author: COX, J.

text:
    STATE of Louisiana (CITY OF RUSTON), Appellee v. Rogelio CAMPOS, Appellant
    No. 51,447-KA, No. 51,448-KA (Consolidated Cases)
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017.
    Rehearing Denied August 3, 2017

      ROGELIO CAMPOS, Pro Se
    CARY T. BROWN, City Prosecutor, Counsel for Appellee
    Before STONE, COX, and BLEICH (Pro Tempore), JJ.
   COX, J.

h Following a bench trial, the defendant, Rogelio Campos (“Campos”), was convicted of DWI first offense in violation of Ruston City Ordinance (RCO) 11:98(B)(1) and failure to signal in violation of La. R.S. 32:104(B). On the DWI first offense conviction, Campos was sentenced to 180 days, suspended, three months of supervised probation, and “the standard fine for DWI first in this court.” On the failure to signal conviction, he was sentenced to 10 days, concurrent with the DWI sentence, and “the standard fine and cost for failure to signal.”

The charges were billed in separate bills of information, but were consolidated for trial, and Campos was sentenced in accordance with La. C. Cr. P. art. 493.1. Campos, now appearing pro se, appeals his convictions. On review, we find that this matter is not properly before the court as an appeal. Accordingly, we consider this matter under our supervisory jurisdiction. For the reasons stated herein, we affirm Campos’ convictions, but respectfully vacate the fine portions of his sentences and remand for resentencing.

FACTS

Around midnight on November 17, 2015, Officer Dylan Castaneda of the Ruston Police Department observed Campos make a left turn without using his turn signal. Officer Castaneda initiated a traffic stop for .failure to signal, and the two pulled over into a gas station parking lot. Campos was the only occupant in his vehicle. As Officer Castaneda approached the driver’s side of the vehicle, Campos opened his door, but remained seated in the driver’s seat. Officer Castaneda asked Campos for his driver’s license, but Campos attempted to hand the officer his social security card. Officer | ^Castaneda noticed the odor of alcohol emanating from Campos’ person and observed that he had watery and bloodshot eyes. Officer Castaneda explained to Campos that he was not under arrest at that point, but that he needed to advise Campos of his Miranda rights. Campos indicated that he understood his rights.

Officer Castaneda informed Campos that he had been stopped because he failed to use his turn signal. Campos asked why the officer would stop him for that because “people don’t use their blinker.” Campos then told the officer that he had been at a local bar and had consumed a couple of beers. At that point, Officer Castaneda advised Campos that he was going to conduct a field sobriety test, and Campos agreed to comply.

First, Officer Castaneda performed the Horizontal Gaze Nystagmus test. During this test, the officer repeatedly had to advise Campos not to turn his head, but only to follow the pen with his eyes. Officer Castaneda observed all six signs indicating impairment during this test.

Next, Officer Castaneda instructed Campos to perform the walk and turn test. During this test, he observed five out of the eight signs indicating impairment.

Finally, Officer Castaneda requested that Campos perform the one-legged stand test. Campos was unable to balance, and the officer stopped the test out of concern for Campos’ safety. Campos was arrested for driving under the influence.

At trial, Officer Castaneda testified to the above events. In addition, the audio and video recording from Officer Castaneda’s dash cam in his patrol car was admitted into evidence without objection. The recording corroborated Officer Castaneda’s testimony.

Is At one point during the recording, Campos can be heard asking the officer if they are being recorded. Campos then turns toward the patrol car and engages in a monologue accusing Officer Castaneda of misconduct and coercion and “reserves his right” to file a challenge to the stop. While en route to the Lincoln Parish Detention Center, Campos stated, “I see why people are shooting cops like dogs because of people like you.”

At the detention center, Officer Castaneda advised Campos of his rights pertaining to chemical testing and the Intoxilyzer 5000. Campos refused to sign the paperwork, but submitted to the Breathalyzer test, which revealed a blood alcohol concentration of .117. After the test, Campos again related that he had consumed two beers at a local bar and then told Officer Castaneda he could shove the rights questionnaire up his armpit. The results of the test were admitted at trial with no objection. Additional evidence was introduced that showed Campos was uncooperative at the detention center. Officer Castaneda testified that, as he was leaving the building, he observed Campos karate chopping the wall.

At the conclusion of the evidence, the trial judge found Campos guilty of the traffic violation and DWI first offense. Campos was sentenced to 180 days, suspended, and the “standard fine” for DWI first offense, three months of supervised probation, and 10 days, concurrent with the DWI sentence, and the “standard fine” for failure to signal. The “Conditions of Probation” document signed by Campos and the trial judge sets out the dollar amounts of the' “fine and/or court costs” in the amount of $940.00 for the DWI conviction and $178.00 for the failure to signal conviction.

This appeal followed.

JaPISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Campos focuses on the alleged discrepancies in timing of .the Intoxilyzer 5000 results and the dash cam recording to argue that the credibility of the evidence was so affected that it cannot support the verdicts of guilty.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Lewis, 48,373 (La. App. 2 Cir. 9/25/13), 125 So.3d 482.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Or, P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297.

It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La. App. 2 Cir. 1992), writ denied, 617 So.2d 905 (La. 1993); State v. Bonnett, 524 So.2d 932 (La. App. 2 Cir. 1988), writ denied, 532 So.2d 148 (La. 1988). Thehtrier of fact hears the testimony first hand and, unless the factfinder’s assessment of believability is without any rational basis, it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La. 1988); State v. Combs, 600 So.2d 751 (La. App. 2 Cir. 1992), writ denied, 604 So.2d 973 (La. 1992).

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a factfinder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913; State v. Price, 48,986 (La. App. 2 Cir. 5/15/14), 140 So.3d 1212, writ denied, 14-1274 (La. 2/6/15), 158 So.3d 814.

RCO 11-98 mirrors La. R.S. 14:98 and provides, in pertinent part:

(a)(1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
a. The operator is' under the influence of alcoholic beverages; or
b. The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per 100 cubic centimeters of blood.

Campos’ argument is an attack on the admissibility of evidence due to its alleged unreliability—a challenge he failed to make during trial. There is nothing in the record that indicates that the Intoxi-lyzer 5000 machine was operating abnormally. To the contrary, Officer Castaneda testified that the proper procedures were followed and that the machine was functioning properly. Further, .the CD was an accurate recording of the events of the ^evening of Campos’ stop and arrest, and any imperfections in the recording were due to voltage dips in the patrol car while the recording was taking place.

Campos was stopped based on Officer Castaneda’s personal observation of his failure to signal. Campos was read his Miranda rights and asked to perform field sobriety tests, which resulted in the officer’s reasonable conclusion that Campos was significantly impaired. Campos voluntarily submitted to the breathalyzer test, which revealed his blood alcohol level to be .117, well above the legal limit of .08. The evidence supports the convictions, and this assignment of error is without merit.

Right to a Jury Trial

Campos’ second assignment of error states that he was denied his right to a jury trial because each of the misdemeanors with which he was charged in separate bills of information is punishable by up to six months and fines of $1,000.000, thereby exposing him to more than one term of six months and more than one fine of $1,000.00. He further asserts that there is no evidence that he waived -his right to trial by jury.

An accused is entitled to a trial by jury where the possible confinement exceeds six months with or without hard labor. La. Const, art. 1, § 17.

A defendant charged with a misdemean- or in which the punishment as set forth in the statute defining the offense may be a fine in excess of $1,000.00 or imprisonment for more than six months shall be tried by a jury of six, all of whom must concur to render a verdict. La, C, Cr. P. art. 779. A defendant charged with any other misdemeanor shall be tried by a judge without a jury. Id.

l7La. C. Cr. P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felqnies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a .common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

La. C. Cr. P. art. 493.1 provides:

Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one thousand dollars, or both.

While a literal reading of Article 493.1 would require that two misdemeanors be joined in the same bill or indictment for the penalty provision to operate, the Louisiana Supreme Court has expanded' this article to encompass cases in which the defendant and counsel were aware that the sentencing exposure for two misdemeanors joined for trial purposes, but not billed together, would be limited to six months and a fine of $1,000.00, thereby obviating the right to a jury trial. State v. Reynolds, 07-0641 (La. 11/21/07), 968 So.2d 722.

In Reynolds, supra, the defendant was charged with two misdemeanors that were consolidated for trial, but not in the same bill of information. Reynolds was not afforded a jury trial, nor did he waive his right to jury trial. This Court vacated the convictions and held that Reynolds was entitled to a jury trial. State v. Reynolds, 41,954 (La. App. 2 Cir. 3/8/07), 951 So.2d 518. The Louisiana Supreme Court reversed, however, holding that because it was clear on the record that the parties understood and agreed that the sentencing exposure was limited under Article 493.1, | ¡¿Reynolds’ right to jury trial had not attached. In a per curiam opinion, the Louisiana Supreme Court explained:

The majority on the court of appeal panel... sought to effectuate the rule that consolidation of separately charged misdemeanor offenses for trial, as opposed to joinder of the offenses in a single bill of information, may provide a defendant with the right to a jury trial in cases in which the aggregate punishment that could be imposed exceeds six months imprisonment and fines over the amount of $1,000... However, in the present case, the state and defense agreed to try the misdemeanor offenses together in a single proceeding with punishment capped at six months imprisonment and $1,000 in fines, i.e., as if the state had, with the concurrence of defendant, filed a superceding bill of information joining all of the offenses together under La. C. Cr. P. art. 493, thereby capping the aggregate punishment that could be imposed at six months imprisonment and a fine of $1,000 as a matter of La. C. Cr. P. art. 493.1... It does not appear from the agreement that consolidation of the offenses for trial took place, or would have taken place, independently of the stipulation with regard to the sentencing cap. The defendant had no right to a jury trial on the misdemeanor offenses separately charged... and joinder of the offenses in a single superceding bill of information (or its functional equivalent) under the sentencing cap imposed by La. C. Cr. P. art. 493.1 also would not deprive defendant of his right to a jury. Id.

Campos was not entitled to a jury trial, and no waiver of said right was required. The two misdemeanors were consolidated for trial purposes, and sentencing exposure was limited by agreement of all parties under Article 493.1. The trial judge expressly stated that he was sentencing Campos under Article 493.1, and the city prosecutor noted that he was prepared to proceed with separate trials for each bill if necessary.

Additionally, Campos benefited from having the matters tried together, as it reduced his sentencing exposure. As the Louisiana Supreme Court noted in Reynolds, swpra, the reduced sentencing exposure is the functional equivalent of being charged in one bill, thus the right to a jury | atrial did not attach, and no express waiver of the right was required. This assignment of error is without merit.

Challenge to the Initial Stop, Arrest, and Illegal Search and Seizure

In his third assignment of error, Campos argues that there was no probable cause to support the initial traffic stop and that he was illegally arrested without probable cause or a warrant. For these reasons, Campos contends that all evidence seized in this manner, namely the audio and video recording and presumably the result of the Intoxilyzer 5000 test, was obtained in violation of his protection against unreasonable search and seizure and thus should have been excluded under the exclusionary rule. Campos further argues that the recording was tampered with, resulting in the deletion of an 11-second segment that would have shown the alleged failure to use his turn signal. Finally, Campos challenges the chain of custody of the CD containing the recording.

On March 23, 2016, Campos, through previous counsel, filed a motion to suppress the subject evidence. The motion to suppress was set for hearing on April 21, 2016. Campos’ counsel filed a motion to withdraw on April 5, 2016, and new counsel, Charles Buckley, was assigned to represent Campos on April 6, 2016. On the morning of trial, the city prosecutor informed the court that the pretrial motion to suppress had not been taken up. On agreement of all parties, the matter was referred to the merits of the trial. The trial judge advised Mr. Buckley that the matter could be argued during the presentation of evidence. During trial, however, there was no objection made by the defense to the introduction of any of the evidence that was previously sought to be suppressed in the pretrial motion. It appears 110that Mr. Buckley made the well-reasoned decision to abandon the motion to suppress that had been filed by previous counsel as it was clearly meritless.

Failure to raise a ground for suppressing an item of evidence in a properly filed motion to suppress waives such a basis for exclusion on appeal. La. C. Cr. P. art. 841(A). A defendant’s timely objection to the failure to rule on a pending motion to suppress evidence, before proceeding to trial, preserves the defendant’s further objection to the trial court’s failure to dispose of the motion. La. C. Cr. P. art. 703; State v. Thibodeaux, 14-1002 (La. App. 3 Cir. 3/11/15), 162 So.3d 665. Here, all parties agreed that the pending motion could be argued during trial, and defense counsel elected not to re-urge the motion or object in any way to the introduction of the subject evidence.

Louisiana courts have held that when a defendant proceeds to trial without raising an issue which was the subject of a pending pretrial motion, he waives his right to have the motion heard or ruled upon. State v. Cooper, 45,568 (La. App. 2 Cir. 12/8/10), 55 So.3d 873; State v. Fletcher, 02-707 (La. App. 5 Cir. 12/30/02), 836 So.2d 557, writ denied, 03-0409 (La. 10/10/03), 855 So.2d 334; State v. Washington, 98-69 (La. App. 5 Cir. 1/26/99), 727 So.2d 673. Accordingly, failure to timely object and re-urge the motion constitutes a waiver of the motion. Id. In addition, notwithstanding the pending motion to suppress, the alleged erroneous admission of evidence during trial may not be raised on appeal in the absence of a contemporaneous objection to allow the judge to correct the error. La. C. Cr. P. art. 801; see also La. C. Cr. P. art. 841.

Campos’ arguments relating to the alleged tampering of evidence and faulty chain of custody are unsupported by the record. Deputy Chief | ^Williams testified that the recordings on the dash cam recording system are backed up onto a server when a patrol car enters the detention center parking lot. Regarding the 11-sec-ond lapse, Deputy Chief Williams testified that the company that provides the recording system advised that the problem was caused by a low-voltage occurrence in the patrol car during recording. There was no evidence presented that any officer or other individual was able to, or did, tamper with the recording. To the contrary, Deputy Chief Williams testified that it is impossible for anyone to alter the recordings backed up onto the server. He confirmed that the CD was a true and accurate recording of what was captured that evening on Officer Castaneda’s dash cam and that he hand delivered the CD to the city court.

This assignment of error is without merit.

Prosecutor Misconduct

Campos’ fourth assignment of error asserts that the city prosecutor was aware of the “egregiously tainted” recording on the CD and knew that the Ruston police officers were going to present perjured testimony to “cover up their misconduct.” Campos argues that because of this knowledge, the city prosecutor should have dropped the charges and not proceeded to trial.

Never favored in our law, a malicious prosecution action must clearly establish that the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent. LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/11), 69 So.3d 1273, citing Johnson v. Pearce, 313 So.2d 812 (La 1975).

A successful claim for malicious prosecution requires proof of six elements: (1) the commencement or continuance of an original criminal or | iacivil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damages conforming to legal standards resulting to plaintiff. Hibernia Nat’l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La. 1980); Robinson v. Goudchaux’s, 307 So.2d 287 (La. 1975); Arledge v. Sherrill, 32,189 (La. App. 2 Cir. 8/18/99), 738 So.2d 1215, 1222, writ denied, 99-2713 (La. 12/10/99), 751 So.2d 255.

Campos provides no factual support for this argument. The records support the city prosecutor’s decision to charge and prosecute Campos. This assignment' is without merit.

Ineffective Ctiunsel

In his final assignment of error, Campos argues that Mr. Buckley was deficient in the following respects: (1) he failed to “petition for jury trial”; (2) he failed to" argue the motion to suppress and preserve the issue for appeal; (3) he failed to discredit Officer Castaneda during his testimony; (4) he failed to effectively impeach witnesses who offered perjured testimony; (5) he failed to preserve arguments for appeal, move for appeal, or make -post-verdict motions; (6) he failed to subpoena other police witnesses; and (7) he failed to make closing remarks.

Generally, a claim of ineffective assistance of counsel is properly raised' in an application'for post-conviction relief in the trial court because it creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So.3d 1175. When the record is sufficient, the claim may be resolved , on direct appeal in hathe interest of, judicial economy. State v. Ratcliff, 416 So.2d 528 (La. 1982); State v. Willars, 27,394 (La. App. 2 Cir. 9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment of the United States Constitution. See State v. Wry, 591 So.2d 774 (La. App. 2 Cir. 1991). Under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Louisiana Supreme Court in State v. Washington, 491 So.2d 1337 (La. 1986), a conviction must be reversed-if the petitioner proves (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional noma, and (2) counsel’s inadequate performance prejudiced the defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legrand, 02-1462 (La. 12/3/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005).

A deficient performance is established by showing that the attorney’s actions' fell below the standard of reasonableness and competency required for attorneys in criminal cases and is evaluated from the attorney’s perspective at the time of the occurrence, Strickland,' supra. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La. App. 2 Cir. 4/4/07), 954 So.2d 823, writ denied, 07-1193 (La. 12/7/07), 969 So.2d 629.

Counsel has a duty to make reasonable investigations, and a decision not to investigate must be . assessed for reasonableness under the circumstances. Strickland, supra. Counsel’s investigative actions and choices may be influenced by information and decisions from the defendant 114and, under the circumstances of the case, might diminish or eliminate the need for further investigation. Id. “Counsel is ineffective when he fails to interview known witnesses.” State v. Butler, 41,985 (La. App. 2 Cir. 6/20/07), 960 So.2d 1208, 1213, writ denied, 07-1678 (La. 5/9/08), 980 So.2d 685; State v. Moore, 48,769 (La. App. 2 Cir. 2/26/14), 134 So.3d 1265, writ denied, 14-0559 (La. 10/24/14), 151 So.3d 598; State v. Potter, 612 So.2d 953 (La. App. 4 Cir. 1993), writ denied, 619 So.2d 574 (La. 1993).

Once the attorney’s performance is found to have been deficient, the court next considers whether that performance resulted in errors so serious that the defendant was deprived of a fair trial with a reliable result. Strickland, supra. The defendant must prove the deficient performance caused him an actual prejudice so severe that, but for his counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra; State v. Pratt, 26,862 (La. App. 2 Cir. 4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. State v. Ball, 554 So.2d 114, 116 (La. App. 2 Cir. 1989).

Campos fails to meet the Strickland standard of showing a defect in trial counsel’s performance or that he was prejudiced by any such alleged defective performance.

The failure to “petition for jury trial” was a strategic decision that reduced Campos’ sentencing exposure to six months and a fine of $1,000.00. Campos was not prejudiced by this decision because, according to the statement by the city prosecutor, he was prepared to proceed under separate 11Bbills of information, which would have doubled Campos’ sentencing exposure.

The failure to re-urge the motion to suppress is a little more difficult; however, the testimony of Officer Castaneda makes clear that the traffic stop was valid, and the subsequent arrest for DWI, the recording of the stop, and the field sobriety tests were also valid. Additionally, as stated earlier, Campos was advised of his rights early on and voluntarily submitted to the Breathalyzer test. There was no basis for the motion to suppress and no likelihood that it would have resulted in the exclusion of evidence. Even if there were any deficiency in failing to argue the motion during trial, it was harmless and did not prejudice Campos in any way.

The remaining claims are also without merit. Mr. Buckley effectively cross-examined Officer Castaneda. Campos does not provide any specific impeachment evidence that would have been effective in attacking the officer’s credibility. Further, Campos provides only conclusory statements that there were other officers or law enforcement personnel who should have been called as witnesses. These conclusory statements are insufficient to support a claim under Strickland.

This assignment of error is without merit.

Indeterminate Sentence

If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence. La. C. Cr. P, art. 879. The fine portions of Campos’ sentences are unclear in a few respects. First, the transcript reflects that the trial judge sentenced Campos to “the standard fine” for both DWI first offense and failure to signal. No dollar amount was stated in the transcript. Second, there is a discrepancy |! (¡between the minutes and the judgment of conviction form. The minutes indicate that Campos was to pay fines and costs in the amount of $939.50 for the DWI conviction and $178.00 for the failure to signal conviction. However, the “Judgment on Conviction and Misdemeanor Probation Order” sets the fines and costs at $940.00 for the DWI conviction and $178.00 for the failure to signal conviction. Third, the sum of the two amounts exceeds the maximum fine allowed under La. C. Cr. P. 493.1. Article 493.1 provides a maximum aggregate fine of $1,000.00, and the amounts set forth in the minutes are for fines and costs. Additionally, the amounts set forth in the judgment of conviction represent fines and/or court costs. Thus, the sentence is unclear as to what portion of the respective amounts assessed are a fine, as per Article 493.1, and what portion represents court costs, which would not be included in the Article 493.1 fine.

Due to the above stated reasons, the fine portion of the sentences are vacated and the matter is remanded for clarification during resentencing.

CONCLUSION

Considering this matter under our supervisory jurisdiction, we affirm Campos’ convictions for DWI first offense and failure to signal. However, we respectfully vacate the fine portions of Campos’ sentences and remand this matter back to the trial court for clarification of the fines and court costs during resentencing in order to comply with La. C. Cr. P. Article 493.1.

AFFIRMED IN PART AND REMANDED IN PART.

APPLICATION FOR REHEARING

Before WILLIAMS, GARRETT, STONE and COX, JJ.

Rehearing denied.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Malcolm JACK, Appellant
    No. 51,428-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    ROBERT S. TEW, District Attorney, MADELEINE M. SLAUGHTER-YOUNG, ELLEN R. EADE, Assistant District Attorneys, Counsel for Appellee
    Before DREW, PITMAN, and GARRETT, JJ.
   GARRETT, J.

hThe defendant, Malcolm Jack, was convicted by unanimous jury verdicts of 49 counts of pornography involving juveniles under the age of 13 and 45 counts of pornography involving juveniles under the age of 17. He was sentenced to concurrent sentences of ten years at hard labor without benefit of parole, probation, or suspension of sentence for each of the 94 counts. He appeals his sentences as excessive. We affirm the defendant’s convictions and sentences.

FACTS

On May 8, 2014, members of the Internet Crimes Against Children Taskforce, composed of FBI agents, investigators with the Ouachita Parish Sheriff s Office, and investigators from the Louisiana Attorney General’s Office, went to the defendant’s residence after obtaining information that an Internet Protocol (“IP”) address which was associated with him might have been used to download child pornography. The defendant initially denied any knowledge of child pornography, and provided consent for the officers to search his laptop computer. Officers found child pornography on the defendant’s computer, and, after being advised of his rights, the defendant eventually admitted that he had been viewing and downloading child pornography for about two years. Further forensic testing revealed very extensive and graphic child pornography.

The defendant was charged by an amended bill of information with 49 counts of pornography involving juveniles under the age of 13 and 45 counts of pornography involving juveniles under the age of 17. The charges stem from 49 images and 45 videos which were downloaded between July 10, |⅞2013, and May 6, 2014. Following a trial in April 2016, the jury unanimously found the defendant guilty as charged on all 94 counts.

In July 2016, the defendant appeared for sentencing. Prior to imposing sentence, the trial court noted its consideration of the presentence investigation (“PSI”) report and the numerous letters submitted by the defendant’s family and friends requesting leniency. Although the defendant indicated he was sorry for his actions, the trial court noted that, at trial and in his statement in the PSI report, the defendant expressed his belief that his actions were not criminal and that he did nothing wrong because he was not involved in the actual production of the child pornography.

The trial court stated that, while the defendant was only charged with and convicted of 94 counts of child pornography, investigators found more than 1,000 images and videos on the defendant’s computer. The trial court stated that it had “never seen anything as grotesque and as shocking” as it saw in the images and videos, noting that the pornography involved infants, toddlers, and young boys and girls engaged in “horrific sex acts.” Although the defendant did not produce or distribute the child pprnography, the trial court noted that the defendant developed a deep obsession for it, based on the substantial number of images and videos found on his computer. In mitigation, the trial court noted that the defendant had no criminal history, has been consistently employed since he was 13 years old, was married with three children (ages 20, 14, and 13), and that his incarceration would cause an undue hardship on his family.

| sIn reviewing the applicable sentencing ranges, the trial court noted that prior to trial, the defendant had rejected plea offers which would have substantially reduced his sentencing exposure. The trial court noted that shortly before the instant offenses were committed, the Louisiana Legislature increased the penalties for possession of child pornography, and that with 94 counts, imposed consecutively, the defendant faced a maximum sentence of 2,860 years. The trial court stated that, although it could find no justification for imposing a sentence below the mandatory minimum, it believed that the defendant’s actions constituted a pattern of behavior that supported concurrent sentences.

Considering the above, the trial court sentenced the defendant to ten years at hard labor, 'without the benefit of -parole, probation, or suspension of sentence, on each count, to be served concurrently. Further, the trial court noted that the defendant would not be eligible for good time and that this had been considered by the court in determining the appropriate sentences. The court also noted that, upon release from prison, the defendant would be subject to lifetime electronic monitoring requirements, a protective order prohibiting him from having contact with minor children, and registration as a sex offender.

14Pefense counsel made an oral motion for reconsideration, claiming that the defendant’s sentences were excessive, which the trial court denied. This appeal followed.

LAW

In reviewing a sentence for ex-cessiveness, an appellate court uses a two-step process. 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 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. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Washington, 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852, writ denied, 2016-0224 (La. 2/3/17), 215 So.3d 688. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Washington, supra; State v. Ates, 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La. 5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Thompson, 50,392 (La. App. 2 Cir. 2/24/16), 189 So.3d 1139, writ denied, 2016-0535 (La. 3/31/17), 217 So.3d 358; State v. Caldwell, 46,718 (La. App. 2 Cir. 11/2/11), 78 So.3d 799.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const, art. I, § 20, if it is | ^grossly out of proportion to the severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Lewis, 49,138 (La. App. 2 Cir. 6/25/14), 144 So.3d 1174, writ not cons., 2016-0235 (La. 3/14/16), 188 So.3d 1070. 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. Lewis, supra.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Washington, supra. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Allen, 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied, 2015-0608 (La. 1/25/16), 184 So.3d 1289; State v. Zeigler, 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

As to the 49 counts of pornography involving juveniles under the age of 13, La. R.S. 14:81.1(E)(5)(a) provides for a sentencing range of 10 to 40 years at hard labor, to be served without the benefit of parole, probation, or suspension of sentence.

As to the 45 counts of pornography involving juveniles under the age of 17, La. R.S. 14:81.1(E)(l)(a) provides for a sentencing range of 5 to 20 Lyears at hard labor, to be served without the benefit of parole, probation, or suspension of sentence.

A defendant who intentionally possesses child pornography can be charged on a separate count, and sentenced separately for each count upon which the defendant is convicted, for each child in each sexual performance captured within photographs, films, videotapes, and/or other visual reproductions that comprise the defendant’s collection of child pornography. State v. Fussell, 2006-2595 (La. 1/16/08), 974 So.2d 1223. See also State v. Paulson, 2015-0454 (La. App. 4 Cir. 9/30/15), 177 So.3d 360 (the defendant pled guilty to 200 counts of possession of pornography involving juveniles and received concurrent sentences of 12½ years at hard labor); State v. Dominick, 2013-0270 (La. App. 4 Cir. 1/30/14), 133 So.3d 250 (the defendant pled guilty to 139 counts of possession of pornography involving juveniles and received concurrent sentences of 10 years at hard labor); State v. Wright, 45,980 (La. App. 2 Cir. 1/26/11), 57 So.3d 465, writ denied, 2011-0421 (La. 9/2/11), 68 So.3d 520 (the defendant was convicted of 23 counts of possession of child pornography and was sentenced to 10 years at hard labor on each count, some to run concurrent and some to run consecutive, for a total of 20 years); State v. Gardner, 16-13 (La. App. 5 Cir. 9/8/16), 202 So.3d 513 (the defendant was convicted of six counts of pornography involving juveniles under the age of 13 and received concurrent sentences of 20 years at hard labor).

DISCUSSION

The defense contends that the defendant’s ten-year sentences, imposed without benefits or the ability to earn good time, are excessive. The defense argues that the trial court failed to give sufficient weight to |7mitigating factors, specifically noting that the defendant is 46 years old, has no criminal history, is married with three children, has always worked and provided for his family, and that his imprisonment will cause extreme hardship for his family. Also, the defense observes that the defendant’s family and friends submitted numerous letters on his behalf, that four witnesses testified at trial as to the defendant’s good reputation, and that the defendant acknowledged that he downloaded the material and no one else viewed it. The defense argues that, although the defendant’s crimes cause people to cringe, his sentences should not be attributed to emotion, and that the goals of rehabilitation and punishment can best be accomplished with less severe sentences.

In response, the state argues that the trial court considered the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the grotesque nature of the images, the defendant’s trial testimony, which indicated that he downloaded child pornography on more than one occasion, and the fact that the defendant had rejected prior plea offers. Noting that the trial court could have sentenced the defendant to a total of 2,860 years, the state claims that the trial court did not abuse its discretion in sentencing the defendant to ten years on each count.

The trial court did not abuse its discretion in sentencing the defendant to concurrent ten-year sentences. At the sentencing hearing, the trial court noted its consideration of the PSI report and numerous letters submitted on the defendant’s behalf. The record demonstrates full compliance with La. C. Cr. P. art. 894.1 by the trial court. The trial court thoroughly reviewed the defendant’s personal, work, and educational background. In mitigation, the trial court specifically noted that the defendant had no criminal history, |shad a solid work history, and that his incarceration would cause an undue hardship on his wife and three children. On the other hand, the trial court carefully considered the disturbing facts of this case, noting the “grotesque” and “shocking” nature of the images and videos which showed young children, including some infants, engaged in “horrific sex acts.” Although the defendant admitted to viewing and downloading the child pornography, he remained adamant in his personal belief that his actions should not be criminally punished because he was not the person who raped the victims or captured the images. Further, although the defendant was charged only with 94 counts of pornography involving juveniles, he had more than 1,000 images and videos of.child pornography on his computer.

As to the 49 counts of pornography involving juveniles under'the age of 13, the trial court imposed mandatory minimum sentences of 10 years, and as to the 45 counts of pornography involving juveniles under the age of 17, the defendant received midrange sentences of 10 years. The defendant implies in his brief that the trial court failed to adequately factor in the ineligibility for good time. This is sim--ply incorrect. The sentencing transcript shows that the trial court was fully cognizant that the defendant is statutorily ineligible to earn good time pursuant to La. R.S. 15:537(A) and 15:571.3(B)(3)(m), and it specifically considered such in tailoring appropriate sentences.

•Considering the overwhelming number of images and videos involved, the sentences. imposed by the trial court do not shock the sense of justice, nor are they grossly disproportionate to the severity of the offenses. This assignment of error is without merit.

Jj^ERROR PATENT

As to the 45 counts for pornography involving juveniles under the age of 17, the defendant’s sentences are illegally lenient. The trial court failed to impose-the mandatory fine of not" more' than $50,000.00, pursuant to La, R.S. 14:81.1(E)(l)(a). Although the trial court’s failure to impose a mandatory fine results in an illegally lenient sentence, this Court-is not required to remand for imposition of a mandatory fine. State v. Dock, 49,784 (La. App. 2 Cir. 6/3/15), 167 So.3d 1097; State v. Fuller, 48,663 (La. App. 2 Cir. 12/11/13), 130 So.3d 960. The state has not complained about the error and the defendant is not prejudiced by the trial court’s failure to impose the fine.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The trial testimony indicated that in all '94 of the images and videos, none of the victims appeared to be over the age of 13, but, in the 49 images, the victims’ ages ranged from newborn to 3 years of age.

      . The defendant was originally charged with only one count of pornography involving juveniles. At that time, he rejected a plea offér to plead guilty to one count of attempted possession of child pornography for a sentence of 2½ years. He had been advised on the record that if he rejected the plea offer, the state intended to amend the bill of information to charge additional counts. After the state amended the hill to charge nine additional counts,'the defendant rejected another plea offer, Thereafter, the bill of information was amended again to charge the 94 total counts.

      . Effective August 1, 2012, La. R.S. 14:81.1 was amended to provide for a sentence of 5 to 20 years (juveniles under 17) or 10 to 40 years (juveniles under 13). Previously, La. R.S, 14:81.1 provided for a sentence of 2 to 10 years (juveniles under 17) or 5 to 20 years (juveniles under 13). See Acts 2012, No. 446, § 1. . .


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Katrina GRIMBLE, Appellant
    No. 51,446-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered July 5, 2017

      LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant
    ROBERT S. TEW, District Attorney, JOHN GATES SPIRES, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, DREW, and STONE, JJ.
   DREW, J.

_JjAt jury trial, Katrina Grimble was convicted of first degree robbery. La. R.S. 14:64.1. She was sentenced to 15 years at hard labor, but without denial of benefits. The state filed a bill, charging her as a second-felony habitual offender. She was adjudicated as such and sentenced to 20 years at hard labor, again without noting the denial of certain benefits.

Grimble appeals, claiming insufficiency of evidence and a flawed adjudication. She is partially correct. We affirm the conviction. We vacate the habitual offender adjudication and enhanced sentence, and remand.

FACTS

On the morning of November 20, 2013, Betty Jones, a teller at Bastrop’s Richland State Bank, was robbed. She testified:

• at about 9:20 a.m., the second customer of the day approached her teller window and slid an envelope to her, on which was written a note instructing Jones to “put the money in the envelope”;
• she tried to turn off her computer screen, but stopped when the robber made a gesture toward a pants pocket;
• she assumed the robber was reaching for a weapon;
• she put $3,000.00 in the envelope and gave it to the robber, who left;
• she identified photographs from the bank’s security video;
• she told a bank officer, Dewey Jones, that she had been robbed;
• she could not initially determine the robber’s gender, and at first believed the person was a male, based upon the clothing worn; and
• she gave the officers a description of the robber’s clothing, including a dark colored “toboggan cap” and a dark plaid jacket.

Erin Williams, another bank employee, testified:

• she was working in her office across the lobby from Jones’ teller window on the morning of the robbery;
b* she observed the robber, whom she did not recognize as a regular customer, enter the bank and approach the teller;
• she noted that the transaction was taking longer than normal, so she stood up to check out the situation;
• she went to the teller as the person left, making eye contact with her;
• she initially assumed the robber was a male;
• the robber wore a knit hat, plaid hoodie, and pants, all dark;
• the robber’s clothing was loose and baggy; and
• she identified, at trial, the defendant as the robber.

Dewey Jones, a bank vice-president, testified:

• he saw the robber enter and leave the bank;
• he identified a photo of the robber entering the bank;
• he went to the front door, followed by Williams;
• the robber turned left and headed toward Cypress Avenue, then turned and looked at him and Williams, again gesturing toward a pants pocket, as if reaching for a weapon;.
• he locked the door; and
• $3,100.00 had been stolen.

Marvin Holmes, Bastrop Police Department detective, testified:

• he and Assistant Chief Bubby McDuffie responded to the robbery;
• he got a photo of the robbery suspect from the bank’s security video;
• the photo was provided to other officers and circulated in the area;
• Williams described the robber as a black male, between the ages of 40 and 45, but later she had doubts about the robber’s gender; and
• Dewey Jones also initially described the robber to officers as a male, but later felt that he might have been wrong.

IsBastrop Police Dept. Captain Anthony Evans testified:

• He responded to the robbery dispatch and began canvassing the area, as reports revealed that the robber had fled on foot;
• he came in contact with a woman, later identified as Katrina Grimble, approximately 350 yards away from the bank;
• she was wearing a light-colored top and a bun braid in her hair;
• she told him that she saw a person wearing a dark plaid jacket running toward Bastrop Feed and Seed; and
• he took no notes and did not get the woman’s name.

Later that first day, an anonymous caller advised the police that the person in the photograph was not a male, but was a female named Katrina Grimble. Officers proceeded to Grimble’s last known address. Her mother was there and provided another address, where the defendant was found.

Det. Holmes was notified and proceeded to the station, where he advised her of her rights as per Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant gave a free and voluntary statement, stating:

• on the day of the robbery, she went to Subway at 7:00 a.m.;
• she then met with an Atmos representative at her home at 9:20 a.m.;
• she gave a friend cash to get a TV off layaway at 11:15 a.m.; and
• from 11:15 a.m. to 3:00 p.m., she was at her home waiting for a Sudden-Link cable company representative.

All Holmes could verify was the cash paid to the pawn shop.

A search of Grimble’s home came up empty.

Capt. Evans testified:

• when he entered the interview room, he recognized Grimble as the woman that he had spoken with near the bank earlier in the day;
• he had previously viewed one security photograph of the robber, but did not identify the robber as Grimble;
[i« he returned to the area where he had encountered Grimble, where he discovered a black and gray plaid coat, a knit cap, and a stocking cap inside some bushes on North Odom Street;
• he returned to the station and told the defendant what he had found;
• she denied that the clothing was hers;
• Holmes took the clothing to the Crime Lab; and
• Holmes obtained a DNA swab from Grimble, with her consent.

Dr. Candace Jones, a forensic DNA analyst, testified:

• she compared the known sample of DNA with samples from the coat, the knit cap, and the stocking cap;
• she found that the probability of finding the same DNA profile from a randomly selected individual as being about 1 in 611 quintillion for the coat, 1 in 609 quintillion for the knit cap, and 1 in 1.28 quadrillion for the stocking cap; and

• this indicated that the defendant often wore those items.

Grimble was found guilty of first degree robbery. Motions for judgment notwithstanding the verdict and for new trial were denied, She was sentenced to 15 years at hard labor, without denial of benefits. A habitual offender bill of information was filed, charging the defendant as a second-felony habitual offender. With a new appointed lawyer, she admitted that she was the same person previously convicted of simple robbery and two counts of aggravated battery on January 8, 1991. After being adjudicated, Grimble was sentenced to 20 years at hard labor. The original sentence was not vacated. This appeal followed.

IsSufficiency

Our law on appellate review for sufficiency of the evidence is well settled.

La. R.S. 14:64.1 defines first degree robbery as “the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon,” A “dangerous weapon” includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3). Direct ^testimony by the victim that he believed the defendant was armed, or circumstantial inferences arising from the victim’s immediate surrender of his personal possessions in response to the defendant’s threats, may support a conviction for first degree robbery. The state must prove that the defendant induced subjective belief in the victim that he was armed with a dangerous weapon, and that the victim’s belief was objectively reason- - able under the circumstances. State v. Thomas, 43,783 (La. App. 2 Cir. 1/14/09), 2 So.3d 1181, 1185; State v. Collier, 39,882 (La. App. 2 Cir. 8/17/05), 909 So.2d 654, 657-658. No weapon need ever be seen by the victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that in fact the defendant was armed with a dangerous weapon. State v. Collier, supra, at 657-658.

In order for this conviction to be upheld, all elements of first degree robbery must have been proven. This the state has done.

The testimony of Betty Jones established:

• the robber, dressed in loose clothing and wearing a cap; passed her a robbery note, demanding money;
• the threat- of a dangerous weapon was conveyed by the robber moving a hand towards a pocket; and
• the robber took the bank’s cash from the teller.

Dewey Jones and Erin Williams, each of whom followed the robber outside the bank, observed the robber reach towards a pocket in a threatening gesture. They also believed the robber was reaching for a weapon.

|7As proof of the robber’s identity, the state introduced the testimony of Captain Anthony Evans, the expert testimony of Dr. Candace Jones,- video footage of the crime, and outside photographs taken from the bank’s security video.

At trial, Capt. Evans testified that he encountered Grimble approximately 350 yards from the bank shortly aftér the robbery, and that he later discovered a dark plaid jacket, dark knit cap, and a stocking cap near Grimble’s home. The testimony of Det. Holmes established that a photograph of the robber was circulated by police on the day of the robbery, that an anonymous caller identified the robber as Katrina Grimble, and that he was unable to confirm Grimble’s alibi. The testimony of Dr. Jones established that the DNA samples taken from the clothing discovered 'near Grimble’s home matched her known DNA sample, indicating that Grimble often wore those items of clothing.

The DNA evidence is absolutely compelling. The clothing found immediately after the robbery, very near the venue of the crime, was clearly the clothing worn by the robber. The defendant- denied that the clothing was hers; science puts the lie to that claim.

The initial gender assumptions of two witnesses just means that the robber’s deception was effective, and that many people think of a robber as being male.

Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial • to establish the essential elements of first degree robbery beyond a reasonable doubt, negating any reasonable probability of misidentification. The evidence was sufficient to sustain the conviction.

| Adjudication

On review, Grimble argues that, while the trial court did have a brief discussion of her desire to admit her identity as the same person previously convicted in Docket No. 89-2755, the trial court did not sufficiently advise her of her rights. Grim-ble asserts that, because the trial court failed to advise her of her rights, the habitual offender adjudication must be set aside and the matter must be remanded to the trial court. In response, the state argues that the trial court and the defense had before them the entire record of Grimble’s prior conviction. The state further argues that Grimble was advised that if she admitted to being the person who was previously convicted, the state did not have to present proof that she was the same person previously convicted.

Before accepting a defendant’s admission that he is a multiple offender, the trial judge must specifically advise the defendant of his right to a formal hearing, his right to require the state to prove his identity as a multiple offender, and his right to remain silent. A trial court’s failure to properly advise a defendant of his rights under the habitual offender law constitutes patent error on the face of the record and requires that the habitual offender’s adjudication be vacated. State v. Robinson, 46,091 (La. App. 2 Cir. 4/20/11), 63 So.3d 1113, 1125.

At the habitual offender adjudication on January 7, 2016, Grimble’s attorney indicated that Grimble did not deny that she was the same person who pled guilty in 1991. The trial court asked her if she understood what her attorney had said, and that the state had filed a habitual offender petition alleging that she was the person previously convicted. She then admitted that she was the same person convicted in the prior case.

InGrimble was not advised of her right to silence prior to her guilty plea. This is error patent and reversible error. Her habitual offender adjudication and enhanced sentence must be vacated, and the case remanded.

While a trial court is not required to impose an original sentence for the underlying conviction, the trial court is required to vacate any original sentence that is imposed prior to imposing the enhanced sentence as a multiple offender. La. R.S. 15:529.1(D)(3); State v. Pratt, 50,152 (La. App. 2 Cir. 12/30/15), 184 So.3d 816, 820.

The trial court did not vacate Grimble’s original sentence when it imposed the enhanced sentence on March 15, 2017. If the state again pursues an adjudication, and should the defendant be adjudicated as a habitual offender, the trial court is directed to vacate the defendant’s original sentence prior to imposing any enhanced sentence.

DECREE

The defendant’s conviction is affirmed.

The defendant’s initial 15-year hard labor sentence is vacated, for failure to note that all of the sentence must be served without benefits.

The defendant’s habitual offender adjudication is vacated.

The enhanced sentence for the adjudication is vacated.

The matter is remanded for further proceedings consistent herewith.

CONVICTION AFFIRMED; SENTENCE AND ADJUDICATION VACATED; AND REMANDED FOR FURTHER PROCEEDINGS.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979); State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Ward, 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228, 231. This standard, now legislatively embodied in La. C, Cr. P. art, 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder, Ward, supra; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of wit- ■ nesses or reweigh evidence. Ward, supra; State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. Ward, supra; State v. Eason, 43,788 (La. App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913. The Jackson standard is applicable in cases involving both direct and circumstantial evidence, An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); Ward, supra; State v. Speed, 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/06/09), 21 So.3d 299.
      When a defendant claims that he was not the person who committed the crime, the Jackson rationale requires that the state negate any reasonable probability of misidentifi-cation in order to carry its burden of proof. State v. Percy, 48,922 (La. App. 2 Cir. 4/9/14), 137 So.3d 184; State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Nelson, 44,762 (La. App. 2 Cir. 10/28/09), 25 So.3d 905; Percy, supra; Neal, supra. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. Nelson, supra.