author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Willie RILEY.
    No. 11-KA-673.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

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

| gDefendant, Willie Riley, appeals his conviction of attempted second degree murder. For the reasons which follow, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On October 27, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Willie Riley, with attempted second degree murder of Robert Geneste, in violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27. On the same day, defendant pled not guilty at arraignment.

Defendant filed a motion to appoint a sanity commission to determine competency to stand trial on January 7, 2011. After a hearing on February 9, 2011, the trial court determined that defendant was competent to stand trial.

After a two-day trial, a unanimous jury found defendant guilty as charged on March 2, 2011. On March 17, 2011, defendant was sentenced to 25 years at hard labor, with credit for time served. Defendant now appeals his conviction.

FACTS

The following facts were elicited at trial in this matter. Robert Geneste, the victim, supervised the defendant, Willie Riley, who operated the forklift at the ^Diamond Paper Company for over twenty years. Riley would sporadically come to work intoxicated. Because this presented a safety hazard, Riley was suspended on at least one occasion, although he was never fired.

On September 20, 2010, Geneste believed Riley was intoxicated and drove him to a drug testing facility, located at 5500 Mound Street, in Metairie, to be tested. At the facility Riley refused to sit down and was observed exiting the kitchen area. Eventually, Riley became agitated and twice attempted to leave. The second time, Geneste reminded Riley if he refused to take the test it would be considered that he tested positive, and Riley began fighting with Geneste. Although Geneste never fought back, Riley eventually pulled a knife, and stabbed Geneste six times despite the fact that Geneste was begging for his life. Eventually, Williams Keith intervened and assisted in recovering the knife from Riley. At that point, Riley ran away and was later apprehended by police. Geneste was transported to University Hospital and treated for life threatening injuries. Geneste survived and Riley was charged with attempted second degree murder.

The victim, Robert Geneste, testified that at the time of trial, he had been the warehouse supervisor for Diamond Paper Company for 30 years. Geneste supervised Riley, who was a forklift operator. Riley had been a forklift operator for 22 years and Geneste was his supervisor for the entirety of that period. Riley had issues with alcoholism that caused problems between him and Geneste at work. In the beginning of his employment Riley would seldom come to work intoxicated and he performed well. Periodically, Riley would arrive intoxicated and he would be removed from the forklift and sent home for safety reasons. Geneste also reprimanded Riley on several occasions. Over time, Riley would come to work intoxicated frequently.

| ¿Finally, Geneste suspended Riley until he received treatment. With Geneste and Diamond Paper Company’s assistance, Riley began attending Alcoholics Anonymous and eventually he was allowed to come back to work. In order to return to work, Riley agreed to drug testing, to be performed either randomly or upon suspicion.

At first, Geneste had no issues with Riley or his work performance. After some time, Geneste began to have suspicions that Riley was drinking and his demeanor gradually changed. When Riley was not drinking, he was calm and quiet, but when he drank, he became increasingly “talkative and demonstrative.”

Then, on the morning of September 20, 2010, Geneste heard Riley yelling and complaining, and noticed an overall change in his demeanor. Geneste suspected Riley had been drinking and informed him that he would have to take a drug test.

Geneste brought Riley to the drug facili7 ty, which took approximately 30 minutes. Both Geneste and Riley remained silent the entire trip. Once they arrived, Riley refused to sit, and instead walked up and down the hallway while Geneste was filling out paperwork with Keith, an employee of the facility. When Keith was ready to see Riley, Geneste went to look for him and observed him exiting from the kitchen area.

While awaiting the test, Riley became increasingly agitated and attempted to leave. Geneste placed his hand on Riley and explained to him that if he refused the test, it would be considered a positive result and he would be terminated. As he was leaving, Riley’s t-shirt got caught in Geneste’s hand and Riley began swinging at him. Geneste backed away but did not fight back. Riley pulled a knife out of his pocket and, after a struggle, stabbed Gen-este numerous times. In an attempt to get Riley to stop, Geneste begged: “Willie don’t do this I have a new grandson.” |BInstead, Riley continued to stab Geneste until Keith intervened and assisted Gen-este in disarming Riley. Riley immediately ran away.

In all, Geneste was stabbed six times, in the head, abdomen, scalp, and back. He was bleeding internally and lost 75 milliliters of blood. Geneste testified that he was bleeding profusely and believed he was going to die. He identified the defendant in open court as the person who stabbed him.

On cross-examination, Geneste admitted that he never observed Riley drinking on the job. Geneste denied ever calling Riley derogatory names. He also denied grabbing Riley at the drug testing facility and forcing him to sit down.

On re-direct, Geneste adamantly denied that he told Riley at the drug testing facility: “[s]it your ass down mother

William Keith, Jr., an employee of the drug facility, witnessed the stabbing. His testimony was substantially similar to that of Geneste. Keith testified that Geneste was calm, while Riley was pacing up and down the hallway. At first Riley was calm; however, when Keith informed him he could not leave, he became agitated, asking “why [they] were doing this to him.” Riley continued to pace up and down in the hallway and again attempted to leave. At that point, Geneste grabbed Riley by the shirt, near the shoulder, in an attempt to detain him. Riley then punched Geneste and a fight ensued and continued down the hallway. While trying to separate the men, Keith noticed that Riley had a knife. Keith immediately ran into the office to dial 9-1-1. While attempting to contact the police, Keith could hear Geneste beg Riley to stop. Because his attempt to reach 9-1-1 was unsuccessful, Keith returned, intervened in the fight, and assisted in recovering the knife. Riley immediately fled, Keith again dialed 9-1-1 and assisted Geneste until the ambulance arrived.

lfiIn addition, Keith testified that Riley was given a breath alcohol screen, he passed it, and returned to work. Keith also denied that Geneste told Riley: “sit down mother f* * *er.” Keith identified Riley as the person who stabbed Geneste in open court. He also identified the paring knife as one that they kept in the office kitchen.

Deputy Mark Innazzo, of the Jefferson Parish Sheriffs Office, responded to the incident. When he arrived, Geneste was in the ambulance; however, he appeared calm and lucid. Geneste was taken to University Hospital, and was treated for six stab wounds. One of the stab wounds was particularly life threatening as it was near the kidney. On cross-examination, Innazzo testified that he was unaware of the events that transpired before the incident.

Deputy Gerard Patterson of the Jefferson Parish Sheriffs Office testified that he apprehended Riley, who identified himself, in Jefferson Parish. At the time, Riley had dried blood, and two alcoholic beverages on his person. Riley was positively identified by Keith. Patterson identified Riley in court as the person he apprehended on the day of the incident. On cross-examination, Patterson admitted that Riley was cooperative once he approached him.

Janet Thibodeaux testified that she had been employed with Diamond Paper Company for 21 years. Thibodeaux testified that during the course of her employment, she heard Geneste curse at, fuss at, and berate the men in the warehouse, calling them stupid and other obscenities. Thibo-deaux testified that Riley was a good worker and he always followed direction.

On cross-examination, Thibodeaux testified that Diamond Paper was a good place to work, she loved her job, and everyone got along well. Thibodeaux was surprised to learn that Riley stabbed Geneste, and she never expected that to happen. Thibo-deaux testified that although Riley was a good worker, he would |7come to work drunk. She also felt it appropriate that Riley was reprimanded or “fussed” at when he came to work intoxicated. Thibo-deaux agreed that Geneste and Diamond Paper could have fired Riley, but, instead, they suspended him and eventually allowed him to return to work. On redirect, Thibodeaux testified that it was difficult to work for Geneste.

Rosalyn Poret, who worked in customer service at Diamond Paper Company, testified that Geneste was “not nice” to her, explaining that he tried to have her reprimanded. She also testified that Riley loved Geneste and would do anything Gen-este asked him to do.

On cross-examination, Poret testified that she was shocked to learn that Riley stabbed Geneste, and she agreed she did not expect it. She agreed that if Riley had come to work intoxicated, then reprimand by Geneste was appropriate. Poret admitted that she saw Riley and Geneste just before they left to go to the drug testing facility. She did not observe Geneste yelling or behaving inappropriately toward Riley.

Glen Lee Riley (“Glenn”), defendant’s brother, drove a forklift for Diamond Paper Company. Glenn testified that Gen-este would call employees “stupid and MF.” On cross-examination, Glenn testified that nothing he had observed at work led him to believe that his brother would stab Geneste. Glenn declared that his brother was a perfect worker, and did not believe he ever came to work drunk. Glenn admitted that Riley had a drinking problem, but explained that he received treatment. Glenn also admitted that Gen-este played a role in facilitating Riley’s return to work after he was suspended for being intoxicated at work.

Glenn agreed that Geneste treated everyone fairly, there was no major issue between Geneste and Riley, and that Gen-este “fussed” at people with reason. |sGlenn also agreed that nothing had ever happened at work that would explain why Riley stabbed Geneste.

Earl Dunbar, a driver and assistant supervisor for Diamond Paper Company, testified that Geneste’s manner of discipline was “obnoxious.” Dunbar never heard Geneste curse; however, he did hear him yell and call the employees stupid when disciplining them.

Dunbar testified that on the day of the incident, Riley was calm, collected, and did not appear to be drunk. Dunbar further testified that he never observed Riley in a drunken state. On cross-examination, Dunbar admitted that he was surprised to learn of the stabbing, and nothing he saw at work led him to believe that something like that would happen. He also admitted that he too “fussed” at people. When the State confronted Dunbar with his earlier statement to the prosecutor and his investigators, where he indicated that he had seen Riley intoxicated at work, he denied ever making such a statement.

The defendant, Willie Riley, testified that when he returned from his suspension, Geneste treated him badly, referring to him as “MF” instead of his name. Riley also testified that Geneste would discipline him in front of other employees and customers. Riley testified that he loved Gen-este and he did not intend to kill him.

According to Riley, on the day of the incident, Geneste continued berating and insulting him until they reached the testing facility. On the way to the facility, Geneste threatened to put him out of the car. Riley stated that Geneste told him to “sit [his] ass down” approximately 15 to 16 times. Riley tried to walk out of the door twice; however, on the second time, Gen-este “snatched” him back inside and forced him to sit down. Riley “lost it,” and only remembered being arrested later. | ¡¡Riley stated that he complained about Geneste, but the feedback was that Geneste was in control of the warehouse.

On cross-examination, Riley admitted to being intoxicated at work because he had a problem with alcohol. Although he admitted drinking after the incident, Riley denied ever being angry with Geneste or drinking on the morning of the incident. Riley stated that Keith also called him a few names while he was at the testing facility. Riley explained that he never pulled the knife from his pocket, rather he picked it up in the kitchen during the fight. Riley admitted that on direct examination he had stated that he could not remember anything about the stabbing; however, he explained his attorney did not go into as much detail.

ASSIGNMENT OF ERROR N UMBER ONE

On appeal, defendant argues the evidence was insufficient to support the verdict because the evidence failed to establish the requisite intent for second degree murder. Defendant contends that the evidence supported the lesser verdict of attempted manslaughter.

The constitutional standard for testing the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4115/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

11ft“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12112/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, unit denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. Further, it is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence absent impingement on the fundamental due process of law. Bal-ley, supra.

Second degree murder is the killing of a human being when the offender has a specific intent to kill. LSA-R.S. 14:30.1 “Any person who, having a specific Inintent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.” LSA-R.S. 14:27. To prove attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Hebert, 05-1004, pp. 9-10 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1046-47. (citation omitted). Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but second degree attempted murder requires a specific intent to kill. Id. at 1047. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Id. (citations omitted).

Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Knight, 09-359, p. 14 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 317, writ denied, 10-2444 (La.10/21/11), 73 So.3d 376. Specific intent to kill may be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327.

Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Graves, 99-113, p. 3 (La.App. 5 Cir. 8/31/99), 740 So.2d 814, 816, writ denied, 99-3013 (La.3/31/00), 759 So.2d 68.

In the present case, the State proved that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. The evidence reflects that while at the testing facility, Geneste observed Riley exiting the kitchen, where the paring knife was kept. After Riley started Infighting with Geneste, he reached into his pocket and pulled out the knife, which he used to stab Geneste six times causing life threatening injuries. Riley testified that he did not intend to kill Geneste. The jury clearly did not believe this testimony.

On appeal, Riley argues that he was essentially driven into rage because of Geneste’s continued verbal abuse. In order for the defendant to be convicted of manslaughter or attempted manslaughter, the evidence would have to show that the homicide or attempted homicide, which would have been second degree murder or attempted second degree murder, was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. State v. Brumfield, 04-552, pp. 5-6 (La.App. 5 Cir. 10/26/04), 887 So.2d 554, 557. (citations omitted). Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Rather they are mitigatory factors which may reduce the grade of the offense. Id. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Id. (citation omitted). However, the provocation shall not reduce the homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. Id. (citations omitted).

The jury clearly found that defendant failed to meet his burden of proof that defendant was provoked and/or that he acted in “sudden passion” or “heat of blood.”

Geneste testified that both he and Riley remained silent the entire trip. While awaiting the test, Riley became increasingly agitated and attempted to leave. Gen-este placed his hand on Riley and explained to him that if he refused the test, it 11swould be considered a positive result and he would be terminated. As he was leaving, Riley’s t-shirt got caught in Geneste’s hand and Riley began throwing punches at him. Geneste backed away but did not fight back. Riley pulled a knife out of his pocket and, after a struggle, stabbed Gen-este numerous times.

Keith’s testimony was substantially similar to that of Geneste. Keith testified that Geneste was calm, while Riley was pacing up and down the hallway. At first Riley was calm, (Keith never heard him cursing at Riley); however, when Keith informed him he could not leave, he became agitated, asking “why [they] were doing this to him.” Riley continued to pace up and down in the hallway and again attempted to leave. At that point, Geneste grabbed Riley by the shirt, near the shoulder, in an attempt to detain him. Riley then punched Geneste and a fight ensued and continued down the hallway. While trying to separate the men, Keith noticed that Riley had a knife.

Conversely, according to Riley, on the day of the incident, Geneste continued berating and insulting him until they reached the testing facility. On the way to the facility, Geneste threatened to put him out of the car. Riley stated that Geneste told him to “sit [his] ass down” approximately 15 to 16 times. Riley tried to walk out of the door twice; however, on the second time, Geneste “snatched” him back inside and forced him to sit down. Riley “lost it,” and only remembered being arrested later. Riley testified that he did not remove the knife from his pocket; rather, he took it out of the kitchen at the time of the fight.

The jury clearly believed Keith and Geneste’s version of events and found there was not sufficient provocation to deprive an average man of his self-control. Even assuming that the jury believed that Geneste grabbed Riley and cursed at him and forced him to sit down, the jury still could have found that there was not | sufficient provocation. Rather, an average man might have simply called the police or continued on out of the door.

Defendant also claims that there was no evidence that the attack was planned; however, he appears to be incorrect in that contention. Geneste testified that before the incident, he observed Riley exiting the kitchen. He also testified that after Riley started fighting with Geneste, Riley reached into his pocket and pulled out the knife. This evidence clearly suggests that defendant was angry that he was being forced to take a drug and alcohol test and that he planned to attack Geneste before Geneste ever allegedly “snatched” him and caused him to lose control.

Considering the foregoing, we find that the evidence was sufficient under Jackson to support the jury’s finding that Riley had specific intent to kill the victim, and was thus guilty of attempted second degree murder. Moreover, a review of the evidence indicates that a rational trier-of-fact could have rejected the testimony Riley and the other defense witnesses and found that defendant failed to establish the mitigatory factors for an attempted manslaughter verdict. Thus, we affirm defendant’s conviction of attempted second degree murder.

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 did not reveal any errors requiring corrective action.

Accordingly, we affirm defendant’s conviction and sentence for attempted second degree murder.

AFFIRMED


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Pedro A. NAVARRETE-DURAN.
    No. 11-KA-713.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12This is the last in a series of cases to come before this Court involving the murders that occurred on October 30, 2008, at the Gomez Bar. This appeal involves the defendant/appellant, Mr. Pedro Navar-rete-Duran’s (“Navarrete-Duran”), involvement in an armed robbery that ultimately resulted in the deaths of four men. Navarrete-Duran was sentenced to imprisonment at hard labor to three consecutive life sentences after being convicted of three counts of second degree murder. He contends that the evidence was insufficient to support the convictions as a principal to second degree murder. For the reasons that follow, the convictions and sentences are affirmed.

Factual and Procedural Background

Navarrete-Duran relocated from El Salvador sometime between the years of 2000 and 2001 to Katy, Texas and later met Jose Garcia-Cornejo (“Garcia”) in Houston, Texas in August of 2008. The two men, who were both musicians, Leollaborated and played small musical sessions in the Houston area. Navarrete-Duran and Garcia later traveled from Texas to New Orleans in Navarrete-Duraris 2006 Honda Accord to look for work. They arrived in New Orleans on Monday, October 27, 2010, where they met Renil Escobar-Riveria (“Escobar”), for the first time, on Bourbon Street. Navarrete-Du-ran informed Escobar that he and Garcia had no place to live. Escobar then invited the two men to reside with him at his apartment on Orange Blossom — an apartment complex in Jefferson Parish, Louisiana. When the men arrived at Escobar’s apartment on Monday night, they also met the Funes brothers — Rigoberto and Mario — for the first time. Together, these five men would conspire to commit the armed robbery that would occur three days later at the Gomez Bar.

On Wednesday, October 29, 2008, the night before the robbery, Escobar informed the other four men that they would rob the bar where the old men were because a lot of cash was stored there. Es-cobar supplied the weapons for the robbery, arming himself with a .357 magnum, while providing Mario and Rigoberto with a .380 semi-automatic and a .22 handgun, respectively. Navarrete-Duran’s contribution to the crime was the use of his 2006 Honda Accord.

The next day, October 30, 2008, the five men got inside Navarrete-Duran’s car and traveled to Gomez Bar to commit the robbery. Navarrete-Duran was in the driver’s seat; Mario sat next to him in the front passenger’s seat; and Escobar, Garcia and Rigoberto were seated in the rear. Once the men arrived at the bar, Navar-rete-Duran backed into a parking space near the front entrance. The men then exited the bar and went inside. Escobar and the Funes brothers concealed their weapons. Navarrete-Duran and Garcia were unarmed.

pThe five men played pool and drank beer for approximately twenty minutes. Suddenly, Escobar brandished his weapon and disappeared into a back room while holding a gun to the back of the co-bar owner’s head. Meanwhile, the other four men began robbing the bar patrons — removing contents from their pockets. A shot was fired from the back, and Escobar came running back into the bar yelling “let’s go.” Navarrete-Duran, Garcia, Rigoberto, and Escobar fled from the bar, but Mario remained inside. Mario was behind the bar counter picking up money that had fallen from the cash register. When the other four men got outside, Na-varrete-Duran jumped into the driver’s seat of his vehicle, and Garcia jumped into the front passenger seat. Upon hearing more shots from within the bar, the men realized Mario was still inside. Escobar and Rigoberto returned to the bar with their guns drawn.

Inside the bar, Mario lie wounded on the floor. Wallace Gomez, one of the bar owner’s, was dead on the floor near the pool table. His brother, Beauford Gomez, was also dead on the floor near the bar. Seeing his brother on the floor, presumably dead, Rigoberto immediately opened fire with his .22, firing multiple shots and ultimately killing two other bar patrons. Rigoberto and Escobar then dragged Mario from the bar and headed toward the front door.

Meanwhile, outside of the bar, Mr. Charles Henning was parked next to the Honda Accord, which was occupied by the two Hispanic males. While sitting there, Mr. Henning’s friend opened his truck door and asked whether he heard gunshots. Mr. Henning, however, had not heard anything because his windows were rolled up, and the truck’s engine and air conditioner were running. When Mr. Henning looked up, he noticed that the man in the driver’s seat of the Honda Accord was staring directly at him and appeared to be extremely nervous. He then looked towards the bar and observed three men exiting — one of whom had blood | ^dripping from his head and abdomen. Observing this suspicious behavior, Mr. Henning backed out of the parking lot into an adjacent lot. The Honda Accord, which was parked next to him, had backed into the parking space, which allowed Mr. Hen-ning the opportunity to jot down the front Texas license plate number.

After Rigoberto and Escobar exited the bar with Mario, they observed a police officer driving down the street. Escobar abandoned the two men, jumped in the back seat of Navarrete-Duran’s car and ordered Garcia out to help the Funes brothers. When Garcia exited the car, however, Escobar held a gun to the back of Navarrete-Duran’s head and ordered him to drive away. Navarrete-Duran drove to the Tallowtree Apartments where Brandi Lopez, Escobar’s friend, lived. While there, Navarrete-Duran and Esco-bar drank water from separate wine glasses. Brandi noticed blood on Escobar’s clothing and asked him what was wrong. He explained that he and Navarrete-Du-ran had gotten into a fight down the street. Escobar then went into the bathroom to clean up. Afterwards, Brandi, Escobar, and Navarrete-Duran went outside where they each smoked cigarettes, discarding the butts on the ground.

While outside, Brandi observed a shirt on the ground that she had seen Escobar wear numerous times. When she picked the shirt up, two guns fell out. Escobar picked up the guns off the ground, wrapped them back in the shirt, and took a towel that was hanging on the outside railing and wrapped it around the shirt. Brandi then told the two men to leave. As they stood there, however, police began to fill the area. Escobar cried and told Brandi that he thought Mario was dead. While Escobar was speaking, Navarrete-Duran continually ordered him to be quiet. The two men eventually fled the scene and hid in a canal until sundown.

|6The police obtained the license-plate number of the 2006 Honda Accord from Mr. Henning and learned that it was registered to Navarrete-Duran. The investigation ultimately led them to the Tallowtree Apartments, where the car had been abandoned. Upon questioning residents in the area, police learned that the occupants of the car had been seen entering apartment 406. The police went to that apartment where Brandi and Donna Lopez — the actual leaseholder — confirmed that the two men had been there. The police then obtained a consent to search the apartment, and seized, inter alia, a wine glass and the three cigarette butts that had been discarded on the ground. Later that evening, the police escorted Mr. Henning to the Tallowtree Apartments, where he identified the 2006 Honda Accord as the same car he had seen at the Gomez Bar earlier that day.

Approximately one week after the murders occurred, Navarrete-Duran was arrested in Houston, Texas. Det. Keith Lo-cascio, the lead detective, along with Det. David Canas, traveled to Houston on November 7, 2008, to interview Navarrete-Duran. Det. Canas, who was fluent in both Spanish and English, accompanied Det. Locascio for the sole purpose of serving as a translator for both Navarrete-Duran and Det. Locascio. When the detectives arrived in Houston, Navarrete-Duran was advised of his Miranda rights in Spanish. He also signed a Spanish Rights of Arrestee form in which he indicated that he understood his rights and wished to waive them.

Navarrete-Duran stated that he and Garcia, whom he had only known for about two months, arrived in New Orleans the Monday before the robbery. He further stated that he did not know Escobar or the Funes brothers before arriving in New Orleans. He stated that Escobar had planned the robbery the night before it occurred and that he was present during that meeting. He admitted driving his car to and from the robbery but stated that he was not armed with a weapon.

|7On February 26, 2009, a grand jury indicted Navarrete-Duran with four counts of second-degree murder in violation of La. R.S. 14:30.1. He pled not guilty at the arraignment and moved to suppress his statement, the evidence seized, and the identification made. All motions were denied. On March 22, 2010, Navarrete-Duran’s motion to declare La. C.Cr.P. art. 782(A) unconstitutional was also denied. However, his motion to quash Count Two of the indictment — La. R.S. 14:30.1 in relation to Beauford Gomez— was granted. Navarrete-Duran was tried by a twelve-person jury for the second degree murders of Wallace Gomez, Wayne Hebert, and Jeffrey Carmadelle. The jury found him guilty on all counts. He was sentenced to life imprisonment at hard labor for each of the three convictions. The sentences were imposed without the benefit of probation, parole, or suspension of sentence and were ordered to run consecutively.

Discussion

In his sole assignment of error, Navar-rete-Duran contends that the evidence was insufficient to convict him as a principal to second degree murder.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In this case, Navarrete-Duran was convicted of three counts of second degree murder, a violation of La. R.S. 14:30.1. Second degree murder is the | skilling of a human being when the offender is engaged in the perpetration or attempted perpetration of certain enumerated felonies, included armed robbery. La. R.S. 14:30.1(A)(2). The evidence in this case overwhelmingly indicates that Navar-rete-Duran was not armed with a weapon during the commission of the armed robbery that occurred at the Gomez Bar. However, La. R.S. 14:24 provides:

[A]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Only those persons who knowingly participate in planning or executing a crime are principals to that crime. State v. Cedrington, 98-0253 (La.App. 5 Cir. 12/16/98), 725 So.2d 565, 573 (citation omitted). Mere presence at the scene of a crime is not enough to make one a principal. Id. Moreover, an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Id. at 573-74. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Page, 08-531, p. 10 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 449, unit denied, 09-2684 (La.6/4/10), 38 So.3d 299.

In State v. Gurganus, 03-0992 (La.App. 5 Cir. 12/30/03), 864 So.2d 771, this Court held that the evidence was sufficient to convict the driver of the get-a-way car with second degree murder. In that case, Gur-ganus drove two of his co-perpetrators, who were armed with weapons, to a filling station where a robbery and murder were committed. Prior to the robbery, one of Gurganus’ co-perpetrators told him that he needed to commit a robbery because he needed some | flcash. Id. at 774. The two then went to pick up the third co-perpetrator. Gurganus drove the two men to a gas station. The two passengers exited the van and opened fire. Gurganus, who remained inside the van, ducked down and waited for the two men to return. Once they returned, Gurganus drove away, abandoned the van, and returned home to Alabama. In that case, we stated:

[I]t is evident from Arvel Gurganus’s statement that he was with David Williams and Darnell Turner for several hours prior to the murder and that a robbery was mentioned several times. Furthermore, Arvel Gurganus admitted in his statement that he waited for the co-perpetrators at the scene and helped them to escape. He did not attempt to call police or aid the victim. Instead, he fled to another State.

Gurganus, supra, at 777.

Turning to the present case, Na-varrete-Duran learned on Wednesday night that a robbery was going to occur. He was aware that his role in the robbery was to provide transportation to and from the bar. Complying therewith, he then transported the four men, three of which he knew were armed, to the Gomez Bar on October 30, 2008. While inside the bar, he then assisted the other men in ordering the bar patrons to the rear. Once a gunshot was fired, however, Navarrete-Duran ran back to his car and nervously waited for his co-perpetrators to return. He never called the police nor did he attempt to render assistance to anyone who may have been hurt. Instead, he abandoned three of his co-perpetrators at the scene, hid in a canal until sundown, and later fled to Texas.

Viewing the evidence in the light most favorable to the State, this Court finds that the evidence was sufficient to convince a rational trier of fact that Navarrete-Duran aided and abetted in the commission of the armed robbery that resulted in the deaths of the four men. Therefore, this assignment of error is without merit.

ImConcIusion

We have reviewed the record for errors patent in conformity with State v. Oli-veaux, 312 So.2d 337 (La.1975) and have found none. Thus, the convictions and sentences are affirmed.

AFFIRMED

      . Gomez Bar was a community bar that also provided check cashing services.

      . Garcia, Mario, Rigoberto, and Escobar were also charged in the same indictment for second-degree murder. However, their cases were later severed, and the men were ordered to be tried separately.

      . It was determined that Beauford Gomez was killed by a bullet fired from Wallace Gomez’s weapon.

      . Gurganus gave a statement to the police in which he stated that he thought he was driving his friends around to speak with someone about committing a robbery. He stated that he did not know the robbery was actually going to be committed.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Turell WASHINGTON.
    No. 11-KA-716.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Michael D. Smith, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Holli Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   JUDE G. GRAVOIS, Judge.

li>The defendant, Turell Washington, has appealed his conviction of attempted possession of cocaine. For the reasons that follow, we affirm.

FACTS

In April 2007, the Jefferson Parish Sheriffs Office obtained information from a confidential informant that a black male was distributing large quantities of crack cocaine from a residence located at 645 Emile Avenue in Westwego, Louisiana. The informant also advised that this individual drove a red Chevrolet Monte Carlo. Pursuant to this information, Detective Shane Klein established surveillance of the residence and observed a red Monte Carlo there. It was determined by a license plate check that the Monte Carlo was registered to defendant. A controlled buy from this residence was subsequently completed, which produced a quantity of crack cocaine. Based on this information, the officers requested a search warrant, which was granted on April 5, 2007.

Is At trial, Lieutenant John Ladd of the Jefferson Parish Sheriffs Office testified that he conducted surveillance of the residence on April 13, 2007, prior to the warrant being executed. He observed the Monte Carlo parked outside in front of the residence. Several individuals were loitering in front of the residence, including defendant. Defendant proceeded to and from the passenger door of the vehicle once or twice, unlocking the door with a remote, and leaning into the vehicle. As officers approached the residence in execution of the warrant, two individuals fled from the scene, while the others ran inside, locking the door behind them. The officers forced the door open with a breaching tool. Defendant was found in the kitchen bent down in front of a kitchen drawer with the face or front missing.

Lieutenant Ladd explained that all occupants of the residence, including defendant, were detained and advised of their Miranda rights. The detainees were then brought outside so that a canine sniff could be conducted of the residence. While he was outside with defendant, Lieutenant Ladd questioned him about the vehicle and defendant responded that he did not own the vehicle, nor did he know to whom it belonged. Defendant admitted that he had keys on him, but he did not know if any of the keys were for the vehicle. Lieutenant Ladd then asked if he could check to see if the keys fit the vehicle and defendant responded that he did not care, as the vehicle was not his. Lieutenant Ladd gave the keys to Sergeant Jason Monnerjahn, who unlocked the vehicle with the keys.

A canine sniff was conducted of the residence and the vehicle. In the residence, the dog alerted to a bedroom and the kitchen. Agent Harold Bourgeois discovered a clear plastic bag containing numerous off-white rocks underneath the bed and two clear plastic bags that contained off-white rocks in the kitchen drawer |4with the missing face. The substance in both bags was confirmed to be cocaine, with the bag from the bedroom weighing 21.6 grams and the bag from the kitchen weighing 1.31 grams.

The dog also alerted to the passenger door and the center console inside the Monte Carlo. Sergeant Monnerjahn conducted a search of the center console and discovered a blue makeup bag containing two clear plastic bags of an off-white powdery substance, which was confirmed to be cocaine weighing 124.75 grams.

Detective Todd Vignes testified that defendant stated that he would have to “take his lick for what was in the car,” but not for what was in the house.

Defendant was arrested and charged with possession of cocaine in excess of 28 to 199 grams. The matter proceeded to a jury trial on October 20-21, 2010, and at the conclusion of the trial, the twelve-person jury returned the responsive verdict of attempted possession of cocaine in excess of 28 to 199 grams. On October 28, 2010, the trial court sentenced defendant to 15 years imprisonment at hard labor. On November 10, 2010, defendant was adjudicated a second felony offender and was sentenced to 15 years imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant was granted this out-of-time appeal pursuant to an application for post-conviction relief.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to suppress the evidence.

In his first assignment of error, defendant argues that the cocaine seized from the red Monte Carlo should have been suppressed because the scope of the search warrant did not encompass the vehicle.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Rogers, 09-13, p. 10 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, writ denied, 09-1688 (La.4/9/10), 31 So.3d 382. The remedy for evidence derived from an unreasonable search or seizure is exclusion of the evidence from trial. Id. Thus, a defendant who is adversely affected may move to suppress any evidence from use at trial on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703(A); Rogers, 09-13 at 10, 19 So.3d at 494. In a hearing on such a motion to suppress, the State has the burden of proof in establishing the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); Rogers, 09-13 at 9, 19 So.3d at 493. When ruling on a motion to suppress, the trial court is afforded great discretion, and its ruling will not be disturbed absent an abuse of its discretion. Rogers, 09-13 at 9, 19 So.3d at 493.

In the present case, the “Application for and Affidavit in Support of a Search and Seizure Warrant” states, in pertinent part:

During the month of April, 2007, Detective Shane Klein and Sergeant Todd Vignes of the Jefferson Parish Sheriffs Office, Narcotics Division, met and spoke to a confidential informant. During this meeting, the confidential informant explained that they had firsthand knowledge of a black male subject, distributing large quantities of crack cocaine from a residence located at 645 Emile Avenue, Westwego, Louisiana. The confidential informant explained they have been present at 645 Emile Avenue when this subject has sold quantities of crack cocaine.
The confidential informant explained to Detective Klein that this subject drives a red Monte Carlo. The confidential informant further explained that they were in a position to purchase a quantity of crack cocaine from this subject at the request of Detective Klein and Sergeant Vignes. The confidential informant described this subject as being in his early thirties, six feet two inches tall medium build. The confidential informant further explained that this subject has short hair with gold teeth.
Given this information, Detective Klein drove to 645 Emile Avenue, West-wego, Louisiana. Detective Klein observed the residence to be the same as the confidential informant described including a red Monte Carlo bearing a Louisiana license plate number of PBZ558. Detective Klein learned that this license plate is [firegistered to a Terrell [sic] Washington who resides at 3648 Loyola Drive, Apartment 112, Ken-ner, Louisiana.
Based upon the information detailed above, Detective Shane Klein respectfully requests an order of search be issued for the residence and property including all vehicles and buildings located at 645 Emile Avenue, Westwego, Louisiana. This address is located within the Parish of Jefferson and State of Louisiana, authorizing the search for controlled dangerous substance, more specifically crack cocaine; any instrumentality’s employed in its use, packaging, and distribution; any documentation regarding residency or associated with narcotic trafficking; and any assets, including currency, which may be the proceeds of the narcotic trafficking as well as the currency used in the above described controlled purchase. Detective Klein request [sic] that said search include daytime, nighttime, Sunday and holiday searches.

(Emphasis added.)

Based on this affidavit, a search warrant was issued which states, in pertinent part: “You are hereby ordered to search forthwith the aforesaid premises for the property specified ...,” where the “property specified” is the “one story, single family dwelling, located at 645 Emile Avenue, Westwego, Louisiana.”

Based on our review of the application, the warrant and the jurisprudence, we find that defendant’s argument on this issue is without merit. Although the affidavit on which the warrant was based refers several times specifically to the Monte Carlo, the warrant itself does not refer to any vehicles. However, a warrant authorizing the search of a particularly described premises permits the search of a vehicle located on the premises targeted for the search and subject to the authority of the warrant. State v. Smith, 02-1842, p. 1 (La.9/20/02), 827 So.2d 1122, 1123 (per curiam); State v. Carter, 10-973, p. 8 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 5. The rationale behind this holding is that the vehicle is capable of concealing the sought-after contraband. Id. Accordingly, the search of defendant’s vehicle was valid pursuant to the warrant since it was parked in front of the residence which |7was the target of the search and which was particularly described in the warrant. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The evidence was insufficient to uphold the conviction.

In his second assignment of error, defendant argues that the evidence was insufficient to convict him of attempted possession of cocaine in excess of 28 to 199 grams. Specifically, he contends'that the State failed to prove he was in constructive possession of the drugs found in the red Monte Carlo.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In the present case, defendant was charged with possession of cocaine in excess of 28 to 199 grams in violation of LSA-R.S. 40:967(F), but was found guilty of the responsive verdict of attempted possession of cocaine in excess of 28 to 199 grams. To prove an attempt to possess, “the State must prove that the defendant committed an act tending directly toward the accomplishment of his intent, i.e., possession of the drug.” State v. Ruffin, 96-226, p. 5 (La.App. 5 Cir. 8/28/96), 680 So.2d 85, 87 (citations omitted). To support an attempted possession | sconviction, the State need only establish constructive possession, rather than actual or attempted actual possession. Id.

A person not in physical possession of a drug may have constructive possession when it is established that the drugs are under that person’s dominion or control. State v. Henry, 08-658, p. 8 (La. App. 5 Cir. 10/27/09), 27 So.3d 935, 942, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269. However, the mere presence of a defendant in the area where drugs are found or mere association with the person found in possession of the drugs is insufficient to constitute constructive possession. Id.

The question of possession hinges on the particular facts of each case. Id. Factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area; (2) the defendant’s relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. Id., 08-658 at 8-9, 27 So.3d at 942-43.

Mere ownership of a vehicle is not sufficient to prove constructive possession. United States v. Maldonado, 735 F.2d 809, 817 (5th Cir.1984). However, possession of the keys to a vehicle containing contraband has been held sufficient to establish constructive possession. United States v. Martinez, 588 F.2d 495, 498-99 (5th Cir. 1979).

|aIn the present case, officers were informed that defendant drove the red Monte Carlo, a registration check revealed that defendant was the owner of this vehicle despite his assertions to the contrary, the keys to this vehicle were found on defendant’s person, and defendant was seen accessing the vehicle immediately pri- or to the cocaine being discovered in the vehicle. Further, a significant quantity of the cocaine was recovered from the vehicle (124.75 grams). Additionally, defendant stated that he would have to “take his lick for what was in the car.”

This evidence, when viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant was in constructive possession of cocaine in excess of 28 to 199 grams. Therefore, the jury committed no error in returning the responsive verdict of attempted possession. As such, this assignment of error is also without merit.

ERRORS PATENT REVIEW

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

We note that defendant’s original sentence was illegally lenient. At the time of relator’s offense, a violation of LSA-R.S. 40:967(F) carried a penalty between five and thirty years at hard labor and a fine between $50,000 and $150,000. Defendant was sentenced to fifteen years at hard labor, but was not fined. However, this defect became moot when defendant’s original sentence was vacated and the enhanced sentence was imposed. State v. Jones, 10-281, p. 7 (La.App. 5 Cir. 10/26/10), 51 So.3d 792, 797 (citations omitted). Therefore, no corrective action is required.

Further, the record indicates that defendant was not advised of his multiple offender rights as required by LSA-R.S. 15:529.1(D)(1)(a). However, the failure of the trial court to advise a defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Reichard, 04-110 (La.App. 5 Cir. 7/27/04), 880 So.2d 97, 103. In the present case, defendant’s multiple offender status was established by competent evidence offered by the State at a hearing rather than by admission of defendant; consequently, the trial court’s failure to advise defendant of his multiple offender rights did not constitute reversible error and no corrective action is necessary.

CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed.

AFFIRMED

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

      . In United States v. Martinez, the defendant, who was neither the owner nor the driver of the vehicle, possessed the key to the trunk of the vehicle, as well as keys which unlocked two chests containing marijuana in the trunk of the vehicle. We note that United States v. Martinez has been abrogated, although on grounds not germane to this discussion. See United States v. Gavin, 394 Fed.Appx. 643, 645 (11th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1836, 179 L.Ed.2d 790 (2011); United States v. Moya, 74 F.3d 1117, 1120 (11th Cir.1996).

      . It is also noted that the multiple offender statute does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. State v. Jones, 10-281 (La.App. 5 Cir. 10/26/10), 51 So.3d 792, n. 4.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Stephen PINEDA.
    No. 11-KA-746.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jacqueline F. Maloney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Cesar R. Burgos, Robert B. Evans, III, Gabriel 0. Mondino, Marie J. Leon, Bur-gos & Evans, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

| ¡.Defendant/appellant, Stephen Pineda (“Pineda”), appeals his conviction and sentence on a charge of possession of cocaine in violation of La. R.S. 40:967(C). Pineda entered a plea of guilty pursuant to State v. Crosby after a motion to suppress was heard and denied by the trial court. Pine-da was sentenced to two years of imprisonment at hard labor that was deferred. He was then sentenced to two years of active probation, in addition to forty hours of community service and a substance abuse evaluation to determine whether treatment would be necessary.

Pineda filed an appeal motion that was granted.

In Pineda’s only assignment of error, he asserts the motion to suppress should have been granted because the information in the anonymous tip received by the arresting officer alone, or coupled with the independent knowledge of the officer or other corroborating factors known to the officer, was insufficient to form |athe basis for reasonable suspicion to justify the stop and detention conducted that led to the arrest. Finding no merit in Pineda’s assignment of error, we affirm.

Deputy Jessica Lee, of the Jefferson Parish Sheriffs Office Second District Patrol Division, testified that, on November 16, 2010, she was on patrol when she received a call at approximately 11:00 p.m. concerning a possible crime in progress in her area. Deputy Lee testified that a complainant, who wished to remain “confidential,” called to report that a red four-door Chevrolet truck containing suspects, who were smoking “illegal drugs,” was parked in the back of a parking lot in an apartment complex at 650 Bellemeade. Deputy Lee stated that she was not familiar with the anonymous informant and did not know the informant’s name.

Deputy Lee further testified regarding the subject location of the truck noting, “[w]e have frequent callers about the activity back there. They are concerned about that apartment complex. We get numerous calls. If anything seems out of place people do call.” However, Deputy Lee testified that she could not remember any drug arrests she has made in that area in her three years on patrol of the Second District.

Upon receiving this information, and pursuant to protocol that requires an officer response to all calls received, Deputy Lee proceeded to the location identified by the confidential informant and immediately saw the red four-door Chevrolet. Deputy Lee testified that she arrived at the scene about six or seven minutes after receiving the anonymous phone call. Once on the scene, Deputy Lee exited her vehicle and began to approach the truck. The driver (Pineda) and one other passenger were seated inside the red Chevrolet. While approaching the red Chevrolet, Deputy Lee smelled marijuana and observed Pine-da throw something out the window. The deputy also heard Pineda state, “I’m done smoking our |4blunt,” a slang word for marijuana. Deputy Lee also testified that she observed both Pineda and the passenger making movements around in the car, and she could see the passenger reach around to the backseat of the vehicle. At that time, a second deputy arrived, and both subjects were asked to step out of the vehicle. While they were exiting the vehicle, Deputy Lee testified that she observed a white baggy in the center console of the car. According to Deputy Lee, she has had experience in conducting arrests for drug-related crimes, and concluded that, in her experience, the white substance appeared to be powder cocaine. Deputy Lee retrieved the bag, later discovered to be cocaine, and Pineda and the passenger were placed under arrest and informed of their rights under Miranda v. Arizona, A search of the vehicle was then performed, and money and marijuana were seized.

At the conclusion of Deputy Lee’s testimony, Pineda argued to the trial court that the factors set forth by this Court to determine the credibility and reliability of anonymous tips were not met. Defense counsel argued that reasonable suspicion was lacking for Deputy Lee to report to the subject parking lot and stop Pineda. The trial court denied Pineda’s motion to suppress finding as follows:

Once she gets a call and once she is dispatched to the scene she as [sic] got to do some investigation, and I think because of the fact that she testified the call was that there was a red pickup truck in the back of the parking lot, four-door red pickup truck, I think she acting within — she had enough reason and suspicion to go at least check it out, and I think once she got on the scene there she testified she could smell marijuana, and the statement made by the defendant.
I think once she got on the scene, and once she approached the vehicle and could smell what they believed to be marijuana, and heard the defendant make his statement that he just finished his blunt, and saw inside on the console what appeared to her to be powdered cocaine, I think that is enough on her part.

|5In brief to this Court, Pineda argues that the narcotics used to charge him were seized in violation of his Fourth and Fourteenth Amendment rights under the United States Constitution and Article I, § 5 of the Louisiana Constitution. Pineda contends that the anonymous tip provided in this case was insufficient to justify the stop under La.C.Cr.P. art. 215.1. Specifically, Pineda argues that there was insufficient descriptive information, and the arresting officer lacked corroborating information regarding Pineda and the area in which he was stopped.

In response, the State argues that Deputy Lee had sufficient information to make the initial stop. Specifically, at the time Deputy Lee arrived at the parking lot identified by the informant and began to approach the suspect vehicle, a stop had not yet occurred. The State further contends that reasonable suspicion was developed prior to any “seizure” when Deputy Lee continued to approach the vehicle and smelled what she believed to be marijuana and heard Pineda state that he had finished smoking his “blunt.” The State asserts that the smell of marijuana emanating from the vehicle provided Deputy Lee with probable cause to search the automobile pursuant to the automobile exception to the warrant requirement. Finally, the State asserts that the cocaine was in plain view inside the vehicle, and therefore, lawfully seized under the plain view exception.

In his reply brief, the focus of Pineda’s argument is that the call from an anonymous informant indicating that there were individuals sitting in a red four-door Chevrolet truck parked in the back of a parking lot in an apartment complex located at 650 Bellemeade, smoking “illegal drugs,” was insufficient to supply Deputy Lee with reasonable suspicion to make a stop. Pineda contends that the establishment of reasonable suspicion is determined at the point the officer chose to respond to the anonymous tip, and not upon the information that was gained once at the location provided by the caller. Thus, Pineda maintains that the proper Rquery is whether the officer had sufficient grounds to be at the subject location in the first place.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of proving that an exception to the warrant requirement applies. The United States Supreme Court has recognized the investigatory stop as an exception to the warrant requirement. Under Louisiana law, a law enforcement officer may stop and question a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit a criminal offense.

Investigatory stops require reasonable suspicion of criminal activity. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible.

The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. In determining whether an officer acted reasonably in such |7circumstances, a reviewing court must take into account the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person.

Under certain circumstances, an anonymous tip can provide reasonable suspicion to detain and question a person. Generally, there must be some corroboration of the anonymous tip and the tip must contain predictive information regarding the future behavior of the reported suspect. Whether an anonymous tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. The sufficiency of an anonymous tip under Terry is determined by the reliability of its assertion of illegality and not just its tendency to identify a determinate person. “If the tip has a relatively low degree of reliability, more information will be required to establish the quantum of suspicion than would be required if the tip were more reliable.”

The anonymous caller’s ability to predict the suspect’s future behavior goes towards reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect.

Pineda argues that the call from an anonymous informant that a red four-door Chevrolet truck parked in an apartment complex which contained suspects |swho were smoking “illegal drugs,” was insufficient to supply Deputy Lee with reasonable suspicion to make a stop. While that may be correct, it does not end our query. The Louisiana Supreme Court has found that the police are not powerless to act on non-predictive, anonymous tips they receive. If, after corroborating the readily observable facts, the officer notices unusual or suspicious conduct on Pineda’s part, as Deputy Lee did here, he or she would have reasonable suspicion to detain the suspect.

In the matter before us, the additional corroborating information obtained once Deputy Lee arrived at the scene must be taken into account when determining whether reasonable suspicion exists. Deputy Lee did not rely on the anonymous informant’s call that people were smoking illicit narcotics in the parking lot of an apartment complex for reasonable suspicion to justify an investigatory stop. Rather, Deputy Lee testified that she was patrolling her assigned district when she received the subject call. When Deputy Lee arrived at the apartment complex, she immediately observed the red four-door Chevrolet truck with two people sitting inside, as reported by the tipster. She heard the comment regarding “blunt” and smelled marijuana. The smell of marijuana has repeatedly been held to be sufficient to provide reasonable suspicion that criminal activity is afoot. Based on the totality of the circumstances, we find Deputy Lee possessed the requisite reasonable suspicion to believe that Pineda had committed or was going to commit a crime, thus, justifying the subsequent stop.

After observing the “white baggy” in plain view while the occupants were exiting the vehicle, Deputy Lee retrieved the bag, and Pineda and the passenger 18were placed under arrest and Miran-dized. Under the “plain view” exception of the warrant requirement, we find that Deputy Lee had the authority to seize the “white baggy.” Police may seize evidence under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer has probable cause to believe the item in question is either evidence and/or contraband.

In conclusion, we find that, after an objective evaluation of all the circumstances known to Deputy Lee at the time of the stop, the information provided by the anonymous call did not supply the reasonable suspicion in this case. However, the corroborating observations made by Deputy Lee provided her with reasonable suspicion to believe criminal conduct was afoot prior to conducting the stop and subsequent search of Pineda’s vehicle in this case. Accordingly, we find no merit in this assignment.

Pineda was also charged with possession of marijuana and misdemeanor possession of drug paraphernalia, both misdemeanor crimes in connection with the same incident. He pled guilty to these crimes after his motion to suppress was denied. Pine-da filed a writ in this Court seeking review of those convictions and subsequent sentences. That matter was referred to this appellate panel for consideration. In the writ application, Pineda makes the same arguments regarding | inthe motion to suppress that we find to be without merit in this appeal. Accordingly, we hereby deny the writ application as moot.

We have completed a review of this case for errors patent on the record and find no errors that require our correction. Accordingly, we affirm Pineda’s conviction and sentence.

AFFIRMED

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

      . It was further ordered that Pineda’s sentence was to be served concurrently with misdemeanor possession of marijuana and possession of drug paraphernalia sentences imposed in case No. 10-5875. Additionally, the record reflects that Pineda’s probation officer filed a Motion and Order for Hearing to Revoke Probation on May 17, 2011; however, the disposition of the hearing is unknown.

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

      . This argument was based on State v. Atkins, 05-823 (La.App. 5 Cir. 3/14/06), 926 So.2d 591.

      . State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075.

      . La.C.Cr.P. art. 703(D).

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

      . La.C.Cr.P. art. 215.1(A).

      . State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585.

      . State v. Chauvin, 06-362 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 757-58.

      . State v. Boss, supra, at 585.

      . State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 880 (per curiam).

      . State v. Sam, 08-220 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577.

      . Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960 (La. 10/20/9 8), 721 So.2d 1268, 1270.

      . State v. Boss, 887 So.2d at 586.

      . Id.

      . Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416.

      . State v. Boss, supra, at 586

      . State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 85, writ denied, 03-1979 (La. 1/16/04), 864 So.2d 625.

      . State v. Robertson, 97-2960 (La. 10/20/98), 721 So.2d 1268.

      . See also, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), holding that, an anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.

      . See, State v. Craft, 03-1852 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 365, writ denied, 04-0923 (La. 10/1/04), 883 So.2d 1005; State v. Savoie, 09-103 (La.App. 5 Cir. 5/12/09), 15 So.3d 207, 213, writ denied, 09-1306 (La.2/5/10), 27 So.3d 297; and State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300.

      . Miranda v. Arizona, supra.

      . Horton v. California, 496 U.S. 128, 135-36, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990).

      . Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983); State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-0927 (La. 11/14/08), 996 So.2d 1088.

      . State v. Pineda, 11-K-894 (La.App. 5 Cir.).


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Carlos CARTAGENA.
    No. 11-KA-774.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Andrea F. Long, Megan L. Gorman, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Richard J. Richthofen, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

| {¡Defendant, Carlos Cartagena, was charged with resisting a police officer with force or violence in violation of La. R.S. 14:108.2 (Count 1) and aggravated battery in violation of La. R.S. 14:34 (Count 2). He proceeded to trial on February 1, 2011, and a six-person jury found him guilty as charged on both counts. The trial court subsequently sentenced defendant to two years at hard labor on Count 1 and seven years at hard labor on Count 2, with both sentences to run concurrently.

Defendant appeals his convictions and raises three assignments of error: (1) there was insufficient evidence to convict him on both counts, (2) he was prevented the right to present a defense, and (3) the trial court impermissibly admitted gruesome photographs. For the reasons that follow, we affirm defendant’s convictions.

FACTS

On the night of July 25, 2010, Sergeant Michael Cummings of the Jefferson Parish Sheriffs Office worked a paid detail for Latin Dance Night at Salvatore’s Restaurant at 3226 North Arnoult Rd. in Metair-ie. He and another officer were [ sstanding outside the restaurant to ensure there were no problems in the parking lot and to be visible in order to deter criminal activity. At one point, Sgt. Cummings entered the restaurant and observed several individuals standing in line to purchase alcohol. Sgt. Cummings saw defendant approach someone in the line from behind, raise his arm, and make a downward motion.

After hearing the sound of a bottle breaking, Sgt. Cummings heard people yell and saw the victim fall to the ground. Sgt. Cummings grabbed defendant from behind and pulled him into the wait staff prep area, where there was more lighting and fewer people, to make the arrest. Defendant turned around, made eye contact with Sgt. Cummings, and began throwing punches at Sgt. Cummings, hitting him in the arms and torso as Sgt. Cummings was trying to arrest him. Sgt. Cummings repeatedly told defendant to stop fighting and that he was under arrest, but defendant continued to fight. Sgt. Cummings testified that he probably gave verbal commands to defendant in both English and Spanish because it was a habit he had developed from working in the club.

Realizing that he might not be able to use physical force to subdue defendant, Sgt. Cummings separated himself from defendant with his baton and drew his taser. However, he did not use the taser because a female got between him and defendant and started screaming and waving her arms. Sgt. Cummings ultimately used his baton to strike defendant on his arms and legs and force him to the ground. He eventually handcuffed defendant and brought him outside the restaurant. Thereafter, the victim, Hector Molina, and his girlfriend, Elsa Abrego, exited the restaurant, and Sgt. Cummings noticed that Mr. Molina was holding a bloody rag to his neck.

Mr. Molina testified that he and his girlfriend arrived at Salvatore’s between 11:00 p.m. and 12:15 a.m. Unable to find a table, Mr. Molina’s friend, “Barraco,” |4told them they could sit at his table. Ms. Abrego sat down, while Mr. Molina stood. Later, the two danced. When they returned to the table, they found some women sitting in the chairs. Ms. Abrego said something to the women, and the women got up and left.

Manuel Reyes, a friend of both defendant and the victim, started arguing with the victim because he thought Mr. Molina had taken the chairs away from the women. Mr. Reyes’s wife came over and led her husband away from the table. After-wards, Mr. Molina left the table to buy beer. As he stood in line, he felt a blow from behind which caused him to fall. Mr. Molina suffered injuries to his neck that required medical treatment as a result of the blow.

Ms. Abrego testified that she saw defendant approach Mr. Molina from the back and hit him in the back with a bottle. She stated she never saw defendant and Mr. Molina exchange words. Ms. Abrego also testified that after the incident, defendant resisted and struggled with the officer, so the officer started hitting defendant with a baton until he got defendant onto the floor. Thereafter, the officer handcuffed defendant.

The defense presented the testimony of defendant’s wife, Mirim Ceballos. She testified that when she and defendant arrived at Salvatore’s, they sat down at a table that was reserved for them and some friends by Mr. Reyes. At some point, a man and a woman came up to the table, and the woman said, “Who are those b* *ches that are sitting out [sic] on the table, those b* *ches better get out [sic] of the table because that’s our table.” The man then said, “those son of a b* *ehes better get off the table because that’s ours.” In response, defendant’s group left the table. According to Mrs. Ceballos, the man then yelled at Mr. Reyes that he knew him and where he lived, and that he was going to kill all of them.

Is As Mrs. Ceballos walked away from the table, the man grabbed her by the shoulder and said something obscene to her. When she turned around to grab defendant, she saw that the man was already hitting defendant. Mrs. Ceballos called her friends to come over and then saw the officer hitting defendant with a baton. Her sister screamed and told the officer not to hit defendant. Mrs. Ceballos explained that defendant spoke little English, that the officer only told defendant to get down in English, and that defendant was trying to get down.

Mr. Reyes testified that he, defendant, and others were at a birthday party when one of his friends called to let him know that he had a table reserved at Salvatore’s if Mr. Reyes wanted to come to the club. Mr. Reyes, defendant, and others arrived at Salvatore’s between 10:30 and 11:00 p.m. and sat at their friend’s reserved table. At some point, Mr. Reyes went to the bar to get beer for the group. As he did so, he heard Mr. Molina hollering and cursing and saying he was going to kill them all.

Mr. Reyes put the beer on the table, and he and his wife told Mr. Molina not to talk to them that way. Mr. Reyes stated the women at the table decided they did not want any problems, so they left. Mr. Reyes testified that he did not see defendant hit Mr. Molina, but he saw Mr. Molina coming at defendant, and then saw Mr. Molina bleeding.

After the incident, Mr. Reyes testified the officer continually hit defendant. He stated he heard the officer tell defendant to get down in English only. Defendant did not understand the officer, so Mr. Reyes told defendant to get down in Spanish. Afterwards, defendant got down on his knees, and the officer put handcuffs on him. Mr. Reyes claimed the officer hit defendant after he was already handcuffed. He stated he did not see the officer before the incident.

\ .DISCUSSION

Sufficiency of the Evidence

Defendant argues the evidence was insufficient to support his convictions. In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

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

Resisting an Officer

Regarding his resisting an officer conviction, defendant asserts the State failed to show he knew that Sgt. Cummings was acting in an official capacity. He also maintains he was grabbed from behind and just reacted to his surroundings which included poor lighting and much excitement.

Defendant was convicted of resisting a police officer with force or violence, a violation of La. R.S. 14:108.2. La. R.S. 14:108.2(A) provides:

|7A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.

The evidence showed Sgt. Cummings was a police officer in uniform working a paid detail. During most of the incident, defendant was facing Sgt. Cummings and could see he was wearing his Jefferson Parish Sheriffs Office uniform. Sgt. Cummings was attempting to arrest defendant for aggravated battery after seeing defendant strike the victim with a bottle and, thus, was acting in the performance of his official duties. Despite being repeatedly told that he was under arrest and to stop fighting, defendant resisted Sgt. Cummings by punching him in the arms and torso.

We find this evidence, viewed in a light most favorable to the State, sufficiently proves the elements of resisting an officer with force of violence.

Aggravated Battery

Regarding his aggravated battery conviction, defendant argues the State failed to prove a dangerous weapon was used because the officer did not actually see him strike the victim with the bottle. Defendant also contends that because the 18victim was the aggressor, he cannot be found guilty under the aggressor doctrine. He further asserts the trial testimony was conflicting.

To support a conviction of aggravated battery, the State must prove: (1) the defendant intentionally used force or violence against the victim; (2) the force or violence was inflicted with a dangerous weapon; and (3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. La. R.S. 14:34; State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3). A beer bottle may constitute a dangerous weapon. See State v. Randall, 99-2476 (La.12/15/00), 776 So.2d 424, 425.

Defendant first argues the evidence was insufficient because the officer did not actually see him strike the victim with a bottle and, therefore, the State failed to prove a dangerous weapon was used. Sgt. Cummings testified he observe people standing in line waiting to purchase alcohol. He then saw defendant approach the victim from behind, raise his arm, and make a downward motion. Afterwards, Sgt. Cummings heard the sound of a bottle breaking, heard people yell, and saw the victim fall down. Sgt. Cummings identified a photograph of a broken beer bottle and glass shards he found lying on the ground near the back bar area that evening. He also identified photographs of the victim’s lacerations caused by the beer bottle.

A reasonable trier of fact could conclude from these circumstantial facts that defendant hit the victim from behind on the side of his neck with a glass beer bottle. Additionally, there was direct evidence of defendant’s guilt as the victim’s girlfriend testified that she saw defendant approach the victim from behind and hit him in the back with a bottle.

| gDefendant next argues the victim was the aggressor and, therefore, he cannot be found guilty as charged under the aggressor doctrine. La. R.S. 14:21 provides that a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. The trial court instructed the jury as to the aggressor doctrine.

Defendant’s witnesses indicated that the victim was the aggressor. Defendant’s wife testified that the victim insulted them and used profanity after which the victim started hitting the defendant. Mr. Reyes, defendant’s friend, also testified that prior to the incident, he saw the victim coming at defendant. However, the State’s witnesses reflected that defendant was the aggressor. According to Sgt. Cummings, the victim, and the victim’s girlfriend, the victim was standing in line when defendant hit him from behind. These witnesses testified that defendant and the victim were not engaged in an altercation immediately prior to the incident.

The credibility of witnesses 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. The credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. The jury obviously found the State’s witnesses more credible than those of defendant. Additionally, even if the jury believed that the victim was the initial aggressor, the jury could have also found defendant became the aggressor when he approached the victim from behind and hit him.

| lnIn light of this evidence, a rational trier of fact could have found the required elements to support a conviction for aggravated battery were proven beyond a reasonable doubt.

Right to Present a Defense

Defendant argues that the trial judge erred by refusing to permit defense counsel to question Sgt. Cummings about what a witness in the parking lot told him after the incident. He contends this line of questioning should have been allowed under the theories of compelling circumstances and impeachment.

The State responds that defendant should be precluded from raising this issue because he failed to lodge an objection to the trial court’s ruling, and he failed to proffer the substance of the excluded testimony.

During the cross-examination of Sgt. Cummings, defense counsel asked whether a female approached him in the parking lot after the incident. The prosecutor objected and a bench conference was held. The prosecutor argued that defense counsel was about to elicit hearsay. Defense counsel replied that Sgt. Cummings wrote in his report that a witness made statements to him, but he did not get her identity. The prosecutor noted that the witness at issue was not in court. The trial judge stated that although he did not know the type of questions counsel intended to ask, he was inclined to sustain the hearsay objection. Defense counsel stated he would rephrase the question.

After the bench conference concluded, defense counsel said he was withdrawing his previous question and rephrasing it. He then asked Sgt. Cummings whether he had obtained any other version of events that night other than what the victim and the victim’s girlfriend had told him. Sgt. Cummings responded that someone had told him about an issue regarding a table. The trial | n judge sustained the State’s previous objection and defense counsel pursued a different line of questioning regarding another topic.

La.C.Cr.P. art. 841(A) provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. There is no “magic-word” formula necessary for remarks to constitute an objection. State v. Shoemaker, 500 So.2d 385, 388 (La.1987). Rather, it is sufficient that a party, at the time of the ruling, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, together with the grounds therefor. La.C.Cr.P. art. 841; Shoemaker, supra. Where the defense counsel acquiesces when the court sustains a State’s objection to the examination of a witness, that objection is waived. State v. Huizar, 414 So.2d 741, 749 (La.1982); State v. Smith, 39,698 (La.App. 2 Cir. 6/29/05), 907 So.2d 192, 200.

In State v. Charles, 326 So.2d 335 (La. 1976), the defendant contended the trial court erroneously sustained the State’s objections to cross-examination questions asked by defendant’s counsel. The supreme court stated that, on these occasions, although defendant did not expressly object, the court was necessarily aware of the action which defendant desired the court to take, i.e., to overrule the State’s objection and allow him to put the questions to the State’s witness. However, it noted that defendant’s counsel neither complained of the court’s ruling nor apprised the court of the grounds upon which he was entitled to ask the questions. Instead, the supreme court stated that counsel apparently acquiesced in the court’s ruling by proceeding with his cross-examination along a different line of questioning. The supreme court found that because defendant did not comply with La. C.Cr.P. art. 841, he could not complain after verdict of the occurrences alluded to in the assignments of error. Id., 326 So.2d at 336-37.

112Additionally, in State v. Favors, 09-1034 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, writ denied, 10-1761 (La.2/4/11), 57 So.3d 309, defendant argued the trial court improperly restricted his right to confront a witness against him by restricting the cross-examination of a crucial State witness. The record showed that after the State objected to defense counsel’s question, defense counsel said he would move on. This Court found that defendant was precluded from raising this error on appeal because defense counsel failed to contemporaneously object to the trial court’s ruling, and he acquiesced when the trial judge told him to rephrase the question and sustained the State’s objection. Id., 43 So.3d at 260-61.

In the instant case, the trial judge indicated he would sustain the State’s hearsay objection depending on the question asked. Defense counsel then withdrew his question and rephrased it. Thereafter, the trial judge sustained the State’s objection; however, defense counsel neither complained of the court’s ruling nor apprised the court of the grounds upon which he was entitled to ask the questions. Instead, defense counsel acquiesced in the court’s ruling by proceeding with his cross-examination along a different line of questioning. As such, we find defendant is precluded from raising this error on appeal.

Admission of Gruesome Photographs

Defendant argues that the trial judge erred by admitting into evidence gruesome photographs of the victim’s injuries, which he contends were unnecessary to prove any element of the State’s case and were more prejudicial than probative. The State responds that the trial judge did not abuse his discretion in admitting the evidence, noting that the photographs were graphic, but not unduly gruesome. The State also responds that the photographs supported the testimony of the State’s witnesses that the victim was struck from behind with a glass bottle, | )Sand that the glass bottle was used in a manner likely to produce death or great bodily harm.

The State is entitled to the moral force of its evidence. State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 892-93, unit denied, 05-1760 (La.2/10/06), 924 So.2d 163. Generally, photographs are admissible if they illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, subject to the test that their probative value outweighs any prejudicial effect. State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 710, unit denied, 04-1701 (La.4/29/05), 901 So.2d 1058. Photographic evidence is properly admitted unless it is so gruesome that it overwhelms jurors’ reason and leads them to convict the defendant without sufficient other evidence, i.e., when the prejudicial effect of the photographs substantially outweighs their probative value. State v. Jones, 99-798 (La.App. 5 Cir. 11/10/99), 748 So.2d 1176, 1179, writ denied, 00-306 (La.12/8/00), 775 So.2d 1076. Moreover, the cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Richthofen, 01-500 (La.App. 5 Cir. 11/27/01), 803 So.2d 171,188, citing State v. Lane, 414 So.2d 1223 (La.1982).

Prior to trial testimony, defendant objected to the photographs the State intended to use at trial on the basis they were prejudicial. The State argued the four or five pictures were relevant to prove an element of the offense of aggravated battery, namely, that a dangerous weapon was used, especially since a bottle was not typically considered a weapon. The trial court reviewed the photographs and did not find them gory. It further remarked that the State had to prove that the dangerous weapon was used in a manner likely to cause death or great bodily harm. The trial court ruled the photographs were admissible, noting that the State |14had the right to the full force and effect of its evidence and that the probative value of them outweighed any prejudicial effect.

Sgt. Cummings identified the photographs as accurate depictions of the victim after the incident. He stated the pictures showed lacerations the victim received after being hit by the beer bottle. A review of the photographs show that the victim sustained a very deep, long cut from his ear down the left side of his neck, approximately six inches in length. Although the pictures are graphic and bloody, they are not so gruesome so as to overwhelm a jury’s reason and lead it to convict defendant without sufficient other evidence. Additionally, the photographs were necessary to corroborate the State’s witnesses’ testimony that the victim was hit with a glass bottle, and to prove an element of the offense of aggravated battery, namely, that the glass bottle was a dangerous weapon because in the manner used, it was calculated or likely to produce death or great bodily harm. Moreover, the photographs of the victim’s injury were especially important considering there was very little descriptive testimony as to the extent and severity of the injury. Thus, we find the trial court did not err in admitting photographs of the victim’s injuries into evidence.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920, and find no errors that require corrective action.

DECREE

For the reasons discussed above, defendant’s convictions for resisting a police officer with force or violence and aggravated battery are affirmed.

AFFIRMED.

      . An officer working a paid detail is considered to be acting in his official capacity. See State v. Brown, 09-863 (La.App. 4 Cir. 12/2/09), 26 So.3d 845.

      . See State v. Favorite, 03-425 (La.App. 5 Cir. 11/25/03), 862 So.2d 208, 214, writ denied, 03-3529 (La.4/23/04), 870 So.2d 298; State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, 171-72, writ denied, 07-1129 (La. 12/14/07), 970 So.2d 529; and State v.

        London, 07-473 (La.App. 5 Cir. 11/27/07), 973 So.2d 782, 789-90, where the courts found that even if the juries believed that the victims were the initial aggressors, the juries could have also believed that the defendants at some point became the aggressors.