author: CLARENCE E. McMANUS, Judge. JOHNSON, J.,

text:
    STATE of Louisiana v. James VEAL.
    No. 11-KA-44.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

i statement of the case

On April 13, 2009, the Jefferson Parish District Attorney’s Office charged defendant, James Veal, by bill of information with two counts of distribution of cocaine (Counts I and II), in violation of LSA-R.S. 40:967(A). Defendant pled not guilty to the charges on April 14, 2009.

On May 12, 2009, defendant filed omnibus pre-trial motions. On September 30, 2009, the first day of trial, defendant filed a written motion to declare LSA-C.Cr.P. art. 782(A) unconstitutional because it allows for a non-unanimous verdict in a felony trial. On the same day, before trial commenced, the trial court denied defendant’s motion in open court and in writing.

Trial commenced on October 1, 2009. The following testimony was elicited at trial. On September 30, 2008, Deputy John Bowers and Agent Joseph Gueldner, who were working in an undercover narcotics operation, were involved in a drug transaction, which resulted in the purchase $40 worth of crack cocaine from |3defendant. At trial, Agent Gueldner testified that he and Deputy Bowers signaled defendant from their vehicle, which was a truck, at the intersection of Glendella Drive and Bishop Drive, in Avondale, and asked him for $40 worth of crack cocaine. Subsequent to speaking with the officers, defendant jumped in the bed of their truck. Defendant directed the officers to another location near the intersection of Georgetown Drive and Federal Drive, where Agent Gueldner gave defendant $20 to return with crack cocaine. Defendant returned with $20 worth of narcotics, Agent Gueldner turned over the remaining $20, and defendant again left and later returned with another $20 worth of crack cocaine. The officers then dropped defendant off at his residence located at 244 Church Street. Later that day, Agent Gu-eldner identified defendant in a photographic lineup presented by Detective Brian Rico.

Deputy Bowers testified that he rode as a passenger with Agent Gueldner when he purchased the $40 worth of crack cocaine from defendant on September 30, 2008. However, he admitted that he only observed the transaction and he did not give anything to or receive anything from defendant. He further testified that defendant referred to himself as “Big Jim.” He also identified defendant in a lineup presented to him by Detective Brian Rico.

Detective Brian Rico testified that on September 30, 2008, he participated in the narcotics investigation, which involved defendant. He further stated that he and Sergeant Joseph Williams, Sergeant Cory Wilson, and three other agents, Lisa Cal-pagno, James Matthews, and Williams Burns, established surveillance, which included video and audio, in the area of Glendella Street, “Federal,” and “Georgetown,” which is in the immediate area of Avondale. He observed and listened to the undercover officers’, Gueldner and Bowers, transaction with defendant. The evidence was field tested by Sergeant Bowers and it tested positive |4for the presence of cocaine. After the transaction was complete and the evidence secured, the videotape and the cocaine were then turned over to Detective Rico.

In addition, Detective Rico testified that he compiled the photographic lineups that were given to Agent Gueldner and Deputy Bowers, separately. He indicated that both Agent Gueldner and Deputy Bowers positively identified defendant in their separate lineups. After receiving a positive identification, Detective Rico obtained a warrant for defendant’s arrest.

On November 13, 2008, Agent Gueldner, working alone, purchased another $20 worth of crack cocaine from defendant on Glendella Drive. After defendant returned with the cocaine, he placed it on the hood of the vehicle, and Deputy Gueldner agreed to give defendant a small portion of the narcotics he purchased from defendant; however, he never actually gave defendant any cocaine.

Sergeant Joseph Williams also testified that he supervised the narcotics investigation involving defendant on November 13, 2008. After the transaction was complete, Sergeant Williams took possession of the narcotics and videotape from Agent Gueld-ner and logged it into evidence in the evidence and property division. In addition, he applied for a second warrant for defendant’s arrest in reference to the November 13, 2008, drag transaction.

Daniel Waguespack, an expert in forensic science, testified that he tested two samples (State’s Exhibit 3 and 4), and further concluded that the substances were “in fact” cocaine.

Defendant testified that he was in Gateway Rehabilitation Center, at the time he was arrested, because he was having problems with drugs when he was arrested for the two counts of distribution of cocaine. His parole officer sent him there as a condition of his parole. He admitted to numerous drug convictions involving [ ¡¡distribution and also a conviction for simple burglary of a car. He also admitted to being an addict to heroin and cocaine since late 1980.

In addition, defendant honestly confessed to distributing the cocaine to Agent Gueldner and Deputy Bowers in order to feed his own addiction. He also attested that he received drugs as payment. James Veal, Sr., defendant’s father, also testified that his son had a drug problem.

Darryl Chandler, a certified substance abuse counselor for Gateway Recovery System, testified that defendant completed the civilian program and was arrested while he was waiting for housing. Defendant completed 97 days of the 100 day program.

On October 1, 2009, a 12-person jury found defendant guilty as charged on both counts of distribution of cocaine. The jury was polled, and the verdict was guilty as charged 11 to 1, on both counts. Subsequently, on October 8, 2009, defendant filed written motions for a new trial and post-judgment verdict of acquittal. The same day, after a hearing on the motions, the court denied both motions.

On October 5, 2009, prior to sentencing, the State filed a multiple bill of information, alleging that defendant was a fourth felony offender. On October 20, 2009, defendant was sentenced to serve 20 years at hard labor on Counts I and II concurrently, with credit for all time served. In addition, the first two years of each sentence were imposed without the benefit of parole, probation, or suspension of sentence. Defendant then gave an oral notice of his intent to file a notice of appeal and a motion to reconsider sentence.

On November 20, 2009, following sentencing, a hearing on the multiple offender bill of information occurred and the trial court took the matter under advisement. On January 22, 2010, defendant was adjudicated to be a second | ffelony offender on Count I, pursuant to a plea agreement. The trial court then vacated the previous sentence on Count I, and defendant was re-sentenced to 20 years at hard labor, without the benefit of probation, or suspension of sentence.

Defendant filed a timely written notice of appeal on January 27, 2010. Defendant now appeals his convictions. For the following reasons, we affirm defendant’s convictions for two counts of distribution of cocaine.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges that the trial court erred in denying his challenge to the constitutionality of LSA-C.Cr.P. art. 782(A). Defendant argues that his two convictions, both by a jury verdict of eleven to one, are invalid because La. Const, art. I, § 17(A) and LSA-C.Cr.P. art. 782(A) violate the Sixth and Fourteenth Amendments.

On September 30, 2009, defendant filed a motion to declare article 782(A) unconstitutional because it allowed for a non-unanimous verdict in a felony trial. On that same date, September 30, 2009, the trial court denied defendant’s motion. LSA-C.C.P. art. 1880 provides that if a statute is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard. While the attorney general is not a necessary party that must be joined in the suit, he must be served in actions seeking a declaration of unconstitutionality of a statute. Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864.

In this case, the attorney general was not notified and served with a copy of defendant’s motion filed in the trial court. Since defendant did not comply with the correct procedure of notifying the attorney general of his challenge to the constitutionality of the statute, we find this issue is not properly before this Court on appeal. Thus, we decline to address the merits of this assignment of error.

\ .ERROR 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. 5 Cir.1990). The following matters were discovered.

First, both the original commitment and transcript are inconsistent. The commitment reflects that defendant was advised of the delays for appeal and post-conviction relief and the transcript from the original sentencing is silent. If a discrepancy exists between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). LSA-C.Cr.P. art. 930.8 requires the trial court to advise the defendant that he has two years from the date his conviction and sentence become final to apply for post-conviction relief.

The transcript from defendant’s multiple offender proceedings reflects that he was advised of the delays for post-conviction relief although the multiple offender commitment is silent. As the transcript of the multiple offender hearing prevails, it appears that defendant was properly notified of the delays for post-conviction relief. See Lynch, supra. See also State v. Harris, 01-1380, p. 4 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 390 (LSA-C.Cr.P. art. 930.8 does not require a trial court to advise the defendant of the time limitations for filing post-conviction relief more than once); State v. Young, 08-387, p. 3 (La.App. 5 Cir. 9/16/08), 996 So.2d 302, 304, writ denied, 09-631 (La.1/8/10), 24 So.3d 863, (where this Court held that the trial court properly advised defendant of the delays for post-conviction relief on remand at habitual offender sentencing).

Next, neither the habitual offender transcript nor the commitment reflects that defendant is to receive credit for time served. However, failure of a trial court to give credit for time served requires no corrective measures, as it is self-operating | .^pursuant to LSA-C.Cr.P. art. 880 even on a silent record. State v. Pascual, 98-1052, p. 15 (La.App. 5 Cir. 3/30/99), 735 So.2d 98, 105.

Finally, the habitual offender sentence is illegally lenient as the trial court failed to include parole among the benefits withheld during the first two years as required by the underlying statute, LSA-R.S. 40:967(A). Although the trial judge failed to mention the restriction, such conditions are deemed to exist by operation of law, under LSA-R.S. 15:301. State v. Williams, 04-1016, p. 11 (La.App. 5 Cir. 3/29/05), 901 So.2d 527, 533, writ denied, 05-1080 (La.12/9/05), 916 So.2d 1056. (citation omitted). Therefore, we find that no corrective action is necessary.

Accordingly, defendant’s convictions of two counts of distribution of cocaine and his adjudication as a second felony offender are affirmed. Further, defendant’s sentences are affirmed.

AFFIRMED

JOHNSON, J., concurs with reasons.

JOHNSON, J.,

concurs with reasons.

hi concur with the majority in affirming defendant’s convictions and sentences, but would address defendant’s sole assignment of error, which is the constitutionality of La.C.Cr.P. art. 782. I disagree with declining to address this assignment of error on the basis the Attorney General was not served pursuant to La. C.C.P. art. 1880.

In Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/04), 646 So.2d 859, 864, the Louisiana Supreme Court stated that when the constitutionality of a statute is assailed in a declaratory judgment action the attorney general must be served with a copy of the proceedings; however, in all other proceedings in which the constitutionality of a statute is assailed, the attorney general should be served.

In the present case, defendant filed a motion to declare Article 782 unconstitutional as part of the criminal proceedings against him. I believe it is questionable whether defendant’s motion is a “declaratory judgment action” for purposes of Article 1880 in which service on the attorney general is required, as opposed to an “other proceeding” where the attorney general should be notified. Nonetheless, I believe any failure to notify the attorney general is harmless error since the Article was declared constitutional and, as such, the Attorney General was not prejudiced in any way. Because the error is harmless, I would address defendant’s assignment of error despite |2his failure to notify the attorney general of his challenge to the constitutionality of the Article.

In his sole assignment of error, defendant argues the trial court erred in denying his challenge to the constitutionality of Article 782(A), which allows for a non-unanimous jury verdict for offenses punishable by hard labor. He contends Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), which held that the Constitution does not forbid states from securing convictions by non-unanimous verdicts, is wrong. Defendant maintains State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.2d 1142, writ denied, 10-934 (La.11/19/10), 49 So.3d 396, is before the United States Supreme Court on a writ of certiorari for reconsideration of Apodaca, and its holding may be overturned. However, after defendant filed his brief with this Court, the Supreme Court denied writs in Barbour. Barbour v. Louisiana, -U.S.-, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). Thus, the Supreme Court declined to reconsider its holding in Apodaca.

The Louisiana Supreme Court has upheld the constitutionality of a non-unanimous 12-person jury verdict for non-capital hard labor offenses. State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738. An intermediate appellate court is obliged to follow the precedent established by the Louisiana Supreme Court. State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89, 10-2752 (La.5/20/11), 63 So.3d 974. Thus, the trial court did not err in denying defendant’s motion to declare Article 782 unconstitutional and instructing the jury that a non-unanimous verdict was sufficient to convict. For this reason, I would affirm defendant’s convictions and sentences.

      . LSA-C.Cr.P. art. 880 states in its entirety: "A defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence. Under the provisions of this Article, no defendant shall receive more than thirty days of jail credit for any calendar month while serving a term for consecutive sentences.”


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brian CHAPPELL.
    No. 11-KA-148.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

| ?Defendant/appellant, Brian Chappell (“Chappell”), appeals his conviction and sentence of attempted receiving stolen property; namely, a 2008 Fontaine lowboy trailer.

Chappell was originally charged with one count of receiving stolen property valued at more than $500 in violation of La. R.S. 14:69, and with one count of theft by fraud in violation of La. R.S. 14:67. He entered a plea of not guilty on each charge. After a trial, the jury returned a responsive verdict of attempted receiving of stolen property as to Count 1, and a verdict of not guilty as to Count 2, theft by fraud. Chappell was sentenced to one year in the Department of Corrections, and he was ordered to pay restitution in the amount of $28,488.32. Chappell appeals the conviction and sentence.

FACTS

In 2003, Southland Idealease (“South-land”), located in Gary, Louisiana, purchased a Fontaine lowboy trailer used for hauling heavy equipment. Shortly afterward, Southland entered into a three-year lease on the trailer with Leroy Williamson in Gonzales, Louisiana. On April 15, 2004, the trailer was stolen from |sMr. Williamson’s property. Mr. Williamson notified police, who made a report of the theft.

The trailer was not located until February 2006, when Louisiana State Trooper Joseph Cuccia of the Insurance Fraud Auto Theft Unit received a call informing him that a trailer without a VIN plate was found at the St. Bernard landfill. Trooper Cuccia went to the site and found a Fon-taine lowboy trailer which, after investigation, was discovered to be the same trailer stolen from Mr. Williamson’s property in 2004.

When Trooper Cuccia got to the scene he spoke with Chappell. Chappell told the Trooper that the trailer was stolen from the yard of his company, Brian’s Towing. Chappell explained that he was driving along 1-310 a few days earlier when he spotted the trailer on the highway. He called state police. However, they were unable to investigate because it was the day before Mardi Gras. Chappell followed the trailer to the St. Bernard Landfill and called St. Bernard authorities, who impounded the vehicle until a state trooper could investigate. Chappell also told Trooper Cuccia the trailer had no VIN plate.

Believing that Chappell was telling the truth, Trooper Cuccia allowed Chappell to tow the trailer back to his business in Laplace, Louisiana.

Later in the investigation, Trooper Cuc-eia visited with Chappell, who stated that he had towed the trailer from St. Rose Travel Center in St. Rose, Louisiana, to Brian’s Towing in Laplace. He was told by a representative of the St. Rose Travel Center that the trailer had been abandoned. The trailer was stolen from Brian’s Towing in Laplace, Louisiana. Chap-pell gave the Trooper a form generated by Brian’s Towing to show that, on March 20, 2005, he towed a lowboy black trailer from the St. Rose Travel Center located at 1045 Airline Highway in St. Rose at the request of Shanda Richards.

|4The driver of the trailer told St. Bernard Parish Police officers that the trailer belonged to Steven Ford, owner of Thibo-daux Lumber. As part of his investigation, Trooper Cuccia went to talk to Steven Ford. Ford stated that he intended to purchase the trailer from Kenneth Alexander. Ford showed the trooper three checks made out to Kenneth Alexander for the purchase of the trailer. The first was dated January 29, 2005 for $3,500; the second was dated February 29, 2005 for $3,500; and the final check in the amount of $1,000 was dated March 11, 2005. All three checks had cleared the bank and were entered as exhibits in the record before us. However, when Alexander did not produce the title, registration, or any other paperwork, Ford stopped making payments on the trailer.

Because of the conflicting dates and questions as to where the trailer was actually located on March 20, 2005, Trooper Cuccia went to St. Rose Travel Center to confirm Chappell’s story. The trooper discovered Chappell’s assertion that he towed the trailer from St. Rose was not truthful. Further, Chappell did not file an official report of a stored vehicle when he towed the trailer as required by law.

On cross-examination, Trooper Cuccia testified that the trailer had a “switched” license plate, but he could not be positive from where the plate originated. No action was taken against the driver of the trailer or Steven Ford. However, Kenneth Alexander was subsequently arrested. Trooper Cuccia also testified that, although Ford claimed to own the trailer after the purchase from Alexander, no in-dicia of his ownership, such as a title, registration, or brake tag, was discovered. According to official records, Southland was the true owner of the trailer.

Jodie Teuton, a part owner and the attorney for Southland, testified that the trailer in question was owned by South-land. Ms. Teuton offered the title as proof |sof that fact. When the trailer was stolen, Southland received an insurance settlement of $10,000. After the trailer was recovered, Southland sold it to Steven Ford for $34,500. Ms. Teuton stated that Southland actually made a profit on the trailer.

Connie Chappell, Chappell’s ex-wife, also testified at trial. She testified that, during the time frame of the incidents relevant to this matter, she was still married to Chappell, and she was also working ■with him at Brian’s Towing. Ms. Chappell was the office manager. In that capacity, she answered the phones, dispatched the drivers, did paperwork on the vehicles, and did the timekeeping and payroll. Ms. Chappell explained that the normal procedure when a vehicle was towed into storage was to write a tow ticket that included the year, make, model, color, and VIN number. All that information would then be reported on an “Official Report of a Stored Vehicle” (“ORSV”) form to Baton Rouge. According to law, that form must be filed within three days of the towing. After the form was processed in Baton Rouge, the towing company would be informed of the titled owner. Ms. Chappell testified that either she, or Chappell’s son, would complete the form. However, Ms. Chappell also testified that she did not prepare a form on the trailer at issue herein.

Ms. Chappell’s testimony is that, when she got to the towing yard, the trailer was there. She asked Chappell from where it came, and he said he purchased it from Kenneth Alexander. He never mentioned St. Rose Travel Center until much later after the incident in the St. Bernard landfill. When the trailer was towed back to Brian’s towing, Chappell instructed his wife to complete and file an ORSV form.

Patricia Farlough, the director of store operations for St. Rose Travel Center, also testified at trial. She stated that St. Rose always uses Clement’s Towing ^Service. She has never heard of Brian’s Towing, and she further testified no one named Shanda Richards has ever been employed with St. Rose. Her exact testimony regarding the document given to Trooper Cuccia by Chappell representing a towing ticket for the trailer from St. Rose was that it is “totally bogus.”

Chappell testified at trial. He stated that he maintains a storage facility at his place of business, Brian’s Towing. Chap-pell denied knowing Kenneth Alexander or taking any money from him.

Chappell also testified that, in March of 2005, his former wife, Connie Chappell, called him to say that she was dispatching a truck to Riverbend Truck Stop to pick up several abandoned vehicles. One of those vehicles was the trailer. That was the first time he saw the trailer. He explained that Riverbend Truck Stop is directly across the street from the St. Rose Travel Center, and the manager at the time was Shanda Richards. Chappell testified that he occasionally did work for St. Rose and had once towed two expensive boats for St. Rose.

Chappell stated that, in February of 2006, he and his wife were riding in a tow truck when they spotted the trailer on the highway. Chappell called the State Police several times from his cell phone. However, it was the day before Mardi Gras, and there were no officers available to assist him that day. Consequently, Chappell followed the trailer to St. Bernard Parish and notified officials there. The trailer was impounded until the State Police could conduct the investigation.

On cross-examination, Chappell admitted he told Trooper Cuccia that he towed the trailer from St. Rose, but he misspoke; it was actually from Riverbend. Chappell also testified that he called Trooper Cuccia about a week later to correct the mistake.

[7Chappell further testified that he has a prior conviction for receiving stolen property and was arrested for stalking his ex-wife.

LAW AND ANALYSIS

Chappell assigns three errors for our review in this appeal. He asserts that trial counsel was ineffective for failing to object to testimony and argument regarding Chappell’s prior arrests; the evidence is insufficient to uphold the conviction; and the restitution ordered is excessive and/or illegal.

Chappell argues the State failed to prove that he was guilty of attempted illegal receiving of stolen things worth more than $500. Chappell contends that the only evidence that implicates him is (1) the testimony of Mr. Ford; (2) the testimony of Ms. Chappell; and (8) 'Chappell’s own insistence that he towed the trailer from St. Rose Travel Center as opposed to the Riverbend Truck Stop. Chappell contends that the testimony .of Mr. Ford and Ms. Chappell lacks credibility, as neither of them could “keep their stories straight.” Furthermore, Chappell argues that his insistence that he towed the trailer from St. Rose Travel Center was merely a mistake, which he finally realized and tried to correct.

Chappell also makes the argument that had he not called the police, Southland would not have recovered the trailer, and Mr. Ford would likely still be in possession of the trailer “failing to pay anyone for using it, with no valid title, no bill of sale, no brake tag, an illegal license plate and no insurance.” Chappell concludes that the State did not meet its burden in this case; thus, the conviction should be set aside.

|sThe 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. Both the direct and circumstantial evidence must be sufficient to support the conclusion 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 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 reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

Chappell was charged with illegal possession of a stolen thing valued over $500, a violation of La. R.S. 14:69. In order to obtain a conviction for this offense, the State must prove beyond a reasonable doubt that defendant 1) intentionally possessed, procured, received or concealed, 2) anything of value, 3) which had been the subject of any robbery or theft, 4) where the circumstances indicate that the offender knew or had good reason to believe that the thing was the subject of these offenses, and that 5) the value of the item stolen exceeded $500.

|9The jury found Chappell guilty of the responsive verdict of attempted illegal possession of a stolen thing valued over $500. An attempt occurs when the offender, having the specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object.

Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.

In his arguments to this Court, Chappell is attacking the credibility of the witnesses and attempting to bolster his own trial testimony. This Court has stated that 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 the 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.

The jury chose to believe the testimony of the State’s witnesses instead of that of Chappell. Based on the foregoing testimony, the elements of the crime of possession of a stolen thing valued over $500 were established at trial. Additionally, the elements of the responsive verdict of attempted possession of a stolen thing valued over $500 were established at trial. Under these circumstances, there was adequate evidence under the Jackson standard to establish that the | inChappell knowingly and intentionally possessed the stolen trailer. This assignment is without merit.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Chappell argues that his defense counsel failed to object during cross-examination when the State questioned Chappell regarding his twenty-two previous arrests. Chappell further contends that defense counsel failed to object during the State’s closing argument and rebuttal when the prosecutor again referred to Chappell’s twenty-two arrests and argued that he was “previously found guilty for this same exact crime but expected the jury not to believe he was guilty of this one.” Chap-pell contends that “this inadmissible evidence and testimony had the ultimate result of causing the jury to convict.” Thus, Chappell argues that he should be entitled to a new trial.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § IB of the Louisiana Constitution of 1974. In order to show ineffective assistance of counsel, defendant must demonstrate that 1) his attorney’s performance was deficient, and 2) he was prejudiced by the deficiency. An error is prejudicial if it was so serious as to deprive defendant of a fair trial, or “a trial whose result is reliable.” In order to show prejudice, defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. When the rec-ord_|_y contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8.

In the present case, we find the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal. Accordingly, we will consider the issue on appeal.

First, Chappell argues that his counsel was ineffective for failing to object when the State questioned him during cross-examination regarding his twenty-two arrests.

At trial, defendant testified in his own defense. On direct-examination, defense counsel asked, “Mr. Chappell, have you been, have you been arrested before?” Then, the following exchange occurred:

Defendant: Yes, sir.
Defense counsel: Have you ever plead [sic] guilty before?
Defendant: No, sir. One, one time I did.
Defense counsel: Okay. Can you tell us what that charge was?
Defendant: I bought a pick-up truck ... and I got charged for possession of stolen property.
Defense counsel: And how long ago was that?
Defendant: I was in high school. I don’t remember. Like '85, '84, something like that.
Defense counsel: If [sic] the record show that it was — Let me get back to it, please. The record show [sic] it was 1982.
Defendant: That’s probably about—
Defense counsel: Okay.
Defendant: I don’t remember what, exactly what year.
Defense counsel: All right. Have you been arrested on any other charges?
112Pefendant: Yeah. I was charged for contributing to delinquency when I was younger.
Defense counsel: Were all these in the eighties?
Defendant: Yes, sir.

On cross-examination, the prosecutor asked Chappell, “Mr. Garrity, in his examination of you, asked you if you had ever been arrested before and, and you gave a couple of occasions, but you’ve been arrested twenty-two times, right? Then, the following exchange occurred:

Defendant: Several times, sir, yes.
Prosecutor: Twenty-two times, would that, does that, that’s—
Defendant: I wouldn’t know the exact numbers.
Prosecutor: Okay.
Defendant: I know I was into trouble when I was younger.
Prosecutor: Well, let’s go, back in 1981 you were arrested in New Orleans for illegal weapons charge, you were arrested. You remember that?
Defendant: Yes, sir.
Prosecutor: Okay. Now, that was, how old were you then?
Defendant: I don’t remember.
Prosecutor: Well.
Defendant: I know I was a teenager.
Prosecutor: Let’s see, you, you were born in '64 and this took place in '81. So that would make you approximately seventeen years old? That’s high school?
Defendant: Yes, sir.
Prosecutor: Then in 1982 you were arrested for, in St. Charles Parish, for contributing to the delinquency of juveniles. Is that correct?
Defendant: Yes, sir. I’m pretty sure.
Prosecutor: All right. Then again in '82, in St. Charles Parish, for illegal possession of stolen things. That’s the thing you were talking about before, when you were talking about how you were young and still in high school and somebody said you did something?
Defendant: Yeah, approximately that.
Prosecutor: Then in '83 you were arrested.for, I guess, driving a motorcycle without a helmet?
Defendant: Yeah, I believe so.
Prosecutor: Then in 1985 — Now, we’re up to where you’re like twenty-one years old in '85, huh?
Defendant: Yeah.
Prosecutor: Okay.
Defendant: Approximately.
| iSProsecutor: In Hahnville you are again arrested for possession, receiving stolen things, right? And you plead [sic] guilty to that, right?
Defendant: Yes, sir, yes.
Prosecutor: You took a felony conviction for receiving stolen things, the same thing you’re on trial for right now, right?
Defendant: Yes, sir.
Prosecutor: Okay. And you served probation on that, right?
Defendant: Yes, I believe so.
Prosecutor: With, with DOC. You had active probation, had a probation officer?
Defendant: No, I didn’t have any of that.
Prosecutor: You didn’t have a probation officer. Okay. Then in '88 you got arrested for simple burglary, right? And another charge, in, in St. Charles Parish, of illegal possession of stolen things. You got arrested for the third time for receiving stolen things in St. Charles Parish in '88, right?
Defendant: I know there was a couple of times I did, yes, sir.
Prosecutor: There was a couple of times, yeah. 1990, St. Charles Parish, simple battery. You got arrested for battery?
Defendant: I got in a fight.
Prosecutor: Got in a fight. 1992, aggravated battery. Another fight?
Defendant: Yes.
Prosecutor: That time it involved a—
Defendant: Well, somebody, somebody had jumped me.
Prosecutor: Yeah. But you, but you had a weapon that time, huh?
Defendant: No.
Prosecutor: No? Aggravated battery, that doesn’t involve a weapon?
Defendant: I don’t know what it involves. I didn’t have a weapon, never have.
Prosecutor: 1994, theft of five hundred dollars or more in St. John Parish. You remember that arrest?
Defendant: I think that’s for this, isn’t it?
Prosecutor: 1994?
Defendant: Oh, '94, I thought you said '04. I don’t recall that.
Prosecutor: 1995, St. John the Baptist Parish, aggravated battery. Another fight?
Defendant: I don’t know how many times they had on there. I only got in a fight a couple times that I remember.
Prosecutor: No, the first battery, the first one was in Hahnville, in St. Charles Parish, these second two, '92 and '95, aggravated batteries in St. John Parish.
Defendant: I don’t know.
114Prosecutor: I mean, I know there’s a lot, I mean—
Defendant: Yeah, I don’t—
Prosecutor: —you, you, you can’t remember all of them. I, I, I, I [sic] can appreciate that. 1997, disturbing the peace cursing. You remember that?
Defendant: No, sir.
Prosecutor: You don’t remember. 2008, criminal mischief. 2003, St. John Parish, giving a false fire alarm and felony theft. Do you remember that arrest?

Defense counsel then objected, stating that this information was not included in the discovery he was provided. The court took a five-minute recess. Outside the presence of the jury, it was determined that defense counsel had been provided the information, but in a different format. The prosecutor then resumed cross-examination. The following exchange occurred:

Prosecutor: —in '07 in Ascension Parish. Do you remember getting arrested in '07 for stalking, remaining on places, on land after being forbidden? Do you recall that arrest?
Defendant: Yeah, that’s for my wife.
Prosecutor: That was, that involved your wife, your ex-wife?
Defendant: Ex-wife, yes.
Prosecutor: Okay. And you do have the one prior conviction in St. Charles Parish .... for a [sic] receiving stolen things back when you were twenty-one years old, right?
Defendant: I believe so.

Every testifying witness in a criminal case, including the defendant, subjects himself to limited examination relative to his criminal convictions. Generally, evidence of arrests for which there has not been a conviction is not admissible upon the issue of credibility. However, when a defendant testifies on direct examination, the State is not precluded from contradicting defendant’s testimony upon an issue that defendant himself has brought into the case. When a defendant has “opened up” the issue of his arrest record, evidence pertaining to such arrest is 1T ¡-.clearly admissible. It is well recognized that when one side has partially gone into a matter during its direct examination, the other side may fully go into it on cross-examination. Any doubt as to the propriety or extent of cross-examination is resolved in favor of the cross-examination.

La.C.Cr.P. art. 770 provides that a mistrial shall be ordered when the district attorney makes a remark or comment within the hearing of the jury referring directly or indirectly to “[a]nother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]” The introduction of inadmissible other crimes evidence is subject to a harmless error analysis.

The issue in the present case is whether defense counsel’s inquiry into Chappell’s past arrests “opened the door” to his arrest record. We find that it did. Chappell testified that he had been convicted of possession of stolen property and that he had been arrested for stalking his ex-wife. That testimony opened the door for cross-examination on his criminal record. The State is allowed to contradict the defendant’s testimony given on direct examination upon an issue which the defendant himself has brought into the case. It is well recognized that when one side has partially gone into a matter during its direct examination, the other side may fully go into it on cross-examination. Any doubt as to the propriety or extent of cross-examination is resolved in favor of the cross-examination.

Because the State’s questions regarding Chappell’s past criminal record were proper, defense counsel did not err in failing to object to the line of | ^questioning. Therefore, defense counsel’s performance was not deficient under the first prong of Strickland.

Second, Chappell argues that his trial counsel was ineffective for failing to object to the portion of the prosecutor’s closing argument and rebuttal regarding defendant’s twenty-two arrests and prior conviction for possession of stolen property.

La.C.Cr.P. art. 774 defines the scope of argument and rebuttal as follows:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The trial judge has broad discretion in controlling the scope of closing arguments. A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Furthermore, a prosecutor retains “considerable latitude” when making closing arguments. In making its determination, the appellate court should give credit to the good sense and fair-mindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence.

Chappell further argues that trial counsel was ineffective for failing to object during the prosecutor’s rebuttal in which the previous crimes were mentioned.

In his rebuttal, the prosecutor stated:

117And, and it comes down, ladies and gentlemen, to if you’re going to believe the word of somebody who has been convicted of this same offense once before and has been arrested twenty-three times. Counsel says they didn’t object to it. I think he objected to it. But, you know, he’s got a history here. If you want to believe, based on what he says, that, “Oh, I’m some kind of good Samaritan, you know, I was just going out there to pick up this trailer for Southland Idealease, you know, I was, I was just doing a good deed....

The prosecutor further stated:

I tell you what smells about this case. What smells about this case is a guy getting on that stand and expecting you to acquit him, to find him not guilty. A guy who has been found guilty of this very same crime on a previous occasion wants you to believe him and say, oh, a guy that’s been arrested twenty-three times, some of which for the same crime, oh, just believe me, you know, I didn’t know, I’ve been taken, I’ve been taken for a ride. No, he was taking people for a ride.

La.C.Cr.P. art. 774 provides that the State’s rebuttal shall be confined to answering the argument of defendant. Therefore, it is necessary to consider defense counsel’s closing argument in determining whether he erred in failing to object to the State’s rebuttal closing argument.

In his closing argument, defense counsel stated:

And, and think about this. Why is the trailer where it is today? Because of [Chappell]. [Chappell’s] the one who tracked [sic] down. [Chappell] is the one who called the police. And now he’s being prosecuted for it because he towed it from, [sic] under the direction of the State Police? I, I don’t know what [defendant] did to get himself in this jam. I know he was arrested twenty-three times. You all have looked at the records. Most of it [sic] when he was younger except after the situation with his wife. He did plead guilty once. Every other charge against him was dismissed. Every single other one. And, folks, look, I got expelled from college and I had my problems and I, and fortunately it was a long time ago and most everybody has forgotten. That’s something that I hope, we brought it up and some things, a lot of people won’t, a lot of lawyers won’t put their client on the stand for that reason, they don’t want that brought out. We’re not hiding anything. We’re not hiding his past record. We’re not hiding what he did in the past. The issue is this today, what did he do today. And our position is he did nothing but give that lady back her trailer so she could sell it to the guy that stole it.

| „We find the prosecutor’s remarks about Chappell’s prior conviction in rebuttal were in response to defense counsel’s closing argument. Accordingly, we find trial counsel was not deficient in failing to object during the prosecutor’s rebuttal given this Court’s finding that the prosecutor’s remarks were proper.

This assignment is without merit.

RESTITUTION

In his final argument, Chappell asserts the restitution ordered by the trial judge was excessive and exceeded the amount of actual pecuniary damage allowed by La. C.Cr.P. art. 895.1. Moreover, at trial, the victim admitted to profiting from the theft of the trailer. Thus, Chappell contends that the portion of his sentence ordering restitution should be set aside.

In the present case, Chappell did not file a motion to reconsider sentence. This Court has held that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. Accordingly, we will address whether the amount of restitution ordered was unconstitutionally excessive or illegal.

Courts have wide discretion regarding the imposition of restitution when it is reasonably related to defendant’s rehabilitation. In ordering restitution, the trial judge has discretion and his discretion will not be disturbed absent an abuse of this | ^discretion. In reviewing excessive sentence assignments, the sentence imposed will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion.

In ordering Chappell to pay restitution, the trial judge referred to the pre-investi-gation report. The court ordered Chap-pell to pay a total of $28,488.32 in restitution for the following pecuniary losses: (1) Loss of a flip axle valued at $6,034; (2) $2,164 charged by Brian Towing for towing the trailer from St. Bernard to Laplace; (3) $1,400 for missing tires; and (4) loss of rental income of $18,850.

Chappell argues the loss of rental income is speculative, the axle and tires were missing when he found the trailer in St. Bernard, and the towing charge he billed Southland was the basis of the fraud charge of which he was found not guilty. Chappell also argues the restitution is excessive because Southland admitted at trial that it made money on the sale of the trailer and the insurance proceeds received at the time of the theft.

The loss of rental income was proven at trial with the testimony of Ms. Teuton who stated that, at the time the trailer was stolen, it was leased for three years to Leroy Williamson. Although the record does not indicate the amount of lost rentals, the trial court decided on the amount of loss after a review of the pre-sentencing report and recommendation. That amount of restitution is affirmed.

There is no evidence in the record, either testimonial or documentary, to support the $6,034 for a flip axle. Therefore, that element of restitution is reversed.

| ¡^Regarding the $1,440 for tires, we find the record supports this item of restitution. Ms. Teuton testified that the trailer was missing wheels and tires when the trailer was retrieved from Brian’s Towing. The record contains an invoice from Brian’s Towing to Southland for towing the trailer from the St. Bernard Landfill to Brian’s Towing for a total of $1,909.94. That bill represents a $562.50 towing fee; a $41.19 fuel charge; a $1,000 storage fee; and a fee of $25 for filing the ORSV with the State as required by law. A note on the bottom shows that Joe Teuton authorized the replacement of six wheels removed and replaced; there is no indication that the work was done. Therefore, we find no abuse of the trial court’s decision to order this element of the restitution.

In his final argument regarding the restitution, Chappell argues the total amount charged to Southland of $2,164.32 for towing, fuel, and storage should be reversed because this element of damages was the basis of the fraud charge against him. Chappell argues that, since he was acquitted of that charge, he should not have to pay restitution. We agree. We find the trial court erred in ordering restitution for a charge tried by the jury that ended in a verdict of not guilty.

ERRORS PATENT

The record was reviewed for errors patent. We find there is an inconsistency between the transcript and the commitment. Although the transcript reflects that Chappell was properly advised of the prescriptive period for filing post-conviction relief, the commitment reflects an incomplete advisal. The transcript reflects that the trial court advised Chappell that he had “two years after [his] sentence and conviction become final to file an application for post-conviction relief.” However, the commitment states “defendant has two years to file post-conviction relief after judgment of conviction becomes final.” La.C.Cr.P. I^art. 930.8 provides that a defendant has two years from the date the defendant’s conviction and sentence become final in which to apply for post-conviction relief, (emphasis added).

Where there is a conflict between the transcript and the minute entry, the transcript prevails. Therefore, we order the trial court to amend the commitment to conform with the transcript. We further order that the clerk of court of the district court transmit the original of the amended commitment to the officer in charge of the institution in which Chappell is incarcerated.

For the reasons set forth in this opinion, Chappell’s conviction is affirmed. The sentence is amended to exclude the $2,164.32 billed by Brian’s Towing, and the $6,034 for a flip axle from the restitution. In all other respects we affirm the sentence. The matter is remanded with orders.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED; MATTER REMANDED WITH ORDERS

      .Chappell’s assignments of error are addressed out of order so the sufficiency of the evidence is addressed first in accordance with State v. Hearold, 603 So.2d 731, 734 (La.1992). In Hearold, the Louisiana Supreme Court stated that, 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. The rationale is that when the entirety of the evidence, including evidence erroneously admitted, is insufficient to support the defendant's conviction, the defendant must be discharged as to that crime, and any issues regarding trial errors become moot. See, Hearold, supra.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

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

      . La. R.S. 15:438.

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

      . State v. Brooks, 01-1073 (La.App. 5 Cir. 2/26102), 811 So.2d 1066, 1069.

      . La. R.S. 14:27; State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 867, writ denied, 08-1086 (La. 12/19/08), 996 So.2d 1132 (quotation omitted).

      . La. R.S. 14:10(1).

      . State v. Chattman, 01-556 (La.App. 5 Cir. 10/30/01), 800 So.2d 1043, 1048, writ denied, 01-3320 (La.12/19/02), 833 So.2d 332.

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

      . Id.

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

      . Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

      . Strickland, 466 U.S. at 693, 104 S.Ct. at 2068.

      . State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753.

      . Id.

      . State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095, writ denied, 98-0673 (La.8/28/98), 723 So.2d 416.

      . La.C.Cr.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.

      . La. C.E. art. 609.1(A).

      . La. C.E. art. 609.1(B); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99.

      . State v. Gay, 24452 (La.App. 2 Cir. 3/31/93), 616 So.2d 1290, 1296, writ denied, 624 So.2d 1223 (La.1993) (citing State v. Constantine, 364 So.2d 1011 (La.1978)).

      . Id. (citing State v. Cotten, 438 So.2d 1156, 1163 (La.App. 1 Cir. 1983), writ denied, 444 So.2d 606 (La.1984)).

      . State v. Edwards, 420 So.2d 663, 675 (La.1982).

      . Id.

        . State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102.

      . State v. Constantine, 364 So.2d 1011 (La.1978).

      . State v. Edwards, 420 So.2d 663, 675 (La.1982).

      . Id.

      . State v. Taylor, 07-93 (La.App. 5 Cir. 11/27/07), 973 So.2d 83, 103, writ denied, 07-2454 (La.5/9/08), 980 So.2d 688.

      . State v. Jackson, 04-293 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094.

      . State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 768.

      . Jackson, 04-293 at 6, 880 So.2d at 73. It is noted that the trial judge in the present case instructed the jury that the opening statements and closing arguments of the attorneys were not to be considered as evidence.

      . The prosecutor appears to have misstated the number of Chappell's arrests.

      . Defense counsel appears to have misstated the number of Chappell’s arrests.

      . This statute is inapplicable to the present case because Chappell was not placed on probation.

      . La.C.Cr.P. art. 881.1(E) provides, in pertinent part, "Failure to make or file a motion to reconsider sentence ... shall preclude ... the defendant from raising an objection to the sentence ... on appeal or review.”

      . State v. McDonald, 33,356 (La.App. 2 Cir. 6/21/00), 766 So.2d 591, 593 (citing State v. Lobato, 603 So.2d 739 (La.1992)).

      . State v. Blanchard, 03-0612 (La.App. 5 Cir. 11/12/03), 861 So.2d 657, 667 (citing State v. Alleman, 439 So.2d 418 (La.1983)).

      . Id.

      . Id.

      . See, La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . See, State v. Jefferson, 03-820 (La.App. 5 Cir. 1/27/04), 866 So.2d 931, 943-44, writ denied, 04-0727 (La.9/24/04), 882 So.2d 1166.

        .See, La.C.Cr.P. art. 892 B(2); State ex rel. Stark v. State, 06-1457 (La.2/16/07), 949 So.2d 409, 409-10.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Samuel J. MARTIN.
    No. 11-KA-160.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Vincent J. Paciera, Jr., Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Samuel Martin, In Proper Person, Jonesboro, LA, Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2On September 30, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Samuel J. Martin, with possession of a firearm by a convicted felon (Count 1), aggravated assault upon a peace officer with a firearm (Count 2), and public intimidation (Count 3), in violation of LSA-R.S. 14:95.1, 14:37.2, and 14:122, respectively. He pled not guilty. On June 22, 2010, a jury found defendant guilty as charged on Count 1, and not guilty on Counts 2 and 3. On August 2, 2010, the trial judge sentenced defendant to imprisonment at hard labor for 15 years without benefit of parole, probation, or suspension of sentence. On that same date, the State filed a multiple bill alleging defendant to be a fourth felony offender, and defendant denied the allegations of the multiple bill.

On August 12, 2010, a multiple bill hearing was held, and the trial judge found defendant to be a fourth felony offender. The trial judge vacated the original sentence and resentenced defendant under the multiple bill statute to thirty years of imprisonment without benefit of probation or suspension of sentence.

|,FACTS'

Officer Ryan Mekdessie of the Gretna Police Department testified that on September 13, 2009, at approximately 10:00 p.m., he was traveling on Lafayette Street, which turns into Belle Chasse Highway, when he observed a white Acura traveling southbound with a broken taillight on the passenger side. He activated his lights and sirens in an attempt to stop the vehicle, but the Acura did not stop. Instead, the vehicle continued southbound on Belle Chasse Highway, turned right onto 19th Street, made a left turn onto Newton Street, and then either pulled into the driveway or onto the grassy area in front of a residence at 1908 Newton Street.

The officer stopped behind the Acura and exited his vehicle. At that time, the driver of the Acura, later identified as defendant, opened his door. Officer Mek-dessie ordered defendant to shut the door. According to the officer, defendant then exited his vehicle with a pistol grip shotgun, turned toward Officer Mekdessie’s direction, and pointed the weapon at him. Officer Mekdessie retrieved his duty weapon and ordered defendant to drop his weapon. Defendant dropped the shotgun next to the driver’s side door and then fled. Officer Mekdessie holstered his weapon, grabbed his taser, and gave chase. He deployed his taser, but missed defendant.

When Officer Mekdessie noticed that there were two other people in the Acura, he grabbed his duty weapon and ordered the subjects to show him their hands and stay in the vehicle. The back seat passenger did not comply and exited the vehicle. The back seat passenger was tasered and eventually arrested for interfering, resisting, and possession of marijuana. Officer Mekdessie then spoke to the front seat passenger, defendant’s girlfriend, who was cooperative and told the officer the identity and address of the driver.

14 Officer Mekdessie set up surveillance of the residence where he believed defendant lived. At some point, he saw defendant walking alongside the house, and assisting units were able to apprehend defendant and transport him to jail. According to Officer Mekdessie, when he arrived at the jail and escorted defendant inside, defendant told him the last thing the officer was going to see was the flash from his gun. Officer Mekdes-sie testified that when he later checked to see if defendant’s shotgun was loaded, it did not have any live rounds in it.

Aischa Prudhomme, an expert latent fingerprint examiner, testified that she took defendant’s fingerprints and compared them with the fingerprints contained in State’s Exhibit 3 (documents pertaining to a prior conviction for carjacking in case number 04-1856, including a bill of information, a guilty plea form, and a minute entry) and State’s Exhibit 4 (documents pertaining to a prior conviction for possession of cocaine in case number 04-55, including a bill of information, arrest card, guilty plea form, and a minute entry). Ms. Prudhomme found that the fingerprints in all of the exhibits were made by the same person, defendant.

After the State rested its case, the defense called Josephine Martin, defendant’s girlfriend, as a witness. Ms. Martin testified that on September 13, 2009, she, defendant, and Conrad Jackson were in a car on their way to defendant’s father’s house on Newton Street when an officer pulled them over. She testified that defendant opened the door and exited the vehicle, but did not pull out a weapon or point a weapon at the officer. Ms. Martin stated that when defendant closed the door, he saw the police and ran. Ms. Martin explained that after defendant ran, the back seat passenger got out of the vehicle, and the officer tasered him. She did not remember telling the officer that when defendant was coming to a stop, he was pulling the shotgun from his pants leg. She claimed she did not see the gun until after the officer closed the door.

| ^Reginald Scott testified for the defense that on September 13, 2009, he was at a block party when he saw a white car “flying” down the street with a police car following it. A man got out of the car and ran, and the officer chased him and shot a taser. Scott also saw a short person or a child in the front passenger seat, and a man get out of the back seat and throw something. He admitted that he had five convictions and a pending charge and that he did not see everything that happened.

Joseph Cross, III, testified for the defense that on September 13, 2009, he was on the porch at 1904 Newton Street when he observed a white car pull up at approximately 9:30 to 10:00 p.m. A police car pulled up behind it, and the officer ordered the man to get out of the car. When the man, whom he identified as defendant, jumped out of the car, the officer pulled a taser out and told defendant to get back into the car. Defendant did not comply with that order, so the officer shot the taser at defendant, and defendant ran off. Mr. Cross testified that the police “beat the hell” out of the man in the back of the car, tasered him, put him in the back of the police car, and took off. Mr. Cross never saw a gun pointed at the police officer, and he did not see a gun that night. Mr. Cross admitted he had four convictions in 1997 for “distribution.”

Shawn Clark testified for the defense that on September 13, 2009, he attended a small party on Newton Street. While they were outside, he noticed an officer pull a man over. He identified defendant in court as that man. Defendant got out of the car and walked toward the officer, but the officer told defendant to go back to his car. Defendant walked toward his car and then took off running. Mr. Clark testified that he did not see defendant pull a gun or any weapon, but he did see a gun thrown from the back area of the car. He said the gun appeared after defendant ran away. According to Mr. Clark, the officer shot his taser at defendant, and then chased defendant, but not very far. Mr. Clark testified that the |fiman in the back seat was beaten badly, and that the officers tasered and kicked him all over. He admitted that he had five convictions.

On rebuttal, Officer Mekdessie testified that at no point was a weapon thrown from the back of the car, and that he did not have a fight with the back seat passenger.

LAW AND DISCUSSION

On appeal, defendant’s counsel and defendant in his pro se brief argue that the evidence was insufficient to support the jury’s verdict. Defendant contends that only one of the seven witnesses at trial, Officer Mekdessie, testified that he possessed a gun, and that many of the officer’s recollections were hard to believe, exaggerated, and could not possibly have occurred. Defendant also contends that the officer failed to cite him for the cracked taillight, and that the State failed to prove he actually or constructively possessed the seized weapon.

The State responds that the evidence was sufficient to support the verdict, noting that Officer Mekdessie testified that defendant exited his vehicle after the traffic stop with a pistol grip shotgun in his hand and pointed the weapon at the officer. The State also asserts that three of the four defense witnesses were convicted felons, each telling a different version of events. The State argues that the jury made its credibility determinations, and that even if the back seat passenger did throw a gun from the back of the car, the jury could have still found that defendant had constructive possession of that weapon.

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

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

In the instant case, defendant was convicted of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. In order to convict a defendant of violating LSA-R.S. 14:95.1, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense. State v. Watson, 08-214, p. 7 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 784.

On appeal, defendant does not challenge the evidence as to his prior convictions or the ten-year cleansing period. The issue defendant raises on appeal is whether he had either actual or constructive possession of the weapon. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Harris, 94-970 (La.12/8/94), 647 So.2d 337, 338-39 (per curiam). To establish possession of a firearm by a convicted felon, proof is required that the offender was aware that a firearm was in his presence, and that he intended to possess the | sweapon. State v. Lee, 02-0704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-0535 (La.10/17/03), 855 So.2d 755. Such guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998.

Constructive possession of a firearm exists when a firearm is subject to a person’s dominion and control. Johnson, 03-1228 at 5, 870 So.2d at 998. Even where a person’s dominion over the weapon is only temporary in nature and control is shared, constructive possession exists. Id., 03-1228 at 5, 870 So.2d at 999; State v. Blount, 01-844, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, 775. It is noted that the jury in the instant case was instructed as to both actual and constructive possession.

At trial, the State presented Officer Mekdessie who testified that he stopped defendant’s vehicle after noticing that the rear taillight on the passenger side was broken. He further testified that defendant exited his vehicle with a pistol grip shotgun, turned toward him, and pointed the weapon at him. Officer Mekdessie explained that he retrieved his duty weapon and ordered defendant to drop his weapon, and that defendant dropped the shotgun and fled.

On the other hand, the defense presented four witnesses, three of whom had numerous convictions, who gave different versions of the incident. Ms. Martin, defendant’s girlfriend, claimed she did not see the gun until after the officer closed the door. Mr. Cross, a convicted felon, testified that he did not see any guns at the scene. However, Mr. Clark, a five-time convicted felon with a pending charge, testified that he saw a gun thrown from the back of the car, and that the gun appeared after defendant ran away. Mr. Scott, also a five-time convicted felon with a pending charge, testified that he saw the back seat passenger exit the vehicle and throw something. Mr. Cross and Mr. Clark also recalled that the back seat |flpassenger was beaten badly; however, Ms. Martin testified that the officers did not hit the back seat passenger.

After listening to the witnesses’ testimony and considering all the other evidence as well, the jury apparently found that defendant either actually or constructively possessed the weapon. The credibility of witnesses is within the sound discretion of the trier of fact, and the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Considering the evidence presented at trial and the pertinent law, we find that a rational trier of fact could have found under the Jackson standard that the evidence was sufficient to show that defendant actually possessed the weapon, and that the evidence as a whole was sufficient to support the verdict. Accordingly, this assignment of error is without merit.

Defendant’s counsel and defendant in his pro se brief also argue that the trial judge erred by denying his motion to suppress the evidence. Defendant contends that the evidence should have been suppressed because the traffic stop for a cracked taillight, a minor offense, was pre-textual, and no evidence was presented other than the officer’s testimony to show that the taillight was cracked, such as a traffic citation or a photograph. He also argues that Officer Mekdessie was not credible, which was shown when the jury found defendant not guilty of aggravated assault of an officer and public intimidation, despite the officer’s assertions.

The State responds that the trial judge did not err by denying the motion to suppress the evidence. It contends that the officer was justified in conducting a traffic stop because defendant’s vehicle was in violation of state law, and that pretext traffic stops are not per se improper as long as the officer has probable cause to believe a traffic violation has occurred. The State further responds that |10even though there was no citation for the traffic offense or photograph of the cracked taillight, the trial judge obviously believed the officer’s testimony that defendant committed a traffic violation.

On May 26, 2010, defendant filed a motion to suppress the evidence, claiming that the evidence should be suppressed because it was illegally obtained. Officer Mekdessie testified at the suppression hearing, and his testimony was similar to his trial testimony. Defense counsel argued at the hearing that a cracked taillight was not enough to stop defendant because the brake lights were working and defendant did not endanger anyone. He noted that no citation was issued which proved that defendant did not violate any law. Based on the foregoing, defense counsel asked the trial judge to suppress the evidence.

The prosecutor responded that defendant violated Louisiana law when he failed to have equipment in the proper condition on his vehicle. The prosecutor further responded that he tells officers that it is unnecessary to issue citations if there is a more serious criminal offense involved. He argued, therefore, that the fact that the officer did not write a ticket was irrelevant as to whether there was an initial reason to pull the car over. The prosecutor also argued that the evidence was abandoned and legally seized. The trial judge agreed with the prosecutor’s arguments and denied the motion to suppress the evidence.

Both the Fourth Amendment to the Constitution of the United States and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. State v. Roche, 05-237, p. 7 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 765, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. Id.

|nThe trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Williams, 10-51, p. 5 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330. To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, “the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred.” State v. Waters, 00-356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056 (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996)). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id.

In Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996), the United States Supreme Court clearly stated that a traffic-violation arrest is not rendered invalid by the mere fact it was a pretext for a narcotics search. The supreme court explained that “the fact that the officer does not have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer’s action does not invalidate the action as long as the circumstances, viewed objectively, justify that action.” Whren v. United States, supra (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)). The Louisiana Supreme Court has stated that “[although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.” State v. Waters, 00-356 at 4, 780 So.2d at 1056.

In State v. Davis, 09-452 (La.App. 5 Cir. 1/26/10), 31 So.3d 513, defendant contended that the detective used the pretext of a broken taillight to justify the stop of his vehicle. The detective admitted that although he stopped the vehicle for a broken taillight, the stop was also based on information he learned from a confidential informant. This Court found that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Id., 09-452 at 6, 31 So.3d at 517.

In the instant case, the officer was justified in stopping defendant’s vehicle. Officer Mekdessie observed that defendant vi-dated a traffic law in that he had a broken taillight on his vehicle. The Jefferson Parish Sheriffs Office Arrest Report and Probable Cause Affidavit contained in the record show that defendant was charged with having improper equipment in violation of LSA-R.S. 32:53, which requires that a vehicle contain parts in proper condition.

Moreover, there was no evidence that this stop was a pretext to investigate the commission of other crimes. However, even if it was, this Court indicated in Davis that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for other crimes. Also, the fact that the officer did not issue a citation for the traffic offense is not relevant to the constitutionality of the stop.

Additionally, at the suppression hearing, the trial judge heard the testimony of Officer Mekdessie regarding the traffic violation and subsequent stop and | ^apparently found him to be credible. The credibility of witnesses is best determined by the trial judge and is not to be disturbed on appeal unless the trial judge abuses his discretion. State v. Neuman, 01-1066, p. 7 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 184. The record does not show that the trial judge abused her discretion in crediting the testimony of Officer Mekdessie.

In light of the foregoing, we find that the trial judge did not err by denying the motion to suppress the evidence. Accordingly, this assignment of error is without merit.

Defendant requests an error 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. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request.

First, we note that the trial judge failed to impose the mandatory fine. LSA-R.S. 14:95.1 B requires a fine of not less than $1,000.00 nor more than $5,000.00. The State notes this error patent in its brief and asks this Court to remand for imposition of the mandatory fine. This Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. State v. Pitt, 09-1054, pp. 8-9 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, 224, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725.

In the instant case, defendant appears to be indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

Second, the transcript reflects that when defendant was originally sentenced on August 2, 2010, the trial judge properly advised him that he had two years after the judgment of conviction and sentence becomes final to seek post-conviction | ^relief. The transcript shows that on August 12, 2010, after the trial judge found defendant to be a fourth felony offender and resen-tenced him, she incorrectly advised him he had “two years from today’s date to seek post-conviction relief.” Also on August 12, 2010, defendant pled guilty to a misdemeanor battery on a police officer offense and was sentenced. The trial judge then correctly advised defendant he had two years after judgment of conviction and sentence becomes final to seek post-conviction relief.

In order to clarify any discrepancy in the notifications provided by the trial judge to defendant, we hereby notify defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after his judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

Third, the transcript reflects that the trial judge correctly ordered the enhanced sentence to be served without benefit of probation or suspension of sentence pursuant to LSA-R.S. 15:529.1 G; however, she failed to also order that the enhanced sentence be served without the benefit of parole as required by the underlying statute, LSA-R.S. 14:95.1. The restriction on parole is statutorily mandated and self-activating, and the trial judge was without discretion to impose the sentence with the benefit of parole. Accordingly, there is no need to remand for resentencing. However, in order to ensure an accurate record, this matter is remanded for the limited purpose of ordering the district court to correct the commitment to reflect that the enhanced sentence is to be served without benefit of parole, probation, or suspension of sentence. We also direct the clerk of court for the 24th Judicial District Court to transmit the original of the commitment to the officer in charge of the institution to which defendant has been sentenced, and to the legal department of the Department of Public and Safety Corrections (DOC). 1 See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence. We also remand the case and order the trial court to correct the commitment to reflect that defendant’s enhanced sentence is to be served without benefit of parole, probation, or suspension of sentence. We further direct the clerk of court to transmit the original of the corrected commitment to the officer in charge of the institution to which defendant has been sentenced and to the legal department of the Department of Public Safety and Corrections.

AFFIRMED; REMANDED WITH INSTRUCTIONS.