text:
    STATE of Louisiana v. Ernest Ray WILLIAMS
    16-579
    Court of Appeal of Louisiana, Third Circuit.
    04/05/2017

      Phillip Terrell, District Attorney—Ninth Judicial District Court, Numa V. Metoyer, III, Assistant District Attorney, Post Office Box 1472, Aexandria, Louisiana 71309, (318) 473-6650, COUNSEL FOR APPEL-LEE: State of Louisiana
    Carey J. Ellis, III, Louisiana Appellate Project, Post Office Box 719, Rayville, Louisiana 71269, (318) 728-2043, COUNSEL FOR DEFENDANT/APPELLANT: Ernest Ray Williams
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

hOn January 28, 2016, Defendant, Ernest Ray Williams, was convicted by a jury of attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, and theft of a firearm, a violation of La.R.S. 14:67.15. Defendant had also been charged with, but acquitted of, cruelty to animals, a violation of La.R.S. 14:102.1(B).

On March 22, 2016, the trial court sentenced Defendant to twenty-five years on the attempted second degree murder conviction and to ten years on the theft of a firearm conviction, to be served concurrently. Defendant objected to his sentences and timely filed a written motion to reconsider sentence. The trial court overruled the objection and denied the motion.

On appeal, Defendant asserts two assignments of error. Defendant challenges the sufficiency of the evidence on both convictions and argues that his sentences are excessive.

FACTS AND PROCEDURAL HISTORY

After a history of alleged domestic abuse, Defendant and his wife, Patricia Tolbert (also known as Patricia Williams), became estranged. Patricia was living in an apartment on her family’s property (herein referred to as “the Tolbert’s residence”). On May 12, 2013, Defendant’s sister and brother dropped Defendant off at a call tower where he claimed he needed to be to make his way to an upcoming job. When exiting his sister’s vehicle, Defendant grabbed a duffle bag he had placed in the back of the vehicle. Shortly after Defendant’s sister and brother dropped Defendant off at the call tower, his sister found two suicide notes in her vehicle. One of the suicide notes was addressed to Defendant’s brother and the other to Defendant and Patricia’s son. Defendant’s sister and brother contacted Rpolice and informed them that they believed Defendant was going to hurt himself and that they had reason to believe he was going to hurt Patricia, too. Defendant’s sister and brother told police that Defendant believed Patricia was going to serve him with divorce papers, and he stated to them, “like I said when we was married, to death do us part and that’s how it’s going to be.”

Deputies were dispatched to the Tol-bert’s residence, where Patricia was staying in an apartment behind the main house. As the deputies were making their way to Patricia’s apartment, they noticed movement in a work shed that was close in proximity to Patricia’s apartment. There in the work shed, deputies found Defendant dressed in camouflage with a stolen AR-15 assault rifle and two fully loaded thirty-round clips. Defendant also had multiple boxes of ammunition beside him. The doorway to Patricia’s apartment faced the front of the Tolbert’s residence in such a way that had she exited her apartment, she would have been in the line of fire from where Defendant was armed in the work shed with his stolen rifle. Defendant had been lying in wait in the work shed for roughly six hours. Defendant surrendered to the deputies, and they secured the rifle and ammunition. Defendant admitted to the deputies that he had shot a dog in a field on his way to Patricia’s apartment (presumably to test how the gun functioned).

The serial number on the rifle indicated that the rifle in Defendant’s possession belonged to Phillip Hunter. Defendant had been hired as a handyman at Mr. Hunter’s law firm. The rifle had been stolen from Mr. Hunter’s law firm and defendant replaced it with a fake gun that had been painted black by Defendant to conceal his theft. Following Defendant’s arrest, the deputies knocked on the door of Patricia’s apartment. Patricia answered the door and stated that she had not left |athe apartment in the last six hours, and she had no knowledge that defendant was in the work shed armed with an assault rifle.

A jury found Defendant guilty of attempted second degree murder and theft of a firearm. Defendant was sentenced to twenty-five years for attempted second degree murder and ten years for theft of a firearm, to be served concurrently. Defendant appeals his convictions and sentences. For the following reasons, we affirm in part, amend in part, vacate in part, and remand in part.

ERRORS PATENT

In accordance with La.Code Crim.P. Art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent concerning Defendant’s sentences.

Louisiana Revised Statute La.R.S. 14:27 provides, in pertinent part:

D. Whoever attempts to commit any crime shall be punished as follows:
(l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

Further, La.R.S. 14:30.1 provides, in pertinent part:

B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

At sentencing, the trial court used the following language when sentencing Defendant:

I haven’t heard any remorse, you know, and so, for the Theft of a Firearm, I’m sentencing you to 10 years[, and] for the Attempted Second Degree Murder, I’m sentencing you to 25 years. Those will run concurrently and you shall receive credit for time served. And this is a crime of violence.

14As to Defendant’s sentence for attempted second degree murder, the trial judge made no mention of the statutorily mandated language that the sentence was to be served at hard labor without benefits. On its face, the sentence is illegally lenient. However, because it is mandatory for Defendant’s sentence to be served at hard labor and without benefit of parole, probation, or suspension of sentence as provided by La.R.S. 14:27 and La.R.S. 14:30.1, we amend Defendant’s sentence to provide that the sentence for attempted second degree murder is to be served at hard labor without benefit or parole, probation, or suspension of sentence. See State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, OS-1664 (La. 4/24/09), 7 So.3d 1193.

Second, the trial court did not specify whether Defendant’s sentence for theft of a firearm is to be served with or without hard labor. Louisiana Revised Statutes 14:67.15 provides, in pertinent part, “For a first offense, the penalty for theft of a firearm shall be imprisonment with or without hard labor for not less than two years nor more than ten years, without the benefit of probation, parole, or suspension of sentence and a fine of one thousand dollars.” Because the trial court did not specify whether the sentence for theft of a firearm was to be served with or without hard labor and such is optional by statute, Defendant’s sentence for theft of a firearm is indeterminate. Likewise, the statutorily required language that “without the benefit of probation, parole or suspension of sentence and a fine of one thousand dollars” was not imposed. Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. Therefore, we find that Defendant’s sentence for theft of a firearm should be vacated, and the case remanded for resen-tencing with the trial court being instructed to specify whether the sentence is to be served with or without hard labor and to specify that the [ .¡sentence be imposed without the benefit of probation, parole or suspension of sentence and a fine of one thousand dollars as required by the statute. See id; State v. Newton, 12-541 (La. App. 3 Cir. 2/13/13), 129 So.3d 25. See Matthew, 983 So.2d 994.

ASSIGNMENT OF ERROR ONE

In Defendant’s first assignment of error, he challenges the sufficiency of the evidence on both of his convictions.

The standard of appellate review for sufficiency of the evidence claims is well-settled. In State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86, the supreme court reiterated that standard, stating:
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. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenam, 95-2328 (La. 4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Richardson, 16-107, p. 2 (La.App. 3 Cir. 12/28/16), 210 So.3d 340; State v. Kennerson, 96-1518, p. 6 (La.App, 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Theft of a Firearm

Louisiana Revised Statutes 14:67.15 defines theft of a firearm as, “the misappropriation or taking of a firearm which belongs to another, either without the consent of the other to the misappropriation or taking or by means of fraudulent^ conduct, practices, or representations. An intent to deprive the other permanently of the firearm is essential.”

At trial, Phillip Hunter, a lawyer with the law firm of Hunter and Beck, testified he employed Defendant to do a remodeling job for his law office. Defendant had a key to the office. After defendant’s arrest and the seizure of the assault rifle in his possession, an officer from the sheriffs office contacted Mr. Hunter and asked him if he was the owner of an AR-15 rifle and informed him of the serial number of the rifle. The officer advised Mr. Hunter the rifle had been used in a crime. Mr. Hunter and the officer went to Mr. Hunter’s law office to see if his rifle was there. At his office, Mr. Hunter discovered his rifle had been replaced with a plastic rifle, also described as a paintball gun, which Defendant had painted to look similar to the assault rifle that was taken and recovered from defendant. Mr. Hunter testified that Defendant did not ask to use the rifle, and he did not give the Defendant permission to use it.

Defendant admitted to Deputy Stephen Cloessner that he had stolen the rifle from the law firm of Hunter and Beck. Further, Defendant presented no testimony or evidence that he was going to return the rifle.

Therefore, viewing the evidence in the light most favorable to the prosecution, we find that the State presented sufficient evidence to convict the Defendant of theft of a firearm.

Attempted Second Degree Murder

In challenging the sufficiency of the evidence on his attempted second degree murder conviction, Defendant argues the State failed to prove he had specific intent to kill the victim. Louisiana Revised Statutes 14:27 provides, in pertinent part (emphasis added):

|7A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

Our supreme court has provided, “It is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt.” State v. Smith, 94-3116, p. 3 (La. 10/16/95), 661 So.2d 442, 444.

Further, La.R.S. 14:30.1 states:

A. Second degree murder is the killing of a human being:
(1) When the offender has the specific intent to kill or to inflict great bodily harm[.]

In State v. George, 09-143, pp. 4-5 (La. App. 3 Cir. 10/7/09), 19 So.3d 614, 618, the court explained, in pertinent part:

The essential elements of the crime of attempted second degree murder are a specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim’s death. La.R.S. 14:30.1; State v. Hollingsworth, .42,317 (La.App. 2 Cir. 8/15/07), 962 So.2d 1183.

Further, our court has explained:

Reading the pertinent parts of these articles together, the state in this case had the burden of proving that the defendant had the specific intent to kill and did an act for the purpose of and tending directly toward accomplishing it. State v. Butler, 322 So.2d 189 (La.1976); State v. Guin, 444 So.2d 625 (La.App. 3 Cir.1983). Specific criminal intent has been statutorily defined as the state of mind which exists when circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Since specific intent is a state of mind, it need not be proven as a fact, but rather may be inferred from the circumstances and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982).

| ¡¿State v. Hongo, 625 So.2d 610, 613 (La. App. 3 Cir. 1993), writ denied, 631 So.2d 1163 (La.1994).

Patricia testified that she and Defendant were married for twenty-five years. In June 2010, she was no longer living with Defendant. Patricia testified that she and Defendant divorced in 2013 or 2015; she could not recall the exact year, Patricia testified to several occasions throughout her relationship with Defendant where, he threatened her life.

As analyzed above, the evidence before us indicates that Defendant began his preparation for the crimes at issue when he was doing work at Mr. Hunter’s law firm. Defendant’s first overt act tending toward accomplishing Patricia’s murder occurred when he stole the rifle. Defendant continued committing overt acts by procuring a large amount of ammunition for the rifle. Defendant prepared suicide notes and arranged with his brother and sister to be dropped off at a location in close proximity to the Tolbert’s residence, where Patricia was living in an apartment on the property. He expressed directly to his sister and brother that he believed Patricia was going to serve him with divorce papers and stated, “like I said when we was married, to death do us part and that’s how it’s going to be.”

Defendant concealed the rifle and ammunition in a tote bag, which he grabbed when he got out of his sister’s vehicle. He walked across a field, where he shot a dog, and secreted himself in a shed with an open line of sight to Patricia’s front door with the rifle fully loaded and ready for firing, with plenty of additional ammunition at hand. He was “lying in wait with a dangerous weapon” for over six (6) hours.

loBrian Laborde, employed as a deputy with the Rapides Parish Sheriffs Office, testified at trial that he was dispatched to the Tioga substation on a report for a “welfare concern.” The officer explained the Defendant’s sister and brother came to the Tioga sheriffs office substation concerned about their brother. When the State asked Deputy Laborde what was their concern, he responded, “Their concern was they found that Mr. Ernest (defendant) had made threats to kill himself along with his wife.” Officer Laborde related that Defendant’s sister and brother recalled that Defendant believed that Patricia was going to serve him with divorce papers and he recalled that they relayed defendant’s threat to him, “like I said when we was married, to death do us part and that’s how it’s going to be.”

The two suicide notes that the defendant had left were admitted into evidence at trial and read to the jury by Detective Hans Desselle, a deputy employed by the Rapides Parish Sheriffs Department. The first note was addressed to Mr. Williams, the Defendant’s brother. Detective Des-selle read as follows:

Curtis, help Dustin and look after him. I love you and thanks for standing by me. Get a lawyer and get Dustin whatever he has coming from the Tol-berts. Also see about suing Lafayette Behavioral Health Unit for releasing me in this shape. I love you. Look after my son.

The second suicide note was addressed to the Defendant’s son, Dustin. Detective Desselle read the note to the jury stating as follows:

I wish I could have been a better father, but I did my best. I love you. Twenty-five years I loved your mother and she drove me insane. I wish I had died before I hurt you and you turned against me. I loved you both. Please understand. I hope someday you can find it in your heart to forgive me. I love you. Love, your dad.

Detective Desselle testified that he was sent to re-photograph the scene on January 6, 2016, by the Rapides Pai'ish District Attorney’s Office. These photos, |inwhich were contained on a disc, were introduced into evidence and shown to the jury. One of the photographs indicated the larger shop or shed (herein referred to as “work shed”) was located next to the small single home referred to as an “apartment” (herein referred to as “Patricia’s apartment”), and the shed was built a little behind the apartment. When asked, “would the victim have been in a position to see defendant when she exited the guest quarters!,]” the detective responded, “He would have been behind her.”

Deputy Jason Little with the Rapides Parish Sheriff reported to the Tolbert’s residence on the day of the events in question. Deputy Little testified at trial as to the scene in the work shed:

Q Okay. And was there anything significant about where it (the rifle) and the chair were positioned?
A Yes. From where the chair and the rifle [were] positioned, you could actually see the way it was slanted, you could actually see the opening—the front door if the door opened to that apartment.
A The chair and the rifle were positioned at an angle to where if you looked out of the door, you could see the door to the apartment open—or the opening—front part of the apartment.
Q Okay. You could see the front part of the apartment open. Okay. So and that’s the apartment where whom was staying?
A Ms. Williams.
Q Okay. If Ms. Williams was to exit the apartment, would she have seen where the chair and the rifle were—that area—could she see it?
A I don’t think she—not without—the way the door opened, I don’t believe so. I don’t know.
Q Okay. All right. Did you find it significant in terms of where the chair was placed? Was that significant to you?
A Yes. Yes, sir.
InQ Okay. And what was that significant to you?
A Because the way the angle was set— I mean, it was a perfect spot to see the front door of that apartment if anybody came in and out of it.

Counsel for the defendant raised the question that the evidence pointed only to an attempted suicide by defendant and was insufficient to prove attempted second degree murder.

During the pat down related to the arrest, Deputy Cloessner, who was dispatched to the Tolbert’s residence along with Deputy Little, testified that he found cigarettes, a flashlight, two loaded magazines, an unloaded AR-15 magazine, and four boxes of .223 bullets for the AR-15 rifle in Defendant’s possession. During direct examination, the State asked the officer, “Would he need ninety rounds of ammunition to commit suicide!,]” and the officer responded, “He’d have to be a very bad shot.”

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have inferred from the circumstances and actions of Defendant presented at trial that Defendant desired the criminal consequences of his acts had Patricia walked out of her apartment. He was there to murder Patricia and then kill himself. The fact that he was stopped by the deputies before actually accomplishing his purpose is “immaterial.” La.R.S. 14:27(A). Defendant’s lying in wait for the specific intent to murder Patricia can be clearly inferred from Defendant’s statements to his family about his marriage and its permanence, his stated desire to kill Patricia, and the overt acts of obtaining the gun and ammunition, getting a ride with his sister and brother wherein he voiced his intention to kill Patricia, writing the notes, and concealing himself in the work shed for six hours with the rifle and copious amounts of ammunition at his side. He | ^.extensively prepared for his intended crimes and proceeded to lie in wait with a dangerous weapon for six hours. Fortunately, he was stopped by the deputies before Patricia walked out of her apartment, and he had the chance to murder Patricia. We find that the State satisfied its burden of proving the essential elements of attempted second degree murder beyond a reasonable doubt. We affirm the jury’s verdict convicting defendant of attempted second degree murder.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant challenges both of his sentences as excessive. Defendant properly filed a motion to reconsider sentence in the trial court, which was denied.

As stated above, due to Defendant’s sentence for theft of firearm being indeterminate and failing to impose parole restrictions and a $1,000.00 fine, we vacate Defendant’s sentence for theft of a firearm and remand to the trial court for imposition of a determinate sentence with the statutorily required conditions.

For the following reasons, we affirm as amended, Defendant’s sentence for attempted second degree murder.

The law is well-settled regarding the standard to be used in reviewing excessive sentence claims:
[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has ■wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
|13State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

State v. Daugherty, 15-400, p. 3 (La.App. 3 Cir. 10/7/15), 175 So.3d 1164, 1166-67. Further, even if a defendant’s sentence falls within the statutory sentencing range, the sentence may still be vacated as unconstitutionally excessive.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1988) (citing State v. Ray, 423 So.2d 1116 (La. 1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). “The appellate court shall not set aside a sentence for exces-siveness if the record supports the sentence imposed.” La.Code Crim.P. Art. 881.4(D).

Id. at 1167.

At sentencing, the trial court considered Defendant’s lack of a criminal history and that he was a law-abiding citizen (except for the fact that he had threatened and stalked his wife in the past). However, the trial court repeatedly reiterated that Defendant did not show remorse for his actions. It is clear from what was stated on the record at Defendant’s sentencing that the trial court knew| ⅛ Defendant did not have a criminal record, but his actions demonstrated that he could not be trusted in the community and that he might commit a similar offense with potentially life-threatening consequences. The trial court stated:

I don’t know that you’re, that you’ve moved forward on this. I, you’re still defending your actions. You’re not showing remorse. .. .1 have to consider that because we have the victim out there and her family and they continue to live in fear everyday because of what you put them through.

In State v. Leger, 16-240 (La.App. 3 Cir. 11/2/16) (unpublished opinion) and State v. Breaux, 15-1004 (La.App. 3 Cir. 5/4/16) (unpublished opinion), this court recently upheld the maximum sentence for attempted second degree murder. In Breaux, the court reiterated that when evaluating the potential excessiveness of a sentence, the appellate court is to ask “whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” Breaux, 15-1004, p. 7 (La.App. 3 Cir. 5/4/16) (unpublished opinion) (citing State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996)).

In the instant case, Defendant was exposed to a sentence of ten to fifty years without benefit of parole, probation or suspension of sentence for his conviction of attempted second degree murder. See La. R.S. 14:27; La.R.S. 14:30.1. Defendant was sentenced to a low to mid-range sentence of twenty-five years for attempted second degree murder. Considering the violent history of the couple, the many threats defendant had made to the victim, the nature of the offense, the circumstances and lack of remorse of the offender, the legislative purpose behind the punishment, and the comparison of sentences imposed for similar crimes, we find that Defendant’s sentence was not excessive. We affirm Defendant’s sentence for attempted second degree murder and amend the Defendant’s sentence to|1R mandate that it is to be served at hard labor without benefit of probation, parole, or suspension of sentence.

DISPOSITION

Defendant’s sentence for theft of a firearm is vacated and remanded to the trial court for the imposition of a determinate sentence, either with or without hard labor, and to impose the statutory requirements that it be “served without the benefit of probation, parole or suspension of sentence and a $1,000.00 fine.” For these reasons, we affirm Defendant’s convictions. Defendant’s sentence for attempted second degree murder is affirmed as amended.

AFFIRMED IN PART, AMENDED IN PART, VACATED IN PART, AND REMANDED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Christopher O. JAMES
    16-522
    Court of Appeal of Louisiana, Third Circuit.
    04/05/2017

      Paula Corley Marx, Louisiana Appellate Project, P. 0. Box 80006, Lafayette, LA 70598-0006, Telephone: (337) 991-9757, COUNSEL FOR: Defendant/Appellant— Christopher O. James
    Herbert Todd Nesom, District Attorney—33rd Judicial District Court, Steven Sumbler, Assistant District Attorney—33rd Judicial District Court, P. O. Box 839, Oberlin, LA 70655, Telephone: (337) 639-2641, COUNSEL FOR: Plaintiff/Appel-lee—State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.
   THIBODEAUX, Chief Judge.

1 Christopher James was arrested after he removed a bag from his pocket that contained five rocks of crack cocaine and threw it onto the front driver’s seat. He did so as the arresting officer was conducting a pat-down subsequent to a traffic stop. He was charged with possession of cocaine with intent to distribute and obstruction of justice. A jury found him guilty of both charges. The trial judge sentenced him to serve concurrent terms of ten years for the drug charge and five years for obstruction of justice. Mr. James now appeals the convictions. For the reasons that follow, we affirm the conviction and sentence for obstruction of justice, but reverse the possession of cocaine with intent to distribute conviction and enter a judgment of guilty on the lesser charge of possession of cocaine. We remand the matter for resentencing on that conviction.

I.

ISSUES

We must decide:

1. whether there was sufficient evidence to support a guilty verdict of possession of cocaine with intent to distribute;
2. whether there is sufficient evidence to support a guilty verdict of obstruction of justice;
3. whether the trial court deprived Mr. James of his right to present a defense when it denied his motion for a continuance to conduct additional discovery;
4. whether the trial court erred in denying Mr. James’s motion for a mistrial;
5. whether prospective jurors were struck because of their race (Black), in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), resulting in an all-white jury; and
⅛6. whether the obstruction of justice verdict form was defective.

II.

FACTS AND PROCEDURAL HISTORY

Mr. James was pulled over for driving without a valid driver’s license. Before the traffic stop, Officer Brandon Johnson was alerted via a narcotics tip that Mr. James was selling crack cocaine. Officer Johnson attested that he previously cited Mr. James for operating a motor vehicle without a valid driver’s license. Officer Johnson confirmed through the Louisiana traffic database that Mr. James still did not have a valid license and a traffic stop followed. Officer Johnson instructed Mr. James to get out of the car and to place his hands on the top of the car.

During the subsequent pat-down, Mr. James removed contents from his pocket and threw them through the car’s open window. The contents included a small bag containing .77 grams of crack cocaine (five rocks). Mr. James’s passenger, Kennon Richard, grabbed the bag and attempted to hide it between the armrest and the passenger’s seat. Mr. James and Mr. Richard were both placed under arrest. The bag containing the crack cocaine was in plain view and was confiscated by Officer Johnson, Mr. James was charged by bill of information with possession of cocaine with intent to distribute and obstruction of justice.

On the morning of trial, the trial court heard and denied Mr. James’s oral motion to continue the trial. During voir dire, the State exercised peremptory challenges to strike six minority persons from the jury, resulting in Mr. James being tried by an all-white jury. The jury found Mr. James guilty on both charges.

J¿I1.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find one error patent.

We note that Mr. James was advised incorrectly at sentencing that he had two years from that date to file an application for post-conviction relief. However, La. Code Crim.P, art. 930.8 provides that a defendant has two years after the conviction and sentence become final to seek post-conviction relief. Thus, the trial court is directed to correctly inform Mr. James of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of the opinion and to file written proof in the record that he received the notice. State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, unit denied, 09-275 (La. 11/20/09), 25 So.3d 795.

IV.

LAW AND DISCUSSION

A. Whether there was sufficient evidence to support a guilty verdict of possession of cocaine with intent to distribute.

Mr. James first argues that there is insufficient evidence to support a guilty verdict of possession of cocaine with the intent to distribute. He notes that: (1) the cocaine weighed less than a gram; (2) the rocks were all in one bag; and (3) he was arrested with cigarettes, a lighter, and only five dollars, all of which] 4 indicate his intention to use but not distribute cocaine. In doing so, Mr. James admits that he possessed cocaine but that there is insufficient evidence to prove his intent to distribute the cocaine.

The State contends that his intention to distribute is inferred from the circumstances surrounding his arrest. The State posits that: (1) the cigarettes were not hand rolled, which would ordinarily be used to smoke crack cocaine; (2) the cocaine was packaged in a baggie, which indicated an intent to distribute because crack users typically receive their crack unbound; and (3) there was no evidence that Mr. James was a cocaine user.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)).

The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La. 1990)). The appellate court’s function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

It is the factfinder’s role to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring! B the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. 120, 134, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v, Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

The Louisiana Supreme Court has set a test for determining whether a defendant possessed an illegal substance with the intent to distribute. State v. House, 325 So.2d 222 (La.1975). We should consider whether: (1) Mr. James ever distributed or attempted to distribute the substance; (2) the substance was in a form typically associated with possession for distribution; (3) the amount created a presumption of the intent to distribute; (4) expert or other testimony showed the | ^amount was inconsistent with personal use; and (5) any paraphernalia associated with the intent to distribute was present. Id, The Court will address each factor in turn.

First, there is no evidence to suggest that Mr. James ever distributed or attempted to distribute the crack rocks. Mere possession of a substance is not evidence of the intent to distribute “unless the quantity is so large that no other inference is possible.” State v. Hearold, 603 So.2d 731, 735-36 (La.1992). The crack here was found subsequent to a traffic stop and not during an instance that implies Mr. James was attempting to distribute.

Second, the crack cocaine was not packaged in a manner consistent with distribution. The five rocks were in one small plastic bag and not packaged individually. Officer Johnson testified that crack cocaine distributors package rocks “in a pill bottle in a plastic bag” so that the seller can take the bottle out of the bag and place the rock in the purchaser’s hand. The five rocks Mr. James possessed were packaged together in one bag, not in a pill bottle placed in a bag. Even so, Officer Johnson considered the packaging consistent with distribution. The discrepancy in Officer Johnson’s testimony does not establish that the rocks were packaged in a manner consistent with distribution. Given the rocks were neither individually packaged nor placed in a bottle in a plastic bag, this factor weighs in favor of possession of crack cocaine but not intent to distribute.

Third, the amount (.77 grams) does not create a presumption of intent to distribute. Jurisprudence reveals that possession of five rocks of cocaine suggests personal use, not an intent to distribute. For example, in State v. Brooks, 00-1123 (La. App. 3 Cir. 1/31/01), 779 So.2d 1055, writs denied, 01-865, 01-896 (La. 2/1/02), 808 So.2d 332 and 333, the defendant was charged with possession o^¡¡_ cocaine with the intent to distribute after police found a medicine bottle containing five rocks of cocaine in his pocket. A jury found him guilty of the lesser charge of possession, and this court affirmed the conviction. In State v. Snavely, 99-1223 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, unit denied, 00-1439 (La. 2/16/01), 785 So.2d 840, an officer testified that crack users generally purchase one to five rocks at a time for personal use.

Here, Mr. James possessed five rocks of crack cocaine. This amount is not sufficient to create a presumption of intent to distribute. Compare State v. Davis, 05-543 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, unit denied, 06-587 (La. 10/13/06), 939 So.2d 372 (holding that there was sufficient evidence to uphold a possession with intent to distribute conviction against a defendant who possessed eleven grams of crack cocaine), with State v. Durgan, 05-1642 (La.App. 3 Cir. 5/31/06), 931 So.2d 1182 (reversing a conviction for possession of cocaine with intent to distribute against a defendant who possessed .82 grams of crack cocaine).

Fourth, testimony did not establish that the amount was inconsistent with possession for personal use. On this factor, Officer Johnson offered shifting testimony. He stated that five rocks was “right in the middle” and that “it is more than your normal crack addict would have, but it is not out of the realm of possibility for a crack addict to smoke that much crack.” Instead of establishing that five rocks are inconsistent with personal use, his testimony leads us to the opposite inference. Five rocks are indicative of possession by a crack user, not a distributor.

Fifth, no paraphernalia associated with distribution was present. He was not arrested with scales, baggies, individually wrapped rocks, weapons, or a large amount of money to suggest that he was distributing crack cocaine.

| «Accordingly, because the above factors weigh in favor of acquittal of possession with intent to distribute, we vacate that conviction. We enter a guilty verdict on the lesser charge of possession of crack cocaine and remand for resentencing on that conviction.

B. Whether there is sufficient evidence to support a guilty verdict of obstruction of justice.

Mr. James contends that obstruction of justice requires the State to establish that he acted with specific intent to affect a criminal investigation. He argues that specific intent is lacking because he simply took the crack cocaine out of his pocket and placed it on the driver’s seat, in plain view of the officer, and acknowledged that it was his. This action, he argues, did not affect the investigation because he did attempt to tamper or destroy the crack cocaine.

The State argues that specific intent can be inferred because Mr. James moved the crack cocaine from his pocket to the driver’s seat as he was being patted-down and without permission from Officer Johnson to do so.

Obstruction of justice occurs when the offender tampers “with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding.” La.R.S. 14:130.1(A)(1). “Tampering” includes “the intentional alteration, movement, removal, or addition of any object or substance” at the location of an incident subject to investigation. Id.-, see State v. Blanche, 47,015 (La.App. 2 Cir. 4/11/12), 91 So.3d 1189 (holding that a defendant throwing a PCP-laced cigarette onto the seat as he exited the vehicle was sufficient to conclude that the defendant was attempting to disrupt a criminal investigation).

19[0]bstruction of justice is a specific-intent crime. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Therefore, specific intent need not be proven by fact but can be inferred from the circumstances and the actions of the defendant.

State v. Vercher, 14-1211, p. 11 (La.App. 3 Cir. 5/6/15), 162 So.3d 740, 747, writ denied, 15-1124 (La. 5/20/16), 191 So.3d 1065.

Here, as Officer Johnson conducted a pat-down, Mr. James grabbed his bag of cocaine rocks and threw it into the car, where his passenger attempted to hide it. He did not simply hand over the bag of cocaine to Officer Johnson. The jury could have reasonably found that Mr. James was trying to hide evidence of his drug possession and evade drug charges when he threw the bag into the car. The presence of the bag on Mr. James’s person would have been clear evidence of his possession of it. Viewing the evidence in the light more favorable to the State, we conclude that a rational trier of fact could have concluded reasonably that Mr. James acted with specific intent to distort the investigation. Accordingly, we affirm the obstruction of justice conviction.

C. Whether the trial court deprived Mr, James of his right to present a defense when it denied his motion for a continuance.

On the day of trial, Mr. James moved orally to continue the trial so that his counsel could conduct discovery into his history of drug addiction to rebut the intent to distribute charge. He argues that after he changed counsel, his eventual trial counsel only had a little over a month to prepare for trial.

The State contends that Mr. James did not file a written motion for a continuance at least seven days prior to trial as required by La.Code Crim.P. art. | 107O7. Further, unexpected circumstances did not exist for the trial court to permit an oral motion for a continuance. It also asserts that the case did not present a complicated factual basis or issues that required extensive discovery.

A trial court has great discretion whether to grant or deny a motion to continue trial. An appellate court will not disturb the trial court’s decision absent a clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Balfa, 485 So.2d 264 (La.App. 3 Cir. 1986).

Here, the record contains no indication that Mr. James’s counsel made an effort to obtain medical records. Additionally, he has not identified any medical records or testimony to support his contention that he was a long-time crack addict. He told the trial judge he was involved in drug rehab in 2002, thirteen years prior to this offense. Although he wanted the continuance to obtain medical records, he testified that the only help he had sought “in the last year or two” was informal drug counseling with his pastor. We conclude that the trial court did not abuse its discretion by denying Mr. James’s motion to continue.

D. Whether the trial court erred in denying Mr. James’s motion for a mistrial.

Mr. James claims that the trial court erred by denying his motion for a mistrial when the State asked a potential juror, a law enforcement officer, about his prior interactions with the defendants. When asked whether he knew either of the defendants, the prospective juror responded, “I am not sure. I think one of them.” Mr. James argues that this response violated his presumption of innocence because it suggested that he was a criminal. He argues that he was entitled to a mandatory mistrial under La.Code Crim.P. art. 770 or a discretionary mistrial pursuant to La. Code Crim.P. art. 775. ,

| n The State contends that the prosecutor’s question was not intended to elicit inadmissible evidence and that the juror’s response did not prejudice Mr. James because it did not reference other crimes committed by the defendants. Further, a mistrial was not warranted under La.Code Crim.P, arts. 770, 771, or 775 because the response did not result in substantial prejudice.

The trial court’s decision to deny a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Juniors, 05-649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, unit denied, 06-267 (La. 9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007) (citing State v. Sloan, 29,787, (La. App. 2 Cir. 9/24/97), 701 So.2d 995, writ denied, 97-2601 (La. 2/6/98), 709 So.2d 731).

Under La.Code Crim.P. art. 770, “[u]pon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to ... [another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]” Additionally, under La.Code Crim.P. art. 775, “[a] mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial .... ”

A comment that only arguably points to another crime, but does not unmistakably point to it, does not warrant a mandatory mistrial. State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). In Edwards, a detective testified he learned of the defendant’s address “[t]hrough the probation officer.” Id. at 906. The supreme court found the Stated 12 line of questioning did not intend to elicit inadmissible evidence of the defendant’s other crimes. Even if it did, however, the court found the reference did “not unambiguously point to another crime committed by the defendant.” Id. at 907. Thus, a mandatory mistrial was not warranted.

Here, Mr. James was entitled to neither a mandatory nor a discretionary mistrial. Mr. James was not entitled to the mandatory mistrial provisions of La.Code Crim.P. art. 770 because the officer did not testify at trial; he was asked a question during voir dire. The State contends the question of whether the officer had “worked any of these cases dealing with any of the defendants” referred only to the current charges against • the defendants. This is a reasonable possibility and an important inquiry with probative value, as a police officer who had been involved in the case being tried would not be an appropriate juror. The question asked did not refer to an offense besides the one being tried.

Further, the trial court did not abuse its discretion in denying a discretionary mistrial under La.Code Crim.P. art. 775. The trial judge was in the best position to assess the impact of the statement. Mr. James alleges no specific prejudice because of the potential juror’s remark, which was vague and not a clear reference to another crime. Mr. James has not shown that the remark inflamed the jury or contributed to the guilty verdict, particularly where the evidence was sufficient to convict him of possession of cocaine and obstruction of justice. Accordingly, we affirm the trial court’s decision to deny Mr. James’s motion for a mistrial.

11SE. Whether prospective jurors were struck on the basis of their race (Black), in violation of Batson v. Kentucky 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), resulting in an all-white jury,

Mr. James contends that his equal protection guarantees outlined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) were violated. Batson makes it unconstitutional to use a peremptory challenge to exclude a prospective juror because of race. He complains that no race-neutral reasons existed to exclude five African-Americans (Emily Sapp, Zeal-on Solomon, Ammie Cole, Bridget Gold, and Jerome Sumbler) from serving, resulting in an all-white jury.

The State argues that it provided reasonable and specific race-neutral reasons to exclude each. Thus, Mr. James cannot establish that the State acted with discriminatory intent. We will address each pi’o-spective juror in turn.

When a Batson challenge is asserted, the proponent bears the burden of presenting a prima facie showing of purposeful discrimination in the selection of the jury. The burden then shifts to the opponent to show a non-discriminatory basis for its peremptory challenge. The trial court then determines whether the proponent has carried his burden of proving purposeful discrimination. State v. Nelson, 10-1724,10-1726 (La. 3/13/12), 85 So.3d 21. Once the State provides race-neutral reasons for its peremptory strikes, the issue of whether the strikes constitute a prima facie pattern of discrimination becomes moot. Hernandez v. Neiv York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. McCoy, 14-1449 (La. 10/19/16), 218 So.3d 535, 2016 WL 6506004.

In State v. Tilley, 99-569, pp. 4-5 (La. 7/6/00), 767 So.2d 6, 12-13, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001), the Louisiana Supreme Court set out criteria for evaluating the State’s answer to whether the peremptory challenge was race-neutral:

__|_yAlthough the state’s explanation must be based on more than an assumption or a hunch, State v. Collier, [553 So.2d 815 (La.1989) ], to be facially valid, it need not be persuasive, or even plausible; thus unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. State v. Hobley, 98-2460 (La. 12/15/99), 752 So.2d 771]; Purkett [v. Elem,] 514 U.S. [765] at 767, 115 S.Ct. [1769] at 1771, 131 L.Ed.2d 834 [(1995)].
Faced with a race-neutral explanation, the defendant then must prove to the trial court purposeful discrimination. Id. (Citing Batson, supra; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The proper inquiry in the final stage of the Batson analysis is whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present. Id. (Citing State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 290). Thus, the focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Id. The trial court should examine all of the available evidence in an effort to discern patterns of strikes and other statements or actions by the prosecutor during voir dire that support or reject a finding of dismminatory intent. Id.; State v. Tyler, 97-0338 (La. 9/9/98), 723 So.2d 939, 942-43, cert. denied, Tyler v. Louisiana, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999). Because the factual determination pertaining to intentional discrimination rests largely on credibility evaluations, the trial court’s findings are entitled to great deference by the reviewing court. Id.; State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832.

1. Ammie Cole

Ammie Cole worked with Kennon Richard’s (the co-defendant) defense attorney as a teacher and thought he was “great.” Additionally, Mr. James’s attorney represented Ms. Cole’s cousin as a defendant in a civil case. The Instate struck Ms. Cole based on her history of actually working with Mr. Richard’s attorney.

Mr. James objected to her removal. She was the only African-American left in the jury venire when she was struck. The trial court excused Ms. Cole.

We find that the State offered a sufficient race-neutral reason for striking Ms. Cole. If she thought Mr. Richard’s attorney was a great teacher, based on her personal work experience with him, she may have presumptively found him to be a great attorney. This could have influenced her reception, processing, and interpretation of the evidence. Although no other African-American remained in the jury ve-nire after Ms. Cole was excluded, we conclude that the available evidence shows she was not stricken because of race.

2. Bridget Gold

Bridget Gold told the trial court she knew Steven Sumbler, one of the State’s attorneys, because they “grew up together” and “he was like family.” She also knew Mr. James, who lived with his grandmother down the street from her, and Mr. Richard, although “not personally.” Nevertheless, she believed she could listen to the evidence and make a fair and impartial decision. Additionally, Ms. Gold’s brother had been in the hospital for the two weeks prior to trial awaiting a heart transplant, but she still felt she could perform her job as a juror.

Based on the record, it is unclear if Mr. James made a Batson objection. When defense counsel noted Ms. Gold was African-American, the State presented a race-neutral argument that she lived down the street from Mr. James, and knew Mr. Richard. The trial judge commented, “I don’t know if that was a_Jj¡¡Batson challenge or not. But the race-neutral, very sufficient race-neutral reason will stand.” The close relationship between her and Mr. Sumbler could easily create an appearance of impropriety if she served on the jury. We conclude that this negates the possibility of the State’s discriminatory intent.

3. Emily Sapp (Equilla Sapp)

Equilla Sapp, referred to by Mr. James as “Emily Sapp,” knew the State’s counsel, Steven Sumbler, through their church. She was also his father’s cousin and his mother’s best friend. She taught Mr. Sumbler as a substitute teacher. She felt she could vote not guilty if he did not prove all elements beyond a reasonable doubt. Ms. Sapp was involved in a church ministry with a mandatory meeting in Mississippi that began on Wednesday of that week, just two days after her voir dire.

The State exercised a challenge to exclude Ms. Sapp based on her being a family friend of Mr. Sumbler. Counsel also noted Ms. Sapp would have to miss her required church meeting to serve on the jury. The trial court noted “there are plenty of race-neutral reasons that were given” and excused Ms. Sapp. Mr. James objected, commenting “every African American juror that comes up is getting peremptory, every last one of them. It is a pattern at this point.”

The State had no discriminatory intent in striking Ms. Sapp. She, like Ms. Gold, was a very close family friend and also a member of Mr. Sumbler’s family. Because of these relationships, we conclude that there were sufficient race-neutral reasons for striking her from the jury.

1174. Zealon Solomon

Zealon Solomon was an' eighth grade math teacher at Oakdale Middle School, a tennis coach at Oakdale High School, a small business owner, and a 2012 graduate of LSU Paul M. Hebert Law Center. He and Mr. Sumbler are cousins, and he went to school with the co-defendant, Mr. Richard. Additionally, Mr. Solomon’s students had midterm examinations the week of trial. He felt he could balance school and the trial, but he thought his mind would be on his students and their preparation to a certain extent rather than on the trial. Mr. Solomon taught both children of the investigating officer, Brandon Johnson. Officer Johnson’s son played tennis for Mr. Solomon.

Both defendants raised a Batson challenge to the State’s peremptory exclusion of Mr. Solomon. As race-neutral reasons, the State argued Mr. Solomon and Mr. Sumbler were related, his focus was on his student’s exams, and he had experience in the legal field. The trial court denied the challenge for cause but allowed a peremptory strike.

The familial relationship between Mr. Solomon and Mr. Sumbler alone was a sufficient race-neutral reason to strike him from the jury. Although Mr. James alleges a pattern of discriminatory intent, the trial court could have found instead a pattern of striking family members and close relationships to prevent the appearance of stacking the jury in favor of the State, a factor that supports denying the Batson challenge. We conclude that there were sufficient race-neutral reasons for striking Mr. Solomon.

|1S5. Jerome Sumbler

Jerome Sumbler is Mr. Sumbler’s uncle, and he knew both defendants. He stated that would not tend to vote guilty simply because his nephew was the State’s attorney. Jerome Sumbler also played basketball and football with the uncle of one of the defendants, and they were lifelong friends. He understood his service as a juror could appear improper because of those relationships. The trial court excused him for cause. None of the attorneys stated an objection.

On appeal, Mr. James alleges that Bat-son also applies to challenges for cause. He cites no authority for this premise. While Mr. James claims the State showed a pattern of striking African-American jurors, the State more accurately showed a pattern of striking jurors who may lean toward the defense or whose service on the jury could appear to result in unfairness to either or both defendants. Mr. Sumbler was related to the State’s counsel and was a lifelong friend of one of the defendants’ uncle, both of which were adequate reasons to strike him for cause.

For the reasons stated, we hold that the trial court ruled correctly that the State provided sufficient race-neutral reasons to exercise a peremptory challenge for each juror.

F. Whether the obstruction of justice verdict form was defective.

Last, Mr. James claims that the verdict form for the obstruction of justice charge was defective. He argues that the verdict form should have included | ^additional responsive verdicts, in particular those prescribed by La.R,S. 14:130.1(B)(3).

The State argues that any objection to the verdict form must be made contemporaneously during trial. It notes that Mr. James did not request the additional, responsive verdicts during trial. Thus, he failed to preserve this issue for appeal.

Unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. La.Code Crim.P. art. 841; State v. Belgard, 410 So.2d 720 (La.1982). For example, in State v. Newton, 42,743 (La.App. 2 Cir. 12/19/07), 973 So.2d 916, writ denied, 08-1147 (La. 1/16/09), 998 So.2d 90, the defendant alleged that the trial court erred in failing to list attempted obstruction of justice as a proper responsive verdict to the charge of obstruction of justice. The court discussed attempted obstruction of justice as a responsive verdict with the parties but never ruled on the issue. The defendant did not object to the charge presented to the jury or request an additional charge. The second circuit held the defendant failed to preserve the issue for appeal.

Similarly, at trial, Mr. James did not suggest the verdict form he now contends should have been submitted. Further, he did not object when the jury was charged or when the verdict form was submitted to the jury. The trial court reviewed the jury charge with all counsel. Based on Mr. James's request, the trial judge removed a reference to conviction of a prior offense and to discrediting testimony because of a prior inconsistent statement. Mr. James made no objection regarding the responsive verdicts, and the verdict sheet went to the jury without the 12nchoices Mr. James now seeks on appeal. Accordingly, Mr. James failed to preserve this issue for appeal, and we need not consider it.

V.

CONCLUSION

For the reasons stated, we affirm the conviction and sentence for obstruction of justice, but reverse the possession of cocaine with intent to distribute guilty verdict and enter a judgment of guilty on the lesser charge of possession of cocaine. We remand the matter for resentencing on that charge. We also direct the trial court to inform Mr. James of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Mr. James within ten days of the rendition of this opinion, and to file written proof into the record indicating that Mr. James received the notice.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RE-SENTENCING.

      . The knowing or intentional distribution of a Schedule II controlled dangerous substance (CDS) is a felony offense. La.R.S. 40:967. Crack cocaine is a Schedule II CDS. La.R.S. 40:964,, Schedule II, (A)(4). "Distribution'’ includes the physical delivery or administration of a substance. La.R.S. 40:961(14).

      . This statute states, “[w]hen the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.”