author: GREG G. GUIDRY, Judge. EDWARDS, J.,

text:
    STATE of Louisiana v. Steven C. THOMAS.
    No. 08-KA-521.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

12Pefendant, Steven Thomas, appeals from his conviction for possession of a firearm by a convicted felon and his sen-fence to 13 years at hard labor, without benefit. For the reasons which follow, we affirm.

On May 11, 2006, the Jefferson Parish District Attorney’s Office filed a bill of information charging the Defendant with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 At his arraignment, the Defendant pled not guilty. Subsequently, the Defendant filed a motion to suppress the evidence, which the trial court denied finding that there was reasonable suspicion for the initial stop and a cursory search for weapons. The Defendant filed a writ application with this Court raising three errors regarding the trial court’s denial of his motion to 1 ..¡suppress the evidence. The writ application was denied. State v. Thomas, 06-845 (La.App. 5 Cir. 11/08/06). The case was tried before a twelve member jury in one day.

At trial, Officer Leon James and Deputy Harley Smith, both with the Jefferson Parish Sheriffs Office testified that, on May 1, 2006, at approximately 8:00 p.m., they were on proactive patrol in the Woodmere subdivision on the Westbank of Jefferson Parish, a high crime area. Officer James and Deputy Smith both testified that they saw the Defendant and another individual, later identified as Harold Banks, standing near an apartment building, located near 2241 Alex Korman Boulevard, which displayed a no loitering sign.

According to Officer James, one of the individuals, later identified as the Defendant, appeared to be flagging down motorists. Officer James testified that he thought the Defendant was trying to get the attention of the driver of a vehicle on the street. According to Officer James, he did not observe the Defendant with any weapons, contraband, or money in his hand. Both Officer James and Deputy Smith testified that no vehicle stopped in response to the Defendant. Subsequently, Officer James and his partner exited their marked police vehicle to investigate. Deputy Smith testified that he intended to question the Defendant to determine whether he was loitering, and because he was flagging down vehicles.

Both Officer James and Deputy Smith testified that, as they started to approach, the Defendant and Banks noticed them, and the Defendant turned around and started to walk away. Deputy Smith testified that he saw the Defendant quickly place his hand under his shirt and move it around to his back. Deputy 14Smith testified that he ordered the Defendant to stop, return to the police vehicle, and place his hands on it. The Defendant complied. According to Deputy Smith, because he did not know what the Defendant reached for under his shirt, he conducted a Terry pat-down for weapons for officer safety.

Deputy Smith testified that he initially felt the front pockets of the Defendant’s outer clothing even though he had seen Defendant’s hand move to the back. During the pat-down, he felt a large bulge in the Defendant’s right front pocket. Although he testified that he did not at that time think it was a weapon, he reached into the Defendant’s pants pocket and retrieved the object. At trial, Deputy Smith testified that the object he recovered from the Defendant’s pocket was marijuana.

Deputy Smith testified that he continued searching the Defendant and felt “a hard object in the [Defendant’s] waistband.” Deputy Smith testified that he “retrieved the hard object.” Deputy Smith identified, in court, the 9-millimeter Luger he recovered from the Defendant’s waistband. According to Deputy Smith, after the gun and marijuana were recovered, the Defendant told him that the gun belonged to his friend.

Larry McGaha, the owner of the building located at 4221 Alex Korman, testified that to his knowledge the Defendant was a resident of the building in May 2006. McGaha also testified that the building has never had a “no trespassing” sign posted on it since he bought it in 1991.

Kendra Camese, and Jameiss Dillon, former neighbors of the Defendant, and Yamini Nukhtar testified for the defense, all stating that the building Defendant was standing in front of when stopped has never had a “no loitering” sign posted on it. Camese and Dillon testified that the Defendant was not waiving at cars, and |,<;he did not try and walk off when the officers arrived. Rather, as soon as the officers exited their vehicle, they told the Defendant to put his hands on the officer’s car. The officer immediately searched the Defendant. They also testified that they did not see the officer take anything out of the Defendant’s pocket and did not see them find a gun on the Defendant.

Following the trial, the jury found the Defendant guilty as charged. Subsequently, the trial judge sentenced the Defendant to 13 years at hard labor without benefit of parole, probation, or suspension of sentence and with credit for time served. The Defendant’s sentence was ordered to run concurrently with his sentence for the misdemeanor conviction for possession of marijuana, in case number 06-2570. It is from this conviction and sentence that Defendant appeals. The Defendant assigns two errors.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error the Defendant argues that the trial court erred in denying his motion to suppress. More particularly, the Defendant argues that the officers did not have reasonable suspicion to stop him and, thus, the pat-down for weapons was unjustified. He also points out that the officers did not state that they suspected that he had a weapon. Therefore, the evidence was improperly seized and should have been suppressed.

The State argues that the deputies did have reasonable suspicion to initiate an investigatory stop. The officers were in a high crime area where they had | (¡previously made several arrests. The Defendant was observed loitering outside of a building posted with a no loitering sign, flagging down motorists, turning quickly before walking away upon seeing the officers approach, and making a quick hand motion under his shirt towards his back. Taken together, the State argues these facts provided reasonable suspicion for the stop. In addition, the State claims that the pat-down for weapons was proper because Deputy Smith was concerned for his safety after the Defendant made a sweeping motion with his hand under the back of his shirt as he fled.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. State v. Lee, 05-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122. Measured by this standard, La.C.Cr.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robertson, 97-2960, p. 2 (La.10/20/98), 721 So.2d 1268, 1269; State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Robertson, 97-2960, p. 2-3, 721 So.2d at 1269; Belton, 441 So.2d at 1198. In determining whether the officers possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” State v. Temple, 02-1895, p. 5 (La.9/9/03), 854 So.2d 856, 860 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002), internally quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

A high crime area is an articula-ble fact upon which the police may rely. It is also relevant in determining whether there is reasonable cause to conduct an investigatory stop. Temple, 02-1895, p. 5, 854 So.2d at 860; State v. Chauvin, 06-362, p. 8 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 758. A police officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes, are factors that may also support a finding of reasonable suspicion for an investigatory stop. Chauvin, 06-362 at 8, 945 So.2d at 758. An individual’s mere presence in a high crime area alone is insufficient to justify an investigatory stop. State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 656. In addition, any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. State v. Lewis, 00-3136, p. 4 (La.4/26/02), 815 So.2d 818, 820, cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211.

Upon review, we find the facts presented in this case were sufficient to provide the officers with reasonable suspicion for making the stop. The officers testified that the area where they first spotted the Defendant was a high crime area where they had made several drug arrests in the past. They saw the Defendant at ^approximately 8:00 p.m. They observed the Defendant and another individual loitering in front of a building posted with a no loitering sign. The Defendant was waiving or flagging down people. As they approached, the Defendant made “a quick-sweep[ing] motion as he was reaching for something under his shirt,” turned and began walking away. Deputy Smith responded affirmatively, when asked if this alarmed him. Deputy Smith also stated that it raised his suspicion when the Defendant started walking away. Based on the foregoing, we find that the officers had sufficient knowledge of facts and circumstances to draw reasonable inferences based on their experience, establishing reasonable grounds to stop the Defendant.

Following the stop, Deputy Smith testified he conducted a pat-down of the Defendant for the officers’ safety. Defendant contends that the officer had no reason to suspect that he had a weapon or that the officer was in any danger. Therefore, the pat-down, in which the narcotics and gun were found was improper, invalidating the seizure of the evidence as a result.

An officer’s right to conduct a protective frisk is codified in La.C.Cr.P. art. 215.1(B), which provides that “[w]hen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” While it is true that an officer is never justified in conducting a pat-down for weapons unless the original investigatory stop itself was justified, a lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Sims, 02-2208, p. 6 (La.6/27/03), 851 So.2d 1039, 1043; State v. Hunter, 375 So.2d 99, 101 (La.1979). Even after a lawful investigatory stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger. La. C.Cr.P. art. 215.1(B); Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Therefore, the reasonableness of a frisk is governed by an objective standard. State v. Dumas, 00-0862, pp. 2-3 (La.5/04/01), 786 So.2d 80, 81.

The officer need not establish that it was more probable than not that the detained individual was armed and dangerous. Rather, it is sufficient that the officer establish a “substantial possibility” of danger. Id.; Hunter, 375 So.2d at 102. In determining the lawfulness of an officer’s frisk of a suspect, courts must give due weight, not to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Under the totality of the circumstances, we find the officer had a reasonable, objective and particularized basis for conducting a pat-down frisk of defendant. The sole purpose of the limited protective frisk is to prevent harm to police officers. State v. Sims, 02-2208, p. 11 (La.6/27/03), 851 So.2d 1039, 1046; State v. Wade, 390 So.2d 1309, 1312 (La.1980). It is long established that drugs, guns and violence often go together, and thus this may be a factor tending to support an officer’s claim of reasonableness. State v. Porche, 06-0312, p. 9 (La.11/29/06), 943 So.2d 335, 340. In this case, the officers were in a high crime area, more particularly, a high drug crime area. The possibility that a suspect could be carrying a gun was a reasonable inference to draw. They encountered the Defendant at night. The Defendant had turned to walk away upon spotting the officers and had made a quick maneuver with his hand under his shirt and toward his back. Under these circumstances, we find that the officer was warranted in the belief that there was a substantial possibility of danger. Therefore, we find no violation of the Defendant’s rights in the officer’s decision to pat-down the Defendant.

|inIn commencing the pat-down, however, rather than starting at the Defendant’s back, Deputy Smith commenced with the front pockets of Defendant’s outer clothing. During the pat-down, he felt a large bulge in the Defendant’s right front pocket which he admitted did not feel like a weapon. Deputy Smith also did not testify that the bulge was clearly identifiable as contraband. Deputy Smith retrieved the item from the Defendant’s pants pocket and determined it was marijuana.

He then continued the search of the Defendant and felt a hard object in the Defendant’s back waistband. Deputy Smith retrieved the hard object which was a 9-millimeter Luger.

The “plain feel” exception to the warrant requirement for the seizure of evidence allows an officer conducting a legally valid pat-down search to seize contraband when the incriminating character of the object is immediately apparent to the officer without an additional form of search or examination to identify it as contraband. Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S.Ct. 2130, 2134, 124 L.Ed.2d 334 (1993); State v. Boyer, 07-0476, p. 22 (La.10/16/07), 967 So.2d 458, 472. In Dickerson, the Court observed that although Terry entitled the officer to place his hands upon the defendant’s jacket, the incriminating character of the object was not immediately apparent to the officer, and he determined the item was contraband only after conducting a further search, one not authorized by Terry or any other exception to the warrant requirement. Dickerson, 508 U.S. at 379, 113 S.Ct. at 2139. Because the further search of the defendant’s pocket was constitutionally invalid, the seizure of the cocaine was also held unconstitutional. Id.

Similarly, in State v. Boyer, 07-476 (La.10/16/07), 967 So.2d 458, the Louisiana Supreme Court found that the search of the defendant in that case, | n pursuant to a Terry pat-down for weapons, exceeded its scope where the officer could not identify two small objects he felt in defendant’s pocket, and did not think they were weapons, but nevertheless, reached into the pocket and removed the items to make a visual inspection.

In this case, Deputy Smith started the pat-down of the Defendant with his front pockets. He felt a bulge in the Defendant’s pants pocket but testified candidly that he did not think it was a weapon. He also did not testify that he thought the item was contraband by its feel. Therefore, in accord with the foregoing jurisprudence, we find that his entry into the Defendant’s pocket and retrieval of the item exceeded the scope of the otherwise valid Terry pat-down for weapons for the officer’s safety.

As the officer continued the pat-down, he felt a hard object in the waistband of Defendant’s pants at his back. This was the same location where the officer saw the Defendant quickly move his hand as he turned and began walking away. The retrieved item was a 9-millim-eter Luger. We find the retrieval of the hand gun from the Defendant’s waistband, pursuant to a Terry pat-down for weapons was within the parameters of the valid search and was, thus, legally obtained. At that point, the Defendant was placed under arrest and advised of his Miranda rights.

Upon the arrest of the Defendant, the officers were authorized to affect a complete search of the Defendant. Upon conducting such a search, the large bulge of marijuana in his front pants pocket would have been discovered. Therefore, we must consider whether the marijuana is admissible under the inevitable discovery rule.

Most recently, in State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, the Louisiana Supreme Court explained the inevitable discovery rule as follows:

1 i?One of the theories courts use in addressing “fruit of the poisonous tree” issues is the inevitable discovery rule. The inevitable discovery doctrine “is in reality an extrapolation from the independent source doctrine: Because the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). A functional similarity exists between the independent source and inevitable discovery doctrines because both seek to avoid excluding evidence the police “would have obtained ... if no misconduct had taken place.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The State therefore bears the burden of proving by a preponderance of the evidence that “the information ultimately or inevitably would have been discovered by lawful means.... ” Id,.; State v. Vigne, 01-2940 (La.6/21/02), 820 So.2d 533, 539. Application of the inevitable discovery doctrine thus “involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment....” Nix v. Williams, 467 U.S. at 444, 104 S.Ct. at 2509 n. 5; State v. Vigne, 820 So.2d at 539.
Integral to the proper application of the inevitable discovery doctrine is a finding that law enforcement would have inevitably secured the evidence by lawful means, not simply that they could have. Thus, a mere showing that the police had probable cause for a search and could have secured a warrant from a neutral magistrate does not satisfy the doctrine, because it would effectively obviate the Fourth Amendment preference for warrants and reduce the exclusionary rule to cases in which the police lack probable cause. See United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006)(“The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs [citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)].... If probable cause alone-without putting in train the process of applying for a warrant-were enough to invoke the inevitable-discovery doctrine, that would have .the same effect as limiting the exclusionary rule to searches conducted without probable cause.”); see also 6 LaFave, Search and Seizure, § 11.4, at 278-79 (Fourth Ed.) (“Circumstances justifying application of the ‘inevitable discovery’ rule are most likely to be present if these [independent] investigative procedures were already in progress prior to the discovery via illegal means, as in | ^Nix v. Williams, or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later.”).

State v. Lee, 05-2098 at 23-24, 976 So.2d at 127-128.

Applying these precepts to the facts before us, we find that the marijuana would have been inevitably discovered through legal means. Following the discovery of the gun in the Defendant’s waistband, the Defendant was placed under arrest. A full search is permitted pursuant to an arrest, during which the marijuana would have been discovered.

In view of the foregoing, we find the officer’s had reasonable suspicion for a Terry stop of the Defendant, and a Terry pat-down for the officers’ safety, which lead to the legal discovery of a concealed weapon, valid arrest and full search pursuant thereto, during which the marijuana would have been constitutionally discovered. Therefore, we find no error in the trial court ruling denying the Defendant’s motion to suppress the evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the Defendant argues that the trial court erred in limiting his presentation of a defense of mistake of fact and/or law. More particularly, it is argued that his attorney was not allowed to examine potential jurors during voir dire and to argue to the jury during his closing that even if they believed that the Defendant was found in possession of the gun, that the Defendant was unaware that he could not carry a gun ten years after his previous conviction. The Defendant claims there was a question of intent and, therefore, the defense wanted to argue its theory in order to show a lack of intent. The Defendant argues that the exclusion of the defense of mistake might have contributed to his | Mconviction. Therefore, the exclusion was not harmless and the conviction should be set aside.

The State argues that the trial court did not prevent the defense from asserting its defense theory of mistake. Further, even if precluded it was not error because the charged offense is a general intent crime and, therefore, it was only required to prove that the Defendant was carrying a firearm. The State further argues that, pursuant to La. R.S. 14:17, ignorance of the law is not a defense to any criminal prosecution.

A review of the voir dire transcript reveals that while the trial judge sustained some State objections to defense procedures during voir dire, we find, after full review, that the trial judge did not prevent defense counsel from examining potential jurors concerning a defense of mistake (that the Defendant was unaware that he could not carry a gun ten years after his previous conviction, and that he did not possess the requisite intent to commit the charged offense).

Defense counsel was allowed to inform the prospective jurors that the State has “to prove to you that [the Defendant] was intentionally possessing a weapon within that ten-year cleansing period. And if [the State fails] to do that, even if [the Defendant] did possess the weapon, you have no alternative to [sic] find him not guilty.” Then, defense counsel was allowed to ask the prospective jurors, “Does anybody have a problem with that?” Later, defense counsel informed the prospective jurors that the State had to prove to them that the Defendant “had a criminal intent to possess a gun less than ten years from his sentencing date or his probation date or his parole date that he had gone to jail. They have to prove his intent along those lines.” Then, defense counsel asked the prospective jurors, “if [the State does not] do that, can you find [the Defendant] not guilty?” | ^Subsequently, defense counsel again informed the jurors of his defense and questioned them, as follows:

[The State has] to prove that [the Defendant’s] intention was to commit a criminal act. The element of the crime is that [the Defendant] intended to commit a criminal act, which would be to possess the gun, less than 10 years than [sic] his time of probation or sentence. And if they fail to prove that to you, that that [sic] was [the Defendant’s] intent, can you find him not guilty? Can everyone do that?

The record reveals that the trial judge gave defense counsel sufficiently wide latitude to examine the prospective jurors regarding the defense, and to test their impartiality, competency, and prejudices. See, State v. Brashears, 04-1207 (La.App. 5 Cir. 4/26/05), 902 So.2d 536, in which this Court found that the trial court did not abuse its discretion in imposing restrictions on defense counsel’s voir dire examination.

The Defendant also argues that he was restricted in closing arguments, however, he references no instances of such restriction and we have found none. During defense counsel’s closing arguments, defense counsel stated:

The evidence that [the State] has to prove to you is that [the Defendant] had the gun, that [the Defendant] intended to violate the law, and that [the Defendant] did violate the law, that [the Defendant] possessed [the gun] less than 10 years before he got off probation. But, [the State] presents no evidence. It’s thoroughly impossible for you to determine whether [the Defendant] violated the law by having a gun before he got off of probation, because [the State] doesn’t tell you that. [The State] hasn’t proven [its] case.

Thus, after review, we find that defense counsel was allowed to argue to the jury during his closing that even if they believed that the Defendant was found in possession of the gun, that the State had to prove the Defendant intended to violate the law. Moreover, to the extent such a defense might have been restricted, we find no error. La R.S. 14:95.1, under which the Defendant was |u;charged, is a general intent crime. State v. Watson, 08-214, p. 7 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 783. To sustain a conviction under La. R.S. 14:95.1, the State must only prove the status of the defendant as a convicted felon, that he possessed a firearm and that ten years had not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Crawford, 03-1494 (La.App. 5 Cir. 4/27/04), 873 So.2d 768 (citing State v. Mose, 412 So.2d 584). Therefore, we find no erroneous restriction of the defense in either the voir dire examination or closing argument. This assignment of error lacks merit.

ERROR PATENT DISCUSSION

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

The sentencing transcript indicates that the trial judge did not inform the Defendant of the period in which to file for post-conviction relief. While the commitment/minute entry indicates that the Defendant was informed that he had, “two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief,” when there is a discrepancy between the transcript and the minutes, the transcript governs. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand the case and order the district court to inform Defendant of the proper prescriptive period for filing post-conviction relief by sending written notice of the provisions of La.C.Cr.P. art. 930.8 to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant 117received the notice. State v. Strickland, 04-843, p. 17 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 896, writ denied, 05-0820 (La.6/17/05), 904 So.2d 683.

Accordingly, for the reasons provided, we affirm the Defendant’s conviction for possession of a firearm by a convicted felon and his sentence to 13 years at hard labor without benefit of parole, probation or suspension of sentence and remand the case for the trial court to provide proper notice to the Defendant of the time limitations for filing an application for post conviction relief, as provided in La.C.Cr.P. art. 930.8, and to file written proof in the record of his receipt of the information.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED.

EDWARDS, J., dissents with reasons.

EDWARDS, J.,

dissents with reasons.

hi respectfully dissent from the majority’s opinion in this matter. In my view, the defendant’s motion to suppress was meritorious and should have been granted. While I do not quarrel with the law as set forth in the majority opinion, I disagree with the application of the law to the facts of this case.

The facts show that the defendant was standing in front of an apartment complex, which displayed a “No Loitering” sign, at about 8:00 p.m. The area was described as high crime in which officers had made prior drug arrests. The defendant was observed attempting to flag down cars for about five or ten seconds. As defendant began to walk away, officers noticed that defendant made a “quick sweeping motion under his shirt.”

I find no articulated suspicion that the suspect was committing or about to commit an offense, a basic requirement to support a reasonable suspicion for the stop. The arresting officers testified that they saw nothing that looked like a drug transaction. The defendant, who was there only for a matter of seconds, merely walked away when he saw the police officers approach.

Clearly, a law enforcement officer has the right to temporarily detain and interrogate a person whom the officer reasonably suspects is committing, has committed or is about to commit a crime. However, an un-particularized hunch 12based on the officer’s subjective beliefs or attitudes instead of a completely objective evaluation of the circumstances is insufficient to establish reasonable grounds to stop an individual.

I recognize that officers have the right to approach a citizen and engage in conversation even without reasonable suspicion of criminal activity. However, when there is no articulated suspicion of criminal activity, a citizen has the right to walk away. I find that, in this case, defendant was exercising that right. I believe that any evidence seized from defendant was the fruit of an illegal stop, and should have been suppressed.

Accordingly, I would hold that the trial court erred in denying defendant’s motion to suppress the evidence and I would vacate his conviction.

      . According to the bill of information, the Defendant previously was convicted of possession with intent to distribute cocaine, in case Number 95-1868, in the 24th J.D.C., in Jefferson Parish. The defense agreed to the stipulation offered by the State that the Defendant's prior conviction "occurfed] in 1995, he was sentenced with [sic] three years probation.”

      . The October 3, 2006 transcript and minute entry indicate that the Defendant also filed a motion to suppress statement. The October 4, 2006 transcript indicates that the State stipulated that the Defendant’s statement should not be admitted into evidence.

      .Later in their trial testimony, both Officer James and Deputy Smith testified that, while subsequent photographs of the apartment building located at 2241 Alex Korman Boulevard did not show a no loitering sign on the building in front of which the Defendant stood, on the night of his arrest, it displayed a sign. Further, it appears that this portion of the testimony mistakenly refers to a no Ires-passing sign. Defense counsel actually asked Deputy Smith about a no trespassing sign. However, based on the whole record, it appears that defense counsel actually meant a no loitering sign.

      . Officer James only testified that the Defendant was stopped for flagging down vehicles.

      . See footnote four regarding the inadvertent reference to the sign as a no trespassing sign.

      . The Defendant’s trial for possession of marijuana was concurrent with his trial on the felony charge. The felony offense was a jury trial and the misdemeanor offense was a bench trial. The trial judge found the Defendant guilty of possession of marijuana. The Defendant was sentenced to six months in parish prison on that charge.

      . The notice of appeal states the wrong sentencing date.

      . In the present case, the Defendant raises the claim, for the first time on appeal, that the police lacked probable cause for his warrant-less arrest. A new issue that has not been submitted to the trial court for consideration generally cannot be raised for the first time on appeal. State v. Darensbourg, 06-572, p. 3 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128, 1131, writ denied, 07-0317 (La. 11/9/07), 967 So.2d 495. However, in light of our findings on his other assigned errors, we note this argument is moot. The officers had reasonable suspicion to make the stop and the pat-down for officer safety, whereupon the weapon was found, giving them probable cause for the warrantless arrest.

      . “General intent means that the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal.” State v. Watson, 08-214 at 7, 993 So.2d at 783. "[0]nce the Defendant voluntarily commits the proscribed act, general criminal intent may be presumed.” Id.

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

      . State v. Gagnon, 01-1302 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, 170.

        . Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963).


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Terry L. SCOTT.
    No. 08-KA-703.
    Court of Appeal of Louisiana, Fifth Circuit.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Kenneth P. Bordelon, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2The defendant has appealed his conviction of possession of hydrocodone, his adjudication as a second felony offender, and the ten year sentence he received as a multiple offender. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant, Terry L. Scott, was charged in a bill of information by the Jefferson Parish District Attorney with possession of hydrocodone in violation of LSA-R.S. 40:967(C). Defendant pled not guilty at arraignment. After being advised of his rights, defendant later withdrew the not guilty plea and pled guilty as charged under the provisions of North Carolina v. Alford. In conformity with the |splea agreement, defendant was sentenced to five years imprisonment at hard labor, to run concurrently with the sentence imposed in case number 07-6307.

The State filed a multiple offender bill of information, alleging defendant was a second felony offender with a prior conviction for possession of cocaine. Defendant attempted to withdraw the guilty plea, which was denied. After being advised of and waiving his rights, defendant admitted the allegations of the multiple bill, believing the plea was in his best interest. The trial judge vacated defendant’s original sentence and sentenced defendant to ten years imprisonment at hard labor without benefit of probation or suspension of sentence. This sentence was ordered to run concurrently with any time defendant “might be serving.”

This timely appeal follows.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (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, p. 3 (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. Along with her brief and request for error patent review, appellate counsel has filed a motion to withdraw as attorney of record which states she sent defendant a general letter about the filing of the brief. She further provides that she moves to withdraw from the case, “and with this motion informs Terry L. Scott that he may file a supplemental brief on his own behalf.” Additionally, this Court sent defendant a letter by certified mail | informing him that an Anders brief had been filed and that he had until October 22, 2008 to file a pro se supplemental brief. Defendant has not filed a brief.

The State agrees that a review of the record in this case reveals no non-frivolous issues supporting reversal and defendant’s appeal is “wholly frivolous.”

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his 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, 96-2669 at 2, 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 | sis wholly frivolous. State v. Bradford, 95-929, p. 4 (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.

When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal. State v. Leonard, 04-708, p. 4 (La.App. 5 Cir. 12/14/04), 892 So.2d 66, 69. If, in its review, “the appellate court finds a legal point arguable on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing the legal point or it may grant the motion to withdraw and appoint substitute appellate counsel.” State v. Dillon, 06-488, pp. 3-4 (La.App. 5 Cir. 11/28/06), 947 So.2d 86, 88.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged defendant and presents no non-frivolous issues supporting appeal. As required, the bill of information plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally, LSA-C.Cr.P. arts. 464-66.

| (As reflected by the minute entries and commitments, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, his sentencing, and his multiple offender proceedings, including his admission to the allegations and his sentencing. As such, defendant’s presence does not present any issue which would support an appeal.

Further, defendant pled guilty to the underlying conviction and admitted to being a second felony offender as alleged in the multiple bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer, 97-465, p. 9 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

The record does not reflect that defendant filed any pre-trial motions. Therefore, there are no trial court rulings defendant could have preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Defendant offered his plea under North Carolina v. Alford, 400 U.S. at 38, 91 S.Ct. at 167 n. 10, which requires the establishment of a factual basis for the plea when a defendant does not admit guilt. The prosecutor offered a factual basis for the plea sufficient to satisfy the Alford requirements, stating that if the case had gone to trial the state “would have proven beyond a reasonable doubt that on March 20th of the year 2008, he did knowingly, intentionally possess a controlled dangerous substance which was in fact hydroeodone.”

17The record does not reveal any irregularities in defendant’s guilty plea. Once a defendant is sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain whose terms are not fulfilled. Id.

Regarding defendant’s guilty plea to the underlying offense, the record shows that defendant was advised of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Further, defendant acknowledged that he executed a waiver of rights form that was reviewed with his attorney. When asked if defendant understood that by entering the guilty pleas that he was waiving these constitutional rights, defendant responded affirmatively.

Defendant stated that he finished eighth grade and could not read and write. When asked if he understood what his counsel explained to him when his counsel went over the waiver of rights form, defendant responded, “[a] little bit of it.” The trial judge then questioned if defendant understood all that he had said to defendant, and defendant stated, “I think so.” The trial judge then explained to defendant that if he said something that defendant did not understand that defendant needed to stop him for an explanation from the trial judge or defendant’s attorney. Defendant responded, “All right.”

The record reveals that the trial judge ascertained that defendant understood his rights, and that he was waiving them knowingly and voluntarily. The trial judge explained to defendant, and defendant indicated that he understood that the guilty plea was entirely defendant’s decision and that he could not be forced to |Renter the plea. He denied that force, intimidation, coercion, threat or promise was used. The trial judge also explained defendant’s right to an appeal if he chose to go to trial. Defendant was informed again of his rights to a jury trial and to confront his accusers. Defendant responded affirmatively when asked if he understood that by pleading guilty he was waiving these rights. Defendant also agreed that he understood that by pleading guilty he could not assert allegations of defects. Additionally, defendant later admitted to a prior conviction that was the result of a guilty plea and, thus, had prior experience with the criminal justice system. See State v. Davis, 02-387, p. 10 (La.App. 5 Cir. 9/30/02), 829 So.2d 554, 560.

The trial judge explained to defendant the offense with which he was charged and the maximum sentence to which he could be exposed. When the trial judge asked defendant if he understood the nature of the charge and the possible penalty, defendant stated, “[n]ot really.” Thereafter, a bench conference was held regarding the plea to another charge. Defendant then stated he understood the nature of the charges against him and the possible penalties. The trial judge then advised defendant of the sentence that would be imposed, and defendant stated that he understood this. The trial judge also explained to defendant that the State would file a multiple bill alleging that he was a second felony offender and advised him of the sentence he would receive as a multiple offender if the court accepted his admission. Defendant stated that he understood this.

Defendant pled guilty under the provisions of Alford, stating that he believed it was in his best interest to plead guilty. Defense counsel agreed that defendant knowingly, intentionally, freely, and voluntarily entered this guilty plea in his best interest. The trial judge stated that he was convinced that defendant understood the nature of the charges against him and the possible penalties and that | athere was a basis for the guilty plea. The trial judge stated that both defendant and his counsel indicated to the court that the guilty plea was in defendant’s best interest, and that the State read into the record a factual basis for the court’s acceptance of the plea. The trial judge accepted defendant’s guilty plea as knowingly, intelligently, freely, and voluntarily made.

After pleading guilty to possession of hydrocodone, the trial judge imposed a sentence in conformity with the plea agreement. LSA-C.Cr.P. art. 881.2 A(2) provides, “[t]he 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.” Defendant’s sentence was within the sentencing range.

Based on the foregoing, the proceedings surrounding defendant’s plea of guilty and his sentence on the underlying offense do not present any non-frivolous appealable issues.

At the hearing on the multiple bill defendant moved for the trial judge to withdraw his guilty plea. Defendant claimed he did not understand the nature of what he was doing. The trial judge denied this motion, finding that he had a colloquy with defendant and was convinced defendant’s plea was knowingly, intelligently, freely, and voluntarily made. The trial judge noted that both defendant and his counsel expressed the guilty plea was in defendant’s best interest.

Under LSA-C.Cr.P. art. 559(A), the trial court has the discretion to permit a defendant to withdraw his guilty plea at any time prior to sentencing. State v. Stewart, 03-976, p. 5 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, 1275. In the present ease, defendant moved to withdraw his guilty plea after he was sentenced.

| xpEven after sentencing, if a trial court finds ‘either that a plea of guilty was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and that the plea, therefore, is constitutionally infirm, the Trial Court retains the authority to vacate the sentence and set aside the plea, notwithstanding Article 559.’

State v. Guzman, 95-444, p. 6 (La.App. 5 Cir. 11/15/95), 665 So.2d 512, 517, writ denied, 95-2853 (La.2/28/96), 668 So.2d 366 (quoting State v. Lewis, 421 So.2d 224, 226 (La.1982)). See also Stewart, 03-976 at 5, 862 So.2d at 1275, where this Court recognized that once a defendant has been sentenced, a guilty plea may not be withdrawn unless the plea is found to be constitutionally infirm. As previously discussed, a guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain and that bargain is not kept. McCoil, 05-658 at 7, 924 So.2d at 1124.

Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily. State v. Kron, 07-1024, p. 5 (La.App. 5 Cir. 3/25/08), 988 So.2d 117, 120, writ denied, 08-0813 (La.10/24/08), 992 So.2d 1039. As previously concluded, we find that defendant’s guilty plea was not constitutionally infirm. Defendant was informed of his rights and the consequences of his plea, and the plea was entered into voluntarily. Additionally, defendant was sentenced in conformity with the plea agreement.

Further, although defendant seemingly expressed interest in withdrawing his guilty plea, the record reflects that after initially denying the motion to withdraw the guilty plea, the trial judge gave defense counsel a chance to move to withdraw it again. After the trial court denied the motion, there were further discussions with defense counsel, the State, and the trial judge. The State provided that it | nwould not object to defendant withdrawing his guilty plea. The trial court then asked defense counsel if he wanted to withdraw the guilty plea after the ruling, and defense counsel requested to speak to defendant. The record reflects that at this time defense counsel spoke with defendant off of the record and a bench conference was held. The prosecutor then repeated that the State has no objection to the defendant withdrawing his guilty plea. The court then took up other matters and defense counsel again spoke with the defendant off the record. When the proceedings resumed, the defense counsel waived a reading of the multiple bill and tendered a plea of guilty to the multiple bill. Thus, the record reflects that defendant decided he did not want to withdraw the guilty plea.

As to the multiple offender bill, we find that the trial judge properly explained to defendant his multiple offender rights. The court explained that, by pleading guilty, the defendant was giving up his right to have a hearing where the District Attorney would have to prove that he was the same person with the prior felony and that the time period between the completion of the sentence for the listed prior felony and the date of the crime for the more recent conviction is ten years or less. The court also explained what the State would have to establish regarding a prior conviction that resulted from a guilty plea. It was also explained the defendant was relinquishing his right to remain silent. Defendant denied that he was forced, coerced, or threatened to admit to the allegations of the multiple bill. The record reflects that defendant indicated he understood his rights, and that he wished to waive a multiple offender hearing and stipulate to his status as a multiple offender. Defendant also executed a waiver of rights form.

The trial judge explained to defendant the sentencing range he faced as a second felony offender, and defendant was advised of, and indicated that he understood, the sentence he would receive if he stipulated to being a second felony |, .¿offender. After stipulating to the multiple bill, the trial judge imposed a sentence in conformity with the plea agreement.

This Court has consistently recognized that LSA-C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Further, defendant’s sentence was within the sentencing range.

Based on the foregoing, the proceedings surrounding defendant’s stipulation to the multiple bill as well as his enhanced sentence do not present any non-frivolous ap-pealable issues.

ERROR PATENT DISCUSSION

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

This review reveals that the multiple bill commitment reflects that defendant was sentenced under the multiple bill statute while the transcript reflects defendant admitted to being a second felony offender. Accordingly, we remand this matter to trial court for the limited purpose of correcting the commitment to state defendant was sentenced as a second felony offender. See, State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31.

CONCLUSION

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify [isany basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted. This matter is remanded for the limited purpose of correcting the commitment.

AFFIRMED; REMANDED.

      . Defendant was multiple billed as "Terry Scott.” The commitment, however, reflects "Terry L. Scott” was multiple billed.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

      . Defendant pled guilty to possession of hy-drocodone in violation of LSA-R.S. 40:967(C). He faced a possible sentence of imprisonment with or without hard labor for not more than five years and, in addition, could have received a fine of not more than five thousand dollars. See LSA-R.S. 40:967(C).

      . As a second felony offender, defendant was subject to a sentence of not less than one-half of the maximum term of sentence of the underlying offense and not more than twice the maximum term of the underlying offense. See LSA-R.S. 15:529.1 (A)(l)(a). Thus, the sentencing range for defendant’s enhanced sentence was between two and one-half to ten years of imprisonment.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Robert M. LONGO.
    No. 08-KA-405.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| gDefendant-appellant, Robert Longo (“Longo”), challenges his conviction of possession of pornography involving juveniles. He was charged with a violation of LSA-R.S. 14:81.1, and, following a plea of not guilty, he proceeded to trial. A unanimous twelve-person jury found him guilty as charged, and he was ultimately sentenced to three years in the Department of Corrections without the benefit of parole, probation, or suspension of sentence.

The facts of the case were adduced at trial. In early March 2005, Longo, who was a Kenner police officer, reported to the Kenner Police Department the rape of his fifteen-year-old daughter by a person she met on the internet. Detective George Hoffmann (“Detective Hoffmann”), a friend of Longo’s, was assigned to investigate the case. In connection with the investigation, Longo consented to the search of his home computer as it was believed the identity of the perpetrator who committed the assault could be ascertained from reviewing the computer for internet photographs and chat room texts.

laLongo’s computer was removed from his home and a forensic examination of the computer was performed. Detective Hoff-mann testified that an image of child pornography was discovered during a search of the computer. At the discovery of the image, the consent search stopped, and Detective Hoffmann applied for and obtained a search warrant of the computer. Execution of the search warrant revealed a total of twenty-five images of child pornography on Longo’s computer. Detective Hoffmann advised Longo of the discovery of the pornographic images, then informed him that he was under investigation for child pornography, advised him of his rights, and took his statement. In his statement, Longo admitted downloading three pictures of child pornography but stated he thought he just accidentally downloaded them. He described one photo as having one nude female and two nude males who appeared to him to be about fifteen or sixteen years old.

The day after his statement, Detective Hoffmann again advised Longo of his rights and proceeded to show him the twenty-five images that were found on his computer. Unlike his first statement, this “interview” was not recorded. During the interview, Detective Hoffmann individually reviewed the twenty-five images with Lon-go and inquired whether he downloaded or recognized the image. At that time, Lon-go admitted he recognized some of the images and further admitted he downloaded some of the images. As a result of this interview, Detective Hoffmann sought an arrest warrant, and Longo subsequently turned himself in.

At trial, the evidence showed the twenty-five images of child pornography were found on Longo’s computer, which at one time was the family computer. Although his ex-wife, son, and daughter had access to the family computer at one time, all the images were found in a Yahoo Messenger account under the profile of “Mounted 42.” Longo admitted at trial that he had a Yahoo Messenger account Rwith. that screen name and agreed that the account could not be accessed without a password. However, he testified that it was common knowledge that the password to his account was taped under the computer keyboard.

Longo’s son, Anthony, testified that everyone in the family knew passwords were taped under the keyboard. However, Anthony stated he did not have access to his father’s Yahoo account, did not know his father’s password, had never used his father’s user name or password, and had never downloaded pornography onto the computer. Conversely, defendant’s daughter testified that she did not know where her father kept his password. She further testified that she did not know her father’s user name and had never used his Yahoo account. Although Longo’s daughter admitted getting photographs of naked boys her age off the computer, she stated she never downloaded child pornography.

Longo’s ex-wife also testified. She stated she did not know Longo’s Yahoo user name or password and denied that he kept the information under the keyboard or in an easily accessible location. She further testified she did not download child pornography but explained Longo had downloaded pornographic images in front of the children in the past. The record shows Longo’s ex-wife’s computer, to which Lon-go’s daughter had access, was searched and no images of child pornography were found.

According to the evidence, nineteen of the twenty-five photographs at issue had a date of October 2, 2004, between 4:39 pm and 11:50 pm. Anthony testified that, on October 2, 2004, his father was with his girlfriend at a birthday party for most of the evening. Several other witnesses also testified as to Longo’s presence at the party.

The State’s forensic computer expert, Detective Mark Ortiz (“Detective Ortiz”), testified that the “creation” date of the images was not indicative of the ^download date. He noted that the images could have been on the computer prior to the “creation” date indicated. The images copied by Detective Ortiz were in a read-only format, which could not be altered, only viewed. At least nine of the images depicted juveniles, identified through the National Center for Missing and Exploited Children’s database, as being under the age of seventeen. A copy of a report from the Center was admitted into evidence. Detective Ortiz testified that the manner in which the images were saved indicated that the files could not have been merely “pop-ups,” which would have been temporary internet files. Rather, they were images located in an account that required the user, after accessing the account with his password, to actively accept the file before the file could be moved and stored in a location associated with the user’s profile. He also explained that the user could decline the images at which point they would not be stored under the user’s profile.

Longo’s computer expert, William White, agreed that the date and time on a computer can be changed with relative ease without any trace that a change was made.

Longo testified at trial that, during the non-taped interview with Detective Hoffman, when he responded that he “recognized” some of the images, he was answering that he remembered seeing the photos and that he recognized them as being child pornography. He denied intentionally downloading and keeping them.

Longo argues there was insufficient evidence to convict him because the State failed to prove the identity of the perpetrator beyond a reasonable doubt. Specifically, he contends the State failed to prove he was the person who downloaded the images of child pornography, which were found on a family computer to which his ex-wife, son, and daughter had access. He maintains his ex-wife had a motive to download the images and suggests she set him up because |Rthey were involved in a bitter custody battle over their daughter. Longo further asserts he had an alibi for the day most of the images were downloaded, which proved he was not home at the time of the downloads.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. As a general matter, when 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.

Longo claims the State failed to prove he was the person who downloaded the images and argues three other people had access to the computer on which the child pornography images were found. However, the three people who Longo alleged had computer access testified at trial and all three denied knowing or using his user name or password to the account where the images were found. Longo’s transcribed statement and Detective Hoff-mann’s testimony showed that he admitted to downloading several of the images. Detective Hoffmann testified that Longo never indicated anyone else may have downloaded the images or attempted to clarify the situation. Although Longo argues he had an alibi on the day most of the images were downloaded, his alibi is not determinative of the issue of whether he had an opportunity to download and possess the images at issue.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess credibility or reweigh the [ 7eyidence. It is apparent that, after considering the credibility of the witnesses and weighing the evidence, the jury did not believe Longo’s account that someone else downloaded the child pornography images.

Further, Longo suggests that he downloaded the images accidentally and, therefore, the State failed to prove he intentionally possessed them. LSA-R.S. 14:81.1(A)(3) defines the offense of possession of child pornography as “[t]he intentional possession ... of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.” The words “intentional possession,” taken in their usual sense, mean that the individual knowingly and voluntarily possessed the pornography, in contrast to circumstances where a person downloads images from the internet without realizing that some images included in the download were child pornography. Longo’s recorded statement shows that he was aware of the images under investigation at that point and that he had not deleted them.

In addition to the images themselves, there was evidence of Longo’s participation in several lascivious internet chat rooms. The texts of the chats under Lon-go’s user name, “Mounted 42,” revealed several references to the swapping of pictures involving juveniles. This evidence, coupled with the discovery of twenty-five different child pornography images with different creation, modification, and access dates spanning over several months was sufficient for a rational trier of fact to conclude Longo did not accidentally download the child pornography but, rather, that he intentionally possessed the images. Viewing the evidence in the light most favorable to the prosecution, the State proved the elements of Longo’s possession of pornography involving juveniles beyond a reasonable doubt.

|sLongo also urges that, during trial, the State made two impermissible references to his post-arrest silence. He asserts the trial court erred in refusing to grant his two motions for mistrial on this basis and refusing to admonish the jury.

On the first day of trial, Detective Hoff-mann testified that defendant gave one taped statement and one unrecorded interview, after being advised of his rights but before he was arrested. Detective Hoff-mann explained that, after the interview, he obtained an arrest warrant and defendant subsequently turned himself in. Thereafter, the following exchange occurred between the prosecutor and Detective Hoffmann:

Q. Okay. And after Mr. Longo turned himself in, did you again seek to take a statement from him?
A.. Yes, I did.
Q. And did you advise him of his rights?
A. Yes, I did.
Q. Did you present to him a waiver of rights form?
A. Yes, I did.
Q. I show you what’s been marked for identification as State’s Exhibit 10. Can you identify that document?
A. Yes. It’s a Kenner Police Department advice of rights form.
Q. And did you advise Mr. Longo of his rights after he was arrested?
A. Yes, I did.
Q. And what was the date on that form?
A. 4/26 of 'D05.
Q. And did Mr. Longo waive his rights?
A. No, he did not.

Defense counsel objected and moved for a mistrial on the basis of the State’s impermissible reference to Longo’s exercise of his right to remain silent. The State argued that it was simply a reference to Detective Hoffmann’s investigation. The trial court denied the motion for a mistrial and instructed the prosecutor “don’t go there any more [sic].” Thereafter, defense counsel began cross-examination.

The United States Supreme Court has held that reference to a defendant’s silence at the time of his arrest and after he received the Miranda warnings, for | flimpeachment purposes, violates the defendant’s due process rights. The Supreme Court explained that “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested ... it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Under Doyle, a prosecutor cannot make reference to the fact an accused exercised his constitutional right to remain silent, after he had been advised of the right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version related by the accused for the first time at trial.

In contrast, an oblique and obscure reference to a defendant’s post-arrest silence, where the examination does not stress the right to remain silent or attempt to elicit testimony regarding the defendant’s failure to respond to police questioning, does not constitute reversible error. Thus, the State may pursue a line of questioning that attempts to summarize the extent of the investigation, when such questions are not designed to exploit the defendant’s failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Under LSA-C.Cr.P. art. 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. The granting of a mistrial is within the discretion of the trial court if the trial court |10is satisfied that an admonition is not sufficient to assure the defendant a fair trial. A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes.

In the present case, the State questioned Detective Hoffmann regarding the sequence of events occurring from the time of the initial investigation through the time of Longo’s arrest. On review, it does not appear that the reference to Longo’s post-arrest silence was used to ascribe a guilty meaning to the silence or for impeachment purposes. Rather, the State’s line of questioning directed to the investigating officer appears designed to elicit from the officer a description of how the police investigation culminated. As in Kersey, the defendant was advised of his Miranda rights and then willingly answered a succession of questions. The reference to defendant’s post-arrest silence “arose at the close of the officer’s testimony and was more a way of exploring how the interrogation was concluded than an effort to call attention to the silence.” Thus, the trial court did not err in denying Longo’s motion for a mistrial at that point.

Longo also challenges the prosecutor’s reference to his post-arrest silence made when she cross-examined him. During the State’s cross-examination on the last day of trial, Longo indicated that he did not know he was under investigation for child pornography when he waived his rights and talked with Detective Hoffmann prior to his arrest. He stated that other people had access to his computer and suggested that someone other than himself downloaded the images. Longo testified that he did not tell Detective Hoffmann about these things during his pre-arrest statement. The State then inquired into the advice of rights form | u Longo executed upon his arrest and attempted to establish that he was aware he was the subject of the child pornography investigation. The following exchange occurred:

Q. Okay. And right after — do you recall Detective — not Detective Hoffmann, maybe — but do you recall another advice of rights form that you signed on April 26, 2005?
A. April 26 would be the advice of rights where they told me I was arrested.
Q. And at that particular point in time, you knew that you were arrested for child pornography, correct?
A. I’m trying to remember whether it was Detective Hoffmann or one of the other officers advised me what I was being charged with.
Q. And by then you really knew- — you stated back on April 18th and April 19th, you really didn’t know it was about you; that the investigation was about you. But you knew on April 26th it was about you, correct?
A. I — yes, ma’am, when they scratched the little box that say[s] “You are arrested for.”
Q. But instead of giving a statement on that date, you decided not to.

Defense counsel objected and moved for a mistrial. The trial court commented to the prosecutor that “[y]ou cannot do that” but refused to grant a mistrial. The court further noted that it was concerned about making matters worse by bringing any more attention to the matter in front of the jury. It instructed the prosecutor, “do not — do not — I mean, that’s his Fifth Amendment Right. You cannot do that. Period.” Immediately thereafter, the prosecutor asked Longo: “after that time, did you go to Detective Hoffmann and tell him that Roslyn Cousins was behind all this?” Defense counsel again objected and moved for a mistrial on the basis the question was an indirect reference to Longo’s right to remain silent. The trial court denied the motion for a mistrial and told the prosecutor to “[j]ust go away to someplace else.”

This second reference to Longo’s post-arrest silence is a violation of Doyle. It was an attempt by the State to discredit Longo’s theory that someone other than 112himself downloaded the images to his computer, exploiting his failure to claim his innocence after his arrest, especially in light of the fact that he gave statements prior to his arrest when he claimed he was unaware he was the target of the child pornography investigation.

However, a Doyle violation is characterized as a trial error, which is amenable to a harmless-error analysis, as opposed to a structural error, which requires automatic reversal. Harmless error exists when “the verdict actually rendered was surely unattributable to the error.” Here, the sufficiency of the evidence has been discussed above. The evidence of Longo’s guilt was overwhelming, and we do not find that the prosecutor’s question, albeit improper, could have tainted the verdict. In summary, the verdict was “surely unattributable to the error.”

The record shows that the trial, as a whole, was conducted fairly and defendant’s guilt was overwhelming. Under these circumstances, a mistrial was not warranted. While Longo was entitled to an admonishment for the prosecutor’s improper remark, he did not request it. Nonetheless, the failure of a trial court to admonish the jury is considered harmless error when there is considerable evidence of the defendant’s guilt.

This assignment of error is without merit.

We have examined the record for errors patent and find none that require action by this court.

113For the foregoing reasons, the conviction is affirmed.

AFFIRMED.

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

      . State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583; also see, State v. Ingram, 04—551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923.

      . State v. East, 99-1379 (La.App. 5 Cir. 7/25/00), 768 So.2d 173, 177, writ denied, 01-3025 (La. 10/25/02), 827 So.2d 1167.

      . State v. Horton, 42,199 (La.App. 2 Cir. 6/20/07), 962 So.2d 459, 466, writ denied, 07-1819 (La. 1/25/08), 973 So.2d 755.

      . Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

        . State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1126 (citing State v. Arvie, 505 So.2d 44 (La.1987)).

      . State v. Robinson, supra; State v. Ledesma, 01-1413 (La.App. 5 Cir. 4/30/02), 817 So.2d 390.

      . Id.

      . Id. (citing State v. Kersey, 406 So.2d 555, 559 (La.1981)).

      . State v. Procell, 365 So.2d 484, 491 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979).

      . State v. Robinson, supra.

      . See, State v. Kersey, supra; State v. George, 95-110 (La. 10/16/95), 661 So.2d 975.

      . See, State v. Lee, 38,114 (La.App. 2 Cir. 3/3/04), 868 So.2d 256, writ denied, 04-1128 (La. 10/8/04), 883 So.2d 1027 (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

      . State v. Haddad, 1999-1272 (La.2/29/00), 767 So.2d 682.

      . State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 215 (citing State v. Jones, 94-0926 (La.App. 4 Cir. 12/28/94), 648 So.2d 472, 480, writ denied, 95-0272 (La.6/16/95), 655 So.2d 346; State v. Stelly, 93-1090 (La.App. 1 Cir. 4/8/94), 635 So.2d 725, 729, writ denied, 94-1211 (La.9/23/94), 642 So.2d 1309; State v. Smith, 336 So.2d 867, 869-70 (La.1976)).