source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael Wayne JONES.
    Nos. 12-624, 12-625.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2012.

      Beth S. Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Michael Wayne Jones.
    Michael Harson, District Attorney, Fifteenth Judicial District, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this criminal case, Defendant, Michael Wayne Jones, appeals his habitual offender adjudication and sentence. He alleges insufficiency of the evidence relative to his two predicate burglary offenses and excessive habitual offender sentence. For the following reasons, we affirm Defendant’s convictions on the predicate burglary offenses and vacate his habitual offender sentence due to error patent.

FACTS AND PROCEDURAL HISTORY

On August 20, 2009, Dr. Stephen Goo-deaux arrived at his veterinary clinic in Scott, Louisiana, and discovered that someone had broken a window near the door and gained entry to the clinic. He also noticed that the steering column of the company truck, which was parked outside the clinic, had been destroyed. The perpetrator left behind blood evidence inside the clinic that was eventually linked to Defendant. Investigating officers secured a search warrant for Defendant’s DNA and confirmed that he was the perpetrator. In a recorded statement, Defendant confessed to breaking into the veterinary clinic and to damaging the truck in an attempt to drive it home.

Defendant was charged with two counts of simple burglary. Following a two-day jury trial, Defendant was found guilty on both counts.

The State then filed a habitual offender bill against Defendant, charging him as a fourth felony offender. Defendant was sentenced on his original simple burglary convictions to twelve years at hard labor on each count, to run concurrently with each other. Thereafter, Defendant was adjudicated a fourth felony offender; his previous sentence was vacated; and, he was sentenced to life | ¡imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

ERRORS PATENT

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

In docket number 127278, for each of the two counts of simple burglary, Defendant was sentenced to serve twelve years at hard labor, to run concurrently. The State filed a habitual offender bill under docket number 138793, seeking to have Defendant declared a fourth felony offender and sentenced to life imprisonment. The habitual offender bill listed only a single conviction of simple burglary under docket number 127273. Defendant denied the allegations of the bill, and a habitual offender proceeding was held. At the start of the hearing, the prosecutor, in giving the procedural history of the case, noted that Defendant was convicted of two counts of simple burglary in docket number 127273. After evidence was presented, the court vacated the previous sentence that it imposed and imposed a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

A review of the habitual offender bill and the subsequent habitual offender proceeding reveals that only one of the simple burglary sentences was enhanced. Consequently, we find that the trial court erred in failing to specify which one of Defendant’s two sentences it enhanced. In State v. Webster, 95-605, p. 9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630, this court addressed a sentencing issue similar to the one at issue in the present case:

|aBy these assignments of error, the defendant contends the trial court erred in failing to specify which of the four convictions was being enhanced at sentencing and in failing to sentence him on the additional three counts within a reasonable amount of time.
The defendant notes that the trial court did not specify which armed robbery conviction was being enhanced. Nor did the court sentence the defendant on the remaining three convictions. The defendant further contends the trial court should be divested of jurisdiction on the three remaining counts as he will not be sentenced on them within a reasonable amount of time.
We agree[ ] that the trial court erred in that the record does not reveal which of defendant’s four armed robbery convictions was being enhanced. Additionally, the trial court should have imposed a separate sentence on each of the three remaining convictions. Therefore, defendant’s sentence is indeterminate as he was convicted of four counts of armed robbery and only a single sentence was imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La. Code Crim.P. art. 879. Accordingly, defendant’s sentence will be vacated and the case remanded to the trial court for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining three counts. See State v. Parker, 593 So.2d 414 (La.App. 1 Cir.1991).

In State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, the defendant was convicted of two counts of armed robbery. On appeal, our brethren of the fifth circuit found patent error occurred when the trial court failed to specify which of the two sentences it intended to enhance:

The second patent error in the record is that the trial court erred in failing to specify which of defendant’s two sentences it intended to enhance pursuant to the habitual offender bill. The amended commitment also fails to indicate which of defendant’s sentences was enhanced. Because defendant’s two convictions arose from a single criminal episode, only one could be enhanced. State ex rel. Porter v. Butler, 573 So.2d 1106, 1108 (La.1991). It is the opinion of this Court that the we must vacate the habitual offender sentence and remand the case to the trial court for re-sentencing, with the instruction that the trial court specify which of defendant’s two sentences are to be enhanced. See State v. Stack, 97-1176, (La.App. 5th Cir.4/15/98), 710 So.2d 841, 845. Furthermore, in reference to the sentencing, this Court notes that the amended commitment incorrectly states that the defendant was convicted on Count 1 and Count 2 of the bill of information rather than the correct Count 1 and Count 3. This must be corrected upon re-sentencing.

\Jd. at 165.

Additionally, in State v. Elie, 10-1494 (La.App. 3 Cir. 10/5/11), 74 So.3d 1216, writ denied, 11-2786 (La.4/13/12), 85 So.3d 1246, this court remanded the case for resentencing due to the defendant’s absence from sentencing, an assigned error. On error patent review, this court noted:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find one such error. Although the trial court acknowledged that there were two counts, it appears it enhanced only one of Defendant’s sentences at the habitual offender proceeding for possession of a firearm by a convicted felon. For reasons provided below, we remand this matter to the trial court for resen-tencing, at which time the trial court must specify which of Defendant’s two convictions is being enhanced. State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161; and State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.

Id. at 1219.

Considering the foregoing jurisprudence, we are required to vacate Defendant’s habitual offender sentence, remand the matter to the trial court for resentenc-ing, and order the trial court to specify which of Defendant’s two burglary sentences is being enhanced and which original sentence is being vacated.

ASSIGNMENTS OF ERROR

Defendant presents the following three assignments of error on appeal:

I. The evidence was insufficient to convict Mr. Jones because the State failed to prove that Mr. Jones possessed the specific intent necessary in light of the direct testimony of Mr. Jones that his intoxicated and drugged state prevented him from forming the specific intent necessary to commit simple burglary.
II. In the alternative, the State failed to prove Mr. Jones committed the offense of simple burglary of the vehicle because the State 1,Jailed to prove that Mr. Jones specifically intended to commit a felony “therein.”
III. The mandatory life sentence is unconstitutionally excessive under the facts of this case.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant argues that the evidence was insufficient to convict him because the State failed to prove he possessed the specific intent necessary to commit simple burglary of the veterinary clinic and vehicle. Defendant contends that his intoxicated and drugged state is a defense to specific intent, an essential element of simple burglary.

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86.

Simple burglary is defined as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60 [aggravated burglary].” La. R.S. 14:62(A). This court in State v. Bias, 10-1440, p. 13 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, 408, writ denied, 11-1063 (La.11/14/11), 75 So.3d 939, referred to an analysis for an intoxication defense |fipromulgated in State v. Wilson, 44,586, 44,737, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, 215, writ denied, 09-2655 (La.1/28/11), 56 So.3d 973:

Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. La. R.S. 14:15(2). The defendant has the burden of proving the existence of that condition at the time of the offense. The specific legal question is not when the requisite specific intent was formed, but rather whether, at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. State v. Davenport, 08-468 (La.App. 5th Cir. 11/25/08), 2 So.3d 445; State v. Godbolt, 2006-0609 (La.App. 1st Cir. 11/3/06), 950 So.2d 727. When circumstances exist that intoxication could have precluded specific intent, the burden shifts to the state to show beyond a reasonable doubt that specific intent was present. Whether intoxication is sufficient to negate specific intent is a question for the trier of fact. State v. Davenport, supra.

See also State ex rel. D.D., 11-1384 (La.App. 3 Cir. 3/7/12), 86 So.3d 171.

In its opposition, the State asserts that Defendant did not raise the defense of intoxication at trial. The record reflects, however, that in closing argument, defense counsel urged the jury to consider Defendant’s intoxicated and drugged state as a defense to the element of specific intent. Additionally, with regard to specific intent, the trial court instructed the jury to consider the defense of intoxication as follows:

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
The fact that a defendant was in an intoxicated condition at the time of the commission of the crime is usually not a defense. However, where the circumstances indicate that the defendant voluntarily became intoxicated or drugged and that his intoxicated condition precluded the presence of a specific criminal intent required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
Voluntary intoxication is a defense to the charge of simple burglary only if the circumstances indicate that it has precluded the 17presence of specific criminal intent. The specific legal question is not whether the requisite specific intent was formed but, rather, whether at the time the unauthorized entry occurred the defendant was so intoxicated as to preclude the existence of any criminal — any specific intent on his part to commit a theft or felony therein.

A review of the record herein indicates that there were no eyewitnesses to the offenses. Dr. Goodeaux testified that on August 20, 2009, he discovered that someone had broken into his veterinary clinic. The window to the left of the front door had been knocked out. Dr. Goodeaux also observed credit card receipts in the driveway outside the clinic which had been removed from a drawer located inside the clinic. After the police had secured the building, Dr. Goodeaux went through the building and confirmed that none of the pharmaceuticals were missing. Glass from the window was scattered around the front room, and blood spots were observed throughout the clinic. The drawers in the front desk appeared as though someone had rummaged through them; they were left open. Dr. Goodeaux also testified about a truck he had purchased for his veterinary practice that was parked in front of the clinic; he had not yet started using the truck. The steering column of the truck had been destroyed.

On cross-examination, Dr. Goodeaux indicated that some things were missing from the front drawer, including stamps, pocket change, and a prescription belonging to his secretary. He stated that he learned about the missing stamps from his secretary.

Amy Miller, Dr. Goodeaux’s veterinary assistant, testified that when she arrived at work on August 20, 2009, she observed that a window had been smashed in and that someone had invaded the building. Ms. Miller saw blood on the floor and throughout the clinic and noticed that someone had gone through the drawers in the both the secretary’s office and Dr. Goodeaux’s office. A binder in which clients’ credit card receipts were stored was found outside the clinic in a ditch. |rMs. Miller also stated that the truck parked outside was damaged after she left work the previous day.

On cross-examination, Ms. Miller explained that she shared the front desk with the secretary. A tray was missing that contained stamps, loose change, and things of that nature. She was not certain, however, of the exact time the secretary’s prescription went missing, only that it was not there when she arrived that morning.

Sergeant Gary Nezat, with the City of Scott Police Department, testified that when he arrived at the scene, he recovered a stone found at the base of the broken window; the stone had blood on it. He also observed blood on the fabric window blind and on a bloody rag inside the window. Once inside the building, Sergeant Nezat did not see anything out of the ordinary or that appeared to be disturbed. He stated that the steering column on the truck parked at the clinic had been “busted.”

Sergeant Nezat submitted into evidence several swabs of blood that were collected at the scene, along with the bloody rag. On cross-examination, Sergeant Nezat confirmed that he wrote in his report, “After the inventory of the business by personnel, no property had appeared to be missing.”

Detective Durand Hebert, with the City of Scott Police Department, testified that he photographed the broken window of the office, the blood droplets throughout the building, and the damaged truck parked outside the building. Detective Hebert identified photographs of the secretary’s chair with blood on it, the desk with opened drawers, the wooden desk top and counter top with blood on them, and the damaged steering column and ignition of the truck. Based on his experience, Detective Hebert believed that the truck had been tampered with in an attempt to start it without the keys.

|sThe biological material collected at the crime scene was submitted to be analyzed and compared to the CODIS (Combined DNA Index System). The blood samples were subsequently matched to Defendant. Detective Hebert then obtained a search warrant to secure biological material from Defendant to compare and either confirm or eliminate him as a suspect. Defendant was interviewed on April 9, 2010, after he waived his Miranda rights. Detective Hebert testified that Defendant did not appear intoxicated, and he freely and voluntarily answered the questions. Detective Hebert did not tell Defendant about specific facts of the offenses; Defendant volunteered the facts heard on the recorded statement. An audio recording of Defendant’s interview was played for the jury.

In his recorded statement, Defendant indicated he was drunk and had smoked crack cocaine prior to the commission of the offenses. Although he did not remember the time he committed the offenses, he recalled that he was alone. He could also remember some of the details of the offenses. Defendant stated that he first tried to break the front window of the veterinary clinic by kicking it. He then took what may have been a brick, threw it through the window, reached through the broken window, and opened the door. Defendant testified that once he realized what he was doing, he left the building. When Detective Hebert informed him that his blood was found on the counters and drawers of the clinic, Defendant then admitted that he had rummaged through the desk drawers. He maintained, however, that he was searching for a Band-Aid for his bleeding hand. Defendant reiterated that he was under the influence of alcohol and crack cocaine and did not know what happened.

With regard to the truck, Defendant recalled that the door to the truck was “open,” and he looked inside for a Band-Aid. He then found a screwdriver on the floorboard of the truck and unsuccessfully tried to turn the ignition with 1 mscrewdriver. Defendant stated that he intended to drive the truck home if it would have the started. When the truck did not start, he headed home on foot and later hitch-hiked a ride to his home.

Bethany Harris, a DNA analyst at the Acadian Crime Lab, testified that a DNA profile was developed from one of the swabs entered into a database. The DNA profile matched another DNA profile, that of Defendant, already in the database. After Defendant was located, a reference sample was obtained from him to confirm that the DNA from the crime scene belonged to him. The profile obtained from the reference was the same profile obtained from the evidence sample. To a reasonable degree of scientific certainty, Ms. Harris stated that Defendant was in fact the source of the DNA profile obtained from the blood on the swab collected at the scene. The report issued by the crime lab was offered into evidence.

In closing arguments, defense counsel raised the possibility of Defendant’s intoxication and drugged state as a defense for simple burglary. However, the only evidence introduced at trial that Defendant was intoxicated and/or under the influence of drugs was his recorded statement taken almost eight months after the offenses. Also, Defendant was able to recall details of the offenses that had not been shared with him by police prior to his statement. As noted by this court in State ex rel. D.D., 86 So.3d at 178:

A defendant’s voluntary intoxication may be asserted as a defense “where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime.” La. R.S. 14:15(2). “It is, however, an affirmative defense, and the burden is on defendant to prove by a preponderance of the evidence that he was in fact intoxicated at the time of the offense.” State v. Mack, 45,552, p. 3 (La.App. 2 Cir. 8/11/10), 46 So.3d 801, 803. See also State v. Bias, 10-1440 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, writ denied, 11-1063 (La.11/14/11), 75 So.3d 939.

InWithout any additional evidence of Defendant’s intoxication or drug use at the time of the offenses, combined with his ability to recall specific details about the offenses, we find that he did not prove by a preponderance of the evidence that he was so intoxicated or under the influence of drugs at the time of the offenses in order to preclude specific intent on his part to commit a theft or felony while inside the veterinary clinic and vehicle. As such, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In the alternative, Defendant argues that the State failed to prove he committed simple burglary of the vehicle. Defendant contends that the State did not prove he specifically intended to commit a felony after entering the truck because he did not take anything of value from inside the truck. Defendant concedes that he tried to use the truck to drive home.

Dr. Goodeaux’s testimony reflects that the steering column of the truck was destroyed, which is consistent with Detective Hebert’s opinion that the perpetrator tried to start the truck without keys. However, no testimony or evidence was introduced to show that Defendant took anything of value from inside the truck. Accordingly, Defendant contends that the taking or using a truck without authorization constitutes a felony; it does not constitute a felony or theft therein or inside the vehicle.

Defendant acknowledges that in State v. Craig, 32,209 (La.App. 2 Cir. 8/18/99), 747 So.2d 604, the court held that the defendant found trying to steal a vehicle could be convicted of simple burglary and that the theft of an entire movable constituted a theft therein. In reaching this conclusion, the court stated:

A violation of La. R.S. 14:62, simple burglary, occurs when a person enters into a structure (a vehicle is explicitly included) without authority and with the specific intent to commit a felony or theft | Ti,therein. State v. Robinson, 29,-488 (La.App. 2d Cir. 06/18/97), 697 So.2d 607; State v. Mitchell, 96-207 (La.App. 3d Cir. 10/09/96), 684 So.2d 6. Simple burglary has substantial inchoate or incomplete elements, i.e., an unauthorized entering of a vehicle with the intent to commit a theft therein. If the intent is present, an actual theft does not have to be consummated. In this respect, simple burglary is also an attempted theft.
Whether an actor is charged with attempted theft or simple burglary is within the discretion of the prosecuting authority. That the prosecution could have chosen to charge defendant with attempted theft is of no moment. It is not unusual that an accused’s conduct falls within the definition of more than one criminal statute with significant differences in penalties. The district attorney has the sole discretion to choose under which law he will prosecute. See United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); La. R.S. 14:4; La.C.Cr.P. art. 61; State v. Walters, 440 So.2d 115 (La.1983); State v. Flores, 27,736 (La.App. 2d Cir. 02/28/96), 669 So.2d 646.
... While defendant poses an interesting question, i.e., whether the theft or attempted theft of an entire movable constitutes a theft therein, the fact remains that if someone is inside a vehicle attempting to steal that vehicle, his intent is to commit a theft therein, not only of the contents but of the vehicle itself. See State v. Augustus, 93-406 (La.App. 5th Cir. 02/23/94), 633 So.2d 783; State v. Pierce, 450 So.2d 730 (La.App. 5th Cir.1984).

Id. at 606.

Defendant stresses that since the 1999 Craig decision, La.R.S. 14:67.26 was enacted, clearly defining theft of a motor vehicle. Section A of La.R.S. 14:67.26 reads, in pertinent part, as follows:

Theft of a motor vehicle is the intentional performance of any of the following acts:
(1) The taking of a motor vehicle, which belongs to another, either without the owner’s consent or by means of fraudulent conduct, practices, or representations, with the intention to permanently deprive the owner of the motor vehicle; or
11S(2) The taking control of a motor vehicle that is lost or misdelivered under circumstances which provide a means of inquiry as to the true owner, and the person in control of the motor vehicle does not make reasonable efforts to notify or locate the true owner; or
(3) The taking control of a motor vehicle when the person knows or should have known that the motor vehicle has been stolen.

Defendant also points out that the legislature specifically defined the unauthorized use of a motor vehicle as a separate and distinct offense in La.R.S. 14:68.4(A), which reads, “Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” By these specific enactments, Defendant maintains that the legislature clearly intended for the unauthorized use or the taking of a vehicle to be prosecuted under one of these provisions rather than simple burglary. Defendant concludes that the element of simple burglary, the specific intent to commit a felony or theft therein, does not apply when the intent is to take or use a vehicle without authorization.

Prior to Craig, this court in State v. Morris, 614 So.2d 180, 184 (La.App. 3 Cir.1993), found that, “When defendant crawled into the cab of the truck with the intent to commit a theft of the truck or any of its parts, or with the intent to commit a felony, such as unauthorized use of a movable, he was committing simple burglary.” In addition to his lack of authority or the owner’s consent to enter or use the truck, the court found the fact that the defendant immediately started the truck, drove it off a car lot, and sought the help of another person to hide the truck established that he entered the truck with the intent to commit a theft or other felony.

The record herein reflects that Defendant did not take anything of value from inside the truck but, instead, damaged the steering column of the vehicle in an 114attempt to take the truck. In State v. Wilson, 26 So.3d at 215, the court stated:

Although intent to commit a burglary is a question of fact, it need not be proved as a fact. It may be inferred from the circumstances. State v. Robinson, 29,488 (La.App.2d Cir.6/18/97), 697 So.2d 607, writ denied, 1997-1845 (La.12/12/97), 704 So.2d 1200. A taking is not required. State v. Wright, 36,635 (La.App.2d Cir.3/7/03), 840 So.2d 1271. Displacement of the victim’s possessions may be indicative of the specific intent to commit a theft. State v. Bell, [42,394 (La.App. 2 Cir. 12/5/07), 972 So.2d 1207]; State v. Wright, supra.

Similarly, the court in State v. Jones, 97-2591, p. 8 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169, writ denied, 99-3141 (La.4/7/00), 759 So.2d 91, explained, “The essence of burglary ... is an unauthorized entry with criminal intent; a taking is not required.” Considering this court’s ruling in State v. Morris, 614 So.2d 180, and the related jurisprudence, we find that the elements of simple burglary of the vehicle herein were proven by the State at trial; thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, Defendant argues that his mandatory life sentence is unconstitutionally excessive under the facts of this case. In light of the fact that we vacate Defendant’s habitual offender sentence due to an error patent, this assignment of error is rendered moot.

DISPOSITION

Defendant’s burglary convictions are affirmed. His habitual offender sentence is vacated, and the matter is remanded for resentencing with the trial court being ordered to specify which of Defendant’s two burglary sentences is being enhanced and which original sentence is being vacated.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED FOR RE-SENTENCING WITH INSTRUCTIONS.

      . The trial court did not designate which burglary sentence was vacated, which is addressed below as an error patent.

      . We note that at the time of the Webster and Clennon opinions, it was permissible to enhance only one of multiple convictions arising out of a single criminal episode. However, the supreme court has since held that La.R.S. 15:529.1 does not prohibit enhancing multiple sentences obtained the same date arising out of a single criminal episode. State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233.

      . Louisiana Revised Statutes 14:67.26 was added by 2008 La. Acts No. 633, § 1 and amended by 2010 La. Acts. No. 585, § 1.


author: DECUIR, Judge.

text:
    Cassandra CHARK v. THOMPSON HEALTH SERVICES, INC.
    No. 12-692.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2012.
    Angella H. Myers, Mark C. Carver, The Myers Law Group, L.L.P., New Orleans, LA, for Defendant/Appellee, Thompson Health Services, Inc.
    Tamara S. Battles, Attorney at Law, Alexandria, LA, for Plaintiff/App ellant, Cassandra Chark.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

L Cassandra Chark sued Thompson Health Services, Inc. for employment discrimination and wrongful termination after she was discharged from her job as a home health nurse. After a year-long discovery dispute, the trial court dismissed Chark’s suit and held both Chark and her attorney responsible for paying costs and attorney fees to Thompson. Chark appeals. For the following reasons, we affirm.

PROCEDURAL HISTORY

The procedural history of this case is lengthy. Chark filed suit against Thompson in January of 2010. Thompson propounded interrogatories and requests for production of documents in November of 2010. Chark neither objected nor responded to the discovery requests, and Thompson filed a motion to compel on June 6, 2011. Two days before the hearing, Chark responded, but Thompson considered the answers incomplete and insufficient. Chark did not oppose the motion or submit any evidence on her own behalf. The discovery responses have not been made a part of the record. The trial court granted Thompson’s motion to compel, ordered Chark to fully respond to the discovery requests within fifteen days, and ordered Chark to pay costs and attorney fees. That ruling was not appealed and is now final.

In the weeks following the trial court’s discovery order, Chark failed to supplement her discovery responses and paid no portion of the $2,700.00 assessed in fees and costs. She did, however, submit for her deposition, at which time she freely admitted to having the medical and tax records sought by the defense, stating, “I should have brought everything I had today. ... [I]f I’d have brought all that stuff, you wouldn’t — I started to bring all that.” Nevertheless, Chark failed to produce the requested documents or supplement her discovery responses.

|;>On November 21, 2011, Thompson moved for sanctions and contempt. Chark sought a continuance of the hearing, which was denied, and she then provided some brief supplemental answers to interrogatories. Thompson was not satisfied and complained, for instance, that alleging $100,000.00 in back pay and $50,000.00 in front pay with no earnings records to support such figures, and given that Chark quickly found new employment, were arbitrary and baseless responses. Chark filed no formal opposition to the request for sanctions. A hearing was held on December 12, 2011 before Judge Donald Johnson. The trial court gave Chark until December 22, 2011 to fully comply -with the original order or be held in contempt. She and her attorney, Tamara Battles, were assessed an additional $2,700.00 in fees and costs to be paid within ninety days.

Chark immediately applied for a writ of review with this Court. In CW 12-169 (La.App. 8 Cir. 2/10/12), we denied the writ application, finding no abuse of discretion in the denial of a continuance and in the court’s reiteration of the original discovery order. This Court declined to address the order of sanctions against Chark and her counsel, finding an ordinary appeal will afford an adequate remedy. On February 16, 2012, Chark appealed the trial court’s ruling of December 12, 2011, which was set forth in a judgment dated January 9, 2012. That appeal has been given number 12-692 on the docket of this Court.

In the meantime, Thompson filed a second motion for sanctions on December 27, 2011, seeking dismissal of Chark’s suit because she had not complied with the trial court’s most recent order. Specifically, Thompson alleged Chark failed to produce the documents she previously admitted to possessing, she failed to supplement her answers by stating the factual basis for her alleged damages, and she failed to pay any portion of the $2,700.00 award. A hearing was held on February 13, 2012 before Judge John C. Davidson. Chark’s defense was | .¡simply that she had no medical or tax records and did not have the money to pay the judgment. The trial court ruled in favor of Thompson, dismissed Chark’s suit, and ordered the additional payment of $1,500.00 in fees and costs by Chark and Battles as solidary obligors. The trial court’s judgment, dated February 17, 2012, was appealed by Chark and has been assigned number 12-749 on the docket of the Court. The two appeals have been consolidated for our review, and we render a separate decree under each docket number.

ANALYSIS

The two records before us contain very little evidence. While the discovery requests are contained therein, the responses are not. The transcript of the August 2011 hearing on the motion to compel is not contained in the record, nor is the December 12 transcript of the first motion for sanctions. Chark did not file any formal opposition to those proceedings; hence, it is difficult to discern what, if any, defense was offered on either motion. Finally, in response to Thompson’s second motion for sanctions, Chark filed an opposition memorandum. She asserted that her discovery responses were adequate when combined with her deposition testimony. She signed authorizations for the defense to obtain her tax returns and medical bills. She also mentioned extenuating circumstances that led to the initial delay in responding, including a move from one residence to another and Battles’ maternity leave in 2011. The trial court was unpersuaded by these defenses.

Our review of the records reveal no manifest error in the judgments rendered by two different trial courts. We have before us: (1) a discovery order that is final; (2) a writ denial stating there is no error in a judgment reiterating that discovery order, imposing sanctions, and denying a continuance; (8) two awards of additional sanctions; and (4) the dismissal of the plaintiffs lawsuit. The records are devoid of any evidence that Chark made good faith efforts to comply with the orders of |4two trial courts. Instead, the records reflect a silent refusal to even attempt discovery responses or payment of sanctions.

While it is true the dismissal of Chark’s lawsuit is a serious and drastic sanction, we find it to be appropriate in this instance. Article 1471(A)(3) of the Louisiana Code of Civil Procedure provides for the dismissal of a plaintiffs suit when there has been a failure to comply with discovery orders. The Louisiana Supreme Court discussed the need for severe sanctions in Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 203, where the court stated: “Refusal to comply with court ordered discovery is a serious matter. Trial judges must have severe sanctions available to deter litigants from flouting discovery orders. [Citations omitted.]” Relying on Horton, which cited federal jurisprudence emanating from Federal Rule 37, similar to our Article 1471, this court explained:

Comparing the Louisiana rule for sanctioning a party who fails to comply with discovery with the Federal rule, the Horton court identified four factors appellate courts should consider when determining whether a trial court’s dismissal of a plaintiffs claims is an abuse of discretion:
(1) whether the violation was willful or resulted from inability to comply;
(2) whether less drastic sanctions would be effective;
(3) whether the violations prejudiced the opposing party’s trial preparation; and
|fi(4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.
Id. The court further observed that “[t]he record must support ‘a finding that the failure was due to ... wilfulness, bad faith, or fault’ ” before dismissal of a plaintiffs claims is appropriate. Id. quoting Allen v. Smith, 390 So.2d 1300, 1302 (La.1980).

Trahan v. State ex rel. Dept. of Health and Hospitals, 04-743, p. 4 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245, 1249-50.

It appears from the record that neither Chark nor Battles have taken the discovery orders of the trial court seriously. There is nothing in the record to indicate that Chark is unable to gather tax, employment, or medical records. Neither Chark nor Battles has offered even partial payment of the three attorney fee awards, and they have not inquired about paying periodically. Their refusal to provide employment and tax records renders the opposing party unable to value the case or prepare for trial. Chark and Battles’ lack of interest in this case begs for its dismissal. There is no other remedy adequate in this case.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Cassandra Chark.

We render a separate decree in the consolidated case of the same name and identified as 12-749 (La.App. 3 Cir. 12/5/12), 105 So.3d 259, on the docket of this Court.

AFFIRMED.

      . Art. 1471. Failure to comply with order compelling discovery; sanctions
      A. If a party or an officer, director, or managing agent of a party or a person designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:

      (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.


text:
    Cassandra CHARK v. THOMPSON HEALTH SERVICES, INC.
    No. 12-749.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2012.
    Angella H. Myers, Mark C. Carver, The Myers Law Group, L.L.P., New Orleans, LA, for Defendant/Appellee, Thompson Health Services, Inc.

      Tamara S. Battles, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Cassandra Chark.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

| TFor the reasons assigned in the consolidated case of Chark v. Thompson Health Services, Inc., 12-692 (La.App. 3 Cir. 12/5/12), 105 So.3d. 256, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Cassandra Chark.

AFFIRMED.


author: ROBERT A. CHAISSON, Judge.

text:
    Sandy SIDER-JEFFERY v. JEFFERSON PARISH PUBLIC SCHOOL SYSTEM.
    No. 12-CA-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.
    Rehearing Denied Jan. 18, 2013.

      William R. Mustian, III, Attorney at Law, Metairie, LA, for PlaintiffiAppellee.
    Shannon M. Frese, Wayne J. Fontana, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2In this worker’s compensation action, the Jefferson Parish School Board appeals from a judgment approving additional psychotherapy treatment for Sandy Sider-Jef-fery, and awarding her attorney fees. Ms. Sider-Jeffery has answered the appeal seeking additional attorney fees and penalties. For the following reasons, we vacate that portion of the judgment awarding attorney fees to claimant. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Ms. Sider-Jeffery was employed by the Jefferson Parish School Board to work with special education students. On November 6, 2008, she was assaulted by one of the students on a school bus and received injuries to her neck and back. She also claimed that she had received mental injuries during the incident. She sought treatment for this latter condition from Dr. Jirina Fiala, a psychologist, and Dr. Frederic Henderson, a psychiatrist. In September of 2009, Dr. Henderson diagnosed claimant with post-traumatic stress disorder (PTSD), major depression and chronic pain disorder, and he referred her to Dr. Fiala for psychotherapy. lsDr. Fiala generally agreed with Dr. Henderson’s diagnosis, and recommended psychotherapy.

The School Board has continuously paid for treatment by Dr. Henderson. Although it initially paid for Dr. Fiala’s psychotherapy treatments, it soon questioned the need for these treatments. It therefore sought a second medical opinion from Dr. Rennie Culver, a psychiatrist. Dr. Culver was of the opinion that claimant did not suffer from PTSD. He noted that claimant’s worker’s compensation benefits were equivalent to her full salary, and thus there was an element of secondary gain in the formation and maintenance of her symptoms. He concluded that “if she is treated for PTSD, at best the treatment will do her little if any good and at worst it will reinforce her symptom formation.” His initial opinion was based on his review of only a part of the medical record, but he later stated that when he had subsequently reviewed the entire record, his opinion remained the same.

Because of the disagreement about the need for continued psychotherapy treatment, the School Board requested an independent medical examination (IME) pursuant to La. R.S. 23:1123. Ms. Sider-Jeffery filed an objection to the IME. After a hearing on May 14, 2010, the Office of Workers’ Compensation (OWC) judge selected Dr. Harold Ginzberg, a psychiatrist, to perform an IME. For reasons which do not appear of record, the OWC judge limited the scope of Dr. Ginzberg’s examination to two issues: “1) condition (diagnosis) and 2) capacity of claimant to return to work from a psychiatric standpoint.” This doctor reviewed all of the pertinent medical records and conducted an examination lasting several hours.

Dr. Ginzberg generally agreed with Dr. Culver that “the clinical picture, as documented during this clinical evaluation, fails to support a diagnosis of major Ldepressive disorder or posttraumatic disorder.” He noted that the issue of secondary gain, i.e., the fact that claimant was receiving her full salary, was probably implicated. He stated that “the more psychotherapy that Ms. Sider-Jeffery receives, the more she will continue to believe that, because she will never be the way she was before the assault, she will never return to employment.” His ultimate conclusion was that “[tjhere is no psychiatric contraindication to Ms. Sider-Jeffery’s returning to the workplace in a position consistent with her work experience, education and physical abilities. There is no reasonable expectation that Ms. Sider-Jeffery will return to the workplace until this Workers’ Compensation case is settled.”

On the basis of Dr. Ginzberg’s report, the School Board terminated payments for additional psychotherapy treatment. Ms. Sider-Jeffery sought relief with the Office of Workers’ Compensation. After a trial on the merits, the OWC judge ruled that the claimant was entitled to continuing payments for psychotherapy treatments, but that the School Board had not acted arbitrarily and capriciously in terminating payment for these treatments. Nonetheless, she awarded claimant $2,500 in attorney fees. The School Board now appeals urging that: 1) the OWC judge erred in limiting the scope of Dr. Ginzberg’s IME; 2) the OWC judge erred in failing to consider the opinion of Dr. Ginzberg with regard to the need for additional psychotherapy; 3) the OWC judge erred in granting claimant additional psychotherapy treatment; and 4) the OWC erred in awarding attorney fees and costs to the claimant. Claimant has answered the appeal seeking penalties and additional attorney fees for work done on appeal.

LAW AND ANALYSIS

In Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112, 117, the court stated:

| rJn worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the ‘manifest error-clearly wrong’ standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

As an initial matter, both the School Board and Ms. Sider-Jeffery have raised issues on appeal concerning the evaluation, opinion and report of Dr. Ginzberg. The School Board contends that the OWC judge erred in limiting the scope of Dr. Ginzberg’s IME. Ms. Sider-Jeffery contends that Dr. Ginzberg exceeded his mandate to address only claimant’s “condition (diagnosis)” and her ability “to return to work from a psychiatric standpoint.” She contends that portions of the doctor’s report improperly went to questions of the types of treatment which he deemed proper, and that the School Board’s reliance on these portions of the report in deciding to terminate payment for psychotherapy treatment was thereby tainted.

The School Board requested an IME pursuant to La. R.S. 23:1128 because of the differences of opinion between Dr. Henderson and Dr. Culver. Ms. Sider-Jeffery filed an objection to the IME with the OWC; therefore, a file was opened and assigned a docket number of 09-09314. After a hearing on May 14, 2010, the OWC judge selected Dr. Ginzberg to conduct the IME and issued a judgment limiting the scope of the IME. There is no indication in the record that the School |fiBoard, which now claims to be aggrieved by that judgment, sought any timely appellate review in that proceeding. Having failed to seek timely appellate review of the judgment limiting the scope of the IME, the School Board is precluded from now raising that issue in this appeal. See Hacienda Construction, Inc. v. Newman, 09-506 (La.App. 5 Cir. 11/24/09) 28 So.3d 490.

As to Ms. Sider-Jeffery’s contention that Dr. Ginzberg exceeded his mandate to address only claimant’s “condition (diagnosis)” and her ability “to return to work from a psychiatric standpoint,” we note that the substance of Dr. Ginzberg’s opinion was that the psychotherapy treatments did not appear directed toward returning her to the workplace, and were, to the contrary, reinforcing her belief that she cannot return to work. He also opined that were she “not going to re-enter the workplace this academic year, then medication management should be continued, but without psychotherapy, as the goal of psychotherapy should be to return her to the workplace.” These opinions and observations were directly related to the issue of her ability to return to work “from a psychiatric standpoint,” and were thus properly within the parameters of the IME as set forth in the appointment letter. Thus, they formed a proper and reasonable basis upon which the School Board relied in terminating payments for these treatments. We find no merit to claimant’s contentions to the contrary.

Having found that the opinion of Dr. Ginzberg was properly before the OWC judge, we now turn to the issue of whether the judge erred in awarding Ms. Sider-Jeffery additional psychotherapy treatment. Contrary to appellant’s contention that the OWC judge failed to consider the opinion of Dr. Ginzberg, the record indicates that the OWC judge found as matters of fact that the opinions of Drs. Henderson and Fiala, claimant’s treating physicians, were more credible than those of Drs. Culver and Ginzberg. She thus ruled that the psychotherapy | treatments were necessary and that the School Board must pay for them. These findings are clearly based on reasonable evaluations of the credibility of the various doctors. While this Court may have decided these issues differently had it been sitting as the trier of fact, we cannot say that the findings of the OWC judge are clearly wrong or manifestly erroneous. In this circumstance, we may not set aside these findings.

We must reach a similar result in regard to the factual finding that the School Board did not act arbitrarily and capriciously in terminating payments based on the report of Dr. Ginzberg. As noted herein, Dr. Ginzberg’s opinions were properly within the parameters of the IME and it was reasonable for the School Board to rely upon his report. In this Court’s opinion, the OWC judge’s finding that the termination of additional psychotherapy treatment was not arbitrary and capricious is reasonable on the entire record, and as such, it is not manifestly erroneous and cannot be set aside.

However, having made that ruling, we further find that the OWC judge committed legal error in imposing attorney fees on the School Board. Under La. R.S. 23:1201(1), when an employer terminates benefits, and such termination is deemed arbitrary, capricious, or without probable cause, attorney fees and penalties shall be awarded to the claimant. Where the employer has not acted arbitrarily and capriciously, attorney fees may not be awarded. Ocon v. Regency Motors of Metairie, L.L.C., 06-834 (La.App. 5 Cir. 4/11/07), 957 So.2d 816. We thus set aside the award of attorney fees. For the same reasons, we reject claimant’s argument that she is entitled to penalties, as well as additional attorney fees, for work done on appeal.

| ^CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation awarding attorney fees to claimant is vacated. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; VACATED IN PART

      . It was within the OWC judge's discretion to award costs to the claimant, and we do not disturb that award in this opinion.


author: SUSAN M. CHEHARDY, Judge. JOHNSON, J.,

text:
    STATE of Louisiana v. Monty MERRILL.
    No. 12-KA-576.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2012.
    Rehearing Denied Jan. 28, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Appellee, the State of Louisiana.
    Katherine M. Franks, Attorney at Law, Louisiana Appellant Project, Abita Springs, LA, for Appellant, Monty Merrill.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERTA. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

li>On appeal, defendant challenges the sufficiency of the evidence used to convict him of attempted possession of cocaine. For the following reasons, we affirm.

Facts and Procedural History

On May 1, 2010, officers from the Jefferson Parish Sheriffs Office (“JPSO”) executed a search and seizure warrant at 358 Metairie Heights in Metairie, Louisiana. Deputy James Matthews, “a canine handler,” was the first officer through the door during the execution. While he was in the process of securing the rooms on the first floor, Deputy Matthews heard voices from behind a closed door in the hallway. After he opened the door, Deputy Matthews observed two nude individuals in the bathroom — a woman sitting in the bathtub full of soapy water and a man sitting on the closed toilet seat. Officers later identified the woman as Kassandra Reed and the man as Monty Merrill, defendant herein. Officers allowed the individuals to clothe themselves then handcuffed and removed them from the bathroom.

13After the suspects were secured, Deputy Matthews entered the house with his specially trained, drug detection dog. When the dog was brought into the bathroom, it alerted that narcotics were present in the bathtub and in a small leather purse on the floor of the bathroom.

Sergeant Shane Klein of the JPSO was the supervisor of the team that executed the warrant. After advising the suspects of their rights, Sergeant Klein entered the bathroom and seized a syringe, a small plastic bag of off-white rocks, a razor blade, and two glass and metal pipes from the water in the bathtub. Further, officers also seized seven syringes, a glass and metal pipe, another razor blade, and another small plastic bag from a small leather bag that belonged to Reed and more than $600.00 in U.S. currency from the pocket of jeans that belonged to Reed. Deputy Matthews testified that he did not find defendant in possession of any narcotics, paraphernalia, or currency.

The defense called Kassandra Reed to testify at trial, but she was unavailable. The parties agreed by joint stipulation that if Reed was available to testify that she would testify pursuant to the Note of Evidence she provided to the court in August of 2011. At that proceeding, Reed testified that she was arrested for possession of paraphernalia and possession of crack cocaine on May 1, 2010, at 358 Metairie Heights in Metairie, Louisiana. She admitted that she pled guilty to both charges and was currently incarcerated for those convictions as well as others.

Reed stated that, on May 1, 2010, she had just injected herself with heroin before the raid began so she did not have a good recollection of the events surrounding the raid. She said that defendant knew that she had a drug problem but that defendant did not know that she was using heroin in the bathroom that day. She explained that she and defendant were in a relationship limited to “sex binges” 14that occurred while she “self-medicated.” She stated that she had invited defendant to her friend’s house in Metairie but that he did not purchase, sort, or use any of the drugs found during the raid that day. The currency found in her pants pocket was money she earned as a prostitute. She further said that any narcotics and paraphernalia found in her purse belonged to her. She admitted that she tried to hide the drugs and paraphernalia that belonged to her in the soapy water of the bathtub.

On May 27, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Monty Merrill, with one count of possession of cocaine, in violation of La. R.S. 40:967(C). On April 3, 2012, the matter proceeded to trial before a six-person jury, who subsequently found defendant guilty of the responsive verdict of attempted possession of cocaine. On April 18, 2012, the trial judge sentenced defendant to one year imprisonment at hard labor, which was suspended. Defendant was placed on twelve months active probation, with special conditions. On May 1, 2012, defendant filed his motion for appeal, which was granted the following date. This appeal follows.

Law and Argument

In his sole assignment of error, defendant argues that the evidence was insufficient to sustain the State’s burden of proof of the charged offense. Defendant further argues, as he did in the trial court, that the trial judge erred in not granting the defense motion for a post verdict judgment of acquittal for two reasons: first, the State failed to prove that the substance seized from the bathroom was cocaine, and, second, Mr. Merrill had neither direct nor constructive | ¡^possession of the alleged contraband or the paraphernalia. Defendant argues that the trial judge improperly relied upon the Harris case to deny his motion for post verdict judgment of acquittal because Harris is inapposite.

The State responds that the evidence presented at trial is sufficient to support a finding that defendant knowingly and intentionally possessed cocaine, thereby supporting a conviction of the lesser included offense of attempted possession of cocaine. The State concedes that it inadvertently failed to offer scientific evidence that the substance seized from the bathtub contained cocaine but contends that the jury heard sufficient lay testimony and circumstantial evidence to find beyond a reasonable doubt that the substance was cocaine. The State contends that Reed’s testimony and the paraphernalia found indicate that the substance was cocaine.

Further, the State also concedes that defendant was not in actual physical possession of the cocaine at the time the officer entered the bathroom, but contends that the defendant’s guilty knowledge and intent to possess the cocaine can be inferred from defendant’s proximity to the drugs and to Reed in a very small bathroom. The State further contends that the jury’s rejection of Reed’s testimony that she was the sole owner of the cocaine is a credibility determination.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-609 (La.10/21/97); 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722. (1998); State v. Miller, 06-451 (La.App. 5 Cir. 10/31/06); 945 So.2d 773, 778.

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. This is not a separate test from the Jackson standard, but rather it provides a helpful basis for determining the existence of reasonable doubt. State v. McFarland, 07-26 (La.App. 5 Cir. 5/29/07); 960 So.2d 1142, 1146, writ denied, 07-1463 (La.1/7/08); 973 So.2d 731. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00); 772 So.2d 78, 83; State v. Wright, 10-577 (La.App. 5 Cir. 2/15/11); 61 So.3d 88, 96-97, writ denied, 11-0560 (La.9/30/11); 71 So.3d 283.

First, defendant contends that the State failed to prove the identity of the substance at issue. To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant knowingly possessed a controlled dangerous substance. State v. Murphy, 09-432 (La.App. 5 Cir. 11/24/09); 28 So.3d 496, 499, writ denied, 10-0016 (La.6/25/10); 38 So.3d 334. The identity of the drug is an essential element of the charged offense. Id.

17Although scientific evidence that identifies a controlled dangerous substance is beneficial, the Louisiana Supreme Court in State v. Harris, 02-1589 (La.5/20/03); 846 So.2d 709, 713, specifically held that the lack of scientific evidence does not warrant reversal. In State v. Murphy, 28 So.3d at 499, this Court followed Harris and the federal interpretation that the “ ‘government need not introduce scientific evidence to prove the identity of a substance ... as long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt.’ ” (quoting Harris, supra, and United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir.1990), cert. denied, 495 U.S. 939, 110 5.Ct. 2190, 109 L.Ed.2d 518 (1990)). This Court further noted that, “[identification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.” Murphy, 28 So.3d at 499-500 (quoting Harris, 846 So.2d at 714 (citation omitted)).

At trial, Deputy Matthews testified that his specially-trained, drug detection dog alerted to the presence of contraband in the bathtub and on the floor of the bathroom where the two suspects were found. Further, Sergeant Klein testified that he removed drug paraphernalia and a plastic bag with “two large pieces of crack cocaine ... from within the bathtub.” Moreover, Kassandra Reed testified that she had purchased crack cocaine that day, which she dumped into the bathtub when she heard the police in the house. Accordingly, even without the benefit of scientific evidence, we find that the State presented sufficient lay testimony and circumstantial evidence to allow a jury to identify beyond a reasonable doubt that the substance found in the bathroom was cocaine.

Next, defendant also contends that the State failed to prove that he possessed a controlled dangerous substance. In this case, defendant was charged with 18possession of cocaine, a violation of La. R.S. 40:967(C), but found guilty of attempted possession of cocaine, in violation of La. R.S. 14:27 and 40:967(0.

Evidence that would support a conviction of a charged offense would necessarily support a conviction of an authorized responsive verdict or lesser included offense. State v. Simmons, 01-0293 (La.5/14/02); 817 So.2d 16. Attempted possession of cocaine is an authorized responsive verdict to a charge of simple possession of cocaine. La.C.Cr.P. art. 814(50.1); State v. Sylvia, 01-1406 (La.4/9/03); 845 So.2d 358, 361. An appellate court will not reverse a jury’s return of a responsive verdict, whether or not supported by the evidence, as long as the evidence is sufficient to support a conviction for the charged offense. State v. Harris, 02-1589 (La.5/20/03); 846 So.2d 709, 712-13. The evidence must support either the responsive verdict returned or the crime charged. Id. at 715.

To convict an offender for possession of a controlled dangerous substance, the State must present evidence establishing beyond a reasonable doubt that the defendant was in possession of the substance and that he knowingly and intentionally possessed it. La. R.S. 40:967(C); State v. Toups, 01-1875 (La.10/15/02); 833 So.2d 910. Possession of cocaine is a general intent crime.

To convict an offender for attempted possession of a controlled dangerous substance, the State had to prove that the defendant had the specific intent to possess cocaine, and that defendant did, or omitted to do, an act tending directly toward possessing cocaine. State v. Segura, 02-280 (La.App. 5 Cir. 9/30/02); 829 So.2d 587, 590 writ denied, 02-2696 (La.3/28/03); 840 So.2d 569. Attempted possession of cocaine requires specific intent.

The element of possession maybe proven by showing that the defendant exercised either actual or constructive possession of the cocaine. State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09); 27 So.3d 935, 942, writ denied, 09-2485 (La.4/23/10); 34 So.3d 269. A person who is not in physical possession of a drug may have constructive possession when the drugs are under that person’s dominion or control. Id. A suspect can have constructive possession if he jointly possesses drugs with a companion, and if he willfully and knowingly shares with his companion the right to control the drugs. Id. Proximity to the drug, or association with the possessor, may establish a prima facie ease of possession when colored by other evidence. State v. Jones, 04-1258 (La.App. 5 Cir. 4/26/05); 902 So.2d 426, 431.

The question of possession hinges on the particular facts of each case. Factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area, (2) the defendant’s relations with the person found to be in actual possession, (3) the defendant’s access to the area where the drugs were found, (4) evidence of recent drug use by the defendant, (5) the existence of paraphernalia, and (6) evidence that the area was frequented by drug users. Henry, 27 So.3d at 942-43. However, the mere presence of a defendant in the area where a controlled dangerous substance is found or mere | ^association -with the person found in possession of the controlled dangerous substance is insufficient to constitute constructive possession. Id.

Here, Deputy Matthews testified that he found defendant and a woman in a small bathroom while executing a search warrant. When Deputy Matthews opened the bathroom door, he observed defendant sitting naked on top of the closed toilet seat. Deputy Matthews also observed Kassandra Reed sitting, naked, in a bathtub full of soapy water. Deputy Matthews did not immediately observe illegal drugs or paraphernalia when he opened the bathroom door. He also testified that he did not find illegal substances or contraband on the defendant’s person or in his clothes.

Deputy Matthews retrieved his specially-trained dog who alerted that illegal drugs were present in the bathroom. Eventually, officers seized cocaine from a plastic bag in the bathtub and a leather pouch on the bathroom floor. Further, drug paraphernalia was also found in the tub and in a leather pouch on the bathroom floor. Sergeant Klein testified that he learned from defendant that there was a “crack pipe” in the bathroom. Kassan-dra Reed testified that the illegal drugs and paraphernalia belonged to her and that defendant knew that Reed had a drug habit but did not purchase, use, or possess drugs or paraphernalia.

We have examined the evidence presented in light of the factors to be considered in determining whether this defendant exercised dominion and control sufficient to constitute constructive possession. First, the drugs were found in the bathtub where defendant’s “escort” girlfriend with a significant drug habit was bathing. Although he was not in the bathtub, he was sitting naked near the tub. Next, there was paraphernalia in the bathroom, which at least one police officer testified that defendant knew existed. On the other hand, there was no evidence that defendant had recently used drugs. Further, Reed stated that defendant had not been to this house before and did not frequent this house.

|T1The jury, which was presented by the defense with the hypothesis of innocence that the cocaine belonged exclusively to Reed and defendant had no knowledge of the cocaine, rejected that hypothesis by finding defendant guilty of attempted possession of the cocaine. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and, thereby, overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

Thus, although we might have reached a different conclusion, we will not overturn a verdict where, as here, a rational trier of fact could have found that the State presented evidence of the essential elements of possession of cocaine beyond a reasonable doubt. Accordingly, we affirm defendant’s conviction.

Errors patent

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. We find that defendant was not adequately advised of the prescriptive period for applying for post-conviction relief as required by La.C.Cr.P. art. 980.8. Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922. See State v. Neely, 08-707, p. 9 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463, pp. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

AFFIRMED

JOHNSON, J., dissents.

JOHNSON, J.,

dissents with reasons.

|TI, respectfully, dissent from the majority opinion in the finding that there was sufficient evidence to convict Defendant, Monty Merrill, of attempted possession of cocaine. After examining the factors set forth in State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09); 27 So.3d 935, 942, writ denied, 09-2485 (La.4/23/10); 34 So.3d 269, and the facts of this case, I am of the opinion there was insufficient evidence presented at trial to prove Defendant had constructive possession of the cocaine found in the bathroom.

Kassandra Reed, the female found in the bathroom with Defendant, provided an un-controverted account of the events occurring on the day in question. Ms. Reed testified: 1) Defendant went into the bathroom where she was and sat down after the police officers arrived at the door of the house; 2) the drugs and the paraphernalia found in the bathroom belonged to her, not Defendant; 3) Defendant did not know any drugs were present; and 4) Defendant did not know the owner of the house and did not frequent the house. Moreover, Deputy James Matthews, one of the officers executing the search warrant, testified: 1) Defendant was naked and sitting on top of the toilet with the lid closed when he entered the bathroom; 2) the bathroom was “not big at all;” and 3) Defendant was not in physical possession of any narcotics, drug paraphernalia or currency. Additionally, there was no admissible evidence presented from either Deputy Matthews or Sergeant |?Shane Klein that Defendant knew any drug paraphernalia was present in the bathroom. Furthermore, there was no evidence presented that Defendant had any recent drug usage.

When considering the testimony presented to the jury, in light of the Henry factors, the evidence presented only shows Defendant was merely in the presence of the cocaine belonging to Ms. Reed when the officers found him in the bathroom. The mere presence of a defendant in the area where a controlled dangerous substance is found or mere association with the person found in possession of the controlled dangerous substance is insufficient to constitute constructive possession. Henry, 08-658; 27 So.3d at 942-43. Ultimately, the State did not prove beyond a reasonable doubt that Defendant attempted to possess cocaine, and the jury did not have sufficient evidence to convict him of that crime.

For the foregoing reasons, I would reverse Monty Merrill’s conviction of attempted possession of cocaine.

      . According to Deputy Matthews, one could also hear humming under the water in the bathtub.

      . Sergeant Klein also removed a "sex toy,” which was still vibrating, from the bathtub.

      . The trial court imposed conditions of probation, including court costs of $480.50, Commissioner’s Fee of $100.00, Intensive Probation Drug Court fee of $150.00, and supervision fees as assessed by the Probation and Parole Department. Further, the trial court imposed 50 hours of community service to be completed within 12 months, in lieu of a fine.

      . On appeal, defendant raises the same argument that he presented in his motion for post verdict judgment of acquittal, which is that the evidence presented by the State was insufficient to support his conviction of attempted possession of cocaine. The question of sufficiency of the evidence is properly raised by a motion for post verdict judgment of acquittal. See La.C.Cr.P. art. 821; State v. Hampton, 98-0331 (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. Bazley, 09-358 (La.App. 5 Cir. 1/11/11); 60 So.3d 7, 18, writ denied, 11-0282 (La.6/17/11); 63 So.3d 1039. 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. C.Cr.P. art. 821(B).

        .State v. Harris, 02-1589 (La.5/20/03); 846 So.2d 709.

      . 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).

      . Specific criminal intent exists "when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1); Jones, 902 So.2d at 432. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Jones, 902 So.2d at 432. The fact-finder may draw reasonable inferences to support these contentions based upon the evidence presented at trial. Id.