author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Andre D. LEONARD.
    No. 11-KA-363.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée Valenti, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, the State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Andre D. Leonard.
    Panel composed of SUSAN M. CHEHARDY, CLARENCE E. MeMANUS, and WALTER J. ROTHSCHILD, Judges.
   SUSAN M. CHEHARDY, Judge.

li>On appeal, defendant seeks review of his conviction for possession with intent to distribute crack cocaine. For the following reasons, we affirm his conviction.

Facts and Procedural History

Because defendant’s conviction resulted from a guilty plea without a trial, the facts presented were gathered from the hearing on defendant’s motions to suppress his statement and evidence. According to the testimony presented at that hearing, on or about November 21, 2008, Jefferson Parish Sheriffs Narcotics Officers, acting on information from an anonymous source, observed a man matching the description given by the tipster arriving at a specific home in Jefferson Parish in a black vehicle then lingering in the driveway. When the officers approached the man, they observed him handling three plastic bags containing off-white rocks, which field-tested positive for crack cocaine. The officers arrested the man, identified as defendant herein.

On December 23, 2008, the Jefferson Parish District Attorney filed a bill of information alleging that defendant, Andre D. Leonard, possessed crack cocaine [ 3with intent to distribute, in violation of La. R.S. 40:967(A). At his arraignment on January 5, 2009, defendant entered a plea of not guilty.

On May 4, 2010, the trial court denied defendant’s motions to suppress evidence and statement. Although defense counsel objected and noted his intent to seek review of those rulings, the record does not reflect that defense counsel sought supervisory review of those rulings.

On October 6, 2010, defendant pled guilty to possession with intent to distribute cocaine, reserving his right to appeal the adverse ruling on his motion to suppress evidence, pursuant to State v. Crosby. On October 12, 2010, the trial judge sentenced defendant, pursuant to a written plea agreement, to fifteen years imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence for the first two years, as articulated in La. R.S. 40:967(B)(4)(b).

Immediately thereafter, the State filed a multiple offender bill of information alleging that defendant, Andre Leonard, was a second felony offender. Defendant stipulated to the allegations in the multiple bill. The trial judge vacated defendant’s sentence on the underlying felony and imposed an enhanced sentence pursuant to La. R.S. 15:529.1 of fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. His enhanced sentence was ordered to run concurrently with his parole violation time.

On November 12, 2010, defendant filed a written motion for appeal pursuant to Crosby, seeking review of the trial court’s denial of his motion to suppress evidence. Defendant’s motion was granted and this appeal follows.

Lin his only assignment of error, defendant argues that the trial court erred in failing to grant his motion to suppress the evidence. He argues that the police approached him without reasonable suspicion because they failed to adequately corroborate the anonymous tip. Further, defendant contends that the initial detention exceeded the limitations of an investigatory stop when the officers approached the vehicle with them weapons drawn and prevented him from leaving. Finally, defendant argues that there was no probable cause to arrest him so the illegally retrieved evidence should be suppressed as “fruits of the poisonous tree.”

The State responds that the trial court properly denied defendant’s motion to suppress. First, the officers had sufficient reasonable suspicion to approach defendant after corroborating the anonymous informant’s tip. Specifically, the anonymous source provided detailed “inside information” that reflected a familiarity with the suspect when he arranged, over a monitored cell phone, a bogus purchase of crack cocaine from the suspect at a specific time in a specific place.

The State provides that the officers corroborated the tip when, within the specific timeframe, a man matching the description given by the source, arrivéd at the location given by the source, in a vehicle matching the description given by the source. Further, the defendant was only briefly detained before the detective observed the crack cocaine in “plain view” in defendant’s mouth and hands. The State argues that, as soon as the detective observed the cocaine, probable cause existed to arrest the defendant, search for contraband, and legally seize any contraband that was discovered.

|5On May 4, 2010, a hearing was held on defendant’s motions to suppress evidence and statement. Detective Julio Alvarado of the Jefferson Parish Sheriffs Office (“JPSO”), Narcotics Division, was the sole witness to testify at the hearing. Detective Alvarado testified that JPSO had received complaints of illegal narcotics sales on Lyons Street in Harahan so they began an investigation using information from a confidential source. Detective Alvarado explained that the anonymous source used a cell phone monitored by a JPSO officer, called the suspect’s cell phone, and asked to purchase a specific amount of crack cocaine. The suspect told the source to meet him at a specific house on Lyons in ten minutes, which would have been approximately 7:00 p.m. that night.

The source described the suspect as a heavy-set black male in his mid-20s who would be driving a black, four-door vehicle. The source also gave the officers the address of the house where the purchase was to occur. Although the source was not able to give them the suspect’s given name, Detective Alvarado said the source gave them a nickname of “Dee.”

After the source spoke with the suspect on the phone, Detective Alvarado and his partner, Detective Schiff, parked their surveillance vehicle on North Dilton Street, which is perpendicular to Lyons, so they could observe any vehicles turning right onto Lyons. Within ten minutes, a man, driving a black, four-door Cadillac, turned right onto Lyons from North Dilton. The driver then pulled into the driveway of the house that the suspect had described to the officers and waited.

Detective Alvarado testified that, from his vantage point on the street, he clearly observed the driver as he pulled into the driveway. He noticed that the driver was a heavy-set African-American man wearing a black, hooded sweatshirt, which matched the description of the suspect that the source had given them.

| ^Detective Alvarado testified that the driver could have turned into a number of other driveways and had ample time to use this driveway to back up and leave the area. Instead, however, this vehicle remained immobile.

Detective Alvarado testified that the investigators’ objective was to verily the source’s information then proceed with an investigatory stop. So, once the officers had corroborated the source’s information, Detective Alvarado moved his car into the driveway behind the black vehicle. The detectives exited their vehicle and approached the vehicle. Detective Alvarado approached the driver’s door of the vehicle, while his partner walked to the passenger-side door.

According to Detective Alvarado, the vehicle’s windows were not tinted. The officers drew their weapons and announced themselves as police officers as they approached the vehicle. The driver looked at Detective Alvarado, who instructed the driver to show his hands.

At that point, the driver put his right hand into his sweatshirt pocket. When the driver removed his hand from his sweatshirt, two clear plastic bags containing off-white rocks fell from his hand: one bag landed on the console and one bag fell between the seat and the console.

When Detective Alvarado looked closely at the driver, he noticed that the driver had a knotted piece of plastic dangling from his mouth. Detective Alvarado recognized the knot as consistent with the way “crack” is packaged. Detective Alvarado removed the driver from the car, put him flat onto the ground, and told him to spit out the object. Defendant complied.

Right away, Detective Alvarado advised the driver of his constitutional rights pursuant to Miranda, Defendant indicated that he understood his rights. Defendant admitted that the substance in the plastic package from his mouth, |7which tested positive for cocaine, was his, but denied ownership of the other packages.

Detective Alvarado also seized $1,063.00 in currency from defendant. First, defendant stated that the money was his father’s property. Defendant then revised his story to state that his girlfriend had given him the cash. Finally, he partially retracted that story to state that his father had given him $200.00 of the money.

The passenger in the vehicle was identified as defendant’s uncle. When Detective Alvarado conducted a criminal history check on each man, he learned that defendant had an outstanding fugitive attachment in the City of Gretna and his uncle had six outstanding traffic attachments from Jefferson Parish. Both men were taken into custody. After hearing the testimony, the trial judge denied the motion to suppress evidence on the basis that the arresting officers had probable cause to conduct the arrest.

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

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. State v. Lane, 09-179, p. 4 (La.App. 5 Cir. 9/29/09), 24 So.3d 920, 923, writ denied, 09-2360 (La.5/21/10), 36 So.3d 226 (citing La.C.Cr.P. art. 703(D)). A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors | ^suppression. State v. Anthony, 07-204, p. 6 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219, 1224, writ denied, 08-0338 (La.1/16/09), 998 So.2d 98.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized the investigatory stop as an exception to the warrant requirement. State v. Sam, 08-220, p. 5 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577. In Louisiana, 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. Id.; La.C.Cr.P. art. 215.1(A).

To justify an investigatory stop, an officer must have reasonable suspicion of criminal activity. State v. Boss, 04-457, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. Reasonable suspicion, which is something less than probable cause to arrest, 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. State v. Chauvin, 06-362, p. 7 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 757-58. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is inadmissible. Boss, 04-457 at 5, 887 So.2d at 585.

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. Lane, 09-179 at 5, 24 So.3d at 924. In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. Sam, 08-220 at 5-6, 988 So.2d at 769.

| a“An anonymous tip may provide probable cause for an arrest, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), or reasonable suspicion for an investigatory stop, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), if it accurately predicts future conduct in sufficient detail to support a reasonable belief that the informant had reliable information regarding the suspect’s illegal activity.” State v. Smith, 00-1838, p. 1 (La.5/25/01), 785 So.2d 815, 816 (per curiam). See also, Lane, 09-179 at 5-6, 24 So.3d at 924 (citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)); Boss, 04-457 at 6, 887 So.2d at 586 (citing Alabama v. White, 496 U.S. at 332, 110 S.Ct. 2412).

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. State v. Triche, 03-149, p. 6 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 85, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. “[I]f a 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.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416.

Whether an anonymous tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. Boss, 08-220 at 6, 887 So.2d at 586. 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. Id.

In the present case, the officers corroborated information from the source to support a reasonable belief that the source had reliable information regarding the suspect’s illegal activity. Further, the source was able to predict defendant’s future [inbehavior. Detective Alvarado testified that the anonymous source used a monitored cell phone to call the suspect to set up a purchase of crack cocaine. Detective Alvarado’s supervisor monitored the call and heard the suspect say he would be at a certain address within ten minutes. The source gave the police the suspect’s nickname and physical description, including his race, gender, build, and age.

Further, the source correctly predicted the specific place and time, within ten minutes, that the suspect would arrive with contraband. The source was able to describe the vehicle defendant would be driving—a black, four-door vehicle. As the detectives surveyed the situation, they corroborated the source’s information when they observed a man, fitting the description of the suspect, drive up to the expected location in a vehicle that matched the description of the suspect’s vehicle within the specified time frame. As such, we find that the trial judge did not err in implicitly finding that the detectives possessed reasonable suspicion to justify the investigatory stop.

The next inquiry is whether the detention exceeded the limits of an investigatory stop. Defendant contends that he was arrested when the police blocked his vehicle and approached with their guns drawn.

“The vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se.” United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). In United States v. White, 648 F.2d 29, 34-35 (D.C.Cir.1981), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981), the court noted that the use or display of arms may, but does not necessarily, convert a stop into an arrest. “Since an officer’s view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage both when he approaches the occupant and when he Utries to question him through a car window.” Id. at 37. Moreover, the court recognized that the frisk component of a Terry “stop and frisk” is not available to protect the policeman if a suspect is sitting inside a closed car and the officer is on the outside. Id.

Further, inherent in the right to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. State v. Morton, 08-164, p. 7 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657. This Court recognized that since police officers should not be required to take unnecessary risks in pei*-forming their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. Morton, 08-164 at 8, 993 So.2d at 657.

Furthermore, guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229. See, United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987) (quotation omitted) (“[T]o ... dealers in narcotics, firearms are as much ‘tools of the trade’ as are most commonly recognized articles of drug paraphernalia.”). Here, the police officers prevented the suspect from backing out of the driveway and approached on foot with their weapons draws. Because police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps, as they did here, that are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terr~y stop.

The next inquiry is whether the contraband was seized in violation of our constitutions and, thus, inadmissible. The United States Supreme Court has carved out several exceptions to the warrant requirement that justify warrantless searches 11gin limited circumstances. State v. Morgan, 09-2352, p. 4 (La.3/15/11), 59 So.3d 403, 405-06.

“Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right to access to the object, they may seize it without a warrant.” State v. Leger, 05-0011, p. 65 (La.7/10/06), 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). 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. State v. Tate, 09-619, p. 12 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). 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 have probable cause to believe the item in question is either evidence and/or contraband. Tate, 09-619 at 12, 33 So.3d at 301.

A search incident to a lawful arrest is another of the clearly recognized exceptions to a warrantless search. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. State v. Andrishok, 434 So.2d 389, 391 (La.1983); State v. London, 01-1016, p. 9 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 166.

In the present case, we have already found that, while executing the lawful investigatory stop, the detective had a right to be standing near the vehicle’s driver at the moment that the driver withdrew two plastic packages containing off-white l^powdery rocks from his pocket. Further, defendant allowed a plastic package to dangle from his mouth while he spoke with Detective Alvarado.

When Detective Alvarado observed the plastic packages containing off-white powdery rocks, he immediately recognized the rocks as contraband. Because possession of contraband, such as controlled dangerous substances, is unlawful, Detective Alvarado had probable cause to arrest the defendant at that moment.

In a search incident to the defendant’s arrest, the police officer can search the suspect’s person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. Here, Detective Alvarado seized contraband within “plain view” while he was lawfully in a position to view that had an incriminating nature that was immediately apparent. Clearly, the State established sufficient support to justify this war-rantless search.

Further, even if the trial judge had found that the contraband was not subject to seizure under the “plain view” exception to the warrant requirement, the detectives discovered during the investigatory stop that defendant had an outstanding attachment, which provided probable cause for his arrest under La.C.Cr.P. art. 213(A)(4). State v. Stamp, 98-193 (La.App. 5 Cir. 7/28/98), 718 So.2d 531, 533.

In sum, we recognize that the trial courts ruling on a motion to suppress is afforded great weight, which we will not disturb. This assignment of error lacks merit.

114Finally, defendant requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. There are several errors that require corrective action.

First, defendant pled guilty to possession with intent to distribute cocaine. However, the minute entry of defendant’s hard labor commitment, which reads that defendant pled guilty to “40:967.A F II SCHEDULE II DIST/ POSS. WITD OF A CDS (Crack Cocaine),” incorrectly references the statutory provision to which defendant pled guilty. In State v. Roche, 09-684, p. 7 (La.App. 5 Cir. 3/23/10), 39 So.3d 706, 710, writ denied, 10-0930 (La.11/19/10), 49 So.3d 396, the minute entry of defendant’s hard labor commitment referenced the statutory provision as “40:967.A F II Schedule II.” This Court remanded to allow the trial court to correct the commitment to conform to the transcript. Id.

Second, the language “DIST/POSS. WITD OF A CDS” suggests two crimes: distribution of CDS and possession with intent to distribute CDS. The transcript indicates that defendant pled guilty to possession with intent to distribute a Schedule II narcotic, which is a separate and distinct crime from distribution of a Schedule II narcotic. In State v. Alexander, 08-580, p. 10 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, 738-39, writ denied, 09-0717 (La.12/11/09), 23 So.3d 912, this Court ordered the trial court to amend the commitment nunc pro tunc to properly reflect the offenses for which the defendant was convicted to prevent confusion.

Third, the hard labor commitment of defendant’s enhanced sentence states that the sentence was to run “concurrently with parole violation time and with any other sentence.” The sentencing transcript, however, reflects only that the enhanced sentence would run concurrently with “parole violation time,” but does not reflect that the judge ordered the sentence to run concurrently with “any other 1 ^sentence.” Because the transcript prevails when there is a discrepancy, the commitment should be corrected to delete the words “with any other sentence” to conform to the transcript.

Fourth, defendant was sentenced on the underlying felony to 15 years imprisonment at hard labor, with the first 2 yeai's of the sentence imposed without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b). When the trial judge vacated defendant’s underlying sentence and imposed defendant’s enhanced sentence pursuant to La. R.S. 15:529.1, the trial judge sentence defendant to 15 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant’s enhanced sentence is illegal because parole has been restricted for the entire term of the sentence. Because La. R.S. 40:967(B)(4)(b) allows for parole eligibility after the first two years, and La. R.S. 15:529.1(G) prohibits only “probation or suspension of sentence” for the entire sentence, relator’s sentence should not prohibit parole eligibility after the first two years. State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam). Therefore, under the authority granted to this Court under La.C.Cr.P. art. 882, we amend defendant’s enhanced sentence to reflect that the first two years of the 15-year sentence are to be served without the benefit of parole, probation, or suspension of sentence, and the remainder of the sentence is to be served without benefit of probation or suspension of sentence. State v. Sanders, 04-0017 (La.5/14/04), 876 So.2d 42 (per curiam).

Accordingly, this matter is remanded to the trial court to correct the minute entry of the hard labor commitment to conform to the sentencing transcript as [^follows: (1) to clearly reference the correct statute to which the defendant pled guilty, (2) to clearly reference the correct offense to which defendant pled guilty, i.e., possession with intent to distribute cocaine, (3) to delete the reference that the enhanced sentence would run concurrently “with any other sentence,” and (4) to amend defendant’s enhanced sentence to reflect that the first two years of the 15-year sentence are to be served without the benefit of parole, probation, or suspension of sentence, and the remainder of the sentence is to be served without benefit of probation or suspension of sentence. State v. Johnson, 08-265, pp. 7-8 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 600. Further, the trial judge is ordered to direct the Clerk of Court for the 24th Judicial District to transmit a certified copy of the corrected minute entry to the officer in charge of the institution in which the defendant is incarcerated. See, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, supra.

In sum, defendant’s conviction is affirmed. Defendant’s sentence is amended, and affirmed as amended. The matter is remanded to the district court for correction of the pertinent minute entry and further action consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; MATTER REMANDED

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

      . See, Error patent discussion, infra.

        .See, Error patent discussion, infra.

      . La.C.Cr.P. art. 914 provides, in pertinent part, that a party's motion for appeal must be made no later than thirty days after the rendition of the judgment or ruling from which the appeal is taken. Here, the trial judge sentenced defendant on his underlying conviction and as a multiple offender on October 12, 2010. Defendant's written motion for appeal, which was filed on November 12, 2010, was timely as the preceding day, November 11, 2010, was a legal holiday for all district courts in this state. See, La. R.S. l:55(E)(l)(a)(i).

      . Defendant did not preserve his right to seek review of the denial of his motion to suppress statement nor does he challenge that denial on appeal.

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

      . La.C.Cr.P. art. 213(A)(4), reads, in pertinent part, "A peace officer may, without a warrant, arrest a person when: ... The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.”

      . When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Lynch, 441 So.2d at 734.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Joe BROWN, III.
    No. 11-KA-86.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    Rehearing Denied Dec. 12, 2011.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Donaldsonville, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Joe Brown, III.
    Joe Brown, III, Cottonport, LA, Defendant/Appellant, in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his convictions and sentences. For the following reasons, we affirm his convictions but remand for resentencing.

Facts and Procedural History

In the early morning hours of September 29, 2007, Nicole Gant stood in her aunt’s yard, which is across the street from JJ’s Bar in Gramercy, talking to Eldridge Johnson and another man that she did not know. The stranger, who wore his hair in “cornrows,” wore black pants, a white shirt with black writing, and a black do-rag. After Ms. Gant took offense at a comment from Mr. Johnson, Ms. Gant left and went down the street to her mother’s house.

Meanwhile, Lanny Thomas and Freddie Williams were standing in front of JJ’s Bar talking when Paulette Bauman pulled up in front of the establishment. As Ms. Bauman exited her car, a “guy” approached Ms. Thomas asking for a light for his cigarette. After Ms. Thomas lit his cigarette, the man walked away.

Almost immediately, however, the man turned back toward the trio with a gun in his hand, demanding that the women hand over their purses. Ms. Bauman happened to be carrying jewelry in her purse, including her son’s ring and earring |3and two of her rings. After Ms. Thomas and Ms. Bauman complied, the man put the gun in Mr. Williams’ face and demanded his wallet. After pilfering their property, the man ran away.

Officer Alexander Gerhold of the Gram-ercy Police Department responded to an armed robbery call at approximately 12:16 a.m. on September 29, 2007. He spoke to Ms. Thomas, Ms. Bauman, and Mr. Williams who all gave him a description of the assailant: a black male in his late 20s or early 30s with a dark complexion, wearing a white t-shirt, dark colored jeans, a black do-rag or stocking cap on his head, with cornrows or braids in his hair. Officer Gerhold relayed this description to deputies who canvassed the area, but they were unsuccessful in locating the suspect. One day later, Detective Brett Forsythe of the St. James Parish Sheriffs Office was advised that the Gramercy Police Department received a tip from an anonymous caller that Joe Brown, later identified as defendant herein, had committed the armed robbery outside of JJ’s Bar.

On October 1, 2007, Detective Forsythe compiled a photographic lineup and showed it to Ms. Gant and the victims. Ms. Gant positively identified defendant in the photographic lineup as the individual who was standing with her and Mr. Johnson in her aunt’s yard before the robbery. Ms. Bauman and Ms. Thomas could not identify their assailant on that date because they were scared. However, in separate interviews two days later, Ms. Bau-man and Ms. Thomas positively identified defendant in the photographic lineup. Further, in court, Ms. Bauman, Ms. Thomas, and Mr. Williams each positively identified defendant as their assailant.

On October 3, 2007, Detective Forsythe obtained an arrest warrant for defendant then contacted Detective Jerry Fountain of the St. John Parish Sheriffs Office for assistance in locating and arresting defendant. On information from Rdefendant’s parole officer, Detective Fountain and other members of the St. John Parish Sheriffs Office went to 192 Emmett Court in Laplace in an attempt to locate defendant.

As soon as the officers knocked on the door at 192 Emmett Court, they heard someone inside moving quickly toward the rear of the trailer. After several more minutes of knocking, the tenant of the trailer, Candi Ross, who was defendant’s “on-again, off-again girlfriend,” answered the door. Ms. Ross told the officers that defendant was not in her trailer.

When the officers asked Ms. Ross if they could come in and look around, she asked if they had a “paper.” Detective Fountain told Ms. Ross that he had an arrest warrant for defendant. When the officers stepped inside the trailer to talk to Ms. Ross, Detective Fountain heard movement coming from the rear of the trailer. Sergeant Brooks stayed in the living room and talked to Ms. Ross, while Detective Fountain went to the back of the trailer. When he got back there, Detective Fountain found defendant hiding in a closet under a pile of clothes.

Detective Fountain placed defendant under arrest. Detective Forsythe arrived and asked Ms. Ross for her written consent to search the residence, which she gave. Prior to starting the search, Ms. Ross informed Detective Forsythe that defendant had given her a ring, which she had taken to Royal Jewelers in Laplace to be appropriately sized. She produced a receipt from Royal Jewelers and turned it over to him.

In the bedroom where defendant was found, the officers observed a large white plastic bag on the floor, which Ms. Ross stated belonged to defendant. Inside the bag, the officers located a black do-rag, a white t-shirt, and two pairs of dark-colored jeans, clothing which matched the description of the clothing worn by the perpetrator of the armed robbery. When he picked up the jeans, Detective |5Forsythe heard metal clanking together so he searched the pockets and found two rings and an earring. Later, Ms. Bauman positively identified those two rings and the earring found in the pants pocket and the ring retrieved from Royal Jewelers as jewelry that was in the purse stolen from her during the armed robbery.

On October 4, 2007, Loretta Jackson, defendant’s mother, called Detective For-sythe with information about the armed robbery. In her statement, Ms. Jackson reported that defendant admitted to her that he had committed the robbery; however, at trial, she denied stating that defendant admitted to the robbery. At trial, Ms. Jackson stated that her son only told her, “If you said I did it, I did it.” Detective Forsythe testified, that during an interview, defendant admitted that he was in possession of the rings but stated that he received the rings from a “crackhead” to pay for crack cocaine.

On November 21, 2007, the St. James Parish District Attorney filed a bill of information charging defendant, Joe Brown, III, with three counts of armed robbery in violation of La. R.S. 14:64. After a hearing on December 8, 2008, the trial judge . denied defendant’s motion to suppress statements, evidence, and identification.

On January 18, 2009, trial of this matter commenced. The next day, the twelve-person jury found defendant guilty as charged. After a hearing, the trial judge denied defendant’s motion for new trial on January 11, 2010. Also, on that date, defendant waived sentencing delays, and the trial judge sentenced defendant to imprisonment at hard labor for 60 years without benefit of parole, probation, or suspension of sentence on each count to run concurrently.

On February 10, 2010, defendant filed a timely motion for appeal, which was granted. Subsequently, defendant filed a motion to reconsider sentence, which was denied after a hearing on March 8, 2010.

|r,On appeal, defendant raises two counseled assignments of error and one pro se assignment of error. In his first counseled assignment of error, defendant argues that the trial court erred in denying the motion to suppress the identification. Specifically, defendant asserts that none of the three people robbed outside the bar positively identified him when Detective Forsythe showed them the lineup the first time but all of them identified him when they viewed the lineup the second time. Defendant contends that the identifications were tainted and unreliable so they should have been suppressed. The State responds that the trial judge did not err by denying the motion to suppress, noting that there was nothing in the record to substantiate that the photographic lineup was suggestive, unreliable, or tainted.

When challenging an out-of-court identification, a defendant generally bears the burden of proof at the hearing on the motion to suppress identification. La. C.Cr.P. art. 703(D). In order to suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Higgins, 03-1980, p. 19 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Even when the suggestiveness of the identification process is proved by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the procedure. State v. Broadway, 96-2659, p. 19 (La.10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000); State v. Peden, 04-71, p. 11 (La.App. 5 Cir. 5/26/04), 875 So.2d 934, 942.

Under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the factors that courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of mis-identification include: the witness’ opportunity to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the prior description |7of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. State v. Honore, 09-313, pp. 19-20 (La.App. 5 Cir. 1/12/10), 31 So.3d 485, 497. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Evans, 03-0752, p. 22 (La.App. 5 Cir. 12/9/03), 864 So.2d 682, 695, writ denied, 04-0080 (La.5/7/04), 872 So.2d 1079.

In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Clennon, 98-1370, p. 6 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. Id.

In this case, defendant argued in his motion to suppress that the photographic lineup was unduly suggestive or otherwise unfair because the photographs showed individuals with various hairstyles and different color complexions, which contributed to a substantial likelihood of mis-identification. On appeal, defendant does not raise that argument. Rather, defendant argues on appeal that the motion to suppress should have been granted because, first, the victims did not positively identify him the first time, and, second, Chief Dicharry coerced the identification from Ms. Bauman.

On appeal, however, a defendant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346, p. 9 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594. This Court reviews issues that have first been submitted to the district court for a ruling. U.R.C.A. 1-3. Since defendant did not | ^object in the trial court to the identification on these grounds and, thus, the issue has not been submitted to the district court, he is precluded from raising those issues now on appeal.

Furthermore, even if we were to consider the merits of defendant’s claims, we would find no error. First, there is no evidence that the photographic lineup was suggestive. A review of the photographic lineup shows that all six African-American males had similar hairstyles, mustaches, and facial features. Three of the men, including defendant, wore white t-shirts. Although the skin complexions and backgrounds in the photographs are slightly different, the lineup did not unduly focus attention on defendant. See State v. Thomas, 06-654, p. 6 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 377, writ denied, 07-464 (La.11/21/07), 967 So.2d 1153 (although the subjects’ mustaches varied in thickness, the photographic lineup did not unduly focus attention on defendant, where it consisted of six photographs of African-American men with similar hairstyles and facial features, the backgrounds of the photographs were similar, and three of the men, including defendant, were shown wearing white t-shirts).

Even assuming, arguendo, that the lineup was suggestive, we find, based on the Manson criteria, that defendant has failed to show a substantial likelihood of misidentification as a result of the procedures. Both Ms. Bauman and Ms. Thomas had the opportunity to view the criminal at the time of the crime, similarly described the criminal and his clothing, were certain at the second confrontation that defendant was the perpetrator, and the time between the crime and the confrontation was relatively short (four days).

Additionally, defendant has cited no authority to support his contention that the inability of a witness to make an identification the first time they view a photographic lineup means that the identification is unreliable. Moreover, Ms. |9Bauman, Ms. Thomas, and Mr. Williams all positively identified defendant in court as the perpetrator. In light of the foregoing, we decline to address defendant’s argument since it was not raised in the district court. However, even if we were to address the merits, we would find no error in the trial court’s denial of defendant’s motion to suppress the identifications.

In his second counseled assignment of error, defendant contends that the trial court erred in failing to grant the defense motion to reconsider the sentence as excessive. Defendant contends that his sixty year sentence is excessive in light of his non-violent criminal history and drug addiction. Defendant further contends that the imposition of a sixty-year sentence after he was offered 10 years at the close of the State’s case punishes him for exercising his right to a jury trial.

The State responds that the trial judge did not abuse her sentencing discretion, and, based on defendant’s criminal history of three previous felony offenses, the sentence is neither a purposeful or needless imposition of pain or suffering, nor grossly out of proportion to his crime. The State contends that the sentence is constitutionally, statutorily, and jurisprudentially firm.

On January 11, 2010, the trial judge sentenced defendant to sixty years at hard labor on each of the three counts to run concurrently, without benefit of parole, probation, or suspension of sentence. The trial judge noted that defendant had a long history of substance abuse and had admitted to smoking marijuana since the age of 16. Further, the trial judge noted that this was defendant’s third felony offense, with previous convictions for possession with the intent to distribute crack cocaine and for theft over $500.00. With respect to La.C.Cr.P. art. 894.1, she believed that there was an undue risk that during a period of a suspended sentence or probation, defendant would commit another crime, that defendant was in need of correctional treatment or a custodial environment that could be provided most | ineffectively by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of defendant’s crime.

On February 10, 2010, defendant filed a motion to reconsider sentence arguing that his sentence was excessive and that the trial judge arbitrarily formulated his sentence using a pre-sentence investigation without properly considering the mitigating factors outlined in La.C.Cr.P. art. 894.1. The trial judge denied the motion to reconsider sentence.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

La.C.Cr.P. art. 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing the sentence. However, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1 does not require a remand for resentencing. State v. Sanders, 98-855, p. 5 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, p. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

Here, defendant was convicted of three counts of armed robbery in violation of La. R.S. 14:64. Whoever commits armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64. The trial judge sentenced defendant to three concurrent sixty-year sentences.

This Court has upheld similar sentences for similarly-situated defendants. In State v. Mason, 10-284 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, writ denied, 11-0306, 64 So.3d 216 (La.2011), defendant and a co-defendant robbed a convenience store cashier. Even though there was no physical injury and no discharge of the weapon during the incident, this Court found that the 18-year-old defendant’s 55-year sentence for armed robbery was not excessive, noting that defendant had a criminal history; the charged offense involved more than one victim and the opportunity that other customers could have entered the store while the robbery was in progress; and a firearm was used in the commission of the robbery. Id., 10-284 at 13-16, 59 So.3d at 427-29.

Likewise, in State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162, defendant and two co-defendants robbed a bank; however there was no physical injury and no discharge of the weapon. Defendant was convicted of 2 counts of armed robbery and sentenced to 2 concurrent 60-year sentences. This Court found that the sentence | ,2was not constitutionally excessive, stating that although defendant was 19 years old and a first time offender, he went on a 3-day violent crime spree, and the victims had guns pointed at them during the robbery which placed them in fear for their lives. Id., 04-1388 at 16-17, 904 So.2d at 917.

In the instant case, we find that defendant’s sentences are not excessive. The record reflects that the trial judge adequately reviewed the factors listed in La. C.Cr.P. art. 894.1 prior to imposing sentence. Moreover, the jurisprudence supports the sentence imposed. In light of the foregoing, we find that the trial judge did not abuse its discretion by imposing concurrent sixty-year sentences for a defendant with two previous felony offenses who robbed three people at gunpoint in front of a busy neighborhood bar. This assignment lacks merit.

In his sole pro se assignment of error, defendant challenges the effectiveness of his trial counsel. Generally, he questions “[wjhether Trial Counsel’s Representation ‘fell below a reasonable objective standard of competent professional attorney in violation of both the State and Federal Constitution?”[sic]. However, specifically, defendant argues:

a) ‘Counsel failed to object to State’s improper closing-argument regarding ‘personal knowledge’ of defendant’s guilt and having ‘additional evidence of defendant’s guilt not placed before the jury’;
b) ‘Counsel failed to object to State’s ‘intentional mischaracterization of the evidence’;
c) ‘Counsel failed to object and request mistrial from the State’s improper closing and rebuttal-argument regarding “hearsay” evidence to prove the substantive guilt of defendant’.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. To prove ineffective assistance of counsel, a defendant must show both that: (1) his attorney’s performance was deficient; and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042, p. 9 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131, p. 4 (La.App. 5 Cir. 7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

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

La.C.Cr.P. art. 774 requires that closing arguments at trial be confined “to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Closing arguments shall not appeal to prejudice. La.C.Cr.P. art. 774. The State’s rebuttal shall be confined to answering the argument of the defendant. La.C.Cr.P. art. 774.

The trial judge has broad discretion in controlling the scope of closing arguments. State v. Taylor, 07-93, p. 31 (La.App. 5 Cir. 11/27/07), 973 So.2d 83, 103, writ denied, 07-2454 (La.5/9/08), 980 So.2d 688. A conviction will not be | ^reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Jackson, 04-293, pp. 5-6 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094. In making its determination, the appellate court should give credit to the good sense and fair-mindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence. Jackson, 04-293 at 6, 880 So.2d at 73.

An improper comment during closing argument falls within the ambit of La.C.Cr.P. arts. 770 and 771. These articles authorize the trial court to correct a prosecutor’s prejudicial remarks by ordering a mistrial or admonishing the jury, upon the defendant’s request. State v. Taylor, 07-93 at 31-32, 973 So.2d at 103. La.C.Cr.P. art. 770 reads:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, | isrequests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Lagarde, 07-123, p. 10 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

First, defendant argues that his trial counsel was ineffective because she failed to object and move for a mistrial during rebuttal closing argument after the prosecutor made comments relating to, first, his personal knowledge of defendant’s guilt and, second, to additional evidence supporting defendant’s guilt that was not presented at trial. At issue are the following statements made by the prosecutor during rebuttal closing argument:

We know how he [defendant] got it [the victim’s rings]. He got it at gunpoint from Paulette Bauman. He got the wallet at gunpoint from Freddie Williams, and he got Ms. Lanny Thomas’ bag with her valuables in it. It’s unfortunate we only recovered the jewelry. Nothing else was recovered. He had the gun, folks. He had the silver gun. You heard three witnesses testify to that.

Upon review, we cannot say that the prosecutor was expressing his personal knowledge of defendant’s guilt, but rather, he was functioning as a prosecutor by arguing what the State’s evidence showed and responding to defendant’s contention that he did not commit the crime. See, La.C.Cr.P. art. 774.

Furthermore, we cannot say that the prosecutor referred to additional evidence not properly admitted at trial. During the proceedings, Ms. Bauman testified that defendant took her purse, which contained her rings; Mr. Williams testified that defendant took his wallet; and Ms. Thomas testified that defendant took her purse. All three victims testified that defendant was armed with a gunj^when he demanded their property. Detective Forsythe testified that he recovered Ms. Bauman’s jewelry from defendant’s pants pocket. Thus, we cannot say that counsel was deficient for failing to object during closing arguments to comments that were not objectionable.

Additionally, the prosecutor’s comments do not fall within the scope of La.C.Cr.P. art. 770, mandating a mistrial. Thus, we cannot say that counsel was deficient for failing to move for a mistrial when comments do not fall within the scope of La. C.Cr.P. art. 770.

Second, defendant argues that his trial counsel was ineffective because she failed to object and move for a mistrial when the prosecutor intentionally mischar-acterized the testimony of Loretta Jackson, defendant’s mother. At trial, Detective Forsythe testified that on October 4, 2007, defendant’s mother called him to give a statement because she had information about the robbery. In her statement made at the St. James Parish Sheriffs Office, Ms. Jackson said that defendant admitted to her that he had committed the robberies. At trial, however, she denied that defendant admitted to the robberies instead saying that defendant only said to her, “If you said I did it, I did it.” Ms. Jackson’s statement, State’s Exhibit 7, was admitted into evidence at trial.

During his closing argument, the prosecutor remarked:

Don’t forget about mama. What did Ms. Jackson say? She had to be pressed to say it. I know she didn’t want to say anything that would possibly lead to the conviction of her son, but what did she say? She said she talked to him on the phone, right? What did she say? “I talked to him on the phone, and he said — he admitted it. He did it.” She said further, “I talked to him. He said, ‘Mom, I got something to tell you. I did it.” Mama’s don’t lie. She was scared to say what he had told her, and I understand that, but she did not lie when she gave this statement under oath. She voluntarily came to Detective Forsythe. She came to see him because she had something to tell him.

|17Our review of the prosecutor’s remarks shows that he did not mischaracterize the testimony of Ms. Jackson. Because the prosecutor did not mischaracterize Ms. Jackson’s testimony, defense counsel had not reason to object and cannot be ineffective for failing to object or for failing to move for a mistrial when the prosecutor made those remarks.

Finally, defendant argues that his trial counsel was ineffective because she failed to object or move for a mistrial when the State urged the jury to accept Ms. Jackson’s prior inconsistent statement as substantive evidence of his guilt. The first question is whether the prosecutor urged the jury to accept Ms. Jackson’s prior inconsistent statement as substantive evidence of defendant’s guilt.

During his closing argument, the prosecutor made the above-referenced remarks regarding Ms. Jackson and her statement to Detective Forsythe. During rebuttal, the prosecutor further stated:

Now I’m going to go back to his mama. That was her words under oath given in a taped recorded statement. That wasn’t my words. I didn’t put those words in his mouth, nor did Detective Forsythe. “I talked to him on the phone, and he said — he admitted he did it.” That’s what he told his mom.

Upon review, we find that the prosecutor’s remarks could be intended to urge the jury to accept Ms. Jackson’s prior inconsistent statement as substantive evidence of defendant’s guilt.

In this case, defendant’s mother, in her voluntary statement, stated that her son told her that he robbed the victims. The statement was made to detectives during the investigation and provided an identification of the robber. Here, the prior inconsistent statement of this witness constitutes a prior statement of identification for purposes of La. C.E. art. 801(D)(1)(c). Further, this prior inconsistent statement was not hearsay and could be used as substantive evidence 11sof defendant’s guilt under the amended version of La. C.E. art. 801(D)(1)(a), which provides:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement;

In State ex rel. D.W., 09-855 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1058-1060, this Court allowed the prior inconsistent statements of the witnesses to be admitted for their assertive value. In so holding, this Court found that, before the prior inconsistent statements could be accepted as non-hearsay, and, therefore, probative, additional evidence had to corroborate the “matter asserted” or the “facts sought to be proved” by these prior inconsistent statements.

Based on the foregoing, we find that additional evidence did corroborate the facts from the prior inconsistent statements. Two of the victims, Ms. Bauman and Ms. Thomas, positively identified defendant in a photographic lineup as the perpetrator, and all three victims positively identified defendant in court as the perpetrator. Therefore, there would have been no error in the prosecutor urging the jury to accept the prior inconsistent statement as substantive evidence of defendant’s guilt because the prior inconsistent statements could be used for their assertive value in accordance with La. C.E. art. 801(D)(1)(a). Accordingly, there was no objection for the defense counsel to raise and no justification for a motion for mistrial. Because there was no error, defense counsel cannot be ineffective for failing to object to the alleged error. Based on the foregoing, we find no relief is warranted on defendant’s claim of ineffective assistance of counsel.

| ^Finally, defendant requests an error patent review, which is our routine practice in accordance with La.C.Cr.P. art. 920. We note that defendant’s sentence is indeterminate. Here, the State filed a “Notice to Invoke Firearm Sentencing Provisions,” pursuant to La. R.S. 14:64.3. When the State submits sufficient evidence for the trier of fact to find that the offender used a firearm as the dangerous weapon during an armed robbery, under La. R.S. 14:64.3(A), the offender shall be imprisoned for “an additional five-year” period of incarceration without benefit of parole, probation, or suspension of sentence.

The jury verdict sheets show that the jury found defendant guilty of armed robbery with a firearm on each of the three counts. At the sentencing hearing, the trial judge stated that, when the dangerous weapon used in the commission of the armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. However, after defendant was convicted, the trial judge sentenced him to three concurrent terms of sixty years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The trial judge did not state that she was imposing the mandatory five-year period of incarceration at hard labor consecutive to defendant’s sentences.

As such, we find that defendant’s sentence is indeterminate because the trial judge did not specify the sentence imposed pursuant to the firearm enhancement. Accordingly, we vacate defendant’s sixty-year sentences and remand for resentencing to clarify defendant’s sentence with respect to La. R.S. 14:64.3. See, State v. Declouet, 09-1046, pp. 29-30 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 108-09, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681; State v. Price, 04-812, p. 10 (La.App. 5 Cir. 3/1/05), 909 So.2d 612, 618. In all other respects, defendant’s convictions are affirmed.

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

      . La.C.Cr.P. art. 771 states:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770. In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      . La. R.S. 14:64.3 reads: “When the dangerous weapon used in ... the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty ... shall be served consecutively to the sentence imposed under ... R.S. 14:64.”
      [Emphasis added].


text:
    STATE of Louisiana v. Joneisha TERRANCE.
    No. 11-KA-131.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, the State of Louisiana.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Joneisha Terrance.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

li>On April 1, 2010, the Jefferson Parish District Attorney filed a bill of information charging Joneisha Terrance with violation of La. R.S. 40:966(A), distribution of marijuana. The defendant was arraigned on April 26, 2010, and pleaded not guilty. On June 24, 2010, the defendant filed a motion to appoint a sanity commission to determine her competency to stand trial. After a sanity hearing on August 18, 2010, the trial judge found the defendant competent to stand trial. On August 24 and 25, 2010, the case was tried before a 12-person jury that found the defendant guilty as charged.

The defendant filed a motion in arrest of judgment or, alternatively, for new trial, which was denied after a hearing on September 29, 2010. On that date, the trial judge sentenced the defendant to imprisonment at hard labor for eight years, with four years suspended, and placed the defendant on active probation for five years upon her release from prison. The defendant also filed a motion for appeal on September 29, 2010, which was granted.

On October 21, 2010, the defendant filed a motion to reconsider sentence, which was denied after a hearing on January 28, 2011. On January 10, 2011, the defendant filed a motion for out-of-time appeal, which was denied as moot on January 19, 2011.

laFACTS

On September 4, 2009 at approximately 3:40 p.m., Deputy Billie Nunamaker, an undercover agent with the Jefferson Parish Sheriffs Office, went to East Monterrey Court off Behrman Highway, a high-crime/high-narcotics area, in an attempt to purchase narcotics. Deputy Nunamaker was driving an unmarked vehicle equipped with audio and video equipment to record any narcotics transactions that occurred. Detective Brian Rico of the Gretna Police Department and other officers had established surveillance in that area.

Deputy Nunamaker pulled up to a location and signaled to a man standing in front of the residence that she wanted to buy some marijuana. The man pointed in the direction of the defendant, who was standing nearby on a sidewalk, and an unknown male who was riding around the defendant on a bicycle. Nunamaker proceeded to the place where the defendant and the unknown male were positioned. The defendant walked around the back of Nunamaker’s vehicle to the driver’s side. Nunamaker asked the defendant for some “weed” and if she had a twenty,” and the defendant replied, “Where’s the money?”

Deputy Nunamaker responded that she was not going to give her the money because last time she was in that area to purchase narcotics, she gave money to somebody who took it and left. The defendant pointed toward 952 East Monterrey and said she lived right there in Apartment B. The defendant then told the unknown male on the bicycle that Nunamaker wanted to purchase marijuana. At that point, Nunamaker knew that the defendant and the unknown male were working together.

The unknown male pulled four bags of marijuana from his pocket and handed them to Deputy Nunamaker. He had other marijuana in his hand, which he put back into his pocket. The defendant put her hand in the window of |4Nunamaker’s vehicle, apparently expecting to get the money. Nunamaker, however, gave the $20.00 to the unknown male.

Deputy Nunamaker asked the defendant and the unknown male for their names and phone numbers, but the unknown male left the area. The defendant asked for a light and gave Nunamaker her phone number. Nunamaker asked the defendant whether she could come back and see the defendant, and the defendant pointed to where she lived and replied affirmatively.

The videotape of the transaction was shown to the jury.

Detective Rico testified he viewed the videotape of the transaction and was able to identify the defendant. He generated a photographic lineup and showed it to Deputy Nunamaker, who positively identified the defendant as one of the two individuals who sold her marijuana on the day in question.

Detective Rico, who was accepted as an expert in the field of narcotics investigations and the packaging and sale of narcotics, testified it is common for subjects to work in tandem to sell drugs. He explained that person A will engage the buyer in conversation while person B holds the drugs. If person A feels comfortable with the buyer, person A will then give person B a hand signal or tell them to come over to sell the drugs. Rico testified that it was common for the person holding the drugs to take the money in order to maintain the “point person” as “clean.” In Deputy Rico’s expert opinion, the defendant and the other subject were working in tandem when they sold marijuana to the undercover agent. Rico said further that it was his opinion that defendant held her hand out in anticipation of receiving the funds of the drug transaction.

Detective Rico asserted that the marijuana in this case was packaged in four “nickel” bags in five-dollar increments for a total of twenty dollars. He stated that the undercover agent requested “twenty” because it is the most common | ¿denomination when purchasing marijuana. Rico stated that the marijuana was already prepackaged, which suggested to him a predisposition to engage in the sale of narcotics.

Raven Barrois, a forensic chemist with the Jefferson Parish Sheriffs Office Crime Laboratory, testified that the evidence in this case was positive for marijuana.

The defendant testified that the undercover agent stopped in front of her door where she used to live and talked to a male. The defendant explained that she was walking toward the bus stop to wait for her son because he got out of school at 4:00 p.m., and the school bus came at 4:10 p.m. When the agent spoke to her, the defendant walked over to see if she knew her. The defendant claimed she told the agent where she lived and gave the agent her phone number because she is bisexual and was interested in pursuing a romantic relationship with the agent.

The defendant contended that the agent was engaged in a narcotics transaction with the male, and that she did not know the male. She admitted that when the agent asked her if she had any marijuana, she in turn asked the agent where her money was. The defendant explained that the agent wanted a “twenty,” but that the male heard “two days,” so she assisted by telling the male that the agent wanted a “twenty.” The defendant stated that the male then gave the agent four bags. The defendant testified that she did not sell drugs, did not know the male on the bicycle, and was not working with the male. She claimed she was holding her hand out because she wanted a light for her cigarette, and not because she was expecting to get money. The defendant said she was not trying to get the agent to come back for drugs, but she wanted the agent to come back to pursue a romantic relationship with her. She denied selling drugs to the agent on the day in question.

|r,On rebuttal, Deputy Nunamaker testified she did not get the impression that the defendant was trying to “hit on her.” She testified further that even if the defendant was trying to “hit on her,” she had no doubt that the defendant also was conducting a narcotics transaction as well.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant asserts it was reversible error for the trial court to accept the jury’s guilty verdict against the defendant when the record reflects the defendant has been diagnosed as a paranoid schizophrenic and as bipolar, which made it virtually impossible for her to have criminal intent to commit the crime.

The defendant claims she was standing outside her apartment building, waiting for her son’s school bus to arrive. She saw a woman walking up the street to whom she was immediately attracted. She crossed the street with the hope of getting the woman’s name and telephone number. The woman asked for a twenty, and the defendant struck up a conversation with the hope of getting the woman’s name and telephone number. The woman was interested in seeing the drugs, but the defendant only wanted to show the woman where she lived, and to get a date and time for when she could expect her to come over.

The defendant asserts she was “clearly not on the same page” as this female undercover officer. The defendant claims she was so consumed with this woman that she was oblivious to the man riding around her on a bicycle discussing a drug transaction with the undercover officer.

The defendant argues that without the necessary intent, none of her actions can be used to convict her of the instant crime. She asserts this Court must find that the State failed to meet its burden of proof under the Jackson standard of review.

|7The defendant argues the evidence was insufficient to support the conviction. She contends the State did not prove she intended to sell the marijuana to the undercover agent. The defendant asserts her sole objective during her interaction with the undercover agent was to obtain intimate time with her, and not to sell her drugs. She notes that the drugs were not in her possession, and she did not hand them over to the agent during the drug transaction. The defendant also argues that the State did not prove she had the intent to commit the crime, considering the seriousness of her mental illness and the medications she was taking for it both before and during the drug transaction.

Alternatively, the defendant asserts the trial judge erred by denying the motion for a new trial after learning of her extensive history of mental illness.

The State responds that at the trial and at the hearing on the motion for new trial the defendant presented no evidence of mental illness or medications taken for it and how they may have affected her ability to formulate criminal intent at the time of the offense. It contends that the defendant only presented evidence regarding mental illness at the time of sentencing as a mitigating factor. The State argues that the defendant did not enter a plea of not guilty by reason of insanity and, therefore, evidence of mental defect at the time of the offense was not admissible at trial or on appeal under La.C.Cr.P. art. 651. Nevertheless, the State submits that the evidence at trial was sufficient to convict the defendant of the charged offense, noting that a rational trier of fact reasonably could have inferred from the circumstances that the defendant acted in tandem with the unknown male to distribute marijuana.

On September 27, 2010, the defendant filed a motion in arrest of judgment and an alternative motion for new trial, arguing that the guilty verdict was contrary |sto the law and the evidence, and that the State presented no credible evidence that she committed a crime. At the hearing, defense counsel argued that the verdict was contrary to the evidence presented at trial. After hearing arguments of counsel, the trial judge denied the motion, finding there was substantial evidence against defendant to warrant such a verdict.

The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Hampton, 98-331, p. 12 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Pearson, 07-332, p. 12 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 653.

Instead of moving for a post-verdict judgment of acquittal, the defendant filed a motion in arrest of judgment. La. C.Cr.P. art. 859 lists the grounds for arrest of judgment; insufficiency of the evidence is not among the listed grounds. The grounds listed in La.C.Cr.P. art. 859 are exclusive and, thus, a court cannot entertain any other grounds when considering a motion in arrest of judgment. State v. Ijaz, 427 So.2d 848, 850 (La.1983).

“A motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” La.C.Cr.P. art. 851.

The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle, 06-898, p. 6 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 829, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154.

| nOn motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. La. C.Cr.P. art. 851(1). When a motion for new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. State v. Condley, 04-1349, p. 11 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163. Both the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance, however. Id. Therefore, the denial of the defendant’s motion for new trial based on the sufficiency of the evidence is properly before this Court on review.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” 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. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977. 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. Id.

| ipThe defendant was convicted of distribution of marijuana. La. R.S. 40:966(A)(1) provides, in pertinent part, that it is unlawful for any person knowingly or intentionally to distribute a controlled dangerous substance classified in Schedule I. As such, to support a conviction under La. R.S. 40:966(A), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I. State v. Pierre, 03-1306, p. 6 (La.App. 5 Cir. 2/23/04), 869 So.2d 206, 211, writ denied, 04-0959 (La.10/1/04), 883 So.2d 1006. Marijuana is a controlled dangerous substance classified in Schedule I. LSA-R.S. 40:964.

The term “distribute,” as it is used in the Uniform Controlled Dangerous Substances Law, means “to deliver a controlled dangerous substance whether by-physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to a lawful order of a practitioner.” La. R.S. 40:961(14). The term “deliver” means “the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” La. R.S. 40:961(10).

Delivery has also been jurisprudentially defined as transferring possession or control. State v. Celestine, 95-1393, p. 3 (La.1/26/96), 671 So.2d 896, 897; State v. Pierre, supra.

A defendant may be found guilty of distribution as a principal to the offense if he “aids and abets in the distribution or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance.” State v. Bartley, 00-1370, p. 5 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 32-33, writ denied, 01-0717 (La.2/22/02), 809 So.2d 981. See also, La.R.S. 14:24.

InAn individual may only be convicted as a principal to a crime for which he personally has the requisite mental state. State v. Carey, 04-1073, p. 6 (La.App. 5 Cir. 3/29/05), 901 So.2d 509, 512. Thus, mere presence at the scene of a crime does not make one a principal to the crime. Id.

Distribution of a controlled dangerous substance is a general intent crime. State v. Pierre, supra. See also, State v. Banks, 307 So.2d 594, 596-597 (La.1975). “General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2).

In State v. Brown, 05-102, p. 9 (La.App. 5 Cir. 5/31/05), 904 So.2d 805, 810, writ denied, 06-1287 (La.1/26/07), 948 So.2d 159, this Court found that the defendant specifically intended for the seller to deliver the cocaine to the buyer and that he facilitated the delivery by locating someone to sell drugs to the buyer and by bringing the seller to the buyer for that purpose. This Court found further that the evidence was sufficient to prove that the defendant acted as an intermediary to arrange the transfer of cocaine from the seller to the buyer, noting that one who acts as an intermediary can be charged and punished as a principal in the act of distribution.

Similarly, in State v. Black, 03-911, pp. 5-6 (La.App. 5 Cir. 12/30/03), 864 So.2d 836, 840, this Court stated that although the defendant did not hand the oxycodone pills to the undercover agent and the undercover agent did not hand the money to the defendant, the undercover agent’s testimony established that the defendant arranged the transaction with the seller and procured the seller to sell the pills to the undercover agent. This Court found that rational jurors, viewing the evidence in the light most favorable to the prosecution, could have concluded |12beyond a reasonable doubt that the defendant was a principal to distribution of oxycodone. Id.

Likewise, in State v. Smith, 05-951, p. 7 (La.App. 5 Cir. 6/28/06), 934 So.2d 269, 274-275, writ denied, 06-2930 (La.9/28/07), 964 So.2d 357, this Court found that the jury could reasonably have inferred from the videotape and from the detective’s testimony that the defendant had arranged with his alleged cohort to assist him in selling narcotics by taking potential buyers to him, even though it was the cohort, and not the defendant, who gave the narcotics to the undercover agent and received the money from the agent. In that case, however, the cohort then gave marijuana to the defendant in an apparent form of payment.

In the instant case, the State presented evidence to show that the defendant was a principal to the distribution of marijuana. The evidence reflects that the undercover agent signaled to a man standing in front of a residence that she wanted to purchase marijuana. That man pointed her in the direction of the defendant and an unknown male who was circling the defendant on a bicycle. The undercover agent drove over to the defendant and asked her if she had some “weed.” The defendant then asked for the agent’s money. When the undercover agent refused to give her the money, the defendant turned to the unknown male riding a bicycle around her and told him that the agent wanted marijuana. The unknown male pulled out four prepackaged bags of marijuana and handed them to the agent, who in turn handed the man $20.00. Afterward, the undercover agent discussed with the defendant the possibility of returning to the area to see her.

In addition, Detective Rico gave his expert opinion that defendant and the unknown male were working in tandem when they sold marijuana to the agent, and that the marijuana was prepackaged, which suggested to him a predisposition to engage in the sale of narcotics.

| isThe defendant, on the other hand, testified she did not sell marijuana to the agent and did not know the man on the bicycle. She claimed that she told the agent where she lived and gave her phone number to the agent because she wanted to pursue a romantic relationship with the agent.

The jury obviously believed the State’s witnesses and rejected the defendant’s story.

The question of 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. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. The credibility of the witnesses will not be reweighed on appeal. Id.

The defendant argues that the State did not prove she had the intent to commit the crime, considering the seriousness of her mental illness and the medications she was taking for it both before and during the drug transaction.

Prior to trial, the defendant filed a motion to appoint a sanity commission to determine her competency to stand trial. At the sanity hearing on August 18, 2010, the State and the defense stipulated that if Dr. Rafael Salcedo and Dr. Richard Ri-choux were called to testify, they would qualify as experts in the fields of forensic psychology and forensic psychiatry, respectively, and that each would testify consistently with the report they prepared and submitted to the court. That report recommended the defendant be found competent. The trial judge ruled the defendant was competent to stand trial.

At trial and at the hearing on the motion for new trial, there was no evidence presented that the defendant was mentally ill or taking medications for that illness before or during the offense. The only mention of mental illness was presented at the sentencing hearing, when defense counsel asked the trial judge to consider that 114even though the defendant met the Bennett criteria, she was a paranoid schizophrenic who was taking Depakote, Risper-dal, and Cogentin. At the sentencing hearing defense counsel also mentioned that when interviewed by the psychiatrist, the defendant was bipolar schizoaffective, had a history of psychiatric problems, and was on disability and unable to work because of her psychiatric problems. Defense counsel did not introduce any evidence at the sentencing hearing to support these statements, however.

La.C.Cr.P. art. 651 provides, “When a defendant is tried on a plea of ‘not guilty, evidence of insanity or mental defect at the time of the offense shall not be admissible.” The defendant entered a “not guilty” plea to the charge of distribution of marijuana. Therefore, even if evidence of her alleged mental illness had been introduced at trial, it would have been deemed inadmissible. Further, evidence of the defendant’s alleged mental illness was not introduced at the hearing on the motion for new trial, so the trial judge could not have taken it into account.

In light of the foregoing, we find that a rational trier of fact reasonably could have inferred from the videotape and from Deputy Nunamaker’s testimony that under the Jackson standard the defendant was guilty of being a principal to the distribution of marijuana.

J^ERROR PATENT DISCUSSION

The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Wetland, 556 So.2d 175, 178 (La.App. 5 Cir.1990). We find three patent errors. None require correction, but they are worthy of discussion.

Sentencing Delays

The trial judge failed to observe the required 24-hour delay between the denial of the motion for new trial and the imposition of sentence, as required by La. C.Cr.P. art. 873. The defendant did not waive the statutory delay.

Generally, when a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for re-sentencing. State v. Jones, 07-271, p. 10 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149. This Court has found, however, that when a defendant does not waive the 24-hour delay afforded by Article 873, but does not challenge the sentence imposed, the error may be harmless. State v. Williams, 08-272, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 532, writ denied, 09-143 (La.10/16/09), 19 So.3d 470.

Although the defendant did not waive the delay for sentencing, she did not challenge the sentence on appeal, except to state that it was unclear whether her probationary period was four or five years (see “Indeterminate Sentence” discussion, below). Accordingly, we find that no corrective action is necessary. State v. Butler, 09-314, p. 9 (La.App. 5 Cir. 10/27/09), 28 So.3d 317, 323-24, writ denied, 10-595 (La.10/29/10), 46 So.3d 673.

Indeterminate Sentence

La.C.Cr.P. art. 879 requires a court to impose a determinate sentence.

At the sentencing hearing on September 29, 2010, the trial judge sentenced the defendant to imprisonment in the Department of Corrections for eight years | lfiwith four years suspended and five years of active probation upon release from prison. At the hearing on the motion to reconsider sentence on January 28, 2011, however, after the trial judge denied the motion she said she believed the sentence of eight years, with four years in the Department of Corrections and four years being served on probation, was not excessive.

The commitment, dated September 29, 2010, indicates that probation was for five years. The minute entry dated January 28, 2011, does not mention that the trial judge said the probationary period was for four years.

The sentence here may be indeterminate if it is unclear whether the trial judge intended for the defendant to be placed on probation for four or five years.

In her brief the defendant requests that the matter be remanded to the district court for clarification of the amount of time the defendant is expected to serve on active probation.

The State responds in its brief that there was a bench conference at the time of sentencing that reflects a full discussion as to the time the defendant would serve on probation. The bench conference to which the State refers occurred near the end of the sentencing hearing.

At the sentencing hearing, the judge’s statements regarding the sentence were as follows:

THE COURT:
All right. At this time I’m going to sentence the defendant to eight years in the Department of Corrections. I will suspend four years of that sentence. She will serve four years in DOC and be placed on active probation upon her release for a period of five years....
MS. WIGGINS [defense counsel]:
Your Honor, may we approach?
THE COURT:
Yes.
|,7(AT THE BENCH)
MS. WIGGINS:
You sentenced her to eight years, but doesn’t she have to serve at least five—
THE COURT:
No.
MS. WIGGINS:
I just want to make sure. Probation always is five.
THE COURT:
That’s what I’ve given her.... I’ve given her eight years which is more than five.... I’ve suspended four.... And she’s got five years’ probation.

At the hearing on the motion to reconsider sentence, the judge stated, “The Court ... firmly believes that a split sentence of eight years, with only four years being served in D.O.C. and four years being served on probation, is not excessive.”

Considering that the trial judge originally stated at the sentencing hearing that probation was for five years, the commitment reflects that probation was five years, the trial judge denied the motion to reconsider sentence, and the minute entry in connection with the motion to reconsider sentence does not reflect that the trial judge changed the length of probation from five to four years, we find that the trial judge simply misspoke at the hearing on the motion to reconsider sentence, and that she meant to say the probationary period was for five years.

Accordingly, we find the sentence is not indeterminate. No correction is required.

Mandatory Fine

La. R.S. 40:966(B)(3) requires that a person convicted of distribution of marijuana shall pay a fine of not more than $50,000. Here, however, the trial judge did not impose a fine. This Court has held that a statute providing for a fine of “not more than” a specified amount does require a mandatory fine; however, this Court has noted that the matter is not free from doubt. State v. Kerlec, 06-838, p. 8 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626, citing Chief Justice Calogero’s dissent in State v. Phillips, 02-0866 (La.11/22/02), 834 So.2d 972.

Under La.C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. Such correction, however, is not mandatory. State v. Quinones, 03-907, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830. Because the matter is not free from doubt and because the defendant appears to be indigent since she is being represented by the Louisiana Appellate Project, we decline to exercise our discretion to impose a fine. State v. Bennett, 10-393, p. 12 (La.App. 5 Cir. 3/29/11), 63 So.3d 251, 260.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

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

      . La.C.Cr.P. art. 651 states, "When a defendant is tried upon a plea of 'not guilty', evidence of insanity or mental defect at the time of the offense shall not be admissible.”

      .La.C.Cr.P. art. 821(B) states, "A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.”

      . La. R.S. 40:964 was amended by the Louisiana Legislature in 2011; however, those amendments do not change the analysis here.

      . As was proper, the jury was not apprised of the information regarding the sanity issue.

      . In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court specified the applicable criteria in a competency determination:
      Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

      . In State v. Bennett, a writ application was filed with the Louisiana Supreme Court on May 6, 2011 under No. 2011-KO-931.