author: MOORE, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Jorge Luis ANAYA-ESPINO, Appellant.
    No. 48,025-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.

      J. Antonio Florence, for Appellant.
    Charles Rex Scott, II, District Attorney, George Winston, III, Colin Clark, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

| defendant, Jorge Luis Anaya-Espino, was charged by bill of information with operating a vehicle without lawful presence in the United States, a violation of La. R.S. 14:100.13. He filed a motion to quash the bill of information on grounds that federal immigration law preempts La. R.S. 14:100.13; that the statute is unconstitutionally vague, overbroad, and violates due process by shifting the burden of persuasion of an essential element of the offense to the defendant, namely, by requiring him to prove that he is lawfully in the United States.

The trial court denied the motion to quash after a hearing, argument and briefs were submitted. We granted the defendant’s supervisory writ application in part, remanding the case to the trial court with instructions to reconsider the motion in light of Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Finding that the Arizona state law and facts in Arizona v. United States were distinguishable from the instant facts and law in this case, the trial court again denied the defendant’s motion on the same grounds. We granted the writ to docket the matter for briefing and oral argument. For the reasons that follow, we grant the defendant’s application, reverse the trial court’s ruling on the motion to quash, and dismiss the charge against the defendant.

Facts

On Sunday, October 23, 2011, Officer Lita Hopkins, a patrol officer of the Greenwood Police Department, received a telephone call from an off-duty officer of the department, Officer Ainsworth. Officer Ainsworth reported that he was then driving south on Hwy. 169 behind a blue SUV and ^observing a child standing up in the back seat of the vehicle without a seatbelt. Officer Hopkins immediately left the department building and drove to Hwy. 169 to intercept the vehicle. While driving south on Hwy. 169, Officer Hopkins passed the northbound, blue Chevrolet Blazer. She turned around and got behind the Blazer. She testified that she observed several children standing in the back seat of the vehicle without seatbelts.

Officer Hopkins initiated a traffic stop. She asked the driver, later identified as the defendant, Jorge Luis Anaya-Espino, if he spoke English, and he responded “a little.” She asked him for his driver’s license. The defendant presented Officer Hopkins with a Mexican identification card that had a Shreveport address. Two deputies from the Caddo Parish Sheriffs Office, Deputies Smalley and Foster, arrived at the scene during the stop. Not recognizing the ID, Officer Hopkins showed the deputies the ID card presented to her by the defendant. They also stated they had never seen a card like the one presented. Deputy Smalley asked the defendant to step out of the vehicle. According to Officer Hopkins’ police report, Deputy Smalley asked the defendant if he was in the United States legally, and the defendant stated “no.” The defendant was placed under arrest for operating a vehicle without proof of his lawful presence in the U.S.

Officer Hopkins spoke with the defendant’s wife, who was a front-seat passenger in the vehicle, and explained to her why her husband was being arrested. Mrs. Christy Anaya spoke English and stated that they were in the process of getting her husband’s paperwork done to make him “legal” in the U.S. She blamed herself for letting her husband drive the vehicle. |sOfficer Hopkins did not write citations for the children not being in seat-belts.

The defendant was then taken to the Caddo Correctional Center and booked for violation of La. R.S. 14:100.13, operating a vehicle without lawful presence in the U.S.

Procedural History

As noted, the state charged defendant by bill of information with operating a vehicle without lawful presence in the U.S., R.S. 14:100.13. Counsel filed a motion to quash on grounds that federal immigration law preempts the state statute and that R.S. 14:100.13 is unconstitutional. At the hearing on the motion, Officer Lita Hopkins was the sole witness to testify. The court requested the parties submit briefs. It ultimately rendered judgment denying the motion with written reasons.

In its written reasons, the court noted that the state legislature’s purpose in enacting La. R.S. 14:100.13 was to complement and enhance federal efforts to uncover those who seek to use the highways of this state to commit acts of terror and who seek to gain driver’s licenses or identification cards for the purpose of masking their illegal status in the state. The court reviewed the state’s appellate jurisprudence, noting that the Fourth Circuit in State v. Lopez, 2005-0685 (La.App. 4 Cir. 12/20/06), 948 So.2d 1121, held that La. R.S. 14:100.13 A conflicted with federal immigration law because it “places a burden on both legal and non-legal aliens which exceeds any standard contemplated by federal immigration law.”

|4On the other hand, the court cited several cases from the First Circuit holding that R.S. 14:100.13 is not preempted by federal law because the statute “does not involve a state determination of who should be admitted into the country or the conditions under which a legal entrant may remain.” State v. Reyes, 2007-1181 (La.App. 1 Cir, 2/27/08), 989 So.2d 770, 776, writ denied, 2008-2013 (La.12/18/09), 23 So.3d 929. The First Circuit has concluded that the statute does not conflict with federal immigration law, and in fact, “implements the aims and goals of the federal REAL ID Act as well as those of federal immigration law in general.” State v. Ramos, 2007-1448 (La.App. 1 Cir. 7/28/08), 993 So.2d 281, 288, writ denied, 2008-2103 (La.12/18/09), 23 So.3d 929.

Following the First Circuit’s line of jurisprudence, the court held that federal immigration law does not preempt R.S. 14:100.13, that the state has the authority to regulate public roads and highways, and that R.S. 14:100.13 constituted a valid exercise of the state’s police power.

The defendant applied to this court for a writ of review. We granted the writ in part, remanding to the trial court with instructions to reconsider its opinion in light of the June 25, 2012, decision of the United States Supreme Court in Arizona v. United States, supra.

[sAfter reviewing Arizona v. United States, supra, the court denied the motion to quash with written reasons affirming its previous ruling. The court distinguished the parts of the Arizona statute under scrutiny, namely Section 3 of S.B. 1070, which made failure to comply with federal alien registration requirements a state misdemeanor, and Section 5(C) of the same bill, which made it a misdemeanor for an unauthorized alien to seek or engage in employment in the state. By contrast, the court noted that La. R.S. 14:100.13 makes it a felony offense for an alien to operate a motor vehicle in the state without documentation reflecting his legal presence in the U.S. Because the offense is triggered by the operation of a motor vehicle by an undocumented alien, it concluded that the statute regulates the use of state public roads and highways, not immigration. Consequently, the court concluded that, unlike the Arizona statute, federal law does not preempt La. R.S. 14:100.13.

In his application for a writ of review, the defendant raises three assignments of error in the trial court’s ruling on the motion to quash: (1) the trial court erred in concluding that R.S. 14:100.13 is not preempted by federal law; (2) the trial court erred in determining that R.S. 14:100.13 enhances federal immigration law; and, (3) the trial court erred in concluding that R.S. 14:100.13 regulates the use of state public roads and highways— not immigration.

We granted the defendant’s writ application for docketing and oral argument.

| (¡Discussion

La. R.S. 14:100.13 reads:

A. No alien student or nonresident alien shall operate a motor vehicle in the state -without documentation demonstrating that the person is lawfully present in the United States.
B. Upon arrest of a person for operating a vehicle without lawful presence in the United States, law enforcement officials shall seize the driver’s license and immediately surrender such license to the office of motor vehicles for cancellation and shall immediately notify the INS of the name and location of the person.
C. Whoever commits the crime of driving without lawful presence in the United States shall be fined not more than one thousand dollars, imprisoned for not more than one year, with or without hard labor, or both.

R.S. 14:100.13 was enacted by 2002 La. Acts, 1st Ex.Sess., No. 46, § 1, known as the “Prevention of Terrorism on the Highways Act.” As part of the act, the legislature enacted La. R.S. 14:100.11, which set forth the following findings of the legislature and the purpose of La. R.S. 14:100.12, et seq.:

A. The legislature finds that the devastating consequences of the barbaric attacks on September 11, 2001 on the World Trade Center and the Pentagon as well as the pervasive bomb threats and biological terrorism in various parts of the country were committed for the purposes of demoralizing and destabilizing our society and creating a climate of fear. These heinous deeds designed to kill, maim, and strike terror into the hearts of innocent citizens of this country cannot be tolerated, nor can those less violent acts to the infrastructure of our state which are designed to intimidate, confuse and disrupt everyday commerce and the delivery of goods and services to the populace be permitted.
B. The legislature further finds that it is imperative that state laws be enacted to complement federal efforts to uncover those who seek to use the highways of this state to commit acts of terror and who seek to gain drivers’ licenses or identification cards for the purposes of masking them illegal status in this 17state. Accordingly, the legislature finds that state law must be strengthened with a comprehensive framework for punishing those who give false information in order to obtain drivers’ licenses or identification cards from the office of motor vehicles of the Department of Public Safety and Corrections, to limit the issuance of such documentation to correspond to the time limits placed by the federal Immigration and Naturalization Service on documentation, and to make operating a motor vehicle in this state when not lawfully present in the United States a crime.

Standard of Review

The interpretation of a statute is a question of law. Reynolds v. U.S. Agencies Cas. Ins. Co., 41,598 (La.App. 2 Cir. 11/1/06), 942 So.2d 694; Hand v. City of New Orleans, 2004-0845 (La.App. 4 Cir. 12/22/04), 892 So.2d 609, writ denied, 2005-0143 (La.4/1/05), 897 So.2d 603. A trial court’s decision on a question of law is reviewed by this court de novo. Dowles v. Conagra, Inc., 43,074 (La.App. 2 Cir. 3/26/08), 980 So.2d 180.

In his first assignment of error, Anaya-Espino argues that La. R.S. 14:100.13 is preempted by federal law under the United States Supreme Court rulings in the recently decided Arizona v. United States, supra. In that case, the supreme court struck down several sections of an Arizona statute enacted in 2010, S.B. 1070. Section 3 of S.B. 1070 made failure to comply with federal alien registration requirements a state misdemeanor; Section 5(C) made it a misdemeanor for an unauthorized alien to seek or engage in work in the state; Section 6 authorized state and local officers to arrest without a warrant any person whom the officer had probable cause to believe has committed any public offense that makes the person removable from the United States; and, Section 2(B) required officers conducting a stop, detention or arrest to make efforts in some circumstances to verify the |Rperson’s immigration status with the federal government. All but Section 2(B) were preempted by federal law.

Anaya-Espino contends that Louisiana’s R.S. 14:100.13 is similar to Section 3 of the Arizona statute because it requires persons to carry and present proof to a police officer of their lawful presence in the United States, and it allows police officers to arrest a person for suspicion of being an illegal immigrant. The defendant also contends that La. R.S. 14:100.13 is preempted by federal law under the test set forth by the Court in DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), because Congress has expressed its intent to regulate the immigration status of persons inside the United States.

Additionally, the defendant claims that, like Section 5(C) of the Arizona statute, which was also struck down, the Louisiana statute undermines federal immigration law because it penalizes an illegal immigrant more harshly than the federal alien registration statute, 8 U.S.C. § 1304(E). Anaya-Espino points out that the Court stated in Arizona v. U.S., supra, that Congress has left “no room for States to regulate” in the field of alien registration.

Anaya-Espino contends that, rather than simply allowing state officers to conduct an immigration status check during the course of a lawful detention, which the Supreme Court in Arizona indicated would likely survive preemption, R.S. 14:100.13 criminalizes, as a felony offense, a detained person’s failure to demonstrate lawful presence in the United States. R.S. 14:100.13 is not a law merely regulating the use of state public |3roads and highways, he argues. It requires a detained person to provide documentation pertaining to his right to be in the United States rather than simply his right to lawfully drive on state roads or highways. He cites State v. Lopez, 2005-0685, (La.App. 4 Cir. 12/20/06), 948 So.2d 1121, writ denied, 2007-0110 (La.12/7/07), 969 So.2d 619, which held that R.S. 14:100.13 was preempted by the federal REAL ID Act because it placed a burden on both legal and non-legal aliens alike, namely to carry proof of their legal status, which exceeded any standard contemplated by federal immigration law.

Defending the constitutionality of the statute, the state argues that La. R.S. 14:100.13 does not regulate immigration, but regulates the roads under the long-held right reserved to the state under its police powers. Seven Louisiana appellate cases, all from the First Circuit, have determined that La. R.S. 14:100.13 is not preempted by federal law, and the state notes that the Louisiana Third Circuit has twice denied writ applications arising from attacks on the validity of La. R.S. 14:100.13 after the Supreme Court’s ruling in Arizona v. U.S.

The state argues that R.S. 14:100.13 does not concern the field of illegal immigration. Even a nonresident alien or an alien student who is legally present in the United States, it notes, may be convicted under the statute if he or she leaves proof of lawful presence at home. R.S. 14:100.13, | init claims, “involves a determination of who may lawfully operate a vehicle in this state.” State v. Ramos, 2007-1448 (La.App. 1 Cir. 7/28/08), 993 So.2d 281 (en banc), writ denied, 2008-2103 (La.12/18/09), 23 So.3d 929. The state distinguishes La. R.S. 14:100.13 to the parts (Sections 3 or 5(C)) of the Arizona statute that were struck down in Arizona because La. R.S. 14:100.13 is not an “alien registration” statute. La. R.S. 14:100.13 does not require an alien to register with the state or federal government, as did Section 3 of the Arizona law. It only requires that all nonresident alien drivers carry proof of legal status. The state also points out that there is no federal law criminalizing the same behavior as La. R.S. 14:100.13, as was the case with Section 3.

The state points out that Section 3 of the Arizona law adopted a federal standard and applied it to all aliens at all times. In Arizona v. United States, the Supreme Court found that this “unified system to keep track of aliens” infringed on the federal government’s registration enforcement power. The state argues that since La. R.S. 14:100.13 does not force aliens to register with the federal government, and because it is significantly different from the Arizona law, field preemption does not apply.

The state also notes that Section 2(B) of the Arizona law, which required state officers to make a reasonable attempt to determine the immigration status of a detained person if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” was not declared invalid as preempted by federal law. Therefore, the state contends, the portion of La. R.S. 14:100.13 that provides for a similar |ndetermination is not preempted by federal law.

The state also argues that La. R.S. 14:100.13 is not preempted by federal immigration law under a theory of conflict preemption because “a person can comply with both federal and state law,” and thus, La. R.S. 14:100.13 does not create an obstacle to federal immigration law. The Louisiana statute does not criminalize, it argues, either explicitly or implicitly, conduct specifically prohibited by federal law. In other words, Louisiana law does not require aliens to carry any identification, as long as they are not driving. The Arizona statute, it says, impinged upon substantial rights by making it a crime to be found without identification, despite the Fourteenth Amendment right to be in a public place. No such impingement is found in the Louisiana statute because there is no absolute right to operate a motor vehicle.

The state concedes that a person who violates R.S. 14:100.13 also violates the REAL ID Act, but insists that the statute does not frustrate a federal policy, and therefore, does not conflict with federal law. For example, Louisiana law and federal law both prohibit the use of a counterfeited passport, but the Louisiana law does not preempt the federal law.

Preemption

The Supremacy Clause of the U.S. Constitution requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties. U.S. Const. art. VI, cl. 2; Arizona v. United States, supra; DeCanas v. Bica, supra. Congress’s power to | ^preempt state law is recognized in three circumstances: First, Congress may withdraw specified powers from the states by enacting a statute containing an “express preemption” provision. Second, states are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. This intent to displace state law altogether is called “field preemption.” Congressional intent to displace state law altogether can be inferred from a regulatory framework “so pervasive ... that Congress has left no room for the States to supplement it” or where there is a “federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Arizona v. United States, 132 S.Ct. at 2501. Third, state laws are preempted when they conflict with federal law, including when compliance with both federal and state regulations is impossible, and when the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id.

Applying these preemption principles to Arizona S.B. 1070, the Court in Arizona v. United States, supra, found that Sections 3, 5(C), and 6 were preempted; however, it withheld a ruling on whether Section 2(B) was preempted by federal law, stating that “[wjithout the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume that it conflicted with federal law.” Id. at 2509.

Section 3 of S.B. 1070 was struck down on grounds of field and conflict preemption. The Court stated that it is well established that the federal government has occupied the field of alien registration. Arizona v. United States, supra; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941); see also, American Ins. Assn. v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). Federal law specifies categories of aliens who are eligible to be admitted to the United States, 8 U.S.C. § 1182; requires aliens to register with the Federal Government and to carry proof of status, §§ 1304(e), 1306(a); and specifies which aliens may be removed and the procedures for doing so, § 1227. The federal statutory scheme provides a full set of standards governing alien registration, including the punishment for noncompliance. Arizona v. United States, supra at 2502.

Rejecting Arizona’s argument that Section 3 of the statute is not preempted because it has the same aim as federal law and adopts those standards, the Court stated: “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Id. “Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Id.; Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). “With respect to the subject of alien registration, Congress intended to preclude States from ‘comple-mentfing] the federal law, or enforc[ing] additional or auxiliary regulations.’” Id. at 2503, quoting Hines v. Davidowitz, supra. States may not impose their own punishments or penalties for federal offenses because they would conflict with the federal framework Congress has adopted. Id. at 2502. “Federal law,” the Court said, “makes a single sovereign responsible for maintaining | Ha comprehensive and unified system to keep track of aliens within the Nation’s borders,” thereby rejecting Arizona’s authority through Section 3 of the statute to prosecute federal registration violations. Id. at 2502.

Prior to the Arizona decision, the Louisiana First Circuit had concluded in no less than seven cases that R.S. 14:100.13 is not preempted by federal law. The panels in those cases have consistently stated that R.S. 14:100.13 simply involves a determination of who may or may not lawfully operate a vehicle in this state. The statute in question is not triggered by mere presence. Instead, the criminal act prohibited is the operation of a vehicle without proper documentation of lawful presence. Thus, R.S. 14:100.13 is not a constitutionally impermissible regulation of immigration because it does not involve a state determination of who should or should not be admitted into the country or the conditions under which a legal entrant may remain.

These panels also concluded that there was not a clear and manifest purpose of Congress to effect a complete ouster of state power to regulate requirements for legal operation of a vehicle on public roads and highways within the state. Although acknowledging that laws passed by Congress preempt conflicting state laws, where there is no conflict, it stated, dual sovereignty allows complementary state and federal laws to exist. These decisions did not find that the REAL ID Act or any other federal law conflicts with R.S. 14:100.13. Rather, Louisiana’s statute complements and |1Baugments federal law by reporting to the INS anyone caught without evidence of legal status.

Although these cases predated the opinion in Arizona v. United States, supra, in State v. Lopez, 2012-2043 (La.App. 1 Cir. 3/21/13), decided recently post-Arizona, the court again rejected the defendant’s claim that La. R.S. 14:100.13 is preempted by federal law even in light of Arizona, supra. Citing the ancient 1941 decision, Hines v. Davidowitz, supra, it stated that “La. R.S. 14:100.13 is not preempted by a constitutional preemption because it does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in its enactment of legislation regulating immigration.” The court also determined that La. R.S. 14:100.13 does not regulate immigration because “[njothing in La. R.S. 14:100.13 attaches criminal consequences by the mere presence.” Instead, La. R.S. 14:100.13 regulates state public roads and highways.

On the other hand, in State v. Sarrabea, supra at n. 3, the Louisiana Third Circuit reversed the conviction and sentence of Alexis Sarrabea for violation of R.S. 14:100.13, holding that federal law preempted the Louisiana statute under the rationale of Arizona v. United States, supra. The court specifically found that R.S. 14:100.13 is invalid by virtue of field preemption and conflict preemption in several respects. The Louisiana [ 1(istatute, it said, is an impermissible attempt by the state to regulate matters in the field of immigrant registration, whereas, under Arizona, even complementary state statutes and regulations are preempted by federal law. The court noted that Louisiana has enacted other laws and applied administrative provisions in tandem with R.S. 14:100.13 designed to make its own determination of what forms of documentation are an acceptable proof of an alien’s right to be in the United States, including Louisiana, and with disregard to the federal provisions in the field of immigration. It found that these policies undermine federal law.

The court also found that the stiffer penalty provision of R.S. 14:100.13, making the offense a felony punishable by one year of imprisonment, conflicts with federal registration law, violation of which is a misdemeanor and a civil, not criminal, matter. As previously stated, the Court in Arizona held that the harsher penalty under Arizona law undermined federal law and was therefore preempted.

Finally, the court found that R.S. 14:100.13 was comparable to Section 6 of Arizona’s S.B. 1070, which was also struck down by the supreme court. Section 6 permitted law enforcement to arrest a person without a warrant if the officer has probable cause to believe the person has committed any public offense that makes him removable from the United States. In other words, the statute permitted officers to make a warrantless arrest of a person whom they had probable cause to believe was an illegal alien. The panel from the Third Circuit found that R.S. 14:100.18 implicitly authorizes law enforcement to make a warrantless arrest of any alien 117operating a motor vehicle without his. papers demonstrating lawful presence in the U.S. The court noted that the Louisiana statute has no “probable cause” requirement, and no definition of the terms “alien student” or “nonresident alien” which are not recognized in the federal statutory scheme. The court concluded that these facts were inconsistent with the federal laws regulating immigration and underscored the reason why states cannot be left to their own to make complementary or auxiliary requirements.

After our review and analysis of the U.S. Supreme Court and recent state case law, for the following reasons, we conclude that R.S. 14:100.13 is preempted by federal law.

Although R.S. 14:100.13 is distinguishable from Section 3 of Arizona S.B. 1070 in that the Louisiana statute requires the additional element of “operating a motor vehicle” along with “no documentation showing a lawful presence in the United States,” and thus, “criminal consequences do not attach by [the] mere presence,” we conclude that enforcement of the statute which includes this element provides the state with independent authority to prosecute federal registration violations, which, in effect, detract from the federal alien registration scheme. See Arizona v. United States, supra at 2502. The basic premise of field preemption is that “States may not enter, in any respect, an area the Federal Government has reserved for itself,” Id., and thus are precluded from “eomplement[ing] the federal law, or enforcing] additional or auxiliary regulations.” Id. at 2503.

| ^Additionally, following the rationale of Arizona v. United States, supra, Louisiana’s much harsher penalty provision in R.S. 14:100.13 further intrudes on the federal scheme. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U.S.C. § 1304(e); 18 U.S.C. § 3561. By contrast, R.S. 14:100.13 carries the possibility of a hard labor sentence of up to one year. This state framework of sanctions creates a conflict with the plan Congress put in place. Arizona v. United States, supra at 2503. As the Court noted, “[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity.” Id., quoting Wisconsin Dept. of Indus. v. Gould Inc., 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986).

We also reject the state’s argument that R.S. 14:100.13 is not preempted by Arizona v. United States, supra, because there is no federal statute identical to the Louisiana statute. The REAL ID Act requires aliens to carry their registration papers at all times while in the United States, which necessarily includes operating a motor vehicle in the state of Louisiana. The Louisiana statute, in effect, carves out its own enforcement scheme regarding alien registration when an alien, documented or not, operates a motor vehicles in the state.

The Supreme Court struck down Section 5(C) of S.B. 1070, which made it a state misdemeanor for an unauthorized alien to seek employment in Arizona. Current federal law does not impose criminal sanctions on employees who seek or engage in work in the U.S. Only civil penalties | i9such as deportation and a prohibition from later obtaining lawful status may be imposed. Federal law instead focuses on employers who hire illegal aliens, and makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. 8 U.S.C. §§ 1324a(a)(l)(A), (a)(2). Enforcement involves a graduating scale of civil penalties tied to the number of violations by an employer. Finding that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment, it concluded that Section 5(C) stood as an obstacle to the accomplishment and execution of the full purpose of Congress by interfering with the careful balance struck (employer versus employee sanctions) with respect to unauthorized employment. Section 5(C) was therefore, preempted.

Similarly, R.S: 14:100.13 conflicts with the comprehensive regulatory scheme adopted by Congress regarding alien registration. Although there is no specific federal statute criminalizing operation of a motor vehicle by an alien not carrying proof of lawful status in the United States, Louisiana created a supplemental felony offense with penalties harsher than those provided by federal law on aliens not carrying documentation of lawful status that is enforced if they are operating a motor vehicle in Louisiana. The enforcement of this statute interferes with the alien registration scheme adopted by Congress. For this reason, we conclude that R.S. 14:100.13 conflicts with the implementation of federal immigration law, and is therefore preempted.

[ gpConclusion

For the reasons stated above, we conclude that La. R.S. 14:100.13 is preempted by federal law. Having reached this conclusion, we pretermit discussion of the defendant’s claims of overbreadth and impermissible burden shifting.

The judgment of the trial court denying the defendant’s motion to quash is reversed, and the charge against the defendant in the bill of information is dismissed.

WRIT GRANTED AND MADE PEREMPTORY.

BROWN, Chief Judge, dissenting with written reasons.

BROWN, Chief Judge,

dissenting.

J^There have been several Louisiana cases upholding La. R.S. 14:100.13 both before and after the decision in Arizona v. United States, supra. See State v. Lopez, 12-2043 (La.App. 1st Cir.03/21/13), 116 So.3d 1, 2013 WL 1200338, there are two major contexts in which preemption is found. First, express preemption occurs where the federal statute contains explicit preemptive language. Second, there is implied preemption. The court has identified two types of implied preemption: (1) field preemption (a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject); and (2) conflict preemption. Conflict preemption typically occurs in one of the following two scenarios: (a) in the rare case where it is impossible to comply with both the federal and state statute; or (b) in the more prevalent situation where the state law impedes the achievement of the congressional objective.

Power to regulate immigration is unquestionably exclusively a federal power. (Citations omitted). But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 415-422, 68 S.Ct. 1138, 1140-1144, 92 L.Ed. 1478 (1948), and Graham v. Richardson, 403 U.S. 365, 372-373, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the “doctrinal foundations” of the cited cases, which generally arose under the Equal Protection Clause, (citations omitted), they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Indeed, | ¡>there would have been no need, in cases such as Graham, Takahashi, or Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941), even to discuss the relevant congressional enactments in finding preemption of state regulation if all state regulation of aliens was ipso facto regulation of immigration, for the existence vel non of federal regulation is wholly irrelevant if the Constitution of its own force requires pre-emption of such state regulation. In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. Thus, absent congressional action, § 2805 would not be an invalid state incursion on federal power.

DeCanas v. Bica, 424 U.S. 351 at 354 (1976), 96 S.Ct. 933, 47 L.Ed.2d 43. (Superseded by congressional action).

Section 2(B) of the Arizona statute provided that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the federal government. In Arizona v. United States, supra, the U.S. Supreme Court stated:

However the law is interpreted, if § 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F.2d 468, 475-476 (C.A.9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (C.A.9 1999).

In the case sub judice, there was a legitimate stop and detention for child seat belt violations and then no driver’s license. By the U.S. Supreme Court’s upholding § 2(B) of the Arizona statute, and leaving in place the lower court’s decision not to enjoin the bulk of the statute, much of the principled line drawn in De Canas remains intact. This state’s statute, La. R.S. 14:100.13, should therefore survive a preemption challenge. State and local law enforcement agencies necessarily and appropriately should inquire about a person’s immigration status, specifically when a person has been arrested for a violation of state criminal law. La. R.S. 14:100.13 is not a regulation of immigration. It is a regulation of the public roads and highways under Louisiana’s police power.

I respectfully dissent from the majority opinion.

      . The other cases cited include State v. Sanchez, 2010-0016 (La.App. 1 Cir. 6/11/10), 39 So.3d 834; State v. Gonzalez-Perez, 2007-1813 (La.App. 1 Cir. 1/27/08), 997 So.2d 1; State v. Ramos, 2007-1448 (La.App. 1 Cir. 7/28/08), 993 So.2d 281, writ denied, 2008-2103 (La.12/18/08), 23 So.3d 929; State v. Reyes, 2007-1811 (La.App. 1 Cir. 2/27/08), 989 So.2d 770, writ denied, 2008-2013 (La.12/18/09), 23 So.3d 929.

      . 8 U.S.C. § 1304(e): "Every alien eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section.”

      . The state attached copies of the writ denials to its reply brief. See State v. Ramirez, 12-01245 (La App. 3 Cir. 1/7/13) and State v. Marquez, 12-01316 (La.App. 3 Cir. 1/7/13). However, the Louisiana Supreme Court recently granted writ applications in both cases: See State v. Ramirez, 2013-0276 (La.5/3/13), 112 So.3d 851, 2013 WL 1879675, and State v. Marquez, 2013-0315 (La.5/3/13), 112 So.3d 851, 2013 WL 1879676. We also note, however, the Third Circuit recently ruled in State v. Sarrabea, 2012-1013 (La.App. 3 Cir. 5/1/13), - So.3d -, 2013 WL 1810228, that R.S. 14:100.13 is preempted by federal law under the rationale of Arizona v. United States, supra.

      . State v. Sanchez, supra at n. 1; State v. Palacio, 2009-0003 (La.App. 1 Cir. 10/23/09), 2009 WL 3453930; State v. Altamirano, 2008-2083 (La.App. 1 Cir. 3/27/09), 2009 WL 838360; State v. Ramos, supra at n. 1; State v. Reyes, supra at n. 1; State v. Gonzalez-Perez, supra at n. 1; State v. Romero, 2007-1810 (La.App. 1 Cir. 2/27/08), 2008 WL 508647.

      . The state also attaches to its reply brief copies of two writ denials from the Louisiana Third Circuit Court of Appeal, wherein two of the appellate judges, of a three-judge panel, denied the respective defendants’ writ applications regarding the constitutionality of La. R.S. 14:100.13. Specifically, in both cases, the appellate court stated "[tjhere is no error in the trial court's ruling.” State v. Ramirez, No. CR-137924; State v. Marquez, No. CR-137121. However, prior to rendering this decision, we note that the Louisiana Supreme Court has granted writs in those two cases.

      . See Chamber of Commerce of U.S. v. Whiting, - U.S. -, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011), IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” § 1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in De Canas are now expressly preempted.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    SUCCESSION OF Joseph Clark FERGUSON, Jr.
    No. 47,941-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 29, 2013.

      Leslie W. Kelly, for Appellant, Terry E. Ferguson.
    William D. Medlin, James C. McMichael, Jr., Shreveport, LA, for Appellees, Linda C. Ferguson and Joseph C. Ferguson, III.
    James C. McMichael, Jr., Shreveport, LA, for Appellee, Honour L. Ferguson Zueco.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

| jThe petitioner, Terry Elizabeth Ferguson, appeals a judgment dismissing her petition to reopen the succession of her father, Joseph C. Ferguson, Jr. The district court found that the petitioner’s claim for her legitime as a forced heir had prescribed. For the following reasons, we affirm.

FACTS

The decedent, Joseph C. Ferguson, Jr., died testate on March 31, 2005. The decedent was survived by his wife, Linda Ferguson, and their two children, Honour Ferguson Zueco and Joseph C. Ferguson, III. The decedent’s notarial will bequeathed all of his property to his wife and their children. Decedent was also survived by his daughter, Terry Ferguson, who was born of his first marriage, which ended in divorce from Nan Ferguson. The decedent’s will did not make any provision for Terry Ferguson, who was aware of her father’s death and had attended his funeral. All of the children were over the age of 23 at the time of decedent’s death.

In July 2005, the Succession of Joseph Ferguson, Jr., (“the succession”) was opened with the filing of a petition for probate of the notarial testament. Linda Ferguson was designated as the testamentary executrix. Attached to the petition were the affidavits of Mary Register and Deanna Roth, who attested that to the best of their knowledge, decedent was domiciled in Caddo Parish at the time of his death and that decedent was the father of three children, who were “competent majors capable of managing their property and affairs.” In November 2005, the district court entered the judgment of possession delivering the property of decedent’s estate to the ^legatees as provided in the will and closing the succession.

In May 2011, more than five years after the will was filed for probate, the petitioner, Terry Ferguson, filed a petition to reopen the succession and annul the judgment of possession. The petition alleged that the November 2005 judgment of possession was rendered in reliance on false assertions of petitioner’s competency contained in the affidavits of death filed with the court. Attached to the petition was a Social Security Administration disability evaluation indicating that petitioner was bipolar with borderline mental functioning. The testamentary executrix filed an exception of prescription.

After a hearing, the district court granted the exception, finding that the petitioner failed to file her petition within the five-year prescriptive period. The court rendered judgment dismissing the petition to reopen the succession. Subsequently, the district court denied petitioner’s motion for new trial. The petitioner appeals the judgment.

DISCUSSION

The petitioner contends the trial court erred in dismissing her petition to annul the judgment of possession. Petitioner argues that the judgment should be declared null because her identity as a “possible” forced heir was concealed from the court by the submission of affidavits falsely stating that she was mentally competent.

A proceeding to open a succession shall be filed in the district court of the parish where the deceased was domiciled at death. LSA-C.C.P. art. 2811. The deceased’s domicile at the time of death, his ownership of |sproperty in the state and all other facts necessary to establish the jurisdiction of the court may be evidenced by affidavits. The deceased’s death, his marriage and all other facts necessary to establish the relationship of his heirs may be evidenced by official certificates of a public officer or by affidavits. LSA-C.C.P. art. 2821.

In the present case, the petitioner argues that the judgment of possession is null because the submission of affidavits misrepresenting her competency constituted fraud, citing Succession of Hearn, 412 So.2d 692 (La.App. 2d Cir.1982) and Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir.1975). In Hearn, supra, the deceased’s widow filed a petition and affidavits alleging that decedent had died leaving no descendants, despite her knowledge that a child had been born of his previous marriage. The court found that the false allegations suspended the running of prescription until the adult child discovered the fraud. In Schoen, supra, a summary judgment case, Schoen had filed a petition for probate alleging that the deceased left no descendants. The court found there were genuine issues of material fact as to whether Schoen knowingly concealed the forced heir’s existence from the court and whether the heir had filed his lawsuit within one year of discovering the fraud.

Here, unlike the situation in the cited cases, the affidavits submitted to the court do not omit petitioner, but specifically name her as a descendant of the decedent. Even though the affiants did not personally know the petitioner, they correctly stated that she is the decedent’s child born of his first marriage and was over 23 years of age. Thus, this case does not|4involve the same type of concealment at issue in the Hearn and Schoen cases.

Regarding the petitioner’s mental competency, the affiants stated that to the best of their knowledge, petitioner is a competent major capable of managing her property and affairs. The petitioner did not present evidence to show that the affiants had received contrary information about her mental capacity at the time they signed the affidavits in 2005. The finding that petitioner was disabled for the purpose of Social Security benefits was not issued until 2007 and there was no showing that she had been interdicted by any court. Based upon this record, the petitioner failed to demonstrate that the affidavits contained false statements such that their submission to the court constituted fraud requiring that the judgment of possession be annulled. The assignment of error lacks merit.

Prescription

The petitioner contends the trial court erred in failing to apply the doctrine of contra non valentem to suspend the running of prescription. Petitioner argues that prescription did not run because her reduced intellectual abilities prevented her from learning of her cause of action as a forced heir and the executrix failed to inform her of the succession proceedings.

An action for the reduction of an excessive donation is subject to a liberative prescription of five years. LSA-C.C. art. 3497. A donation which exceeds the disposable quantum that a testator may dispose of, to the prejudice of his forced heir, is not void but is reducible by the forced heir. | ¿Where the plaintiff does not attack the validity of the will and seeks only to recover his legitime, such an action can only be construed as one for the reduction of an excess donation and the five-year prescriptive period of Article 3497 is applicable. This prescriptive period begins to run on the date the will is filed for probate. Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2d Cir.1993).

The cause of action to reduce an excessive donation arises when the will is probated because at that time there is spread upon the public record a proceeding which makes it known that the deceased has left a will, identifies the testamentary heirs, provides the quantum of the estate and names the person appointed to carry out the provisions of the will. Whether the legitime has been impinged upon is made known in the succession proceedings, which provide the forced heir with all the information necessary to seek reduction of an excessive donation. Kilpatrick, supra.

Louisiana jurisprudence has recognized contra non valentem, a limited exception to the running of prescription, where in fact and for good cause a plaintiff is unable to exercise a cause of action when it accrues. Contra non valentem is based on the theory that when the claimant is not aware of the facts giving rise to his cause of action against a defendant, the running of prescription is suspended until the plaintiff discovers or should have discovered the facts on which the action is based. Kilpatrick, supra.

The doctrine of contra non valentem applies when a party has committed acts of concealment or misrepresentation which hinder or impede the plaintiff from asserting his cause of action as long as the delay is not the |firesult of his own negligence. Kilpatrick, supra; West v. Gajdzik, 425 So.2d 263 (La.App. 3rd Cir.1982). The doctrine may apply where the cause of action is not known or reasonably knowable by a plaintiff even though his ignorance is not induced by defendant. Plaintiff will be deemed to know what he could have learned by reasonable diligence. Kilpatrick, supra.

In the present case, although the petitioner asserts that the executrix deliberately concealed the succession proceedings from her, petitioner did not set forth for the record the manner in which the executrix acted to conceal the proceedings. As we stated above, the petitioner failed to show that the affidavits submitted to the court were fraudulent. Nor has petitioner presented evidence of a scheme of concealment by the executrix. The present situation can be distinguished from that of West, supra, in which the executor intentionally did not inform the forced heir of her father’s death to prevent her from sharing in the estate. Here, the petitioner knew that the decedent was her father and that he had died in March 2005.

The petitioner also contends her limited intellectual functioning prevented her from knowing of her cause of action as a forced heir. However, we note that the petitioner’s condition did not prevent her from recognizing and pursuing her claim for social security disability benefits. Petitioner was able to file a claim for benefits on her own behalf, to obtain legal representation and to successfully appeal the initial denial of her disability claim. Petitioner has not shown, given her previous ability to function, how the disorder then prevented her from asserting her claim to be recognized as a forced heir. Based upon this record, the petitioner has failed |7to demonstrate that she was prevented from asserting her cause of action by either the acts of the executrix or her medical condition. Thus, the doctrine of contra, non valentem is not applicable to suspend the five-year prescriptive period. The assignment of error lacks merit.

Duty of the Executrix

The petitioner contends the trial court erred in failing to find that the testamentary executrix owed a duty to inform petitioner of her possible claim as a forced heir. Petitioner argues that she was deprived of the opportunity to assert her rights as a forced heir in the succession proceeding because the executrix breached her fiduciary duty.

A succession representative is a fiduciary with respect to the succession and shall have the duty of collecting, preserving and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator. LSA-C.C.P. art. 8191. An executor owes his duties to legatees, creditors and heirs. When an executrix knows or has reason to strongly suspect that there are persons with claims as forced heirs whose legitime is impinged by bequests in the will, she has a duty to make a diligent effort to learn the identity of and inform such persons of the decedent’s death and their possible claims. Hearn, supra. Forced heirs are descendants of the first degree who, at the time of decedent’s death, are 23 years of age or younger or such descendants of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of decedent’s death. LSA-C.C. art. 1493.

| sIn her appellate brief, the petitioner argues that the executrix had a duty to inform her of the succession proceedings because she was a forced heir due to her medical condition. However, the record does not show that the executrix was aware that petitioner could be a forced heir because of mental incapacity or physical infirmity. There was no showing that the petitioner had been interdicted by a court or that the petitioner had informed the executrix of her disability before filing her petition to reopen the succession in May 2011.

Based on the evidence presented, the petitioner failed to demonstrate that the executrix knew or had a reason to strongly believe that petitioner was a forced heir because of her medical condition at the time of decedent’s death. Thus, we cannot say the executrix breached her fiduciary duty in not providing petitioner with notice of the succession proceedings. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Terry Ferguson.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Matthew G. STEPHENS, Appellant.
    No. 47,978-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 29, 2013.

      Elton B. Richey, Jr., Christopher Hatch, Shreveport, LA, for Appellant.
    Charles R. Scott II, District Attorney, Brian H. Barber, Jason T. Brown, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

12Matthew Stephens was convicted in a bench trial of possession with intent to distribute methamphetamine (Schedule II CDS), in violation of La. R.S. 49:967(A)(1), and possession of Lortab (Schedule III CDS), in violation of La. R.S. 40:968(C). He pled guilty to being a fifth felony habitual offender and was sentenced on each count to concurrent sentences of 50 years at hard labor without benefit of probation or suspension of sentence. Stephens appeals his conviction and sentence. We affirm his conviction and sentences, but vacate a sentence imposed in error for possession of a Schedule IV CDS.

Facts

On June 4, 2008, Matthew Stephens was charged by bill of information with possession with intent to distribute a Schedule II CDS, methamphetamine, and possession of a Schedule III CDS, Lortab. The same bill of information also charged Jade Cofer with possession of a Schedule IV CDS.

On August 27, 2010, Stephens was tried before a judge. The following facts were gleaned from the trial testimony.

Agent Robert Robinson, a Shreveport Police Department mid level narcotics investigator, testified that he had been investigating both Stephens and Cofer for illegal distribution of narcotics. Through the course of his investigation, he received information that Stephens would be bringing to DCofer’s home a large amount of methamphetamine concealed in two black bags. Robinson obtained a warrant to search Cofer’s home on April 15, 2008. Once Stephens arrived at Cofer’s house, other officers executed the warrant through the front door of the residence. Robinson stated that officers apprehended Stephens as he tried to escape through the back door. Three other individuals found inside of the home included Cofer, Laurie Ezernack and Charles Todd.

As officers conducted their search they found a purse containing Xanax pills, cash, and methamphetamine according to Robinson. Cofer admitted that these items belonged to her. The officers also located a black nylon bag on the sofa in the living room. Inside of the black bag was another bag. Robinson testified that methamphetamine, cocaine and Lortab were found inside the bags in addition to unused baggies and needles, clean syringes, spoons, swabs and “gadgets” that “people with metham-phetamines like to deal with.” Robinson testified that Stephens was known as the “Gadget Man.” Robinson stated that the black bag and its contents matched what he expected Stephens to bring to Cofer’s home based upon information he had received. Robinson arrested Stephens and informed him of his rights.

Robinson testified that he took Stephens to the police station, read him his rights a second time and obtained his video-recorded statement in which Stephens admitted that the bag belonged to him. However, Stephens denied that the drugs found inside the bag were his. Stephens told Robinson that he was a narcotics dealer and had “some stuff’ in the bags earlier, 1 including Ecstasy and Ice, street terms for methamphetamine, that he dropped off prior to coming to the house because he knew Cofer’s house was “hot.” Stephens indicated to Robinson that he sold drugs to support his own habit. He admitted that he and Cofer had a “relationship” and that they sold dope together. Stephens admitted that when he got to Cofer’s house, he bought $400 worth of narcotics from her that he handed to Ezernack when the raid occurred.

Robinson testified that the quantity of methamphetamine found in Stephens’ bag was probably not intended for personal consumption. He explained that a user could not typically keep more than two grams of methamphetamine in his possession because its addictive nature created a potential threat of overdosing.

On cross-examination, Robinson revealed that he had information from a confidential informant that Stephens would be arriving at the house with “a large amount of methamphetamines.” The officers did not report seeing Stephens’ entry into the house. All of the individuals in the residence, however, including Charles Todd, informed Robinson that Stephens had brought the black bag into Cofer’s home. Robinson testified that the officers did not find any other black bags in the home. Robinson admitted that Stephens had no drugs on his person when he was arrested. He also admitted that Todd was on parole for distribution of methamphetamine and had his own bedroom in Cofer’s house.

Next to testify was Corporal Sean McCullough of the Caddo Parish Sheriffs Office. McCullough first made entry into the home through the | ¡¡front door. McCullough acted upon information he had that Cofer and Stephens were inside the home. During the operations, McCullough stayed in the living room and ultimately began the search of the room. On the sofa, he located a “fanny sized black bag” and opened it. He found another black case in the outer bag. He proceeded to look through the bags, where he found narcotics. McCullough photographed the items he found. At trial he identified the photographs which were introduced into evidence.

McCullough identified the larger black bag that he recovered on the couch. He testified that it was inside this bag that he found a smaller “Game Boy bag.” He testified that it was during his search of the main bag that he found narcotics including methamphetamine, cocaine and a couple of pills. McCullough opened the larger bag while testifying and removed the contents of it. He described a blue glass case and smaller zipper bag which contained a spoon, plastic container, and a large empty baggie which usually contained smaller baggies. He also identified a gold container in which he found “several different things of narcotics.” McCullough testified he found several empty bags that he knew were used to package narcotics.

He stated that it was when he opened the smaller bag that he discovered more narcotics. He also opened that bag in court and testified that he found methamphetamine in it along with baggies for packaging and other items of paraphernalia. He removed the items from this bag in court. He identified the items as a “medium-sized bag” containing approximately 20-25 smaller unused baggies with hearts on them that were used to package |finarcotics. McCullough testified that he also found a hideaway key, plastic container with razor blades in it, a magnet, a small metal cup, a spoon and numerous other clear baggies that were used for packaging narcotics. He also testified that he found unused syringes, a knife, and a larger quantity of narcotics in the smaller black bag.

McCullough also identified the narcotics he found in the two bags and stated that one large bag of methamphetamine weighed about 19.5 grams and that a total of 22 grams of methamphetamine was recovered from the bags.

Lieutenant Mike Tong of the Shreveport Police Department was qualified by the court as an expert in street-level narcotics investigation and long-range investigation. He testified that although he was not personally involved in the investigation of this case, he had reviewed the photographs and evidence including the narcotics seized. In making a determination as to whether an individual is a dealer or not, Tong testified that he looks for scales, packaging materials, currency and the weight of the material seized. He may also consider how the drugs are packaged. Tong stated that large quantities- of methamphetamine packaged in a large baggie with needles, spoons or smoking pipes would indicate that the person is a dealer as well as a user.

Tong considered the 19.5 grams found in one bag in this case and testified that a person in possession of 19.5 grams of methamphetamine would be charged with possession with intent to distribute. According to Tong, such an amount of narcotics is “too large of a quantity for personal 17use” and “would be indicative of somebody who is going to cut it down and sell it.” The fact that there are additional individual prepackaged baggies bolstered his conclusion that the individual was prepared for distribution. Tong testified that dealers will also sell needles with their product as well as other paraphernalia. Tong concluded that the large amount of methamphetamine and various paraphernalia found in the black bag belonged to a person “in the business of distributing narcotics.”

Bruce Stentz, a forensic chemist at the North Louisiana Crime Lab in Shreveport, was qualified as an expert in forensic chemistry and narcotics analysis. Stentz testified that various lab tests were performed on the contents found in both black bags. These tests revealed that both bags contained methamphetamine, a Schedule II controlled dangerous substance. The blue pill recovered tested positive for hy-drocodone and a nonnarcotic ingredient, a Schedule III controlled dangerous substance.

As its last witness, the state recalled Agent Robinson to testify. He first indicated that he was informed that the crime lab was not able to find any detectable DNA or fingerprints on the bags. Robinson also stated that he had maintained a continuing, ongoing investigation of Stephens after his arrest where he monitored Stephens’ telephone conversations made from Caddo Correctional Center. On June 6, 2009, Robinson recorded a conversation between Stephens and his sister. The state introduced into evidence both the recording and a transcript of the call. During the conversation, Stephens and his sister discussed the fact that the state obtained DNA evidence from him. Stephens’ sister asked him why he ^thought they were testing and Stephens responded that he thought its was for a “syringe or something.” Stephens told his sister:

If there was some [syringes] in the bag, I don’t even know if there were any dirty in there, there might have been though you know.
* * *
I don’t care about that though, that just makes me look more like a drug head.
The dope was in a little bitty bag, you couldn’t fit a syringe in the bag, that the dope was in, it was a little bitty zip hand bag you know.
Those [syringes] were in another big black like another like a satchel black bag thing.

On cross-examination, Robinson admitted that the conversation took place one year after initial discovery in the case. Robinson testified, however, that he never told Stephens “exactly how it [the narcotics] was packaged or any details. I just told him the amount, you know, the weight. We didn’t go into where it was zipped in this or needles or syringes.” However, he admitted that his report contained the information.

When trial reconvened on September 9, 2010, the district court found Stephens “guilty on the charges brought against him.”

On January 19, 2012, Stephens entered a guilty plea as a fifth felony offender based upon prior offenses of possession of an unregistered firearm, escape and jumping bail, distribution of Schedule I narcotics, and possession of methamphetamine. On March 5, 2012, the court vacated Stephens’ previously imposed sentences and imposed three concurrent 1 sentences of 50 years hard labor without benefit of probation or suspension of sentence.

Stephens’ motion to reconsider sentence was denied by the trial court and this appeal followed.

Discussion

Stephens argues that the evidence failed to prove beyond a reasonable doubt that he was in actual or constructive possession of either methamphetamine or Lortab. Stephens argues that the state failed to disprove the possibilities that he brought a separate black bag into the home or that another individual placed the drugs in his black bag as they saw police approach the home. Stephens also argues that little weight should have been given to his recorded telephone conversation as proof that he knew the drugs were in his bag because the conversation took place 14 months after his arrest and after he would have learned during discovery what items were seized in his bag. Lastly, Stephens contends that the evidence failed to prove intent to distribute.

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, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred 11 according to reason and common experience. State v. Speed, supra. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trier of fact is charged to make a 'credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La.1/19/06), 921 So.2d 94.

To support a conviction for possession with intent to distribute, the state must prove: (1) possession of the controlled dangerous substance; and (2) intent to distribute it. La. R.S. 40:967(A)(1); State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575; State v. Lee, 25,917 (La.App.2d Cir.5/4/94), 637 So.2d 656, writ denied, 94-1451 (La.10/7/94), 644 So.2d 631. Likewise, it is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule III unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner. La. R.S. 40:968(C).

1 igOne need not actually possess the controlled dangerous substance; constructive possession is sufficient to convict. State v. Gladney, supra. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Gladney, supra; State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991).

Five factors have been identified as useful in determining whether circumstantial evidence is sufficient to prove intent to distribute a controlled dangerous substance. The factors include: (1) whether the defendant ever distributed or attempted to distribute the controlled dangerous substances; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug creates an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use; and (5) whether there were any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Cummings, 46,038 (La.App.2d Cir.1/26/11), 57 So.3d 499, writ denied, 11-0341 (La.6/17/11), 63 So.3d 1037; State v. Clark, 35,272 (La.App.2d Cir.12/5/01), 803 So.2d 280. Testimony of street value and dosage of the drug is also relevant to the issue of intent to distribute. State v. Gladney, supra. Mere possession of contraband does not amount to evidence of intent to distribute “unless the quantity is so large that no other inference is possible.” See State v. Greenway, 422 So.2d 1146 (La.1982).

118Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Garner, 45,474 (La.App.2d Cir.8/18/10), 47 So.3d 584, writ not considered, 12-0062 (La.4/20/12), 85 So.3d 1256; State v. Durden, 36,842 (La.App.2d Cir.4/9/03), 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131.

After viewing the evidence in a light most favorable to the prosecution, we find the evidence sufficient to convict Stephens of both possession with intent to distribute a Schedule II CDS, methamphetamine, as well as possession of a Schedule III CDS, Lortab.

Stephens readily admitted that he owned the black bag seized by the officers in Cofer’s residence. The officers testified that no other black bags were found in the home. All other occupants of the house also indicated that it was Stephens who carried the bag into the house. Thus, the evidence establishes Stephens’ ownership of the bag found by officers. The issue of whether he brought drugs into the home in those bags was not established by direct evidence. Nevertheless, Stephens’ claim to lack knowledge of the drugs in the bags was obviously rejected by the trial court based upon the circumstantial evidence presented by the state. Certainly, considering that police acted quickly to execute the search warrant soon after Stephens’ entrance into the home, the trial court could have reasonably rejected as unreasonable any argument by Stephens that enough time had elapsed for someone else to transfer the drugs to the bags. Stephens’ admission that he was a drug dealer and had sold the methamphetamine and Ecstasy which were in the bag “before he came over there” refutes his claimed ignorance [uof the contents of the bag. Stephens’ attempted flight from the home was additional evidence from which the trial court could infer guilt. Finally, Stephens’ phone admissions to his sister were detailed enough to suggest his intimate knowledge of what was contained in the bags. Considering these collateral facts and circumstances proven by the state, we find that the circumstantial evidence of Stephens’ actual possession and knowledge of the drugs, including methamphetamine and Lortab, was established beyond a reasonable doubt. Further we find that the evidence of Stephens’ admitted drug dealing along with the amount and packaging of the methamphetamine found in the black bags which expert testimony established were consistent with distribution, to be sufficient proof that Stephens possessed the methamphetamine with the intent to distribute it. Accordingly, we find no merit to Stephens’ arguments.

Stephens also contends that the imposed sentences are constitutionally excessive given the circumstances of the case and his background which shows that he is not the most egregious violator. Stephens argues that he should not have been sentenced to an additional year of imprisonment on top of the 20- and 30-year minimum sentences because the imposed sentences are the “functional equivalent of life sentences.” He claims that he is not a large-scale dealer, but only deals to support his own drug addition. Finally, Stephens argues that the trial court erroneously imposed a 50-year sentence on Count 3 of the bill of information, a crime for which he was neither tried nor convicted.

hfiAn appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

11fiSecond, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id.

For the underlying crime of possession of methamphetamine with intent to distribute, Stephens faced possible maximum sentencing exposure of 30 years. La. R.S. 40:967(A)(1). For the underlying offense of possession of a Schedule III CDS, Stephens faced maximum sentencing exposure of five years. La. R.S. 40:968(C). Because of his habitual offender adjudication, however, Stephens was sentenced under the following provisions of La. R.S. 15:529.1A:

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a | ^determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

Thus, Stephens faced sentencing exposure of 20 years to life on the possession conviction and 30 years to life on the possession with intent to distribute conviction.

Prior to imposing the sentences, the court heard the testimony of Stephens’ father who requested that the court not sentence Stephens to any more than the minimum sentence of 30 years because he was only a drug addict.

Thereafter, the court noted its consideration of a presentence investigation report which included Stephens’ criminal record which began with a 1995 federal conviction for illegal carrying of a weapon for which he received a sentence of 37 months. The court next considered that Stephens was convicted of two counts of distribution of marijuana in 1995 and received concurrent 10-year sentences. The court noted undated fugitive charges and a misdemeanor DWI. The court observed that in 2005 Stephens was charged with distribution of a Schedule II drug and entered a guilty plea to possession of a Schedule II drug. He received a two year sentence. In 2007 and 2008 Stephens’ parole was revoked. In 2009 Stephens pled guilty to federal charges of unlawful transportation of firearms.

After considering these facts, the court accepted that Stephens was a fifth felony offender and informed the defendant of the sentencing range he faced. The court expressed concern that Stephens’ parole had been revoked on two occasions and that he had both weapons and drug charge | ^convictions, with drug offenses involving distribution, possession with intent to distribute and possession. The court determined that Stephens was in need of correctional treatment and that lesser sentences would deprecate the seriousness of the crimes. The court considered that Stephens was persistently involved in similar drug and gun offenses and that he had been consistently committing felonies since 1995, a considerable period of time.

The court also noted that Stephens was a relatively youthful offender at 36 and that his father was. in bad health. After weighing all of these factors, the court imposed concurrent 50-year sentences on each count.

We cannot find that the imposition of these sentences was constitutionally excessive. The court adequately considered the sentencing guidelines including aggravating and mitigating factors. Moreover, Stephens’ criminal history included multiple drug and weapon charges and parole revocations which have spanned a period of more than 15 years. His continued drug activity shows that he has failed to benefit from prior leniency in sentencing and has not been rehabilitated by prior incarceration. Additionally, Stephens’ guilty plea to the habitual offender proceeding reduced his sentencing exposure. Thus, he benefitted substantially from the plea agreement. In these circumstances, we cannot say that these midrange sentences shock the sense of justice or qualify as a needless and purposeless imposition of pain and suffering. Therefore, we affirm the sentences imposed for the crimes of conviction.

We find merit to Stephens’ argument that the sentence imposed upon him for the crime of possession of a Schedule IV CDS is in error and must |19be vacated. The district court improperly sentenced Stephens to serve 50 years for a crime that was billed against Cofer. The imposed sentence is hereby vacated.

Conclusion

For the foregoing reasons, Stephens’ convictions and sentences for possession with intent to distribute a Schedule II CDS and possession of a Schedule III CDS are affirmed. The sentence imposed for possession of a Schedule IV CDS is vacated.

CONVICTIONS AND SENTENCES AFFIRMED; SENTENCE VACATED.

      . Additionally, the district court sentenced him to serve 50 years at hard labor without benefits for possession of a Schedule IV CDS.

      . Prior to the July 20, 2011 sentencing hearing, the state filed a sixth felony habitual offender bill of information which was reduced by a plea agreement.

      . This determination precludes any discussion of the issue of constructive possession.