author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Ricky Lavelle WILLIAMS.
    No. 13-156.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 16, 2013.

      James C. Downs, District Attorney, Ninth Judicial District Court, Jamilla A. Bynog, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Ricky Lavelle Williams.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| tThe defendant, Ricky Lavelle Williams, appeals his conviction for attempted simple burglary and his sentence of six years at hard labor. For the reasons that follow, we reverse.

FACTS

On August 29, 2011, Lazell Haynes reported that his truck had been broken into while parked at the Grand Theatre in Alexandria, Louisiana. He identified the defendant, Ricky Lavelle Williams, as the person he found in his truck.

The defendant was charged by bill of with simple burglary, a violation of La.R.S. 14:62. At trial, the jury returned a verdict of guilty of the lesser included offense of attempted simple burglary. A motion for post-verdict judgment of acquittal was filed and denied, and the defendant was sentenced to six years at hard labor. This appeal followed.

The defendant comes before this court asserting three assignments of error: 1) the trial court erred in denying defense counsel’s motion to withdraw and the defendant’s motion to replace counsel; 2) the trial court erred in granting the state’s challenge for cause; and 3) the trial court erred in finding the defendant guilty of attempted simple burglary due to insufficiency of the evidence.

SUFFICIENCY OF THE EVIDENCE

In his third assignment of error, the defendant contends that the trial court erred in finding him guilty of attempted simple burglary. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court must first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, we will address this assignment of error first.

| ¾An appeal court reviews a record for sufficiency of the evidence by viewing the evidence in the light most favorable to the prosecution and asking whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A court of appeal does not reweigh the evidence or assess the credibility of witnesses. State v. Mussall, 523 So.2d 1305 (La.1988). Mussall, 523 So.2d 1305; State v. Bethley, 12-844, p. 2 (La.App. 3 Cir. 2/6/13), 107 So.3d 834, 837.

The defendant was charged with simple burglary but was convicted of the lesser included offense of attempted simple burglary, a violation of La.R.S. 14:27 and La.R.S. 14:62. Of the crime of attempted burglary, the fifth circuit stated:

Simple burglary is defined in LSA-R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable ... with the intent to commit a felony or any theft therein ...” An attempt occurs when “any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose.” LSA-R.S. 14:27(A).
Therefore, a conviction for attempted simple burglary requires proof that the defendant committed “an act for the purpose of and tending directly toward” the unauthorized entry of a dwelling or other structure “with the intent to commit a felony or any theft therein.” LSA-R.S. 14:27; LSA-R.S. 14:62; State v. Nelson, 2008-0584 (La.App. 4 Cir. 12/17/08); 3 So.3d 57, 60, writ denied, 10-166 (La.1/7/11); 52 So.3d 881....
Attempted simple burglary is a specific intent crime. State v. Petty, 99-1307, p. 3 (La.App. 5 Cir. 4/12/00); 759 So.2d at 946, 949, writ denied, 00-1718 (La.3/16/01); 787 So.2d 301. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent is a state of mind and, therefore, need not be proven as fact, but may be inferred from the circumstances and actions of the accused. Petty, 99-1307, 759 So.2d at 949.

State v. Untereiner, 11-402, pp. 13-14 (La.App. 5 Cir. 12/13/11), 82 So.3d 425, 433, writ denied, 12-25 (La.4/20/12), 85 So.3d 1268.

Haynes testified that he worked at the Grand Theatre on August 29, 2011. Haynes’s 1991 Dodge Ram had been parked in the theatre parking lot for more than a year. The truck had not run for approximately three months, and Haynes could not recall the last time he moved it.

Haynes testified that on August 28, 2011, someone entered his truck by breaking the passenger-side vent window with a brick. He did not report the incident to police. Upon discovering this, Haynes ‘deactivated’ the passenger door, assuring it could not be unlocked by reaching through the broken vent glass. He left the truck with both doors and the back hatch locked.

On August 29, 2011, Haynes was waiting for a ride after work when he saw the defendant approach the truck. He testified that the “back hatch to my door was open.” He then closed the hatch, and went around to the front door and surprised the defendant, who was in the passenger seat. Haynes closed the hatch in an attempt to trap the defendant inside the truck and asked the defendant why he was there. Haynes testified that the defendant said he thought the truck was abandoned. Haynes then called the police, and the defendant attempted to get out of the truck. The two got into a scuffle. The defendant eventually overpowered Haynes and ran away.

When asked what the defendant was doing inside the truck, Haynes testified: “I guess he was making himself at home.” Haynes also stated, “He was sitting in the seat there, you know, preparing himself I guess to rest.” Haynes further stated: | /‘my guess is that he was getting ready to go to sleep.” Haynes agreed that the defendant was just sitting in the truck, as it had been ransacked the day before.

When asked if anything was missing from his truck, the defendant testified that the “dash light,” a small device that blinked to make it appear that the truck had an alarm, was missing. Haynes did not recall initially telling police the dash light was missing. Haynes testified that the defendant was the man he saw inside his truck and who was brought back to the theatre by police. Haynes indicated that police removed the dash light from the defendant’s pocket when he was brought back to the theatre. Haynes identified it as his property. Haynes testified that he described the item as missing one screw on the battery cover. The officers verified that the item was missing a screw. Haynes also referred to the item as a compass. On cross-examination, though, Haynes admitted that the dash light was missing after the first break-in on August 28 and was not taken from the truck on August 29. Haynes testified that he never gave the defendant permission to enter his truck.

Corporal James Powell testified that he responded to a call regarding a vehicle burglary at the Grand Theatre in Alexandria on August 29, 2011. Haynes told Corporal Powell that he saw the defendant in the bed of his truck with the back hatch open. Haynes further stated that he ran across the parking lot and confronted the defendant. Haynes then closed the truck’s hatch to keep the defendant inside the truck and called police. However, the defendant subsequently overpowered Haynes and fled. The defendant was apprehended and returned to the Grand Theatre, where Haynes positively identified him.

Corporal Powell testified that Haynes stated a couple of items were missing from his truck. When the defendant was arrested, a silver dash light with a compass and some paperwork were removed from his pocket. Haynes described |5the dash light compass as silver with a missing screw. Corporal Powell testified that the compass removed from the defendant’s pocket was missing a screw.

Corporal Powell took an audio statement from Haynes at the time the August 29 offense was reported. During his statement, Haynes indicated that nothing was missing from his truck, but it had been ransacked a little bit.

Corporal James King testified that he received a description of the defendant and began looking for him. He spotted a suspect matching the description running down Sterkx Road, apprehended him, and brought him back to the Grand Theatre. The defendant was then identified by the victim. The defendant told Corporal King that he did not break into the vehicle and voluntarily went with Corporal King.

James Bettevy testified that he was employed by the Alexandria Police Department on August 29, 2011, and was dispatched to the Grand Theatre. He canvassed the area for the suspect described by Haynes. Officer Bettevy testified that he saw the defendant, who appeared to be riding a bicycle, but was in fact running. Officer Bettevy drove up to the defendant and asked him what he was doing. The defendant was sweating profusely and had grass particles on his shirt. When asked why he was running, the defendant stated that he was just jogging, and there was grass on his clothing because he stopped to rest in the grass. The defendant told Officer Bettevy that he had been detained by a subject who accused him of breaking into a vehicle, which he denied.

During a pat-down, Officer Bettevy felt what he thought might be a knife in the defendant’s pocket. The defendant stated that the object was a compass, which was confirmed by Officer Bettevy when he removed the item from the defendant’s pocket. The defendant was then transported back to the Grand Theatre, where 1 ^Haynes positively identified him. The contents of the defendant’s pockets were eventually placed on a police car. Haynes immediately identified the compass as his. At that time, the defendant became irate and accused Haynes of lying. Haynes described the compass as having a blinking light. Haynes further stated that he had changed the battery and lost one of the screws, and the compass found on the defendant was missing a screw. Officer Bettevy testified that the defendant cooperated until Haynes said the compass belonged to him. Officer Bettevy testified that Haynes said the truck had previously been broken into, and that a police report had been filed.

Detective Clifton Fairbanks testified that he turned over fingerprints given to him by Officer Bettevy to a crime scene' technician. Those fingerprints belonged to Haynes.

The defendant contends that the evidence was insufficient to convict him, as he was merely attempting to sleep in the truck. Additionally, Haynes testified that nothing was missing from the truck after the defendant’s entry therein, and the compass Haynes alleged was his was taken from his truck the previous day. The defendant notes that he was not charged with simple burglary regarding the August 28 burglary of Haynes’s truck, and that the jury erred in considering evidence of the prior burglary to find that he had the intent to commit a felony or theft inside the truck on August 29, 2011. The defendant alleges that the state failed to exclude every reasonable hypothesis of innocence and thus, his conviction should be reversed.

The state contends that the defendant’s flight from the scene indicated consciousness of guilt. Additionally, he left the back hatch of the truck open, indicating that he did not intend to stay inside and created a way of escape after the 17completion of the intended felony or theft. Further, once the defendant was apprehended, he was found in possession of Haynes’s property. The state contends that this information was taken into consideration by the jury. The state further contends that the responsive verdict rendered by the jury shows that the jury believed the defendant returned to the vehicle intending to commit another felony or theft, which is supported by the fact that the defendant was found in possession of property stolen from the burglary of the truck the previous day.

The possession of property stolen in a recent burglary does not create a presumption that the defendant committed the burglary. State v. Brown, 445 So.2d 422 (La.1984).

In State v. Smith, 02-1018 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, Charles Hebert saw the defendant open the door of a car, which caused the alarm to be activated, and put his arm inside the vehicle. The fifth circuit affirmed the defendant’s conviction of simple burglary stating the following:

Charles Hebert’s testimony, summarized above, and Jeremy Edwards’ testimony that the 2000 Nissan Sentra did not belong to Smith and that Smith did not have permission to enter the vehicle makes it difficult to imagine any hypothesis that does not include the specific intent to commit a felony or theft therein.

Id. at 126 (footnote omitted).

In State v. Mouton, 12-836 (La.App. 3 Cir. 2/27/13), 129 So.3d 49, the defendant was convicted of simple burglary of an automobile. When addressing the sufficiency of the evidence, this court stated:

In the present case, the following circumstantial evidence indicates Defendant broke the glass and had an intent to commit a felony or theft therein:
1. The owner of the car did not know Defendant or give him permission to break her car window. There was no reason to break the |swindow shown by the evidence except that Defendant was attempting a simple burglary;
2. Testimony from Detective Vanhoos-sier that he was conducting a special operation on the date in question due to the rash of car burglaries surrounding Jefferson Street;
3. The incident occurred at approximately 2:00 a.m. in the very area where the car burglaries were occurring;
4. When Defendant and his accomplice saw the police arrive, they took off running. Detective Vanhoossier caught the first suspect, Defendant’s accomplice, as he ran by. Defendant was subsequently apprehended less than fifteen minutes later. Thus, Defendant was thwarted by the police and was actually running away from the police before he could accomplish his intended purpose of burglarizing the vehicle. “Flight indicates consciousness of guilt and is a circumstance from which a jury may infer guilt.” State v. Gatti, 39,833, p. 9 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, 85, writ denied, 05-2394 (La.4/17/06), 926 So.2d 511;
5. Defendant was the individual sitting on the curb and had on a light blue shirt and a bandana, which had a chain wrapped in it and contained glass fragments consistent with the broken car window. He also matched the description given of the fleeing suspect;
6. Defendant was brought back to the scene and was positively identified by the first suspect, the accomplice, as the person he, the accomplice, had previously been with at the scene; and
7.Officer Parker testified that Defendant was one of the persons he saw running from the scene, but he did not see the actual breaking of the glass as the window was already shattered when Officer Parker came upon the vehicle.
Based on the foregoing evidence presented at trial, the fact of entry was a reasonable inference when Defendant broke the glass window. By breaking the glass window, some part of Defendant’s person would have extended inside of the car. Viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient under Jackson for the trial court to have found that an unauthorized entry of the victim’s vehicle was made for the purpose of committing a felony or theft. We cannot say its finding was erroneous. For the above reasons, we affirm Defendant’s conviction for simple burglary.

Id. at *5-6.

In State v. Wright, 36,635 (La.App. 2 Cir. 3/7/03), 840 So.2d 1271, however, the defendant entered a house undergoing extensive renovations and there were no signs of forced entry, the victim’s possessions were not displaced, he did not possess any burglary tools or weapons, and he did not wear a mask or gloves. Defendant’s conviction was reversed.

The case at bar is comparable to Smith and Mouton in that the defendant entered Haynes’s truck without permission. The case can be distinguished from those cases the small silver compass or “dash light” found in Defendant’s possession was taken when the vehicle was initially burglarized on August 28. Defendant was not charged with burglarizing the vehicle on August 28, it appeared to Haynes that Defendant was resting or attempting to take a nap, not to commit a felony or a theft.

Reviewing the evidence in a light most favorable to the prosecution, we find that the jury had sufficient evidence before it to reasonably conclude that the defendant entered the vehicle without authorization. But the evidence does not indicate that he entered it with the intent to commit a felony or theft therein. The state could not exclude the reasonable hypothesis that the defendant, believing the vehicle to be abandoned, simply wanted to rest. After all, that is what the vehicle’s owner and only witness to this event believed. As this hypothesis is one of innocence, the conviction for Attempted Simple Burglary must be reversed.

Furthermore, this court has concerns regarding whether a broken compass or “dash light” in an apparently abandoned vehicle qualifies under the admittedly broad definition of “anything of value,” as such a finding is required to obtain a conviction for any “theft.” La.R.S. 14:67. Even if the dash light were considered [ ulto be of value, possession alone by the defendant the day after the initial burglary does not give rise to a presumption that the defendant committed the burglary.

Because we find that the jury lacked sufficient evidence to say that the defendant had specific intent to commit a felony of theft on August 29, 2011, we pretermit consideration of defendant’s remaining assignments of error.

CONCLUSION

The defendant’s conviction is reversed.

REVERSED.

PICKETT, J., dissents and assigns written reasons.

| T Reviewing the evidence in the light most favorable to the prosecution, I find the evidence supports the jury’s responsive verdict of guilty of attempted simple burglary. The state clearly proved that the defendant entered Mr. Haynes’ truck without authorization. The defendant had in his possession a compass, a thing of value, when he was apprehended. The “slightest asportation of anything of value ... the slightest deprivation for the slightest period of time ... the slightest segregation of the property moved the slightest distance is sufficient to satisfy the elements of a theft[.]” State v. Neal, 275 So.2d 765, 770 (La.1973). Since the defendant was in possession of an item stolen from the truck the day before, the jury certainly could have concluded that the defendant had the specific intent to enter the truck to take something of value, rather than just take a nap.

I respectfully dissent from the majority’s opinion finding the evidence insufficient to support the conviction. Because the majority does not reach the merits of the defendant’s remaining assignments of error, I pretermit discussion of the other issues raised by the defendant.


source: Caselaw Access Project

author: AMY, Judge. COOKS, J.

license: Public Domain

text:
    STATE of Louisiana v. Derrick L. HARRIS.
    No. 13-133.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 22, 2014.

      Michael Harson, District Attorney, Lafayette, LA, F. Stanton Hardee, III, Assistant District Attorney, Abbeville, LA, for Appellee State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Derrick L. Harris.
    Derrick L. Harris, Hickory-1 Louisiana State Prison, Angola, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hFollowing a bench trial, the defendant was convicted as charged of distribution of marijuana. The trial court imposed a fifteen-year sentence to be served at hard labor. Thereafter, and pursuant to a bill of information filed by the State, the trial court adjudicated the defendant a fourth felony offender, vacated the fifteen-year sentence, and imposed the mandatory life sentence set forth in La.R.S. 15:529.1. Pursuant to the statute, the trial court imposed the sentence without benefit of parole, probation, or suspension of sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that an undercover sheriffs deputy working with the Vermilion Parish Sheriffs Office located an individual on a street in Abbeville, inquired where he could purchase marijuana, and was taken to a residence. The deputy testified that a subject he identified as the defendant, Derrick L. Harris, walked from the residence and sold him marijuana for $80.

Based on that transaction, the State charged the defendant with distribution of marijuana, a violation of La.R.S. 40:966(A)(1). After the matter proceeded to a bench trial, the defendant was convicted as charged. At sentencing, the trial court sentenced the defendant to fifteen years at hard labor, a mid-range sentence for the conviction of distribution of marijuana. The trial court subsequently denied the defendant’s motion to reconsider the sentence.

Following the defendant’s conviction, the State filed a bill of information, along with amendments, listing a total of six felonies, including the conviction for ^distribution of marijuana. Following a hearing, the trial court adjudicated the defendant a fourth felony offender. Accordingly, the trial court vacated the fifteen-year sentence imposed for distribution of marijuana and imposed a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant appeals, arguing that the sentence of life imprisonment is constitutionally excessive. In addition to his counsel-assisted brief, the defendant advances two assignments of error in proper person, asserting that the trial court erred in admitting testimony that violated the Confrontation Clause and, also, that he did not have the benefit of effective assistance of counsel.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. We have identified no such errors.

Confrontation Clause

In addressing the underlying conviction for distribution of marijuana, the defendant argues in his brief filed in proper person that the trial court erred in permitting what he contends was impermissible hearsay testimony offered by the State. He argues that the acceptance of the various points of evidence, discussed below, violated the Confrontation Clause. See U.S. Const. amend. VI; La. Const. art. 1, § 16.

| ^Police Reports

The undercover drug purchase at issue in the distribution of marijuana case involved an undercover officer approaching an individual who, according to testimony, appeared to be a juvenile and who led them to the defendant’s location. The defendant questions the State’s use of the term “The Juvenile” in the reports of two officers involved in the undercover drug purchase rather than the use of the juvenile’s name. The defendant suggests the individual’s identity was known to all involved, that everyone was aware that the individual’s mother was in a relationship with the defendant, and that the State should have been required to call the individual as a witness so as to permit cross examination. Absent this opportunity, the defendant argues, he could not conduct questioning regarding the video recording of the drug transaction and could not contest the undercover officer’s testimony. The defendant also questions the State’s failure to call an additional officer as a witness, although the witness was present at trial.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court explained that the Confrontation Clause prohibits the use of testimonial, out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine that witness. However, the defendant’s focus in this argument does not address testimonial, out-of-court statements. The State largely presented its evidence through the testimony of the undercover agent who performed the drug transaction with the defendant. A DVD recording of the alleged exchange was admitted as well. Instead, the defendant complains of the contents of a police report, with references to “The Juvenile,” which was not introduced into evidence by the State, and is only contained elsewhere within the record. Similarly, the defendant asserts that he should have phad the opportunity to cross-examine another officer who was present at trial but was not called by the State as a witness. The defendant has not connected that desired witness to any testimonial, out-of-court statement. Accordingly, the defendant’s argument lacks merit.

Chain of Custody

The defendant also asserts that the State failed to establish the chain of custody with regard to certain evidence. First, the defendant contends that the underlying offense allegedly occurred on October 2, 2008, yet, the DVD recording of the alleged transaction was dated otherwise. Further, the defendant also questions the fact that the State presented a witness who testified regarding the lab results from the seized marijuana, but that the witness was not the individual who conducted the tests. In support of his argument, the defendant cites Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011)(wherein the United States Supreme Court explained that, if the State presents a report or certification from tested evidence, then the person called to testify regarding that report or certification must have conducted or observed the underlying testing). The defendant again contends that the State’s presentation of evidence in this regard violated the Confrontation Clause.

With regard to the chain of custody of the marijuana, however, the defendant’s trial counsel stipulated to the unbroken chain from the point of recovery from the officer to the courtroom. Accordingly, that issue was waived. Neither do we find merit in the defendant’s contention that the State’s witness who identified the retrieved substance as marijuana did not perform the testing. Rather, Rachel Wickman of the Acadiana Crime Lab testified that she personally performed testing on the submitted sample. The substance had been resubmitted for | s testing after the analyst who originally tested the substance became unavailable for trial. Thus, as presented, the State’s evidence, as complained of by the defendant, does not violate Bullcoming, — U.S. —, 131 S.Ct. 2705. Accordingly, this assignment lacks merit.

Assistance of Counsel

Additionally, the defendant contends that both his trial and appellate counsel offered ineffective assistance. With regard to his trial counsel, the defendant contends that his attorney failed to adequately conduct pre-trial discovery and investigation. He asserts that such pretrial investigation would have uncovered additional law enforcement officers involved in the investigation who could have been called as witnesses. Additionally, the defendant notes that a DVD of the alleged drug transaction was played at trial although no audio was available. He argues that other officers could have been called to narrate the DVD and the events captured therein. Finally, and with regard to appellate counsel, the defendant claims that his attorney should have raised the Confrontation Clause argument he raised in proper person, discussed above.

A criminal defendant is guaranteed the effective assistance of counsel pursuant to U.S. Const. amend. VI and La. Const. art. 1, § 13. In pursuit of such a claim of ineffective assistance of counsel, a defendant must establish “(1) that counsel’s per-. formance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.” State v. Leger, 05-0011, p. 44 (La.7/10/06), 936 So.2d 108, 142-43 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Washington, 491 So.2d 1337 (La.1986)), cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). However, a claim of ineffective assistance of counsel is typically more properly resolved by post-conviction proceedings as it allows the trial court to conduct a full evidentiary hearing, if warranted. Id. However, if the appellate record contains sufficient evidence to review the defendant’s claim, the matter may be considered on appeal in the interest of judicial economy. Id.

After review, we conclude that resolution of the defendant’s claims regarding the adequacy of pre-trial discovery and decisions of representation regarding the calling of witnesses and lodging of arguments may require the testimony of those involved. Accordingly, we do not consider the defendant’s assignment and relegate the argument regarding effective assistance of counsel to post-conviction relief. Habitual Offender Sentence

In counsel-filed brief, the defendant addresses the life sentence imposed following his adjudication as a fourth-felony offender. He references the factual circumstances of the distribution of marijuana offense and notes that the amount was nominal, e.g., less than one gram of marijuana for $30, in arguing that the life-sentence resulting from the habitual offender proceeding is disproportionate. He references a number of mitigating factors from his background and notes that, at the time the trial court imposed the original sentence of fifteen years for the distribution of marijuana conviction, the trial court remarked that he was not the most egregious type of offender.

We first note that the defendant did not object to the life sentence at the time of imposition, nor did he file a motion to reconsider that sentence. In such an instance, La.Code Crim.P. art. 881.1(E) provides that the failure “shall preclude the state or the defendant from raising an objection to the sentence or from urging any |7ground not raised in the motion on appeal or review.” Thus, this court is relegated to a bare claim of excessiveness on review. See State v. Runnels, 12-167 (La.App. 3 Cir. 11/7/12), 101 So.3d 1046.

In this instance, the defendant was adjudicated a fourth felony offender. In this regard, Louisiana Revised Statutes 15:529.1 provides, in pertinent part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(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:
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The record demonstrates that the State proved that the defendant had a total of six felony convictions: distribution of cocaine, simple burglary, theft with a value between three and five hundred dollars, two counts of simple robbery, and, finally, distribution of marijuana. Pursuant to La.R.S. 14:2(B)(23), the prior convictions for simple robbery are classified as convictions for crimes of violence. Additionally, both the distribution of marijuana and distribution of cocaine convictions were for violations of the controlled dangerous substances law and |swere punishable by sentences of more than ten years. See La. R.S. 40:966(B)(3); La.R.S. 40:967(B)(4)(b). Thus, La.R.S. 15:529.1(A)(4)(b) dictated that “the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.”

As explained in State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court has repeatedly found the habitual offender law of La.R.S. 15:529.1 to be constitutional in its entirety. By extension, its minimum sentences imposed on habitual offenders are presumed to be constitutional as well. Id. Although the judiciary affords great deference to the legislature’s determination of an appropriate minimum sentence, the court can declare a sentence unconstitutionally excessive under the facts of a particular case even though it falls within the statutory parameters set forth by the legislature. Id. However, that power may only be exercised “when the court is clearly and firmly convinced that the minimum sentence is excessive.” Id. at 676.

The supreme court instructed that a sentencing judge must start with the presumption that the mandatory sentence of the habitual offender law is constitutional and may only depart from that upon a finding of clear and convincing evidence to rebut that presumption. Johnson, 709 So.2d 672. Notably,

A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or pri- or offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of ^violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.

Id. at 676. Rather, and in order to rebut the presumption of constitutionality, a defendant must clearly and convincingly demonstrate that he or she is exceptional. Id. On this final point, the supreme court further explained that the defendant must show that he or she is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to his or her culpability, the gravity of the offense, and the circumstances of the case. Id. In evaluating the defendant’s argument regarding a lesser sentence, the trial court must be mindful of the goals of the habitual offender provision. Id. As explained in Johnson,

Clearly, the major reasons the Legislature passed the Habitual Offender Law were to deter and punish recidivism. Under this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law. Given the Legislature’s constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.

Id. at 677.

In this case, the trial court imposed the mandatory life sentence as required by La.R.S. 15:529.1(A)(4)(b). Although the defendant references the trial court’s ac-knowledgement of certain mitigating circumstances and the fact that he was not the worst type of offender under the law, the'trial court made those comments at the time of the sentencing for the underlying distribution of marijuana conviction. At that time, the State had urged the imposition of the maximum, thirty-year | msentence for that conviction. Finding that the defendant was not the worst offender, however, the trial court imposed a mid-range fifteen-year sentence. Subsequently, and after the habitual offender adjudication, the trial court directly imposed the term of life imprisonment without comment as to mitigating factors.

Additionally, the defendant’s argument regarding the excessiveness of his sentence is made in reference to the circumstances of only his last felony conviction for distribution of marijuana. However, the sentence now contested resulted from adjudication under La.R.S. 15:529.1(A)(4)(b). Thereunder, the State demonstrated that the defendant had a total of six felony convictions and that the convictions fit the parameters of the statute. Accordingly, we find no abuse of discretion in the trial court’s imposition of the mandatory life sentence described therein.

While we recognize the defendant’s contention that the circumstances regarding his most recent conviction do not reflect the most grave type of offense, it is important to recall that La.R.S. 15:529.1(A)(4)(b) is specifically directed to the repeat felony offender. As noted above, the supreme court has remarked that “the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state.” Johnson, 709 So.2d at 677. In this case, the State clearly demonstrated that the defendant is such a recidivist offender, having been convicted of six felony convictions. In this light, we do not find that the trial court was obligated to find that the circumstances of the defendant’s offense(s) were exceptional and supportive of a downward deviation from the mandatory life term of La.R.S. 15:529.1(A)(4)(b). Accordingly, we affirm the defendant’s sentence.

This assignment lacks merit.

luDECREE

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

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.

Dissents.

[tUnder the majority’s decision, Defendant, an honorably discharged American veteran of Desert Storm, suffering from drug addiction, and unable to get medical help from the U.S. Veterans’ Administration, will spend the rest of his life in prison for selling .69 gram of marijuana to an undercover police officer who solicited the sale while Defendant was in his own home minding his own business. The majority ignores the fact that the trial court placed the entire record of the conviction for selling this tiny amount of marijuana into the record for the habitual offender hearing, including the transcript of the sentencing hearing at which he went to great lengths to explain why he was imposing only a fifteen-year sentence out of a possible thirty years. The majority incorrectly asserts that there was no evidence presented at the hearing on the habitual offender charge, and then fails to conduct even a review for bare excessiveness as required by our longstanding jurisprudence. It certainly is shocking to my conscience as an appellate judge to imagine that this Defendant, in light of the evidence and testimony put forth at his hearings, which the trial judge found to be credible and worthy of note, could be sent to prison for life based on the sale of .69 gram of marijuana. Although his overall record meets the technical criteria to be considered a fourth felony offender, the trial judge specially noted, after fully reviewing his past convictions, that this Defendant is not what the law means to refer to as a “drug dealer” but is simply an addict, who has, in the past, turned to crime to feed his habit. Even so, |aas the trial judge specially noted on the record, it had been over ten years since Defendant’s last conviction until his present conviction for selling a tiny amount of marijuana. Likewise, it is clear that this Defendant is not the type of defendant the legislature envisioned sending to prison for life when imposing the mandatory life sentence for habitual offenders under La.R.S. 15:529.1(A)(4)(b).

The trial judge articulated his belief that Defendant is in need of treatment for drug addiction, but noted regrettably that the law does not allow him to order such treatment but only allows him to suggest to the Department of Corrections that Defendant would benefit from such treatment. The trial judge also noted that he believed Defendant’s testimony that he has a drug addiction problem. He also believed the testimony of Defendant’s mother regarding Defendant’s addiction problem and inability to get help from the Veterans’ Administration for his health problem. She testified that her son has had an addiction problem since he returned from Desert Storm. The trial judge noted Defendant sold a small amount of drugs to feed his habit and does not seem to be the more serious type of “drug dealer” whom our laws are aimed at incarcerating for long periods of time. The trial judge remarked “I mean you were not a drug kingpin selling bales of marijuana to school children on the school ground. I mean, that’s not the kind of thing that we’re looking at here[,]” and further stated “I agree that you’re not what we would think of as a drug dealer so far as I can tell.” The trial judge further stated “But you are a four-time felon, and that presents problems that I can’t overcome for you no matter how much I would want to.” The trial judge, in determining the appropriate sentence for Defendant’s conviction for distribution of marijuana continued to express his sentiments adding “As I was saying, I think that the maximum sentence is not what is called for here ... The time between your felonies is also kind of interesting, at least for the convictions. You had one in 1994, distribution of cocaine. The simple robbery was also in 1994, the next day. So I’m guessing that |sthose were related. You had a simple burglary in '97 for which you got six years. And then you were okay until this one, all the way to 2012.” (emphasis added)

It should be obvious to any court reviewing the entire record made part of the habitual offender hearing that the trial judge, after fully considering Defendant’s prior convictions; the gravity of his latest offense which made him a fourth-time offender; the special circumstances of that conviction; and the factors unique to this Defendant, believed the maximum sentence which should be imposed on this Defendant is fifteen years. The State, having pushed for the maximum thirty-year sentence for selling .69 gram of marijuana, (based on the fact that Defendant had prior convictions) dissatisfied with the trial judge’s decision, then filed a multiple offender bill triggering a mandatory life sentence. It is clear from the record that the trial judge mistakenly believed he simply had no choice but to impose the mandatory life sentence.

The trial judge committed legal error when he sentenced Defendant to life imprisonment because he believed the law did not permit him to do otherwise. Not only does our law permit him to deviate from the mandatory sentence, he is in fact “duty bound” to do so if he makes a determination that such punishment would make no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime. State v. Dorthey, 623 So.2d 1276 (La.1993). In State v. Johnson, 97-1906, p. 8 (La.03/04/98), 709 So.2d 672, 676, quoting State v. Young, 663 So.2d 525 (La.App. 4 Cir.1995), our state supreme court held a trial judge is permitted to deviate downward from a statutory mandatory minimum sentencing provision of the Habitual Offender Law when a defendant shows by clear and convincing evidence that “[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the h offender, the gravity of the offense, and the circumstances of the case. If the trial court does find justification for reducing the mandatory minimum sentence it must then impose “the longest sentence which is not constitutionally excessive” with specific reasons explaining why the sentence it is imposing is in fact the longest sentence not constitutionally excessive as applied. Johnson, 709 So.2d at 677. The trial judge in this case had the constitutional authority and duty to deviate from the mandatory minimum sentence. It is clear from the record that this trial judge did not know that he could do so, and that he was, indeed, duty-bound to do so. The evidence made part of the record in the habitual offender hearing clearly demonstrates the trial judge did not think this Defendant deserved even thirty years let alone a life sentence. The case should be remanded to the trial court for further proceedings to determine whether this Defendant has shown that “because of unusual circumstances [he] is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson, 709 So.2d at 676 (quoting State v. Young).

The majority is satisfied to stop with the determination that the technical requirements of La.R.S. 15:529.1(A)(4)(b) are satisfied for imposition of a mandatory life sentence without benefit of probation, parole, or suspension of sentence against this Defendant as a fourth felony offender. This however, is by no means the end of the inquiry. Our notions of fundamental fairness and due process of law demand further constitutional considerations of the appropriateness of this life-sentence-without-benefit imposed on this particular Defendant for his particular offense.

As we noted in State v. Boutte, 10-928, pp. 5-6 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, 629, writ denied, 11-689 (La.10/7/11), 71 So.3d 314 (emphasis added):

| ¿¡Although the minimum sentences imposed upon multiple offenders pursuant to the Habitual Offender Law are presumed constitutional, a court has the power to declare such a sentence excessive under Article I, Section 20 of the Louisiana Constitution. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339. “A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.” State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676. To rebut the presumption of constitutionality, the defendant must show that he is “exceptional, which in this context means that because of unusual circumstances [he] is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id. at 676.

I believe it is unconscionable to impose a life-sentence-without-benefit upon this Defendant who served his country on the field of battle and returned home to find his country offered him no help for his drug addiction problem. It is an incomprehensible, needless, tragic waste of a human life for the sake of slavish adherence to the technicalities of law. It is bereft of fundamental fairness, and absent any measure of balance between imposition of the most severe punishment short of death with the gravity and culpability of the offense. I must, therefore, vigorously dissent.

      . See La.R.S. 40:966(B)(3) which provides that a defendant convicted of distribution of marijuana shall "be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.”

      . The defendant also reserved the right to file an assignment of error regarding the waiver of his right to jury trial after a supplemental transcript pertaining to that issue was received. However, and although the record now contains that transcript, the defendant did not file a related assignment.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Kyle E. EVERETT.
    No. 2013-KA-0322.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.

      Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, ' Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

| defendant, Kyle Everett, appeals his convictions by an Orleans Parish Criminal Court of attempted possession of Alprazo-lam (Xanax) and attempted possession with the intent to distribute marijuana, asserting that the trial court erred when it failed to grant his Motion to Suppress and his Motion for New Trial. For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

PROCEDURAL BACKGROUND

On December 20, 2010, the defendant, Kyle Everett, was charged by bill of information with one count of possession with the intent to distribute marijuana, in violation of La. R.S. 40:966(A), and one count of possession of Diazepam, in violation of La. R.S. 40:969(C). The bill of information was amended on April 11, 2011, to substitute Alprazolam for Diazepam. He pled not guilty to both charges and after a motion hearing, the trial court found probable cause and denied the defendant’s motions to suppress evidence and statement. A jury trial was held on April 11, 2011, and the defendant was found guilty of attempted possession with |2intent to distribute marijuana and attempted possession of Al-prazolam. The trial court set the matter for sentencing and ordered a pre-sentence investigation.

Mr. Everett filed a motion for new trial, which was denied by the trial court. The defendant filed a second motion for new trial, which the trial court also denied. The defendant next filed a motion to reconsider the motion for new trial, which, too, was denied by the trial court.

The State then filed a multiple bill of information, which was considered at the sentencing hearing held on August 23, 2011. The trial court initially sentenced defendant to ten years at hard labor for the attempted possession with the intent to distribute marijuana conviction and one year at hard labor on the attempted possession of Alprazolam conviction, both sentences to be served concurrently with the defendant to receive credit for time served. The court next considered the multiple bill of information to which the defendant pled guilty and waived all delays. The trial court vacated the original sentence on the conviction for attempted possession with intent to distribute marijuana and resentenced the defendant to serve ten years at hard labor with credit for time served, said sentence to be served concurrently with the one year sentence for attempted possession of Alprazolam.

The defendant timely filed this appeal.

FACTUAL BACKGROUND

The testimony at trial revealed that New Orleans Police Officers Samuel Birks and Joshua Hunt, members of the Fourth District Task Force, were patrolling | sthe Algiers section of New Orleans on December 15, 2010. They were driving down Americus Street when they observed the defendant, Everett, and an unknown man riding bicycles in the middle street. The officers almost ran into the men when the officers turned onto Americus Street, and Officer Birks stated that the men were “goofing off’ in the middle of the road, riding their bikes backward and forward.

The officers stopped their vehicle, intending to warn the men about the way they were riding the bicycles. When the officers got out of the vehicle and approached the men, the unknown man rode off and Officer Hunt asked the defendant to walk over towards the police car. The defendant approached the officers and said, “Do you want to talk to me? This is all I have.” At that point, the defendant opened his hand and showed the officers two pills. The officers stated that the pills appeared to be Xanax. The defendant was advised of his Miranda rights, which the defendant acknowledged that he understood.

Officer Hunt then conducted a safety pat down. The officer felt a bulge in the front of the defendant’s pants. He asked the defendant about the bulge, and the defendant told the officer that it was marijuana. The defendant shook his leg, and three bags of what appeared to be marijuana fell out of the defendant’s pants leg. One bag contained loose marijuana, and the other bag contained ten individually hand-tied baggies of marijuana. The defendant was taken to the police station, where the green material was field tested positive for marijuana. Officer Birks testified that each little baggie appeared to be a “nickel” bag, indicating a value of |4five dollars for each baggie. Officer Birks further stated that the amount of marijuana that the defendant had in his possession was excessive for personal consumption.

New Orleans Police Department crimi-nalist John Palm, Jr., testified that he tested the green material found the bag, and the green material tested positive for marijuana. Palm also tested the pills found on the defendant, and the pills tested positive for Alprazolam.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court erred when it denied the motions to suppress his statement and the evidence. Mr. Everett maintains that the officers had no reasonable suspicion to stop him, and as a result, the statements he made to the officers and the narcotics seized during the stop should have been suppressed. We disagree.

It is well settled that an appellate court is to review the district court’s findings of fact on a motion to suppress under a clearly erroneous standard, while the review of the district court’s ultimate determination of Fourth Amendment reasonableness is de novo. State v. Dorsey, 00-2331, p. 1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009, citing U.S. v. Seals, 987 F.2d 1102 (5th Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). As the Dorsey court indicated, “[o]n mixed questions of law and fact, the appellate court reviews the |sunderlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. (citation omitted). Furthermore, a trial court’s decision as to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. As noted by the Louisiana Supreme Court in State v. Thompson, 11-0915, pp. 13-14 (La.5/8/12), 93 So.3d 553, 563, “[w]hen a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” (emphasis added; citations omitted).

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974 prohibit unreasonable searches and seizures. A search without a warrant is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Warren, 05-2248, p. 13 (La.2/22/07), 949 So.2d 1215, 1226; State v. Kirk, 00-0190, p. 2 (La.App. 4 Cir. 11/13/02), 833 So.2d 418, 420. The State bears the burden of proving that one of these exceptions applies. See State v. Jones, 12-0438, p. 7 (La.App. 4 Cir. 3/13/13), 119 So.3d 9, 16, writ denied, 13-1199 (La.1/17/14), 130 So.3d 340.

Our law clearly allows a police officer to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Under the Terry standard, as codified in Article 215.1, police officers may stop a person in a public place who they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Chaplain, 12-1012, p. 4 (La.App. 4 Cir. 5/29/13), 114 So.3d 1274, 1277.

In making a brief investigatory stop on less than probable cause to arrest, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Temple, 02-1895, pp. 4-5 (La.9/9/03), 854 So.2d 856, 859-860. (internal citations omitted). The police must therefore “articulate something more than an ‘inchoate and unparticularized suspicion or ‘hunch.’ ” Id., 02-1895, p. 4, 854 So.2d at 860, quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only “ ‘some minimal level of objective justification....’” Id. (internal citations omitted).

“Reasonable suspicion” for an investigatory stop is something less than the probable cause required for an arrest, and the reviewing court must look to the |7facts and circumstances of each case to determine whether the detaining officer had sufficient articulable facts within his knowledge to justify an infringement of the suspect’s rights. State v. Guillot, 12-0726, p. 4 (La.App. 4 Cir. 4/17/13), 115 So.3d 624, 628. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048; State v. Hamilton, 00-1176, p. 6 (La.App. 4 Cir. 9/13/00), 770 So.2d 413, 418. (citations omitted).

In the present case, both officers testified that they stopped their vehicle and approached the defendant and the other unknown man as they were riding bicycles and “goofing off” in the middle of the street. The officers stated that they only sought to talk to the defendant about bicycle safety because the defendant and the other man almost created an accident when the officers turned onto the street. We find that the officers were well within their right to make such a stop.

La. R.S. 32:194 provides that bicycle riders are subject to the same duties as drivers of motor vehicles, which includes the duty to keep a proper lookout for hazards at all times. Engles v. City of New Orleans, 03-0692, p. 12 (La.App. 4 Cir. 2/25/04), 872 So.2d 1166, 1175; See also, Delphen v. the Department of Transp. and Development, 94-1261, p. 11, (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 335. Likewise, La. R.S. 32:197(A) requires that “[ejvery person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, lsexercising due care when passing a standing vehicle or one proceeding in the same direction, except under” certain circumstances (none of which are present here).

In State v. Washington, 00-1936 (La.12/15/00), 775 So.2d 1066, for example, the police officers testified at a suppression hearing that one of the reasons the defendant was stopped was because the defendant was riding a bicycle with a passenger on the handlebars. The Supreme Court found that the officers had reasonable cause to stop the defendant based upon the violation of traffic laws, one of which was a violation of La. R.S. 32:195(B), which states that “No bicycle shall be used to carry more persons at one time than the number for which it is designed and equipped.” In so finding, the Court noted that “[t]his combination of circumstances (the defendant’s flight upon seeing the officers and the passenger on the handle bars) provided the officers with reasonable grounds to stop the defendant.” Id., citing State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (police need only “some minimal level of objective justification”). The Court then held that the officer’s “recovery of a rock of cocaine in the plastic bag which the defendant subsequently spat from his mouth where he had been concealing it from the officers then provided probable cause for his arrest.” Id.

Here, based on the officers’ testimony that their stop of the defendant was prompted by safety concerns and the defendant’s violation of La. R.S. 32:194 and La. R.S. 32:197, we find that the officers had a reasonable basis to stop the defendant. The defendant’s subsequent unsolicited statement and production of the Xa-nax pills then provided the officers with probable cause to pat down and search 19the defendant, which resulted in the recovery of the three bags of marijuana in the defendant’s pants leg. As we find that the stop was not illegal, the trial court properly denied defendant’s motion to suppress the statement. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant, Everett, contends that the trial court erred when it denied his motions for new trial. The defendant alleged in his motions that he was entitled to a new trial based upon La.C.Cr.P. article 851(3) and (5), on the basis of the subsequent convictions of Officers Hunt and Birks, who pled guilty to malfeasance in office. Their convictions were based on Officer Birks’ January, 2011 arrest of Alvin Bean (an incident unrelated to the instant matter). According to the defendant’s motion for new trial, the officers reported that Hunt was with Birks when Bean was arrested. Bean’s attorney discovered that Hunt was actually at a dental appointment at the time of the arrest and therefore could not have participated in Bean’s arrest. Bean’s case was nolle pro- sequied on June 14, 2011 and the officers were charged accordingly by bills of information dated June 24, 2011. Their guilty pleas were entered in late September, 2011.

At the hearing on the motion for new trial, the trial court recognized that at the time of the defendant’s trial, April 11, 2011, the officers had not been charged |10or convicted of the offenses. Thus, evidence of the officers’ convictions could not have been admissible at the trial because the evidence did not exist at that time.

Motions for new trial are governed by La.C.Cr.P. art. 851. That article provides, in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

When a motion for new trial is based on “new and material evidence,” under this article, La.C.Cr. P. 854 requires that the motion contain allegations of fact, sworn to by the defendant or his counsel, showing:

(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
|n(3) The facts which the witnesses or evidence will establish; and (4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.

Our jurisprudence reflects that, in order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict. State v. Weber, 02-0618, p. 18 (La.App. 4 Cir. 12/4/02), 834 So.2d 540, 553, citing State v. Hammons, 597 So.2d 990 (La.1992); State v. Knapper, 555 So.2d 1335 (La.1990). The trial judge has “much discretion” in ruling on a motion for a new trial; an appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner. State v. Lewis, 05-0973, pp. 3-4 (La.App. 4 Cir. 5/24/06), 943 So.2d 1100, 1102.

In State v. Cavalier, 96-3052, pp. 3-4 (La.10/31/97), 701 So.2d 949, 951-952, the Supreme Court recognized that:

Newly discovered evidence affecting only a witness’s credibility “ordinarily will not support a motion for a new trial, because new evidence which is ‘merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial.” Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1, 5 (1956). Nevertheless, the court possesses the discretion to grant a new trial when the witness’s testimony is essentially uncorroborated and dispositive of the question of guilt or innocence and it “appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result.” United States v. Davila, 428 F.2d 465, 466 (9th Cir.1970); accord United States v. Davis, 960 F.2d 820, 825 (9th Cir.), cert. denied, 506 U.S. 873, 113 S.Ct. 210, 121 L.Ed.2d 150 (1992); United States v. Taglia, 922 F.2d 413, 415-16 (7th Cir.1991); United States v. Harpster, 759 F.Supp. 735, 738 (D.Kan.), aff'd 951 F.2d 1261 (10th Cir.1991); United States v. Lipowski, 423 F.Supp. 864, 867 (D.N.J. 1976); see also State v. Bryan, 398 So.2d 1019, 1021-22 (La.1980) (on rehearing). In making this determination, the court may assume that the jury “would have known that [the witness] had lied about the matter[.]” United States v. Stofsky, 527 F.2d 237, 246 (2nd Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976).

This Court in State v. Perron, 94-0761 (La.App. 4 Cir. 12/27/96), 686 So.2d 994, found that the defendant was not entitled to a new trial under La.C.Cr.P. article 851(3) based upon the arresting officer’s subsequent arrest for murder, internal affairs investigation and reputation for brutality. This Court concluded that the trial court did not abuse its discretion in denying the motion for new trial because the officer’s subsequent involvement in a murder was not newly discovered evidence under La.C.Cr.P. article 851(3), finding that the evidence was not evidence as “contemplated by Code of Criminal Procedure article 851(3) but rather [was] evidence which did not yet exist because [the officer] had not yet committed the crime.” Id., 94-0761, 686 So.2d at 996-997.

More importantly, the Perron Court noted:

Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility. La. C.E. art. 609.1(B). At the time of trial, Davis had not been convicted. The credibility of a witness may be attacked or supported by evidence in the form of general reputation only, but the evidence may refer only to character for truthfulness or untruthfulness. La.C.E. art. 608. [The officer’s] reputation for brutality, as reflected in subsequent newspaper articles, and his extensive internal affairs file, although newly discovered, has not been shown to relate to his character for truthfulness or untruthfulness. Under the circumstances, the denial of the motion for a new trial has not been |1sshown to be an arbitrary and palpable abuse of the trial court’s discretion.

Id., 94-0761, 686 So.2d at 997.

In the instant matter, the officers’ arrests, the internal investigations of their conduct and their convictions occurred after the defendant’s trial. Thus, evidence of the convictions did not exist at the time of trial and could not have been introduced at trial. The defendant did not provide the trial court with the names of any witnesses who could have testified as to the officers’ general reputation for truthfulness or untruthfulness. We find no abuse in the trial court’s discretion in denying the motion for new trial based upon newly discovered evidence.

Likewise, we find .no abuse of discretion in the trial court’s rejection of the defendant’s motion for new trial based on La.C.Cr.P. article 815(5). The defendant suggests that the ends of justice would be served by the granting of a new trial in light of the officers’ subsequent convictions.

This Court recently noted that:

[W]ith [respect to] the article pertaining to review of the motion for new trial, La.Code Crim. Proc. art. 858, which provides: “Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or refusal to grant a new trial, except for error of law.” ... [I]f the grant or denial of a new trial pursuant to La. Code Crim. Proc. art. 851(5) is a question of law, then the appellate or supervisory jurisdiction of the appellate courts and Supreme Court is properly invoked.

State v. Marzett, 13-0274, p. 10 (La.App. 4 Cir. 8/28/13), 123 So.3d 831, quoting State v. Guillory, 10-1231, pp. 2-3 (La.10/8/10), 45 So.3d 612, 614. The Guillory Court further stated that, in deciding whether the trial court abused its great discretion in granting or denying a new trial solely on La.C.Cr.P. art. 851(5), two precepts must be considered: (1) the trial court is vested with almost unlimited \u discretion, and its decision should not be interfered with unless there has been a palpable abuse of that discretion; and (2) “[t]he motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” Guillory, pp. 4-5, 45 So.3d at 615.

The defendant argues that the ends of justice demand that he be granted a new trial. He contends that the officers’ convictions reflect not just on their credibility, but also suggest a pattern of behavior. The defendant notes that Alvin Bean is his cousin and was arrested one month after his arrest and within a mile radius of that arrest. He maintains his innocence and claims that the officers lied to effectuate his arrest and conviction just as the officers lied in the Alvin Bean case. The defendant’s argument, while plausible, is simply argument without any factual support or evidence. We do not find that the trial court abused its great discretion when it denied the motion for new trial based on serving “the ends of justice” pursuant to La.C.Cr.P. art. 851(5).

This assignment of error is without merit.

CONCLUSION

Based on the foregoing, we affirm the conviction and sentence of the defendant, Kyle Everett.

AFFIRMED.

      . As is our practice, we have conducted an errors patent review of the record and determined that there are no errors patent.

      . La.C.Cr.P. article 215.1 provides, in pertinent part, as follows:
      A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

      . Officer Hunt was also convicted of perjury.