author: PAINTER, Judge.

text:
    STATE of Louisiana v. Berry CEASAR.
    No. 11-1406.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      ’ Beth Fontenot, Lake Charles, LA, for Defendant-Appellant, Berry Ceasar.
    Jonathan Blake, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of, SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

[, Defendant, Berry Ceasar, appeals his conviction for possession of a firearm by a convicted felon. For the following reasons, we affirm and remand with instructions.

FACTS

Defendant, who has three prior felony convictions, pawned a shotgun at Lake City Pawn Shop. He was charged by bill of information with possession of a firearm by a’convicted felon, a violation of La.R.S. 14:95.1. He was tried by a jury on January 12, 2011. The jury returned a guilty verdict. On April 27, 2011, Defendant was sentenced to ten years at hard labor, to be served concurrently with whatever sentence he was serving at the time. Defendant appeals.

DISCUSSION

Sufficiency of the Evidence

Defendant contends that the State failed to prove beyond a reasonable doubt that he was the one who pawned the firearm and that he had the requisite general intent to possess the firearm.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La. App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371 (citations omitted).

The elements of the charge, possession of a firearm by a convicted felon, are set out in La.R.S. 14:95.1(A) (footnote omitted), as follows:

It is unlawful for any person who has been convicted of a crime of violence as defined.in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

Defendant does not dispute that he has prior felony convictions or that the ten-year cleansing period required by the provisions of La.R.S. 14:95.1(C) has not run.

. Evidence presented at trial showed that following a conviction for armed robbery in October 1981, Defendant was adjudicated a habitual offender and sentenced to seventy-five years imprisonment. Defendant was paroled in December 2001.

On October 11, 2004, Kevin Kirkum, a sergeant-detective with the Lake Charles Police Department, was advised that Defendant pawned a New Haven .410 bolt action shotgun at Lake City Pawn Shop, in Lake Charles, LA. Sergeant Kirkum explained that at the time, he was involved with an alcohol, tobacco, and firearms task force project which reviewed pawned guns. After ascertaining that Defendant had pri- or-felony convictions, he | ^.contacted the pawn shop and seized the shotgun. Testing proved the shotgun to be operational.

Angela Bellard, an employee of Lake City Pawn Shop, testified that she received the shotgun on October 11, 2004. She stated that when a gun is received for pawn, the person pawning the weapon must show either a driver’s license or a state identification card. The identification is recorded on the receipt along with the person’s address. Defendant’s driver’s license number, address, and signature were on the receipt. A copy of the receipt was submitted as evidence at trial. In both a photographic lineup and at trial, Ms. Bellard identified Defendant as the man who brought the shotgun to the pawn shop.

Defendant argues in brief that Ms. Bellard could not testify for certain that the shotgun belonged to Defendant, nor could she absolutely state that it was Defendant who pawned the shotgun since it had been so many years since the transaction. When asked if anyone was with Defendant when the transaction took place, Ms. Bellard could not remember

Defendant also argues that Ms. Bellard, the only eyewitness, could not testify as to whether Defendant possessed the requisite general intent to possess a firearm. Finally, Defendant argues that nowhere in his conditions for parole was it stated that he could not possess a firearm.

On redirect examination, Ms. Bellard testified that it was Defendant who came into the shop with the shotgun in his possession. When asked if it was possible that someone else could have come in the store with Defendant and “that you could have gotten the weapon from another person, and he [Defendant] was the party that gave his ID?” the witness explained that ^whoever pawns a gun has to put up their own ID for it and that signing the receipt is an acknowledgment of ownership of the gun.

The State argues that even if there was another person involved in the transaction, under Defendant’s proposed scenario, the weapon was constructively possessed by him. The State points out that two of the elements necessary to sustain a conviction under La.R.S. 14:95.1 are possession of a firearm and the general intent to commit the crime.

Actual possession of a firearm is not necessary to satisfy the possession element of the statute; it is sufficient that the subject had constructive possession. A person is in constructive possession of a thing if it is subject to his dominion and control. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. The jurisprudence additionally requires proof that the offender was aware that a firearm was in his presence, and that he had the general criminal intent to possess the weapon.

State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 886 So.2d 589, 593, writ denied, 03-535 (La.10/17/03), 855 So.2d 755 (footnotes omitted).

As for the element of general intent to possess the weapon, intent is a fact question which “may be inferred from the circumstances of a transaction.” State v. Johnson, 09-862, p. 3 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267. Whether there was a person accompanying Defendant when he signed the pawn ticket is of no importance to the fact that he represented himself as the shotgun’s owner. This in itself is general intent to possess a firearm.

Finally, Defendant’s argument that he was unaware of the prohibition from possessing a firearm because it was not listed as a condition of his parole has no merit. It is a crime for a convicted felon to possess a firearm. Ignorance of the law in this case is no excuse.

| ¿Therefore, we find that the evidence presented by the State was sufficient to allow the jury to find Defendant guilty of the charge of possession of a firearm by a convicted felon beyond a reasonable doubt. Post-Conviction Relief

Defendant argues that the trial court erred by failing to inform him of the prescriptive period for filing post-conviction relief.

A review of the record indicates that Defendant is correct. Louisiana Code of Criminal Procedure Article 930.8 requires the trial court to advise a defendant that he has two years from the date the conviction and sentence become final in which to file an application for post-conviction relief. The remedy for failure to do so to direct the trial court to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant has received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Jury Request

Defendant has reserved the right to file an assignment of error regarding the trial court’s response to the jury’s request for the definition of “possession” once he received the pertinent transcript. However, appellate counsel indicates that she will not argue this assertion. Accordingly, the error is abandoned.

CONCLUSION

Defendant’s conviction for possession of a firearm by a convicted felon is affirmed. Additionally, the trial court is instructed to inform Defendant of the provisions of La. Code Crim.P. art. 930.8 by sending 1 ^appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant has received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: GENOVESE, Judge. COOKS, J.,

license: Public Domain

text:
    STATE of Louisiana, v. Demarcus FOBB.
    No. 11-1434.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Paula C. Marx,'Louisiana Appellate Project, Lafayette, LA,- Alex J. Washington, Washington & Wells, Shreveport, LA, for Defendant/Appellant, Demarcus Fobb.
    Van H. Kyzar, District Attorney, Tenth Judicial District, Natchitoches, LA, for Apr pellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this criminal case, Defendant, De-marcus Fobb, appeals his convictions by jury of possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. For the following reasons, due to error patent and insufficiency of the evidence, we reverse the convictions and vacate the concomitant sentences for possession of marijuana with intent to distribute and illegal possession of a firearm by a convicted felon, enter a conviction for the lesser offense of possession of marijuana, and remand this matter for resentencing and a proper disposition of the remaining six counts in the bill of information.

FACTS AND PROCEDURAL HISTORY

On December 2, 2009, agents of the Natchitoches Parish Sheriffs Office were summoned to 119 Amanda Drive in Natch-itoches, Louisiana. After the agents knocked on the door, Defendant came outside and shut the door of the residence. The agents noticed an odor of burnt marijuana coming from Defendant and the residence.

When asked for consent to enter the residence, Defendant refused entry without a search warrant. At that point, Defendant became irate and began to act up, holler loudly, and fight with the agents. He had to be subdued and was then placed in the police vehicle.

After obtaining a search warrant, the agents searched the residence and found two firearms and several packages of marijuana in the only occupied bedroom in the residence. The agents also found $622.00 in the front pocket of Defendant’s jeans, and cocaine was found in a cellophane bag in a kitchen cabinet.

Defendant was subsequently charged on January 14, 2010, with five felony and three misdemeanor offenses. He went to trial by jury on the first two counts of | ¡.possession of marijuana with the intent to distribute, a violation of La.R.S. 40:966, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.

On the morning of trial, the State filed a notice pursuant to State v. Prieur, 277 So.2d 126 (La.1973), seeking to introduce evidence of Defendant’s arrest for a charge of possession of marijuana in February 2010, subsequent to the charge for which he was being tried. The trial court determined that the subsequent arrest was closely-related and relevant to prove “intent, system, lack of mistake and other things like that,” and he allowed the evidence into the record over Defendant’s objection.

After five jurors were selected, the trial court recessed. When court reconvened, Defendant was not present. The trial judge indicated that the court “had taken a recess and[,] when it was time to go back into court[, Defendant’s counsel] advised [the trial judge] that he couldn’t find his client, [Defendant], and is still unable to find him[;] and so[,] our assumption is that he’s left.” Defendant’s counsel responded, “Your Honor and just to, just to put it this way, he informed me he was going to go out for a cigarette I think about 10:45.” Defense counsel indicated he had looked “all around the courthouse” and in the basement, and the bailiffs had looked “all around the courtroom,” but no one could find Defendant. Defendant’s brother, Eric Fobb, advised defense counsel he did not know Defendant’s whereabouts and had no way to contact him. Trial proceeded without Defendant in the courtroom.

The jury found Defendant guilty as charged on both offenses. The trial judge recalled Defendant’s bail and issued a bench warrant for his arrest. On June 22, 2011, the trial judge sentenced Defendant to ten years with the |aDepartment of Corrections, without benefit of probation, parole, or suspension of sentence, on the conviction of possession of a firearm by a convicted felon. He also sentenced him to five years with the Department of Corrections on the conviction of possession of a Schedule I controlled dangerous substance (CDS) with intent to distribute. The sentences were ordered to be served consecutively.

ASSIGNMENTS OF ERROR

Defendant basically asserts three assignments of error. He alleges insufficiency of the evidence, trial court error in proceeding with the jury trial in his absence, and trial court error in granting the State’s Prieur motion thereby allowing the jury to hear evidence of his arrest for misdemeanor possession of marijuana which occurred subsequent to the offense for which he was tried.

DISCUSSION

On December 2, 2009, Agents Shane LaCaze and Glen Sers of the Natchitoches Parish Sheriffs Office received a call to go to 119 Amanda Drive. They knocked on the door, and Defendant, known to Agent LaCaze, answered it. Defendant came outside and shut the door to the residence. Agent LaCaze testified that Defendant “had an odor of burnt marijuana coming from his person” and from the residence. Agent Sers saw “some residue on his shirt.”

When Agent LaCaze asked for consent to enter the residence, Defendant “started getting uneasy” and said, “[N]o, /all are not coming in my house without a search warrant.” Defendant said no one else was in the house. The agents began to detain Defendant, and, according to Agent La-Caze:

He started to fight us, uh ... we took him to the ground. He was yelling at the neighbors and he was hollering ... they’re killing me, they killing me ... if I remember correctly. Uh, he was hollering for |4help. He was hollering so loud that the people a street over call [sic] the [police department] ... said somebody was screaming for help.

After they put Defendant in the police vehicle, the agents tried to open the door to the house, but it was locked. Defendant’s brother, Eric, “came out of the residence from behind [them].”

Eric was wearing “some boxers or some sleeping pants” and was putting his pants on as he exited the residence. He said he had been sleeping. Eric “also locked the door on his way out.” The agents used Eric’s key, detained him, and secured the house. They made sure no one else was inside “that could harm [them] or destroy any evidence” and began the process of obtaining a search warrant.

After obtaining the search warrant, the agents searched the residence. The search revealed a .25 caliber Beretta firearm, two suspected marijuana blunts, a 9mm firearm, “a Ziploc bag containing several packages of suspected marijuana,” and individually packaged bundles of suspected marijuana that were identified by smell in the courtroom. Defendant had no keys to the residence and no marijuana on his person when agents took him into custody. His charge of possession of marijuana with intent to distribute was based on the marijuana found in a drawer in the front bedroom. Agent Sers found two $100.00 bills, fourteen $20.00 bills, eleven $10.00 bills, five $5.00 bills, and seven $1.00 bills in the front pocket of Defendant’s jeans, for a total of $622.00. Agent Sers testified he works cases “just about daily” where drugs and cash are seized, and the people selling drugs are typically found with smaller denominations of cash, “fives, tens, and twenties.” He also identified packaging of smaller bags of drugs placed in a bigger bag as the way “somebody who is selling or distributing it” packages drugs. Agent Sers believed the bigger bags to have a value of around $60.00, and they would be “large bags for a user.”

|sAgent Billy Meziere of the Natchitoch-es Drug Task Force testified that he had known Defendant seven or eight years at the time of this incident and had never known him to have a job. He and other agents conducted the search of the residence. Only the front bedroom appeared to be occupied. Agent Meziere testified Defendant “ha[d] been seen several times driving the same automobile” that “ha[d] been seen at the residence on multiple occasions.”

Agent Meziere identified photographs of a vase they found in a kitchen cabinet that contained a paper bag holding a cellophane bag containing cocaine and residue. They located a blue firebox in the front bedroom that contained $1,100.00 in the form of forty-six $20.00 bills and eighteen $10.00 bills. Agent Meziere retrieved a key from Eric Fobb’s keychain that opened the firebox, and he also got the keys to the house from Eric. The two firearms and the bag of marijuana were all found in drawers of the only bedroom that was occupied. Agent Meziere saw men’s clothing in the bedroom closet and clothes that appeared to be of multiple sizes.

Greg Dunn of the .Natchitoches Drug Task Force testified as an expert in the field of narcotics interdiction. He believed, “[i]f this was for a personal use, you would have a much smaller packages [sic,] and you would probably only have one package^] enough for somebody to roll a joint or roll a blunt, whatever it is they’re gonna smoke for personal consumption.” He considered Defendant to be “at least [a] mid-level” dealer, based on “the sizing of the bags.”

Rachal Plaisance of the North Louisiana Crime Lab’s drug analysis section testified as an expert witness in CDS analysis and identification. She described how she examined five individual bags inside an outer bag and determined that all of the bags contained a total of 112 grams of marijuana. Assistant District Attorney Stuart Wright testified he was present in court in 1997 when Defendant | (¡pled guilty to possession of cocaine with intent to distribute and was sentenced to serve seven years with the Department of Corrections. When the present charges were filed against Defendant, Mr. Wright compared the files to make sure Defendant was the same individual who pled in 1997 and determined that he was.

Agent LaCaze encountered Defendant again during a routine traffic stop on February 2, 2010. When the driver consented to a search of the vehicle, Agent LaCaze made contact with Defendant, who was a passenger. As Agent LaCaze leaned toward the vehicle’s window, he “could smell a strong odor of suspected green marijuana coming from his person.” He found “a large amount ... large clear plastic bag of suspected marijuana” in Defendant’s back left pocket. During the booking process, Defendant gave 119 Amanda Drive, the site of the arrest in this case, as his address. That case was pending at the time of trial.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one critical error patent. Defendant was charged by bill of information with eight counts consisting of various felonies and misdemeanors; however, he was only tried on counts one and two. The other counts were not severed. Hence, there was no proper disposition of counts three through eight charged in the bill of information.

In State v. Hypolite, 04-1658, pp. 2-8 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, 1277-78, writ denied, 06-618 (La.9/22/06), 937 So.2d 381, this court stated:

Seven of the counts charged in the bill of information have not been properly disposed of. La.Code Crim.P. art. 819 provides: “If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.” Hypolite was originally charged with eight counts: 1) armed robbery; 2) public intimidation; 3) reckless operation of a vehicle; 4) resisting an officer; 5) aggravated flight from an officer; 6) hit and |7run driving; 7) a violation of the requirement of two functional headlights; and, 8) driving without a license. At trial, the clerk read only count one, armed robbery, and the jury, returned a verdict as to that count only. This court submitted an information request asking for “[a]ny motion, minute entry, order or amended bill concerning the disposition of Counts 2-8 charged in the Bill of Information....” In response, the Deputy Clerk of Court for Iberia Parish submitted an affidavit stating that she had examined the record and had not found an amended bill of information. Therefore, the record before this court contains no evidence that counts two through eight have been disposed of.
This court addressed a similar issue in State v. Davis, 614 So.2d 270, 275 (La. App. 3 Cir.), writ granted, 626 So.2d 1180 (La.1993), rev’d on other grounds, 93-0599 (La.4/11/94), 634 So.2d 1168. The court stated:
The record indicates a possible error patent regarding the number of verdicts returned by the jury. Defendant was indicted on three counts of malfeasance in office and one count of injuring public records, but a verdict was returned only as to one count of malfeasance in office. A motion to sever offenses was filed by the State on February 14, 1991, with the State arguing that count two should be tried separately. On May 13, 1991, the court ordered the defendant to show cause on May 15, 1991 as to why the motion should not be granted. The court minutes of May 15, 1991 failed to show whether the court ruled on this motion. At trial, only count two was read to the jury. The record does not show the disposition of the other counts.
La.C. Cr.P. art. 819 provides:
If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.
We will therefore remand the case for a determination of whether the motion to sever was granted and, if not, for a proper disposition of the remaining charges.
No motion to sever was filed by the State in the present case. Accordingly, this court will remand the present case for a proper disposition of counts two through eight. See also State v. Pitre, 04-1134 (La.App. 3 Cir. 2/9/05), 893 So.2d 1009; State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, writ denied, 00-1595 (La.3/23/01), 787 So.2d 1010; and State v. Cash, 03-853 (La.App. 3 Cir. 12/10/03), 861 So.2d 851, writ denied, 04-0027 (La.4/30/04), R872 So.2d 472, and 04-0232 (La.5/7/04), 872 So.2d 1080, where this court has remanded cases for the disposition of charges.

In the instant case, an information request was sent to the trial court requesting any motion, minute entry, amended bill, or other pleading concerning the disposition of counts three through eight charged in the bill of information. In response, the clerk of court submitted an affidavit stating that none of the requested information regarding disposition of said charges was found. There is no indication in the record that a motion to sever was filed. Accordingly, we remand the case for a proper disposition of counts three through eight.

SUFFICIENCY OF THE EVIDENCE

Defendant argues the evidence was insufficient to convict him. He contends no one identified him to the jury at trial, and reasonable doubt existed that he possessed the drugs and firearms found inside the residence. He asks this court to vacate his conviction for possession of marijuana with the intent to distribute and enter the lesser responsive verdict of possession of marijuana.

There is sufficient evidence for conviction if this court determines that “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 proved beyond a reasonable doubt.” State v. Hobley, 98-2460, p. 33 (La.12/15/99), 752 So.2d 771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000) (citing State v. Captville, 448 So.2d 676 (La.1984)). “This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. The appellate court does not assess the credibility of witnesses or reweigh evidence.” State v. Hollier, 09-1084, p. 3 (La.App. 3 Cir. 4/7/10), 37 So.3d 466, 470, writ denied, 10-1037 (La.12/10/10), 51 So.3d 722 (citations omitted) quoting State v. Brown, 42,188, 42,189, 42,190, p. 10 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 741, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347).

“In order to convict a defendant for possession of a CDS with the intent to distribute pursuant to LSA-R.S. 40:967(A), the state must prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed the CDS and that he did so with the intent to distribute it.” Id. (quoting Brown, 966 So.2d at 742).

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each ease. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs.

State v. Major, 03-3522, pp. 7-8 (La.12/1/04), 888 So.2d 798, 802 (citations omitted). We find that the same standard applies to charges under La.R.S. 40:966 for possession with intent to distribute marijuana.

Guilty knowledge is an awareness of illegal drugs in one’s possession; it is a required element for a conviction of possession of a narcotic. See State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, writ denied, 08-1083 (La.1/9/09), 998 So.2d 712; State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881; State v. Goiner, 410 So.2d 1085 (La.1982). Here, marijuana was found in the 110house, and the odor of marijuana followed Defendant outside when he answered the door. Agent Sers noticed what he believed to be marijuana residue on Defendant’s shirt. Marijuana blunts were found in ashtrays in two locations inside the residence. Defendant’s brother was also present and may have been asleep at the time police arrived. All of the necessary elements of constructive possession are present. The presence of marijuana was obvious; Defendant and his brother were the only people present; Defendant had access and proximity to the marijuana found in the residence; and, the evidence showed recent marijuana use. There is sufficient evidence in the record to support a conviction of possession of marijuana. In his original brief, Defendant argues not for acquittal, but for conviction on the lesser charge of possession of marijuana.

Defendant’s constructive possession of the marijuana, however, does not establish his intent to distribute it. Factors to consider in determining whether a defendant has the intent to distribute a controlled dangerous substance (CDS) are:

“(1) Whether the defendant had ever distributed controlled dangerous substances.
(2) Whether the substance found was in a form associated with distribution.
(3) Whether the quantity was such as to create a presumption of intent to distribute.
(4) Whether drug paraphernalia such as scales or baggies were present.
(5) Whether large quantities of cash or records indicating past drug transactions were present.”

State v. Williams, 608 So.2d 266, 274 (La. App. 3 Cir.1992) (quoting State v. Alsandor, 587 So.2d 197, 198 (La.App. 3 Cir. 1991), citing State v. House, 325 So.2d 222 (La.1975)). A relatively small amount of marijuana found in the ashtrays does not satisfy these factors.

| iiWhile the factors do apply with regard to the substantial amount of marijuana found in drawers at the residence, the State presented no evidence of Defendant’s guilty knowledge of that marijuana. The State attempted to prove Defendant resided at 119 Amanda Drive, but even that fact, without more, does not establish Defendant’s guilty knowledge of the presence of the drugs.. Agent Dunn considered Defendant to be “at least [a] mid-level” dealer, based on “the sizing of the bags[,]”. but that conclusion inherently assumes Defendant had guilty knowledge of the drugs.

On the other hand, Defendant had $622.00 in denominations consistent with drug dealing in his pocket, and he was not known to have ever held a job. The marijuana was found in packaging consistent with drug distribution. These factors, according to Williams, 608 So.2d 266, infer the intent to distribute. This alone is insufficient evidence that Defendant knew of the drugs hidden in the drawers of the residence. We find that the evidence, while it established the offense of possession of marijuana, was insufficient to prove Defendant’s guilty knowledge of the presence of the packaged drugs and, therefore, was insufficient to convict Defendant of possession of marijuana with the intent to distribute it.

Defendant was also found guilty of illegal possession of a firearm by a convicted felon. “It is unlawfül for any person who has been convicted of ... any violation of the Uniform Controlled Dangerous Substances Law which is a felony ... to possess a firearm or cany a concealed weapon.” La.R.S. 14:95.1 (footnote omitted).

To convict Defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95); 661 So.2d 657.

State v. Hanner, 09-1109, p. 5 (La.App. 3 Cir. 4/14/10), 35 So.3d 1178, 1182 (quoting State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200).

Neither possession of a firearm by a convicted felon nor illegal carrying of weapons requires actual physical possession of a firearm upon the person of the accused; constructive possession of a firearm satisfies the possessory element. State v. Armentor, 94-745 (La.App. 3 Cir. 2/1/95); 649 So.2d 1187, writ denied, 95-0557 (La.6/30/95); 657 So.2d 1027, citing State v. Day, 410 So.2d 741 (La. 1982). Constructive possession exists when the illegal object is subject to the defendant’s dominion and control. State v. Johnson, 463 So.2d 778 (La.App. 4 Cir.1985).
Guilty knowledge is an essential element in proving constructive possession [of a firearm] and may be inferred from the circumstances.

State v. Brooks, 99-478, pp. 4-6 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La.5/25/01), 792 So.2d 750 (citation omitted); see also State v. Joseph, 02-1370, pp. 2-3 (La.App. 3 Cir. 4/17/03), 854 So.2d 914, 917. “Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it.” State v. McKinney, 44,269, p. 7 (La.App. 2 Cir. 5/13/09), 12 So.3d 422, 426 (citing State v. Kennedy, 42,258 (La.App. 2 Cir. 8/15/07), 963 So.2d 521).

In the instant case, both firearms were found in drawers in the residence. The State presented no evidence that Defendant knew of their presence. The facts and circumstances in this case do not infer Defendant’s guilty knowledge. Accordingly, we find that the evidence was insufficient to convict Defendant of illegal possession of a firearm by a convicted felon.

Defendant also argues the State failed to identify Defendant at trial. No one could identify Defendant to the jury because Defendant was not present during any of the proceedings after testimony began. The State did, however, present Agent hsLaCaze as a witness, who testified that he detained Defendant at the residence, and who also identified a photograph admitted into evidence, without objection, as being a photograph of Defendant. This evidence was sufficient to identify Defendant, even in his absence.

DEFENDANT’S ABSENCE DURING TRIAL

Defendant contends that the trial court erroneously proceeded with the trial without his presence in the courtroom. He contends he is entitled to a new trial because the State did not prove his voluntary absence.

The record indicates that the trial court took a recess after five jurors had been selected, and Defendant never returned to the courtroom for the remainder of the trial. This exchange took place between the trial judge and Defendant’s counsel at 12:10 p.m.:

THE COURT: Okay we are on the record. We are out of the presence of the jury in another courtroom[;] and uh, we, we had taken a recess and[,] when it was time to go back into court[, Defendant’s counsel] advised me that he couldn’t find his client, [Defendant], and is still unable to find him[;] and so[,] our assumption is that he’s left. And what we’ve been doing is researching what we do at this point.
[DEFENSE COUNSEL]: Your Hon- or and just to, just to put it this way, he informed me he was going to go out for a cigarette I think about 10:45.

Counsel stated that he had looked “all around the courthouse” and that the bailiffs had looked “all around the courtroom,” but no one could locate Defendant. Defendant’s brother, Eric Fobb, “advised [defense counsel] that he did not know where his brother was[,]” “[a]nd that he had no means of uh, contacting him.... ” Defense counsel objected to proceeding with the trial in Defendant’s absence. The trial court did not call witnesses or have any type of hearing to determine the reason for the absence.

| ^Defendant’s trial began “when the first prospective juror [was] called for examination.” La.Code Crim.P. art. 761. The minutes reflect that Defendant was present at that time. Defendant’s continued presence was required “[a]t all times during the trial when the court [was] determining and ruling on the admissibility of evidence[]” and “at all proceedings when the jury [was] present.” La.Code Crim.P. art. 831(A)(4) and (5). However, because Defendant was present when the trial began, and his attorney was present throughout the proceedings, his right to be present is considered waived if he voluntarily absented himself. La.Code Crim.P. art. 832(A)(1).

In State v. King, 01-506 (La.App. 3 Cir. 11/7/01), 799 So.2d 1241, unit denied, 01-3222 (La.9/30/02), 825 So.2d 1190, the defendant did not appear on the second day of trial. Defense counsel moved for a mistrial because the defendant was committed to a mental unit due to depression; however, counsel did not produce any medical documentation in support of the claim until after the State rested its case. The trial court denied the motion for mistrial, finding that the defendant had presented no evidence in support of his request even though he was in the hospital. Defense counsel then made a second motion for mistrial based on correspondence from the defendant’s physician stating that the defendant was incompetent to stand trial. After an interview with the trial judge, the physician retracted the statement, and the defendant appeared for the remainder of the trial. This court affirmed the trial court’s ruling, finding that the defendant presented no evidence to show he was involuntarily prevented from attending his trial.

In State v. Tate, 95-1152 (La.App. 3 Cir. 3/6/96), 670 So.2d 671, the defendant did not appear for the second day of trial. Attempts to contact him were unsuccessful. Defense counsel moved for a mistrial, but the trial court denied it, finding the defendant’s absence was voluntary. This court affirmed the decision.

| isThe defendant also failed to appear for his second day of trial in State v. Humphrey, 576 So.2d 1104 (La.App. 3 Cir.1991). Unsuccessful attempts were made to locate him, and then the trial court received word he had left town and would not return. The trial court then denied defense counsel’s motion for mistrial and proceeded with the trial. Finding the defendant “freely and voluntarily chose to absent himself from his trial[,]” this court held it would “not allow a defendant to manipulate and frustrate the speedy trial and prosecution of criminal eases by absenting himself from a trial which has already commenced whenever he chooses to do so.” Id. at 1105 (citing State v. Ray, 547 So.2d 1350 (La.App. 3 Cir.), writ denied, 553 So.2d 470 (La.1989)).

In the instant case, defense counsel made no motion for a mistrial or for a continuance. Rather, he only objected to proceeding with the trial in Defendant’s absence on constitutional grounds of due process. Now, on appeal, Defendant complains the State did not prove his absence was voluntary where the record shows he went “out for a cigarette” and did not return. Defendant never attempted to put on evidence of an involuntary absence, and he never made any post-trial filing to suggest his absence was involuntary. The very nature of Defendant’s absence shows it was voluntary. Finding otherwise would allow Defendant to manipulate and frustrate the trial process at his whim and beck and call. This argument lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial court erred in granting the State’s Prieur notice filed on the day of trial that allowed evidence of Defendant’s arrest for possession of marijuana subsequent to the offense for which he was on trial. The State indicated it was being offered as an “other bad act” to “prove intent, system, 11BIack of mistake.” La.Code Evid. art. 404(B). The State intended to show not only the fact of the arrest, but also the circumstances surrounding the arrest.

The common directive of Louisiana’s harmless error rule is that “appellate courts should not reverse convictions for errors unless the accused’s substantial rights have been violated.” State v. Johnson, 94-1379, p. 13 (La.11/27/95), 664 So.2d 94, 100. Thus, in determining whether an error is harmless, the appellate court should ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

In the instant case, we find the issue of the alleged error, if any at all, is moot regarding the convictions for possession of marijuana with the intent to distribute and possession of a firearm by a convicted felon in light of the fact that we have vacated those convictions. The lesser conviction for possession of marijuana, however, is unattributable to any possible error by the trial court in light of the overwhelming evidence of guilt, ie., Defendant’s presence in the residence where marijuana blunts were found in plain view, the odor of burning marijuana that followed him outside when police arrived, and the marijuana residue police observed on his shirt. Therefore, any alleged error is harmless.

DISPOSITION

Defendant’s convictions for possession of marijuana with the intent to distribute and illegal possession of a firearm by a convicted felon are reversed and concomitant sentences vacated. We enter a conviction for the lesser offense of possession of marijuana and remand this matter for resentenc-ing and a proper disposition of counts three through eight of the bill of information.

CONVICTIONS FOR POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND POSSESSION OF A FIREARM BY A CONVICTED FELON REVERSED AND CONCOMITANT SENTENCES ■ VACATED; J^CONVICTION FOR POSSESSION OF MARIJUANA ENTERED; REMANDED FOR FURTHER PROCEEDINGS WITH INSTRUCTIONS.

COOKS, J., dissents in part.

COOKS, J.,

dissents in part.

hi respectfully dissent from that portion of this court’s ruling which reduces Defendant’s conviction for possession with intent to distribute marijuana, a Controlled Dangerous Substance (CDS), to a lesser offense. I agree with the jury’s verdict finding Defendant guilty of possession of a CDS with intent to distribute.

      . Although the trial court indicated the second Prieur notice was filed in open court, the motion itself does not appear in the record on appeal.

      . Defendant was charged with and found guilty of possession of a Schedule I CDS. The trial court, however, sentenced Defendant to five years "[o]n the crime of Possession of a Schedule II Substance with Intent to Distribute. ...”


author: COOKS, Judge.

text:
    STATE of Louisiana v. Anthony Paul LISOTTA, Jr.
    No. 11-1461.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Edward K. Bauman, Lake Charles, LA, for DefendanVAppellant, Anthony Paul Li-sotta, Jr.
    John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McClellan, Assistant District Attorneys, Lake Charles, LA, for the State of Louisiana/Appellee.
    Court composed of Judges SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

Anthony Paul Lisotta, Jr. (Defendant) was charged with two counts of cruelty to juveniles, violations of La.R.S. 14:93, as well as one count of illegal use of a controlled dangerous substance (CDS) in the presence of a person under the age of seventeen, a violation of La.R.S. 14:91.13. Defendant smoked marijuana in the presence of his nephews, ages eight and eleven. The eight-year-old child smoked marijuana with him. That child suffered chest pains and was taken to a hospital suffering serious physical symptoms. Testing revealed THC in his system. The nephew, who was eleven at the time of the incident, was already experienced in using marijuana, and it was not alleged that he smoked any at the time or that he suffered any injury in the episode.

Defendant is a former special education student who has lived with his mother his entire life. He has had an alcohol addiction problem and a drug addiction problem for many years and is the victim of an abusive, alcoholic father who physically abused him and his mother. He was previously under psychiatric care for approximately two years. Defendant, who never completed high school, has held employment intermittently at minimum wage jobs. Defendant has one prior felony conviction for aggravated assault and prior convictions for disturbing the peace by public intoxication and for possession of marijuana.

Originally, Defendant entered pleas of not guilty and not guilty by reason of insanity. Defendant withdrew his not guilty pleas and plead guilty to one count of cruelty to a juvenile and one count of illegal use of a CDS in the presence of a person under the age of seventeen. As part of the plea agreement, the State dismissed the remaining count of cruelty to a juvenile. Defendant’s appointed counsel did not have an intelligence test performed on Defendant and offered no | ¿mitigating evidence at sentencing. Defendant was sentenced to ten years at hard labor on the charge of cruelty to a juvenile, five years of the sentence was suspended, and he is to be placed on probation for five years after his term of imprisonment is served. He was also sentenced to serve six months in the parish jail on the charge of illegal use of a CDS in the presence of a person under seventeen years of age, this sentence to run concurrent with his other sentence. Defendant’s attorney did not file a motion to reconsider sentence. The Louisiana Appellate Project was appointed to represent Defendant on appeal. He appeals his sentence on the conviction of cruelty to a juvenile, asserting the sentence is excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all criminal appeals for errors patent on the face of the record. After reviewing the record, we find there is an error patent on the face of the record.

We find there was a misjoinder of offenses in the bill of information. Louisiana Code of Criminal Procedure Article 498 provides for the joinder of offenses in a single bill of information under limited circumstances, if the offenses joined are triable by the same mode of trial.

In the present case, Counts I and II, which are punishable with or without hard labor, are triable by a six person jury, all of whom must concur. La.Code Crim.P. art. 782. Count III, which is a misdemeanor, is triable by a judge only. La.Code Crim.P. art. 779. Therefore, pursuant to La.Code CrimJP. art. 493, Counts I and II were properly joined, but Count III was not. The State dismissed Count II in conjunction with the Defendant’s guilty plea to Counts I and III.

| oThis court addressed this issue in State v. LeBlanc, 08-1533, pp. 3-5 (La.App. 3 Cir. 6/10/09), 12 So.3d 1125, 1127-28, reversed on other grounds, 09-1355 (La.7/6/10), 41 So.3d 1168:

First, there is a misjoinder of offenses in the bill of indictment. Counts 1 and 6 of the bill of information are punishable by imprisonment with or without hard labor, and are thus triable by a jury of six, all of whom must concur to render a verdict. La.Code Crim.P. art. 782, La. R.S. 14:32.1 and La.R.S. 40:967. The remaining counts of the twelve count bill are to be tried by the court without a jury. , La.Code Crim.P. art. 779. Louisiana Code of .Criminal Procedure Article 493 provides for the joinder of offenses in a single bill under limited circumstances if the offenses joined are triable by the same mode of trial. Consequently, Counts 1 and 6 were improperly joined with the remaining counts. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La.Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Thus, this error is precluded from review.
We next address a procedural issue. The Defendant entered a plea of guilty to Counts 1 through 4. Because Counts 2-4, vehicular negligent injuring, were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.
Defendant has not challenged her misdemeanor convictions. Her only assignment of error concerns the alleged excessiveness of. her sentence, and her argument refers specifically to her sentence for vehicular homicide. Therefore, we hereby sever the misdemeanors from this appeal and instruct the Defendant that if she chooses to seek review of the misdemeanors, she must file an application seeking supervisory review with this court within thirty days of the court’s ruling on appeal. See State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084.

In the present case, Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses. He entered an unqualified guilty plea thereby waiving review of this pre-plea defect.

|4In this appeal, Defendant challenges only his sentence for cruelty to a juvenile. Therefore, in accordance with our holdings in LeBlane and Turner, we will sever the misdemeanor conviction from the appeal and instruct Defendant to file an application seeking supervisory review of his misdemeanor conviction on Count III within thirty days of the court’s ruling on appeal, if he so desires.

REVIEW OF SENTENCE COUNT I

As to Defendant’s sentence on Count I, we first note that Defendant was sentenced in accordance with a plea agreement. Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides “the 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.”

However, in the instant case, there was no sentence recommendation as part of the plea agreement. Therefore, we are not precluded from reviewing Defendant’s sentence under La.Code Crim. P. art. 881.2.

Under the provisions of La.Code Crim.P. art 881.1, a defendant must file a motion to reconsider sentence in order to preserve his right to appellate review of his sentence. Because Defendant did not file a motion to reconsider sentence, our review of his claim of excessiveness is limited to a bare claim of constitutional exces-siveness. See State v. Webre, 09-851 (La. App. 3 Cir. 11/4/09), 21 So.3d 1154.

In State v. LeBlanc, 12 So.3d at 1128-29, we discussed the determination of an excessive sentence:

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), |s808 So.2d 331, this court discussed what constituted an excessive sentence as follows:
La. Const, art. I, § 20 guarantees that “no law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, vrrit denied, 00-165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Louisiana Revised Statutes 14:93 provides a maximum sentence of ten years at hard labor for committing the crime of cruelty to a juvenile. The statute provides no minimum sentence and provides for the possibility of a fine of not more than one thousand dollars in lieu of imprisonment. The pertinent part of La.R.S. 14:93 which applies to this case is Section A, paragraph 1, which provides that cruelty to juveniles is defined as “[t]he intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain and suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.”

Thus we must determine whether the trial court abused its broad discretion in imposing a ten-year sentence, five years of which is suspended, based upon the facts of this case. The trial judge heard testimony from the victims’ paternal grandmother, Renee Amos (Amos), who has court ordered custody of the two children. The incident occurred while the children were on a court ordered visit with their maternal grandmother and her son, Defendant. Amos testified that the | fieight-year-old who smoked marijuana with Defendant was taken to the hospital in serious condition. He suffered serious physical symptoms immediately after smoking the marijuana and suffered prolonged emotional problems after the incident. The trial judge patiently listened to all family members affected by the incident and reviewed the Pre-Sentence Investigation Report on Defendant. We cannot say the trail court manifestly abused his broad discretion in imposing this sentence. The victim, an eight-year-old child, was defenseless and suffered serious physical and emotional harm as a result of Defendant’s actions. Defendant acknowledged that he knew what he was doing was wrong but engaged in the activity anyway. The trial court was made well aware of the fact that Defendant has a low intelligence and suffers from an abusive past. Nevertheless, the trial court conducted a thorough hearing before imposing this sentence. Nothing in the record demonstrates an abuse of discretion in imposing the ten-year sentence, suspending five years of the sentence, and requiring a period of five years probation. Based upon the record before us, we cannot find that the penalty imposed upon Defendant is “so grossly disproportionate to the severity of the crime as to shock our sense of justice.” Barling, 779 So.2d at 1042-43. We find the trial court did not abuse its broad discretion in the sentence imposed.

AFFIRMED IN PART. MISDEMEANOR SEVERED AND DEFENDANT INSTRUCTED TO FILE AN APPLICATION SEEKING SUPERVISORY REVIEW THEREOF WITHIN THIRTY DAYS OF THIS OPINION IF HE SO CHOOSES.

      . We note Defendant refers to his six-month sentence for Count III in his assignment of error challenging the excessiveness of his sentence in Count I; however, he does not present an argument regarding excessiveness of the six-month sentence for Count III.


text:
    STATE of Louisiana v. Toby Wayne MATT.
    No. 11-1539.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Beth Fontenot, Lake Charles, LA, for Defendant-Appellant, Toby Wayne Matt.
    Toby Wayne Matt, Tallulah, LA, Pro Se.
    Jennifer A. Jones, Assistant District Attorney, Cameron, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

_JjDefendant, Toby Wayne Matt, appeals his conviction for vehicular homicide and the sentence imposed in connection therewith. For the following reasons, this court affirms the conviction, amends the sentence, and remands the matter with instructions.

FACTS

On January 13, 2009, while driving from his residence in the Klondike community of Cameron Parish toward Lake Arthur, Louisiana, Defendant struck and killed the victim, Kasie Hicks, who had previously been a guest at his house. On June 13, 2011 and again on July 20, 2011, Defendant pled guilty to one count of vehicular homicide, a violation of La.R.S. 14:32.1. He was sentenced on July 28, 2011, to twenty years at hard labor, the first ten years to be served without benefit of probation, parole, or suspension of sentence. The court further levied a fine of $7,500.00 and ordered that, in lieu of payment, Defendant could serve an additional two years at hard labor. Defendant moved for reconsideration of his sentence orally and in writing. The motion was denied. Defendant appeals.

DISCUSSION

Defense counsel asks the court to vacate the sentence imposed and remand for re-sentencing. Defendant, in pro se assignments of error, prays that this court modify his conviction from vehicular homicide to negligent homicide and reduce his sentence to five years with credit for time served.

Default Time

Appellate counsel contends that the trial court erred in imposing default time on an indigent defendant, in imposing default time beyond the |2one-year maximum term allowed by La.Code Crim.P. art. 884, and in imposing the default time at hard labor.

The trial court imposed “a fine of $7,500, plus the court costs, or in lieu thereof, you shall serve an additional two years with the Department of Corrections.” Although the trial court does not refer to the jail time as default time, this court interprets the jail time as such. The subject of imposing default time upon an indigent defendant was discussed in State v. Seal, 581 So.2d 735, 736-37 (La.App. 1 Cir.1991):

Because defendant was represented by the Public Defender’s Office, his status as an indigent has been established. State v. Williams, 288 So.2d 319, 321 (La.1974). La.C.Cr.P. art. 884 requires a trial court to include a default term of imprisonment for a specified period not to exceed one'year if the sentence imposed includes a fine or costs. Nevertheless, in the case of an indigent defendant, it is impermissible, to impose a prison term in lieu of payment of a fíne or costs if that would result in the defendant serving a longer term than the statutory maximum for the offense. State v. Counterman, 515 So.2d 533, 537 (La.App. 1st Cir.1987) (citing Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970)). In State v. Bohanna, 491 So.2d 756, 759 (La.App. 1st Cir.1986), we recognized that the Louisiana Supreme Court has taken this rule one step further, so that an indigent defendant may never be subjected to confinement in lieu of payment of a fíne or costs, even if the additional default sentence does not approach the maximum sentence which the court could have imposed. We based this on our review of the supreme court’s granting of writs in two cases: State v. Garrett, 480 So.2d 412 (La.App. 4th Cir. 1985), writ granted, 484 So.2d 662 (La. 1986) (sentence amended), and State v. Williams, 480 So.2d 432 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662 (La.1986) (sentence amended).
Thus, we find merit in defendant’s claim that the trial court’s imposition of the default term of imprisonment in the instant case was error. We amend the sentence to delete that portion which imposes one year in the parish jail in default of payment of the fine and court costs. See La.C.Cr.P. art. 882(A); Garrett, 484 So.2d 662.

Since Seal, the supreme court has ordered the deletion of default time from sentences imposed upon indigent defendants. State v. Zabaleta, 96-2449 (La.3/7/97), 689 So.2d 1369; State v. Roebuck, 94-1127 (La.6/30/95), 657 So.2d 1009; and State ex rel. Armstead v. State, Fourth Circuit Court of Appeals, Criminal District Court, Section F, 589 So.2d 1050 (La.1991).

Defense counsel contends that Defendant’s status as an indigent defendant is supported by his representation by the Louisiana Appellate Project on appeal. The State points out that Defendant was represented at trial by retained counsel, and it notes that he posted a substantial bond to secure his release pending trial. Further, it notes that in the P.S.I., Defendant reported a monthly salary in an amount which would indicate that he was not indigent at the time of sentencing. Thus, the State contends that the imposition of default time was correct at the time of sentencing, but it concedes that Defendant later acquired the status of being indigent. The State acknowledges that the default time should be vacated in light of this court’s holding in State v. Newberry, 560 So.2d 121 (La.App. 3 Cir.1990) that the imposition of default time on a defendant who becomes indigent after sentencing is improper. In the present case, the only indication of Defendant’s current financial status is in his affidavit requesting court appointed counsel for appeal. In that application, he claims his only asset is a checking account with a balance of $100. While the State questions the veracity of this statement, it acknowledges that there is nothing in the record |4to disprove it. Accordingly, the State concedes that the default time should be vacated by this court.

Therefore, we find the “in lieu of’ (default) jail time imposed in the present case must be deleted. The trial court is instructed to make an entry in the minutes reflecting this amendment.

Excessive Sentence

Defense counsel argues that the trial court imposed an unconstitutionally excessive sentence because it was under the mistaken belief that no part of the sentence could be probated or suspended even though Defendant would have responded positively to probationary treatment, because it believed that Defendant had not shown remorse, and without considering certain mitigating factors.

This court uses the following standard in reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 8 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

| State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The penalty for vehicular homicide is provided by La.R.S. 14:32.1(B):

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years. At least three years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. If the operator’s blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. If the offender was previously convicted of a violation of R.S. 14:98, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program. All driver improvement courses required under this ^Section shall include instruction on railroad grade crossing safety.

The sentencing transcript shows that the trial court was aware of the sentencing range available for this offense and adequately reviewed aggravating and mitigating factors. Further, the record shows that the trial court did not conclude that Defendant expressed no remorse, but rather that the trial court saw none. We find that the sentence imposed was not an abuse of the trial court’s discretion.

Brady Violation

To summarize Defendant’s arguments on this assignment of error, he is asserting that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because she failed to call certain witnesses to testify and introduce certain evidence at Defendant’s guilty plea and sentencing hearings. Defendant does not allege that this evidence or these witnesses were concealed from the defense after Defendant requested the production thereof.

The supreme court has recently discussed the application of Brady:

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused, after receiving a request for it, violates a defendant’s due process rights, where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. For purposes of Brady’s due process rule, a reviewing court determining materiality must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).
On the other hand, the State does not violate the Due Process clause by failing to disclose evidence that is equally 17available or more so to the defendant. See United States v. Dula, 989 F.2d 772, 775 n. 9 (5th Cir.1993).

State v. Odenbaugh, 10-268 (La.12/6/11), 82 So.3d 215.

Because Defendant does not allege that the prosecution concealed the existence of this evidence from the defense after the defense moved. to be provided with any exculpatory evidence in the case, Defendant fails to state a claim upon which relief can be granted.

Ineffective Assistance of Counsel

Defendant alleges that he was denied effective assistance of counsel:

Petitioner/Defendant Toby Matt’s retained counsel did not bear such skill and knowledge as well [as] render the trial a reliable adversarial testing process in accordance with U.S.C.A. Constitution Amendment 6: further, was completely inept, acting more like a novice in criminal proceedings, functioning without his client[’]s duty to loyalty to avoid conflicts of interest. Defense counsels] performance was reasonably ineffective.

Defendant complains that his attorney allowed the prosecutor to proceed at will and interfere with the case. Defendant argues that his attorney’s errors caused him to receive an excessive sentence Defendant asserts that, had his attorney investigated or hired an investigator, Defendant would have been allowed to plead to negligent homicide and receive a less-onerous penalty as there would have been more mitigating factors for the sentencing court to consider. Defendant alleges that it was his trial attorney who had Defendant’s guilty plea to negligent homicide vacated. Defendant contends that he had no knowledge of his attorney’s actions. In a letter to this court, Defendant additionally complained that his trial attorney urged him to enter a guilty plea when his attorney knew that his plea to the responsive verdict of negligent homicide should never have been vacated.

^Defendant lists several additional ways in which he considers that he was denied effective assistance of counsel by his trial attorney’s inaction:

1.Failing to secure the proper affidavit on John Laseter’s testimony that would have contradicted the prosecution’s case; A) John Laseter is willing to testify or present affidavit. He was dismissed by A.D.A. Jones.
2. Failing to secure an affidavit from EMT/Fire Chief Scott Weekly who would have shown the court Toby Matt Defendant did not hit and run. He was also dismissed by A.D.A. Jones. A phone call was mad[e] to him by defendant. A.D.A. Jones failed to notify the Judge and Jury.
3. Failed to report or cross examine Rachelle Sonnier testimony with knowledge it was she supplying Kasie Hicks [the victim] with the drugs.
4. Failed to present Forensic Expert Terry Welks report that there was no steroids in Kasie Hicks system, when in fact A.D.A. Jones insisted the defendant gave the victim the controlled substance.
5. Failed to produce the re-construction findings of the State Police, Cameron and Calcasieu Police Departments. Which showed Kasie Hicks was walking in the middle of the road with dark clothing and not on the side as A.D.A. Jones stated.
6. Failing to show that no chemical testing was procured by the Cameron or Calcasieu Police Departments Officers and/or no sobriety test or did they seize the defendant’s vehicle at that time pursuant to Louisiana Statute R.S. 32:666, Chemical Testing.

In support of his assignments of error, Defendant appends to his appellate brief a transcript of the April 29, 2010 hearing wherein his guilty plea was vacated because he could not be sentenced under the provision required by his plea bargain; the transcript is not contained in the appellate record.

If there is insufficient information in the record to resolve an ineffective assistance of counsel claim, that claim should be relegated to post-conviction relief:

|9Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy.

State v. Eiskina, 42,492, p. 2 (La.App. 2 Cir. 9/19/07), 965 So.2d 1010, 1013 (citation omitted). Because a review of Defendant’s allegations of ineffective assistance of counsel would require the introduction of evidence in addition to that provided by the appellate record, Defendant’s ineffective assistance of counsel arguments are more properly reviewed via application for post-conviction relief.

Accordingly, the resolution of Defendant’s second pro se assignment of error is relegated to post-conviction relief. Defendant may raise these arguments in an application for post-conviction relief filed in compliance with La.Code Crim.P. art. 930.8.

Judicial and Prosecutorial Misconduct

Via letters received by this court, Defendant contends that there was prosecutorial and judicial misconduct. He alleges that the prosecution maliciously used its power to selectively and/or vindictively prosecute him, improperly elicited information, improperly expressed her personal opinion as to his guilt, bolstered the case against Defendant by alluding to her personal integrity and oath of office, and misled the fact finder about the facts of the case. Defendant has added complaints that the prosecutor had unconstitutional motives and acted in bad faith, violated his rights to due process and equal protection, was motivated by discriminatory intent, failed to establish a prima facie case, infected the matter with her improper conduct, expressed her personal opinions with “[illicit] information outside | mthe presence of defendant’s counsel and the victim’s family’ ” personally provided the victim’s family with a copy of the pre-sentence investigation report at the sentencing hearing, violated his constitutional rights and 18 U.S.C. § 3553, Rule 32(e)(i) by disclosing the PSI contents, and introduced that PSI into evidence without first allowing Defendant to see if there were any factual inaccuracies. Further, Defendant complains that the sentencing court improperly said negative things about Defendant in relation to the case when sentencing him. Defendant does not assert or provide record references showing that contemporaneous objections were made to these alleged errors; therefore, he is barred from bringing these claims on appeal. Additionally, Defendant’s complaints are conclusory statements with no supporting authority or argument and without record references. Therefore, the complaints are to be considered abandoned under Uniform Rules-Courts of Appeal, Rule 2-12.4.

CONCLUSION

The sentence imposed on Defendant is amended to remove the default jail time provision. The trial court is instructed to make an entry in the minutes reflecting the amendment. In all other respects, the conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

      . In State v. Williams, 562 So.2d 965, 969 (La.App. 3 Cir. 1990), decided after Newberry, this court held:
      Recently, in State v. Newberry, 560 So.2d 121 (La.App. 3rd Cir. 1990), we reluctantly deleted such a default provision, where the defendant was represented by retained counsel at trial and at sentencing, but on appeal he was represented by appointed counsel. We believed that result was mandated by the Supreme Court’s actions in [State v.] Pinkney [485 So.2d 1014 (La.App. 4 Cir.1986)] and Garrett, supra. In the instant case, although the defendant is now represented by appointed counsel on appeal, there is evidence in the record that the defendant owns immovable property in Breaux Bridge, La. We find the record does not support defendant’s claim of indi-gency.


text:
    Thelma M. HODGES and Marcus J. McCoy v. Michael A. TAYLOR.
    No. 12-107.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Roy H. Maughan, Jr., Namisha D. Patel, Baton Rouge, LA, for Plaintiffs-Appellants, Thelma Hodges and Marcus McCoy.
    Walter K. Jamison, III, Marjorie B. Breaux, Bryan Lege, Lafayette, LA, for Defendant-Appellee, Navarre Chevrolet, Inc.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| plaintiffs, Thelma Hodges and Marcus McCoy, appeal the trial court’s grant of the motion for summary judgment filed by Defendant, Navarre- Chevrolet, Inc. (Navarre). The trial court found that no question of fact remained and that La.R.S. 32:862 did not give rise to a duty on the part of Navarre to protect Plaintiffs from the injuries they suffered. Finding that a question of fact remains, we reverse and remand for further proceedings.

FACTS

Plaintiffs allege in their original petition that, on December 21, 2007, they were involved in a vehicular collision with Michael A. Taylor. The accident occurred when the vehicle Taylor was driving southbound on U.S. Hwy. 165 crossed the center line, struck the left side of a commercial vehicle, rotated counter-clockwise, hit another vehicle, rotated further, and hit the vehicle driven by Hodges with McCoy as a passenger. Taylor was driving a 2007 Chevrolet Silverado that he bought from Navarre on November 7, 2007, and he had no liability insurance.

Plaintiffs first filed suit against Taylor and later amended their petition to name Navarre as an additional defendant, alleging that Navarre failed in its statutory duty under La.R.S. 32:862 to secure an affidavit from the buyer of a new or used vehicle attesting that the buyer had appropriate insurance coverage on the vehicle. Navarre filed a Motion for Summary Judgment alleging that no question of fact remained and that Navarre was entitled to summary judgment as a matter of law because it had complied with its statutory duty under La.R.S. 32:862 and that its duty under that statute did not extend to third parties injured by an uninsured motorist. Plaintiffs appeal.

^DISCUSSION

Summary Judgment

An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment is properly granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

State v. Louisiana Land and Exploration Co., 10-1341, p. 3 (La.App. 3 Cir. 2/1/12), 85 So.3d 158,160.

The trial court herein found that:

After reviewing the memoranda, affidavits, and arguments of counsel, the Court finds that there is no genuine issue of material fact remaining and that NAVARRE is entitled to judgment in its favor. NAVARRE contends that when it sold the vehicle to TAYLOR it obtained an affidavit of proof of insurance in compliance with LSA R.S. 32:862 on November 7, 2007, before the December 2007 accident at issue in this case occurred. In the affidavit, TAYLOR swore or affirmed that he had and would maintain during the registration period vehicle liability insurance required under Louisiana law. After the affidavit was executed, NAVARRE sent it to the Office of Motor Vehicles. Thus, NAVARRE argues that it complied with the Compulsory Motor Vehicle Safety Responsibility Law.
Furthermore, NAVARRE also argues that even if it had not complied with LSA R.S. 32:862, it would have no duty that would have extended to the plaintiffs. NAVARRE cites Fugler v. Daigle [,555 So.2d 15 (La.App. 1 Cir.1990) ] in which the First Circuit Court of Appeal stated that the purpose of any duty imposed on the dealership defendant is to obtain a form confirming liability coverage and that duty did not include within its scope the protection of third parties injured by the motorist.
When reviewing the record, the Court notes that there is no evidence to even suggest that TAYLOR did not execute the affidavit dated November 7, 2007 that was introduced into evidence. As a result, NAVARRE was in compliance with LSA R.S. 32:862 by having TAYLOR execute the affidavit for proof of insurance. Moreover, the plaintiffs have not introduced any ^persuasive evidence that NAVARRE owed a duty to protect third parties from drivers without insurance or to keep uninsured drivers off the roads. Consequently, the Motion for Summary Judgment filed on behalf of NAVARRE CHEVROLET, INC. is hereby granted.

Therefore, this court will examine the duty imposed by the statute and whether Navarre breached that duty.

Duty imposed by La.R.S. 32:862

The question of whether La.R.S. 32:862 imposes a duty which extends to injured third parties is a question of law rather than a question of fact.

Louisiana Revised Statutes 32:862 provides in pertinent part:

B. (1) The commissioner shall adopt rules to implement the provisions of this Section. The rules shall provide that documentation of insurance or other security shall be required for proof of compliance. The rules shall require that the original or a copy of one of the following documents be produced as documentation of insurance: an insurance card; an insurance policy; or the declarations page of the insurance policy showing coverages. The rules shall require insurance and security companies to issue cards or similar documents which indicate the existence of insurance or security coverage, may establish the form for the cards or similar documents, and may establish the form for the written declarations required by this Section.
(2) The provisions of this Subsection with regard to the documentation of insurance requirements shall not apply to new and used automobile dealers as defined by law. However, the rules shall provide for the use of affidavits to prove compliance when registration is sought by a licensed new or used motor vehicle dealer on behalf of a customer.

The original title of the Motor Vehicle Safety Responsibility Law included language indicating that its purpose was “to eliminate the reckless and irresponsible driver from the highways, and to provide for the giving of security and proof of financial responsibility by owners and operators of motor vehicles; ... the security following an accident; proof of financial responsibility for the future.... ” The courts of this state have found that the Lpurpose of the law is to protect those injured by the fault of another driver. See Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.6/4/99), 740 So.2d 603; Czop v. White, 11-310 (La.App. 5 Cir. 12/28/11), 80 So.3d 1255; Mednick v. State Farm Mut. Auto. Ins. Co., 09-183 (La.App. 5 Cir. 1/26/10), 31 So.3d 1133. Given this purpose, we find that the duties imposed by the statute extend to third parties injured by the fault of another driver, since those are specifically the people the law is meant to protect. We further note that Fugler, 555 So.2d 15, cited by Navarre for the proposition that any duty imposed on car dealerships does not extend to third parties, was overruled by the Louisiana Supreme Court at 558 So.2d 246 (La.1990).

Although the statute states that the rules regarding documentation do not apply to licensed new or used car dealers, it further provides that when dealers seek registration of vehicles on behalf of buyers, they may use affidavits to show compliance with the statutory requirements. If a dealer seeks registration, it must see to it that the requirements of the statute are met whether by affidavit or other means.

Accordingly, the duty imposed on Navarre to comply with La.R.S. 32:862 extends to protecting those injured by Taylor.

Breach of duty

Having found that La.R.S. 32:862 imposes a duty on a car dealer which extends to third parties, we must determine whether a question of fact remains as to whether Navarre breached that duty.

Navarre asserts that it fulfilled its duty under the statute when it had Taylor sign the attestation contained on the Louisiana Department of Public Safety and Corrections Vehicle Application which states that:

|5I do swear or affirm that the information contained in this document is true and correct to the best of my knowledge. I have and will maintain, during this registration period, vehicle liability insurance (security) required by LRS Title 32:861-865. Failure to maintain as agreed will be a violation of law which may result in criminal prosecution and/or .suspension of registration privileges.
If the vehicle being registered is defined as a commercial motor vehicle by the Federal Motor Carrier Safety Regulation and/or Federal Hazardous Material Regulations, by signature below registrant declares knowledge of those federal regulations.

The copy of the form submitted in support of the motion for summary judgment carries, after this statement, the signature of Michael Taylor. The signature is unwit-nessed and unnotarized. Counsel for Navarre conceded at oral argument that this was not an affidavit. Further, below the signature lines, the form contains the further language as follows: “PROOF OF LIABILITY INSURANCE MUST BE FURNISHED AS PROVIDED FOR BY LAW BEFORE THIS FILE CAN BE PROCESSED.”

While the deposition of a representative of Navarre indicates that it is the practice of Navarre to require proof of insurance and make a copy of the insurance card, there is nothing of record to indicate that the salesman, or any other representative of Navarre, obtained proof of insurance from Taylor. The deposition of James Soi-leau, the salesman who sold Taylor the vehicle, holds no indication that he talked to Taylor until the day after the vehicle was delivered. Soileau called Taylor the next day, to obtain a policy number and the name of an insurance agent. He called the insurance agent and found out that the policy had been canceled in September 2007. Soileau testified that he was unable to contact Taylor after that. He further indicated that someone in the business office might have talked to Soileau about insurance. According to the deposition testimony of Vicki Saxby, | (¡comptroller for Navarre, the salesman should have gotten a copy of the insurance card. Further, it appears that Navarre may have submitted the vehicle application to the state knowing that Taylor’s previous insurance had been cancelled and without proof that he had obtained other insurance.

In light of the lack of any showing that Taylor provided proof of insurance in connection with his signature on the state-provided vehicle application form, which Navarre submitted on his behalf, we find that issues of fact remain with regard to Navarre’s compliance with the statute so as to constitute a breach of its duty under the statute.

CONCLUSION

Accordingly, we reverse the grant of summary judgment. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Defendant, Navarre Chevrolet, Inc.

REVERSED AND REMANDED.