author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Ulysses H. THOMAS Jr.
    No. 11-KA-136.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Ulysses Thomas, Jr., Jonesboro, LA, Defendant/Appellant Pro Se.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2On October 27, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Ulysses H. Thomas, Jr., with two counts of distribution of marijuana (counts 1 and 2), in violation of LSA-R.S. 40:966 A, and ten counts of distribution of cocaine (counts 8 through 12), in violation of LSA-R.S. 40:967 A. At the December 19, 2008 arraignment, defendant pled not guilty. On December 16, 2009, defendant withdrew the not guilty pleas and pled guilty as charged. In accordance with the plea agreement, the trial court then sentenced defendant to imprisonment at hard labor for 15 years on each count, to run concurrently.

Also, on December 16, 2009, the State filed a multiple offender bill of information alleging defendant was a second felony-offender as to count 8 only. | .¡After defendant admitted to the multiple bill, the trial judge vacated the original sentence on count 3 and resentenced defendant, as a second felony offender, to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, to run concurrently with all the other sentences. Defendant thereafter filed a motion to reconsider sentence that was denied by the trial court on March 25, 2010. Defendant now appeals.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that she has reviewed the entire record and has been unable to find any errors warranting review on appeal. In her brief, she noted that defendant pled guilty pursuant to a plea agreement, that he was sentenced in accordance with the plea agreement, and that he did not preserve any issues for review. As further noted, prior to accepting defendant’s guilty pleas, the trial court properly advised defendant of all of his rights, including his right to a Injury trial and confrontation, and his privilege against self-incrimination. In addition, defendant signed a waiver of rights form which also showed that he was advised of his rights and waived his rights.

With regard to the multiple offender admission, appellate counsel stated that defendant was properly advised of the applicable rights, including his right to a hearing and his right to remain silent. In addition, defendant signed a waiver of rights form which indicated that he was advised of his multiple offender rights and wished to waive them.

Additionally, appellate counsel reviewed the sentencing proceedings and acknowledged that the sentences were imposed pursuant to a plea agreement with the State. In accordance with the agreement, the State agreed not to charge defendant as a fourth felony offender, instead charging him only as a second felony offender. Further, defendant was advised that, as part of the plea agreement, he would receive 15 years on all counts to run concurrently to each other, and that he would receive the minimum sentence of 15 years on the charge that was double billed. As pointed out by appellate counsel, under LSA-C.Cr.P. art. 881.2(A)(2) a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Consequently, appellate counsel concluded that the sentencing was not an issue that could be appealed.

In her Anders brief, appellate counsel discussed the issue regarding credit for time served in Ohio that was brought up by defense counsel at the end of the sentencing proceedings. She explained that defense counsel had requested that defendant receive credit for three years that he served in prison in Ohio, but the trial court denied his request after listening to arguments of counsel. Appellate | (¡counsel noted that, as part of the plea agreement in which defendant received the minimum sentence on the multiple bill, defense counsel could not raise the issue regarding credit for time served in Ohio. Therefore, she concluded that this issue likewise had no merit.

With regard to pre-trial motions, appellate counsel noted that while standard motions were filed, trial counsel subsequently waived all motions, so there were no pretrial hearings in the district court, and thus, no adverse rulings to challenge on appeal. In conclusion, appellate counsel asserted that she had diligently reviewed the record and found no issues to raise on appeal.

We have conducted our own independent review and have thoroughly examined the minute entries, the pleadings, the guilty plea and sentencing proceedings, and the multiple offender proceedings. Our independent review supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

Along with her brief, defendant’s appellate counsel has filed a motion to withdraw as attorney of record which states she has found no assignments of error to argue on behalf of defendant, and therefore, she requests permission to withdraw from this case. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 6, 2011, to file a pro se supplemental brief. Defendant has filed a supplemental brief raising three assignments of error which will now be addressed.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant argues that the trial judge erred by sentencing him to 15 years at hard labor as a second felony offender when the multiple bill statute does not provide for a hard labor sentence.

17At the time defendant committed the crimes in 2000 and at the time of sentencing in 2009, the multiple bill statute, LSA-R.S. 15:529.1, did not provide that the sentence was to be served at hard labor. However, in 2010, the Louisiana Legislature amended LSA-R.S. 15:529.1 G by Acts 2010, No. 69, § 1, to mandate that any sentence imposed under the multiple offender statute shall be at hard labor without benefit of probation or suspension of sentence. The change became effective June 10, 2010, after defendant committed the crimes and was sentenced.

Regardless of this legislative change, the trial judge was still authorized to impose defendant’s multiple sentence at hard labor. In State v. Robinson, 46,330 (La.App. 2 Cir. 2/18/11), 54 So.3d 1292, the second circuit found that although the “at hard labor” language was added to LSA-R.S. 15:529.1 G by Act 69 of 2010, the addition of that condition to the habitual offender law did not modify the sentencing provisions of the underlying felony offense. In Robinson, defendant argued that the “at hard labor” condition of his enhanced sentence rendered his sentence illegal. He further argued that at the time he was sentenced, there was no such provision for a hard labor sentence. The second circuit noted that defendant’s underlying felony conviction was for second degree kidnapping, which mandated that the sentence be served at hard labor. Therefore, the second circuit found that because the crime for which defendant was convicted required that his sentence be imposed at hard labor, that condition was a legal component of the defendant’s sentence as an multiple offender.

In the instant case, defendant’s underlying felony conviction (count 3) was for distribution of cocaine, a violation of LSA-R.S. 40:967 A, which requires that the sentence be served at hard labor. Therefore, the trial judge did not err by ordering that defendant’s enhanced sentence be served at hard labor, since the underlying conviction required a hard labor sentence.

| ¿PRO SE ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

In his pro se brief, defendant argues that his appellate and trial counsel provided ineffective assistance of counsel because they did not obtain documentation to support his claim that he should have received three years credit for time served while he was incarcerated in Ohio before he was brought to court in Jefferson Parish.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. To prove ineffective assistance of counsel, a defendant must show both that: (1) his attorney’s performance was deficient; and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. In State v. Washington, 491 So.2d 1337, 1338-39 (La.1986), the Louisiana Supreme Court held that the two-part Strickland test applied to challenges to guilty pleas based on ineffective assistance of counsel. The “prejudice” requirement focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. The defendant must prove that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.

Generally, an ineffective assistance of counsel claim is best addressed through an application for post-conviction relief filed in the trial court where a full eviden-tiary hearing can be conducted. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. In the instant case, the appellate record is sufficient to address defendant’s claims.

After the trial judge accepted defendant’s guilty pleas and sentenced him, defense counsel brought up the issue regarding credit for time served in Ohio. Defense counsel advised the court that defendant’s crimes were committed in 2000 and that defendant was in the process of being prosecuted here when he was arrested in Ohio and sentenced to time in prison there. Once defendant completed his sentence in Ohio, he was transferred by lawful authorities back to Louisiana. Defense counsel then asked the trial judge to grant defendant credit for the three years served in Ohio, because at the time he was in Ohio, the instant charges were pending here and there were “holds” on defendant at that point to the best of defendant’s knowledge.

The prosecutor objected, responding that this was a negotiated plea and that she and defense counsel had discussed this matter previously. The prosecutor said that she had agreed to drop the “quad” bill against defendant; that defendant was at large in this division; and that defendant was not arrested and held in Ohio on the instant charges. She explained that defendant was picked up and re-convicted on other drug charges in Ohio and that defendant served time in Ohio on those other charges. The prosecutor further commented that the State did not receive notice that defendant was in Ohio until right before they “writted” defendant back here. She argued that it was not appropriate for defendant to get credit for time served on charges relating to another conviction in another state.

In response to questioning by the trial judge, defense counsel admitted that the trial judge had imposed the minimum sentence of 15 years imprisonment and that as a fourth felony offender, defendant was facing the potential of life 110imprisonment. The prosecutor said that that was part of the agreement she had with defense counsel, i.e., that there would not be an issue about credit for time served in Ohio.

Defendant then advised the trial judge that the State had acknowledged that he was in prison in Ohio in 2005 when Harry Lee was still sheriff. In response to defendant’s comment, defense counsel indicated that he had checked the record thoroughly and that there was no evidence of the State being put on notice in 2005. Defense counsel admitted that the State could successfully block a motion to quash by defendant based on the State’s assertion it was put on notice shortly before defendant’s release last year. However, he said that if defendant was correct and the State had been given notice in 2005, then defendant would have a valid argument. With regard to this issue, defense counsel stated, “I think I’ve done due diligence the best I could, there’s nothing in the record, at this point, to reflect that Sheriff Lee’s office or the district attorney’s office was given notice as early as '05 or that the district attorney’s office was given notice.”

After hearing arguments of counsel, the trial judge denied defense counsel’s request to give defendant credit for time served in Ohio. The trial judge said that the arrangement that “worked out” was probably the best possible arrangement that could have been worked out for defendant, and that defendant was receiving the minimum on the multiple bill.

The guilty plea colloquy and the plea agreement show that defendant was advised as to what his sentences would be and that he agreed to the sentences as part of his plea bargain, even though it did not include three years credit for time served in Ohio. The prosecutor indicated at the sentencing hearing that part of the negotiated plea bargain was that the State would not file a multiple bill alleging defendant to be a fourth felony offender in exchange for defendant not raising an Inissue about three years credit for time served in Ohio. Further, there is no evidence in the record that the State was advised in 2005 that defendant was incarcerated in Ohio on other charges.

Also, defendant received a substantial benefit by the plea agreement. The 15-year sentences on each of the 12 counts were ordered to run concurrently. Additionally, defendant was sentenced as a second felony offender to the minimum 15-year sentence, but he could have gotten a sentence of life imprisonment had the State filed a multiple bill alleging defendant to be a fourth felony offender. LSA-R.S. 15:529.1.

In light of the foregoing, we find that even if counsel erred by not obtaining supporting documentation to prove he was entitled to credit for time served in Ohio, defendant has failed to show that there is a reasonable probability that, but for counsel’s errors, if any, he would not have pleaded guilty and would have insisted on going to trial. Accordingly, defendant’s allegations of ineffective assistance of trial and appellate counsel lack merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court imposed illegally lenient sentences insofar as he did not order the first five years of the original sentences on counts 3 through 12 to be served without benefit of parole, probation, or suspension of sentence as was mandated by LSA-R.S. 11240:967 B(4)(b) at the time defendant committed the crimes in 2000. The trial judge also did not order the first five years of the enhanced sentence be served without benefit of parole, probation, or suspension of sentence as was mandated by the underlying statute, LSA-R.S. 40:967 B(4)(b), at the time defendant committed the crimes in 2000. Under State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A), the “without benefits” provision is self-activating, and therefore, no corrective action is required. State v. England, 09-746 (La.App. 5 Cir. 3/9/10), 38 So.3d 383, 391.

Defendant’s sentence is also illegally lenient insofar as the trial court did not impose a fine on counts 1 and 2 relative to his guilty pleas to distribution of marijuana. LSA-R.S. 40:966 B(2) requires a fine of not more than $50,000.

Under LSA-C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. This Court’s authority is permissive rather than mandatory. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830. In the past, we have declined to correct an illegally lenient sentence when defendant is sentenced pursuant to a guilty plea and defendant is indigent. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596; State v. England, 38 So.3d at 391. As such, we decline to correct the sentences in this matter.

We also note a discrepancy between the commitment and transcript regarding the concurrent nature of the sentences. The transcript reflects that the trial court ordered the sentences on the original counts and the sentence on the multiple offender bill to run concurrently with “all other sentences”; however, the commitment indicates that the sentences were specifically ordered to run concurrently with the sentences imposed in case numbers 00-6573 and 00-6574. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter to the district court with instructions to correct the commitment to conform to the transcript and to transmit the amended commitment to the liaofficer in charge of the institution to which defendant has been sentenced. State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Accordingly, we affirm defendant’s convictions and sentences and remand this matter for correction of the commitment as discussed above. Further, because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot find any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we grant counsel’s motion to withdraw as attorney of record.

AFFIRMED AND REMANDED; MOTION TO WITHDRAW GRANTED.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shawn McFLOYD.
    No. 11-KA-159.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jeffrey Lagarde, Ernest C. Chen, 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 CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

^Defendant, Shawn McFloyd, was charged by bill of information with possession of cocaine, in violation of LSA-R.S. 40:967(C). He pled not guilty. At trial, a unanimous six-person jury found defendant guilty. Defendant was sentenced to five years at hard labor in the Department of Corrections.

FACTS

On October 12, 2007, Officer Matthew Laroche of the Gretna Police Department was on patrol. At approximately 11:23 p.m., Officer Laroche observed two men standing in the road at the intersection of Monroe and Columbus Streets, signaling cars using hand motions, attempting to “flag [them] down” to get their attention. None of the cars stopped. Officer Laroche exited his marked police unit to investigate because the area was a high drug traffic area, it was late, and the men were exhibiting odd behavior.

As he approached the two men, later identified as defendant and Cody Melan-con, Officer Laroche observed that they were incapacitated, stumbling or | .¡standing uneasily, and “glassy eyed.” Officer La-roche testified that it was “clearly apparent that they were incapacitated by some sort of narcotic.” At that point, Officer Laroche advised defendant and Mr. Me-lancon of their Miranda rights and informed them that they were being arrested for public intoxication.

While Officer'Laroche was placing defendant in handcuffs, Mr. Melancon fled the scene. Officer Laroche was able to leave defendant in the custody of other officers, who arrived in response to his call for assistance, and pursue Mr. Melancon. Officer Laroche stated that he chased Mr. Melancon into a residence on Columbus Street, where Mr. Melancon was ultimately apprehended. After a brief struggle, Mr. Melancon was then searched and arrested for public intoxication and possession of crack cocaine, which was subsequently found in his sock.

After apprehending Mr. Melancon, Officer Laroche exited the residence on Columbus Street, returned outside, and performed a weapons and contraband search on defendant. Officer Laroche asserted that the other officers did not search defendant because it was his arrest. The search of defendant yielded the discovery of five “rock off-white” substances consistent with crack cocaine, which were found in his front, right pants pocket. The evidence field tested positive for the presence of cocaine. Officer Laroche testified that he searched his patrol unit to ensure there were no drugs before and after defendant was placed in it, as was standard procedure.

Raven Barrois, an expert in the analysis of controlled dangerous substances, testified that she tested the rock-like substances seized in this case. Ms. Barrois testified that these samples tested positive for cocaine.

Dennis Moore, who lived at 631 Columbus Street, testified for the defense. He testified that he knew defendant and Mr. Melancon, who both lived near him. |4He further testified that on the night of the incident, Cody Melancon entered his home. At the time Mr. Melancon entered, he went to the restroom, and two police officers entered right behind him, asking if a person just ran into his home. Mr. Moore answered in the negative, because Mr. Me-lancón did not run into his home. The officers continued to search Mr. Moore’s home, and when they got back to the restroom, Mr. Moore heard a commotion. Mr. Melancon was arrested inside Mr. Moore’s home. Mr. Moore did not know if Mr. Melancon was searched, because Mr. Melancon was in the back of the house and he could only hear what transpired.

Mr. Moore and his roommate were handcuffed and brought outside along with Mr. Melancon. After exiting his home, Mr. Moore observed three police units, one of which contained defendant. The police eventually released Mr. Moore and his roommate after they determined they did not have a record or drugs in their possession. Mr. Moore testified that he did not see any drugs in either Mr. Melancon’s or defendant’s possession.

Mr. Melancon, who was charged as a co-defendant, testified that he had been friends with the defendant for about two years at the time of the incident and they remained friends. He admitted to having two prior convictions for possession of cocaine, one of which resulted from charges related to the instant case. Mr. Melancon testified that on the day of the incident, he was with the defendant on the sidewalk, six or eight feet away from the intersection of Monroe and Columbus Streets. Mr. Melancon left defendant and went to visit his neighbor, Dennis Moore, who had just returned home from Michigan. He went into Mr. Moore’s apartment, sat down, had a drink, and went to the restroom. “The next thing you know,” there was an officer in the house telling Mr. Moore that Mr. Melancon ran from him. Mr. Melancon was approached in the restroom, punched in the face, | ^arrested, and “carried” out of the house by three officers, with paint all over him. Mr. Melancon asserted that he was never searched. He further attested that he did not have socks on that night and he went to jail without shoes or socks.

Once outside, Mr. Melancon observed four police units and additional police officers. He observed Mr. Moore in handcuffs, Mr. Moore’s roommate, some bystanders, and defendant, who was sitting in the back of a police unit. Mr. Melancon was placed in the police unit and brought to the police station where he and defendant were both removed from the unit. After they were removed from the unit, the officer went back into the car, lifted up the seat, and “came out with his hand like, ‘Bingo, look what I have,’ and he said it was [cjocaine.”

Defendant testified that on the night of the incident, he left Mr. Moore’s home, which was “right around the corner” from his house, and came upon Mr. Melancon on the sidewalk at the corner of Monroe and Columbus Streets. They had a brief conversation, possibly about “going out” to a club, and Mr. Melancon left, heading to Mr. Moore’s home. Defendant attested that he had not started partying or consuming any drinks or drugs.

Defendant was talking to two unknown females when he saw a police officer, later identified as Officer Laroche, pull up behind him. The officer asked defendant: “where did the guy go?” Defendant responded: “who you’re talking [sic], you’re talking to me?” The officer responded: “ ‘okay, smart ass, get on the car.’ ” The officer searched and handcuffed defendant saying: “ ‘I’m going to ask you one more time, where did the guy go at [sic]?” When defendant responded that he did not know to whom the officer was referring, the officer stated that he was going to jail and placed him in the back of the police car.

The officer then “took a walk,” passing up Mr. Moore’s and Mr. Melancon’s homes. He looked into the field next to Mr. Melancon’s home, then walked back [fito defendant, asking him “where did he go at [sic].” Defendant again responded that he did not know.

At that point, other police units arrived on the scene. An officer took him out of the police unit and searched him. Defendant was placed in the police unit again. Defendant observed a couple of police officers enter Mr. Moore’s house and then drag Mr. Melancon out. Defendant also saw that Mr. Moore and his roommate were removed from the residence in handcuffs. Defendant declared that he did not see any of the officers search Mr. Melan-con. He also stated that Mr. Melancon was not wearing shoes when he came out of the house. The officers asked Mr. Me-lancon where the drugs were and he responded that he did not have any drugs on his person.

Defendant also testified that an ambulance arrived and the officers were accusing Mr. Melancon of swallowing the drugs. The ambulance departed when defendant and Mr. Melancon were transported to jail, together in the same police unit. Defendant stated that he asked the police officer why he was being arrested and he was told that he would find out when he got to booking. When they arrived at the police station, the officer took him and Mr. Me-lancon out of the car, pulled the seat out of the police car, and said that he found drugs.

Defendant admitted that he had two pri- or convictions for possession of stolen property, and one prior conviction for theft.

On rebuttal, Officer Laroche testified that when he approached the intersection, he observed defendant and Mr. Melancon. They were alone, and they were not talking to any females. After Officer Laroche finished handcuffing defendant, the other officers had arrived to hold him, and Officer Laroche was then able to chase Mr. Melancon on foot. He admitted that he had a struggle with Mr. Melancon, but he did not punch him. He again stated that he found the drugs in ^defendant’s right front pocket and Mr. Melancon’s sock. Officer Laroche also testified that he did not remember an ambulance being called.

LAW AND DISCUSSION

On appeal, defendant argues that the evidence was insufficient to support the jury’s verdict. He contends that the version of events presented by Officer La-roche could not possibly have occurred because he alone did every relevant act to justify the charge and no other officer verified his story. He further contends that it was physically impossible for Officer Laroche to singlehandedly handcuff defendant and run down Mr. Melancon. Moreover, defendant and Mr. Melancon’s testimonies were consistent. Therefore, defendant asserts that the State failed to prove all of the elements of the crime beyond a reasonable doubt.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, a review of a criminal conviction record for sufficiency of 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 record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. at 7, 985 So.2d at 240.

“Circumstantial evidence is evidence of fact's or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “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.” LSA-R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id.

To support a conviction for possession of cocaine, the State must prove that the defendant was in possession of cocaine and that he knowingly possessed it. LSA-R.S. 40:967(0; State v. Ruffin, 96-226, p. 5 (La.App. 5 Cir. 8/28/96), 680 So.2d 85, 87. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the controlled dangerous substance. State v. Proctor, 04-1114, p. 6 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 482. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. Id.

At trial, the jury was confronted with conflicting testimony offered by Officer Laroche and the defense, through defendant and Mr. Melancon. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549.

The record before us reveals that the State presented sufficient evidence for the jury to conclude defendant was guilty of possession of cocaine beyond a reasonable doubt. Officer Laroche testified that he stopped to investigate defendant and Mr. Melancon who were exhibiting odd behavior at a late hour in a neighborhood renowned for drug trafficking. Upon approaching the two men, Officer Laroche observed that they were incapacitated, stumbling, and “glassy eyed.” Officer La-roche placed them under arrest for public intoxication and began to handcuff defendant. At that point, Mr. Melancon ran away; however, after, handcuffing defendant, other officers arrived, and Officer Laroche pursued Mr. Melancon. The chase ended in Mr. Moore’s home, where Mr. Melancon was searched and arrested for public intoxication and possession of cocaine. Upon exiting the home and returning to defendant, Officer Laroche searched him and found cocaine in his front right pocket.

Conversely, defendant and Mr. Melan-con testified that they met up at the intersection of Monroe and Columbus Streets. Mr. Melancon testified that he left defendant and went to Mr. Moore’s house, where he sat down, had a drink, and went to the restroom. While in the restroom, the police entered the home, came into the bathroom, punched him, arrested him, and “carried” him out of the house.

Defendant testified that Officer Laroche pulled up and asked defendant “where did the guy go?” According to defendant, after he indicated that he did not know what the officer was talking about, defendant was handcuffed, placed in a police unit, searched, and then placed in a police unit again.

Defendant and Mr. Melancon testified that when they were transported to the police station and removed from the police unit, the officer lifted up the |10backseat and removed cocaine, which he used to charge Mr. Melancon and defendant with possession of cocaine.

The jury clearly found Officer Laroche’s testimony to be more credible than that of defendant and Mr. Melancon. Apparently, the jury rejected the defense’s contention that Officer Laroche retrieved the drugs from the back seat of his unit and charged defendant and Mr. Melancon with possession of such drugs. Further, converse to defendant’s assertions, Officer Laroche’s testimony of events is physically possible and reasonable, considering that all of the witnesses confirmed the presence of additional officers on the scene. In addition, defendant acknowledged two prior convictions for possession of stolen goods as well as a conviction for theft. Mr. Melancon also confirmed that he was twice convicted for possession of cocaine, one of which involved the instant matter. As the State asserts, these facts could have influenced the jury’s credibility determinations.

Based on the record before us, along with the applicable law, we find that the evidence was sufficient to support defendant’s conviction for possession of cocaine.

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. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. Our review does not reveal any errors that require corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED

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

      . Mr. Melancon stated that he pled guilty to possession of cocaine, pursuant to North Carolina V. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Steven H. HARRCHE.
    No. 11-KA-183.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Cliff Milner, Jeff Legarde, 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, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2Pefendant Steven H. Harrche appeals his conviction for purse snatching, in violation of LSA-R.S. 14:65.1. On appeal, he argues that the evidence was insufficient to support the verdict as charged, but rather supports the lesser and included offense of theft. For the following reasons, we affirm.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information that charged defendant, Steven H. Harrche, with purse snatching in violation of LSA-R.S. 14:65.1. Defendant pled not guilty to this charge at his arraignment on June 24, 2009. The trial court denied defendant’s motion to suppress his statement on February 2, 2010. Thereafter, defendant proceeded to trial on May 19, 2010. On the following day, a six-person jury found defendant guilty as charged.

|sOn June 25, 2010, defendant filed a Motion in Arrest of Judgment and Alternatively Motion for New Trial, claiming that the evidence presented at trial did not support his conviction for the offense charged. The trial judge denied the motion for new trial, explaining that he had listened to the evidence presented and did not agree with the argument that the evidence did not support the conviction. Defendant objected. Defendant was sentenced to four years imprisonment with the Department of Corrections. Defendant’s appeal followed.

FACTS

On May 2, 2009, a Saturday evening, Mary Ann Wegmann went grocery shopping at the Winn Dixie supermarket at 5901 Airline Drive in Metairie. After completing her shopping, she was unloading groceries from her shopping cart into her SUV in the parking lot when someone took her purse from the top of the shopping cart.

Detective Kevin Balser of the Jefferson Parish Sheriffs Office spoke to Ms. Weg-mann on the telephone and was able to develop additional information about the perpetrator. She told him that the perpetrator was possibly a Hispanic male with a “ruddy” complexion, was unshaven, and had a ponytail. Detective Balser also spoke with Nathaniel Castillo, who had witnessed the perpetrator running away with the victim’s purse and observed the perpetrator enter a vehicle. Mr. Castillo was able to describe the vehicle as a late 1990’s Buick four-door blue car with a license plate that contained the letters “DL” or “D-V” and was followed by numbers that included a “four” and an “eight.” He also observed a white, heavyset |4male in the vehicle as well as another person seated in the front passenger seat of the vehicle.

On May 4, 2009, two days after the incident, Detective Balser and his partner, Detective Cedric Grey, decided to go in separate, unmarked vehicles and canvass the Winn Dixie area, which included hotels known for criminal activity. Detective Balser testified that in about the 4700 block of Airline Drive, he observed a 1999 blue, four-door, Buick LeSabre with the license plate number “DV 2485.” Detective Balser notified his partner and they conducted an investigatory stop of the vehicle. The vehicle was occupied by the driver, a white heavyset male who was identified as Keith Gilmore, and defendant, who was seated in the front passenger seat. Detective Balser testified that he did not expect to find the vehicle, but agreed it may have been luck.

After stopping the vehicle, the detectives identified themselves as robbery detectives with the Jefferson Parish Sheriff Office and explained that they were investigating a robbery. Gilmore and defendant were verbally advised of their Miranda rights and both agreed to go to the Detective Bureau for questioning. Detective Balser testified that defendant told him he was staying in Metairie in a motel at 4231 Airline Drive. The motel was not far from where defendant was stopped. Detectives Balser and Grey went to the motel and spoke with a white female who identified herself as “Nicky Fiorella,” but was later determined to be Lonnie Stanley. After being advised of the investigation, she consented to a search of the motel room. Nothing of evidentiary value was found in the room.

Defendant, Gilmore, and Stanley were transported to the Detective Bureau. Detective Balser filled out a rights of arrestee or suspects form with defendant and 1.^defendant initialed and signed the form, which advised him of his Miranda rights. Detective Balser interviewed defendant, who divulged information about his participation in the purse snatching and gave a recorded statement. This recorded statement was played for the jury.

In this statement, defendant said that “When I snatched the purse, I took off running.” He said he had been dropped off at the parking lot of Winn Dixie in the same blue Buick car he was stopped in. He said the car belonged to Keith. He said Nicky Fiorella and Keith were in the car when they dropped him off. He confirmed Nicky was staying with him in his motel room on Airline. He said it was his idea to go to Winn Dixie because he needed money to pay for a motel room, and this was the easiest way to get the money. He named the cross street by Winn Dixie as Elise Street. He said he got into the passenger’s side rear door of the car, Keith was driving, and Nicky was sitting in the front passenger seat. Defendant said “I grabbed the purse out the buggy and ran.” He explained that the woman was putting her groceries in the car. He said he did not see her face and knew she had not seen his. He recalled that the purse was black and said he went through it and found money and change. He said that $50.00 was found in the purse, and the money was used to pay for the motel room, which cost $45.00. He said the money was found inside of a bank envelope. He did not recall where the purse was at the time.

Defendant, Gilmore, and Stanley were all arrested in this matter. Neither Ms. Wegmann nor Mr. Castillo was able to make an identification of the perpetrator after being presented with a photographic lineup that included |6defendant’s photograph. Video surveillance footage of the Winn Dixie parking lot was obtained and played for the jury.

Ms. Wegmann testified that she went to the driver’s side of her vehicle to unload her groceries into her backseat. She then had to unload a watermelon, so she pushed her cart to the passenger side of her vehicle and opened the door to get to her backseat. She explained that her purse was by her side in the top section of the shopping cart, where a baby would be seated. Right after unloading the watermelon, however, she noticed her purse was gone. She saw the perpetrator running away from her vehicle with her purse. She chased him, but did not catch him. He was running towards Elise Street, a side street next to the Winn Dixie. She testified that he got into a getaway car that was on Elise Street, facing away from Airline Drive. She testified that she was able to give a general description of the car, but that it was hard to see the numbers on the license plate. She testified that the getaway vehicle was consistent with the vehicle depicted in State’s Exhibit 1. She also testified that she was able to give the detective a description of the perpetrator, who had a dark, brownish ponytail and a tan-colored complexion. She was unable to make an identification after viewing a photographic lineup presented to her.

Ms. Wegmann testified she had a wallet, coins, money, credit cards, a checkbook, several gift cards, at least two pairs of sunglasses, and her driver’s license in her purse. She explained that she also had between $50.00 and $100.00 in a bank envelope that was in her purse. She said that her purse itself was worth approximately $100.00. She estimated that her purse and everything in it was worth between $700.00 and $1,000.00. She explained that she realized after giving 17her statement that she had lost more than she initially believed. She was forced to cancel bank accounts and credit cards and had to obtain a new driver’s license. She testified that nothing was ever found or recovered. She also testified that no one had permission to run off with her purse from the Winn Dixie parking lot.

Nathaniel Castillo testified that on the afternoon of the incident, he was sitting down eating his lunch on the parking curb at the Winn Dixie when he heard a woman scream that someone had taken her purse. He got up and noticed the perpetrator running. The perpetrator was carrying a lady’s purse, and the victim was screaming and chasing him. Mr. Castillo chased the perpetrator and was approximately three feet from him when he got into the getaway vehicle, which sped off. He testified that he focused on the license plate of the vehicle, which he believed to be a “different kind of license plate” and noticed the letters and numbers on the plate were blue. He recalled two letters, which he believed were “D-L” and then four digits, which he believed contained a “four” and an “eight.” He also noticed the car was blue. Mr. Castillo testified that the perpetrator was a little shorter and thinner than he was and had olive skin and blackish hair. He testified that he could not make an identification because the photographs contained individuals with such similar characteristics. He acknowledged that the description he gave to the officers was consistent with a general description of defendant. He identified the getaway car as the car depicted in State’s Exhibit 1.

ASSIGNMENT OF ERRORr-Sufficiency of the evidence

In his only assignment of error, defendant argues the evidence was insufficient to support his conviction of purse snatching, and at most, the evidence only showed the crime of theft. Defendant admits that his identity was never at issue. However, he claims that the purse was not on the victim’s person and was |snot in her immediate control, but instead was in a grocery cart, which was steps away from her. He contends that the purse was taken while her back was turned and she was placing an object into her vehicle. Defendant asks that this Court set aside the verdict of purse snatching, vacate the sentence imposed, enter a verdict for the responsive charge of theft, and remand the matter for resentencing.

The State responds that it not only had the option of charging defendant with purse snatching, but that it correctly charged defendant. The State suggests that the grocery cart and purse were still in the victim’s immediate control at the time the purse was snatched, and therefore, the jury verdict was correct. The State also contends that the jury was instructed as to the responsive verdict of theft and chose not to return the lesser verdict.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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. See 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. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

[ 9“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.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. 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. 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 (quotation omitted).

Defendant was convicted of purse snatching. LSA-R.S. 14:65.1(A) provides as follows:

Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. See State v. Draughn, 05-1825, p. 8 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Defendant does not challenge identity in this case. Instead, he argues that the purse was not on the victim’s person or in her immediate control, and therefore, the State only presented evidence of theft.

The Supreme Court has held that “ ‘snatching’ ” does not require an actual face-to-face confrontation, and is distinguished from “ ‘use of force’ ” and “ ‘intimidation’ ” by the statute’s very wording. State v. Anderson, 418 So.2d 551, 552 (La.1982). The State need only show that force or intimidation or snatching was used to accomplish the theft of something of value from the purse that is within the immediate control or on the person. State v. Boss, 03-133 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 78 (emphasis as found in decision), writ denied, 03-1968 (La.5/14/04), 872 So.2d 508. LSA-R.S. 14:65.1 does not require that the victim know at the time of the taking that his or her property is taken or snatched. State v. Smith, 07-2028, p. 11 (La.10/20/09), 23 So.3d 291, 298 n. 3 (per curiam). It remains possible in Louisiana to “snatch” a victim’s purse from her possession without her awareness at the time of the taking. Id.

In Anderson, supra, sufficient evidence of a purse snatching was found where the victim testified only that she felt a vibration, then noticed that her purse was no longer on the floor by her feet. In State v. Capote, 474 So.2d 497 (La.App. 4 Cir.1985), the court held that even though the victim did not feel her purse being removed from the back of her chair, the theft constituted purse snatching, recognizing that no face-to-face confrontation was required. The court found sufficient evidence to support the purse snatching conviction.

In State v. Pierre, 04-0010, p. 1 (La.App. 4 Cir. 2/25/04), 869 So.2d 246, 247, the defendant was found guilty of attempted purse snatching. On appeal, the defendant argued there was insufficient proof that his actions constituted attempted purse snatching when there was no evidence offered that the purse contained anything of value or that it was taken from the victim’s immediate control. Pierre, 04-0010 at 3-4, 869 So.2d at 248-49. The victim in Pierre testified that when her purse was taken it was right next to the cash register where she had been standing until the defendant pushed her aside, Pierre, 04-0010 at 4, 869 So.2d at 249. The court found that the evidence was sufficient to show that the defendant “snatched” Inthe purse, noting that the victim saw the defendant with her purse, which seconds before had been in her immediate control. The court found that “[s]uch is adequate evidence even if he merely picked it up from the counter.” Pierre, 04-0010 at 5, 869 So.2d at 249.

In Boss, 848 So.2d at 76, the defendant challenged the sufficiency of the evidence used to convict him of purse snatching. In Boss, while grocery shopping, the victim placed her purse in the top compartment of the grocery cart and walked to the dairy case, while pushing the cart. She parked the cart and stepped about three feet away from it to retrieve milk. When she returned to her cart, her purse was missing, and she observed someone proceeding through the grocery aisle with her purse on his shoulder. She screamed and began to chase him through the store. The suspect dropped the purse at the store entrance and ran into the parking lot. Id.

In Boss, the Jefferson Parish District Attorney filed a bill of information charging the defendant with theft of goods, but shortly before trial, the State amended the bill of information to reflect a purse snatching charge. The defendant was found guilty as charged after a bench trial. Id. at 76-77. On appeal, the defendant argued that the State failed to prove an essential element of the crime of purse snatching and argued that the matter should have been considered a theft. Id. at 77. This Court recognized that the District Attorney has the sole discretion to choose under which law he will prosecute. Id. This Court also determined that even though there was no eyewitness to the “snatching,” it found that the State proved by circumstantial evidence the essential elements of the purse snatching offense beyond a reasonable doubt. This Court recognized that prior to the victim finding her purse missing, the victim had her purse, which contained things of value, and it was in her immediate control. This Court noted that the victim turned away to retrieve some milk and in the length of time that it took to do that her |12purse was gone. This Court further recognized that the victim immediately spotted the defendant with her purse in his possession as he attempted to flee the store. Another witness saw the defendant running through the store with the purse on his arm as well. This Court concluded that the evidence was sufficient to sustain the purse snatching conviction. Id. at 78.

In the present case, the State presented sufficient evidence to prove that the purse was in the victim’s immediate control when it was “snatched” from the shopping cart. Mr. Castillo was asked if he saw the purse being removed from the place it was to the perpetrator’s hand. He responded that he had not. As such, his testimony does not shed any light as to the issue at hand. However, the victim’s testimony does. Ms. Wegmann testified that her purse was taken when her back was turned. She was asked how far away she was from her purse when she was putting the watermelon into her vehicle. She answered, “[i]t was close. It was in the top basket which was right by my side.” She was then asked if she could have reached over and grabbed her purse, and she responded that she could have. She admitted that there was no physical contact between her and the perpetrator.

In defendant’s statement, he said the victim was in her car when he grabbed the purse. He was then asked, “She was by her car or she was sitting in the car?” Defendant answered “She was putting her groceries in the car.”

As such, the State presented evidence that the victim was near her purse that was in the cart when she turned away to load a watermelon into her vehicle. Prior to loading the watermelon, she had unloaded her other groceries into the backseat of her vehicle on the driver’s side. She then moved her cart which contained her purse to the other side of her vehicle to load the watermelon. She agreed that she was close enough to her purse that she could have grabbed it. It appears that she turned her back only momentarily. Her testimony suggests that she noticed her | 13purse was missing immediately and saw the perpetrator running away from her vehicle with her purse. She then chased him. The jury chose to believe her testimony.

It is noted that defendant presented this issue in his closing argument to the jury, explaining that he believed the charge should have been theft instead of purse snatching. Further, the jury instructions included responsive verdicts of theft. The jury obviously rejected this argument as evidenced from its verdict of guilty as charged of purse snatching. After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime, including that the purse was snatched while it was in the victim’s immediate control, beyond a reasonable doubt. This assignment of error is without merit.

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); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). One error was found that requires corrective action.

Although the commitment reflects that defendant was given a proper advisal of the time period for seeking post-conviction relief, the transcript reflects an incomplete advisal. The transcript reflects that defendant was advised that he had “two years to file post conviction relief.” The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, defendant is advised by way of this opinion that Upursuant to LSA-C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. State v. Arias-Chavarria, 10-116, p. 13 (La.App. 5 Cir. 9/28/10), 49 So.3d 426, 434, writ denied, 10-2432 (La.2/25/11), 58 So.3d 460.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Defendant orally noted his intention to file a motion for appeal after he was sentenced on June 25, 2010. A written motion for appeal was filed on July 1, 2010, and was granted on July 6, 2010. Defendant was sentenced as a second felony offender on August 5, 2010. The motion for appeal was filed after his conviction and imposition of the original sentence but before imposition of defendant’s enhanced sentence. However, it appears any prematurity was cured by the subsequent re-sentencing of defendant as a multiple offender. See State v. Horton, 09-250, p. 4 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 373 n. 1; State v. Davis, 07-544, p. 3 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 63 n. 1, writ denied, 08-0380 (La.9/19/08), 992 So.2d 952.

      . Detective Balser identified the vehicle he stopped as the vehicle depicted in the photographs that were presented at trial as State’s Exhibit 1, in globo.

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

      . It is noted that this person’s name is spelled differently in the transcript of defendant’s statement.

      . Detective Balser testified that the transcription of the statement (State's Exhibit 3) accurately reflected the statement he received from defendant.

      . Dawn Sueco (phonetic spelling from tran- . script) was also shown the photographic lineup, but was not able to make an identification. Detective Balser testified that she was a witness with whom he was unable to make contact.

      . The credibility of witnesses is within the sound discretion of the trier of fact. State v.

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

      . The State notes this error patent in its response brief and suggests that this Court advise defendant of the prescriptive period by means of its opinion.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Bobby C. WILFORD.
    No. 11-KA-256.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Bobby Wilford (‘Wilford”), takes this appeal from his convictions and sentences on two counts of criminal activity. For reasons that follow, we affirm.

The Jefferson Parish District Attorney filed a bill of information charging Wilford with one count of possession of marijuana, fifth offense, in violation of La. R.S. 40:966(C) (Count 1) and one count of possession of cocaine in violation of La. R.S. 40:967(C) (Count 2). Wilford was arraigned and entered a plea of not guilty to each count. Wilford filed a motion to suppress the evidence that was denied by the trial court. Wilford sought review of that ruling on an application for supervisory writs to this Court. We denied relief on the basis that the application did not contain sufficient information to address the merits of the claim and that Wilford had adequate remedy on appeal.

Subsequently, the State amended the bill of information, reducing Count 1 from possession of marijuana, fifth offense, to possession of marijuana, fourth offense. Wilford withdrew his former pleas of not guilty and tendered pleas of guilty pursuant to State v. Crosby, reserving his right to seek appellate review of |athe denial of his motions to suppress. The court sentenced Wilford to concurrent five-year sentences at hard labor on each count, suspended the sentences, and placed Wilford on active probation for five years. The court further ordered Wilford to pay all fines, fees, and court costs and to perform 100 hours of community service. Wilford filed a timely motion for appeal, seeking review of the trial court’s denial of his motions to suppress, which was granted by the trial court.

FACTS

On Sunday, April 12, 2009, around 11:00 p.m., Jefferson Parish Deputy Tammy Howard, unaccompanied, responded to a report of a burglary of an apartment. Upon her arrival, Deputy Howard conferred with the female occupant of the apartment who had reported the burglary. Wilford, the victim’s boyfriend, was also present at the apartment. Deputy Howard took the information from the victim concerning the burglary while Wilford stood nearby. The deputy went to her vehicle to retrieve the necessary paperwork to complete the report. When she returned to the apartment, Deputy Howard observed Wilford standing in the doorway with his pants down to his ankles, exposing his underwear and a bloody towel wrapped around the bottom of his leg. Deputy Howard asked Wilford what happened. Wilford, who was then nervously pacing back and forth, responded that he saw police in the area earlier, ran, because he had drugs on him, and injured his leg while jumping over a fence.

After hearing this statement from Wilford, Deputy Howard, aware that there had been two earlier reports in the area of an aggravated battery and an armed robbery, placed Wilford in handcuffs “for [her] safety, because [she] didn’t know what the situation was at that point.” On cross-examination, Deputy Howard stated that Wilford was not under arrest when she placed the handcuffs on him. |4She explained that she was alone investigating a crime at the residence and was aware of the other recent crimes in the area. So, she placed Wilford in handcuffs until she could determine exactly what was happening in the residence and so that she would be safe during that investigation.

As she handcuffed Wilford, the deputy observed Wilford drop “two off-white rocks” to the floor by his feet, which she believed to be crack cocaine. At this point, Deputy Howard placed Wilford under arrest and read him his Miranda rights. She then executed a search of Wilford’s person incident to the arrest. This search revealed a clear plastic baggie of marijuana and a clear plastic baggie of crack cocaine in Wilford’s rear right pant pocket. Deputy Howard took Wilford to the hospital for treatment before bringing him into custody.

LAW AND ANALYSIS

In Wilford’s sole assignment of error, he argues that Deputy Howard had neither probable cause to arrest him nor a reasonable suspicion to detain him before he discarded the rocks of crack cocaine. Consequently, he contends that the evidence obtained subsequent to his being handcuffed was obtained in violation of the Fourth Amendment and, therefore, should have been suppressed.

Conversely, the State contends that Wilford’s physical restraint did not amount to an arrest and was justified by the officer’s concern for her safety. The evidence obtained thereafter was lawfully obtained and should not have been suppressed because of the plain view doctrine.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution, Article I, Section 5, protects individuals from unreasonable searches Rand seizures. Although a seizure occurs for Fourth Amendment purposes either when an individual has been subjected to physical restraint or when he submits to the assertion of official authority, no bright-line rule exists for distinguishing between investigatory stops, characterized by a brief restraint imposed on a lesser showing of reasonable suspicion, and arrests based on probable cause. However, it is well established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. The Terry standard, as codified in La.C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. This Court has recognized that “the threshold of one’s dwelling ... as is the yard surrounding the house,” are public places under the cases interpreting the Fourth Amendment. Reasonable suspicion is something less than probable cause to arrest, though it is more than an officer’s mere unparticularized suspicion or hunch of criminal activity.

In making the determination of whether a police officer had a reasonable suspicion, a reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. Factors that may support a reasonable suspicion for an investigatory stop include an officer’s experience, his | (¡knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes.

In the instant case, Deputy Howard was at the threshold of the apartment during her encounter with Wilford, a location at which she was legally permitted to be because she was there in response to a report of a burglary. While there, she was confronted with the peculiar incident of Wilford standing in the doorway with his pants down to his ankles, exposing his underwear, and a bloody towel wrapped around the bottom of his leg. In response to the officer’s question about his apparent injury, Wilford voluntarily offered the statement that he had run from the police earlier in the day because he had drugs on him. Additionally, it was eleven o’clock at night, and Deputy Howard was alone and was aware of criminal activity in the area due to her response to the report of a burglary and her knowledge of earlier reports in the area of an aggravated battery and armed robbery.

Considering the totality of the circumstances, including Wilford’s volunteered incriminating statement, his nervous pacing, the lateness of the hour, and the criminal activity in the area, we find that Deputy Howard had a reasonable suspicion to conduct an investigatory stop of Wilford.

Having found that a reasonable suspicion for an investigatory stop existed, the next issue to be addressed is whether the physical restraint of Wilford was warranted and whether the handcuffing elevated the encounter from an investigatory stop to an arrest.

This Court has addressed the law regarding when the use of handcuffs escalates an investigatory stop into, a de facto arrest requiring probable cause, as follows:

17Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. There is no question that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Therefore, when the State seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable cause to render it valid....

[12] Further, we noted that, since police officers should not be required to take unnecessary risks in the performance their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. We have also recognized that, because drugs, guns, and violence often go together, this may be a factor tending to support an officer’s claim of reasonableness.

In the matter before us, the record indicates that Deputy Howard handcuffed Wilford for her safety, testifying that she “didn’t know what the situation was at that point.” Considering the totality of the circumstances, including Wilford’s volunteered incriminating statement, his nervous pacing, the lateness of the hour, the fact that the officer was alone, and the criminal activity in the area, most notably at the residence where the encounter with Wilford occurred, we find that Deputy Howard was justified in handcuffing Wilford as a safety precaution in order to effectuate the Terry stop; those actions did not rise to the level of an arrest.

|8At that point, Deputy Howard observed Wilford drop what turned out to be two rocks of crack cocaine. Under the plain view doctrine, an officer may seize contraband that he believes to be a controlled dangerous substance that inadvertently falls into plain view during a legal investigatory stop when there are exigent circumstances indicating that the defendant will attempt to reclaim it or possibly dispose of it before the officer can obtain a search warrant. Because the rocks fell into plain view during a lawful investigatory stop and Deputy Howard suspected them to be crack cocaine, we find that her seizure of them was lawful.

Once she became aware that the rocks were contraband, Deputy Howard then had probable cause to arrest Wilford. This Court has held that an officer may make a warrantless arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Deputy Howard’s experience as a law enforcement officer, and her belief that the “off-white” rocks were crack cocaine, was sufficient to give her probable cause to believe that Wilford had committed a crime, namely, possession of cocaine.

After Wilford was placed under arrest, Deputy Howard was then justified in searching Wilford’s person under the search incident to lawful arrest exception to the Fourth Amendment’s warrant requirement. That exception holds that, once a lawful arrest has been made, a warrantless search of the arrestee’s person and of the area within his immediate control is permissible in order to remove any 19weapons from his person and to prevent evidence from being destroyed. Thus, we find that the baggies of marijuana and crack cocaine were lawfully seized under the search incident to lawful arrest exception.

The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of its discretion. Because the evidence in this case was obtained as a result of a lawful search and seizure, the trial judge did not abuse his discretion in denying Wilford’s motion to suppress the evidence.

This assignment of error has no merit.

The record was reviewed for errors patent. The review reveals no errors patent in this case.

Accordingly, we affirm the convictions and sentences on appeal.

AFFIRMED

      . State v. Wilford, 09-827 (La.App. 5 Cir. 10/27/09) (unpublished writ disposition).

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

      . The rocks later tested positive for crack cocaine.

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

      . State v. Liles, 01-573 (La.App. 5 Cir. 11/27/01), 803 So.2d 125, 129.

      . California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . State v. Parnell, 07-37 (La.App. 5 Cir. 5/15/07), 960 So.2d 1091, 1097, writ denied, 07-1417 (La. 1/7/08), 973 So.2d 733.

      . Terry v. Ohio, supra.

      . State v. Dickerson, 10-672 (La.App. 5 Cir. 4/26/11), 65 So.3d 172, 176.

      . State v. Parnell, 07-37 (La.App. 5 Cir. 5/15/07), 960 So.2d 1091, 1098 (quoting U.S. v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976)).

      . State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968.

      . State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330.

      . State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076.

      . State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102.

      . State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657 (citations omitted).

      . Id. (citing State v. Porche, 06-0312 (La. 11/29/06), 943 So.2d 335, 339).

      . State v. Thomas, 08-521 (La.App. 5 Cir. 1/27/09), 8 So.3d 646, 653, writ denied, 09-0391 (La. 12/18/09), 23 So.3d 928. See, State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330.

      . State v. Micelotti, 07-700 (La.App. 5 Cir. 2/6/08), 979 So.2d 573, 577, writ denied, 08-0539 (La.9/26/08), 992 So.2d 984.

      . State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La. 11/28/05), 916 So.2d 143 (citation omitted); La.C.Cr.P. art. 213.

      . Austin, 900 So.2d at 879 (citation omitted).

      . State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634.

      . State v. Rogers, 09-13 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382 (citations omitted).

      . 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).


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Michael P. LONG.
    Nos. 11-KA-313, 11-KA-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2The defendant/appellant, Michael Long (“Long”), appeals his conviction and sentence for armed robbery arguing that there was insufficient evidence to support the conviction and that the trial court erred in imposing a constitutionally excessive sentence. For the reasons discussed below, we affirm the conviction and vacate the multiple-offender sentence and remand the case to the district court for resentenc-ing.

Factual and Procedural Background

Rebecca Gavin worked as a bartender at the Triangle West Bar located at 10801 Jefferson Highway in River Ridge, Louisiana during the early morning hours of October 31, 2010. After the last group of patrons left for the evening, Rebecca closed and locked the front door around 2:15 A.M. Eric Hymel, a regular | acustomer, remained in the bar with her so he could walk Rebecca to her car as he had always done.

Outside of the bar door stood Long, another regular customer, and 16-year-old Darius Patterson. Long’s face was covered with a white shirt, and Darius, who wore a black coat with a fur hood, had covered his face with a black ski mask. Long knocked on the bar’s front door. When no one answered, he uncovered his face hoping to use his relationship with Rebecca and Eric to gain entrance into the bar. When Eric heard the knock, he looked up and saw Long through the door window. Eric informed Rebecca that it was “Mike.” She then went to the door and spoke with him through the half-opened door. Long asked if he could come inside to get a beer. She complied. Rebecca did not find Long’s request strange because he had been at the bar after hours before.

As Rebecca walked to the bar to get the beer, she saw someone, later identified as Darius, enter behind Long. Rebecca did not realize a robbery was about to occur. She simply looked at Darius in the coat and ski mask and thought to herself, “it’s not that cold outside.” While Rebecca was looking at Darius, however, Long yelled “Alright, ya’ll know what’s up. Give me the money.” When she turned to face Long, he had pulled out a shotgun.

Darius, who remained masked, jumped on top of the bar, pointed a small revolver in Rebecca’s face and demanded the money from the register. Eric, who was standing at the bar with Long, asked Long why he was doing this and begged Long not to shoot him. Meanwhile, Darius obtained the money from the register and demanded that Rebecca give him the money from the poker machines as well. When Rebecca explained that she did not have access to the poker machines, Darius took her to the back to get money from the safe. Rebecca unlocked the safe and assisted Darius in retrieving the money which they stuffed into smaller bags. |4He then unzipped his coat and revealed a yellow back pack braced on the front of his chest and instructed Rebecca to put the money in there. Darius brought Rebecca back up to the front of the bar and told Long that he “got it.” As they left, Long went into a rant about how times were hard and that this was not personal, stating that he was just trying to get back at Janice. As the perpetrators exited the bar, Long asked Eric for a cigarette and told them to go ahead and call the police. Rebecca then pushed the panic button. She and Eric both called 9-1-1. The entire ordeal was caught on the bar’s video surveillance cameras.

Long and Darius stole $16,728.00 during the robbery. The two fled to a nearby railroad track where they discarded the shotgun. They then went to a friend’s house, divided the proceeds, and went their separate ways.

Deputy David Chaplin, of the Jefferson Parish Sheriffs Office, arrived at the bar within three to five minutes after the 9-1-1 call had been placed. When he arrived, Dep. Chaplin performed a preliminary examination and interviewed both Rebecca and Eric. Eric gave the deputy Long’s name and address. Rebecca and Eric both identified Long from a photographic lineup.

A reliable confidential informant later contacted Detective Derrick Magee of the Jefferson Parish Sheriffs Office and told him that he had information related to the armed robbery that occurred on Jefferson Highway. The informant identified the suspects as “Darius” and “Mike Long.” The detectives confirmed Darius’ identity and applied for a search warrant to search his home for proceeds from the robbery. They executed the search warrant on November 4, 2011, at 2303 Tenth |fiStreet. While there, the officers retrieved several guns, including a .22 handgun, U.S. Currency, drug paraphernalia, a black ski mask, and a black coat with a fur hood. Darius was taken to the detective’s bureau where he voluntarily signed a juvenile rights of arrestee form in the presence of his grandparents. Darius gave a taped statement about the robbery and identified Long as his co-perpetrator. He also told the officers where the two of them had discarded the shotgun, which was near a railroad track a few blocks from Wicker Neal Avenue in River Ridge. Darius accompanied the officers to the location so they could retrieve the gun.

A few days later, the detectives obtained additional information which led them to believe Long was located at 613 Wilker Neal Avenue. The police went to that address on November 6, 2010, where the homeowner gave them permission to search. The detectives did not find Long during that visit; however, when they left, the detectives were informed that Long was definitely there. They returned to 613 Wilker Neal and obtained permission to search again. This time, they found Long hiding in a closet. Det. Canas Mir-andized Long and attempted to question him. Because Long was very combative, Det. Canas ceased questioning and transported Long to jail. He visited Long a few days later at the jail and re-Miran-dized him. Long voluntarily signed the rights of arrestee form and denied any involvement in the robbery, stating that he was with his girlfriend on that night.

On November 23, 2009, the Jefferson Parish Sheriffs Office charged Long with armed robbery in violation of La. R.S. 14:64.3. He pled not guilty at arraignment. He moved to suppress Darius’ statement, the evidence of the shotgun, and the identification given by Rebecca and Eric. All motions were denied. The case proceeded to trial on August 12, 2010.

At the trial, Rebecca, who had worked at the Triangle West Bar for approximately three years, testified that she had known Long for almost two years Rand that he referred to her as “baby girl.” She testified that on the night of the robbery, Eric remained in the bar with her after closing. While the two talked, they heard something at the door. That was when Eric told her that it was “Mike.” She then went to the door and spoke to Long whom she had not seen in a while. Long then asked if he could come inside to get a beer, and the robbery occurred. Rebecca testified that after the robbery, Long told them it was not personal and asked Eric for a cigarette. She testified that she was scared for her life.

Eric testified that he had been a customer at the bar for about five years and that he had known Long for a year and a half. He testified that on the night of the robbery, Rebecca was in the back counting the money when Long knocked on the door. He said he yelled out to Rebecca that “Mike” wanted to come in to get a beer to go. According to Eric, Rebecca told him to let Long come inside. He then opened the door, and the robbery occurred. Eric stated that after the robbery, Long told them it was not personal and asked him for a cigarette. Eric stated that he was fearful he would never see his two little girls again.

Long testified that he did not participate in the robbery of the Triangle West Bar. He said that he was with his girlfriend, Ashley, that night, but he was unable to recall her last name. He further testified that he never referred to Rebecca as “baby girl.” He denied being found in a closet on Wilker Neal, testifying that he was in the hallway when the police arrived. Long admitted knowing Darius but only because of his tattoo business. He also testified about his prior convictions which included possession with intent to distribute marijuana, theft of stolen goods over $500, possession of weapon, and simple escape.

The jury found Long guilty of the charged offense. The trial judge then sentenced him to 99 years imprisonment at hard labor without the benefit of ^probation, parole, or suspension of sentence. The judge stated that he took La. C.Cr.P. art. 894.1 into consideration before imposing the sentence. Long objected to the excessiveness of the sentence, but the objection was denied. The State filed a multiple bill on August 23, 2010, alleging Long to be a third felony offender. Long pled not guilty. At the multiple-bill hearing, the State proved two predicate offenses of possession of stolen goods over $300 and distribution of marijuana. Long was then adjudicated a third felony offender. The trial judge vacated the original sentence imposed on the armed robbery conviction and resentenced him pursuant to La. R.S. 15:529.1 to 99 years imprisonment at hard labor without the benefit of probation or suspension of sentence.

Assignments of Error

Long appeals his conviction and sentencing arguing that the evidence was insufficient to support the conviction and that the trial court erred in imposing an excessive sentence.

Discussion

First Assignment of Error

In his first assignment of error, Long contends that the evidence at trial was insufficient to support the conviction for armed robbery because the State failed to prove his identity.

In reviewing the sufficiency of the evidence to support a conviction, the reviewing court must determine if the evidence, 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 had been proven beyond a reasonable doubt. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1084. (citation omitted). The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. Id.

IsWhen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Harris, 07-124, p. 9 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193 (citation omitted). Positive identification by one witness is sufficient to support a conviction. Id. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

In this case, two eyewitnesses identified Long as one of the robbers of the Triangle West Bar. Rebecca testified that she had known Long for almost two years. In fact, Rebecca testified that before allowing Long to come inside, she stood in the door and talked with him because she had not seen him in a while. She further testified that the only reason she allowed Long to enter the bar was because she knew him and considered him a friend. Eric testified that he had known Long for a year and a half and that he recognized Long in the door window. After recognizing Long, he then told Rebecca that it was “Mike.”

Long argues, however, that Eric and Rebecca’s conflicting testimony regarding who opened the door cast doubt on their credibility as witnesses. Although discrepancies exist in their testimony on that issue, neither of them waivered in their testimony that Long robbed them that night. Moreover, their testimony regarding other events is consistent, i.e. Long telling them it was not personal, asking Eric for cigarettes, and telling them to call the police.

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476. In the absence of internal contradiction or irreconcilable ^conflict with physical evidence, the testimony of one witness, if believed by the fact finder, is sufficient to convict. State v. Addison, 00-1730, p. 7 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549.

Next, Long argues that the evidence is insufficient because the video surveillance tape did not clearly identify the second perpetrator. A similar argument was presented in State v. Williams, 04-0697 (La.App. 5 Cir. 11/30/04), 889 So.2d 1135. In that case, the defendant, who had been convicted of armed robbery, challenged his conviction arguing that the evidence was insufficient to prove his identity. He argued that the bank’s security camera failed to capture a photograph of the robber. In that case, we stated, “[t]he fact that the cameras failed to capture the robber’s image does not, as defendant suggests, take away from the strength of the witnesses’ identifications.” Id. at 1140. (emphasis added). The same reasoning applies here. Two eyewitnesses, who had known Long for a reasonable length of time, identified him as one of the robbers.

Considering the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found that the State proved Long’s identity beyond a reasonable doubt. It is not the function of an appellate court to assess the credibility of the witnesses or re-weigh the evidence to overturn a jury’s finding of guilt. Williams, supra, at 1141. Therefore, this assignment of error is without merit.

Second Assignment of Error

In his second assignment of error, Long argues that his habitual offender sentence of 99 years imprisonment at hard labor is excessive. As discussed in the error patent section below, Mr. Long’s sentence is indeterminate. Because we are remanding the case for resentencing, we pretermit discussion of this assignment of error.

| inError Patent Discussion

The record was reviewed for errors patent in conformity with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals one error that requires corrective action.

Errors concerning original sentence are rendered moot once the enhanced sentence is imposed. State v. McCloud, 04-1112, p. 9 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, 505, writ denied, 05-1450 (La.1/13/06), 920 So.2d 235. In this case, Long’s original 99-year sentence was vacated, and he was re-sentenced under the multiple-bill. Thus any errors in the original sentence are moot and our review of sentencing errors are limited solely to the multiple-bill hearing.

We first note that the trial judge imposed an indeterminate sentence because he failed to impose the mandatory five-year firearm enhancement provision required by La. R.S. 14:64.3. Louisiana Revised Statute 14:64.3 provides:

[wjhen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Although the State listed the enhancement in the multiple bill of information and the jury found Long guilty of committing armed robbery with a firearm, the trial judge did not state that he was imposing an additional period of incarceration when imposing the 99-year sentence. We therefore find the habitual offender sentence indeterminate. We vacate that sentence and remand for resentencing. State v. George, 09-886 (La.App. 5 Cir. 3/23/10), 39 So.3d 671 (citations omitted).

We also note that the commitment reflects that Long was given credit for time served but that the transcript is silent on the issue. Receiving credit for time served, however, is self-operating pursuant to La.C.Cr.P. art. 880. State v. Johnson, 05-180, pp. 10-1 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 582, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282. Therefore, corrective action is not necessary.

Finally, we note that Long was not advised of his multiple offender rights. This Court has held that the failure of the trial court to advise the defendant of his right to remain silent is harmless error when the defendant remains silent and his multiple offender status is established by competent evidence offered by the State at the hearing, rather than by the defendant’s admission. State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389. In this case, the trial court held a multiple offender hearing at which Long’s multiple offender status was established by evidence. Further, Long did not testify at this hearing. Accordingly, the failure of the trial court to advise him of his right to remain silent is harmless error.

Conclusion

Based on the foregoing, Mr. Long’s multiple offender sentence is vacated as indeterminate. The case is remanded to the trial court for resentencing. In addition, we reserve Mr. Long’s right to appeal his newly imposed sentence.

CONVICTION AFFIRMED; MULTIPLE-OFFENDER SENTENCE VACATED AS INDETERMINATE; REMANDED TO THE DISTRICT COURT.

      . Prior to October 31, 2010, the bar owner, Ms. Janice Stipelcovich, told Long that he was no longer welcomed at the bar. She first told him on August 2, 2010, and then again on October 29, 2010 — which was the last time she saw him. Janice suspected that Long was selling drugs from her bar and did not want him to come back there. Rebecca, who had been off work for awhile with her ill child, was unaware that Long was not welcomed there.

      . Dep. Chaplin helped serve a search warrant between 10:30 P.M. and 11:00 P.M. on October 31, 2010, at 10950 Jefferson Highway Apartment U2 but was informed that Long no longer lived there. No proceeds of the robbery were found at that address.

      . Long was a self-employed tattoo artist.