author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana in the Interest of K.M.
    No. 2014-CA-0306.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Mathun Kamath, Law Clerk, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

| iKM., a child, was adjudicated delinquent for the offense of simple assault pursuant to La. R.S. 14:38 and was committed to 90 days in the custody of the Department of Public Safety and Corrections; the execution of the commitment was suspended in favor of six months of active probation, to run concurrent with any other disposition. Additionally, the judge assessed a $55.00 court processing fee payable to the judicial expense fund of the juvenile court, in addition to a $150.00 probation fee. K.M. appeals. For the reasons that follow, we affirm the delinquency adjudication for the offense of simple assault and amend the fee assessment.

Relevant Facts and Procedural Background

On the evening of 17 November 2013, K.M. was supposed to be in his room readying himself for school. Unbeknownst to his mother, Ms. McKay, and without her permission, he left home with his brother. Subsequently, the two boys were involved in a skirmish with two to three older individuals. A bystander who witnessed the encounter intervened by transporting the boys in his car to his home located on Pleasure Street in New Orleans, and then contacted the police. Thereafter, Silas Phipps, an officer with the New Orleans Police Department, ^responded to the call. After confirming that K.M. had sustained slight injuries and was a juvenile, Officer Phipps telephoned Ms. McKay, advised her of the altercation, and instructed her to come to the residence to pick up her sons.

Upon her arrival at the bystander’s residence, Ms. McKay initially expressed how upset she was with the boys because they had left home without her permission. She then admonished K.M. for showing disrespect for the police officer at the scene after which an argument ensued between her and K.M. K.M. was visibly upset himself. Ms. McKay then tried to get K.M. into her car and, continuing to be upset, K.M. ran away and proceeded down the street. Ms. McKay ran after K.M. on foot while Officer Phipps got into his car and followed them. K.M. made it only a half a block before the officer pulled up next to him, at which time K.M. stopped and returned to the police vehicle.

At some point during the exchange, with Ms. McKay approximately 10 to 15 feet away from K.M., K.M. yelled in her direction “something to the effect of, ‘Bitch, I’ll stab you in the face while you’re asleep.’ ” Officer Phipps then placed K.M. into his police vehicle and talked to Ms. McKay concerning what she wanted to do about the situation. According to Officer Phipps, Ms. McKay indicated to him that she was in fear of her safety and wanted to press charges against her son. At that time, Officer Phipps advised her that he would be transporting K.M. to juvenile facilities.

At the adjudication hearing, Officer Phipps testified that he “wantfed] to say that [Ms. McKay] did hear” her son shout the threat. In contradiction of the statements she made to Officer Phipps at the scene of the incident, Ms. McKay testified that she did not hear K.M. threaten her and did not believe that K.M. was about to stab or harm her. Moreover, on appeal, Ms. McKay contends that she was | ¡¡under the impression that K.M. was being transported to juvenile facilities “because he was ‘cut up so bad.’ ”

At the close of the hearing, the judge found that the state proved beyond a reasonable doubt that K.M. had committed one count of simple assault, a violation of La. R.S. 14:38, adjudicated K.M. delinquent and committed him to 90 days in the custody of the Department of Public Safety and Corrections; the execution of the commitment was suspended in favor of six months of active probation, to run concurrent to any other disposition. Additionally, the judge assessed a $55.00 court processing fee against the parent of K.M. payable to the judicial expense fund and a $150.00 probation fee.

This timely appeal followed.

I.

K.M.’s first assignment of error is twofold. In claiming that the juvenile court erred in finding that the state met its burden of proving beyond a reasonable |4doubt each and every element of the offense, K.M. contends that (a) the prior statement made by Ms. McKay to Officer Phipps on the night of the incident — ie., that she did not hear her son utter a threatening statement to harm her and that she was not in fear of receiving a battery from her son — was inadmissible for its assertive value as substantive evidence of his guilt, but rather, was admissible solely for impeachment purposes; and (b) absent Ms. McKay’s statement, the state lacks sufficient evidence to establish beyond a reasonable doubt that she was placed in reasonable apprehension of receiving a battery.

The state claims that under the 2004 amendment to La. C.E. art. 801 D(l)(a), Ms. McKay’s statement was admissible for its substantive and assertive value as a prior inconsistent statement and that the corroborating testimony of Officer Phipps supports the court’s admissibility finding and its consideration of her prior statement as a basis for adjudicating K.M. delinquent. The state further argues the court did not err in adjudicating K.M. delinquent of simple assault based on the evidence presented.

Admissibility of Ms. McKay’s Prior Statement

Pursuant to La. C.E. art. 802, an out-of-court statement is generally inadmissible as hearsay. Under La. C.E. art. 607 D(2), however, evidence of the prior out-of-court statement made by Ms. McKay to Officer Phipps was admissible to impeach and attack her credibility, since she denied at trial having previously stated to Officer Phipps at the scene that she was in fear of her safety. Article 607 D(2) provides, in pertinent part:

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting |sthe witness’ testimony, is admissible when offered solely to attack the credibility of a witness....

While K.M. correctly alludes to this general principle that when a non-party witness’ credibility was attacked through pri- or inconsistent statements, such evidence was generally admissible for impeachment purposes only and not for its assertive value as substantive evidence of guilt under La. C.E. art. 607 D(2), he fails to acknowledge the rule’s exception pertaining to prior inconsistent statements that can be classified as non-hearsay; that is, statements that can “be used to divulge the content of the prior statement for the purpose of inviting the jury to believe the content of the statement.” State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065, 1069-1070.

Prior to 2004, La. C.E. art. 801 D(l)(a) provided:

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) Inconsistent with his testimony, and was given under oath subject to the penalty of perjury at the accused’s preliminary examination or the accused’s prior trial and the witness was subject to cross-examination by the accused;

Under this narrow pre-2004 definition, Ms. McKay’s prior statement would not have qualified as “not hearsay,” since she was not under oath and subject to cross-examination when she made it to the officer at the scene. In 2004, however, the legislature amended La. C.E. art. 801 D(l)(a), significantly expanding its definition to provide that a prior statement by a witness is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is:

|fi(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; ...

Thus, pursuant to the pre-2004 version of La. C.E. art. 801 D(l)(a), prior inconsistent statements of a witness had to be given under oath at the accused’s preliminary examination or prior to trial, and the witness had to have been subject to cross-examination at that time by the accused in order for such prior inconsistent statements to be considered non-hearsay. The amended version of article 801 D(l)(a), however, “is substantially broader than its predecessor, and renders most prior inconsistent statements admissible for their substantive or assertive value as well as their impeachment value in criminal cases if the proper foundation is established.” See Authors’ Note 3, Pugh, Force, Rault, Triehe, Handbook on Louisiana Evidence Law (2011).

In the instant case, we find that K.M. erroneously relies on jurisprudence existing prior to the 2004 amendment to support his position that Ms. McKay’s statement made to Officer Phipps at the scene is inadmissible for its substantive or assertive value. In State v. Wells, 10-1338, p. 6 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 307, citing State v. Rankin, 42,412 (La.App. 2 Cir. 9/19/07), 965 So.2d 946, |7this court recognized that the 2004 amendment to La. C.E. art. 801 D(l)(a) made a witness’ prior inconsistent statement in a criminal case non-hearsay. Since they are non-hearsay, such statements may be used for their assertive value upon laying the proper foundation.

In the case sub jucLice, we find that Ms. McKay’s statement to Officer Phipps on the night of the incident that she was in fear of her safety qualifies as non-hearsay under article 801 D(l)(a). Ms. McKay testified at K.M.’s adjudication hearing and was cross-examined regarding her prior statement to Officer Phipps at which time she denied hearing a threat or being in apprehension of being stabbed by K.M. Then, Officer Phipps testified at the hearing confirming that K.M. made a statement threatening to stab his mother, that he believed Ms. McKay heard the threat, and that subsequent to the threat being made, Ms. McKay stated to him that she was in fear of her safety. We find Officer Phipps’ testimony corroborates Ms. McKay’s apprehension of receiving a battery on the night of the incident. Accordingly, we hold that the statement was admissible not only to attack Ms. McKay’s credibility, but also for its assertive value as substantive evidence of KM.’s guilt of committing simple assault.

Sufficiency of the Evidence — Proof Beyond a Reasonable Doubt

We must now decide whether the evidence presented by the state, ie. the prior inconsistent statement made by Ms. McKay to Officer Phipps, was sufficient to sustain the adjudication of K.M. as delinquent of simple assault beyond a reasonable doubt. When the state charges a child with a delinquent act, it has the burden of proving each element of the offense beyond a reasonable doubt. La. IsCh.C. art. 888. On appeal, the applicable standard of review is whether or not, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard of review applies to juvenile proceedings in which a child is adjudicated delinquent. State in the Interest of AG., 630 So.2d 909, 910 (La.App. 4th Cir.1993). In juvenile proceedings, the scope of this court’s review extends to both law and facts. La. Const. art. V, § 10(B); State in the Interest of D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930.

The Jackson standard of review incorporated in La.C.Cr.P. art. 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. The testimony of one witness is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Dorsey, 10-0216, p. 43 (La.9/7/11), 74 So.3d 603, 634. In the absence of internal contradiction or irreconcilable conflict with physical evidence, even a single witness’s testimony if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79.

IsAs a court of review, we recognize that the judge observed the conduct and demeanor of the witnesses and was in the best position to determine the credibility and weigh the evidence. Thus, we grant great deference to the court’s factual findings, credibility determinations, and assessment of witness testimony. State in the Interest of A.H., 10-1673, p. 3 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 682. Accordingly, a factual finding made by a trial court in a juvenile adjudication proceeding may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State ex rel. C.N., 11-0074, p. 5 (La.App. 4 Cir. 6/29/11), 69 So.3d 711, 714. In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether sufficient evidence exists to satisfy the standard of proof beyond a reasonable doubt.

La. R.S. 14:36 defines the offense of assault as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” In order to sustain the offense of “assault,” the state must prove beyond a reasonable doubt: (1) the intent-to-scare mental element (general intent); (2) conduct by the accused of the sort to arouse a reasonable apprehension of bodily harm; and, (3) the resulting apprehension on the part of the victim. State v. Tatom, 463 So.2d 35, 37 (La.App. 5th Cir.1985); State v. Roebuck, 543 So.2d 573, 574 (La.App. 4th Cir.1989).

The only two witnesses to testify at KM.’s adjudication hearing were Ms. McKay and Officer Phipps. While their testimony is in accord as to K.M.’s Inactions up to the time he took off running away from his mother with her following him on foot while Officer Phipps followed in the patrol car, the trial testimony conflicts as to what transpired thereafter. Officer Phipps testified that, as K.M. ran away, he verbally shouted a threat to his mother “something to the effect” that he would stab her in her face while she was asleep. Officer Phipps explained that at the time the threat was made, Ms. McKay was only 10 to 15 feet away from K.M. and that, in his opinion, she did hear the threat, and that, afterwards, Ms. McKay did state to him that she was in fear of her safety and wanted to press charges against her son. Contrariwise, Ms. McKay testified that she did not hear any threats made by K.M. and denied that she was fearful that K.M. would harm her.

The trier of fact, in this case the judge, is charged with making credibility determinations. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State in the Interest of T.C., 09-1669, p. 6 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260, 1263. Moreover, when conflicting testimony about factual matters exits, the resolution of which depends upon a determination of the relative credibility of the witnesses, the matter is a question of weight of the evidence, not its sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th Cir.1989); see also Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State in the Interest of T.C., 09-1669 at p. 6, 60 So.3d at 1263.

In the instant matter, the judge heard the conflicting testimony of the two witnesses and found, under the circumstances, Officer Phipps’ testimony to be |1Tmore credible. It was within the juvenile judge’s purview to make such a determination, especially in light of the fact that Ms. McKay, the victim, is the mother of K.M. This is exactly the type of situation envisioned by the Legislature when amending La. C.E. art. 801 D(l)(a). See Rankin, 42,412 at p. 7, 965 So.2d at 950-51. The judge further determined that the testimony of Officer Phipps was sufficient to adjudicate K.M. delinquent of simple assault. Given that the testimony of one witness is usually sufficient to support a verdict, we will not disturb that finding. Dorsey, 10-0216 at p. 43, 74 So.3d at 634.

Any rational trier of fact, viewing the evidence regarding the simple assault in the light most favorable to the state, could have found, proven beyond a reasonable doubt, the essential elements of simple assault committed by K.M. against his mother. Additionally, after undertaking our state’s constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication of delinquency based on simple assault. Accordingly, KM.’s first assignment of error lacks merit.

II.

By his second assignment of error, K.M. argues that he was denied due process when the juvenile judge assessed a “court processing fee” payable to the judicial expense fund, which fee is not only in excess than that allowed by law, but gives the juvenile judge a financial interest in the case creating the appearance of bias.

The authority for a juvenile judge to assess a fee transmitted to the judicial expense fund is contained in La. R.S. 13:1595.2, which states, in pertinent part:

A. In all delinquency and children in need of supervision cases over which the Orleans Parish Juvenile Court has jurisdiction, there shall be taxed |12as costs against every juvenile who is adjudicated delinquent, admits to allegations contained in the petition, or enters into an informal adjudication the sum of fifty dollars, which shall be transmitted to the judicial administrator of the Orleans Parish Juvenile Court for further disposition in accordance herewith.
B. The judicial administrator shall place all sums collected or received under this Section in a separate account to be designated as the judicial expense fund for the Orleans Parish Juvenile Court. The judges of the court shall cause to be conducted annually an audit of the fund and the books and account relating thereto shall file the same with the office of the legislative auditor where it shall be available for public inspection. [Emphasis supplied.]

In the instant matter, K.M. correctly avers — and the state concedes — that the $55.00 fee assessed by the juvenile judge as a result of K.M. being adjudicated delinquent exceeds the amount mandated by statute. As such, we find that the aspect of K.M.’s second assignment of error has merit. We, therefore, amend the $55.00 fee assessment and reduce it to $50.00 in accordance with La. R.S. 13:1595.2(A).

The next part of K-M.’s second assignment of error is that the practice of depositing fees assessed by the juvenile court into the judicial expense fund deprives him of his right to due process and is, thus, unconstitutional, because the trial judge, as a financial officer of the court’s judicial expense fund, bears a perceived financial interest in the outcome of a delinquency adjudication. Because the constitutionality of La. R.S. 13:1595.2 B is not properly before us, we pretermit any discussion of this issue. See State in the Interest of L.V., 13-1584, p. 3 (La.App. 4 Cir. 4/9/14), 140 So.3d 187,188.

{^CONCLUSION

For the foregoing reasons, we affirm the adjudication of K.M. for the offense of simple assault and amend the fee assessment.

AMENDED; AFFIRMED AS AMENDED.

      . In the transcript of the hearing, Ms. McKay testified that when she arrived at the bystander’s home, K.M. "cut up so bad” (i.e., misbehaving), not that he "was cut up so bad” as set forth in the K.M.’s brief on appeal. Nonetheless, Ms. McKay denies that she wanted to press charges or that her desire to press charges was why Officer Phipps was transporting K.M. to juvenile facilities.

      . The suspension of KM.’s 90-day commitment was subject to the following special conditions:

        1. The juvenile must enroll in and attend school every day, present no problems at home or school, receive no suspensions and forward copies of all report cards received to the Court.
      2. The juvenile must have no further violations of the law.
      3. The juvenile must have no drugs, alcohol or weapons in his possession.
      4. The juvenile is to abide by a 6:00 p.m. curfew on weekdays and a 7:00 p.m. curfew on weekends.
      5. The juvenile is not to associate with anyone his mother disapproves of.
      6. The juvenile is to cooperate and complete the conditions of OJJ [Louisiana Department of Public Safety and Corrections, Youth Service, Office of Juvenile Justice], [Emphasis in original.]

      . La. C.E. art. 801 D(l)(a), as quoted above, was enacted by Acts 2004, No. 694, § 1, and was in effect at the time of K.M.’s adjudication hearing.

      . In Rankin, the court opined that the amendment appears to have been intended to address cases of domestic violence "which are among the most fertile grounds for non-cooperative non party witnesses.” 42,412 at p. 7, 965 So.2d at 950-51. See Beloof and Shapiro, Let The Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statement as Substantive Evidence, 11 Colum. J. Gender & L. 1 (2002). Thus, since the 2004 amendment, while prior inconsistent statements are admissible for purposes of attacking a witness’ credibility under La. C.E. art. 607 D(2), they are also admissible for their assertive value pursuant to La. C.E. art. 801 D(l)(a), provided they meet the broad definition of non-hearsay statements.

      . Pursuant to La. Ch.C. art 104, "[w]here procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with ... [t]he Code of Criminal Procedure in a delinquency proceeding.

      . A review under the Jackson standard is made on "all of the evidence.” Jackson, 443 U.S. at 319,"99 S.Ct. 2781. See also Lockhart v. Nelson, 488 U.S. 33, 39-41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)(all evidence includes evidence erroneously admitted). Under this standard, inadmissible evidence erroneously admitted is considered in a challenge to the sufficiency of evidence even if, had it been properly excluded, the remaining evidence would have been insufficient for a finding of guilt beyond a reasonable doubt. State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . This "clearly wrong” standard is broader than the constitutional minimum standard of review granted by Jackson, which standard must be satisfied for either an adult conviction or a juvenile adjudication in order to fulfill the Due Process requirement of the Fourth Amendment. State in the Interest of D.R., 10-0405, p. 14, 50 So.3d at 935-36.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Julius CELESTAIN, Doraela Banks.
    No. 2013-KA-1262.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant/Julius Celestain.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant/Doraella Banks.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

hDoraella Banks (“Ms. Banks”) and her codefendant, Julius Celestain (“Mr. Celes-tain”) appeal their conviction and sentence of distribution of cocaine in violation of La. R.S. 40:967(A)(1). Counsel for Mr. Celes-tain filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) requesting a review for errors patent and granting of his motion to withdraw. On appellate review, we find two patent errors as to Mr. Celestain’s sentencing including: (1) the trial court’s failure to observe the twenty-four hour delay mandated by La. C.Cr.P. art. 873; and (2) the trial court’s failure to indicate that his sentence was to be served “without benefit of parole, probation, or suspension of sentence.” Pursuant to Louisiana jurisprudence, however, we find reversal is not required. Therefore, we grant counsel’s motion to withdraw and affirm Mr. Celestain’s conviction and sentence. Additionally, Ms. Banks assigns 12as errors that the evidence is insufficient to uphold her conviction and that the trial court imposed an excessive sentence. We find the evidence presented to the jury is sufficient to uphold Ms. Banks’ conviction. We also find that Ms. Banks’ sentence was not excessive in that her sentence was well-within the sentencing range and there was adequate factual basis for the sentence imposed. Accordingly, we also affirm the conviction and sentence of Ms. Banks.

PROCEDURAL HISTORY

In October 2011, Ms. Banks and Mr. Celestain were charged by bill of information with one count of distribution of cocaine, a violation of La. R.S. 40:967(A)(1). In March 2012, a preliminary hearing was held in addition to a hearing on both defendants’ motions to suppress evidence. The trial court denied the motions and found probable cause to substantiate the charges. At the conclusion of a two-day trial in October 2012, a jury found both defendants guilty of one count of distribution of cocaine. Mr. Celestain was sentenced to three years in the Department of Corrections with one year suspended and credit for time served with a special condition that Mr. Celestain participate in the Blue Waters Substance Abuse Program. Ms. Banks was sentenced to seven years and six months in the Department of Corrections, with three years and six months suspended and credit for time served. The trial court further ordered that following Ms. Banks serving the executory portion of her sentence, she was to be placed on probation and ordered to pay $1,000.00 to the “Criminal Court Fund.”

|sMr. Celestain filed a motion for post-verdict judgment of acquittal and Ms. Banks filed a motion for new trial, or in the alternative, a motion for post-judgment verdict of acquittal or a finding of guilty of a lesser included offense. The trial court denied the motions at the sentencing hearing. Additionally the State filed a multiple bill as to Mr. Celestain. In April 2013, Mr. Celestain filed a motion for downward departure from the statutory minimum as to the multiple bill. Mr. Celestain and Ms. Banks filed motions for appeal which the trial court granted; their timely appeal follows.

FACTUAL BACKGROUND

The following factual background is based on the State’s testifying officers as neither Mr. Celestain nor Ms. Banks called any witnesses at trial.

Detective Glenn Washington’s Testimony

In early October 2011, Detective Glenn Washington (“Detective Washington”), an eight-year veteran of the New Orleans Police Department (“NOPD”) and a member of the Fourth District Task Force, was working in an undercover capacity, traveling southbound on St. Ann Street in New Orleans when he observed a male who was later identified as Julius Celestain. Detective Washington initiated contact with Mr. Celestain, asking whether he knew where he could purchase any “hard” (a street term for crack cocaine). Mr. Celestain indicated he did, and entered the passenger side of the vehicle. Detective |4Washington continued down St. Ann Street towards Broad Street while negotiating with Mr. Celestain to purchase forty dollars’ worth of crack cocaine. Mr. Celes-tain spoke with a male on his cellular phone and directed Detective Washington to a location at the corner of St. Peter and Dorgenois Streets.

After Detective Washington parked near the corner, Mr. Celestain exited the vehicle and walked into a “location”; however, Detective Washington could not see which “location” Mr. Celestain entered. About two minutes later, Mr. Celestain returned to the vehicle and indicated that he was unsuccessful in purchasing crack cocaine at that location. Mr. Celestain then directed Detective Washington to a location under Interstate 10 at the intersection of Claiborne Avenue and St. Philip Street.

After parking under the interstate, Mr. Celestain exited the vehicle and walked southbound. He began speaking with another individual in a maroon Chevrolet Impala with Texas plates that was positioned about fifteen to twenty feet away from Detective Washington’s surveillance vehicle. Detective Washington observed Mr. Celestain through the back window of his vehicle, and although he could not identify the individual in the Impala, Detective Washington testified that the individual was later arrested and identified as Dora-ella Banks. A few minutes later, Detective Washington observed Mr. Celestain extend his hand inside the driver’s side window of the Impala, close his hand immediately thereafter, and proceeded directly back to the surveillance vehicle. As Mr. Celestain walked back to Detective Washington’s vehicle, he did not put the hand he had placed inside the | Jmpala into his pocket or up to his mouth. Mr. Celestain entered the passenger side of the vehicle and handed Detective Washington “several off-white rocklike objects” which he “immediately recognized ... to be consistent with crack cocaine.” Mr. Celestain advised the detective that the person in the car was his “girl” and that “[he] got [the crack] from her” and that “[s]he’s sitting in the ear [that Mr. Celestain approached].”

Detective Washington testified that he handed Mr. Celestain two NOPD Expense Fund twenty-dollar bills, which he accepted. Before exiting the vehicle, Mr. Celes-tain asked Detective Washington for one of the pieces of crack cocaine, and Detective Washington refused. Mr. Celestain then walked back to the Impala, and Detective Washington could “clearly” see the two twenty-dollar bills in his hand. Detective Washington testified that Mr. Celestain walked to the driver door of the Impala, extended his hand into the driver’s side window, and removed his hand, at which time Detective Washington could no longer see the money in his hand.

Thereafter, Mr. Celestain returned to the detective’s vehicle and again requested one of the pieces of crack cocaine that Detective Washington purchased. The detective testified that instead he gave Mr. Celestain a five-dollar bill. Immediately after, an individual who had been standing near the passenger door of the detective’s surveillance vehicle approached and said something to Mr. Celestain that Detective Washington could not hear. In response to the individual, Mr. Celestain said, “I see him.” Right after Mr. Celestain exited the vehicle, |fiDetective Washington observed the NOPD takedown units arrive at the scene and he remained in the area where Mr. Celestain was detained to positively identify him as the person from whom he purchased the crack cocaine.

After identifying Mr. Celestain, the detective drove away from the scene to a prearranged location for testing of the contraband by Detective Mike Dalferes (“Detective Dalferes”), who found it positive for the presence of cocaine. In addition to the crack cocaine, fifty dollars in cash was confiscated from Ms. Banks, and two twenty-dollar bills matched the bills from the NOPD Expense Fund that were photocopied before the transaction. In addition, Detective Washington testified that nineteen dollars in cash was confiscated from Mr. Celestain, and a five-dollar bill included in the confiscated money matched the money from the NOPD Expense Fund.

Moreover, Detective Washington confirmed that the surveillance vehicle he drove the day of the incident had operating video and audio equipment that was used to record his conversations with Mr. Celestain. He also testified that Detective Derek Burke (“Detective Burke”) was following him in another surveillance vehicle for safety reasons and was listening to the conversation. A DVD recording of the events in the interior of the car was admitted into evidence and played for the jury.

17Petective Derek Burke’s Testimony

Detective Burke, employed by the NOPD for twenty-one years, fourteen of which were with the Major Case Narcotics Unit, was assigned to follow and observe Detective Washington’s surveillance vehicle. Detective Burke testified that his unmarked police vehicle was equipped with an audio device with which he could listen to the audio from Detective Washington’s vehicle. He first observed Mr. Celestain as he entered the front passenger seat of Detective Washington’s vehicle at the intersection of St. Ann and North Dupre Street. He next observed Detective Washington and Mr. Celestain stop at the intersection of North Dorgenois and St. Peter Street, at which time Mr. Celestain exited the vehicle and then returned to the vehicle. Detective Burke was aware that the narcotics transaction was not yet completed because he did not receive the prearranged signal from Detective Washington. Detective Burke observed the surveillance vehicle drive down St. Philip Street towards Claiborne Avenue before stopping.

Detective Burke testified that when Detective Washington’s vehicle stopped underneath the interstate, he parked his unmarked police car under the interstate also. From his unobstructed view, Detective Burke observed Mr. Celestain exit the passenger seat and approach a maroon Impala. He testified that no other individuals entered or exited the Impala during his observation. He then observed Mr. Celestain return to the surveillance vehicle and remained for a few minutes. Detective Washington gave the prearranged signal that the narcotics transaction |¿was complete. At that time, Detective Burke directed the takedown units into the area via police radio, instructing the units to arrest Mr. Celestain and Ms. Banks. Officer Louis Faust’s Testimony

Officer Louis Faust (“Officer Faust”), a twelve-year NOPD veteran, participated in the narcotics investigation. On the date in question, Officer Faust was assigned to the Special Operations Division as a member of the SWAT team and takedown unit. Officer Faust testified that he received a call that his unit was to stop a “female in a red vehicle that was at the intersection of ... [St. Philip and Claiborne].” Arriving at the scene, Officer Faust observed a vehicle matching the description and asked the female inside the vehicle to step out, at which time he placed her in handcuffs. Officer Faust testified that no other individuals were in the maroon vehicle, nor did he see anyone enter or exit the vehicle.

Additionally, Officer Faust testified that fifty dollars was recovered from Ms. Banks’ front right pocket during the search incident to arrest, and fourteen dollars in cash was recovered from Mr. Celes-tain.

ERRORS PATENT AS TO MR. CELESTAIN

Counsel for Mr. Celestain filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) requesting a review for errors patent and a motion to withdraw. Mr. Celestain’s counsel represents that “[t]here were very few objections by Mr. Celestain during trial and none which adversely affected his right to a fair trial.” Counsel further admits |a“[t]he evidence of [Mr. Celestain’s] guilt was first-hand testimony of the undercover officer which was substantiated by the video/audio recording of the transaction.” On appellate review, we find that counsel for Mr. Celestain complied with the requirements of State v. Benjamin, 573 So.2d 528, 529 (La.App. 4th Cir.1990) (noting that “if counsel finds [the] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.”) (quoting Anders v. California, 87 S.Ct. at 1400).

Pursuant to State v. Benjamin, counsel for Mr. Celestain performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. A review of the record evidences two errors patent with respect to Mr. Celestain. However, those errors do not require reversal. Mr. Celestain was present and represented by counsel at arraignment, during trial, and at sentencing, and the record evidences that he received “diligent advocacy” from counsel. See State v. Payne, 08-1557, p. 8 (La.App. 4 Cir. 7/1/09), 16 So.3d 517, 523. The State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Celestain was guilty of the crime of distribution of cocaine. Accordingly, an independent review of the record evidences no non-frivolous issue for appeal with respect to Mr. Celes-tain. See State v. Scott, 08-0399, p. 3 (La.App. 4 Cir. 6/25/08), 988 So.2d 784, 786.

With regard to errors patent, a review of the record evidences that the trial court sentenced Mr. Celestain less than twenty-four hours after denying his motion |infor new trial. Thus, the trial court erred in failing to observe the twenty-four hour delay required by La.C.Cr.P. art. 873.

Pursuant to La.C.Cr.P. art. 873, a twenty-four hour delay between a denial of a motion for new trial and sentencing is required unless the delay is waived by the defendant:

La.C.Cr.P. art. 873 expressly requires a twenty-four hour delay between the denial of both a motion for new trial and a motion in arrest of judgment. In [State v.] Wilson, [404 So.2d 968 (La.1981) ], this court held that a trial court’s failure to delay sentencing for at least twenty-four hours after denying a motion for a new trial or after denying a motion for post-verdict judgment of acquittal should be treated analogously
Under La.C.Cr.P. art. 873, if a motion for new trial or motion in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is denied, unless the defendant “expressly” waives the delay or pleads guilty. It is well-settled that a defendant may implicitly waive the twenty-four hour delay. See State v. Pierre, 99-3156, p. 7 (La.App. 4 Cir. 7/25/01), 792 So.2d 899, 903 (implicit waiver where defense counsel responds in the affirmative when trial court inquires if he is ready for sentencing).

State v. Green, 10-0791, p. 20-21 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 586.

However, “[t]he failure to observe the twenty-four hour delay mandated by article 873 is harmless where the defendant does not complain of his sentence on appeal.” State v. Augustine, 13-0397, p. 22 (La.App. 4 Cir. 1/22/14), 133 So.3d 148, 161 (citing State v. Duncan, 11-0563, p. 8 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 511; State v. Green, 10-1355, p. 12 (La.App. 4 Cir. 6/22/11), 69 So.3d 695, 703). Additionally, “[t]his court has also held that the failure to observe the twenty-four delay provided for by La.C.Cr.P. art. 873 is harmless error when a sufficient delay between the date of conviction and the date of sentencing exists; where there is no 11 indication that the sentence was hurriedly imposed; and when there is no argument or showing of actual prejudice by the failure to observe the delay.” Augustine, 13-0397, p. 22-23, 133 So.3d at 161 (citing State v. Stovall, 07-0343, p. 12 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1082; State v. Sam, 99-0300, p. 8 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 78).

In this case, because Mr. Celestain does not complain of his sentence on appeal, but only seeks a patent error review, the error is harmless. See State v. Wheeler, 04-0953, p. 8-9 (La.App. 4 Cir. 3/9/05), 899 So.2d 84, 89; see also State v. Hampton, 13-0580, p. 2, n. 3 (La.App. 4 Cir. 2/19/14), 136 So.3d 240, 243.

Finally, when sentencing Mr. Celestain, the trial court failed to indicate that Mr. Celestain’s sentence was to be served “with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence.” La. R.S. 40:967(B)(4)(b). However, this patent error is self-correcting, as “those restrictions automatically are contained in the sentences whether or not imposed by the sentencing court.” State v. Dominick, 13-0121, p. 6 (La.App. 4 Cir. 11/20/13), 129 So.3d 782, 787 (citing La. R.S. 15:301.1(A)); State v. Wilson, 09-0304 (La.App. 4 Cir. 2/17/10), 68 So.3d 1031; State v. Hall, 02-1098, p. 7-8 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 495; State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Therefore, these errors do not require reversal.

ERRORS PATENT AS TO MS. BANKS

With regard to Ms. Banks, the trial court also failed to observe the twenty-four hour delay between the denial of Ms. Banks’ motion for new trial and | ^sentencing. However, in Ms. Banks’ case, the delay was implicitly waived. At the sentencing hearing, after the trial court denied Ms. Banks’ motions for new trial and for post-verdict judgment of acquittal or finding of a lesser-included offense, it reviewed correspondence from Ms. Banks’ family requesting leniency in sentencing. Thereafter, the trial court asked counsel for Ms. Banks if they were ready for sentencing to which counsel responded in the affirmative. Accordingly, because Ms. Banks implicitly waived the twenty-four hour delay in her acknowledgment that she was ready for sentencing, the error is harmless. See Green, 10-0791, p. 20-21, 84 So.3d at 586 (recognizing that “[i]t is well-settled that a defendant may implicitly waive the twenty-four hour delay”) (citing State v. Pierre, 99-3156, p. 7 (La.App. 4 Cir. 7/25/01), 792 So.2d 899, 903).

The record demonstrates a second patent error in that Ms. Banks was not present at arraignment. “A patent error exists if the defendant was not present during this stage [arraignment] of the proceedings.” State v. Huffman, 480 So.2d 396, 398 (La.App. 4th Cir.1985). Arraignment was set for October 27, 2011, at which time defense counsel waived Ms. Banks’ presence. The matter was continued to November 9, 2011, and Ms. Banks failed to appear for arraignment on that date. Ms. Banks, however, has neither alleged nor shown prejudice from this failure to appear, nor did she object before proceeding to trial. Further, Ms. Banks’ counsel appeared on her behalf. Accordingly, this error is harmless.

Likewise, when sentencing Ms. Banks, the trial court failed to indicate that her sentence was to be served “with the first two years of said sentence being

11swithout the benefit of parole, probation, or suspension of sentence.” La. R.S. 40:967(B)(4)(b). This patent error is self-correcting, as “those restrictions automatically are contained in the sentences whether or not imposed by the sentencing court.” Dominick, 13-0121, p. 6, 129 So.3d at 787 (citing La. R.S. 15:301.1(A); Wilson, 09-0304, 68 So.3d at 1031). Accordingly, these errors do not require reversal.

SUFFICIENCY OF EVIDENCE

In Ms. Banks’ first assignment of error, she argues that the evidence is insufficient to uphold her conviction. This Court stated in State v. Collins, 10-1181, p. 3 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, 270-71:

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When circumstantial evidence is used to prove the commission of the offense, La.Rev.Stat. 15:438 requires 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.” This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Likewise, in our determination of whether there is sufficient evidence to support a conviction, “we are not called upon to decide whether we believe the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Labat, 12-1210, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 665, 667 (citing State v. Smith, 600 So.2d 1319, 1324 (La.1992)). A single witness’ testimony, if | Hbelieved by the fact finder, is sufficient to support a conviction. Id. (citing State v. Wells, 10-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306). A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. Id. (citing State v. James, 09-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996). Further, the Louisiana Supreme Court has recognized that in cases involving circumstantial evidence, if jurors reject a defendant’s hypothesis of innocence, the defendant is guilty unless there is another hypothesis establishing a reasonable doubt of the defendant’s guilt. State v. Smith, 12-2358, p. 6-7 (La.12/10/13), 130 So.3d 874, 878. On appellate review, the trier of fact is called upon to make certain factual findings, whose “discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” Id., 12-2358, p. 7, 130 So.3d at 878 (citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988)). As the Louisiana Supreme Court stated, “[we] accord due deference ‘to the good sense and fair-mindedness of jurors who have heard the evidence.’ ” Id. (citing State v. Jarman, 445 So.2d 1184, 1188 (La.1984)).

Ms. Banks submits to this Court other hypotheses that establish a reasonable doubt as to her guilt. Specifically, Ms. Banks avers that Detective Washington did not know whether Mr. Celestain was in possession of crack cocaine prior to approaching Ms. Banks’ vehicle. She suggests that Mr. Celestain “may have wanted to make it seem as if he was having difficulty getting crack [cocaine] in the hope that [Detective] Washington would reward him more graciously for his | ^efforts.” Likewise, Ms. Banks claims that because Detective Washington could only see Mr. Celestain’s hand placed in and out of the car window, [t]he possibility exists that the small amount of crack cocaine was already in Mr. Celestain’s hand when he put his hand through the window. Ms. Banks goes on to note that the police did not find her to be in possession of crack cocaine or a large amount of currency. Finally, Ms. Banks avers she is not seen on the video recording nor heard on the audio recording of the transaction, and that none of the officers overheard her selling crack to Mr. Celestain.

The trial transcript indicates that Detective Washington testified that Mr. Celestain did not put his hand in his pocket or near his mouth as he walked from the maroon Impala back to the surveillance vehicle to deliver the crack cocaine to Detective Washington. The detective also testified that after receiving the crack cocaine, he handed Mr. Celestain the two twenty-dollar bills from the NOPD Expense Fund. Detective Washington observed Mr. Celestain deliver the currency, which he could see in Mr. Celestain’s hand, to the driver of the maroon Impala. He also observed that when Mr. Celestain removed his hand from inside the Impala, he no longer saw the currency in Mr. Celes-tain’s hand.

Additionally, Detective Washington testified that his view of Mr. Celestain through the window during the transaction was unobstructed and that he was positioned fifteen to twenty feet away from the maroon Impala. Both Detective Washington and Detective Burke testified that no other individual was seen in the maroon Impala, nor was any other individual observed entering or exiting the | símpala. Mr. Celestain advised Detective Washington that the person in the car was his “girl,” that “[he] got [the crack cocaine] from her,” and that “[sjhe’s sitting in the car [that Mr. Celestain approached].” The money receipt signed by Ms. Banks wherein she acknowledged the two twenty-dollar bills from the NOPD Expense Fund as her property was also introduced into evidence.

Considering the foregoing, although the evidence presented to the jury was circumstantial, the evidence was sufficient to establish beyond a reasonable doubt that Ms. Banks knowingly or intentionally distributed cocaine. “When a case rests primarily on circumstantial evidence and jurors reasonably reject the hypothesis of innocence advanced by the defendant, ‘that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.’ ” Smith, 12-2358, p. 6-7, 130 So.3d at 878. We find no such hypothesis in this case; and therefore, this assignment of error lacks merit.

EXCESSIVE SENTENCE

In Ms. Banks’ second assignment of error, she argues that the trial court imposed an excessive sentence. This Court previously set out the standard of review for an excessive sentence:

In State v. Landry, 20031671 pp. 4-5 (La.App. 4th Cir. 3/31/04) 871 So.2d 1235, 1239, the Court set forth a standard of review for excessive sentencing claims:
La. Const, art. I, § 20 explicitly prohibit excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App. 4th Cir. 4/15/98), 715 So.2d 457, 461. However, theJjjpenalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676. 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. Baxley, 94-2982 at p. 10, 656 So.2d at 979.
As articulated in State v. Stanfield, 10-0854, p. 6-7 (La.App. 4th Cir. 1/19/11) 56 So.3d 428, 430, in reviewing a claim that a sentence is excessive the appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C. Cr. Proc. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181,189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184,185.

State v. Ray, 10-1126, p. 10-11 (La.App. 4 Cir. 6/29/11), 70 So.3d 998,1005.

In this case, the statutory range for violation of La. R.S. 40:967(A)(1), distribution of cocaine, is two to thirty years. See La. R.S. 40:967(B)(4)(b). Ms. Banks received a sentence of seven years and six months in the Department of Corrections, with all but four years suspended. Although Ms. Banks has no prior criminal history, considering that Ms. Banks was facing up to thirty years, the sentence imposed is not grossly disproportionate to the offense. Additionally, for the reasons discussed relative to the sufficiency of evidence, the trial court had an adequate factual basis for the sentence imposed. Ms. Banks contends that the only mitigating factor considered by the trial court was that she was a first offender. 118However, “[w]here the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1.” Stanfield, 10-0854, p. 4, 56 So.Sd at 431. Likewise, the sentencing transcript indicates that the trial court reviewed the correspondence submitted on behalf of Ms. Banks and took it into consideration before sentencing.

Ms. Banks also asserts that the trial court should have considered that only a small amount of cocaine was involved. This Court has recognized that “[tjwenty-year sentences for distribution of cocaine have been found to be excessive where the amount of cocaine involved is small.” State v. Rogers, 01-2139, p. 5 (La.App. 4 Cir. 3/6/02), 812 So.2d 809, 813-15 (footnote omitted) (citing State v. Gordon, 444 So.2d 1188, 1191 (La.1984)). In this case, however, Ms. Banks’ sentence was much less than twenty years.

In State v. Stewart, 01-0976, p. 7 (La.App. 4 Cir. 11/21/01), 803 So.2d 120, 124, this Court recognized that “Louisiana courts have affirmed sentences of eight years for two counts of attempted distribution of cocaine, State v. Young, 34,534 (La.App. 2 Cir. 5/9/01), 786 So.2d 228, and of seven and one-half years for attempted distribution, State v. Smith, 97-2221 (La.App. 4 Cir. 4/7/99), 734 So.2d 826.” The defendant in Stewart was charged with one count of distribution of cocaine, and a jury found him guilty of the responsive verdict of attempted distribution of cocaine. Id., 01-0976, p. 1, 803 So.2d at 121.

The trial court sentenced the defendant to serve seven years at hard labor, with credit for time served but without the benefit of probation, parole, or ] 19suspension of sentence. Id. In sentencing the defendant, the trial court “considered that the defendant had been referred to a diversionary program for a 1996 arrest for possession of cocaine,” “other previous arrests for battery, disturbing the peace, criminal trespass, and public drunkenness,” and the conviction for attempted distribution of cocaine “was the defendant’s first felony conviction.” Id., 01-0976, p. 8, 803 So.2d at 125. On appeal, this Court found the seven-year sentence not excessive. Id. In view of Ms. Banks’ conviction for distribution of cocaine, not attempted distribution of cocaine, her sentence of seven years and six months, with three years and six months suspended, is not excessive.

Finally, Ms. Banks’ contention that her sentence is disproportionate to that of her co-defendant Mr. Celestain, who has a lengthier criminal history, lacks merit. The Louisiana Supreme Court recognizes that “as a general rule, the fact that a co-defendant has received a more lenient sentence does not necessarily indicate that the penalty imposed on the defendant is excessive.” State v. Tate, 01-1658, p. 26 (La.5/20/03), 851 So.2d 921 (citing State v. Day, 414 So.2d 349, 352 (La.1982)). Accordingly, we find that the trial court did not abuse its discretion in imposing Ms. Banks’ sentence. This assignment of error is without merit.

DECREE

Based on the foregoing reasons, we grant counsel for Mr. Celestain’s motion to withdraw and affirm the convictions and sentences as to both Mr. Celestain and Ms. Banks.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Although the crime of distribution of cocaine is a violation of La. R.S. 40:967(A)(1), the record consistently references the penalty provision of the statute, La.R.S.40:967(B)(l). The bill of information charged Ms. Banks and Mr. Celestain with distribution of cocaine and were found guilty of the same without reference to a specific provision of the statute. This Court has determined that the consistent reference in the record to the incorrect statutory provision “is not grounds for reversal.” State v. Gayden, 13-0105, p. 9 (La.App. 4 Cir. 1/22/14), 133 So.3d 173, 179 (citing La. C.Cr.P. art. 464).

      . According to Mr. Celestain’s appellate brief, a hearing on the multiple bill was pending at the time of briefing, and a ruling is still pending. If Mr. Celestain is ultimately adjudicated and sentenced as a multiple offender, that sentence will be docketed as a separate appeal with this Court.

      . At trial there was contradictory testimony regarding the amount of money confiscated from Mr. Celestain.

      . Mr. Celestain raises no assignments of error in this instant appeal, requesting only a review for errors patent.