No. 12-KA-27.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant, Donald Morton, appeals his conviction of possession with intent to distribute cocaine from the 24th Judicial District Court, Division “P”. For the following reasons, we affirm the conviction, amend the sentence, and remand the matter to the trial court with instructions.

STATEMENT OF THE CASE

On April 5, 2011, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Donald Morton, with knowingly and intentionally possessing cocaine in excess of 28 to 200 grams, in violation of LSA-R.S. 40:967 F. On April 6, 2011, Defendant was arraigned and pleaded not guilty. Subsequent to pleading not guilty, Defendant filed several pretrial motions, including a motion to suppress evidence and statement, which were denied on July 27, 2011. On August 8, 2011, the Jefferson Parish District Attorney amended the charged offense to possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A.

| ^Defendant waived his right to a jury, and on August 23, 2011, the trial court found Defendant guilty as charged. On September 28, 2011, the trial court denied Defendant’s motion in arrest of judgment, or in the alternative, motion for new trial. On the same date, the court sentenced Defendant to imprisonment at hard labor for a term of 15 years, to be served without the benefit of parole, probation or suspension of sentence, with credit for time served, and to run concurrently with Defendant’s sentence in case number 11-1619. On October 5, 2011, Defendant filed a motion for reconsideration of sentence. On October 6, 2011, the trial court granted Defendant’s motion for appeal. Defendant now timely appeals his conviction.

FACTS

Detective Brad Roniger, of the Jefferson Parish Sheriffs Office, Narcotics Division, testified that on February 18, 2011, he received information from an individual named Miranda Hickman concerning a drug deal. The information obtained prompted the surveillance of Mike’s Discount Convenience Store (“Mike’s Discount”) at 6611 Westbank Expressway in Marrero. Participating in the surveillance of Mike’s Discount with Detective Roniger were Sergeant Klein, Detective Clogher, Detective Voohries and Detective Bermudes. Three unmarked police units were utilized to conduct the surveillance. Detective Roniger testified that the surveillance was intended to corroborate information that a black male Lsubject driving a dark-colored vehicle with distinctive stripes would meet Hickman at Mike’s Discount to sell her narcotics.

Once the vehicle described by Hickman was observed by the officers and Hickman had entered the passenger side of the vehicle, the officers positioned one of their unmarked units in front, and one in back, of Defendant’s vehicle. Detective Roniger testified that when Defendant observed Detective Clogher exiting one of the units, Defendant drove his vehicle forward and backward striking both unmarked units. Defendant was subsequently removed from his vehicle, advised of his Miranda rights, and placed under arrest.

After placing Defendant under arrest, Detective Roniger testified that he spoke to Hickman who advised him that she did not have any narcotics on her person. Detective Roniger also testified that he did not personally perform a search of Defendant’s vehicle; however, he was aware that a small quantity of crack cocaine was recovered from inside the vehicle. The officers then relocated to Defendant’s residence where a search warrant had been authorized. Upon conducting a search of the rear shed, which had been converted into a residence, Detective Roniger testified that a crack pipe, a digital scale, and a clear plastic bag containing cocaine were seized by the officers. Detective Roniger further testified that at the time of Defendant’s arrest, approximately $600 in cash was found on Defendant’s person. Defendant stated that he had a legitimate means of income; however, he failed to specify the source of his earnings.

Detective Ronnie Voohries, of the Jefferson Parish Sheriffs Office, Narcotics Division, also testified that he participated in the surveillance conducted at Mike’s Discount on February 18, 2011. Detective Voohries testified | ¿substantially similar to Detective Roniger regarding the surveillance, drug transaction, and arrest of Defendant, in which the surveillance was commenced to corroborate the information gained from Hickman. Detective Vooh-ries testified that subsequent to Defendant’s arrest, he conducted a search of Defendant’s vehicle and found a rock-like object inside a plastic bag in the front seat of the vehicle near the area of the arm rest. The officers then relocated to Defendant’s residence at 1208 Marshall. When they arrived at the house, Detective Voohries testified that a woman by the name of Clarisa Ellie and her child were present. Detective Voohries learned from Ellie that Defendant did not live in the main residence. Detective Voohries confirmed this information upon conducting a protective sweep of the interior of the main residence where he did not observe any male clothing or other items indicating Defendant’s presence. Ellie also advised Detective Voohries that she was renting the main residence from Defendant, and Defendant resided in the back residence. After speaking to Ellie, a search warrant was obtained for the back residence.

Detective Shane Klein, of the Jefferson Parish Sheriffs Office, Narcotics Division, testified that he placed Defendant under arrest at Mike’s Discount on February 18, 2011. Detective Klein testified regarding the facts leading up to Defendant’s arrest, which corroborated the testimonies of Detectives Roniger and Voohries. Namely, Detective Klein testified that after observing Hickman enter Defendant’s black Chevrolet Lumina with a silver stripe, he began to approach Defendant’s vehicle on foot when Defendant proceeded to drive his car into the two police vehicles that were blocking him in. Defendant was then placed under arrest by Detective Klein for striking a police vehicle and was read his Miranda rights. Detective Klein testified that Defendant acknowledged that he understood his rights. Once the crack cocaine was recovered from Defendant’s vehicle, | (¡Detective Klein asked him about the contraband, to which Defendant “just nodded his shoulders and said, ‘you know, what can I say?”’ Detective Klein also asked Defendant whether he had any narcotics at his home. Defendant informed Detective Klein that he had a crack pipe at his home and further provided his verbal consent to search his residence located at 1208 Marshall. On the way to his house, Defendant led the officers to believe that he was living inside the main residence at 1208 Marshall, and that upon their arrival, there would be a woman and child present.

Upon arrival at the residence, the officers attempted to use Defendant’s keys to enter the front door, however, they did not fit. A female eventually opened the door and once inside the house, Detective Klein learned Defendant actually lived in the back residence. Detective Klein advised Defendant that he was going to include the back residence in the Consent to Search Form but Defendant immediately withdrew his consent. Thus, Detective Klein obtained a search warrant for the front and back residences.

Upon executing the search warrant, Detective Klein testified that Defendant’s keys opened the back residence. Once inside the back residence, the officers recovered a large bag of white powdery substance, a glass pipe, digital scales, miscel-Ianeous paperwork, an off-white rock, a drinking glass, and plastic bags. Detective Klein testified that the paperwork contained Defendant’s name, 17and that Defendant’s driver’s license bore the address “1208 Marshall Drive.” An envelope with Defendant’s name on it and a list of eight different names with a monetary amount next to each name was also seized from the back residence. Detective Klein further testified that at the time of Defendant’s arrest, he seized $633.00 from Defendant’s person, and that Defendant could not provide an answer as to how he obtained the money.

The trial court also qualified Detective Klein as an expert in the packaging, quantifying and evaluation of illicit narcotics. Based on Detective Klein’s experience as a narcotics agent, he testified that the list of names found on the back of the envelope in Defendant’s residence appeared to be a tally sheet of the people that owed Defendant money. Detective Klein also testified that the quantity of cocaine found in Defendant’s residence alone was consistent with an individual who was engaging in the illegal sale and distribution of narcotics.

Miranda Hickman testified that on February 18, 2011, she was staying at a hotel in Marrero with her boyfriend when the police arrived at her door. Hickman further testified that she allowed the officers to search her room, at which time they found paraphernalia and told her that “they was going to put something on [her],” so she told the officers that she was going to “meet somebody.” Hickman testified that she set up the drug buy with Defendant so that the police would “leave her alone.” According to Hickman, she then walked over to Mike’s Discount and unbeknownst to her, the officers followed. Hickman also testified that she met up with Defendant and got into his vehicle with the purpose of “messing around,” not to buy crack cocaine. Hickman further testified that the | scrack cocaine found inside the vehicle was not hers, and she did not bring or place the narcotics in Defendant’s vehicle. Finally, Hickman testified that the police never offered her any money to set up Defendant.

Detective Donald Clogher, of the Jefferson Parish Sheriffs Office, testified that while on a proactive narcotics patrol, he, along with Detectives Roniger and Vooh-ries, followed a male subject to a hotel room where they encountered Hickman. Detective Clogher testified that they did not perform a search of the hotel room and did not locate any drugs or paraphernalia. Detective Clogher also testified that he did not threaten Hickman with charges if she did not assist them. Detective Clogher testified that Hickman informed him that “she could make a phone call and set up a transaction, narcotics transaction with an individual.” According to Detective Clo-gher, Hickman made the phone call in front of the officers and arranged for the drug buy to take place at Mike’s Discount. Detective Clogher then testified consistently with the other detectives regarding the surveillance and arrest of Defendant. Detective Clogher also testified that after Defendant was placed under arrest, he and Sergeant Klein relocated to Defendant’s residence where he participated in the search of the back residence. Detective Clogher further confirmed the testimony of the contraband seized from the back residence.

Lastly, Defendant testified. Defendant testified that he went to Mike’s Discount on February 18, 2011, to get a sandwich. Defendant indicated that when he pulled into the Mike’s Discount parking lot, he noticed Hickman standing in front of the store. Defendant testified he was looking for a place to park when ajaman, who did not identify himself as a police officer, ran up to his window with a gun and ordered him to get out of the car. Defendant stated that he attempted to put the car in park but accidentally put it in reverse and “touched the car that was behind” him. Defendant further testified that he had never spoken to Hickman before, that she did not get into his car on the night in question, and that he did not know Hickman but recognized her in the parking lot of Mike’s Discount because he had seen her around the area before. Defendant testified that he was pulled out of the car and placed in handcuffs while the officers searched his person and vehicle. Defendant stated he told the officer that he was on parole and the money in his wallet was from his job as a driver for a limousine service. Defendant denied having any narcotics in the vehicle he was driving and further testified that one of the officers stated at the scene that his car was “clean.” Defendant testified that he was not Mirandized, and that he did not give the officers consent to search his house.

When they arrived at his house, Defendant testified that the officers threatened to kick down the front door when his keys did not fit. After gaining entry into the house by a woman named Clarisa, Defendant testified that the officers brought him into the rear of the house, ordered him to take off all of his clothes, and then told him to sign a consent to search form. Defendant refused to sign the consent to search form and was brought back to the front of the house after an officer came into the room and told the other officers that the keys unlocked the back house. Defendant testified that he waited for the officers to obtain a search warrant, and when they came back with the warrant, which was never shown to him, they had already searched the house. Defendant denied any knowledge of the [10narcotics found in his back house and further denied ownership of the scales that were found, claiming that the back house had been leased out to three other people in the past. Defendant testified that at the time of the incident he was “mostly staying” at his sister-in-law’s house and was making repairs to the back house.

On cross-examination, Defendant admitted to being convicted in 2004 of possession with intent to distribute cocaine and two counts of possession of cocaine. Defendant was also convicted of possession of a handgun while in possession of cocaine in 2006. Defendant testified that pursuant to his parole requirements, he provided his parole officer with his address, which he listed as 1208 Marshall Drive. Defendant admitted that he leases the main residence, and that he lived in the small back residence, but other people had stayed there as well. Defendant also testified that he had stayed in the back residence the night before he was arrested, and that he woke up there that morning, but no contraband was present and no one else was with him in the back residence when he left that morning. Defendant admitted that only he and his stepdaughter have keys to the back residence. Defendant testified that he did not know how the contraband got into the back residence.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error is the evidence was insufficient to support this conviction beyond a reasonable doubt.

DISCUSSION

Defendant was charged, tried, and convicted of possession with the intent to distribute cocaine. Defendant now argues that the police officers set up the encounter between Hickman and him, after threatening Hickman to gain her cooperation. Defendant also asserts the police officers’ testimonies at trial were not credible, and they planted the evidence that led to his conviction. Additionally, 11TPefendant contends that the State failed to prove beyond a reasonable doubt that he possessed the requisite guilty knowledge, dominion and control over the contraband to support the conviction in this case.

In response, the State asserts that the evidence presented at trial was sufficient to support Defendant’s conviction. Specifically, the State contends that Defendant’s admissions alone prove beyond a reasonable doubt that the contraband was in his possession. The State also maintains that the trial court found the testimony of the four narcotics police officers to be more credible than that of Defendant, which should not be reweighed on appeal.

The constitutional standard for testing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

An appellate court, in reviewing the sufficiency of evidence, must determine if 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. State v. Sosa, 05-213 (La.1/19/06); 921 So.2d 94, 99. Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” Id. “When a jury rationally rejects the hypothesis of innocence advanced by the defendant, that hypothesis fails, and ‘the defendant is guilty unless there is another hypothesis which raises a reasonable doubt,’ i.e., an ‘alternative hypothesis ... sufficiently reasonable that a rational juror could not have found proof of guilt beyond a | ^reasonable doubt.’ ” Id., citing State v. Captville, 448 So.2d 676, 680 (La.1984). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness, at its discretion. Sosa, 921 So.2d at 101. The appellate court may impinge on the fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Caffery, 08-717 (La.App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10); 27 So3d 297. The credibility of witnesses is not to be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97); 694 So.2d 1052,1056.

In the instant case, Defendant challenges the evidence relating to his conviction for possession with the intent to distribute cocaine in violation of LSA-R.S. 40:967 A. In order to support a conviction for possession of cocaine pursuant to LSA-R.S. 40:967, the State must prove beyond a reasonable doubt that the defendant was in possession of the cocaine and that he knowingly possessed it. State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03); 853 So.2d 61, 65, writ denied, 03-2343 (La.2/6/04); 865 So.2d 738. The element of possession may be proven by showing that the defendant exercised either actual or constructive possession of the cocaine. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 241.

A person who is not in physical possession of narcotics may have constructive possession when the drugs are under his dominion and control. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01); 791 So.2d 749, 761, writ denied, 01-2269 (La.9/20/02); 825 So.2d 1156. A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion |isand control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 01-1875 (La.10/15/02); 833 So.2d 910, 912.

With regard to the intent to distribute cocaine, to sustain its burden, the State was required to show that defendant possessed the cocaine and he did so with the specific intent to distribute it. LSA-R.S. 40:967; State v. Suavely, 99-1223 (La. App. 5 Cir. 4/12/00); 759 So.2d 950, 958, writ denied, 00-1439 (La.2/16/01); 785 So.2d 840. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1); State v. Mitchell, 99-3342 (La.10/17/00); 772 So.2d 78, 82; State v. Coleman, 02-345 (La.App. 5 Cir. 9/18/02); 829 So.2d 468, 471. Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact-finder. State v. Graham, 420 So.2d 1126, 1128 (La.1982); State v. Meyers, 95-750 (La.App. 5 Cir. 11/26/96); 683 So.2d 1378, 1383, writ denied, 97-0234 (La.6/20/97); 695 So.2d 1350.

The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which gave rise to an inference of such intent. Such circumstances include (1) previous attempts to distribute; (2) whether the drugs are in a form consistent with distribution; (3) the amount of the drugs; (4) expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute. State v. Hearold, 603 So.2d 731, 735 (La.1992).

114Here, Defendant’s sole challenge on appeal relates to whether the State proved the requisite guilty knowledge and dominion and control over the contraband to support the conviction in this case. Because Defendant has not challenged the State’s proof as to the second element of the charged offense, namely, his intent to distribute the cocaine, only the possession element is before this Court on review.

All four detectives testified at trial that the surveillance of Mike’s Discount was set up in this case based on information gained from Hickman that a drug sale was scheduled to take place there between Hickman and a black male subject driving a dark colored vehicle with distinctive stripes. Once the information was verified, and Hickman was observed entering Defendant’s vehicle to engage in what the officers believed to be a hand-to-hand drug transaction, they positioned their police vehicles around Defendant’s car. The testimony of all four police officers suggests that upon seeing the officers, Defendant attempted to flee and as a result, crashed his car into the police vehicles surrounding him. It was at this time that Defendant was placed under arrest and informed of his Miranda rights. Upon searching his car, a crack cocaine rock was recovered in plain view in the front seat of the vehicle, near the area of the arm rest. Additionally, over $600 in cash was found on Defendant’s person, and he could not provide an answer as to how he obtained the money. After questioning Defendant about the crack cocaine found in his car, Defendant “just nodded his shoulders and said, ‘y°u know, what can I say?’ ” Defendant was also asked whether he had any narcotics at his house.

After admitting that he had a crack pipe at his house, Defendant provided the officers with his verbal consent to search' his home, which he identified as 1208 Marshall Drive. Once at Defendant’s home, the officers discovered that his keys did not open the door to the main residence. The officers also learned that | ^Defendant was renting out the main residence and pursuant to his own admissions, the officers were advised that he actually lived in the small back house. When the officers indicated that they were going to add the back house to the consent to search form, Defendant immediately -withdrew his consent. Thus, a search warrant was obtained and executed. Defendant’s keys were used to open the back house and upon executing the search warrant, the officers recovered a large bag of white powdery substance, a glass pipe, digital scales, paperwork with Defendant’s name and address on it, an off-white rock, a drinking glass, a suspected ledger and plastic bags.

In addition to the four officers’ testimony, both Hickman and Defendant testified at trial. Hickman, although later contradicted by her own testimony, confirmed that she set up the drug buy with Defendant at Mike’s Discount. Also, Defendant’s own admissions further established Defendant’s possession of the contraband used to charge the Defendant in this case. Specifically, Defendant admitted that he resided in the back house where the contraband was found and had stayed there the night before his arrest. Moreover, Defendant testified that pursuant to his parole requirements, he provided his parole officer with his address which he listed as 1208 Marshall Drive. Defendant further admitted that only he and his stepdaughter have keys to the back residence, and that he did not know how the contraband ended up in his residence.

Taken as a whole, the evidence put on by the State at trial was sufficient to establish a connection to Defendant and the crack cocaine found in his car and the contraband recovered from the back residence located at 1208 Marshall Drive. Moreover, the facts as testified to by the officers in this case, as well as Defendant’s admissions and the evidence seized at the Marshall Drive residence, directly links Defendant to the home and strongly support the conclusion that | ^Defendant had constructive possession over the contraband used to charge and convict him in this case. Also, evidence of Defendant’s guilty knowledge is inferred by Defendant’s attempt to escape the police at Mike’s Discount and the withdrawal of his consent to search after the officers indicated that the back residence was going to be added to the consent to search form.

The trial court apparently believed the testimony of the four police officers and rejected Defendant’s alternative hypothesis that Hickman was threatened, and that the police planted the contraband in his car and home as unreasonable. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983); State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99); 732 So.2d 556, 560, writ denied, 99-2818 (La.4/20/00); 760 So.2d 334.

Therefore, given the evidence and testimony presented at trial, we find that the evidence is sufficient to support the element of possession. Based on our review of the record, we affirm Defendant’s conviction and find the State sufficiently proved beyond a reasonable doubt that Defendant was guilty of possession with the intent to distribute cocaine.

| ^ERRORS PATENT DISCUSSION

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

First, there is nothing in the record to show that Defendant was arraigned on the amended charge set forth in the bill of information. On April 5, 2011, the State filed a bill of information charging Defendant with possession of cocaine in excess of 28 to 200 grams, in violation of LSA-R.S. 40:967 F. On April 6, 2011, defendant was arraigned and pleaded not guilty. On August 8, 2011, the State amended the charged offense to possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967 A. Defendant proceeded to trial on the amended charge without objection, thereby waiving any irregularity. LSA-C.Cr.P. art. 555. If a defendant fails to enter a plea, it is considered as if he had pleaded not guilty. Id.; State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02); 836 So.2d 494, 508 n. 6, writ denied, 03-0491 (La.10/31/03), 857 So.2d 472; State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171. Therefore, we find that no corrective action is necessary.

Second, the record indicates that the trial court failed to observe the 24-hour delay between denying Defendant’s Motion in Arrest of Judgment and Alternatively Motion for New Trial and sentencing, as required by LSA-C.Cr.P. art. 873. However, we find Defendant waived the sentencing delays required by LSA-C.Cr.P. art. 873.

|1sIn State v. Scott, 249 La. 20, 184 So.2d 542 (1966), the Louisiana Supreme Court held that an affirmative action indicating a waiver of the provisions of LSA-C.Cr.P. art. 873 was necessary. In State v. James, 527 So.2d 504, 505 (La.App. 5th Cir.1988), this Court held that the delays were waived when counsel affirmatively responded to the trial court that the defendant was ready for sentencing. Also, in State v. Green, 04-357 (La.App. 5 Cir. 11/16/04); 890 So.2d 6,12, this Court found a valid waiver of delays, even though defense counsel did not expressly state that the defendant was ready for sentencing, because he agreed with the trial court that the defendant needed to be sentenced.

The record in this case indicates that at the beginning of the sentencing hearing on September 28, 2011, defense counsel acknowledged that the matter was set for sentencing and informed the trial court of the outstanding motion to arrest judgment and motion for new trial. After both motions were denied, the trial court asked the defense attorney, “[a]re you ready for sentencing in this matter?” to which the defense attorney responded, “[y]es, your Honor.” Noting that Defendant was ready for sentencing, the court sentenced Defendant to 15 years imprisonment.

Accordingly, based on Defendant’s affirmative statement indicating that he was ready for sentencing, we find that Defendant waived the required sentencing delay.

Third, although the commitment reflects Defendant was given a proper ad-visal of the time period for seeking post-conviction relief, the transcript indicates that the trial court failed to advise him of such time limitation, as provided in LSA-C.Cr.P. art. 930.8. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

holt is well-settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to LSA-C.Cr.P. art. 930.8, the appellate court may correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief by way of an opinion. See State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06); 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07); 948 So.2d 120; State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10); 54 So.3d 678, 688, writs denied, 10-2758 (La.4/25/11); 62 So.3d 89 and 10-2752 (La.5/20/11); 63 So.3d 974; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11); 67 So.3d 535, writ denied, 11-1753 (La.2/10/12); 80 So.3d 468; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08); 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09); 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08); 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09); 19 So.3d 473.

Thus, we, by means of this opinion, correct this error and inform Defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

Fourth, Defendant received an illegal sentence for his conviction for possession with the intent to distribute cocaine. Defendant was sentenced to 15 years imprisonment, with all 15 years to be served without the benefit of parole, probation, or suspension of sentence. Pursuant to LSA-R.S. 40:967(B)(4)(b), the sentence was required to be imposed without the benefit of parole, probation, or suspension of sentence only for the first two years. State v. McKenzie, 09-893 (La.App. 5 Cir. 2/15/11); 61 So.3d 54, 59. This error patent requires corrective action.

[^LSA-C.Cr.P. art. 882(A), provides this Court with the authority to amend Defendant’s sentence to reflect that only two years of the sentence is to be served without the benefit of parole, probation or suspension of sentence. See State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10); 34 So.3d 892, 903, writ denied, 10-0705 (La.10/29/10); 48 So.3d 1097. Moreover, when a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the Courts of Appeal “should not rely on LSA-R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La.C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’ ” State v. Sanders, 04-0017 (La.5/14/04); 876 So.2d 42 (per curiam).

Accordingly, we amend Defendant’s sentence to reflect that only two years of the sentence imposed is to be served without the benefit of parole, probation or suspension of sentence and remand this case for correction of the commitment regarding the noted benefit restriction error. We also direct the trial court to make the entries in the commitment reflecting this change and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which Defendant has been sentenced and the Department of Correction’s Legal Department. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06); 937 So.2d 846 (per curiam).

Therefore, we affirm Defendant’s conviction, amend the sentence, and remand the matter to the trial court with instructions for correction of the commitment.

AFFIRMED; SENTENCE AMENDED; REMANDED WITH INSTRUCTIONS

      . Defendant was also assessed a $35.00 fee in accordance with LSA-R.S. 15:168.

      . The record does not reflect that a ruling on Defendant's Motion to Reconsider Sentence was made by the trial court.

      . Detective Roniger testified that Hickman was not a confidential informant. Detective Roniger further testified that in exchange for the information provided, there was an agreement to "possibly pay” Hickman; however, after the arrest of Defendant, Hickman was unable to be located and, thus, was never paid.

      . Detective Roniger described the area around Mike’s Discount as a high crime, high drug-trafficking area.

      . On cross-examination, Detective Roniger testified that he met with Hickman at her house, which was located in the area of Mike’s Discount and spoke with her there. While at Hickman’s house, Detective Roniger testified that Hickman called Defendant on his cell phone and ordered a small quantity of crack cocaine.

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

      . Detective Klein testified that there were no narcotics found in the main residence. Detective Klein further testified that there were no clothes found inside the main residence that would indicate that Defendant lived there.

      . The paperwork found in the back residence consisted of: a Louisiana chauffeur’s license, correspondence from the Social Security Administration, and two other documents, all bearing Defendant’s name and address at 1208 Marshall Drive.

      . On cross-examination, Detective Klein testified that glasses are commonly used to put baking soda, hydrochloride, cocaine, and water, and then placed in the microwave to make crack cocaine. Also, on re-direct, Detective Klein testified that the glass that was seized contained a residue which was consistent with powder cocaine.

      . Raven Barrois, an expert in the testing and analysis of controlled dangerous substances, testified that pursuant to her job duties with the Jefferson Parish Sheriff’s Office, Crime Laboratory, she tested three substances collected in connection with this matter. The first two substances were white, rock-like objects, weighing .43 grams and .34 grams respectively, and tested positive for cocaine. The third substance tested was a clear bag containing a white powder, which tested positive for cocaine and weighed 26.91 grams.

      . Detective Klein further testified that the amount of cocaine, coupled with the paraphernalia, money and ledger found in Defendant’s residence was also consistent with the sale and distribution of narcotics.

      . Hickman further testified that she did not give the officers a description of the person she was going to meet and did not recall whether she gave them a description of the vehicle. Hickman also testified that she did not realize what was going on because she was "so loaded” on "heroin and crack.”

      . On re-direct examination, Hickman testified that she did not tell the police that she was going to meet Defendant, who drove a dark Chevy with a stripe on the side, to purchase drugs or engage in prostitution.

      . Hickman testified that she is currently in jail for monetary instrument abuse, and the State did not offer her anything of value in exchange for her testimony. Hickman further testified that she has several prior convictions including "entry of inhabited dwelling, simple burglary, and possession.”

      .On cross-examination, Detective Clogher testified that he verified that the phone call made by Hickman setting up the drug deal was made to Defendant’s phone. Detective Clogher further testified Defendant’s phone contained text messages indicative of narcotics trafficking.

      . Defendant also testified the car he was driving did not belong to him.

      . Defendant testified that the cash on his person could have been from the rent he collected from his tenant. Defendant also testified that because he is on parole, he is drug tested and his parole officer had visited and searched his back house once before.

      . Compare, State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03); 841 So.2d 881, writ denied, 03-0909 (La.9/26/03); 854 So.2d 345. In Marshall, the defendant was convicted of possession of cocaine with intent to distribute. Based on information received by the narcotics division, officers initiated surveillance on the defendant. During the surveillance, the defendant was observed in a green Ford Explorer participating in what officers believed to be a hand-to-hand drug transaction. The defendant was detained and a bag of cocaine was retrieved from his person, along with $18.00 in cash and a set of keys. During the month prior to defendant’s arrest, police conducted a surveillance on what they believed to be the defendant's apartment at 3401 Eden-born Drive in Metairie. During the extended surveillance, on three occasions, the officers observed the defendant leaving the apartment complex in the Ford Explorer. Thus, after arresting the defendant, the officers obtained a search warrant for the Edenborn apartment. The officers used the keys found on the defendant at the time of his arrest to open the door to the apartment. Upon executing the search warrant, the officers discovered 38 individually wrapped rocks of crack cocaine along with $830.00 in cash. The defendant appealed his conviction asserting that the State failed to prove that he possessed the cocaine found at the Edenborn apartment.
      This Court affirmed the defendant's conviction based on the fact that he was seen on three occasions leaving the apartment complex in the Ford Explorer regularly used by the defendant and which was registered to his wife. Further, this Court noted that the officers found mail addressed to the defendant and his wife at die Edenborn address indicating a connection between the defendant and the apartment. Moreover, this Court determined that the defendant was in possession of the key to the apartment when he was arrested. Finally, this Court found that, although the lease was in the defendant’s wife’s name, she and the defendant were married, he frequently used her truck, and mail was found addressed to the defendant at the apartment. Thus, this Court reasoned that it could be surmised that the defendant and his wife shared the residence at Edenborn.

      . LSA-C.Cr.P. art. 555 provides that ”[a]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”

      . It is further noted that Defendant did not challenge his sentence as excessive on appeal. Moreover, Defendant did not object at sentencing or raise the trial judge’s failure to observe the delay as error.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Renard SCOTT.
    No. 11-KA-999.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, J. Brandon Kinnett, Jerome G. Smith, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|2The defendant, Renard Scott, has appealed his conviction of second degree murder. For the reasons that follow, we affirm defendant’s conviction and sentence.

FACTS

On the evening of July 3, 2005, Trellas Porter was shot and killed on the inside of his home in Harvey, Jefferson Parish, Louisiana. Defendant and his co-defendant, Cedric Lewis, were tried together for this murder. This appeal involves only defendant.

At trial, Ms. Alicia Porter, the mother of the victim, testified that on the evening of July 3, 2005, she was in her bedroom watching television when she heard her mother, Ms. Dorothy Eugene, screaming. Ms. Porter came out of her bedroom to see an intruder in her house, whom she described as a black male with [ssh oulder-length dreadlocks, covering his face with a white tee shirt. Ms. Porter explained that she only saw this person for a second, then backed out of the room to call the police. While doing so, she heard two gunshots. After she got off the phone with the police, Ms. Porter entered her son’s bedroom to find him lying on the floor with his eyes covered with blood. Although not mentioned in her statement to the police, at trial Ms. Porter testified that she heard her son say the name “Cedric” before he was killed.

Ms. Dorothy Eugene, the victim’s grandmother, testified that on the day in question, she was watching television in her den when she heard the front door open followed by hollering. Ms. Eugene ran to the living room where she saw two intruders, one with a gun. She could not see the intruders’ faces because they were concealed with some type of cloth; from their hands, however, she could tell that they were black males. The gunman had dreadlocks. The gunman pointed the gun at the victim who was seated on the sofa. Although the intruders and the victim were talking, Ms. Eugene could not understand what they were saying until she heard the victim say, “Cedric, you don’t have to do this.” The victim then stood up from the sofa and proceeded to his bedroom with the gunman and his accomplice. The gunman tripped and fell over a toy box. She grabbed the gunman by the neck, scratched him, and pulled his hair. The gunman then pointed the gun in her face. Ms. Eugene called her daughter, Ms. Porter, for help, then ran out of the front door yelling for help. While outside, she heard two gunshots.

Christopher Lindsey was questioned by the police in connection with this murder. Mr. Lindsey asserted his Fifth Amendment right to remain silent at the trial. However, his statement to the police was introduced into evidence at the 14trial. In his statement, Mr. Lindsey stated that on the night of the murder, he accompanied Cedric Lewis to the victim’s residence to buy marijuana. He stood near the front door, entering no further than the front room. When he heard gunshots, he ran from the house. He heard the victim say something along the lines of “Cedric, don’t do this to me.”

Based on Ms. Eugene’s statement that she scratched the gunman, fingernail scrapings were taken from her for DNA analysis. DNA analysis of these scrapings revealed a match to defendant. This DNA material did not match Mr. Lindsey, Cedric Lewis, or the victim. Bonnie Du-bourg, an expert in forensic DNA analysis, testified that the amount of DNA obtained from underneath Ms. Eugene’s fingernails would not be expected to occur from casual contact. When she was shown a photograph of defendant, Ms. Eugene stated that she was not familiar with him. After extensive questioning, there was no indication that Ms. Eugene had come into contact with defendant other than on the night of the murder. At the time of the offense, Ms. Eugene was 84 years old. She testified that she left her home only to go to church and the grocery store.

ASSIGNMENT OF ERROR NUMBER TWO

The evidence was insufficient to support the verdict of murder since identity was not proven beyond a reasonable doubt.

[1,2] In this assignment of error, defendant argues that the trial court erred in denying his motion for a new trial on the ground that the evidence was insufficient to support his conviction of second degree murder, specifically arguing that “no rational trier of fact could have found that the state bore its burden of proving | identity [of the perpetrator] beyond a reasonable doubt.” He argues that the testimony reflected that only two men were present at the scene of the crime, namely, Cedric Lewis and Christopher Lindsey. He asserts that the presence of his DNA underneath the fingernails of Ms. Dorothy Eugene is not enough to identify him as a perpetrator. Conversely, the State argues that the evidence was indeed sufficient to convict defendant of second degree murder.

In reviewing 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. State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 582, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885 (citing 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. 1328, 152 L.Ed.2d 231 (2002)). In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Williams, 08-272, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470 (citation omitted). When the key issue is identification, the State is required to negate any reasonable probability of misidentifieation in order to carry its burden of proof. Id. Further, positive identification by only one witness is sufficient to support a conviction. Id.

A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole 1 firecord and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

In his brief to this Court, defendant only contests sufficiency of the evidence on the issue of identity. Accordingly, we will only address that issue.

In State v. Wiley, 10-811, p. 13 (La.App. 5 Cir. 4/26/11), 68 So.3d 583, 591, this Court found the evidence was sufficient to convict the defendant as a principal to second degree murder when the most important piece of evidence was a piece of chewing gum which contained the defendant’s fingerprints and DNA. The conviction stemmed from a shooting which occurred during a burglary perpetrated by several individuals. Id., 10-811 at 2-3, 68 So.3d at 585-86. This Court found that the State did not prove that the defendant fired the gun that killed the victim, but did find that the State proved beyond a reasonable doubt that the defendant was a principal to second degree murder. Id., 10-811 at 14, 68 So.3d at 591. In reaching this conclusion, this Court relied on the fact that the defendant’s fingerprint and DNA were found at the scene of the crime. Id.

In the instant case, the only physical evidence linking defendant to the crime was his DNA which was found underneath the fingernails of Ms. Dorothy Eugene. Although Ms. Eugene was unable to identify any of the perpetrators, except to say that they were black males, she testified that she grabbed the gunman by the neck, scratched him, and pulled his hair. Ms. Dubourg, an expert in forensic DNA analysis, testified that the DNA material obtained from underneath Ms. Eugene’s fingernails matched that of defendant and did not match that of Christopher Lindsey or Cedric Lewis or the victim. Ms. Dubourg further testified that the amount of DNA obtained from underneath Ms. Eugene’s fingernails would not be ^expected to occur from casual contact. Detective Donald Meunier, the lead investigator on this case, testified that he questioned Ms. Eugene extensively as to how defendant’s DNA could have gotten under her fingernails. He questioned her about social events that she had attended and asked if she had fallen and someone had helped her in getting up. There was no familial connection between defendant and Ms. Eugene. Detective Meunier showed Ms. Eugene a photograph of defendant and Ms. Eugene responded that she did not know defendant. Ms. Eugene’s responses led Detective Meunier to conclude that other than on the night of the murder, there was no indication that she had come into casual contact with defendant, let alone a more than casual scenario in which defendant’s DNA was left underneath her fingernails. Detective Meunier explained that he could not determine an alternative explanation for the presence of defendant’s DNA underneath her fingernails, testifying:

I looked at obvious, not so obvious explanations that would establish how this DNA would have gotten under her nails; again, a friend of the family, associate, general normal contact, things like that, I was able to exclude those.
I asked her about church, restaurants, family functions, social events, things of that nature, an all encompassing questioning, to see if there was a particular incident, had she fallen recently, I remember asking her that, had any good Samaritan helped her up, things of that nature, anything that could explain the DNA.

Unable to ascertain an alternative explanation, Detective Meunier concluded that defendant was present at the scene of the murder and he was the person Ms. Eugene was referring to when she said she scratched one of the perpetrators.

Defendant further argues that there was testimony that there were at most two perpetrators who participated in this murder. However, it is well settled that the trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. Id., 08-717 at 4, 15 So.3d at 202. Despite the inconsistencies as to the number of perpetrators, the jury heard testimony from all of the witnesses, reviewed all of the evidence, and concluded that defendant participated in the murder of Trellas Porter.

Based on Detective Meunier’s testimony that defendant’s DNA was present at the scene of the murder, we conclude that every reasonable hypothesis of innocence was excluded pursuant to LSA-R.S. 15:438. Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient to convince a rational trier of fact that defendant participated in the murder of Trellas Porter. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion for a new trial on the ground that the evidence did not support the conviction.

ASSIGNMENT OF ERROR NUMBER ONE

The trial couH erred in failing to grant a continuance, severance and/or new trial when the defense informed the court they had contrary defenses and just the week before trial the defense learned that the State was not going to call two essential and exculpatory witnesses.

In this assignment of error, defendant argues that the trial court erred in denying his motion for a new trial. He avers that his motion for a new trial should have been granted on the grounds that his motion for continuance, motion in\9limine, and motion to sever were erroneously denied. However, defendant’s motion for a new trial and his brief to this Court do not contain any reference to a motion in li-mine. Accordingly, any argument relative to the denial of a motion in limine will not be addressed.

Regarding his motion for a continuance, in his motion for a new trial, defendant argued that the continuance should have been granted to give the defense time to locate a witness, Karra Crayton, the victim’s girlfriend. Defendant asserted that attempts to locate Ms. Crayton were made, but the State never supplied the defense with a valid address. In his brief to this Court, defendant alleges that the defense was notified the Friday before trial that the State could not locate Ms. Crayton and did not intend to call her as a witness. The record indicates that the defense subpoenaed Ms. Crayton and attempted to locate her, to no avail. Thus, on August 23, 2011, the first day of trial, the defense made an oral motion for a continuance in order to locate Ms. Crayton, which the trial court denied. Defendant argued in his motion for a new trial and now on appeal that this denial was erroneous. In response, the State argues that the trial court did not abuse its discretion in denying defendant’s motion for a continuance.

According to LSA-C.Cr.P. art. 712, “[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” The Louisiana Supreme Court has consistently held that the decision on whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Shannon, 10-580, p. 11 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 715, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283. In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Id. This Court has also recognized that the denial of a motion for a continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. Id.

According to LSA-C.Cr.P. art. 709(A), a motion for a continuance based upon the absence of a witness must state all of the following:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

The requirements of LSA-C.Cr.P. art. 709 are strictly enforced by the courts. Shannon, 10-580 at 14, 61 So.3d at 716. For instance, in State v. Meyers, 95-750, 96-35, 96-395, pp. 21-23 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378, 1388-89, writs denied, 97-0015 (La.5/9/97), 693 So.2d 766, 98-2530 (La.2/5/99), 737 So.2d 745, 00-0995 (La.12/8/00), 775 So.2d 1079, this Court found no abuse of the trial court’s discretion in denying the defendant’s motion for a continuance on the basis of an absent witnesses, whose testimony the defense claimed was exculpatory, where the defendant failed to meet the requirements of LSA-C.Cr.P. art. 709(A)(2) and (3). This Court found there was no showing of a probability that the witnesses would be available at the time to which the trial was deferred, nor was there a showing of the exercise of due diligence in efforts to procure the attendance of the witnesses. Id., 95-750, 96-35, 96-395 at 22, 683 So.2d at 1389.

InSimilarly, in State v. Smith, 03-786, p. 6 (La.App. 5 Cir. 12/30/03), 864 So.2d 811, 817, writs denied, 04-0380, 04-0419 (La.6/25/04), 876 So.2d 830, this Court found that the defendant failed to meet the three requirements in LSA-C.Cr.P. art. 709. In determining that the defendant failed to meet LSA-C.Cr.P. art. 709(A)(2), this Court stated, the “defendant had not even located the witness to determine whether he was the correct [person] at the time the continuance was requested.” Id. Further, this Court noted that the defendant failed to show that he was prejudiced by the failure of the witness to testify and that the case was continued numerous times by defense counsel, the State, and the court-most notably, eleven times by the defense. Id., 03-786 at 6-7, 864 So.2d at 817-18.

Likewise, in the instant case, defendant did not satisfy two of the three requirements in LSA-C.Cr.P. art. 709. First, although defense counsel claimed that Ms. Crayton was an “essential” witness, he failed to provide the facts to which she was expected to testify. He merely stated that “several of her statements don’t mention my client.” He subsequently provided the facts as to which she was expected to testify in his motion for a new trial and on appeal, however, at the motion hearing, he failed to do so. Accordingly, defendant did not comply with LSA-C.Cr.P. art. 709(A)(1).

Second, defendant did not include facts and circumstances showing a probability that Ms. Crayton would have been available at the time to which the trial was to be deferred. In fact, defense counsel admitted that Ms. Crayton could not be located at the time of the requested continuance and he did not make any assurances that she could be located in the future. Accordingly, defendant did not comply with LSA-C.Cr.P. art. 709(A)(2). For these reasons, we find no abuse of discretion in the trial court’s denial of defendant’s request for a continuance.

| ^Further, defendant has not shown how the denial of his requested continuance prejudiced him. In order to show he was prejudiced, defendant must demonstrate that Ms. Crayton’s testimony would have been favorable to the defense and that the trial results would possibly have been different if she had testified. Shannon, 10-580 at 14, 61 So.3d at 716. Defendant claims the fact that Ms. Crayton omitted defendant from her first two statements and then included him in her third statement could have been shown to be exculpatory and favorable to the defense on cross-examination. However, Ms. Crayton stated in her third statement that she omitted defendant from her first two statements out of fear of defendant’s threat to kill her. Thus, there was no showing that Ms. Cray-ton’s testimony would have been favorable to the defense. In fact, given Ms. Cray-ton’s statement that she did not tell police initially of defendant’s involvement in the murder because of his threats to kill her, it is likely that her testimony would have been unfavorable to defendant. Accordingly, defendant has failed to show how the denial of his motion for a continuance, which allegedly precluded him from procuring Ms.' Crayton as a witness, was prejudicial. Lastly, it is noted that of the thirteen continuances in this case, eight were at the request of the defense.

Accordingly, defendant’s argument that the trial court erred in denying his' motion for a new trial based on the trial court’s denial of his motion for a continuance is without merit.

Defendant also argues on appeal that the State’s failure to timely disclose that neither Christopher Lindsey nor Karra Crayton would testify at trial constituted a discovery violation under LSA-C.Cr.P. arts. 717-728 and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Contrary to defendant’s assertion, LSA-C.Cr.P. arts. 717-728 do not require the State to inform the defense of whether or not a certain witness will testify at trial. In fact, the State | isis not even required to provide the defense with a list of its witnesses. State v. Marks, 337 So.2d 1177, 1183 (La.1976). Additionally, it is noted that defendant was provided with the statements of Mr. Lindsey and Ms. Crayton. Accordingly, defendant has not shown any “discovery violation.”

Turning to defendant’s motion to sever, in his motion for a new trial, defendant argued that the severance should have been granted because defendant and Cedric Lewis had contradictory defenses. He averred that Cedric Lewis claimed that his DNA had been planted on the scene and that it was defendant who committed the murder, while defendant maintained that Cedric Lewis committed the crime. In his brief to this Court, defendant argues that the defendants should have been severed because the cross-examination conducted by Mr. Lewis’s attorney often harmed the points made by defendant’s attorney and because Mr. Lewis’s attorney wanted a statement played at trial, while defendant did not.

It is well established that motions pending at the commencement of trial are waived when the defendant proceeds to trial without raising as an issue the fact that the motions were not ruled upon. State v. Holmes, 06-2988, p. 80 (La.12/2/08), 5 So.3d 42, 94, cert, denied, — U.S. —, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009) (citations omitted).

Our review of the record in this case indicates that no explicit motion to sever was made in the trial court. On the second day of trial, co-defendant’s attorney sought introduction of the statements of Ms. Crayton due to her unavailability, but defendant’s attorney opposed their introduction. Then co-defendant’s attorney stated: “And the only way I could see to resolve that quandary, is to split the cases and allow us to go to trial first, Mr. Lewis, and have us go to trial first.” The court did not rule on this alleged motion to sever, but did rule that Ms. Crayton’s statements were inadmissible hearsay. In addition to the |14lack of a ruling on the alleged motion to sever, there was also no objection to the lack of a ruling. Accordingly, pursuant to Holmes, any alleged error related to the alleged motion to sever was waived.

Moreover, we find that defendant is not entitled to relief even if the motion to sever was not waived.

LSA-C.Cr.P. art. 704 provides:

Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Coe, 09-1012, p. 13 (La.App. 5 Cir. 5/11/10), 40 So.3d 293, 301, writ denied, 10-1245 (La.12/17/10), 51 So.3d 17 (citations omitted). A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Id. A denial of a motion to sever will not be overturned absent a clear abuse of discretion. Id.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Coe, 09-1012 at 13, 40 So.3d at 301. The defendant bears the burden of proof in a motion to sever. Id. The mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Id., 09-1012 at 13, 40 So.3d at 301-02. For defendants to be entitled to separate trials, prejudice must be shown. State v. Jackson, 03-883, p. 16 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied 04-1399 (La.11/8/04), 885 So.2d 1118.

| ,ñThe record indicates that defendant’s claim that he and his co-defendant had antagonistic defenses was unsubstantiated, in both his argument at trial and on appeal. At trial, the only reference to conflicting interests between the two co-defendants was made by the co-defendant’s attorney when he stated that he wanted Ms. Crayton’s statements to come into evidence, while defendant did not. There is no indication that defendant claimed that the two co-defendants blamed each other. In State v. Jackson, supra, this Court found that the two co-defendant’s defenses in a second degree murder trial were not mutually antagonistic because the defendant neither attempted to implicate his co-defendant as the shooter nor deny his own actions. Likewise, in State v. Collins, 10-0757, p. 24 (La.App. 4 Cir. 5/11/11), 65 So.3d 271, 287, writs denied, 11-1185 (La.11/23/11), 76 So.3d 1153 and 11-1719 (La.1/20/12), 78 So.3d 140, the Fourth Circuit found that the defendant was not entitled to a severance from his co-defendant in a second-degree murder prosecution where both defendants denied any involvement in the shooting, but neither blamed the other for the offense.

Similarly, in this case, defendant did not claim in the trial court that he and his co-defendant blamed one another. Thus, defendant and co-defendant’s defenses were not mutually antagonistic. Accordingly, the trial court did not abuse its discretion in denying the alleged motion to sever.

Consequently, the trial court did not abuse its discretion in denying defendant’s motion for a new trial on the grounds that the denials of the two aforementioned motions were erroneous.

1,«ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request.

The record reveals that the trial judge did not observe the mandatory 24-hour delay between the denial of defendant’s motion for a new trial and sentencing as required by LSA-C.Cr.P. art. 873. The trial judge denied defendant’s motion for a new trial on September 16, 2011, and imposed sentence on defendant that same day.

In State v. White, 404 So.2d 1202 (La.1981), the Louisiana Supreme Court stated:

Although LSA-C.Cr.P. art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.

White, 404 So.2d at 1204 (citation omitted).

Citing White, supra, this Court has found that when a defendant does not waive the 24-hour delay afforded by LSA-C.Cr.P. art. 873, and does not challenge the penalty imposed, the error may be harmless. State v. Jones, 07-271, pp. 10-11 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143,1149-50.

Although defendant in this case did not waive the delay for sentencing, he did not object to the sentence in the trial court, nor raise any issue regarding his sentence on appeal. Accordingly, we find that no corrective action is necessary concerning this issue.

| ^CONCLUSION

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

AFFIRMED

      . At trial, Ms. Porter first testified that she saw two intruders in her house. However, she later retracted that and testified, in accordance with her police statement, that she saw just one intruder, a black male with dreadlocks. This statement was introduced into evidence at trial.

      . When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate 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.

      . See also, State v. Morgan, 45,110, pp. 1-8 (La.App. 2 Cir. 4/14/10), 34 So.3d 1127, 1130-34, writ denied sub nom., State ex rel. Morgan v. State, 10-1201 (La.5/27/11), 63 So.3d 992, in which the defendant’s three convictions of aggravated rape based solely on DNA evidence were upheld.

      . LSA-R.S. 15:438 provides: "The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      . The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bazley, 09-358, p. 17 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039.

      .In his motion for a new trial, defendant argued that the trial court erred in denying his motion for continuance and his motion to sever, and that the testimony and evidence were contradictory as to whether defendant was at the scene of the crime.

      . Rule 2-12.4 provides in pertinent part: “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”

      . All three of Ms. Crayton’s statements to the police were proffered by defendant.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Terrance T. FAVORITE.
    No. 11-KA-1075.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Sunny Funk, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Terrance T. Favorite (“Favorite”), appeals his conviction of possession of a firearm while in possession of marijuana, in violation of La. R.S. 14:95(E) (count one) and possession of cocaine in violation of La. R.S. 40:967(C) (count two).

In the bill of information, Kirk Favorite and Lance Powell were also charged with possession of cocaine. On December 6, 2010, the State amended the bill to change the spelling of defendant’s name to “Terence Favorite” and to correct his date of birth. The matter before us relates only to Terence Favorite. The bill of information was amended again by the State on February 2, 2011, at which time the State entered a nolle prosequi as to Terence Favorite in count two of the bill of information, and the date of the offense in count one was amended to reflect May 25, 2010.

IsOn February 2, 2011, Favorite proceeded to trial, but the court declared a mistrial when the jury was deadlocked after deliberations. A second trial com-meneed on July 7, 2011, following which a twelve-person jury found him guilty as charged of possession of a firearm while in possession of marijuana.

On July 11, 2011, Favorite filed a motion for acquittal notwithstanding the verdict and a motion for new trial, which were denied on the same date. Also on that date, Favorite was sentenced to five years of imprisonment at hard labor. Sentence was imposed without benefit of parole, probation, or suspension of sentence, and was ordered to run concurrently with the sentences imposed in Case Nos. 10-1861 and 11-2946 and with any other sentence defendant “may be serving.” Favorite immediately filed a motion to reconsider sentence and a motion for appeal. On July 12, 2011, the motion to reconsider sentence was denied, and the motion for appeal was granted. This appeal follows.

At trial, Detective Ashton Gibbs of the Gretna Police Department applied for and received a search warrant for two residences located at 580 and 582 Behrman Highway, which shared a common wall, in Jefferson Parish. At that time, he and Detective Curt Johnson of the Plaque-mines Parish Sheriffs Office were assigned to a multi-jurisdictional task force called the Major Crimes Task Force. The Task Force involved law enforcement from Jefferson, Orleans, and Plaquemines Parishes, and sought to rebuild the various intelligence bases regarding certain criminals who were displaced following Hurricane Katrina. On May 24, 2010, Detectives Gibbs and Johnson conducted undercover surveillance of the two residences in an unmarked vehicle in an attempt to gather additional intelligence. During the daytime, the detectives observed the residences from a parking lot and used binoculars to aide in their surveillance. For a few hours, they observed people coming to and from the residences by foot and by vehicle and having 14conversations with some of the occupants that were loitering outside. Many of the visitors went inside the residences for a brief amount of time and then departed. Favorite, whom Detective Gibbs identified in court, was one of the individuals the detectives observed outside the residence. Additional surveillance was conducted on the residences on the following day, at which time Favorite was again observed outside of the residence at 580 Behrman Highway.

Detective Gibbs testified that he saw Favorite meet with three Hispanic males a few residences away at 576 Behrman Highway. After a conversation, Favorite returned to the residence at 580 Behrman Highway for a brief time and exited the residence carrying an object that was covered with a black shirt. Detective Gibbs could not determine what the object was, but saw him enter a vehicle, which was parked in front of the residence, with the object. The object was long and required two hands to carry. The vehicle, along with the three Hispanic males, left 576 Behrman Highway, with Favorite sitting in the front passenger seat.

Detectives Gibbs and Johnson followed the vehicle, a Dodge Stratus, to continue their investigation. Detective Gibbs testified that they followed the vehicle less than two miles away to 161 Fredrich’s Road, an area he knew to be “King Fred-rieh’s Apartments.” Detective Gibbs testified that he had been an officer for seven years and had conducted a number of illegal narcotics investigations at this apartment complex. When the vehicle pulled into a parking lot, the three Hispanic males remained inside, while Favorite exited and went to the second building to a breezeway, where he met with an unknown individual who was standing there. They had a brief conversation lasting a few seconds. According to Detective Gibbs, Favorite handed what appeared to be U.S. Currency to the unknown individual and received an object from the individual in return. Detective Gibbs did not know what the object was. Favorite returned to the | ¿passenger's side of the vehicle, and they left immediately. Detective Johnson also testified that he believed that he witnessed a hand-to-hand transaction.

The detectives continued to follow the vehicle for about “a quarter mile or so” then elected to stop the vehicle. Detective Johnson activated his emergency lights and siren, and the driver pulled over into a parking lot. Detective Johnson, who was driving the unmarked unit, approached the driver’s side of the vehicle, while Detective Gibbs approached the passenger’s side. Favorite was seated in the front passenger’s seat.

Detective Gibbs testified that he heard Favorite tell him he had a gun. Once Detective Gibbs got closer, he noticed that Favorite had both of his hands on an AK47 style assault rifle, which was in his lap. Detective Gibbs explained that the gun was positioned between Favorite’s legs with the barrel pointed down towards the floorboard. Detective Gibbs advised Detective Johnson of the gun, and Detective Johnson covered him as he retrieved the weapon. All of the occupants had their hands in the air. Detective Gibbs explained that the passenger’s side window was down. He told Favorite to keep his hands up and to hand the rifle to him out of the window with the butt end of the weapon facing the detective and the barrel end facing down to the floorboard of the vehicle. After Detective Gibbs retrieved the weapon, he took the loaded rifle to the unmarked unit, where he rendered the rifle safe by taking out the magazine and removing the rounds from the chamber. Detective Johnson remained with the vehicle and testified that he did not see anyone put their hands down or make any quick movements as he watched. Detective Gibbs testified that he never saw Favorite do anything suspicious with his hands in an attempt to conceal or discard evidence. Detective Gibbs said that, when he returned to the vehicle, he and Detective Johnson began removing | ¿occupants from the vehicle for officer safety. Pat downs were conducted on the occupants, but no further weapons were found.

When he returned to the vehicle, Detective Gibbs noticed the front passenger’s door was still open. He was able to observe four Ziploc style plastic bags on the front passenger’s floorboard. He described the bags as containing “green leafy vegetable matter,” which he believed was consistent with marijuana. A field test was conducted, and the presence of marijuana was confirmed. At trial, Detective Gibbs demonstrated where the four bags were located in the vehicle, and he agreed that the four bags were located directly in front of the passenger’s seat. Detective Gibbs advised Favorite that he was under arrest and advised him of his Miranda rights. Detective Gibbs asked Favorite if the marijuana in the vehicle belonged to him, and he denied ownership of it. He testified that Favorite told him he purchased the rifle from a pawn shop for $800, but he could not identify the pawn shop. Favorite told the detective that he had the paperwork for the rifle at his residence at 580 Behrman Highway and that he was disabled and unemployed. Detective Gibbs said that Favorite claimed he was at the King Fredrich’s Apartments just prior to the stop because he had slept overnight at his aunt’s apartment and had called the Hispanic males to pick him up because he needed a ride. However, he could not provide Detective Gibbs with the number of his aunt’s apartment.

A computer inquiry revealed that there was a traffic attachment for the driver of the vehicle, Adrian Banagas Mila. He was arrested, and Detective Johnson searched his person. The search of his wallet revealed a Ziploc style plastic bag with green leafy vegetable matter consistent with marijuana, the presence of which was confirmed by testing. Detective Gibbs testified that this plastic bag had a yellow tint and looked different than the bags found on the |7floorboard. The driver denied ownership of the marijuana found on the floorboard. The two backseat occupants were released on the scene.

Although both the driver and Favorite denied ownership of the marijuana on the floorboard, they were both arrested for possession of that marijuana. Neither detective saw how or when the drugs got on the floorboard, but they believed that the marijuana could have been for Favorite or for the driver because “the reach of it, and the basic constructive possession.”

A stipulation was entered into at trial regarding the testimony of Raven Barrios, who would have been qualified as an expert in chemical analysis had she been called to testify. It was stipulated that she tested the four bags and found the presence of marijuana. The gross weight of the bags was 3.7 grams. It was also provided that she tested the one bag from the driver’s wallet and confirmed the presence of marijuana. This gross weight was 1.38 grams.

On appeal, Favorite contends that this case rested solely on circumstantial evidence and was insufficient to support his conviction. He argues that, even though

the marijuana was in plain view on the floorboard next to where he was seated, it was possible he did not notice it. Favorite points out that nothing to indicate drug use was found with him, but the driver had marijuana in his wallet. He further notes that the officers did not testify that they saw more than one object exchanged at the apartment complex, but four bags of marijuana were found, and none of which was on his person. Favorite contends that he was fully cooperative; that he made no effort to conceal anything; that the officers did not see him exercise any dominion and control over the marijuana; and that there were three other passengers in the car. Favorite claims that not all reasonable hypotheses of innocent activity were eliminated.

laThe constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” 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 court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is not lathe function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law.

La. R.S. 14:95(E) provides, in pertinent part, the following:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.

In order to prove a violation of La. R.S. 14:95(E) when a defendant is found to be in constructive possession of a firearm while simultaneously in possession of a controlled dangerous substance, the state must prove that there is a nexus between the firearm and the controlled dangerous substance. “Proof of this nexus is not required where the defendant uses or has actual possession of the firearm, or has the firearm within his immediate control.” In the present case, the State presented evidence that Favorite was in actual possession of the rifle, part of which was sitting on his lap, when the vehicle he was in was stopped by the officers. Favorite admitted as Detective Gibbs approached that he had a firearm, and Detective Gibbs observed it in his lap. Further, Favorite is not challenging the possession of the rifle, but, rather, he alleges he did not have possession of the marijuana found on the floorboard of the vehicle.

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. A determination of whether there is | insufficient “possession” of a drug to convict depends on the particular facts of each case.

A person can be found to be in constructive possession of a controlled substance if the State can establish that the person had dominion and control over the contraband, even in the absence of physical possession. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, the supreme court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. Further, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug.

Because of where Favorite was seated in the vehicle, the jury could have found that he had knowledge of, and access to, the drugs that were found. The marijuana was located where Favorite’s feet had been and near where the barrel of the rifle, which he was holding partially in his lap, would have been positioned. Further, although there was no evidence of recent drug consumption, the detectives testified that, just prior to the stop, Favorite had engaged in a hand-to-hand transaction and received an object in return for the money he handed to the unknown individual. The detectives did not see any movements by the occupants in the car once the vehicle was stopped. Detective Johnson was covering the ^vehicle, known to have at least one weapon, and was watching the occupants closely as their hands were in the air. Although marijuana was found on the driver of the vehicle, the State presented evidence that the packaging of this marijuana was different than the packaging of the four bags of marijuana found on the floorboard. Although Detective Gibbs testified that there was no evidence that the vehicle belonged to Favorite or that he was in control of the vehicle, such does not preclude a finding that Favorite had control of the drugs found by his feet. Although four people were in the vehicle when it was stopped, Favorite was in the position closest to the marijuana and was the one seen participating in the hand-to-hand transaction just prior to the stop.

Finally, although the detectives also arrested the driver for possession of the marijuana after no one claimed ownership to it, jurisprudence recognizes joint possession. This Court has affirmed a defendant’s conviction of possession in a case where the drugs were found in a clear plastic fuse box in plain view on the hump of the floorboard between the driver’s seat and the passenger’s seat. We found that the defendant, as the front seat passenger, was within an arm’s reach of the drugs and, thus, had easy and immediate access to them and concluded that, given those facts, a rational trier of fact could have found beyond a reasonable doubt that the defendant was in possession of the narcotics and that he knowingly possessed them.

Based on the foregoing, we find that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found, beyond a | ^reasonable doubt, that Favorite was guilty as charged. This assignment of error is without merit.

Favorite also argues that this case includes errors patent because the trial court failed to make rulings on his motions for acquittal and new trial before sentencing him, and, therefore, his sentence should be vacated. He contends that there were no rulings nor any waiver of sentencing delays before his sentence was imposed. The State responds that this claim is based upon an incomplete appellate court record and filed a Motion to Supplement the Record. The supplemental record showed that the motions for new trial and for acquittal notwithstanding the verdict were both denied. Defendant then waived delays for sentencing. Accordingly, this assignment of error is without merit.

Our error patent review reveals that Favorite did not receive a fine when sentenced. La. R.S. 14:95(E) provides for a fine of “not more than ten thousand dollars.” This Court has held that a statute, providing for a fine of “not more than” a specified amount, does require a mandatory fine. However, we have noted that the matter is not free from doubt.

This Court, while finding the omission of the imposition of a fine in such cases to be error has, as a matter of discretion, refrained from amending the defendant’s sentence to impose a fine. We find that to be the proper course of action in this case, where Favorite is represented by the Louisiana Appellate Project on appeal and appears indigent.

Finally, the commitment incorrectly reflects that the State “nolprossed” count two on February 21, 2011. According to the bill of information, the correct |isdate was February 2, 2011. The district court is directed to make the entry in the commitment reflecting this correction. Furthermore, we direct the clerk of court to transmit the original of the minute entry/commitment to the officer in charge of the institution to which Favorite has been sentenced and to the legal department of the Department of Public Corrections and Safety (DOC).

For the foregoing reasons, the conviction is affirmed. We remand this matter for correction of the minute entry/commitment as ordered.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also, State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. McFarland, 07-26 (La.App. 5 Cir. 5/29/07), 960 So.2d 1142, 1146, writ denied sub nom., State ex rel. McFarland v. State, 07-1463 (La.1/7/08), 973 So.2d 731.

      . Ortiz, supra; McFarland, supra.

      . State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

      . State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

      . Id.

      . Id.

      . State v. Blanchard, 99-3439, p. 10 (La.1/18/01), 776 So.2d 1165, 1174.

      . Id.

      . State v. Major, 03-3522, p. 7 (La.12/1/04), 888 So.2d 798, 802.

      . Id.

      . Id.

      . State v. Toups, 01-1875, p. 4 (La.10/15/02), 833 So.2d 910, 913.

      . Toups, supra (quoting State v. Trahan, 425 So.2d 1222 (La.1983)); See also, State v. Gordon, 93-1922 (La.App. 1 Cir. 11/10/94), 646 So.2d 995, 1002.

      . See, State v. Smith, 257 La. 1109, 1114, 245 So.2d 327, 329 (1971); Also, e.g., State v. Ankrum, 573 So.2d 244 (La.App. 1 Cir.1990).

      . State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

      . See, State v. Clemons, 01-1032 (La.App. 5 Cir.2/26/02), 811 So.2d 1047, writ denied, State v. Phillips, 02-0866 (La.11/22/02), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003).

        .State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626.