author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Samuel RICHARDSON.
    No. 13-KA-886.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Jerome G. Smith, III, E. Clifton Milner, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Samuel Richardson, Kinder, LA, pro se.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

[¡¡Defendant was convicted of one count of possession with intent to distribute heroin in violation of La. R.S. 40:966A and one count of possession without a prescription of a legend drug, Tramadol, in violation of La. R.S. 40:1238.1. He was sentenced to 50 years at hard labor, the first five years without benefit of probation or suspension of sentence, on Count one and five years at hard labor on Count two, to be served concurrently. After adjudication as a second felony offender, his sentence on Count one was vacated and he was resentenced to fifty years at hard labor without benefit of probation or suspension of sentence, concurrent with his original five year sentence on Count two. In this appeal, defendant’s counsel assigns as error the trial court’s denial of his motion to suppress evidence and the trial court’s grant of the State’s motion to introduce other crimes evidence. In addition, defendant has filed a pro se brief in which he argues that the evidence was insufficient to support his conviction and that his trial counsel was ineffective. For the reasons that follow, we affirm defendant’s convictions and sentences.

I ¿FACTS

Detective Curt Johnson, of the Plaque-mines Parish Sheriffs Office, testified that he was assigned to the Westbank Major Crimes Taskforce at the time of the instant offense. Detective Johnson testified that on April 18, 2012, he was investigating defendant for possible drug violations. Pursuant to his investigation, Detective Johnson obtained a search warrant for defendant’s Infiniti SUV and his house located at 2108 Mesa Via Drive in Harvey. Detective Johnson executed the search warrants with Detective Ashton Gibbs, Sergeant Scott Zemlik, Detective David Biondolillo, and Detective Steve Arnold. Upon entering the house, defendant and his girlfriend, Ashley Ortiz, were found in an upstairs bedroom of the house. Defendant and Ms. Ortiz were detained and read their Miranda rights while a search of the house was performed. Inside a coffee mug in the kitchen cabinet, the officers found a clear plastic bag containing approximately 2.7 grams of a light brown powdery substance, which field tested positive for heroin. They also found a container of Inositol powder used to “cut down narcotics to make it more abundant, so it’s more profitable.” In the entertainment room of the house, Detective Johnson seized a metal grinder and digital scale. Detective Johnson determined this evidence to be of value in the weighing and repackaging of narcotics for sale. In a shed located in the backyard of the house, the officers recovered paraphernalia associated with narcotics use, including a used syringe, a paper towel, and a charred spoon. Further, upon searching defendant’s SUV, ^Detective Johnson seized a prescription pill bottle for Hydrocodone in defendant’s name, however, upon further inspection, the contents were later verified to be Tramadol, a controlled dangerous substance. After seizing this evidence, Detective Johnson spoke to defendant who explained that his brother had recently passed away, and that he took the heroin, which he referenced as rat poison, from his brother’s house and was selling it to supplement his income.

Knowing defendant to have “handled a lot more narcotics,” Detective Johnson testified that he did not believe they were able to locate his “main supply” during the search of defendant’s house. As part of the continuing investigation, Detective Johnson began monitoring defendant’s jail phone conversations beginning from the time defendant was arrested on April 18, 2012, until May 1, 2012. During that time defendant, also known by the nickname “Dukey,” made several phone calls to a person nicknamed “Veedoe,” later identified as Joseph Williams. Detective Johnson testified that on May 1, 2012, defendant called Williams and instructed him to “get a shovel to go pick up the dog sh* * ” from his backyard. On the phone, defendant is heard telling Williams that “it is a foot before you get to the banana tree and a foot before the gate ... on the same side as the banana tree ... they’ve got two of them down there ... you got both of them? ... the ones with the rice? ... one of them should be down there good.... ” Williams replied that he found both of them, and then stated there is “nothing but sh* * around the yard.” Believing the code words used by defendant were in reference to narcotics buried in defendant’s backyard, Detective Johnson sent Sergeant Scott Zemlik back to defendant’s residence to corroborate this | ^information. Next to a fence in the backyard, Sergeant Zemlik observed two freshly dug holes underneath the banana tree. Detective Johnson further stated that when they originally executed the search warrant, he did not observe any freshly dug holes, or patches of dirt, underneath the tree.

On the same day, Williams’ vehicle was located at the La Quinta Inn in Metairie. Once it was discovered that Williams had checked into the La Quinta Inn, a search warrant for Williams’ room was obtained. Present inside the motel room were Williams and Tammy Pattan. Detective Johnson testified that when they entered the motel room, Williams stated “You got me, the drugs are in the drawer.” Upon executing the search warrant, a mason jar containing “two clear plastic bags of compressed brown powder, with rice inside of it,” was recovered. Williams’ cell phone was also recovered in the room. A review of the cell phone’s call log revealed a match to the number defendant called from the jail. Marcelle Folse, an expert in the field of forensic drug analysis and identification, testified that she analyzed the two bags containing the tan powder found in the La Quinta motel room. The net weight of the contents of both bags was 115 grams. The contents of the bags tested positive for heroin.

Lieutenant Donald Meunier, of the Jefferson Parish Sheriffs Office, testified as an expert in the field of narcotics distribution, packaging, and investigation. Lieutenant Meunier testified that he reviewed the police reports and ^physical evidence in this case. He noted that the Inositol powder found inside defendant’s residence is often used as a cutting agent to increase the volume of a drug. Lieutenant Meunier noted that if a person possessed four ounces (112 grams) of heroin, they would likely add a cutting agent to the product to increase the volume and sell it by the ounce. He explained that an ounce of heroin is typically sold for three thousand dollars. Lieutenant Meunier testified that it is common to find narcotics packaged with rice because it keeps moisture away from the drug. Also, in Lieutenant Meunier’s experience, he stated that it is common for narcotics dealers to use code words when speaking about exchanging drugs. With respect to the heroin found in the La Quinta motel room, Lieutenant Meunier testified that the heroin was packaged in typical fashion inside plastic bags. Lieutenant Meunier further noted that the heroin found inside defendant’s residence, which had a gross weight of approximately two grams, could be cut down to 20 doses and sold for ten dollars each. He indicated that this amount would be a large quantity of heroin for a user. Additionally, Lieutenant Meunier noted that the two bags of heroin found in the motel room contained over four ounces of heroin, a quantity that would not be consistent with personal use, and a quantity that could be sold for $11,500 if sold as single doses.

Ashley Ortiz, defendant’s girlfriend, testified that she was living with defendant at the time the police searched his house on April 18, 2012. Ms. Ortiz testified that she never knew defendant to deal drugs. She further stated that she was not aware of any “substance” in the kitchen cabinets, and that defendant does not own a black Infiniti SUV.

I ¡¿DISCUSSION

In his counseled brief, defendant argues that it was error for the trial court to allow the introduction of other crimes evidence during the cross examination of the defense witness, and also that the trial court erred in allowing the introduction of 115 grams of heroin, seized almost two weeks after defendant was incarcerated, from in a location with which the defendant had no connection.

Defendant also filed a pro se brief in which he argues that the evidence was insufficient to support his conviction. He further contends that his trial counsel was ineffective.

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Le, 13-314 (La.App. 5 Cir. 12/12/13), 131 So.3d 306, 312.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the standard is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. Rather, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319, 99 S.Ct. 2781; See also |nState v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writs denied, 03-2745 (La.2/13/04), 867 So.2d 688 and OS-1951 (La.1/30/09), 999 So.2d 750.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 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.” State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Wooten, 738 So.2d at 675.

Defendant contends that the evidence was insufficient to support his conviction for possession with intent to distribute heroin, in violation of La. R.S. 40:966A. To prove this offense, the State was required to show defendant knowingly and intentionally possessed heroin, and that he did so with the specific 110intent to distribute it. See State v. Jones, 11-8 (La.App. 5 Cir. 11/15/11), 78 So.3d 274, 279, writ denied, 11-2781 (La.4/13/12), 85 So.3d 1246; State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, 77, writ denied, 10-0034 (La.9/3/10), 44 So.3d 696.

The first element includes both actual and constructive possession. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1331; State v. Williams, 98-1006, (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 69, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. A person who was not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion or control. Williams, 735 So.2d at 69. The factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are: 1) the defendant’s knowledge that illegal drugs were in the area, 2) his relations with the person found to be in actual possession, 3) the defendant’s access to the area where the drugs were found, 4) evidence of recent drug use by the defendant, 5) the existence of paraphernalia, and 6) evidence that the area was frequented by drug users. Williams, 735 So.2d at 69.

In this case, on April 18, 2012, pursuant to a search warrant, detectives seized approximately two grams of heroin contained in a plastic bag located inside a coffee mug in defendant’s kitchen along with Inositol powder, a metal grinder, and a digital scale. Upon finding the narcotics and paraphernalia, defendant was questioned and admitted to selling heroin to supplement his income. Defendant’s admission, coupled with his proximity to the narcotics found in the common areas of his home, is sufficient to satisfy the possession element of the charged offense.

After the search of defendant’s residence was concluded, defendant was arrested and transported to jail. Detective Johnson testified that because he knew that defendant had “handled a lot more narcotics,” defendant’s jail phone ^^conversations were monitored in attempt to locate defendant’s “main supply.” During one of the phone calls initiated by defendant, he was heard using code words to instruct Joseph Williams to dig up two containers of narcotics buried near a banana tree in defendant’s backyard. Sergeant Zemlik was sent to defendant’s residence to corroborate this information, and upon arrival, observed two freshly dug holes underneath the banana tree in the backyard, which were not present when the initial search of defendant’s residence was performed. That same day, Williams was located in a motel room at the La Quinta Inn and found to be in possession of two mason jars containing two plastic bags filled with 115 grams of heroin and $690.00 in cash. A review of Williams’ cell phone call log confirmed that defendant had called him from jail earlier that day.

Based on the testimony presented at trial and the factors discussed in Williams, we find that the State produced sufficient evidence to show that defendant constructively possessed the drugs found in his home and in the La Quinta Inn motel room.

The next essential element of the crime is intent to distribute. La. R.S. 14:10 defines specific criminal intent as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. White, 98-91 (La.App. 5 Cir. 6/30/98), 715 So.2d 714, 717, writ denied, 98-2043 (La.11/25/98), 729 So.2d 577. Factors which may give rise to a reasonable inference that a defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expért or other |12testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. White, 715 So.2d at 717. By describing the factors as useful, the Louisiana Supreme Court does not require that the evidence fall squarely within those listed factors to be sufficient for the jury to find the requisite intent to distribute. State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, 711, writ denied, 09-1316 (La.3/5/10), 28 So.3d 1002.

In this case, we find the State provided sufficient evidence to show that defendant intended to distribute heroin based on the factors discussed in White. In addition to the two grams of heroin seized from defendant’s residence, detectives seized Inositol powder, a metal grinder, and a digital scale from inside defendant’s home. Lieutenant Meunier, an expert in the field of narcotics distribution, packaging, and investigation, testified that this evidence is consistent with drug distribution. Specifically, Lieutenant Meunier testified that the Inositol powder found inside defendant’s residence is often used as a cutting agent to increase the volume of a drug. He explained that the quantity of heroin recovered from defendant’s residence contained twenty doses of heroin, which typically sell for ten dollars per dose. Noting that heroin users do not “stockpile” drugs, Lieutenant Meunier testified that the amount of heroin found inside defendant’s residence would be “a large quantity for a heroin user.” Additionally, as previously noted, after seizing this evidence, defendant admitted to Detective Johnson that he was selling heroin to supplement his income.

With respect to the heroin found in the La Quinta motel room, Lieutenant Meunier testified that the heroin was packaged in typical fashion inside plastic bags. Lieutenant Meunier noted that the two bags of heroin found in the motel room contained over four ounces of heroin, a quantity that would not be consistent | lswith personal use, and a quantity that could be sold for a minimum of $11,500 if sold as single doses. Additionally, the State introduced evidence that defendant had previously been convicted of possession with intent to distribute marijuana. See Hearold, 603 So.2d at 731 (La.1992) (the combination of prior drug distribution and the amount of drugs found in the bag was sufficient evidence to convict defendant of possession with intent to distribute.)

Based on the foregoing we find that a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found that the evidence was sufficient under the Jackson standard to support defendant’s conviction for possession with intent to distribute heroin.

In his first counseled assignment of error, defendant argues that the trial court erred in allowing the State to introduce inadmissible other crimes evidence, when it allowed cross-examination of defense witness Ashley Ortiz, regarding defendant’s prior conviction for possession with intent to distribute marijuana.

During direct examination of Ms. Ortiz, defense counsel asked her whether she had made any statements to the police after the search of defendant’s home. Ms. Ortiz stated, “No, I was just questioned about Mr. Samuel’s dealings’ and they asked me things about what he did. And to my knowledge, I never knew him to deal drugs or anything like that ...” During cross-examination, the State introduced defendant’s prior conviction as impeachment evidence, after the Court ruled that defendant had “opened the door” during its direct examination of Ms. Ortiz. Defendant contends that he did not “open the door” to the use of his prior conviction on cross-examination of Ms. Ortiz because she did not testify to any character evidence on direct examination.

At a motion hearing held the day before trial, the trial court granted the State’s oral motion to use his prior conviction. The Louisiana Supreme Court has [ Mrecognized that evidence of other drug sales is of great probative value in establishing intent to distribute when it is an essential element of the crime charged. State v. Knighten, 07-1061 (La.11/16/07), 968 So.2d 720; State v. Grey, 408 So.2d 1239 (La.1982). Evidence of defendant’s prior conviction for possession with intent to distribute narcotics is an exception to the general prohibition against evidence of other crimes. State v. Jackson, 05-923 (La.App. 5 Cir. 3/28/09), 926 So.2d 72, writ denied, 06-1589 (La.1/8/07), 948 So.2d 121.

Furthermore, the trial court did not err in ruling that defendant opened the door to inclusion of this admissible evidence when questioning Ms. Ortiz. In State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, 715, writ denied, 09-1316 (La.3/5/10), 28 So.3d 1002, this court said that

A witness may be cross-examined on any matter relevant to any issue in the case. La.C.E. art. 611. Article 404 of the Louisiana Code of Evidence generally disallows the admission of evidence of a person’s character or a trait of his character for the purpose of proving he acted in conformity therewith on a particular occasion. However, as a limited exception to the general rule, Article 404(A)(1) allows admission of evidence of a pertinent trait of a defendant’s character — such as a moral quality — offered by an accused, or by the prosecution to rebut the character evidence. Under La.C.E. art. 405(A), a character witness may be cross-examined regarding relevant specific instances of conduct.

In Mosley, during direct examination by defense counsel, the defense witness testified that she had never known the defendant to sell narcotics. The State contended that as a result of defense counsel’s questioning, the defense had opened the door regarding defendant’s prior drug convictions. On appeal, this court agreed, finding that by questioning the witness regarding whether she knew the defendant to be a drug dealer, defense counsel had opened the door to rebuttal questioning by the State and, therefore, the State’s questions were proper. See also State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied, 10-0034 (La.9/3/10), 44 So.3d 696. When a defendant opens the door to such |1fievidence, Prieur notice is not required. State v. Marcotte, 01-1586 (La.App. 3 Cir. 5/15/02), 817 So.2d 1245, writ denied, 02-1687 (La.2/7/03), 836 So.2d 96.

We find no merit to this assignment of error.

In his second counseled assignment of error, defendant argues the trial court erred when it allowed the State to introduce inadmissible other crimes evidence at trial regarding the 115 grams of heroin seized at the La Quinta Inn more than two weeks after defendant’s arrest. Defendant maintains the State introduced this other crimes evidence as a subterfuge for introducing evidence to depict defendant’s bad character. He further contends that none of the relevant “404B exceptions” for introducing this other crimes evidence apply. The State maintains that the evidence recovered in the motel room was relevant and admissible proof of a continuous chain of events related to the charged crime.

Generally, evidence of “other crimes,” or bad acts committed by a criminal defendant, is inadmissible at trial due to the risk of grave prejudice to the defendant. La. C.E. art. 404 B(l); State v. Prieur, 277 So.2d at 128; State v. Williams, 01-1007 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030, writ denied, 08-2070 (La.1/30/09), 999 So.2d 751. However, evidence of “other crimes” may be introduced if it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404 B(1). Res gestae events constituting “other crimes” are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036,157 L.Ed.2d 886 (2004).

11fiThe res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. Taylor, 838 So.2d at 741. The res gestae doctrine is designed to allow the story of the crime to be told in its entirety, by proving its immediate context of happenings in time and place. Taylor, 838 So.2d at 742. Furthermore, the State is not required to provide the defendant with notice before introducing res gestae evidence. See La. C.Cr.P. art. 720; State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 697, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art. 404 B(l) will not be disturbed. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

Here, the heroin evidence seized from the La Quinta Inn on May 1, 2012, forms an “integral part of the act or transaction that is the subject of the present proceeding.” Although the evidence seized from the motel room was recovered after defendant’s arrest, this evidence was part of a continuous chain of events, and is admissible and relevant to prove the crime charged in the instant case, namely, defendant’s intent to distribute. As a general rule, evidence of criminal conduct that takes place in a series of events is admissible at the trial of one of the offenses. See La. C.E. art. 404B. See also State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908, 914, writ denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).

|17We find no abuse of discretion by the trial court in allowing the introduction of the heroin seized from Joseph Williams’ hotel room. This assignment of error is without merit.

In his second pro se assignment of error, defendant contends his counsel was ineffective when he failed to subpoena Joseph Williams to testify at trial, failed to file a written motion to obtain a recess to secure the presence of Williams, failed “to investigate,” and failed to properly prepare a defense. Defendant further submits that his attorney was deficient for failing to file a motion to exclude the heroin evidence seized from the La Quinta motel room.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039,1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63.

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

|1RIn the present case, we find that the appellate record is insufficient to consider all defendants’ allegations of ineffective assistance of counsel. Defendant’s claims of ineffective counsel encompass decisions relating to investigation, preparation, and strategy, which require an evidentiary hearing and cannot possibly be decided on appeal. See State v. Martin, 607 So.2d 775, 788 (La.App. 1 Cir.1992).

ERRORS PATENT

We have reviewed the record for errors patent according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which merit corrective action.

CONCLUSION

In accordance with the foregoing, we affirm the defendant’s convictions and sentences.

AFFIRMED.

      . This investigation was initiated through the use of a confidential informant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Raven Barrois, an expert in the field of forensic identification and analysis of narcotics, testified that the powder recovered from defendant’s residence tested positive for heroin and weighed two grams.

      . There was no evidence of heroin present on the scale or grinder.

      . A lien notice on the Infiniti SUV, believed to belong to defendant, was also found inside the house. On the paperwork was the name Veronica Lewis, with the address listed as 2108 Mesa Via. Detective Johnson noted that throughout his investigation he observed defendant driving the Infiniti SUV vehicle on a daily basis.

      . The address listed on the pill bottle was 2108 Mesa Via.

      . Detective Ashton Gibbs, of the Gretna Police Department, corroborated that defendant made this statement.

      . Deputy Christopher Rivers, custodian of records for the Jefferson Parish Correctional Center, authenticated the phone records detailing the outgoing calls made by defendant while in jail.

      . Sergeant Scott Zemlik, of the Gretna Police Department, Major Crimes Taskforce, confirmed that he aided in the search of defendant's residence on April 18, 2012. Sergeant Zemlik further testified that on May 1, 2012, he went back to defendant's residence in an attempt to corroborate information that was obtained from phone calls made by defendant while in jail. While at the residence, Sergeant Zemlik took a photograph of the backyard, which revealed "two freshly dug holes, on the side of a banana tree.” According to Sergeant Zemlik, only half of the yard had been mowed. He believed this to be significant because during one of the phone calls "you can hear — it sounds like they’re mowing the lawn, they’re doing the digging, they find the — which was later found to be the heroin; and then they stopped, and dropped. That was their mission, to dig it up and go.”

      . Detective David Biondolillo, of the Jefferson Parish Sheriff's Office, testified that he participated in the search of the La Quinta motel room and that in the room he seized a glass mason jar containing rice and a tan powder substance that tested positive for heroin. Detective Biondolillo further stated that it is common for rice to be packaged with heroin because rice is commonly used to "keep the moisture off the powder so it won't harden up.” Detective Biondolillo stated that there did not appear to be any dirt on the mason jar. He also testified that approximately six hundred dollars was found on a table in the motel room.

      . She testified on cross-examination that she was aware defendant was on probation. She believed he was on probation for smoking marijuana and was unaware that he was on probation for possession with intent to distribute marijuana.

      . State v. Prieur, 277 So.2d 126 (La.1973).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Byron ROSS.
    No. 13-KA-924.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Jody Fortunato, Douglas W. Freese, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellee.

      Prentice L. White, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

12Defendant, Byron Ross, appeals his convictions for armed robbery with a firearm and attempted second-degree murder, claiming that the trial judge imposed unconstitutionally excessive sentences in light of defendant’s extensive history of mental illness and substance abuse issues. For the following reasons, we affirm defendant’s convictions and sentences.

STATEMENT OF THE CASE

On August 31, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant with attempted second-degree murder in violation of La. R.S. 14:27:30.1 and armed robbery while armed with a firearm in violation of La. R.S. 14:64 and 14:64:3.

|sDefendant was arraigned and initially pled not guilty. On August 3, 2011, defendant was re-arraigned and pled not guilty and not guilty by reason of insanity. Following numerous hearings concerning defendant’s competency to stand trial and the issue of his sanity at the time of the offense, the transcript reflects that defendant amended his plea again to not guilty. The matter proceeded to trial by jury and defendant was found guilty as charged. After a sentencing hearing, the trial judge sentenced defendant to ninety-nine years at hard labor for his armed robbery conviction, five years at hard labor for his use of a firearm during the commission of the armed robbery in violation of La. R.S. 14:63.1, and fifty years for his attempted second-degree murder conviction. Defendant filed a timely motion to reconsider his sentence, which the trial court denied. This timely appeal follows.

FACTUAL BACKGROUND

Mark Renouff testified that on June 19, 2010, he was working the evening shift as a tow truck driver for Moon’s Towing Yard in Jefferson Parish. At approximately 4:00 a.m., while unloading a totaled vehicle from his truck, Mr. Renouff observed an individual walking across the street toward him. Mr. Renouff testified that he commonly sees people walking on the street or sidewalk opposite the tow yard but that it is uncommon for individuals to walk on the same side of the street as the tow yard. After the man crossed to his side of the street, Mr. Renouff stopped working and continued to watch the man. Mr. Renouff testified that he could clearly see the man’s face as the man walked by; Mr. Renouff further |4noticed a bulge in the man’s shirt and described the shirt as a black shirt with silver rhinestones that shined in the light.

Mr. Renouff testified that he watched the man walk until he turned the nearest corner onto a side street. Mr. Renouff then went back to working. A couple of minutes later, Mr. Renouff heard someone behind him say, “[g]ive me your wallet.” After he gave the man his wallet, the man put a gun to Mr. Renouff s face and pulled the trigger, but the gun jammed. The man tried to unjam the gun, then again pointed it at Mr. Renouff and pulled the trigger — the gun jammed a second time. Mr. Renouff testified that he was “frozen like a statute [sic].” After he heard the trigger click a second time, Mr. Renouff ran. He testified, “I guess I came to my senses, realized he was trying to kill me and I took off running to get inside of our gate.” Mr. Renouff ran to the inside of the gate and screamed for the gate operator to call 9-1-1.

Mr. Renouff testified that he recognized the man who robbed him as the same man who walked past him minutes before; however, when the man returned, he had on a hooded sweatshirt and was holding a bandana. Mr. Renouff testified that he knew it was the same man because the hooded sweatshirt was not zipped completely and he recognized the black shirt with rhinestones shining. Further, Mr. Renouff testified that, although the man held a bandana up to cover his face, he dropped the bandana twice allowing Mr. Renouff to see his face. Pursuant to the police investigation, Mr. Renouff identified defendant in a photographic lineup as the man who robbed him. He again identified defendant at trial.

Detective David Canas with the Jefferson Parish Sheriffs Office testified that he prepared and presented Mr. Renouff with a photographic lineup to identify the suspect and that Mr. Renouff identified defendant as the individual who robbed |fihim. Detective Canas also interviewed defendant, who admitted being in the area that night but denied any involvement in the robbery.

Detective Gary Barteet with the Jefferson Parish Sheriffs Office testified that he participated in defendant’s arrest at the LaBella Motel in the 3300 block of Jefferson Highway and that, incident to defendant’s arrest, he recovered a loaded Ruger .45 caliber semi-automatic handgun. The defense stipulated that defendant was in possession of that firearm on the date defendant was arrested at the LaBella Motel and for the two weeks preceding his arrest, including the date of the armed robbery and attempted murder of Mr. Re-nouff.

Colonel Timothy Scanlan with the Jefferson Parish Sheriffs Office testified as an expert in the field of firearms and tool mark examinations. He testified that the type of weapon in defendant’s possession tends to have malfunctioning issues, particularly when the firearm is not properly oiled. He further testified that the design of the firearm’s safety mechanism promotes potential misfires. Colonel Scanlan testified that, upon his examination of the firearm in defendant’s possession, he noticed the firearm needed to be oiled and had sluggish operation.

DISCUSSION

In his sole assignment of error, defendant claims that the sentences imposed are unconstitutionally excessive in light of the evidence presented of his extensive history of mental illness and substance abuse issues.

IfiThe state responds that the sentences are not unconstitutionally excessive in light of the gravity of the crime, the impact the crime has had on the victim, and defendant’s lack of remorse to the victim. The state further argues that, although the record reflects that defendant has psychological issues, the general consensus from the doctors who examined defendant was that defendant knew the distinction between right and wrong at the time he committed the offense.

At the sentencing hearing, the Victim Witness Assistant read into the record Mr. RenoufPs victim impact statement. Mr. Renouff stated that he continuously thinks about the armed robbery, even two years later, and is constantly fearful of his surroundings. He continues to work the night shift at Moon’s Towing and he and his family fear that he may be placed in a similar situation again, but that next time the perpetrator will be successful and that he will be killed. Mr. Renouff stated that he would be fearful, if defendant were released from prison, that defendant, if given the opportunity, would find Mr. Re-nouff and try to finish what he attempted on the night of the armed robbery.

Dr. Sarah Deland, accepted as a forensic psychiatry expert, testified for the defense that she has examined defendant on multiple occasions. She testified that defendant suffers from schizophrenia and has a family history of schizophrenia, with his father having been in the mental health system for more than fifteen years and his two brothers treated for other various mental illnesses. Dr. Deland further testified that she interviewed defendant’s mother to obtain defendant’s family history. Defendant’s mother reported that defendant was “pretty much” living on the streets at the time of the offense and that he had been off of his medication for some time. Defendant’s mother also reported that defendant was physically [ 7abused as a child by his family and stated that she did not feel comfortable with defendant in her home but allowed him to sleep in an old car in her yard; on occasion, she would pay for a motel room for defendant.

Dr. Deland testified that defendant attended special education classes for behavioral issues as a child and that he had received psychiatric treatment off and on in some form since he was a teenager. Dr. Deland diagnosed defendant with schizophrenia and substance abuse. She explained that defendant has been involuntarily confined in mental institutions multiple times for schizophrenic behavior. She further explained that defendant responds well to medication but that he has a history of not taking his medication and turning to street drugs, which cause hallucinations and paranoid delusions. Dr. Deland reported that the medical records reflect that defendant had recurrent delusions that a roach was living inside of his head and affecting his thinking.

Following Dr. Deland’s testimony, the state introduced the entire record into evidence and argued that the sanity commission determined, and Dr. Deland did not disagree, that, at the time defendant committed the armed robbery of Mr. Renouff, he had the ability to distinguish between right and wrong. Defense counsel argued to the court that, although defendant potentially may have been able to distinguish between right and wrong at the time of the offense, he did not necessarily understand the ramifications of his actions. Defense counsel asked the trial court to consider defendant’s mental illness and history of physical abuse by family members prior to imposing defendant’s sentence.

| ^Following the testimony presented, the trial judge stated that he considered the victim’s statement and the continuous impact the crime has had on the victim. He further considered defendant’s mental illness, stating:

There’s no doubt the defendant is disturbed. The testimony of Dr. Deland certainly establishes a mental illness. However, it likewise establishes through her letter and report that with regard to the armed robbery, it was her opinion with reasonable medical certainty that while Mr. Ross was likely experiencing impaired thinking and reasoning, that it did not rise to the level to render him unable to distinguish between right and wrong. In fact, he knew what he was doing.

In sentencing defendant, the trial judge found that:

The testimony at the trial of this case established that in the course of robbing Mr. Renouff, the defendant pointed a handgun at the victim’s face at point blank range and pulled the trigger. Thankfully, the gun did not fire. As the victim stood frozen in fear, the defendant tried to unjam the gun and again raised the gun to the victim’s face and pull[ed] the trigger a second time. Again, thankfully, the gun did not fire. But for the gun’s malfunction, we would be dealing with a murder case.

After defendant waived sentencing delays, the trial judge sentenced defendant to ninety-nine years at hard labor for the armed robbery conviction in violation of La. R.S. 14:64; five years at hard labor for the use of a firearm during the armed robbery as mandated under La. R.S. 14:64.3; and fifty years for the attempted second-degree murder conviction in violation of La. R.S. 14:27:30.1. The trial judge ordered the sentences to be served consecutively and stated that a lesser sentence would deprecate the seriousness of defendant’s crime.

In this appeal, defendant first argues that the ninety-nine year statutory maximum sentence for his armed robbery conviction is unconstitutionally excessive. Defendant further challenges the consecutive nature of his sentences, arguing that the trial judge should have ordered the sentences to be served concurrently.

| flThis Court has held that failure to file a motion to reconsider sentence or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. Hunter, 10-552 (La.App. 5 Cir. 1/1/11), 59 So.3d 1270, 1272. Further, this Court has held that when the consecutive nature of sentences is not specifically raised in the trial court, the issue is not included in the review for unconstitutional excessiveness and the defendant is precluded from raising the issue on appeal. State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-409 (La.5/25/12), 90 So.3d 411. Although the record in this case reflects that defendant orally objected to his sentences and filed a -written motion to reconsider the sentences, he failed to state any specific ground upon which the motion was based and did not object to the consecutive nature of his sentences at the trial court level. Accordingly, we find that defendant is limited to a bare review of his sentences for unconstitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-0556 (La.6/1/12), 90 So.3d 437; State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded broad discretion in sentencing and a reviewing court may not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D); State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767; State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

110In reviewing a sentence for ex-cessiveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Falkins, 04-250 (La.App. 5 Cir. 7/27/04), 880 So.2d 903, 911, writ denied, 04-2220 (La.1/14/05), 889 So.2d 266 and writ denied sub nom. State ex rel. Simms v. State, 04-2171 (La.5/20/05), 902 So.2d 1045.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957, 958. On review, the issue is whether the trial judge abused his great discretion, not whether another sentence might have been more appropriate. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d at 656; State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569.

Defendant was convicted of armed robbery with a firearm and attempted second-degree murder. Defendant’s conviction for armed robbery is punishable by imprisonment at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. Additionally, the state sought a firearm enhancement under La. R.S. 14:64.3, which provides for an additional mandatory five-year sentence at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under the provisions of La. R.S. 14:64. Accordingly, as to his armed robbery with a firearm conviction, defendant faced a sentencing range of imprisonment at hard labor for not less than fifteen years and not more than one hundred and four years. As to his attempted second-degree 1n murder conviction, defendant faced a sentencing range of imprisonment at hard labor for not less than ten nor more than fifty years, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(l)(a); 14:30.1(B). Therefore, defendant’s sentences, although the maximum allowed under the law, fall within the applicable sentencing ranges.

The imposition of a sentence, although within the statutory limits, may still violate a defendant’s constitutional right against excessive punishment. State v. Scie, 13-634 (La.App. 5 Cir. 1/15/14), 134 So.3d 9, 12. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569.

Concerning the first factor, the nature of the crime, the Louisiana Supreme Court has recognized that “the crime of armed robbery ‘is a pernicious offense’ which ‘creates a great risk of emotional and physical harm to the victim, to witnesses, and, at times, even to the offender.’ ” State v. Celestine, 12-0241 (La.7/2/12), 92 So.3d 335, 337. The record in this case reflects that defendant attempted to shoot the unarmed victim directly in the face twice after stealing his wallet. The trial judge found that, had the gun not jammed, “we would be dealing with a murder case.” Further, the victim impact statement provided that Mr. Re-nouff suffers from anxiety as a result of the armed robbery. Mr. Renouff stated that the armed robbery has changed the way that he performs his work and that he and his family are worried that he will be robbed again, but that next time the perpetrator will be successful and kill him. Prior to the armed robbery, Mr. Renouff would not think twice of a stranger walking down the street while he worked. However, since the armed robbery, Mr. Renouff still works the night shift | 12and is continuously in fear of strangers that walk near the tow yard. Mr. Renouff further stated that he is fearful that defendant, if given the opportunity, would come back to the tow yard and kill him.

Second, regarding the nature and background of the offender, the record reflects that defendant clearly suffers from an extensive personal and family history of mental illness. Defendant was involuntarily committed to several mental institutions throughout his adult life for his schizophrenic behavior. His mother reported incidents of physical abuse in his childhood and his medical records indicate a recurring delusion that a cockroach lives inside of his brain and affects his thinking. However, the trial judge found that although defendant clearly suffered from a mental illness, the medical experts reported that, at the time of the offense, defendant was able to distinguish between right and wrong and, in fact, “knew what he was doing.” Further, although defendant asserts that he is a first-time offender, the record reveals that defendant does have a violent criminal history. The record reflects that defendant has multiple arrests in Jefferson and Orleans Parishes and has pending charges in Orleans Parish for first-degree murder and attempted first-degree murder.

Finally, regarding sentences imposed by this and other courts, this Court has previously found that, “[a] review of the jurisprudence reveals that ninety-nine year sentences imposed upon defendants convicted of armed robbery have been previously upheld in many cases, including cases in which the victims were not physically injured. See State v. Dempsey, 02-1867 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037; State v. Douglas, 389 So.2d 1263 (La.1980); State v. Williams, 482 So.2d 1090 (La.App. 3 Cir.1986); State v. James, 545 So.2d 560 (La.App. 4 Cir.1989), writ denied, 551 So.2d 618 (La.1989); State v. Carter, 570 So.2d 234 (La.App. 5 Cir.1990); and State v. Wilson, 452 So.2d 773 _[j(La.App. 4 Cir.1984)." State v. Falkins, 880 So.2d at 912.

Although a review of the jurisprudence lacks any factually similar case in which a defendant has been sentenced to the maximum fifty-year sentence for attempted second-degree murder and the victim is not physically injured, we find that maximum sentences for similar crimes have been imposed and affirmed on appeal, despite the fact that the victims were not physically injured. See State v. Stanton, 05-0812 (La.App. 4 Cir. 3/8/06), 929 So.2d 137, 141 (in which the Fourth Circuit Court of Appeal found that the maximum sentence of twenty years for an attempted manslaughter conviction was “in no way” excessive under facts similar to those presented in this case) and State v. Falkins, 880 So.2d at 912 (wherein this Court rejected defendant’s argument that the maximum sentence of ninety-nine years for his armed robbery conviction was excessive because the victims were not physically injured).

Under the facts of this case — where defendant pulled the trigger of a firearm at point blank range at the victim’s head twice and the victim survived only because of the firearm’s malfunction — we find the sentences imposed are not grossly disproportionate to the severity of the offenses and, therefore, are not unconstitutionally excessive.

ERRORS PATENT DISCUSSION

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals the following errors:

1 uFirst, our review reveals a conflict between the transcript and the “Uniform Commitment Order,” which reflects the incorrect date of offense. The Uniform Commitment Order reflects the date of the offense as June 23, 2010. However, the testimony at trial reflects that the date of the offense was June 19, 2010. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Further, the Uniform Commitment Order also reflects an adjudication date of July 11, 2013; however, the record is clear that defendant was actually found guilty on June 18, 2013. Therefore, we remand this case for correction of the Uniform Commitment Order error regarding the adjudication date and the date of offense. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. See also State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846; State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36, 41.

Second, our review reveals a discrepancy between the commitment and transcript with regard to the hard labor provision of defendant’s sentence for his attempted second-degree murder conviction. Although the commitment reflects that defendant’s sentence was imposed at hard labor, the transcript does not reflect that the trial judge ordered the sentence be imposed at hard labor or provided that the sentence would be served with the Department of Corrections.

La.C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at hard labor is an impermissible indeterminate sentence. State v. Norman, 05-794 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07), 948 So.2d 145. Defendant was sentenced pursuant to La. R.S. 14:30.1, which mandates the sentence be served at hard labor. As such, |1fithe trial court’s failure to state that the sentence was imposed at hard labor is harmless error and no corrective action is required. See State v. Norman, supra; State v. Dennis, 12-818 (La.App. 5 Cir. 5/16/13), 118 So.3d 1166, 1174, writ denied, 13-1384 (La.12/6/13), 129 So.3d 530.

Third, the record reflects that the trial court failed to adequately advise defendant of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. Accordingly, we hereby advise defendant that, pursuant to La. C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922. See State v. Ramsey, 10-333 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42.

CONCLUSION

Accordingly, for the foregoing reasons, defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.

      . The bill of information also charged defendant with attempted first degree murder in violation of La. R.S. 14:27:30 (count one). The trial court severed the attempted first degree murder charge (count one) from the armed robbery with a firearm and attempted second degree murder charges (counts two and three).

      . The trial court held competency hearings on September 22, 2010, January 19, 2011, and June 27, 2012. The trial judge appointed a sanity commission to evaluate defendant. After each hearing, the trial judge found defendant competent to stand trial. On June 17, 2012, and June 18, 2012, defense counsel clarified that defendant pled not guilty and not guilty by reason of insanity as to count one of the indictment (attempted first-degree murder) and not guilty as to counts two and three (attempted second-degree murder and armed robbery) — the counts at issue in this appeal.

      . Mr. Renouff further testified that the lighting near the tow yard is very good.

      . Detective Canas testified that the distance between Moon's Towing, where the crime occurred, and LaBella Motel, the location of defendant's arrest, is 0.3 mile.

      . Defendant’s assignment of error, in full, is stated as follows:
      Byon [sic] Ross, a schizophrenic, had been the victim of physical abuse and ridicule by family members, neighbors and complete strangers since he was a young boy. Unfortunately, his father also suffered from this mental disease and had been committed to a group home for the mentally disturbed since Ross was born. Ross' mother helped him as best she could, but there were moments where Ross' behavior and mental needs were too overwhelming. Ross' mother eventually evicted him from her home and forced him to live on the street. She would get him hospitalized when possible, but she was virtually helpless against Ross' mental disease.
      After being convicted of armed robbery, the district court heard testimony from the physician who had evaluated all of Ross' medical data, including his diagnoses and medications. She verified that Ross was indeed a schizophrenic who had substance abuse problems. Notwithstanding this information, the district court imposed the statutory maximum sentence against Ross despite his long history with mental illness and the chance that he may have been suffering from hallucinations at the time of the robbery.

      . The record reflects that defendant’s mother unexpectedly died in an automobile accident prior to trial.

      . Dr. Deland testified that defendant was hospitalized three times at DePaul Hospital, once at Tulane Hospital, once at East Lake Hospital, once at Touro Hospital, and once at Ochs-ner Hospital. Additionally, after he evacuated to Texas following Hurricane Katrina, he was hospitalized twice in Houston. At one point, prior to a hospitalization in Houston, defendant was found on the street eating rocks and paint.

      . In this case, the district court was again faced with grappling with the overwhelming danger posed by an offender suffering from profound mental illness. Defendant poses a grave danger to the community. The utter failure of the Louisiana mental health system to cope with this defendant’s life-long mental illness means that, for the remainder of defendant’s life, his mental health treatment will be rendered in the Louisiana state prison system and will be paid for by the people of Louisiana out of the state’s general fund.


author: ROBERT A. CHAISSON, Judge.

text:
    Patricia MAZIQUE v. CAJON OPERATING CO. d/b/a Church’s Chicken, The Hartford Insurance Company.
    No. 14-CA-11.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      Philip J. Borne, Joshua O. Hess, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Daren Sarphie, Attorney at Law, Me-tairie, Louisiana, for Intervenor/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

| gin this worker’s compensation case, Cajun Operating Company d/b/a/ Church’s Chicken, and The Hartford Insurance Company (“Cajun”), appeal a judgment in favor of the claimant, Patricia Mazique, awarding her benefits, penalties, and attorney fees. For the following reasons, we reverse the decision by the worker’s compensation judge in favor of Ms. Mazique, and enter judgment in favor Cajun, dismissing the claim.

FACTS AND PROCEDURAL HISTORY

Ms. Mazique was employed by Church’s Chicken on October 30, 2011, when she slipped and fell at work. She claimed to have injured her right knee, lower back and right hand. She testified that on that day the employer brought her to The Ochsner Medical Center for treatment, but there are no reports of this visit | sin the record. Two weeks later, on November 14, 2011, she was seen on her own initiative by Dr. Daniel Gallagher of the Bone and Joint Clinic for subjective complaints of lower back and right knee pain. There is no mention in the record of that date of any injury to the right hand. After taking x-rays, Dr. Gallagher’s initial diagnosis was an aggravation of knee and spinal arthritis. He estimated that she would reach maximum medical improvement in two to four weeks. He released her for light duty and recommended a return visit in two weeks. Although the employer offered claimant light duty, she did not return to regular employment. She was also paid two weeks of compensation.

Dr. Gallagher’s office notes show that claimant missed five return appointments, either by rescheduling or simply not showing up. She was finally again seen on January 16, 2012. In his report on that visit, he stated that examination of the right hand was essentially normal, as was the x-ray image. The right knee and back were also x-rayed again and these showed severe osteoarthritis in the knee, and degenerative disc disease throughout the lumbar spine with osteoarthritis in the facet joints. His opinion was that he did not see any indication that there was any new injury in the fall that had occurred on the job, and he “explained to the patient that her continued pain is a result of her arthritis and degenerative disc.” He discharged her, noting that there was nothing more he could do to help her. In none of his notes is there any mention that Ms. Mazique had reported to him previous problems with her back and knee, but neither is there any indication that he had asked her about such problems.

Cajun agreed to have Ms. Mazique examined by yet another physician of her choice, Dr. Alexis Waguespaek, of the Spine Care Medical Group. The notes for |4the first visit of May 24, 2012, recite that Ms. Mazique gave a history of her complaints as being caused by her falling while carrying a tray of chicken in the workplace. Dr. Waguespack’s impressions were lumbar sprain, degenerative disc disease, and slight degenerative scoliosis. At a subsequent visit on October 15, 2012, various tests were ordered, including x-rays and an MRI. The results of these various tests were reported in the notes to a follow-up visit of January 2, 2013. The diagnosis for the back was lumbar degenerative disc disease, scoliosis, myelopathy, stenosis, and radiculitis. The knee problems were tricompartmental arthropathy, chronic tear of the ACL, spurring, bursal cyst and other inflammation. The report of another visit on March 11, 2013, contains the same information. In none of Dr. Waguespack’s reports is there any opinion as to the causation of Ms. Ma-zique’s conditions, except to note the history given by Ms. Mazique. None of Dr. Waguespack’s notes indicate that Ms. Ma-zique ever mentioned prior problems, but again there was no direct question from Dr. Waguespack on this point.

The next medical report was an Independent Orthopaedic Report requested by Cajun from Dr. Robert Steiner, an ortho-paedic surgeon. Dr. Steiner reviewed the original Ochsner report of October 30, 2011, Dr. Gallagher’s and Dr. Wagues-pack’s reports, and the results of all of the tests conducted at their requests. He also had x-rays taken in his office of claimant’s back, right hand and right knee. Dr. Steiner notes particularly that “she denies prior problems with her low back or right knee.” His full opinion is as follows:

This patient’s diagnosis is osteoarthritis of the right knee, a pre-existing condition. Her prognosis is poor as she has severe osteoarthritis.
This patient’s diagnosis is multilevel degenerative lumbar disc disease. When I examined her she had inconsistent and nonphysiologic findings. There were no findings of lumbar radiculopathy. Her prognosis is poor.
| BShe also has some mild arthritic changes involving the 2nd metacarpo-phalangeal joint of the right hand. Prognosis is good. She requires no treatment for this condition.
As it related to her on the job injury, I do not see specific evidence of injury, only severe pre-existing degenerative changes. In light of the inconsistent and nonphysiologic findings noted on her exam it is impossible for any physician to state what, if any, portion of her condition was. aggravated by the incident in question.
The patient’s knee condition is severe. She ultimately will require knee replacement surgery. I would not relate the need for knee replacement surgery to the incident in question.
This patient has severe degenerative lumbar disc disease but in the absence of any objective neurologic findings and in the presence of inconsistent and non-physiologic findings, I feel that conservative management with nonnarcotic analgesic is most appropriate.
Due to the pre-existing degenerative changes, which are severe, I would recommend this patient should perform only secondary duties. She should avoid standing and walking. She should avoid kneeling, squatting, climbing and crawling activities.

At her deposition of March 22, 2013, Ms. Mazique was asked if she had ever been treated for problems with her right knee. She stated that she had gone to the Tulane Medical Center on one occasion for knee pain. She further stated that she had never had problems with her lower back and had never sought medical treatment for back problems. Her prior medical records show otherwise.

As long ago as June 8, 2004, Ms. Ma-zique had been treated at West Jefferson Medical Center for injuries sustained when she was struck by a car. Among her complaints was shoulder, lower back and bilateral knee pains. On February 24, 2006, she was again treated at this facility for pain in her knees. At that time she reported that sometimes “my knees give out on me.” The emergency physician’s record states that the patient’s complains were of “bilateral knee pain x months.” The clinical impression was “bilateral knee pain-chronic.” Another medical record dated July 2, 2007, shows the results of x-rays indicating “degenerative changes in the [right] knee with decreased lateral joint spaces and | ^osteophyte formation.” The clinical impression is “degenerative changes in the knee.”

On February 4, 2010, Ms. Mazique was again struck by a car. Again she went to West Jefferson Medical Center where she was admitted with complaints of left and right knee pains, being at seven on a scale of one to ten. Testing revealed tricom-partment osteoarthritis. Then on October 26, 2011, claimant was again at the West Jefferson Medical Center, this time with complaints of right knee pain. The medical notes state that “[o]nset: the symptoms/episode began/occurred 2 weeks(s) ago, 10 year(s) ago.”

Cajun argues that the trial judge erred in her factual findings regarding alleged false statements willfully made by Ms. Ma-zique in order to obtain benefits, as well as the issue of whether the workplace fall caused her medical problems. Cajun further contends that there was no basis upon which to award penalties and attorney fees because the claim was reasonably controverted.

LAW AND ANALYSIS

When factual findings are at issue, the standard of review is manifest error. Stobart v. State through DOTD, 92-1328 (La.4/12/93), 617 So.2d 880. When there is conflicting testimony, factual findings should rarely be disturbed on appeal because the trier of fact has an opportunity to view the witnesses and their demeanor, while the appellate court only views a cold written record. Id. at 883. However, “where documents or objective evidence so contradicts the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Id. at 882, citing Rosell v. ESCO, 549 So.2d 840 (La.1989).

[ 7Cajun contends that Ms. Ma-zique forfeited her right to compensation by making false statements in violation of La. R.S. 23:1208. The requirements for forfeiture under this statute are 1) that there is a false statement or representation, 2) that it is willfully made, and 3) that it is made for the purpose of obtaining benefits. Mendoza v. Stewart & Associates, 01-698 (La.App. 5 Cir. 12/26/01), 806 So.2d 737.

There is no question that Ms. Mazique made false statements when she denied any prior treatment for knee and back problems, except for one visit to the Tulane Medical Center. The medical records show conclusively that she had been treated for these conditions repeatedly for at least eight years. Particularly telling is the fact that on October 26, 2011, only four days before the incident at work, she had been to the West Jefferson Medical Center with pain in her right knee which she described at a level of ten on a severity scale of one to ten. Additionally, on cross examination at trial, she repeatedly tried to evade questions about these prior treatments, asserting that any such information was irrelevant to her claim. We also note that, of the treating physicians who saw claimant after the accident, only one, Dr. Steiner, is known to have asked about prior treatments, and his report shows that she denied any such treatments. It is equally clear that these misrepresentations were made in order to establish entitlement to benefits because of the work incident.

While we recognize the great deference to be given to factual findings made by the trier of fact, we are also mindful that such findings are subject to the manifest error standard of review and may be rejected when the entire record shows such error. Stobart, supra. Here, there is no question that Ms. Mazique made false statements willfully, and that these statements were made in order to obtain benefits. Any factual findings to the contrary were thus manifestly | Rerroneous, and must be rejected. Consequently, pursuant to La. 23:1208, Ms. Mazique has forfeited her right to benefits.

Cajun argues alternatively, that even if no forfeiture occurred, Ms. Ma-zique still failed to prove causation between the workplace incident and the alleged injuries. We agree. In Gabriel v. Delta Air Lines, Inc., 12-428 (La.App. 5 Cir. 1/30/13), 106 So.3d 1285, writ denied, 13-917 (La.5/31/13), 118 So.3d 399, this court noted that a worker’s compensation claimant bears the burden of proving a causal connection between the work accident and the resulting injury. It further noted that when symptoms of an injury are absent before an accident, and only manifest themselves after the accident, there arises a presumption of causation where medical or circumstantial evidence indicates a reasonable connection between the two events. Gabriel, at 1293.

As noted above, the information provided to Dr. Steiner concerning Ms. Ma-zique’s initial visit to The Ochsner Medical Center on the date of the incident contained no complaints of any knee injury. Dr. Gallagher was of the opinion that whatever injury there might initially have been would resolve in two to four weeks. After missing or rescheduling several appointments, Ms. Mazique was seen again on January 16, 2012. At that time, Dr. Gallagher’s opinion was that her pain was due to her arthritis in her right knee and degenerative disc disease in her back. He further stated that he did not see evidence of any new injury as a result of the fall in November. This is obviously a reference to the original fall of October 30, 2011. Dr. Waguespack does not give an opinion as to causation. However, Dr. Steiner was of the opinion that it would be impossible to state whether the fall aggravated Ms. Mazique’s pre-existing conditions, especially in view of what he considered “inconsistent and nonphysiologic findings.” That conclusion, taken in conjunction with Dr. Gallagher’s two to four week time frame for maximum medical recovery, |9renders any finding of a longer injury period clearly erroneous because not based on any medical evidence of record.

Cajun’s final argument is that even if it were to be determined that Ms. Ma-zique was entitled to benefits, the finding that the claim was not reasonably controverted, and thus attorney fees and penalties are due, is also unsupported by the evidence. Again, we agree. As the above summary of the evidence shows, there was a reasonable basis for Cajun to deny additional benefits, and any contrary finding was manifestly erroneous.

CONCLUSION

For the foregoing reasons, the judgment of the worker’s compensation judge awarding benefits, penalties and attorney fees is hereby reversed, and judgment is entered in favor of Cajun Operating Company d/b/a/ Church’s Chicken, and The Hartford Insurance Company, dismissing Patricia Mazique’s claim for worker’s compensation benefits with prejudice.

REVERSED.

      . On March 14, 2013, claimant was seen by Dr. Robert Steiner, an orthopedic surgeon, at the employer’s request. Dr. Steiner reports reviewing the Ochsner report of October 30, 2011, and notes that it makes reference to hand and back complaints, but "I do not see any indication of injury to the right knee.”