author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Larry J. ARD.
    No. 2008-KA-1440.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

      John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Larry J. Ard.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

|! Larry J. Ard appeals his conviction of theft. For the following reasons, we affirm his conviction; vacate his sentence and remand.

STATEMENT OF CASE:

On June 1, 2007, Larry J. Ard (“Ard”) was charged by information with theft of over $1,000.00 of cash from Harrah’s Casino on January 30, 2007. Following a jury trial, he was found guilty as charged. On October 18, 2007, Ard filed a pro se motion for new trial. He was subsequently sentenced to ten years at hard labor with credit for time served on December 12, 2007. On August 26, 2008, the trial court granted an out of time appeal pursuant to an August 19, 2008 order from this Court. On January 7, 2009, this Court ordered the trial court to rule on the pro se motion for new trial. The trial court denied the motion for new trial on January 28, 2009. This appeal follows.

FACTS:

Louisiana State Trooper Paul Voitier testified that he works out of an office in Harrah’s Casino, where his office regulates the casino and investigates crimes occurring “near or about” the casino. He participated in investigating the alleged theft by Ard.

| .¿On January 30, 2007, approximately $23,000.00 in chips were stolen from the gaming pit area of the Harrah’s Casino. After receiving a call from the casino reporting the theft, the state police viewed surveillance video and photos obtained from the casino. A video depicted a man walking into the casino and going to a cashier cage, then walking through the casino to Pit 2. The subject entered the pit and went underneath the tables, where he broke into the pit tray and stole chips. The subject then went back to the cashier cage, cashed some of the chips, and left the casino. Ard’s name was obtained by comparing the photos provided by Harrah’s to a computer database at the Hilton Hotel. The investigation also revealed that Ard worked for Marsiglia Construction. A warrant was issued for Ard’s arrest on February 5, 2007.

On February 8, 2007, Trooper Voitier presented a photographic lineup to Regina Augustine, a Harrah’s employee, who identified Ard as the person she saw at the cashier’s cage that day.

Ard was arrested at a construction site where he was working in St. Rose. After being informed of his rights, Ard admitted stealing the casino chips and informed the police that the remainder of the chips could be retrieved from his residence. At his home, Ard signed a consent to search form. Ard assisted in the search by retrieving the chips, which were in a Crown Royal bag, from an opening in his ceiling. The bag contained approximately $17,000.00 worth of casino chips.

The seized chips were photocopied and returned to Harrah’s Casino. Trooper Voi-tier testified that it is standard protocol to return such evidence to the casino. Pictures and photocopies of chips were introduced into the record at trial as State’s Exhibits, and are contained in the record on appeal.

|sThe photocopies and pictures of the chips were introduced at trial as demonstrative evidence. Ard objected, arguing that their introduction would be prejudicial, based on an allegation that, “[hjaving these substitutions really is of no value.” The State explained that the demonstrative evidence was intended “to allow the jury to view the exact amount of chips and denominations that were taken from the ceiling of the defendant’s residence.” The State also introduced a Crown Royal bag for the same reason.

The State also explained why the original chips were not available. The State explained, that Harrah’s “feel[s] it’s imperative that they get the property back.” The trial court found the substitute chips “could be probative” and allowed their admission, subject to the laying of the proper foundation. To do so, the State elicited from Trooper Voitier that twenty-seven five hundred dollar chips and thirty-eight one hundred dollar chips were recovered from Ard’s ceiling. He testified that he was familiar with the colors and denominations of the casino chips. Trooper Voitier also verified that the replacement chips introduced at trial were an adequate representation of $500.00 and $100.00 chips used at Harrah’s. The substitute chips were placed in the substitute Crown Royal bag and shown to the jury to demonstrate how the actual chips appeared when they were seized as from Ard’s home. Trooper Voitier’s involvement with the investigation ended when he booked Ard into Central Lockup.

Mr. John A. Montgomery, a shift supervisor for the Harrah’s Surveillance Department, testified that on January 30, 2007, he investigated a report that an unidentified person was present in one of the pits. Upon reviewing video footage, Mr. Montgomery’s attention was directed to Pit 2, a black jack table. He saw someone breaking into the table. Mr. Montgomery issued a description of the Lindividual and sent his people out onto the casino floor to find him. He subsequently learned that the individual had been photographed at a cashier’s cage.

The video footage also showed that Ard entered the Poydras Street entrance to the casino. He entered the area of Pit 2, with a rag and a spray bottle, and pretended clean the tables. Ard then took a hammer and a screwdriver out of his backpack, struck the Plexiglas on one of the tables, and proceeded to remove chips and place them in his pocket. Ard then went to Cage 1, placed a quantity of chips in front of the cashier, and received cash. At the ' cage, Ard’s picture was taken. Mr. Montgomery explained that Harrah’s takes photographs of anyone cashing $4,000.00 or more in chips.

Lueien Fortune is a security supervisor at the Hilton Hotel. On February 2, 2007, Louisiana State Troopers presented Mr. Fortune with a picture, which he ran through the Hilton’s database. This database contains pictures of individuals who worked for general contractors at the hotel after “the storm.” The search resulted in the identification of Ard.

Regina Augustine is a cashier at Har-rah’s casino. On January 30, 2007, Ms. Augustine served AltI at Cage 1 at the casino. She testified that Ard did not have a “players card” or other identification. Ms. Augustine explained that she talked to Ard in an effort to stall him for enough time to get a surveillance photo. During this conversation, Ard identified himself as '“Lawrence Joseph.” She cashed in $3,200.00 in chips for Ard. Ms. Augustine identified Ard in court as the man she served on January 30, 2007. Prior to trial Ms. Augustine picked Ard out of a photographic lineup presented to her by a Louisiana State Trooper.

| „ERROR PATENT:

The record reveals one error patent. The trial court did not decide Ard’s Motion for New Trial until after issuing sentence, in violation of La. Code Crim. Proc. art. 853. Pursuant to Article 853, a motion for new trial must be filed and disposed of prior to sentencing. This Court has held that sentencing prior to a denial of a motion for new trial requires remand. State v. Lewis, 97-1549, p. 4 (La.App. 4 Cir. 2/3/99), 727 So.2d 1274, 1276; State v. Booth, 98-2065, p. 9 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, 743.

Accordingly, we must vacate Ard’s sentence and remand for resentencing.

LAW AND ANALYSIS:

Ard assigns one error on appeal. He asserts that the trial court erred in allowing the State to introduce “substitute evidence.” At trial, the State was allowed to introduce chips similar to the ones actually seized from Ard’s home. The State was also allowed to introduce a Crown Royal bag that was different from the one seized from Ard’s apartment. Ard asserts this evidence misled the jury as to the evidence’s accuracy and dependability. In support, he cites a case from another circuit, State v. Brown, 00-1951 (La.App. 1 Cir. 5/11/01), 808 So.2d 622, citing State v. Manieri, 378 So.2d 931 (La.1979).

The State counters that the demonstrative evidence was relevant and that Ard has failed to specify, beyond any concluso-ry assertions, how introduction of this evidence resulted in any prejudice to him. The State also raises the issue of chain of custody. As the use of demonstrative evidence presumes a break in the chain of custody of the original chips, which were returned to Harrah’s, this is not an issue. The State also argues that any improper admission of demonstrative evidence was harmless error.

|fiIn State v. Manieri, the Court stated the general rule that:

In considering whether demonstrative evidence is admissible over an objection that it is unduly inflammatory, the test to be applied is whether the proffered evidence is relevant to any material issue in dispute, and if so, whether its probative value exceeds its probable prejudicial effect.

378 So.2d at 932. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Moreover, all relevant evidence is admissible unless constitutionally prohibited. La. Code Evid. art. 402, State v. Anthony, 98-0406, p. 15 (La.4/11/2000), 776 So.2d 376, 387.

Accordingly, this Court has stated the following on the admissibility of demonstrative evidence:

To be admissible, demonstrative evidence must be identified and authenticated. La. C.E. art. 901. As a foundation for admitting demonstrative evidence, it must be established that the object sought to be introduced is more probably than not connected with the case. State v. Tatum, 506 So.2d 584 (La.App. 4th Cir.1987); State v. Matthews, 95-1245 (La.App. 4th Cir.8/21/96), 679 So.2d 977, 984, writ denied, 96-2332 (La.1/31/97), 687 So.2d 403. A lack of positive identification of demonstrative evidence or its chain of custody goes to the weight of the evidence, not to its admissibility, and the connection of that evidence to the case is a factual matter to be determined by the trier of fact. State v. Lewis, 452 So.2d 720 (La.App. 4th Cir.1984).
In State v. Manieri, 378 So.2d 931 (La.1979), our Supreme Court held that it was error to allow the introduction of a weapon which was “similar” to the weapon used during the commission of the charged crime. It reasoned that “the jurors naturally tend to infer a connection between the weapon and the [crime] simply from a mere viewing of the material object, although such a connection is not proved.” Id. at 933. In that case, the State introduced knives similar to the knife used to 17kill the victim. However, the court found that the erroneous introduction of the knives did not prejudice the defendant because there was no attempt to associate the knives introduced by the State with the knife used by the defendant. In State v. Villavicencio, 528 So.2d 215 (La.App. 4th Cir.1988), writ denied, 533 So.2d 14 (La.1988), the defendant argued that the court committed reversible error when it allowed the State to introduce a riñe into evidence that was indisputably not used in the commission of the crime for which the defendant stood trial. We found it error to admit the rifle into evidence because it was irrelevant to the case and a jury could improperly infer a connection between the rifle and the crime. Id. at 217. However, we held that the error did not constitute reversible error because there was no attempt by the State to link the rifle with the crime and because there was ample evidence to convict the defendant of the murder without the introduction of the rifle. Likewise, in State v. Everridge, 523 So.2d 879 (La.App. 4th Cir.1988), the defendant claimed that the trial judge erred in allowing a gun into evidence that had not been used in the crime. Again, we found that introduction of the gun constituted error, but that such error was not reversible error. In that case, there also was no attempt by the State to link the gun with the crime and, furthermore, the State did not seek to exploit the admission of the gun.

State v. Richardson, 96-2598, pp. 4-5 (La.App. 4 Cir. 12/17/97), 703 So.2d 1371, 1373.

Generally, a trial court’s determination of relevancy of evidence is subject to review for abuse of discretion. See State v. Kahey, 436 So.2d 475, 493 (La. 1983). Here, the trial court allowed the State to introduce demonstrative evidence in the form of chips and a Crown Royal bag that were identical to the ones seized from Ard’s house. The trial court’s reasoning in allowing the evidence was that it could be probative.

The probative value of substitute chips is minimal. If the originals had been introduced they would have been relevant to prove that they were the actual stolen property. The substitute chips and bag were introduced as demonstrative evidence, |sbut visualizing a bag of replacement chips in a replacement bag did little to “make the existence” of the fact that Ard stole the original chips from Harrah’s. See La.Code Evid. art. 401; La. R.S. 14:67 A. Accordingly, the finding by the trial court that the substitute chips were probative or otherwise relevant is error. However, the jury was informed that the chips were not the chips actually seized from Ard’s house, but were merely being used to demonstrate the volume of the chips seized. The prejudicial impact on the jury was negligible.

Even if the evidence was improperly admitted, it is subject to harmless error analysis. See State v. Brown, 00-1951, p. 9, 808 So.2d at 627. For an error to be harmless, it must be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The guilty verdict actually rendered in the trial must be unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

The evidence in this case was overwhelmingly condemning. Trooper Voitier testified that Ard admitted stealing the casino chips and took the investigators to where he had hidden them at his home. The casino produced ample footage and photographic evidence of Ard breaking into a “float” and taking the chips. Ms. Augustine recognized Ard in court as the man who had cashed $3,200.00 in chips at her cage. The record in this case clearly shows that the verdict would have been the same without the introduction of this evidence; the verdict is not attributable to the replacement or demonstrative evidence introduced at trial. Accordingly, this argument has no merit.

^CONCLUSION:

The record supports Ard’s conviction; however, we vacate the previous sentence and remand for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brandon M. DUNCAN.
    No. 2008-KA-1579.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2009.

      Charles J. B allay, District Attorney, Robert M. White, Assistant District Attorney, Belle Chasse, LA, for the State of Louisiana.
    Peter Barbee, Barbee & Associates, L.L.C., Belle Chasse, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

[ Defendant-Appellant appeals his conviction and sentence. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Agent Chris Johnson was employed with the narcotics division of the Plaquemines Parish Sheriffs Office. Agent Johnson testified that on March 6, 2007, at approximately 3:55 p.m., he received an anonymous tip from an informant who stated that defendant and an individual named Kara Sylve were en route from Hammond, Louisiana to the Diamond, Louisiana, FEMA trailer park in Plaquemines Parish with a large amount of crack cocaine. The caller described the vehicle in which defendant and Ms. Sylve were riding as a tan Nissan Sentra registered to Ms. Sylve. Agent Johnson testified that he and several other agents proceeded to an area in Belle Chasse, Louisiana to intercept the vehicle, which was expected to arrive in approximately one hour.

Shortly after receiving a radio message from Captain Ty Wiltz regarding a visual of the vehicle matching the description of the suspect vehicle traveling southbound in the 8600 block of Highway 23, Agent Johnson testified that he |2made visual contact with the suspect vehicle as well, and that the number of occupants, vehicle type and color matched the description given by the anonymous caller. Agent Johnson stated that he observed that the vehicle appeared to be traveling at a higher rate of speed than was the posted speed limit; accordingly, he activated his radar and clocked the suspect vehicle traveling at fifty-two miles per hour in a forty-five mile per hour speed zone. Once the speed of the vehicle was determined, Agent Johnson followed the suspect car to conduct a traffic stop, observing that the driver also made an illegal lane change without signaling and that the front passenger was not wearing a seat belt.

After Agent Johnson activated his siren and light bar to stop the vehicle, the driver stopped in the parking lot of a Circle K gas station located at 9144 Highway 23. Agent Johnson testified that he approached the driver’s side of the vehicle and identified the driver as Kara Sylve, with whom he was familiar; advised her that she was being stopped for speeding, improper lane change, and a seat belt violation. Agent Johnson testified that the male passenger then exited the front of the vehicle and spontaneously declared, “I guess y’all are looking for drugs, I ain’t got no drugs and you can’t search the car unless you have a warrant.” Agent Johnson stated that his suspicions that the anonymous tip was correct were heightened, as he not asked either Ms. Sylve or defendant if they were in possession of any drugs.

Agent Johnson further testified that Lieutenant Brandon Mouriz approached the front passenger side of the vehicle and identified the male passenger as defendant, Brandon Duncan. Both Ms. Sylve and defendant were advised of their Miranda rights. Agent Johnson requested permission from Ms. Sylve to search the vehicle; she consented, then subsequently changed her mind and refused to allow lathe search. At that time, Agent Johnson contacted Agent Carole Baroni, one of the volunteer canine officers, and requested that she come to the scene and conduct a canine sweep of the vehicle for narcotics.

Agent Baroni, a commissioned volunteer with the Plaquemines Parish Sheriffs Office, accompanied by her canine Tosca, testified that on March 6, 2007, she arrived at the Circle K on Belle Chasse Highway in response to a request by Agent Johnson and was briefed on the reason for the search. After making a safety check around the vehicle for any substance that could cause harm to Tosca, Tosca walked around the suspect vehicle from the rear driver’s side to the front passenger side. When Tosca approached the seam between the driver’s door and the rear passenger door, Agent Baroni testified that Tosca jumped onto the side of the car and scratched on the seam area, describing this behavior as Tosca’s signal that she had a positive odor response for narcotics. Agent Baroni notified Agent Johnson of Tosca’s response.

Agent Johnson testified that he subsequently conducted a search of the vehicle, observing on the rear seat a pile of blankets, pillows and a jacket, underneath which Agent Johnson discovered a brown paper bag. Agent Johnson further testified that inside the brown paper bag were two large clear plastic bags containing a large amount of a rock-like substance that appeared to be cocaine. Agent Johnson stated that pursuant to this discovery, both Ms. Sylve and defendant were placed under arrest for possession with intent to distribute cocaine, at which time Ms. Sylve became very upset and screamed to defendant, “How could you do Lthis to me? Why did you put that [expletive] in my car?” Defendant responded by shrugging his shoulders, but did not admit that the cocaine belonged to him.

On cross-examination, Agent Johnson stated that the cocaine could not be seen from outside of the vehicle or from the front passenger seat, as it was hidden inside a brown paper bag and covered with blankets, pillows and a jacket. He identified the car as belonging to Ms. Sylve and confirmed that she was the driver. Agent Johnson stated that he was familiar with defendant because defendant was known to him as a narcotics dealer and was the subject of an ongoing narcotics investigation. He further testified that although there was no direct evidence that the cocaine was placed in the car by defendant, that after defendant was Mirandized and as he was placing him into the police car, defendant told him, “I ain’t getting out of the dope game until they give me life.”

Carole Baroni, a commissioned volunteer with the Plaquemines Parish Sheriffs Office, accompanied by her canine Tosca, testified that on March 6, 2007, she arrived at the Circle K on Belle Chasse Highway in response to a request by Agent Johnson and was briefed on the reason for the search. After making a safety check around the vehicle for any substance that could cause harm to Tosca, Tosca walked around the suspect vehicle from the rear driver’s side to the front passenger side. When Tosca approached the seam between the driver’s door and the rear passenger door, Agent Baroni testified that Tosca jumped onto the side of the car and scratched on the seam area, describing this behavior as Tosca’s signal that she had a positive odor response for narcotics. Agent Baroni notified Agent Johnson of Tosca’s response.

1 ¿Captain Ty Wiltz, supervising agent of the Plaquemines Parish Sheriffs Narcotics Division, was part of the surveillance team that intercepted the suspect vehicle. Captain Wiltz testified that he was the first officer to make visual contact with the suspect vehicle as it traveled southbound on Highway 23 and subsequently notified the other officers on the team. Officer Wiltz stated that he arrived shortly after the suspect vehicle was stopped by Agent Johnson and that he was present prior to the canine search and the cocaine being found. Approximately 600 pieces of rock cocaine were removed from the rear seat of the vehicle, weighing 125.34 grams, with a street value of twelve or thirteen thousand dollars, which Captain Wiltz testified was not an amount consistent with personal use.

Captain Wiltz further testified that he asked defendant if he had any drugs in the car and if so, the location and whether they belonged to him, to which defendant responded, “Let her go”; however, defendant never admitted the cocaine belonged to him or that he knew that it was inside the vehicle. Captain Wiltz observed that defendant became very nervous when questioned and unsuccessfully attempted to flee. Captain Wiltz also stated that he knew defendant and had arrested him in the past for distribution of cocaine.

Thereafter, on March 23, 2007, defendant was charged with possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A)(1). On April 2, 2007, he entered a plea of not guilty. On September 18, 2007, following a bench trial, defendant was found guilty as charged. On October 8, 2008, defendant was |fisentenced to serve fifty years at hard labor with credit for time served and concurrent with his sentence in case number 2007-4286. On October 29, 2008, defendant was adjudicated a fourth felony offender; his original sentence was vacated and he was resentenced to serve fifty years at hard labor.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, defendant asserts that the State failed to introduce evidence sufficient to support his conviction for possession with the intent to distribute cocaine. Specifically, he argues that the State failed to present any evidence that he was in possession of the cocaine or that he had knowledge that the cocaine was in the vehicle.

In State v. Brown, the Louisiana Supreme Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01)[,] 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires 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.” Neal, 796 So.2d at 17657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18.

To support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967, the State must prove that the defendant knowingly and intentionally possessed the drug. State v. Perron, 2001-0214, p. 6 (La.App. 4 Cir. 1/6/02), 806 So.2d 924, 928. “The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction.” Perron, 2001-0214, p. 6, 806 So.2d 924, 928 (citing State v. Trahan, 425 So.2d 1222, 1226 (La.1983)). A person not in physical possession of narcotics may have constructive possession if the drugs are under that person’s dominion and control. Perron, 2001-0214, p. 6, 806 So.2d 924, 928 (citing State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir.1990)). Whether a defendant had constructive possession is determined based upon the circumstances of each case. Perron, 2001-0214, p. 6, 806 So.2d 924, 928 (citing State v. Cann, 319 So.2d 396, 397 (La.1975)). “In determining whether defendant exercised the requisite dominion and control, factors which may be considered include his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users.” Perron, 2001-0214, p. 6-7, 806 So.2d 924, 928 (quoting State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir.1989)).

|sWith regard to the intent to distribute cocaine, to sustain its burden, the State was required to show that defendant possessed the cocaine and that he had the intent to distribute it. See State v. Howard, 2000-2700 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, 1261; State v. Williams, 594 So.2d 476, 478 (La.App. 4 Cir.1992). In Howard., this Court discussed the State’s burden in proving the intent to distribute:

Specific intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4 Cir.1989). In State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court set forth five factors to consider in determining whether a party had the intent to distribute narcotics. Reversing the defendant’s conviction in that case, the court stated:
Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred. State v. Fuller, 414 So.2d 306 (La.1982); State v. Phillips, 412 So.2d 1061 (La.1982); La.Rev.Stat. 15:445. In State v. House, 325 So.2d 222 (La.1975), this court discussed certain factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others;. (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.
I
In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Greenway, 422 So.2d 1146 (La.1982); State v. Harveston, 389 So.2d 63 (La.1980); State v. Willis, 325 So.2d 227 (La.1975).

Howard, at pp. 22-23, 805 So.2d at 1261-1262 (quoting State v. Hearold, 603 So.2d 731, 735-36 (La.1992)(emphasis added). Moreover, this Court noted in Howard that “[i]n State v. Cushenberry, 94-1206, p. 6 (La.App. 4th Cir.1/31/95), 650 So.2d 783, 786, this Court described the Hearold factors as ‘useful’ but held that the evidence need not ‘fall squarely within the factors enunciated to be sufficient for the jury to find the requisite intent to distribute.’ ” Howard, at pp. 22-23, 805 So.2d at 1261-1262 (quoting State v. Cushenberry, 94-1206, p. 6, 650 So.2d 783, 786).

In State v. Jones, 97-2217 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 399, State v. Ask, 97-2061 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669, and State v. Bentley, 97-1552 (La.App. 4 Cir. 10/21/98), 728 So.2d 405, 412, this Court found sufficient evidence to support convictions for possession of drugs with the intent to distribute based merely upon the amount of drugs seized, even though in no case did the officers involved observe any suspected transactions, nor did the State present any expert testimony in these cases to indicate that the amount of drugs seized was inconsistent with personal use.

[inWe find that the evidence supports the district court’s finding that defendant had, at a minimum, constructive possession of the cocaine, as the circumstances surrounding defendant’s possession gave rise to a reasonable inference of an intent to distribute. See Howard, at pp. 22-23, 805 So.2d at 1261-1262. Captain Wiltz testified that the amount of cocaine recovered from the vehicle was not an amount consistent with personal use. See also State v. Jones, 731 So.2d at 399, State v. Ash, 729 So.2d at 669, and State v. Bentley, 728 So.2d at 412. Additionally, pursuant to the Perron factors, we find that defendant exercised the requisite dominion and control sufficient to establish constructive possession of the narcotics in this case; Agent Baroni’s canine gave a positive signal for the odor of narcotics in the area between the front and rear seats of the suspect vehicle; the search revealed cocaine hidden under several blankets, pillows and a jacket on the rear seat behind where defendant was seated; and defendant was known to the police officers as a drag dealer and had a previous conviction for possession of cocaine with intent to distribute. See Perron, 2001-0214, p. 6-7, 806 So.2d 924, 928. Therefore, the amount of the cocaine in the vehicle that was inconsistent with personal use, defendant’s previous history of drug distribution, his nervous behavior and attempt to flee when questioned, and the defendant’s spontaneous statements were sufficient under these particular facts and circumstances to support a finding of possession of cocaine with the intent to distribute. See id.

Moreover, it is well-settled that a factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093, 1111; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432, 435. We cannot say that the |, factfinder’s determinations were clearly contrary to the evidence under these particular facts and circumstances.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant argues that the cocaine was illegally seized because there was no reasonable suspicion for an investigatory stop and no probable cause to arrest him. A review of the record reveals that the defendant did not file a motion to suppress evidence and did not object to the admission of the cocaine at trial. Accordingly, this issue has not been preserved for review on appeal. La.C.Cr.P. article 841.

ASSIGNMENT OF ERROR NUMBER 3

By his remaining assignment of error, defendant argues that the trial court imposed an unconstitutionally excessive sentence of fifty years at hard labor. The claim for an excessive sentence was not preserved for appeal in this case. Counsel for defendant neither objected when the court imposed sentence nor filed a motion to reconsider sentence as mandated by La.C.Cr.P. art. 881.1. This Court has 112held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim regarding his sentence on appeal. State v. Rodriguez, 2000-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640, 649; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 13749 So.2d 767, 775. Because defendant in this case did neither, he is precluded from raising this issue on appeal.

CONCLUSION

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

AFFIRMED.

      . Captain Ty Wiltz was the supervising agent of the Plaquemines Parish Sheriff’s Narcotics Division.

      . The defense stipulated that Agent Carole Baroni was a certified canine handler and that her canine, Tosca, was a certified drug sniffer.

      . Captain Wiltz also testified that Ms. Sylve made this remark and that defendant responded to the remark by shrugging his shoulders.

      . The defense stipulated that Agent Carole Baroni was a certified canine handler and that her canine, Tosca, was a certified drug sniffer.

      . Prior to the taking of testimony, the state and the defense stipulated that the Jefferson Parish Sheriff's Office Crime Lab report, that State's Exhibit 1, reflected that the rock-like substance recovered from the suspect vehicle was cocaine and that its gross weight was 125.34 grams. The state and the defense also stipulated to the testimony of Ken Harvey, custodian of evidence for the Plaquemines Parish Sheriff’s Office, that two envelopes, the State’s Exhibits 2 and 3, were received by him and that the contents of Exhibit 2 were submitted to the chemist for analysis pursuant to the report identified as State's Exhibit 1.

      .The minute entry of October 8, 2008 erroneously states that defendant pleaded guilty to the charge.

      . Defendant was charged with and convicted of possession with the intent to distribute cocaine.

      . In Jones, the officers seized sixty-four tin foil packets of heroin; in Ash, the officers seized twenty-one pieces of crack cocaine and a bag of powdered cocaine; and in Bentley, the officers seized thirty-four pieces of crack cocaine.

      . A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      B. The requirement of an objection shall not apply to the court's ruling on any written motion.
      C. The necessity for and specificity of evi-dentiary objections are governed by the Louisiana Code of Evidence.
      La.C.Cr.P. article 841.

      . La.C.Cr.P. art. 881.1 provides as follows:
      A.(1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
      (2) In misdemeanor cases, the defendant may file a motion to reconsider sentence at any time following commencement or execution of such sentence. The court may grant the motion and amend the sentence, even following completion of execution of the sentence, to impose a lesser sentence which could lawfully have been imposed.
      (3) In the event a defendant alleges mutual mistake in that the sentence imposed upon conviction pursuant to Code of Criminal Procedure Article 893 was in error and the prosecuting authority, the court, and the defendant intended that the imposition of sentence was to be deferred pursuant to Code of Criminal Procedure Article 893(E), such defendant may file a motion to reconsider the sentence for the sole puipose of considering that issue. Such motion shall be filed within two years of the date of successful completion of the probation imposed by the court. If the court finds that a mutual mistake exists and that the defendant was in all other respects eligible for the benefits of Code of Criminal Procedure Article 893(E), the defendant shall be enti-tied to the benefits thereof, in accordance with law.
      B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
      C. If a motion is made or filed under Paragraph A of this Article, the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of the sentence.
      D. The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . Additionally, the record reflects that the trial court was prepared to impose the maximum life sentence pursuant to La. R.S. 15:529.1., but reduced the sentence after a consultation with defense counsel.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Terrence L. NICHOLAS.
    No. 2008-KA-0867.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

I,This appeal is from a judgment denying the defendant’s motion for a new trial. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts

The defendant, Terrence L. Nicholas was charged by bill of information on November 29, 2006, with one count of violating La.Rev.Stat. 40:966(C)(1), possession of heroin. The defendant pleaded not guilty at his arraignment on January 12, 2007, and after a hearing on February 26, 2007, which was recessed to hear testimony from an additional witness, the trial court issued his ruling on March 16, 2007, denying the defendant’s motion to suppress and finding probable cause to support the charge of heroin possession.

After a jury trial on June 11, 2007, the defendant was found guilty as charged. On June 22, 2007, the defendant filed a motion for a new trial alleging that (1) the jury verdict was contrary to the law and evidence and (2) subsequent to the tidal a witness had been located who would testify that the police officers |2seized the heroin from her and that she, rather than the defendant, had been in possession of the heroin.

The trial court denied the motion for a new trial on October 12, 2007, and after a multiple bill hearing on November 28, 2007, adjudged the defendant a second offender and sentenced him to ten years at hard labor with the Department of Corrections.

Discussion

In his sole assignment of error on appeal, the defendant argues that the trial court abused its discretion in denying his motion for new trial. The defendant’s motion is based on the alleged discovery of Rotunda Moffett, the actual perpetrator of the crime. The State, however, argues that Ms. Moffett’s testimony was not new evidence because the jury heard similar factual recitations from two other defense witnesses, that Ms. Moffett’s whei’eabouts could have been discovered prior to trial by the defendant through the exercise of due diligence, and that even had she testified at trial, her testimony would not have resulted in a different verdict.

La. Code Crim. Pi*oc. art. 851 provides in pertinent part that a motion for a new tidal shall be granted whenever “[n]ew 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 tidal it would probably have changed the verdict or judgment of guilty. La. Code Crim. Proc. art. 851(3). To obtain a new trial based on newly discovered evidence, the defendant must show: 1) the new evidence was discovered after trial; 2) the failure to discover the evidence at the time of trial was not due to the defendant’s 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 changed the verdict of guilty. State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931. The trial judge’s duty in ruling on a motion for a new trial is to ascertain whether there is new material fit for a new jury’s judgment, State v. Prudholm, 446 So.2d 729, 736 (La.1984), and, in assessing the legal merits of a motion for new trial, the trial judge is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict, State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 821; State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321. Appellate review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907.

The following evidence was adduced at trial. Officer Sean Ogden of the New Orleans Police Department (NOPD) Sixth District testified that he arrested the defendant on June 26, 2006, while on routine patrol with his partner, Officer Christopher Carter. At approximately 11:48 p.m., Officers Ogden and Carter were in the 2200 block of Washington Avenue driving towards the lake in their marked patrol care when they observed a vehicle, approximately two car lengths distance in front of theirs, without a license plate. The vehicle was ordered to pull over in the 2300 block of Washington Avenue and the two police officers exited their patrol car and approached the vehicle.

As Officer Ogden approached the driver’s side of the vehicle with his flashlight illuminated, he noticed that the windows were down, the defendant was sitting in the driver’s seat, and three other individuals sitting in the vehicle. Officer |4Ogden could see the defendant’s left hand on the steering wheel, but the defendant’s right hand was out of view. For safety purposes Officer Ogden ordered the defendant to show his right hand. As the defendant raised his right hand from his waistband area, Officer Ogden observed him drop a plastic bag containing a powdered substance towards the floorboard. Suspecting that the dropped bag contained cocaine or heroin, Officer Ogden ordered the occupants out of the car.

At this point, two other officers from the Sixth District task force arrived to act as back up. The defendant and the other occupants exited the vehicle and Officer Ogden retrieved the bag from the vehicle’s floorboard. Officer Ogden identified State’s Exhibit 1 as the bag he retrieved from defendant’s vehicle. Upon retrieving the bag, the officers placed the defendant under arrest. The officers also gave the defendant a traffic citation for failing to wear a seat belt. Officer Ogden identified State’s Exhibit 2 as the traffic citation given to defendant on the night of the arrest.

On cross examination, Officer Ogden admitted that he did not know whether the defendant was wearing his seat belt before he pulled his vehicle over in compliance with the officers’ orders. Rather, Officer Ogden stated that the defendant was not wearing the seat belt when he first approached the defendant’s vehicle. Further, Officer Ogden refused to agree with defense counsel’s suggestions that: (1) he and his partner ordered the four occupants out of the car and forced them to kneel at the rear of the vehicle; (2) he ordered the occupants of the vehicle to remove their shoes; (3) he and his partner separated the three men |5from the sole female occupant after they failed to find any contraband in the vehicle; (4) he received the contraband from the sole female occupant; and (5) he told the defendant that his arrest was in retaliation for running away from him on a prior stop. Officer Ogclen could not recall whether he had ever met the defendant before the night of June 26, 2006.

Officer Carter also testified at trial, identifying the defendant as the individual he arrested on June 26, 2006, and corroborating the Officer Ogden’s testimony as to the details of the stop and arrest. On cross-examination, Officer Carter stated that the defendant’s vehicle was approximately one car length in front of his police unit when he and his partner noticed that it had no license plate. Further, Officer Carter admitted that he could not say whether the defendant was wearing his seat belt when he and his partner decided to order the defendant to pull over. On the other hand, Officer Carter refused to agree with defense counsel’s suggestions that: 1) he and his partner ordered the four occupants out of the car and forced them to kneel at the rear of the vehicle; 2) he and his partner ordered the occupants of the vehicle to remove their shoes; and 3) he and his partner received the contraband from the vehicle’s sole female occupant. Further, Officer Carter stated that he could not recall whether he knew the defendant from a previous stop.

The defendant called Theapolies Branch, a lifelong friend, to testify on his behalf. Mr. Branch stated that on the evening of June 26, 2006, he, the defendant, Craig Adams, Rotunda Moffett, and an unidentified fifth person were coming back from a post-funeral dinner. After dropping off the fifth person, they turned down Dan-neel Street, made a right onto Washington Avenue, and proceeded on Washington Avenue heading towards the lake. Mr. Branch testified that a few blocks later a police unit turned off of Saratoga Street onto Washington Avenue | fiand pulled them over in the 2300 block of Washington Street. According to Mr. Branch, the defendant was driving, Mr. Adams was in the front passenger seat, he was sitting behind Mr. Adams, and Ms. Moffett was sitting behind the defendant.

After stopping the vehicle and ordering the occupants out of the car, the police searched the vehicle. According to Mr. Branch, after finding several cigars in the glove compartment, the police officers demanded that the occupants hand over their marijuana. Mr. Branch told the officers that they had no marijuana, but the officers kept questioning them. Mr. Branch further testified that after additional questioning, Ms. Moffett reached into her underwear and produced a packet of heroin. Mr. Branch testified that the police then told Ms. Moffett that “[i]t was her lucky night,” released her, and placed him and the defendant under arrest. Mr. Branch stated that at the time of the arrest there was an outstanding attachment in his name stemming from unpaid fines and fees associated with a misdemeanor conviction for marijuana possession. Additionally, Mr. Branch stated that at no time did the defendant possess the heroin or discard it on the floor of the vehicle.

On cross-examination, Mr. Branch testified that he and the other occupants of the car left the post-funeral dinner at approximately 10:30 p.m., that the police pulled the car over at approximately 11:00 p.m., and that the police had them “on the car” for approximately one hour. Further, Mr. Branch admitted to having a prior conviction for shoplifting and a misdemeanor conviction for possession of marijuana. Finally, Mr. Branch conceded that from where he was seated in the car he could not see the driver’s side floorboard.

Craig Adams also testified on behalf of the defendant. Mr. Adams testified that he had known defendant since they were children and on the night of the |7arrest, he, the defendant, Mr. Branch, and Ms. Moffett were driving on St. Charles Avenue, turned right on Washington Avenue, and passed a police car at Washington’s intersection with Saratoga Street. Mr. Adams stated that the police followed them and stopped their vehicle near Washington’s intersection with LaSalle Street. Mr. Adams further testified that the officers ordered him and his friends to get out of the vehicle and put their hands on the vehicle. Mr. Adams noted that the officers searched him and his friends as well as the vehicle. The officers searched the four friends and forced them to remove their shoes. According to Mr. Adams, the officers initially found nothing and he assumed that he and his friends were free to leave but the officers took Ms. Moffett aside and subsequently produced a packet of narcotics. Mr. Adams claimed that the officers told him that Ms. Moffett had the narcotics in her underwear and that he and his friends assumed that she would be going to jail but, despite Ms. Moffett’s protestations, the police stated that they were going to take the defendant instead. Moreover, Mr. Adams testified that while in the vehicle he never saw the defendant throw any narcotics on the vehicle’s floorboard. Additionally, Mr. Adams admitted to having a prior conviction for possession of a stolen automobile.

On cross-examination, Mr. Adams testified that the police detained them for approximately thirty minutes to an hour. Further, Mr. Adams stated that when the officers first approached the vehicle they had their guns drawn and pointed in towards the occupants. However, Mr. Adams also stated that he did not look directly at the officers until after he got out of the vehicle. Additionally, Mr. Adams testified that a male officer physically searched Ms. Moffett and retrieved the narcotics from her underwear. The defense rested after presenting Mr. Adams’ testimony.

|xOn rebuttal, the State recalled three witnesses: Mr. Branch, Officer Cartel', and Officer Ogden. Mr. Branch asserted that Ms. Moffett took the narcotics out of her underwear and threw them on the vehicle, but stated that he could not recall whether the officers approached the vehicle with weapons drawn or if the officers ever drew their weapons. Officers Carter and Ogden both testified no narcotics were retrieved from Ms. Moffett. Additionally, Officers Carter and Ogden both testified that, if they had suspected that Ms. Mof-fett was secreting narcotics in her underwear, they would have asked for assistance from a female officer. Finally, Officers Carter and Ogden both testified that at no time did they draw their weapons.

The defendant filed a motion for new trial supported by the sworn affidavit of Ms. Moffett. In the affidavit, Ms. Moffett avers that she was a passenger in the vehicle with the defendant, Mr. Adams, and Mr. Branch on June 26, 2006, when it was pulled over by two police officers and that once she and the others were ordered out of the vehicle the officers searched the vehicle for contraband. After finding no contraband in the vehicle the officers began to question each of the occupants and, after thirty minutes of questioning, Ms. Moffett told the officers that she was in possession of heroin, removed the heroin from her underwear, and placed it on the hood of the police car. Ms. Moffett avers that she told the officers that she was going to use the heroin to “get loaded in order to cope with the death” of her cousin. Additionally, Ms. Moffett denies that a female officer conducted a search of her person. Finally, Ms. Moffett states that after receiving the heroin, the officers told her that it was her “lucky day” because they were going to arrest the defendant in retaliation for running away from them.

|¡)At the August 10, 2006, hearing on the defendant’s motion for new trial, Ms. Mof-fett testified, reiterating that the heroin retrieved from the vehicle on the evening of June 26, 2006, belonged to her. Ms. Moffett testified that she was returning from her cousin’s funeral with the defendant, Mr. Branch, and Mr. Adams when the vehicle was ordered off of the road by the police. Ms. Moffett asserted that she was sitting in the vehicle’s rear seat behind the driver and that after pulling over the vehicle, the officers ordered her and her friends out of the vehicle. When the officers asked the group whether they were in possession of any narcotics, Ms. Moffett volunteered that she was in possession of narcotics which she retrieved from her underwear and gave the narcotics to the officers. After she gave the narcotics to the officers, the officers told her it was her “lucky day.” According to Ms. Moffett, she never saw any narcotics on the defendant’s person or any other narcotics at the scene. On cross-examination, Ms. Moffett stated that prior to trial she had been living at her home in New Orleans East and that she had not been subpoenaed for trial. According to Ms. Moffett, even though their mothers were close friends, it would have been difficult for the defendant to locate her because her mother was in the hospital and she traveled constantly between New Orleans and Atlanta, Georgia, and, in any event, on the day of tidal she (Ms. Moffett) was in jail in Kenner, Louisiana.

Although the record is unclear as to the charges underlying her detention, Ms. Moffett was apparently in jail in Orleans Parish at the time of the hearing on the defendant’s motion for new trial. The record indicates the trial court left the matter open to allow defense counsel to substantiate Ms. Moffett’s allegation that she was incarcerated in Kenner, Louisiana, at the time of the defendant’s trial. On | ^October 12, 2007, the trial judge denied the motion for a new trial, stating in part that he “simply chose not to believe Ms. Moffett.”

Upon review, we do not find that the evidence supports the defendant’s assertion that new evidence was discovered after trial. Ms. Moffett’s testimony, although against her own interest, mirrored the trial testimony of Mr. Adams and Mr. Branch that it was Ms. Moffett who had the heroin secreted on her person when the vehicle was stopped by the police. Although Mr. Adams testified to the jury that the heroin was discovered on Ms. Moffett as a result of a police search, Mr. Branch’s testified that Ms. Moffett volunteered the heroin and, accordingly, Ms. Moffett’s allegation that she admitted to the police that the heroin was hers and retrieved it from her underwear cannot be characterized as new evidence. Thus, while defense counsel failed to present Ms. Moffett at trial, her testimony was not new and would not add anything to the testimony already adduced at trial. Specifically, the jury heard evidence from two defense witnesses that the police pulled over the defendant’s vehicle, ordered the occupants out of the car, searched the car and the occupants and, although it was Ms. Moffett who possessed the heroin, decided to charge the defendant with possession. Mr. Branch claimed, as did Ms. Moffett, that the officers’ acted out of retaliation for the defendant’s past behavior. Thus, the record shows clearly that the jury was presented with two mutually exclusive accounts of what transpired after the officers pulled over the defendant’s vehicle and chose to believe the officers’ testimony that the defendant was in possession of the heroin. Accordingly, given the similarity of the testimony, there is nothing in the record to suggest that the addition of Ms. Moffett’s voice to the defendant’s ease at trial would have swayed the jury. Moreover, while the defendant asserts that the testimony presented during his case£n-chiefn was more believable, there is nothing in the record to suggest that the jury’s decision to credit the officer’s testimony, rather than Mr. Adams’ and Mr. Branch’s, was unreasonable. Finally, although Ms. Moffett’s testimony goes against her own interest and she may have been difficult to locate, the lack of any attempt to subpoena her for trial undermines the defense claim of due diligence in presenting her as a witness. Accordingly, under these circumstances, we cannot find that the trial court abused its broad discretion in denying the defendant’s motion for a new trial.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The contents of the bag retrieved from tire floorboard of the defendant's vehicle tested positive for heroin and the defendant stipulated that, if called, Mr. Corey Hall of the New Orleans Police Department’s Crime Lab would have testified that he prepared an analysis of the contents of the bag and that the contents tested positive for heroin.


text:
    Barbara FORTIER, Cheron and Harold Baquet, and David Frere, Members of the Congregation of Our Lady of Good Counsel Roman Catholic Church v. Most Rev. Alfred HUGHES, S.T.D., Most Rev. Roger P. Morin, Rev. Patrick Collum and the Roman Catholic Archdiocese of New Orleans.
    No. 2009-CA-0180.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2009.

      Virginia W. Gundlach, Genevieve M. Hartel, Erin N. Beck, Jones Walker Wae-chter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for Plaintiffs/Appellants.
    Richard A. Bordelon, Ralph J. Aucoin, Todd R. Gennardo, Denechaud and Dene-chaud, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

Iiln this appeal, plaintiffs contend that the trial court erred in granting defendants’ exceptions of no right of action and lack of subject matter jurisdiction. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 14, 2008, Archbishop Alfred C. Hughes signed a canonical decree “suppressing” Our Lady of Good Counsel church parish, effective October 17, 2008. On October 20, 2008, plaintiffs filed a petition for injunctive relief, including a temporary restraining order, seeking to prevent the closure, or “suppression,” of Our Lady of Good Counsel parish. The trial court denied the temporary restraining order. Subsequently, on October 28, 2008, the trial court granted Defendants’ exceptions of no right of action and lack of subject matter jurisdiction, and denied plaintiffs’ request for a preliminary injunction on the same issue. The trial court also denied plaintiffs’ request to amend their petition to add a claim for fraud and a claim that they are third party beneficiaries of the corporate charter. Plaintiffs subsequently filed this appeal.

^DISCUSSION

Plaintiffs argue that the trial court erred in granting the exception of no right of action. The congregants are members of the non-profit entity known as The Congregation of Our Lady of Good Counsel Roman Catholic Church. The Articles of Incorporation state that The Congregation of Our Lady of Good Counsel was established for the benefit of its members — that is, those belonging to the corporation, plaintiffs argue. The Articles describe the Archbishop, the Vicar General, and the Pastor as members of the Congregation of Our Lady of Good Counsel Roman Catholic Church because they would not otherwise be members. Article 3 does not define or list the members of the corporation or limit the Congregation’s membership to the Archbishop, the Pastor, and the Vicar General, according to plaintiffs.

Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law. Turner v. Law Firm of Wolff & Wolff, 07-1589, p. 2 (La.App. 4 Cir. 6/4/08), 986 So.2d 889, 891.

Under La. R.S. 12:208, only members of a corporation may bring an action to challenge an act of the corporation:

(A) Invalidity of an act of a corporation, or conveyance or transfer of movable or immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer may be asserted only:
(1) In an action by a member of the corporation to set aside such act ...
(2) In an action by a member against the corporation to enjoin the performance of any act or transfer of movable or immovable property ...

Article 3 of the Articles of Incorporation contains the only reference to the identity of the members of the corporation. It provides, in pertinent part:

| sThe Most Reverend Archbishop, the Vicar General, and the Pastor of said Congregation shall be and remain members of this corporation and members of the board of directors thereof ...

No other definition of the identity of the members of the corporation appears anywhere else in the document.

Plaintiffs assert that they are members of the corporation “named for the people.” Plaintiffs also urge that the opening paragraph of the Articles describing two laymen, Louis Pfíster and John Dwyer, as “members of said Congregation” designates that they are members of the corporation.

The words of a contract must be given their generally prevailing meaning. La. C.C. art.2047. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046.

Neither the name of the corporation, nor the label plaintiffs give themselves as “members of the congregation” is of any consequence here. The fact that the name of the Corporation contains the word “Congregation” does not serve to override the clear intent of the Articles of Incorporation as set forth in Article 3. In Article 3, the Archbishop, Vicar General and Pastor of the Congregation are clearly named as members of the corporation and members of the board of directors. Pfister and Dwyer are named as members of the board of directors, but are not named as members of the corporation. Plaintiffs’ reading of Article 3 would lead to an absurd result, and contradicts the clear language of the document.

Further, plaintiffs’ argument that the Archbishop, the Vicar General, and the Pastor are only named members of the corporation because they would not otherwise be members of the corporation is mere speculation and supposition, with no evidence introduced in support of it. It is clear that only the Archbishop, the 14Vicar General, and the Pastor were named “members of the corporation” in Article 3. No further interpretation is required or allowed by law.

Plaintiffs’ argument that Article 2 of the Articles of Incorporation establishes that congregants, or parishioners, are members of the corporation is flawed. Article 2 states that the purpose of the corporation is to “hold and administer property for religious purposes, in that the same may be devoted to religious services for the benefit of those who attend the Roman Catholic Church, belonging to this corporation.” The quoted language does not provide that those people who attend the Roman Catholic Church belong to the corporation. Rather, the Roman Catholic Church attended by the parishioners belongs to the corporation. Furthermore, Article 2 does not abrogate the clear language contained in Article 3 naming the members of the corporation.

Plaintiffs ui’ge that members of a corporation do not have to be iSentified in the Articles of Incorporation; they can be admitted to the corporation at a subsequent date. However, here, Article 3 states who the members are, and there have been no subsequent amendments to the Articles to include any other members. The affidavit of Barbara Fortier, one of the plaintiffs, attesting that a membership register of the members of the “Congregation” is kept does not establish that these people are members of the corporation. The church registry does not amount to an amendment to the Articles of Incorporation. The fact that plaintiffs are parishioners of a church parish and are registered as such does not elevate them to the position of a corporate member, when they are not identified as such in the Articles of Incorporation.

Making contributions to the Church also does not make plaintiffs members of the corporation. The caselaw cited by plaintiffs is distinguishable. In Palermo, 1 ¡¡plaintiffs paid a membership fee and annual dues that were provided for in the bylaws of the corporation. Palermo v. Old Tram Hunting Club, 227 So.2d 644 (La.App. 3 Cir.1969). In the case at bar, the Articles of Incorporation do not provide, explicitly or otherwise, that parishioners who make contributions to the Church are members of the corporation.

The clear and unambiguous language of the Articles of Incorporation identifies only three members of the corporation: the Archbishop, the Vicar General, and the Pastor. The trial court correctly recognized that the plaintiffs are not members of the corporation, and therefore have no right of action. The plaintiffs’ assignment of error is without merit.

Plaintiffs assert that the trial court erred in denying their request to amend their petition to add a claim for fraud and a claim that they are third party beneficiaries of the corporate charter. The decision to allow a plaintiff to amend under La. C.C.P. art. 934 is within the discretion of the trial court, and will not be disturbed absent manifest error. Massiha v. Beahm, LAMMICO, and ABC, 2007-0137 (La.App. 4 Cir. 8/15/07), 966 So.2d 87. La. C.C.P. art. 934 does not permit amendments to a petition that change the substance of the original claims. Id.

Plaintiffs originally filed a derivative action. No reference was made in the petition to any cause of action arising out of fraud. Further, plaintiffs now seek damages instead of injunctive relief, which was sought in the initial petition. Additionally, plaintiffs did not allege that they were third party beneficiaries of the corporate charter in their original petition. Plaintiffs’ proposed amendments do not amplify or clarify their original claim; they change its substance. As such, we find that the trial court did not abuse its discretion in denying plaintiffs the right to amend.

|[Jn light of these rulings, plaintiffs’ remaining assignment of error is moot, and we need not address it.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. D.S.J.
    No. 08-1555.
    Court of Appeal of Louisiana, Third Circuit.
    June 24, 2009.

      J. Reed Walters, District Attorney— Twenty-Eighth Judicial District, Jena, LA, for Appellee State of Louisiana.
    Joseph Kutch, Pineville, LA, for Defen-dantr-Appellant D.S.J.

      Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

| ] During the period between March 1 and March 31, 2007, it was alleged Defendant, D.S.J., touched the vagina of his eleven-year-old daughter on two separate occasions. Defendant also rubbed her breasts.

Defendant was charged by bill of indictment with sexual battery, a violation of La.R.S. 14:43.1, and indecent behavior with a juvenile, a violation of La.R.S. 14:81. Defendant entered a plea of not guilty.

A Motion to Quash was filed and denied on the same day. Defendant subsequently entered a plea of guilty to sexual battery pursuant to State v. Crosby, 338 So.2d 584 (La.1976), and reserved his right to appeal the denial of his Motion to Quash. The charge of indecent behavior with a juvenile was dismissed. Defendant was then sentenced to serve twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence. Defense counsel objected, asserting the sentence was excessive and asked the trial court to reconsider the sentence. The motion to reconsider was denied. Defense counsel then made an oral motion for appeal.

A written motion for appeal was filed and subsequently granted. Defendant is now before this court asserting one assignment of error. Therein, Defendant contends the trial court erred in not declaring La.R.S. 14:43.1(0 unconstitutional in violation of La. Const, art. 1, § 3 and/or § 20, in general or as it was applied to him. For the following reasons, we find no merit in Defendant’s contention.

ANALYSIS

Defendant pled guilty to sexual battery. At the time of the offense, the penalty for sexual battery committed against a child under the age thirteen by an offender ^seventeen years of age or older was imprisonment at hard labor for not less than twenty-five years nor more than life. At least twenty-five years of the sentence must be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:43.1(C)(2). Defendant was sentenced to serve the mandatory minimum sentence.

Defendant is contesting his sentence in this appeal. It is unclear from the record whether the Defendant entered a plea for an agreed-upon sentence, of which he could not seek review. La. Code Crim.P. art. 881.2. The trial court stated the following prior to accepting Defendant’s guilty plea: “It’s already been discussed that your particular plea bargain involves a sanction of 25 years at hard labor, that’s without parole, plus pay cost.” Additionally, at the time Defendant was sentenced, the trial court stated the following: “It will be the sentence of the Court in accordance with the plea bargain agreement that you serve the minimum mandatory which is 25 years at hard labor without parole.” We note the specific terms of the plea agreement were not set forth for the record. Because we cannot determine whether the sentence was an agreed-upon sentence, out of an abundance of caution and so as not to call into question the voluntariness of his plea, we will review the claims set forth by Defendant in brief to this court. State v. Singleton, 614 So.2d 1242 (La.1993). | oPrior to entering his guilty plea, Defendant filed a Motion to Quash asserting the following:

Mover shows that the sentence is unconstitutional as excessive and, unconstitutionally excessive where applied to this defendant.
Mover shows that the mandatory minimum sentence makes no allowance for considering the actual conduction [sic] of the accused, the actual injury inflicted on the victim, to include physical and/or emotional trauma actually inflicted on the victim, nor allows the court any latitude in sentencing as outlines [sic] in the Code of Criminal Procedure, Article 894.1. Moreover, Section 43.2 is inherently a more violent and dangerous offense yet carries the same penalty in subsection (C)(2).[]

14At a hearing on the motion, defense counsel asserted the mandatory minimum sentence was unconstitutionally excessive as written and as applied to Defendant. Defense counsel then argued the mandatory minimum sentence made no allowance for considering a defendant’s conduct, injuries suffered by the victim, or the sentencing guidelines. Additionally, second degree sexual battery carried the same penalty and is a substantially more serious offense. The trial court denied the motion, stating the following:

I think the Legislature wanted to address the age thing more than any other thing versus the amount of intentional infliction. So, that being the case, I’m not gonna impose my thoughts on what the Legislature was thinking when they passed the Statute raising it — if it’s less than 13, it’s at least 25.

In brief to this court, Defendant sets forth the following three issues: 1) whether the penalty portion of La.R.S. 14:43.1(C) is unconstitutionally excessive, either in all cases or as applied to him, when compared with that in La.R.S. 14:43.2; 2) whether the wide disparity of actions that are possible to be inflicted under the definition of La.R.S. 14:43.1 creates the reasonable likelihood of an excessive sentence based upon the harm done; and 3) whether the disparity between the harm inflicted between La.R.S. 14:43.1 and La.R.S. 14:43.2 and imposition of the identical sanction affords him the equal protection of the law.

Defendant asserts the penalty for second degree sexual battery is identical, where the age criteria exists, to that for sexual battery although second degree sexual battery requires the intentional infliction of serious bodily injury. Defendant further asserts this amounts to an equal protection violation. Defendant then discusses State v. Beasley, 42,143 (La.App. 2 Cir. 6/20/07), 960 So.2d 1182, wherein the defendant in that case was convicted of molestation of a juvenile under his control or supervision for impregnating his girlfriend’s sixteen-year-old daughter and was sentenced as a second felony offender to serve thirty years at hard labor. We note the offense in Beasley occurred in 2002, and the penalty at issue in the instant case was added in 2006.

Defendant then discusses the law regarding downward departure from a ■ minimum sentence, asserting that defense counsel made an argument for a downward departure, and the trial court refused to second-guess a decision by the legislature. He also asserts the sentencing provision of La.R.S. 14:43.1(0 facially violates the state constitutional prohibition against excessive punishment.

“A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). “A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.” State v. Lobato, 603 So.2d 739, 751 (La.1992). It is a well established principle that the legislature has the unique responsibility to define criminal conduct and to provide for the penalties to be imposed against persons engaged in such conduct. Dorthey, 623 So.2d at 1278; State v. Woljar, 477 So.2d 80, 81-82 (La.1985). The penalties provided by the legislature reflect the degree to which the criminal conduct affronts society. State v. Ryans, 513 So.2d 386, 387 (La.App. 4th Cir.1987), writ denied, 516 So.2d 366 (La.1988). Courts must apply these penalties unless they are found to be unconstitutional. Dorihey, 623 So.2d at 1278.
In State v. Telsee, 425 So.2d 1251 (La.1983), this court outlined several factors which are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime. This analysis is cumulative and focuses on a combination of these factors. Id. at 1253. These factors include the [(¡nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions. Id. at 1253-54.

State v. Baxley, 94-2982, pp. 9-10 (La.5/22/95), 656 So.2d 973, 979-80.

In 2006 La. Acts No. 103, § 1, the sentencing provisions for sexual battery, La. R.S. 14:43.1(0; second degree sexual battery, La.R.S. 14:43.2(C); oral sexual battery, La.R.S. 14:43.3(0; pornography involving juveniles, La.R.S. 14:81.1(E); and molestation of a juvenile, La.R.S. 14:81.2(E), were amended or enacted to provide for a mandatory minimum sentence of twenty-five years at hard labor, with at least twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence, when the victim of the offense is under the age of thirteen and the offender is seventeen years of age or older. This act was known as the Mary Jean Thigpen Law and within that act, the legislature also provided that the penalty for indecent behavior with a juvenile under the age of thirteen by an offender seventeen years of age or older would be imprisonment for not less than two nor more than twenty-five years, with at least two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. La.R.S. 14:81.

In 2006 La. Acts No. 325, § 2, the legislature provided for a mandatory minimum sentence of not less than twenty-five years at hard, with at least twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence, for the commission of aggravated incest and molestation of a juvenile by an offender seventeen years of age or older against a victim under the age of thirteen. JiLa.R.S. 14:78.1(D); La.R.S. 14:81.2(E).

Additionally, in 2006 La. Acts No. 325, § 1, the legislature stated the following:

The Louisiana Legislature has long recognized the need to protect our most innocent and defenseless citizens and has enacted statutory provisions to protect children from sexual offenders and predators. Louisiana has some of the strictest penalties for sex offense violations and some of the most extensive provisions for sexual offender and sexual predator registration and notification in the United States. The Louisiana Legislature recognizes the tragedy associated with the story of Jessica Lunsford who at the age of nine was abducted, abused, and murdered by a convicted sexual offender. Motivated by the tragedy associated with Jessica Lunsford, the Florida Legislature enacted the Jessica Lunsford Act which provided for a minimum twenty-five-year sentence for child molesters and lifetime monitoring following incarceration. The Louisiana Legislature in enacting the provisions of this Act seeks to incorporate those provisions into the Louisiana Law.

A mandatory minimum sentence is presumed to be constitutional. State v. Rogers, 07-427, p. 4 (La.App. 3 Cir. 10/31/07), 969 So.2d 707, 710. Defendant argues imposition of the mandatory minimum sentence makes no allowance for considering a defendant’s conduct, injuries suffered by the victim, or the sentencing guidelines. Regardless, the legislature exercised its prerogative to protect children under the age of thirteen from sexual predators when enacting 2006 La.Acts No. 103, § 1. Thus, we find the mandatory minimum sentence for sexual battery is not excessive on its face.

Furthermore, based on the fact Defendant committed a sexual act against his own daughter and violated a position of trust, we cannot say the imposition of the mandatory minimum sentence is excessive in this case.

Defendant also contends he was entitled to a downward departure from the mandatory minimum sentence. In State v. Smith, 07-468, p. 10 (La.App. 3 Cir. 10/31/07), 969 So.2d 694, 701, writ denied, 07-2484 (La.5/16/08), 980 So.2d 707 (alteration in original), this court discussed departure from mandatory penalties as | ¿follows:

[A] court may depart from mandatory penalties provided by the legislature for an offense upon a showing by the defendant 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.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677 (internal quotation marks and citation omitted); see also State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993) (holding that a trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment,” or is nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”).

State v. Lemons, 06-1051, p. 1 (La.11/17/06), 942 So.2d 33, 33-34.

The only argument presented regarding a downward departure from the mandatory minimum sentence was Defendant’s assertion that the mandatory minimum sentence for both sexual battery and second degree sexual battery were the same despite the fact that an offender convicted of second degree sexual battery would have to inflict seriously bodily injury. Additionally, La.R.S. 14:43.1(C) did not allow for the consideration of Defendant’s actual conduct, the injury inflicted upon the victim, or the sentencing guidelines.

We believe the legislature was aware the mandatory minimum sentence for sexual battery and second degree sexual battery were the same when it enacted 2006 La. Acts 103, § 1 and that the trial court would not consider a defendant’s actual conduct, the injury inflicted upon the victim, or the sentencing guidelines when imposing the mandatory minimum sentence. The legislature sought to protect innocent children by enacting the penalty provision at issue and Defendant failed to present facts particular to his case that would support a departure from the mandatory minimum sentence.

[nLastly, Defendant asserts that imposing the same mandatory minimum sentence for sexual battery and second degree sexual battery, which requires the victim to suffer serious bodily injury, is not the equal protection of the law guaranteed by La. Const, art. 1, § 3. Essentially, Defendant argues imposition of the same penalty for two separate and distinct offenses is a violation of equal protection. We disagree.

In Parker v. Cain, 445 F.Supp.2d 685 (E.D.La.2006), the defendant, who had been convicted of second degree murder and sentenced to life imprisonment, argued his right to equal protection was violated because life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence was a possible penalty for both second degree murder and first degree murder. The court found the defendant’s “equal protection argument simply makes no sense. The fact that the same penalty is a possibility under two different statutes in no way violates the Equal Protection Clause. [Defendant] cites no authority which holds otherwise, and this Court is aware of none.” Id. at 699 (footnote omitted). Likewise, we find Defendant’s Equal Protection claim in this case lacks merit.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.

      . Defendant's initials are being used in accordance with La.R.S. 46:1844(W).

      . In Singleton, the supreme court stated the following:
      Writ is granted. This case is remanded to the court of appeal for review on the merits of defendant’s sentencing claims.
      Even assuming that La.C.Cr.P. art. 881.1 retroactively applied to defendant's sentencing on January 21, 1992, ten days before the statute’s effective date on January 31, 1992, the statute provides that a motion to reconsider sentence ‘shall be oral at the time of sentencing or in writing thereafter....” Defense counsel began the combined guilty plea and sentencing proceeding on January 21, 1992, by objecting to the excessiveness of the eight-year sentences the court would impose, and by reserving appellate review of the sentence as part of defendant’s guilty plea. State v. Crosby, 338 So.2d 584 (La.1976). Counsel urged the specific grounds on which the court had not followed the new sentencing guidelines, effective January 1, 1992, relative to computing the length of sentence and to improperly rejecting suspension of sentence and probation as an alternative to imprisonment. These remarks constituted an oral motion to reconsider made "at the time of sentencing,” alerting the court to specific problems that counsel found with the sentences at a time when the court could take corrective action, and obviating the need for a written motion filed after sentencing. To the extent that counsel also reserved appellate review of sentence as part of the guilty pleas, denial of that review on the basis of art. 881.1 would jeopardize the voluntariness of those pleas.

      . Louisiana Revised Statute 14:43.2 defines sexual battery as follows:
      A.Second degree sexual battery is the intentional engaging in any of the following acts with another person when the offender intentionally inflicts serious bodily injury on the victim:
      (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
      (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
      B. For the purposes of this Section, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
      C. (1) Whoever commits the crime of second degree sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than fifteen years.
      (2) Whoever commits the crime of second degree sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

      . The legislature, in 2006 La. Acts No. 103, § 2, stated the Mary Jean Thigpen Law was enacted in memory of Mary Jean Thigpen, a four year old who was murdered on November 12, 2001, by a multiple sexual offender.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Torris Dewayne SHAW, Appellant.
    No. 44,453-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Dale Montgomery, John M. Lawrence, Lane Pittard, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

_JjThe defendant, Torris Dewayne Shaw, was originally charged with distribution of MDMA (ecstasy), a Schedule I controlled dangerous substance. However, he was allowed to plead guilty to attempted distribution and was sentenced to 10 years at hard labor. On appeal, the defendant contends that his sentence is excessive. We affirm the defendant’s conviction and sentence.

FACTS

On April 17, 2008, the 34-year-old defendant furnished four ecstasy pills to an individual who then sold them to an undercover police officer in Bossier Parish, Louisiana. The defendant was arrested for distribution of MDMA. Pursuant to a plea agreement, he pled guilty to one count of attempted distribution of MDMA, and two other drug charges were dismissed. The trial court ordered a presentence investigation (PSI) report.

On October 21, 2008, the trial court sentenced the defendant to 10 years at hard labor. In imposing this sentence, the trial court noted that the defendant had a significant criminal history, including juvenile delinquency, and was classified as a third felony offender. His first felony conviction was in 1996 in Texas for possession of a controlled dangerous substance. His probation on that offense was later revoked as a result of his 1996 felony conviction on a charge of aggravated assault with a deadly weapon, also in Texas. After reviewing the unmarried defendant’s' work history and family history, including the fact that he had three children with two different women, the court observed that the defendant admitted to chronic marijuana use since age 22; however, he had never sought nor received any |2substance abuse counseling or treatment. The court stated that it had considered the provisions of La. C. Cr. P. art. 894.1 and found that there was an undue risk that during a period of suspended sentence or probation, the defendant would commit another crime. The court further stated that the defendant was in need of correctional treatment that could be provided most effectively by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of the crime. The court recommended the defendant for substance abuse treatment within the Department of Corrections.

The defendant’s motion to reconsider sentence was denied. He now appeals contending that the sentence imposed was excessive.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 32004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, serious-ness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Absent a defendant’s assertion that he was falsely or mistakenly charged with an offense, the sentencing court may consider a dismissed |,|Charge as part of the defendant’s criminal history, even when the dismissal forms part of the plea agreement. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Cook, 466 So.2d 40 (La.App. 2d Cir.1985); State v. Daley, 459 So.2d 66 (La.App. 2d Cir.1984), writ denied, 462 So.2d 1264 (La.1985).

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

DISCUSSION

In arguing that his sentence is excessive, the defendant states that his prior convictions occurred when he was in his early twenties. He notes that only four pills were involved in the instant offense and states that there was no indication he was “a big time drug dealer.” He also contends that he has Lthree children who would benefit from his support. He asserts that his work history reveals he has the skills to reenter society as a contributing member, and he concludes by stating that a shorter sentence with additional outpatient treatment and rehabilitation would meet societal goals in this case.

The state argues that the sentence was justified given the defendant’s significant criminal history and substance abuse history. It further notes the considerable benefit the defendant received from the plea bargain, whereby he was permitted to plead guilty to an offense which did not adequately describe his criminal conduct and other drug charges were dismissed.

Distribution of MDMA carries a sentencing range of imprisonment at hard labor for not less than five years nor more than 30 years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence, and a fine of not more than $50,000. La. R.S. 40:966(B)(2). A defendant who is convicted of an attempted offense shall be fined or imprisoned in the same manner as for the offense attempted, but such fine or term of imprisonment shall not exceed one-half of the greatest punishment prescribed for the completed offense. La. R.S. 14:27; La. R.S. 40:979. There is no express statutory minimum sentence for being convicted of an attempt, and principles of lenity require that the statute be strictly construed. State v. Callahan, 95-1331 (La.3/29/96), 671 So.2d 903; State v. Howard, 37,580 (La.App.2d Cir.9/24/03), 855 So.2d 881; State v. Latin, 42,134 (La.App.2d Cir.6/20/07), 960 So.2d 1186. Therefore, the sentencing range for attempted distribution of MDMA is zero | fito 15 years at hard labor, to be served with or without benefit of parole, probation, or suspension of sentence, and a fine up to $25,000.

The trial court carefully considered the factors under La. C. Cr. P. art. 894.1, including the defendant’s significant criminal history and his failure to seek treatment for his longstanding drug problem. It concluded that the defendant required correctional treatment most effectively provided by his commitment to an institution.

Also noteworthy is the substantial benefit the defendant received in his plea bargain; he was allowed to plead guilty to an attempt when he in fact committed the completed offense of distribution. The plea agreement also provided for the dismissal of two other pending charges.

We find that the defendant’s sentence is not constitutionally excessive. The trial court did not abuse its much discretion when it imposed a proper sentence within the statutory limits which was tailored to this defendant and his offense.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Just as the mandatory minimum term of imprisonment is reduced from five to zero years under the attempt statute, the mandatory minimum of time imposed “without benefits’’ is likewise reduced from five to zero years.
      Under La. R.S. 40:966(B)(2), the sentence for the completed offense may be imposed “without benefits” for five to 30 years, because the language in the sentencing portion of the statute says “at least five years of which shall be served without benefit....” Under the attempt statute, therefore, the benefits may be restricted from zero to 15 years.