author: CLARK, Justice.

text:
    STATE of Louisiana v. Glen P. DRAUGHTER.
    No. 2013-KA-0914.
    Supreme Court of Louisiana.
    Dec. 10, 2013.

      Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Colin Andrew Clark, Assistant Attorney General, District Attorney’s Office, Orleans, Parish, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, for Appellant.
    Public Defender’s Office, Orleans Parish, Jill K. Pasquarella, Colin Reingold, for Ap-pellee.
   CLARK, Justice.

hln this direct appeal, the state challenges a judgment issued by an Orleans Parish Criminal District Court judge that declared unconstitutional La. R.S. 14:95.1. This criminal statute prohibits certain felons from possessing a firearm for a number of years after their conviction. In connection with a motion to quash the bill of information filed by the defendant in this case, the district court found the provisions of the criminal statute violate article I, section 11 of the Louisiana Constitution. This state constitutional provision, which was recently amended, proclaims that the right to keep and bear arms is a fundamental right and provides any restriction of that right must be subjected to strict scrutiny. After reviewing the defendant’s claim, and taking into account his status as a probationer at the time of his arrest for the instant offense, we reverse the district court judgment declaring the criminal statute unconstitutional and quashing the charge against the defendant.

FACTS AND PROCEDURAL HISTORY

We begin our recitation of the facts with the defendant’s prior felony conviction, as it bears directly on the scope of our review in this case. The record in Case No. 500-141, Section J of the Orleans Parish Criminal District Court shows that on February 22, 2011, Glen Draughter entered a guilty plea to one count of [^attempted simple burglary. He was sentenced that day to a term of imprisonment of two years at hard labor, suspended, with two years of active probation, and credit for time served.

On April 18, 2012, a little over a year later, Draughter was arrested for the instant offense and charged with being a felon in possession of a firearm, a violation of La. R.S. 14:95.1. La. R.S. 14.95.1 is entitled “Possession of firearm or carrying concealed weapon by a person convicted of certain felonies” and provides:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not |sbeen convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

Based in part on his arrest for the instant offense, Draughter’s probation officer filed an “Affidavit of Probable Cause and Motion for Hearing to Revoke Probation” in the attempted burglary matter. As a probationer, Draughter had been ordered by the judge to refrain from criminal conduct and from owning or possessing a firearm or other dangerous weapon. The probation officer asserted Draughter’s arrest for the instant offense violated both of those conditions of probation. On January 31, 2018, after a hearing, the district judge, revoked Draughter’s probationary sentence for the attempted burglary eon-viction and made the original sentence of February 22, 2011 executory, with credit for time served.

That same day, January 31, 2013, Draughter filed a motion to quash the bill of information for the present charge of being a felon in possession of a firearm. The defendant argued La. R.S. 14:95.1 violated a recent amendment to article I, section 11 of the Louisiana Constitution, regarding a citizen’s right to keep and bear arms. The Office of the Louisiana Attorney General exercised its discretionary right to respond to the constitutional challenge to the statute and joined with the Orleans Parish District Attorney in opposing the defendant’s motion to quash. After holding hearings on the matter, the district court granted |4the defendant’s motion to quash, ruling that La. R.S. 14:95.1 was “facially unconstitutional, in its entirety.” The district court gave these oral reasons for judgment:

Having reviewed the submission by both the State and the Defense, the Court finds that this statute in its entirety does present an unconstitutional infringement on the constitutional guarantee of [the] right to bear arms; does not pass the strict scrutiny standard as required by law; and the State has failed to demonstrate a compelling State interest in order to be able to meet that standard.

The district court also provided written reasons for judgment, concluding the statute “was not narrowly tailored to achieve the government’s interest,” as it “applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code.”

Pursuant to article V, section 5(D) of the Louisiana Constitution, the matter proceeded directly to this court for review of the district judge’s declaration of the statute’s unconstitutionality. The court has received amicus curiae briefs from the Louisiana Association of Criminal Defense Lawyers on behalf of the defendant, and from the Louisiana District Attorneys Association, The Brady Center to Prevent Gun Violence and the Major Cities Chiefs Association in support of the state.

LAW AND DISCUSSION

This case requires us to determine the constitutionality of a statute. Such questions of law are reviewed by this court de novo. City of Bossier City v. Vernon, 2012-0078, p. 2 (La.10/16/12); 100 So.3d 301, 303.

Background

Before its recent amendment, article I, section 11 provided: “The right of |fieach citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” La. R.S. 14:95.1 has already withstood constitutional scrutiny under this former version of article I, section 11. In State v. Amos, 343 So.2d 166 (La.1977), the defendants were charged with violating La R.S. 14:95.1. They argued in motions to quash that, having completed state supervision for their previous felony convictions, they had been restored their full rights of citizenship under article I, section 20, which provides in pertinent part: “[fjull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” The district court granted the motions to quash, but this court reversed on direct appeal.

Although the Amos court recognized the defendants had been restored full rights of citizenship prior to their arrest, the court did not accept the defendants’ further contention that, as citizens, any act of the legislature limiting or regulating their right to keep and bear arms unconstitutionally contravened the broad language of former article I, section 11. This court explained:

The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.... It is beyond question that the statute challenged in the instant case was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.

Amos, 343 So.2d at 168 (internal citations omitted).

After determining that former article I, section 11 and article I, section 20 of the state constitution were never intended to preclude the type of legislation represented by La. R.S. 14:95.1, the court concluded:

We are satisfied that it is reasonable for the legislature in the interest [ Bof public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies.

Amos, 343 So.2d at 168.

We note the defendant’s motion to quash raises a challenge to the constitutionality of La. R.S. 14:95.1 under the state constitution only. Specifically, Draughter claims the fundamental right to bear arms contained in the amended provisions of article I, section 11 of the Louisiana Constitution is impermissibly infringed upon by the criminal statute at issue. Draughter’s motion does not assert a right under the Second Amendment of the United States Constitution, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Supreme Court recently reviewed the federal constitutional right to bear arms and expounded on the nature and limits of the right secured by the Second Amendment. These Supreme Court decisions appear to have been the catalyst for the recent amendment of the state constitution, so a brief description of their holdings is in order.

In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 2799, 171 L.Ed.2d 637 (2008), a 5-4 majority of the Supreme Court agreed the Second Amendment “conferred an individual right to keep and bear arms,” not only for the purpose of participation in a citizen militia, as the right was understood by the minority justices, but also for law-abiding, responsible citizens to use arms in defense of hearth and home. Id., 554 U.S. at 635, 128 S.Ct. at 2821. So finding, the Supreme Court invalidated the District of Columbia’s total ban on the possession of handguns and also ruled that the District’s requirement that citizens keep their firearms inoperative “[made] it impossible for citizens to use [firearms] |7for the core lawful purpose of self-defense.” Id., 554 U.S. at 630, 128 S.Ct. at 2818. Two years later, in McDonald v. City of Chicago, — U.S.-, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court, again by a 5-4 vote, held the Second Amendment’s individual right to bear arms, recognized in Heller, is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Due Process Clause of the Fourteenth Amendment. McDonald, 130 S.Ct. at 3050.

The slim majority supporting the holdings in Heller and McDonald prompted Louisiana legislators to introduce legislation which ultimately resulted in the amendment of the state constitution. The legislators’ stated intention in introducing this legislation was to secure a continued individual right to bear arms by Louisiana citizens under the Louisiana Constitution, protected from possible future judicial or legislative erosion.

Pursuant to Acts 2012, No. 874, § 1, a proposal to amend article I, section 11 was submitted to the electors of the state of Louisiana, and was ratified by them in a statewide election held on November 6, 2012. This section of the state constitution now provides: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.”

The effective date of a constitutional provision or amendment is determined in accordance with the provisions of article XIII, section 1(C) of the Louisiana Constitution. Article XIII, section 1(C) provides in part: “If a majority of the electors voting on the proposed amendment approve it, the governor shall proclaim its adoption, and it shall become part of this constitution, effective twenty days after the proclamation.... ” The governor proclaimed the adoption of the amendment by Act 874 on November 19, 2012. See La. Const. art. I, § 11, “Historical Notes.” The twentieth day thereafter, and the effective date of this | ^constitutional amendment is therefore December 10, 2012.

We are asked to determine the applicability and the effect of the amended provisions of the state constitution to this case. Under the facts presented, we must also decide whether, and to what extent, this defendant had the right to assert a constitutional right to bear arms.

Applicability of Amendment

In brief to this court, the attorney general asserts for the first time that the law in effect on the date the crime was committed applies. Therefore, because Draughter committed the instant offense on April 18, 2012, and the amendment to the state constitutional article did not take effect until December 10, 2012, the attorney general contends Draughter’s case should be evaluated under the former provisions of article I, section 11. If the attorney general’s argument is correct, this court’s ruling in Amos would apply. Whether the former or present constitutional article controls our analysis in this case dictates the type of evaluation the court should apply to the constitutional infringement alleged.

Under the present language of article I, section 11, an alleged infringement on the right to bear arms is subject to strict scrutiny. “Under strict scrutiny the government bears the burden of proving the constitutionality of the regulation by showing (1) that the regulation serves a compelling governmental interest, and (2) that the regulation is narrowly tailored to serve that compelling interest.” In re Warner, 2005-1303, p. 37 (La.4/17/09); 21 So.3d 218, 246.

By contrast, in Amos, the court found the defendant’s right to keep and bear arms “... may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” Id., 343 So.2d at 168 (emphasis added). At the time Amos was decided in 1977, this reasonableness J^standard was consistent with this court’s review of other alleged infringements of constitutional rights. It might be said this standard of reasonableness was the highest standard of review the court accorded to an alleged infringement of a constitutional right for that time. However, the evaluation is significantly different from the strict scrutiny now required by the present form of article I, section 11, as that level of analysis is understood today.

The defense argues the state waived this argument by not raising it in the district court. We note the defense correctly asserts the rule that arguments not raised in the lower courts are considered waived. See Prest v. Louisiana Citizens Property Ins. Corp., 2012-0513, p. 11 (La.12/4/12); 125 So.3d 1079, 2012 WL 6015594. In this case, however, the state’s possible waiver of this issue is subsumed by the requirement that we consider de novo the proper meaning of La. R.S. 14:95.1 in the context of the facts before us. This case cannot be decided without determining which version of the state constitutional provision controls here. Accordingly, our conclusion of the proper interpretation of La. R.S. 14:95.1 will necessarily include a determination whether the former or present version of article I, section 11 applies.

110Louisiana follows the general rule that a constitutional provision or amendment has prospective effect only, unless a contrary intention is clearly expressed therein. State v. Cousan, 1994-2503, p. 17 (La.11/25/96); 684 So.2d 382, 392-393. All of the parties concede there was no express intent by the legislature that the amendment at issue be retroactive. We agree. The amended constitutional provision is silent as to retroactive application, as is the language used on the official ballot. The official ballot contained a proposition which the electors of the state could accept or reject. The proposition asked:

Do you support an amendment to the Constitution of the State of Louisiana to provide that the right to keep and bear arms is a fundamental right and any restriction of that right requires the highest standard of review by a court? (Amends Article I, Section 11)

See Acts 2012, No. 874, § 3. The proposition on the official ballot did not specify the standard of review as “strict scrutiny,” but specified only that the infringement of this constitutional right must be accorded the highest level of review.

From this, we conclude the right to bear arms was always fundamental; the amendment to the constitutional provision merely sought to ensure that the review standard of an alleged infringement of this fundamental right was in keeping with the refinements made to constitutional analysis which developed since our decision in Amos. See Hondroulis v. Schuhmacher, 553 So.2d 398, 415 (La.1988) (government action imposing a burden on a fundamental right may be justified only by a compelling state interest, narrowly confined so as to further that compelling interest, i.e. strict scrutiny); see also Carey v. Population Services Intern., 431 U.S. 678, 686, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) (same).

We note the language of the amendment itself and the official ballot proposition is in the present tense. Finding no clearly expressed contrary intention, we hold the amendment to article I, section 11 has prospective effect from its Ineffective date of December 10, 2012.

This determination does not end our inquiry in this matter, however. Although the amendment to article I, section 11 became effective after Draughter allegedly committed the offense at issue, his criminal case was still pending at the time the amendment became effective. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the Supreme Court held “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” This court has endorsed Griffith as a matter of state law for review of non-final convictions still subject to direct appellate review. See State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296 (La.1992). Accordingly, we find the amendment to article I, section 11 has prospective effect from its effective date of December 10, 2012, and has retroactive effect to this case and all cases pending on direct review or not yet final. Thus, our analysis of La. R.S. 14:95.1 under the present facts will proceed under strict scrutiny, the standard of review provided in the amended constitutional provision.

Scope of Review

Our review of the record in anticipation of oral argument revealed an issue with important implications to the scope of our analysis. Considering the temporal proximity of Draughter’s felony conviction for attempted burglary, for which he received a two-year sentence, with his arrest for a violation of La. R.S. 14:95.1, approximately a year later, we questioned whether Draughter was still under the state’s custody or supervision at the time of his arrest for the instant offense. As this issue was apparently unnoticed by the district court and was not raised by any party, we requested supplemental briefing to determine the threshold concern whether Draughter has standing to assert the protections of the amended | ^constitutional provision in his motion to quash. See Howard v. Administrators of Tulane Educ. Fund, 2007-2224, p. 7 (La.7/1/08); 986 So.2d 47, 54 (an appellate court may raise the issue of standing on its own motion).

The supplemental briefs show that, while they agree on little else, the state and the defendant view the standing issue as no impediment to this court’s determination of the constitutionality of La. R.S. 14:95.1. The state and the defendant both contend the defendant, simply by virtue of facing criminal prosecution for a major felony offense, has standing to raise the constitutionality of his present charge.

Additionally, Draughter states he was released from the custody of the penitentiary in connection with the attempted burglary conviction on February 27, 2013, as the result of good time credits. He argues the terms of his probation for his attempted burglary conviction were, therefore, satisfied at the time the district court ruled upon his motion to quash. He remains in the physical custody of the Criminal Sheriff in Orleans Parish because he cannot make bond on his present charge. Draughter more broadly suggests the constitutionality of all probationary restrictions on firearm possession have been thrown into doubt by the amendment to article I, section 11. See La.C.Cr.P. art. 895(A)(6). Finally, the defendant argues he raised both facial and as-applied challenges to La. R.S. 14:95.1, so any standing issue that would relate to the facial challenge would not be dispositive of his as-applied challenge.

In State v. Mercadel, 2003-3015 (La.5/25/04); 874 So.2d 829, the court set forth the general principles of constitutional law regarding legal standing to challenge the constitutionality of code articles and statutes:

113Although this court generally possesses the power and authority to decide the constitutionality of the provisions challenged in defendant’s motion to quash his [information], it is required to decide a constitutional issue only if the procedural posture of the ease and the relief sought by the appellant demand that [it] do so.... Further, a court should avoid constitutional questions whenever a case can be disposed of on non-constitutional grounds.... One of the threshold non-constitutional issues that must be decided by a court before it may consider a constitutional challenge to a legal provision is whether the person challenging the provision has standing.

Id., 2003-3015, pp. 7-8; 874 So.2d at 834 (internal citations and quotations omitted). In order to have standing to challenge the constitutionality of a legal provision, “the person bringing the challenge must have rights in controversy.” Id., 2003-3015, p. 8; 874 So.2d at 834. Specifically, “a person can challenge the constitutionality of a statute only if the statute seriously affects his or her rights.” Id.; see also State v. Baxley, 93-2159 (La.2/28/94); 633 So.2d 142, 146.

The facts show Draughter has been under the state’s supervision and/or in the state’s physical custody at all relevant times. On February 22, 2011, he was sentenced to two years imprisonment at hard labor on his plea of guilty to attempted simple burglary. His sentence was suspended on the condition he serve two years of active probation, set to expire on February 22, 2013. While on probation, the defendant then allegedly committed the violation of La. R.S. 14:95.1 on April 18, 2012. On January 31, 2013, the trial court revoked defendant’s probation for the burglary conviction and made the original two-year suspended sentence executo-ry, placing him in the physical custody of the Department of Corrections (“DOC”).

DOC records, to which we have access, affirm the defendant’s assertion that he secured his release from the penitentiary for good behavior on February 27, 2013. The defendant has not, however, satisfied his original sentence for the felony conviction. The DOC gives him a full term date of April 14, 2014, and, in |uthe interim, defendant remains on parole by operation of La. R.S. 15:571.5(A), which provides: “[w]hen a prisoner committed to the Department of Public Safety and Corrections is released because of diminution of sentence pursuant to this Part [a good time release], he shall be released as if released on parole.” Thus, at no time in this case has defendant been free from state custody or supervision. While the state and the defendant dismiss the significance of his state custody and/or supervision at the time he was arrested for this offense, that status is the defining circumstance in the present case and a critical factor in determining whether the defendant may avail himself of the strict scrutiny now required by article I, section 11 for laws purporting to restrict the right to bear arms by the citizens of this state.

Draughter’s status as a person still under state supervision at the time of his arrest for the instant offense narrows the scope of our review significantly. The only constitutional question actually raised by the present case is whether a convicted felon, who remains under state custody and supervision, may assert a constitutional right to bear arms, the infringement of which is subject to strict scrutiny review. As to that question, Draughter clearly has standing to raise the constitutionality of the statute. The larger question,, previously addressed by the court in Amos — whether the state may dispossess certain convicted felons of their right to bear arms for a number of years, even after they have paid their debt to society and fully discharged their sentences — is not again before the court. As to that larger question, we find Draughter does not have standing to challenge the constitutionality of La. R.S. 14:95.1. See State v. Sandifer, 1995-2226, p. 12 (La.9/5/96); 679 So.2d 1324, 1332 (person may not challenge statute on the ground that it may conceivably be applied unconstitutionally to others in other situations not before the court).

Analysis

This court has held that, subject to the legitimate requirements of prison | t Sdiscipline and security, even a person convicted of a crime and incarcerated retains fundamental constitutional rights and protections. See State v. Patrick, 381 So.2d 501, 503 (La.1980) (prisoners are not totally bereft of Fourth Amendment rights by virtue of their incarceration, but those rights are diminished in nature and scope due to their confinement for criminal conduct); see also Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (“Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.”). There are, however, some fundamental constitutional rights which, by necessity, must be curtailed entirely to accommodate the institutional needs and objectives of the prison setting. Hudson, 468 U.S. at 524, 104 S.Ct. at 3199. The right to keep and bear arms found in article I, section 11 is one such constitutional protection which must be curtailed entirely in the prison setting. Just as “the Fourth Amendment proscription against unreasonable searches and seizures does not apply within the confines of the prison cell,” Hudson, 468 U.S. at 526, 104 S.Ct. at 3200, so, too, is the right to possess a firearm diametrically in conflict with the concept of incarceration and the needs and objectives of penal institutions. As the Supreme Court found in Hudson regarding an inmate’s right to privacy in his prison cell, “it would be literally impossible to accomplish ... prison objectives” if inmates retained a Fourth Amendment proscription against unreasonable searches. Hudson, 468 U.S. at 527, 104 S.Ct. at 3200. Similarly, an inmate in jail or prison has no right to possess any firearm, a matter of compelling necessity no one would seriously dispute.

The precise question here is whether La. R.S. 14:95.1 unconstitutionally infringes upon Draughter’s right to possess a firearm as a convicted felon who was |1fistill under the state’s supervision, but was no longer in its physical custody. As a probationer or parolee, Draughter was still serving a portion of the sentence which he received for violation of a criminal law serious enough to be categorized as a felony. Although speaking specifically of inmates in a custodial setting, the following Supreme Court characterization applies equally to those convicted felons who are serving sentences of probation or parole, as they

... have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.

Hudson, 468 U.S. at 526, 104 S.Ct. at 3200. By necessity, the state must exercise continuing supervision and control over these convicted felons as they complete the punishments which have been meted out for their criminal activity.

For these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm. These persons are still serving a portion of a criminal sentence. There will necessarily be intrusion into their lives by state actors administering the supervision required by their status. The possession of a firearm is inconsistent with that status and would subject the individuals tasked with their supervision to an untenable safety risk. As this court found in Amos, the felon in possession statute:

... was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of |17certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.

Id., 343 So.2d at 168. The governmental interest served by this statute as applied to persons under the state’s supervision and control may be described as an interest of the “highest order.” See Warner, 2005-1303, p. 46; 21 So.3d at 252.

Having found the statute serves a compelling governmental interest as applied to a person still under state supervision, we find La. R.S. 14:95.1 also satisfies the requirement that it be narrowly tailored to serve that compelling interest. The statute at issue actually advances the state’s interest in preventing persons under state supervision from possessing firearms. This rule is reasonably necessary and is the least restrictive means to serve and further the state’s interest. Because of the defendant’s status as a person under state supervision, the precise parameters of whether the statute is under-inclusive or over-inclusive in other factual settings cannot be fully explored. Warner, 2005-1303, pp. 47-50; 21 So.3d at 252-254.

Finding both a compelling state interest in the state’s regulation of a convicted felon still under the state’s supervision in La. R.S. 14:95.1 and that the statute is narrowly tailored to achieve that interest, we hold La. R.S. 14:95.1 survives strict scrutiny and is not an unconstitutional infringement of Draughter’s right to bear arms under article I, section 11, as applied to the narrow fact situation before us today.

CONCLUSION

After reviewing the statute under a strict scrutiny analysis, we hold La. R.S. 14:95.1, as applied to a convicted felon still under state supervision, does not unconstitutionally infringe upon the right to bear arms secured by article I, section 11S11 of the Louisiana Constitution. The district court’s ruling that La. R.S. 14:95.1 is unconstitutional is reversed. The district court’s ruling granting the defendant’s motion to quash the bill of information is reversed. This matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . Recognizing the importance his prior felony conviction would have on the scope of our analysis in this case, the court requested supplementation of the record. The supplemented record reveals the defendant was originally charged with attempted burglary of an inhabited dwelling, which was later amended to attempted simple burglary.

      . Since this case comes to us in a pre-trial posture, the circumstances of the offense are not presently before us.

      . The affidavit also asserted Draughter failed to comply with reporting requirements, payment of supervision fees, and a requirement to obtain employment.

      . La. R.S. 49:257(C) provides: "Notwithstanding any other law to the contrary, the attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed." See also La.C.Cr.P. art. 62(B), which provides: "The attorney general has authority to institute and prosecute, or to intervene in any proceeding, as he may deem necessary for the assertion or protection of the rights and interests of the state."

      . La. Const. art. V, § 5(D) provides in pertinent part: "(D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional...."

      . Legislative committee minutes for the introduction of the legislation to amend the state constitution show the holdings in these federal cases were discussed, as well as the possibility that these holdings might later be threatened by a change in the composition of the Supreme Court.

      . In its original brief, the district attorney's office did not raise the question of the retro-activity of the statute. In supplemental briefing, however, the district attorney’s office has joined with the attorney general’s office in raising this threshold issue.

      . See City of New Orleans v. Kiefer, 246 La. 305, 164 So.2d 336 (La.1964) (reasonable legislative regulation approved for alleged infringement of freedom of speech and right to peaceful assembly) and City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (La.1964) (relied upon previous ruling which found similar prohibition unreasonable and arbitrary and bearing no rational relation to public health, safety, morals or welfare for claims of violations of due process, free speech, invasion of privacy, and discrimination) (emphasis added).
      The reasonableness standard was also used in subsequent cases which tested La. R.S. 14:95.1 in other contexts. State v. Wiggins, 432 So.2d 234 (La.1983) addressed whether La. R.S. 14:95.1 applied to a defendant who had been automatically pardoned for his prior felony conviction under La. Const. article IV, section 5E(1) and restored all rights of citizenship under La. R.S. 15:572(D). Relying on Amos, the court found the criminal statute applicable to the defendant, as the defendant’s automatic pardon did not erase his status as a convicted felon. Wiggins held: "... we are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain serious felonies. Such a restriction does not unconstitutionally contravene defendant's right to keep and bear arms.” Id., 432 So.2d at 237 (emphasis added). In State v. Williams, 392 So.2d 448 (La.1980), the court held a person charged under La. R.S. 14:95.1 could not attack the predicate felony on collateral constitutional grounds. Id., 392 So.2d at 450. The court reiterated "La. R.S. 14:95.1 represents a reasonable exercise of the police power.” Id. (emphasis added).

      . See Second Supplemental Brief of Appellee, p. 3; Second Supplemental Brief on Appeal of the State of Louisiana, Appellant, p. 6.

      . La.C.Cr.P. art. 895(A)(6) provides: "(A) When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall ... (6) Refrain from owning or possessing firearms or other dangerous weapons.”

      . The defendant admits he was still on active probation at the time of his arrest for the instant offense.

      . We are assuming for the sake of this argument that Draughter has such a right to assert. We are not asked here to decide exactly what rights of citizenship are restored to a convicted felon after termination of state or federal supervision.

      . We note persons under state supervision are also required as conditions of probation and parole to refrain from engaging in criminal conduct generally and to forego the full exercise of a variety of constitutional rights, including their rights to privacy, to travel freely, to free association, to possess firearms, and to be free of searches except upon probable cause. See e.g. La.C.Cr.P. art. 895(A)(6), (8), (9), and (13)(a); La. R.S. 15:574.4.2(A)(1), (2)(b), (d), (i) and (j). This list is illustrative and is not intended to be exclusive.

      . Although the statutory conditions of probation and parole already prohibit the possession of a firearm, we find the legislature, in the exercise of its police power, has the authority to make this violation a separate criminal offense.


source: Caselaw Access Project

author: VICTORY, J.

license: Public Domain

text:
    In re Raymond THOMAS, Jr., Justice of the Peace Candidate Ward 1 Assumption Parish State of Louisiana.
    No. 2013-O-2055.
    Supreme Court of Louisiana.
    Dec. 10, 2013.

      Office of Special Counsel, Judiciary Commission of Louisiana, Mary Frances Whitney, Special Counsel, Lantz Savage, Hearing Officer Section, Judiciary Commission of Louisiana, Brian Paul Wiggins, for Applicant.
    Raymond Thomas, Jr. (In Proper Person), for Respondent.
   VICTORY, J.

|! This matter arises from the failure of Raymond Thomas, Jr. (“Mr. Thomas”), a candidate for the office of justice of the peace, to comply with the financial reporting requirements of Louisiana Supreme Court Rule XL. The hearing officer, Judge Patrick M. Schott, retired (“Judge Schott”), found that Mr. Thomas failed to file his 2012 personal financial disclosure statement timely, and that he acted willfully and knowingly in failing to comply with the financial disclosure rule. Judge Schott recommended that Mr. Thomas be ordered to pay a penalty of $500.00 and to reimburse the Judiciary Commission for costs. For the reasons set forth below, we find that Mr. Thomas willfully and knowingly failed to timely file his 2012 personal financial disclosure statement and order that he pay a penalty of $200.00 plus costs of $401.00.

FACTS AND PROCEDURAL HISTORY

Supreme Court Rule XL, § 1(A) requires any person who becomes a candidate for justice of the peace to file a financial disclosure statement as required by Supreme Court Rule XXXIX within ten days of the day the person files his or her notice of candidacy for the office. On August 3, 2012, Lauren McHugh Rocha, general counsel to the Judicial Administrator’s Office (“JAO”), mailed a memorandum to all 12of the clerks of court in the parishes with upcoming elections. Enclosed with the memorandum were several packets that the clerks of court were asked to distribute to all judicial candidates who qualified to run. The packets contained a letter to the candidates notifying them of the requirement that they file a financial disclosure statement within ten days of qualifying, and contained a copy of a blank disclosure form. Mr. Thomas, a non-lawyer, qualified as a candidate for Justice of the Peace, Ward 1, Assumption Parish, on August 15, 2012. At that time, he signed a ledger signifying as follows: “[b]y my signature, I acknowledge that upon qualifying as a candidate for judicial office, I was provided a packet that included ... the Supreme Court Personal Financial Disclosure Statement for Justices of the Peace.” Mr. Thomas did not file a financial disclosure statement by August 25, 2012. Accordingly, on September 6, 2012, the JAO sent him a notice of delinquency by certified mail, informing him that within fourteen days, or by September 27, 2012, either the financial disclosure statement or a written answer contesting the allegation of such failure must be filed. The notice of delinquency outlined the consequences |3for failing to file, and provided contact information for the JAO should Mr. Thomas have any questions regarding the matter. Mr. Thomas signed for the certified mail containing the delinquency notice on September 10, 2012, but did not file the financial disclosure statement. On October 5, 2012, the JAO reported to the Judiciary Commission (the “Commission”) that Mr. Thomas filed to file a financial disclosure statement within ten days after qualifying as a candidate and failed to respond to the September 6, 2012, notice of delinquency. On October 15, 2012, the Office of Special Counsel (“OSC”) sent Mr. Thomas a letter of inquiry regarding his failure to file. Mr. Thomas received the letter but did not respond to it. He subsequently lost the election on November 6, 2012, and thereafter, the Commission referred the matter to the JAO for further proceedings in accordance with La. Sup. Ct. Rule XL, § 4(C). On April 19, 2013, Formal Charge HO-2013-1 was filed alleging that Mr. Thomas 1 ¿acted willfully and knowingly in failing to timely file the financial statement. Mr. Thomas was served with the charge on April 24, 2018, but did not file an answer to the charge.

This Court appointed Judge Schott to conduct a hearing pursuant to La. Sup.Ct. Rule XL, § 4(C). At the hearing conducted on August 7, 2018, Mr. Thomas testified that he received the packet when he qualified but that the letter from the JAO regarding the financial disclosure requirement was not in the packet. He further testified that each time he received a letter regarding his need to file a financial disclosure statement, he either called or personally went to the Assumption Parish Clerk of Court’s office and was told each time that he did not need to file the statement because he was not running for a parish-wide office. He testified he did not call the JAO’s office because “I was informed that I didn’t have to file” by personnel from the clerk of court’s office and “[t]hat’s where I was given the packet from, and they should know.” He acknowledged that it would have been very easy for him to fill out the form, especially as he did not receive money from anyone, but that he was told by the clerk of court’s office not to file it so he did not. He testified that he had previously filed a financial disclosure statement when he ran for sheriff (because it was a parish-wide election), and that he was previously sanctioned $3,500.00 for failing to file proper campaign documents in a school board race.

Judge Schott found that Mr. Thomas failed to file the financial disclosure statement and that his failure to file the statement was willful and knowing under La. S.Ct. Rule XL, § 4C and Rule XXXIX § 4(F)(8). Judge Schott found that Mr. Thomas’s testimony regarding the clerk’s office employees directing him not to file the disclosure statement was not credible, noting that he put forth no evidence to support this claim other than his own testimony. Even if true, Judge Schott found that |fiMr. Thomas’s reliance on information from the clerk of court’s office was unreasonable because all of the correspondence plainly identified the JAO as the proper contact. Further, even if Judge Schott were to believe Mr. Thomas’s testimony that the packet given to him did not include Ms. Rocha’s letter, the blank form included in the packet stated that it was to be returned to the JAO and his signature acknowledged receipt of the packet and his obligation to file a financial disclosure statement. In addition, he acknowledged receiving the inquiry letter and his failure to respond to that letter alone distinguished his behavior from “merely negligent” to “willful and knowing.” Lastly, Judge Schott found Mr. Thomas was “no stranger to running for office” which carries with it certain responsibilities that he should have known about. Accordingly, Judge Schott found that Mr. Thomas failed to file the required financial disclosure statement and the failure was willful and knowing; thus, Judge Schott recommended a civil penalty of $500.00 plus costs. Pursuant to La. Sup.Ct. Rule XXXIX, § 4(F)(7), this Court assigned the case for oral argument.

DISCUSSION

La. Sup.Ct. Rule XXXIX requires the filing of annual financial disclosure statements by judges and justices of the peace. This rule became effective as to justices of the peace on January 1, 2010. La. Sup.Ct. Rule XL requires that non-incumbent candidates for judge and justices of the peace also file financial disclosure statements as required by La. Sup.Ct. Rule XXXIX, and this rule became effective as to candidates for justice of the peace on January 1, 2010.

La. Sup.Ct. Rule XL, § 3, provides that “[a]ny person who becomes a candidate for the office of justice of the peace shall file a financial disclosure statement as provided in Louisiana Supreme Court Rule XXXIX, Section 3.” La. Sup.Ct. Rule XL, § 4(A) provides that if a candidate fails to file the statement as ^required or omits any required information, or the JAO has reason to believe the statement is inaccurate, “the matter shall proceed in accordance with ... Rule XXXIX, Section 4.” La. Sup.Ct. Rule XXXIX, § 4 requires that the JAO notify the person of his failure to file “by immediately sending him or her by certified mail a notice of delinquency immediately upon discovery of the failure ...” This was done by the JAO in this case on September 6, 2012. If the person then files the statement, “no penalties shall be assessed against the person.” La. Sup.Ct. Rule XXXIX, § 4(B). However, if the person fails to file the statement by the deadline stated in the notice of the delinquency, the JAO refers the matter to the Commission. This was done in this case on October 5, 2012. Mr. Thomas subsequently lost the election on November 6, 2012, and thereafter, the Commission lost jurisdiction and referred the matter back to the JAO for further proceedings in accordance with Supreme Court La. Sup.Ct. Rule XL, § 4(C). Accordingly, Judge Schott was assigned to conduct the hearing and report to the Court.

La. S.Ct. Rule XXXIX, § 4(F)(3) provides that the hearing is limited to three issues: “(i) whether or not the individual failed to file a financial statement; (ii) whether or not the individual failed to disclose or accurately disclose the required information, and (iii) whether the failure was willful and knowing.” Judge Schott made a recommendation in accordance with Rule XXXIX, § 4F(6) that Mr. Thomas failed to file the statement, that the failure was willful and knowing, and recommended the imposition of civil penalties of $500.00 plus costs.

Violations of Rule XXXIX must be proven by clear and convincing evidence. In re Threet, 11-0875 (La.10/25/11), 74 So.3d 679, 684. It is undisputed that Mr. J/Fhomas failed to file the financial disclosure statement. Therefore, the only remaining issue is whether this failure was “willful and knowing.”

Effective January 23, 2012, the following definition of “willful and knowing” was incorporated into Rule XXXIX, § 4(F)(3):

For purposes of Rule XXXIX, “willful and knowing” means conduct involving bad faith, dishonest motive or a purposeful choice not to file the financial disclosure statement in order to obtain some personal or professional gain (including, but not limited to, a desire not to disclose one’s personal assets to the public, or the desire not to take the time, trouble and effort to complete the form with the knowledge that it is required by a certain date).

This definition represents a change from its original meaning, wherein this Court previously classified actions as “willful and knowing” as those which involve bad faith or a purposeful choice not to file the disclosure statement in order to obtain some personal or professional gain. See In re Hoffman, 11-0417 (La.7/1/11), 66 So.3d 455; In re Flaherty, 11-0418 (La.7/1/11), 66 So.3d 461; In re Thomas, 11-0572 (La.7/1/11), 66 So.3d 466; In re Sanborn, 10-2051 (La.11/30/10), 50 So.3d 1279. We previously refused to find a “willful and knowing” violation where the failure to timely file was “a case of mere neglect, and not willful and knowing disobedience of the rule.” Sanborn, supra at 1282-83. Further, “we recognized some leniency is appropriate where the judge’s violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.” Id. (citing In re Morvant, 09-747 (La.6/26/09), 15 So.3d 74, 80). Under those standards, we never found a willful and knowing violation of Rule XXXIX, but we warned that “such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year.” Hoffman, supra; Flaherty, supra; Thomas, supra. Accordingly, in the subsequent case of In re Threet, 11-0875 (La.10/25/11), 74 So.3d 679, 684, we reasoned that “ ‘personal or professional gain’ is to be | ^interpreted broadly,” and that “the ‘gain’ can be anything from a desire not to disclose one’s personal assets to the public, to a desire not to take the time, trouble and effort to complete the form with knowledge that it is required to be filed by a certain date.” This definition was then incorporated into Rule XXXIX, § 4(F)(3) effective January 23, 2012.

We find the evidence clear and convincing that Mr. Thomas’s failure to file the disclosure statement was willful and knowing because it involved a “purposeful choice not to file the financial disclosure statement in order to obtain some personal or professional gain,” in this ease, “the desire not to take the time, trouble and effort to complete the form with the knowledge that it is required by a certain date.” Assuming Mr. Thomas was told by the clerk of court’s office that he was not required to file a disclosure statement because it was not a parish-wide election, when notified twice more, once in the notice of delinquency and once in the letter of inquiry, that he was in fact required to file the form, he knowingly disobeyed the rule by failing to file. This case is similar to Threet, where the justice of the peace mistakenly filed the wrong form and we held that “while respondent at first was merely negligent for his untimely filing because he was mistaken as to the correct form to file, once it was made clear to him what the rule required, he knowingly disobeyed the rule by waiting six weeks to file the proper disclosure statement.” 74 So.3d at 685.

Having found a violation of the financial reporting rules, La. Sup.Ct. Rule XXXIX, § 4(F)(7) provides that the Court shall assess civil penalties of “up to fifty dollars per day, in the Court’s discretion,” for statements required by justices of the peace or candidates for justice of the peace, and “all or a portion of the costs incurred by the Office of Special Counsel and the Commission, in the Court’s discretion.” As Mr. Thomas has still not filed the disclosure statement, the $500.00 penalty 19recommended by Judge Schott is well within the discretionary range set by the rules and was penalty recommended by the OSC. A $500.00 penalty is commensurate to the penalties imposed in some other first offense Rule XXXIX cases. In re LaGrange, 11-714 (La.10/25/11), 74 So.3d 661 ($500.00 penalty); In re Myers, 11-874 (La.10/25/11), 74 So.3d 672 ($500.00 penalty); In re Landry, 12-1946 (La.12/4/12), 105 So.3d 707 ($500.00 penalty). However, we have also imposed lesser penalties for the same violation. In Threet, supra, we imposed a $300.00 penalty for his first violation of the disclosure rule. 74 So.3d 679, and in four other cases we imposed $200.00 penalties. Hoffman, supra; Flaherty, supra; Thomas, supra; In re Cook, 11-715 (La.10/25/11), 74 So.3d 667. After reviewing the above cases, we find that a $200.00 penalty is warranted in this case.

The evidence shows that OSC incurred costs of $125.00 to perpetuate the testimony of Ms. Rocha, and Judge Schott reported costs incurred in the amount of $276.00 for court reporting services. This Court has discretion whether or not to award costs and in our discretion, we award costs in this case.

CONCLUSION

We find the record establishes by clear and convincing evidence that justice of the peace candidate Raymond Thomas, Jr. failed to comply with the financial disclosure requirement of Louisiana Supreme Court Rule XL and that this failure was willful and knowing, thereby subjecting him to a civil monetary penalty. Accordingly, it is ordered that Mr. Thomas pay a civil penalty to the State of |inLouisiana, Judicial Branch, in the amount of $200.00, plus costs in the amount of $401.00, no later than thirty days from the finality of this judgment.

      . The letter stated in full:
      Pursuant to Part N, Rule XL of the Rules of the Louisiana Supreme Court, "any person who becomes a candidate for any elective office of judge or justice of the peace shall file a financial disclosure statement as required by Rule XXXIX of the Rules of this Court.” (Rules XXXIX and XL can be found on the Louisiana Supreme Court’s website at www.lasc.org.)

      The enclosed financial disclosure statement must be filed with the Office of the Judicial Administrator within ten days of qualifying for judicial office. As set forth in Rule XL, Section 4A and Rule XXXIX, Section 4, a candidate can be subject to serious penalties by not complying with this requirement.
      If you have any questions regarding this matter, please contact Ms. Tereze Matta at 504-310-2620. Thank you.

      . La. S.Ct. Rule XL, § 4(A) provides ”[i]f a candidate fails to timely file a financial disclosure statement as required by this Rule, ..., the matter shall proceed in accordance with Louisiana Supreme Court Rule XXXIX, Section 4.” La. S.Ct. Rule XXXIX, § 4(A)(1) provides "[i]f a person fails to timely file a financial statement as required by this Rule, ... the Judicial Administrator’s Office shall notify the person of such failure ... by sending him or her by certified mail a notice of delinquency immediately upon discovery of the failure ...” La. S.Ct. Rule XXXIX, § 4(A)(2) provides ”[t]he notice of delinquency shall inform the person that the financial statement must be filed ... or that a written answer contesting the allegation of such failure ... must be filed no later than fourteen business days after receipt of the delinquency” and must "include the deadline for filing the statement [or] filing the answer ...”

      . La. S.Ct. Rule XXXIX, § 4(A)(3) provides that the JAO "shall inform the person in the notice of delinquency that failure to file the statement ... or to file an answer contesting the allegation by the deadline shall result in the imposition of penalties as provided in Subsection F of this Section.”

      . La. S.Ct. Rule XXXIX, § 4(C)(1) provides "[i]f the person fails to file the statement ... or fails to file a written answer prior to the deadline contained in the notice of delinquency, the Judicial Administrator’s Office shall refer the matter to the Judiciary Commission.”

      .The Commission loses jurisdiction when a candidate loses the election or withdraws from the race. La. S.Ct. Rule XL, § 4(C) provides:
      In the event any financial disclosure proceeding involving a non-lawyer candidate is pending before the Judicial Administrator and/or the Judiciary Commission as provided for in La. S.Ct. Rule XXXIX, Section 4, and the non-lawyer candidate (1) loses the election that he or she is qualified for; ..., the Judicial Administrator shall so inform the Court. The Court shall then assign a retired judge to conduct a hearing and report to the Court. The proceeding shall continue to be prosecuted as necessary by the Office of Special Counsel. Any hearing that may be required shall be conducted in accordance with La. S.Ct. Rule XXIII, Section 29, and La. S.Ct. Rule XXXIX, Section 4F. However, the assigned, retired judge shall, upon conclusion of the hearing, make a written determination in accordance with La. S.Ct. Rule XXXIX, Section 4F(5), or make a recommendation to the Court in accordance with La. S.Ct. Rule XXXIX, Section 4F(6). In the event the assigned, retired judge files a recommendation with the Court in accordance with Section 4F(6), the Court shall then decide the matter in accordance with La. S.Ct. Rule XXXIX, Section 4F(7).

      . See note 5, supra. The reference in Rule XL, § 4(C) to Rule XXXIX, § 4(F)(7) allow the Court to decide this case like other cases involving justices of the peace who fail to comply with their reporting obligations.

      . Subsequently, when he violated the rule a second year, we imposed a $2,500.00 penalty, plus costs. In re Threet, 12-1501 (La.12/4/12), 105 So.3d 676.

      . In cases decided prior to November 16, 2011, costs were not awarded because there was no provision in Rule XXXIX for the assessment of costs. Rule XXXIX, § 4(F)(7) was amended effective November 16, 2011 to allow the Court, in its discretion, to award all or part of the costs incurred by the OSC and the Commission.


author: PER CURIAM. JOHNSON, C.J.

text:
    STATE of Louisiana v. Brandon SMITH.
    No. 2012-K-2358.
    Supreme Court of Louisiana.
    Dec. 10, 2013.

      Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, District Attorney’s Office, Orleans Parish, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Chief of Appeals, Scott Gerard Vincent, Assistant District Attorney, for Applicant.
    Powell Wingfield Miller, for Respondent.
   PER CURIAM.

I,We granted the state’s application to review the split-panel decision of the Fourth Circuit reversing defendant’s conviction and sentence for distribution of cocaine in violation of La.R.S. 40:967(A)(1) on grounds of insufficient evidence. State v. Smith, 11-1669 (La.App. 4 Cir. 10/3/12), 101 So.3d 524 (Lombard, J., dissenting). For reasons that follow, we reinstate defendant’s conviction and sentence.

The circumstances leading to defendant’s prosecution on a single count of cocaine distribution are undisputed. By way of background, and as elaborated in testimony on defendant’s motion to suppress the evidence, on August 2, 2010, Detective Daniel Hunter, acting on a tip from a confidential informant, orchestrated a controlled purchase of crack cocaine from the residence located at 531 Sixth Street in New Orleans. The officers conducting the operation observed Hunter’s informant walk up to the house and hand money to Jason Smith, defendant’s twin brother, who met him at the door. Jason went back into the house, and a short time later came back out and handed the informant an object he represented as crack cocaine.

|2After confirming that the substance sold to his informant was crack cocaine, Detective Hunter secured a warrant to search the residence on Sixth Street and immediately returned to the scene. Before executing the warrant, Detective Hunter established a surveillance of the residence to make sure Jason Smith was present. Trial testimony begins at this point in the investigation. Hunter informed jurors that he parked five to 10 car lengths away from the residence and used binoculars to observe the premises. After approximately one hour, during which he had observed no activity, the detective witnessed a man on a bicycle ride up to the house and knock on the door. Defendant answered, and apparently instructed the unknown male to relocate a short distance away. Defendant then went back into the house. A short time later, defendant left the house and approached the man on the bicycle waiting for him on the nearest corner at St. Thomas and Sixth Street. The bicyclist handed defendant an undetermined amount of currency. In return, defendant removed a white object from his mouth and handed it to the man. The bicycle rider inspected the object briefly and then put it into his mouth, and rode away unimpeded by Hunter or any of his back-up officers. Hunter explained why they did not stop the bicyclist: “When the buyers buy their narcotics they place it in their mouths. "When we attempt to stop those buyers, they swallow their narcotics so they don’t get arrested.”

Following the exchange, defendant walked back into the house. Detective Hunter continued his surveillance until Jason walked out on the porch. Satisfied that the original target of his investigation was in the residence, Hunter alerted his back-up units to execute the warrant. Detective Kyle Hinrichs entered the house first and observed Jason start to run upstairs. Hinrichs followed Jason up the stairs into a bedroom, and then into an attached bathroom. Although Jason’s hands had been empty when he began running upstairs, Hinrichs observed Jason at the toilet |3holding a clear plastic bag filled with white objects the officer believed were crack cocaine. Jason threw that bag into the toilet and successfully flushed it down.

The officers placed Jason and defendant under arrest. The other occupants of the house, some of them children, were not arrested, as they had no connection to the narcotics sales. A search incident to the arrests was conducted in the bedroom into which Jason was seen fleeing. That search uncovered Jason’s state identification card, a razor blade with white residue, and three boxes containing ammunition. Defendant had $11 in his pocket, and Jason had $10; neither twin was armed with a weapon.

After the inside of the house was secured, Detective Hunter obtained a saw and cut the PVC pipe leading outside from the bathroom where Jason flushed the bag. Hunter directed another detective to flush the toilet, and the bag Jason had thrown in the toilet eventually came through the pipe and fell into police custody. The bag contained 50 pieces of individually wrapped crack cocaine, white in color, in addition to two other bags, containing six and three pieces of cocaine, respectively, also white and also individually packaged, for a total of 59 rocks of cocaine. Detective Hunter testified that the manner in which the cocaine had been packaged was customary for resale purposes on the street. The officer conceded, however, that he could not state definitively that the object defendant removed from his mouth and the same object placed by the bicyclist in his mouth during the earlier exchange was, in fact, crack cocaine, or that it was sold out of the plastic bag recovered from the drain pipe. No other drugs of any nature were, however, found on the premises.

The state initially charged defendant together with his twin brother in one count of possession of cocaine with intent to distribute. On the morning of trial, the state amended the bill of information and separated the charges against the |4brothers. The count charging Jason Smith remained the same but in a separate count the state charged defendant with distribution of cocaine based on the exchange conducted with the unknown man on the bicycle. On May 18, 2011, a 12-person jury found defendant guilty as charged and Jason Smith guilty of the lesser included offense of simple possession of cocaine. On June 10, 2011, after denying motions for a post-verdict judgment of acquittal and for a new trial, the court sentenced defendant to 10 years’ imprisonment at hard labor and his twin brother to four years’ imprisonment at hard labor.

Defendant alone appealed his conviction and sentence, arguing in a single assignment of error that the evidence presented at trial was insufficient to support the jury’s verdict. A majority on the Fourth Circuit panel agreed. Focusing on Detective Hunter’s admission he could not state definitively what defendant had exchanged with the bicyclist, the majority concluded that “[bjecause the State has failed to prove that the item the defendant allegedly transferred was a controlled dangerous substance, the State has failed to prove that the defendant is guilty of distribution of cocaine.” Smith, 11-1669 at 12, 101 So.3d at 531. The majority further noted that the state had failed to provide “any case law in support of its argument that the evidence was sufficient to support the defendant’s conviction.” Id. Dissenting, Judge Lombard observed that “[v]iewing the evidence in the light most favorable to the prosecution, it can be reasonably inferred that the defendant knowingly or intentionally distributed cocaine to the unknown male on the bicycle.” Smith, 11-1669 at 1, 101 So.3d at 531 (Lombard, J., dissenting).

We agree with Judge Lombard that the evidence presented at trial was sufficient for any rational trier of fact to find beyond a reasonable doubt that the small white object defendant removed from his mouth and handed to the bicycle rider was crack cocaine. Substantial jurisprudence exists, in fact, for the | .^proposition that a contraband drug may be identified by circumstantial evidence as well as direct testimony with respect to scientific tests conducted on the substance. See, e.g., United States v. Eakes, 783 F.2d 499, 505 (5th Cir.1986) (Such circumstantial proof may include “ ‘ “evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.” ’ ”) (quoting United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984) (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976))); State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d 709, 713-14 (“The federal courts subscribe generally to the view 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, the lack of scientific evidence does not warrant reversal.’ Identification of a controlled substance does not require direct evidence if available circumstantial evidence established its identity beyond a reasonable doubt.... 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.”) (quoting United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984) (other citations omitted)); State v. Chatman, 599 So.2d 335, 347 (La.App. 1 Cir. 1992) (“As long as there is sufficient lay testimony or circumstantial evidence from which a jury could find beyond a reasonable doubt that a substance was identified beyond a reasonable |6doubt, the lack of scientific evidence does not warrant reversal”) (citing United States v. Sanchez De-Fundora, 893 F.2d 1173, 1175 (10th Cir.1990)).

In the present case, defense counsel vigorously challenged the state’s evidence for what it apparently lacked. Counsel emphasized that the police had not used any cameras' or video recorders to document their surveillance of the residence or capture the sale ostensibly conducted by defendant at the nearest corner. The officers had let the bicycle rider pedal away unimpeded and the police had not even photographed the cut drain pipe from which the plastic bag filled with crack cocaine emerged. Defense counsel also sharply questioned whether a police officer, even in an unmarked car, could maintain an hour-long surveillance using binoculars and escape notice of someone bent on selling drugs as well as someone intent on buying drugs only a short distance away. And, counsel’s cross-examination led Detective Hunter to acknowledge he could not exclude the possibility the white object he observed during defendant’s exchange with the bicyclist could have been bubble gum or candy. Detective Hunter pointedly observed that he “originally didn’t charge [defendant] with distribution of cocaine.” In fact, as indicated by the arrest register filed in the record, the detective had arrested both brothers for possession of cocaine with intent to distribute, the charge initially brought by the state against defendant as well as Jason Smith. Driving the point home, counsel asked the detective: “My question is, as you sit here today, with Brandon being charged and on trial for distribution of cocaine, you can’t tell me that Brandon actually distributed cocaine, can you?” Detective Hunter replied simply, “No sir.”

But jurors, not Detective Hunter, were the fact finders at trial. When a case rests primarily on circumstantial evidence and jurors reasonably reject the hypothesis of innocence advanced by the defendant, “that hypothesis falls, and the 17defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). This Court has emphasized that the due process, rational trier of fact standard set forth by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for reviewing the sufficiency of the evidence, does not serve as a vehicle for second guessing the rational credibility determinations of the fact finder. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). Thus, “the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). We also accord due deference “to the good sense and fairmindedness of jurors who have heard the evidence.” State v. Jarman, 445 So.2d 1184, 1188 (La.1984).

In the present case, jurors clearly found credible Detective Hunter’s testimony with respect to what he observed between the bicyclist and defendant at the corner of Sixth Street and St. Thomas near his surveillance point despite the failure of the officer to record the transaction as tangible proof it occurred. We find nothing irrational in that decision. Mussall, 523 So.2d at 1311 (“[E]ye witness testimony alone is usually sufficient in the mill run of cases[.]”). Given that credibility determination, jurors acting with good sense reasonably rejected the defendant’s hypothesis of innocence because people ordinarily do not meet on a street corner to conduct a mouth-to-mouth exchange of bubble gum or candy for money. As the prosecutor argued in closing, what the detective saw was a narcotics transaction because the alternative proposed by defendant asked jurors “to believe that somehow the guy on the green bike said, ‘Thanks for taking the gum out of your mouth and giving it to me, here is some money’...

Is As to what controlled substance that transaction involved, Detective Hunter described the object defendant removed from his mouth and exchanged for money as white in color, the same color as the individually wrapped pieces of crack cocaine subsequently recovered from the drain pipe of the residence on Sixth Street, from which defendant had emerged to make the sale. Detective Hunter also described the individually packaged rocks of cocaine as “dime bags” because they sold for $10 on the street. Defendant had a relatively small amount of money on him when arrested but it was enough to cover the sale of one rock of cocaine and perhaps account for why only an odd number of rocks were found in the plastic bag flushed down the toilet by Jason Smith instead of an even 60. The officers found no other drugs besides cocaine on the premises. The prosecutor’s theory of the case, that the twin brothers were engaged in the street level sales of rock cocaine from the residence on Sixth Street, accounting for the exchange with the man on the bicycle of a single dime bag, was thus consistent overall with the evidence and supported the jury’s finding that defendant had delivered one rock of cocaine to his purchaser. Any inconsistency with that theory in the jury’s return of a lesser verdict of simple possession of cocaine for Jason Smith does not bear on the fundamental fairness of the verdict against his twin brother, “as long as the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact beyond a reasonable doubt that the defendant was guilty of every element of the crime of which he was convicted.” State v. Irvine, 535 So.2d 365, 369 (La.1988) (discussing United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984) (“The government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt. We |9do not believe that further safeguards against jury irrationality are necessary.”) (citation omitted)).

The decision of the court of appeal is therefore reversed and defendant’s conviction and sentence are reinstated.

JOHNSON, Chief Justice, dissents and assigns reasons.

JOHNSON, C.J.

dissents and assigns reasons.

hi respectfully dissent from the majority opinion. I would affirm the ruling of the court of appeal which reversed the defendant’s conviction.

In reviewing the sufficiency of the evidence to support a conviction, this Court has recognized that an appellate court in Louisiana' is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 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, 928 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). Under this standard, an appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Tate, 851 So.2d at 928.

In this case, the defendant was convicted of distribution of cocaine. La. R.S. 40:967(A)(1) provides that it shall be unlawful for any person “knowingly or intentionally ... [t]o ... distribute, or dispense, a controlled dangerous substance ... classified in Schedule II.” Cocaine and its derivatives are listed in Schedule II. La. R.S. 40:964. I disagree with the majority’s finding that the circumstantial evidence presented at trial was sufficient for any rational trier of fact of find beyond a reasonable doubt that the small white object defendant removed from his mouth and handed to the other man was crack cocaine. Based on the evidence presented, IJgdo not find the State met its heavy burden of proof when relying on circumstantial evidence.

In Louisiana, the rule as to circumstantial evidence provides 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. Thus, the Legislature “has, through this statute, provided greater protection against erroneous convictions based on circumstantial evidence than is provided by the Fourteenth Amendment. There is a possibility that the quality of evidence supporting a conviction would satisfy Jackson v. Virginia, supra, but would not satisfy the requirement of R.S. 15:438.” State v. Shapiro, 431 So.2d 372, 384 (La.1982). I find the State’s circumstantial evidence did not satisfy this standard. As explained by the court of appeal, the State failed to present any evidence of what was being transferred between the defendant and an unknown male. Detective Hunter, the only witness who saw the alleged transfer of cocaine, admitted he had no way of definitively knowing what was transferred between the defendant and the other man. Further, Detective Hunter made no effort to have the unknown male stopped or apprehended following the alleged transfer so there was no way of definitively knowing what the defendant gave to the other man. Thus, in my view, the circumstantial evidence presented did not exclude every reasonable hypotheses of innocence.

Because the State failed to prove that the item the defendant allegedly transferred was a controlled dangerous substance, I would find the State failed to prove the defendant was guilty of distribution of cocaine. Applying the Jackson standard, a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt. For these reasons, I would affirm the ruling of the court of appeal.