author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Leo Franklin LOONEY, Appellant
    No. 51,782-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    HOLLI HERRLE-CASTILLO, Counsel for Appellant
    LEO FRANKLIN LOONEY, Pro Se
    ROBERT S. TEW, District Attorney, GEARY S. AYCOCK, Assistant District Attorney, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, C.J.

In 1992, defendant, Leo Franklin Looney, was convicted of second degree murder and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Because defendant was a 15-year-old juvenile when he committed this offiense in 1989, in accordance with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the trial court has now vacated Looney's sentence and resentenced him to life imprisonment at hard labor with the benefit of parole eligibility. We affirm.

FACTS

According to the facts as set forth in this Court's prior unpublished appellate opinion, on July 26, 1989, 15-year-old Leo Looney and his cousin, Kenneth Price, purchased a pistol to use in the robbery of a Cracker Barrel convenience store in Ouachita Parish. Price, followed by Looney, entered the store to make a small purchase. When the clerk opened the register, defendant pulled out the gun and demanded the money. Two eyewitnesses pulled into the parking lot and testified to the robbery in progress. Defendant heard the sound of the car engine, looked in that direction, and fired the pistol. The store clerk was killed. Following a trial, the jury found defendant guilty of second degree murder. On November 19, 1992, Looney was sentenced to life imprisonment at hard labor without the benefit of parole. This Court affirmed defendant's conviction and sentence in an unpublished opinion. Defendant filed several applications for post-conviction relief that were denied.

On October 29, 2012, defendant filed a pro se motion to correct an illegal sentence, arguing that his mandatory life without parole sentence was unconstitutional under Miller v. Alabama , supra , because he was 15 years old when the crime was committed. In Miller , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The trial court denied the motion to correct illegal sentence because Louisiana courts initially viewed Miller as a procedural change that did not apply retroactively.

After the United States Supreme Court held that Miller applied retroactively to cases on collateral review, such as the instant case, in Montgomery v. Louisiana , supra , defendant filed a pro se "Motion to Amend to Manslaughter." Defendant argued that, because his life sentence without parole had been ruled unconstitutional, he should be sentenced under the next responsive offense of manslaughter. Following a hearing on August 1, 2016, the trial court denied the motion, finding that the court did not have the authority to resentence defendant under the manslaughter statute. On June 22, 2016, defendant filed another pro se motion to correct illegal sentence. Defendant again argued that his conviction and sentence should be vacated as illegal, and that he should be convicted of the next responsive verdict, manslaughter.

On September 2, 2016, defendant's attorney filed a motion to reconsider sentence. Counsel noted that, since the denial of defendant's pro se "Motion to Amend to Manslaughter," another defendant had been resentenced to the sentence for manslaughter by a judge in a different section of the court. Counsel requested that the trial court reconsider resentencing defendant under the manslaughter statute. The motion to reconsider sentence was denied.

On February 16, 2017, the trial court vacated defendant's original sentence and imposed a new sentence of life imprisonment with the benefit of parole eligibility. In lengthy written reasons for the sentence, the trial court noted that it had ordered a pre-sentence investigation and conducted a sentencing hearing prior to resentencing defendant. The trial court found that defendant was not the "rare juvenile offender whose crime reflects irreparable corruption" deserving of a life sentence without the benefit of parole. The trial court reviewed the facts of the offense, defendant's criminal record, his prison records, and his social history. On March 9, 2017, defendant Looney filed a motion to reconsider sentence, which was denied. This appeal followed.

DISCUSSION

Defendant argues that the trial court's retroactive application of La. R.S. 15:574.4(E) in resentencing him violated his right to fair notice and the prohibition against ex post facto laws. He claims that, at the time of the offense, in 1989, Louisiana jurisprudence provided that if a sentence was found to be unconstitutional, the defendant would be resentenced pursuant to the penalty provision for the next lesser included offense. Defendant argues that because his sentence of life imprisonment without parole is unconstitutional, he should have been resentenced under the manslaughter statute in effect at the time of the offense. The maximum sentence for a manslaughter conviction in 1989 was 21 years.

In addition, defendant argues that he did not receive an individualized sentence as required by Miller , and he was not afforded an adequate sentencing hearing to present mitigating factors; and, he was not approved funds to hire an expert for mitigation purposes. Defendant further argues that a sentence which falls within the statutory guidelines may still be excessive and that the trial court has the authority to deviate from a mandatory sentence.

In Miller v. Alabama , supra , the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Miller Court did not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; instead, a sentencing court is required to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. Montgomery v. Louisiana , supra ; State v. Williams , 12-1766 (La. 03/08/13), 108 So.3d 1169. Miller drew a line between those whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption. Life without parole is the correct sentence for the latter group.

In response to Miller , the Louisiana legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013.

La. C. Cr. P. art. 878.1, which requires a trial court to conduct a hearing prior to imposing a life without parole sentence on a juvenile murder defendant, provides:

(A) In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
(B) At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides the conditions, such as serving 35 years of the sentence imposed, which must be satisfied before the defendant can apply to the parole board for parole consideration.

In Montgomery v. Louisiana , the United States Supreme Court held that Miller applied retroactively, and in addressing concerns that the retroactive application of Miller would place an undue hardship on states, the court stated at 577 U.S. at ----, 136 S.Ct. at 736 :

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them . See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. (Emphasis added.)
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller' s central intuition-that children who commit even heinous crimes are capable of change.

On remand, the Louisiana Supreme Court in Montgomery held that, absent new legislation to the contrary, courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller . State v. Montgomery , 13-1163 (La. 06/28/16), 194 So.3d 606.

This Court and other circuits have addressed and rejected claims that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) are unconstitutional in light of the requirements of Miller . See State v. Sumler , 51,324 (La. App. 2 Cir. 05/02/17), 219 So.3d 503 ; State v. Fletcher , 49,303 (La. App. 2 Cir. 10/01/14), 149 So.3d 934, writ denied , 14-2205 (La. 06/05/15), 171 So.3d 945 ; State v. Doise , 15-713 (La. App. 3 Cir. 02/24/16), 185 So.3d 335, writ denied , 16-0546 (La. 03/13/17), 216 So.3d 808.

Likewise, arguments that sentences under La. R.S. 15:574.4(E) are ex post facto violations have been rejected. State v. Sumler, supra . The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Billizone , 16-478 (La. App. 5 Cir. 12/14/16), 215 So.3d 360.

In State v. Craig , 340 So.2d 191 (La. 1976), the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional, and that the appropriate remedy to correct an illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense. However, in State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939, the Louisiana Supreme Court took a different approach. In Shaffer , in consolidated writ applications, three defendants sought relief from their life sentences following their convictions for aggravated rape committed while juveniles after the United States Supreme Court held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Louisiana Supreme Court rejected the defendants' argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in State v. Craig, supra . Instead of remanding the cases for resentencing, the court amended the defendants' life sentences to delete the restriction on parole eligibility. State v. Shaffer , 77 So.3d at 942-3.

Further, this Court, along with several other circuits, has rejected the claim that juvenile homicide defendants should be sentenced under the manslaughter statute. See State v. Williams , 50,060 (La. App. 2 Cir. 09/30/15), 178 So.3d 1069, writ denied , 15-2048 (La. 11/15/16), 209 So.3d 790 ;

State v. Williams , 15-0866 (La. App. 4 Cir. 01/20/16), 186 So.3d 242, writ denied , 16-0332 (La. 03/31/17), 217 So.3d 358 ; State v. Jones , 15-157 (La. App. 5 Cir. 09/23/15), 176 So.3d 713 ; State v. Graham , 14-1769 (La. App. 1 Cir. 04/24/15), 171 So.3d 272, writ denied , 15-1028 (La. 04/08/16), 191 So.3d 583.

Article I § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790 ; State ex rel. Olivieri v. State , 00-0172 (La. 02/21/01), 779 So.2d 735, cert. denied , 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).

In response to Miller , the Louisiana legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013. In State v. Montgomery , supra , the Louisiana Supreme Court held that courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller , as in the instant case. Since Looney's original life sentence was imposed without the benefit of parole, his penalty was lessened by application of La. R.S. 15:574.4(E), which allowed him to be considered for release on parole after serving 35 years of his sentence. La. R.S. 15:574.4(E) did not redefine criminal conduct or increase the penalty which defendant faced. Therefore, the trial court did not violate defendant's right to due process or fair notice or the prohibition against ex post facto laws when it subjected Looney to the parole consideration guidelines in La. R.S. 15:574.4(E).

The trial court properly utilized La. R.S. 14:30 and La. C. Cr. P. art. 878.1 when resentencing Looney and Looney is not entitled to be resentenced to the next lesser included offense of manslaughter. The legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants, which are to be read in conjunction with the murder statutes. Contrary to Looney's claim that he has no right to parole under La. R.S. 15:574.4(E), in State v. Doise , supra , the court explained that mere access to the parole board for consideration of parole satisfies the requirements of Miller.

To the extent Looney argues that he was entitled to a hearing and the imposition of an individualized sentence, Miller did not impose such a requirement in cases where parole eligibility was permitted. In Miller , the supreme court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life or its equivalent, without parole. See Miller , supra , 132 S.Ct. at 2463-69. The sole question to be answered in a Miller hearing is whether the defendant is eligible for parole. State v. Montgomery , supra at 610, (Crichton, J. concurring). The trial court did not err in denying Looney's motion to reconsider sentence and these assignments of error are without merit.

CONCLUSION

For the foregoing reasons, defendant's sentence is affirmed.


source: Caselaw Access Project

author: GASKINS (Pro Tempore ), J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Navarius SIMON, Appellant
    No. 51,778-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    MICHAEL JOHN VERGIS, Counsel for Appellant
    GARY V. EVANS, District Attorney, Counsel for Appellee
    KENNETH PATRICK HAINES, CLOYCE CLARK, III, Assistant District Attorneys
    Before COX, BLEICH (Ad Hoc ), and GASKINS (Pro Tempore ), JJ.
   GASKINS (Pro Tempore ), J.

Following a jury trial, the defendant, Navarius Simon, was found guilty as charged of possession of marijuana with intent to distribute. Simon was sentenced to imprisonment at hard labor for 20 years, to run consecutively with his prior sentences for two drug offenses. Simon appeals his conviction and sentence. We affirm both.

FACTS

On June 8, 2016, Donna Richardson, Simon's parole officer, paid a visit to Simon's home, located at 400 Topeka Street in Mansfield, Louisiana. Richardson testified that when she pulled up to the home, Simon, who was outside washing his carport, noticed her and began walking into the house. Richardson asked him to stop, but when he continued, she followed him into the home. They immediately stopped in the kitchen area, where she noticed what appeared to be a small amount of loose marijuana on the kitchen table, along with some sandwich bags. After she asked Simon what the substance was, he admitted that it was indeed marijuana. Later, when she asked Simon why he had not stopped, he answered that he knew the marijuana was on the table.

Richardson placed Simon under arrest and called for backup to search the house because Sharice Powell, Simon's girlfriend; Terrance Lane, his cousin; and Khadijah Cotton, Lane's girlfriend, were also present. Law enforcement officers, including Sgt. Justin Taylor and Lt. Chato Atkins, both with the Desoto Parish Sheriff's Office, responded. Taylor was a narcotics investigator, and Atkins was a supervisor of the narcotics agents.

Richardson searched Simon's bedroom, where she found loose money on a dresser. Under his bed, the officers found two boxes full of money in sandwich bags. The money, which totaled approximately $7,000, was mostly in small bills, separated by denomination into bags.

Next to Simon's bedroom was his cousin's bedroom. A red first aid bag containing marijuana was found inside a dresser drawer in this bedroom. On the bedroom floor was a Crown Royal bag, also containing marijuana. Some of the marijuana had been packaged into little plastic bags.

During the search of the home, the officer also discovered 1.2 pounds of marijuana in a shopping bag atop clothes in a laundry basket in front of a washer or dryer that was located in the combined laundry/kitchen area of the house.

Powell, Lane, and Cotton were arrested with Simon. All four were charged with possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1).

Officer Richardson, Lt. Atkins, and Sgt. Taylor testified at trial about what took place at Simon's home on the date of his arrest. The officers also identified exhibits containing the marijuana found on the kitchen table, the first aid bag, the Crown Royal bag, the plastic bags that contained the cash found under Simon's bed, the 1.2 pounds of marijuana found in the laundry basket, and the sample of marijuana sent to the lab for testing.

Officer Atkins testified that Simon reported he was not employed. The marijuana and the large amount of cash found in the house led Atkins to believe that Simon was selling marijuana.

Alanna Brauer, a forensic chemist with the North Louisiana Crime Lab, was accepted as an expert in forensic chemistry. She testified that the samples from the drugs recovered from Simon's house tested positive for marijuana.

Carl Townley was tendered and accepted as an expert in narcotics investigation, packaging, use and sales, and simple possession versus possession with intent to distribute. Townley retired from the Caddo Parish Sheriff's Office after 32 years, with 27 years served in the narcotics division and in the street level interdiction unit. Townley testified that certain elements serve as indicators of whether someone is a drug user or a drug seller, including the drug packaging, the amount of drugs, the amount and denomination of currency found, and the presence or absence of personal smoking paraphernalia.

Having reviewed the police reports, Townley noted that officers searching Simon's home found a total of 694 grams, or approximately 1.5 pounds of marijuana, some of it separated into sandwich bags, and over $7,000 in small bills, separated into sandwich bags. The officers did not find any smoking devices that would indicate the marijuana was for personal use.

In Townley's opinion, a normal user would smoke one-half to one gram of marijuana a day, whereas a heavy user might smoke up to three grams. Based on these figures, Townley believed that the amount of marijuana recovered from Simon's home would last a normal user for two years. However, Townley commented that due to the limited shelf life of marijuana, it would dry out and would lose its potency if stored in plastic bags.

Townley agreed that the small amount of marijuana found on the kitchen table, by itself, might be for personal use. However, in Townley's expert opinion, the total amount of marijuana and cash found indicated that the marijuana was intended for sale rather than just personal use. Townley also testified that it was not uncommon to find multiple persons selling marijuana from one location. Townley further explained that it was not uncommon for officers to find that the marijuana was kept separate from the cash, and that this setup could indicate distribution. Townley estimated that the retail value of the marijuana was $10 per gram, or almost $7,000 for the total amount.

After the state rested, the defense called Terrance Lane, Smith's cousin. Lane testified that he also lived at 400 Topeka Street, and he was there on June 8, 2016, with his girlfriend, the defendant, and Simon's girlfriend, Sharice Powell. Lane confirmed that he was awakened around 9:40 a.m. by the officers and that he was handcuffed while they searched the house. He was later arrested and charged with possession of marijuana with intent to distribute. Lane pled guilty and was sentenced to seven years at hard labor, suspended, and four years of supervised probation.

Lane stated that he and Powell purchased over two pounds of marijuana to smoke with friends at a gathering they were planning, that the marijuana belonged to him and Powell, and that Simon knew nothing about the marijuana. Lane said that they did not tell Simon about purchasing the marijuana because he would be mad since Simon was still on parole. Lane testified that he purchased the marijuana from an unknown male who called Lane as he was traveling through the area.

Lane insisted that he did not have any partnership with Simon and that he was not selling the marijuana. When asked about the packages of marijuana found in his room, Lane admitted that he would sell some of the marijuana found in his room if someone was interested.

Lane testified that he knew nothing about the money found in Simon's bedroom and insisted that the money was not proceeds from selling the marijuana. Lane confirmed that he earned money working at a pecan plant and stacking bricks. Lane also testified that Simon did not have a job, but he thought Simon did a little work at the pecan plant.

Sharice Powell was called as a witness on behalf of Simon. She testified that she had been with Simon for three years and that she lived with him at 400 Topeka Street. Powell stated that she had been arrested and charged with possession with intent to distribute. Like Lane, Powell swore that Simon knew nothing about the marijuana that she and Lane purchased to share with friends at a gathering.

Powell testified that she and Lane each contributed $300 to purchase two pounds of marijuana. She insisted that neither she, nor Lane, sold marijuana, and she stated that she worked at McDonald's. Powell testified that the marijuana in the laundry basket was in a shopping bag and was covered with clothes. Powell explained that the money found underneath Simon's bed came from an auto accident settlement and that he used it to loan money to others. Powell denied knowing about the marijuana found in Lane's bedroom.

The jury returned a verdict of guilty as charged of possession with intent to distribute marijuana.

The trial judge ordered a presentence investigation report and scheduled sentencing. Simon appeared for sentencing on April 6, 2017. The trial judge confirmed that both sides had reviewed the PSI report and had no objections.

The trial judge noted that the instant conviction is Simon's third conviction for possession with intent to distribute, with the first conviction in 2006 and the second in 2007. Simon was still on probation for the 2006 conviction when he committed the second offense in 2007 and his probation was revoked. Simon had been released on good-time parole supervision on February 14, 2013, for the drug convictions. The trial judge further observed that Simon was arrested in 2013 for unlawful presence of a sex offender and was sentenced to 120 days in parish jail. The trial judge noted that Simon was still on parole at the time he committed the instant offense.

The trial judge informed Simon that he faced a potential sentencing range of 5-30 years at hard labor. Having considered Simon's criminal history, the trial judge found that Simon had no intention of changing his criminal ways. Simon was sentenced to 20 years at hard labor, to run consecutively to his remaining sentences for the two prior drug convictions. Simon was given credit for time served and advised that he had two years from the date his conviction and sentence were final to seek post-conviction relief.

Simon, who did not file a motion to reconsider sentence, appealed his conviction and sentence.

DISCUSSION

Sufficiency of the evidence

Simon contends in his first assignment of error that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of possession of marijuana with intent to distribute.

Simon asserts that the state failed to prove that he was in actual or constructive possession of the marijuana because there was no evidence showing that he knew about any more than the small amount of marijuana found on the kitchen table, an amount consistent with personal use and not distribution. Simon points out that the state failed to show that he had dominion and control over the marijuana in the laundry basket or in Lane's room, or that he had actual knowledge of the marijuana in those locations.

Simon argues that both Lane and Powell admitted that they purchased the marijuana found in the laundry basket and in Lane's room, and that they did not tell Simon about it. Simon further maintains that, at most, he is guilty of only possession of the small amount of marijuana on the kitchen table. Accordingly, Simon contends that the evidence presented at trial was only sufficient to show that he possessed a small amount of marijuana and a large amount of cash, but insufficient to show that he was selling marijuana. Simon echoes Lane and Powell's assertions that the cash was from a settlement regarding an auto accident, even though he presented no evidence of this at trial.

The state argues that Simon demonstrated guilty knowledge by running back inside the house when his parole officer appeared and admitting that he did so because he knew the marijuana was on the kitchen table. The state contends that Simon had actual and constructive knowledge of the evidence of distribution because all of the marijuana was found in areas of his home where he had direct access-the kitchen, the laundry area, and the bedroom immediately adjacent to Simon's room. Furthermore, Simon had no job, yet he had approximately $7,000 in small bills stored in separate sandwich bags under his bed. The state asserts that the circumstantial evidence indicated that Simon was selling marijuana, and it was not for personal use, in light of the large amount found, some of which was individually packaged; the large amount of cash, also individually packaged; and the absence of personal use devices. Finally, the state maintains that the verdict suggests that the jury did not find Lane and Powell to be credible witnesses. The state argues, therefore, that the evidence was sufficient to support a conviction for possession of marijuana with intent to distribute.

In a reply brief, Simon contends that the state failed to provide direct evidence that he knew of the marijuana in the house other than the amount on the kitchen table, and absent that direct evidence, the issue of his knowledge about the other marijuana was not a credibility issue to be determined by the jury. Simon argues that the issue of whether he had constructive knowledge does not involve the weighing of evidence or a credibility determination.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921. 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 jury'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 , 2009-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed. 2d 1068 (2010) ; State v. Hill , 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied , 2007-1209 (La. 12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Id. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 2012-2658 (La. 5/17/13), 117 So.3d 918. The trier of fact is charged with weighing the credibility of this evidence, and on review, the Jackson standard is applied, giving great deference to the fact finder's conclusions. State v. Hill , 47,568 (La. App. 2 Cir. 9/26/12), 106 So.3d 617.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 2012-2667 (La. 5/24/13), 116 So.3d 659 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/6/09), 21 So.3d 299. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

La. R.S. 40:966(A)(1) provides that it is unlawful for a person to possess with intent to distribute a controlled dangerous substance or controlled substance analogue classified in Schedule I, which includes marijuana.

To convict a defendant of possession of a controlled dangerous substance with intent to distribute, the state must prove beyond a reasonable doubt that he knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. State v. Howard , 49,965 (La.App. 2 Cir. 6/24/15), 169 So.3d 777, aff'd , 2015-1404 (La. 5/3/17), 226 So.3d 419 ; State v. Williams , 47,574 (La.App. 2d Cir. 11/14/12), 107 So.3d 763, writ denied , 2013-0079 (La. 6/14/13), 118 So.3d 1080.

Intent to distribute a controlled dangerous substance is a specific intent crime. State v. Credeur , 11-234 (La. App. 3 Cir. 11/23/11), 81 So.3d 741. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Thornton , 47,598 (La. App. 2 Cir. 3/13/13), 111 So.3d 1130. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant's possession which give rise to reasonable inferences of intent to distribute. State v. Holden , 45,038 (La. App. 2 Cir. 1/27/10), 30 So.3d 1053, writ denied , 2010-0491 (La. 9/24/10), 45 So.3d 1072.

The state need not prove the defendant actually possessed the drugs, as evidence of constructive possession is sufficient. State v. Howard, supra ; State v. Holden, supra . Constructive possession is established by evidence that the drugs were within the defendant's dominion and control and that the defendant had knowledge of their presence. Id. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge can be inferred from the circumstances. State v. Toups , 2001-1875 (La. 10/15/02), 833 So.2d 910 ; State v. Anderson , 36,969 (La. App. 2 Cir. 4/9/03), 842 So.2d 1222.

Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include the defendant's knowledge that drugs were in the area, the defendant's relationship with other persons found in actual possession, the defendant's access to the area where the drugs were found, evidence of drug paraphernalia or of recent drug use, and the defendant's physical proximity to the drugs. See, State v. Howard, supra ; State v. Toups, supra ; State v. Anderson, supra.

Five factors have been identified as useful in determining whether circumstantial evidence is sufficient to prove intent to distribute a controlled dangerous substance. The factors include: (1) whether the defendant ever distributed or attempted to distribute the controlled dangerous substances; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant's possession is inconsistent with personal use; and (5) whether there were any paraphernalia, such as sandwich bags or scales, evidencing an intent to distribute. State v. Cummings , 46,038 (La. App. 2 Cir. 1/26/11), 57 So.3d 499, writ denied , 2011-0341 (La. 6/17/11), 63 So.3d 1037. Mere possession of contraband does not amount to evidence of intent to distribute unless the quantity is so large that no other inference is possible. State v. Holden , supra . The amount of drugs may be a relevant factor, but regardless of the amount, intent to distribute must still be proven. State v. Howard , 2015-1404 (La. 5/3/17), 226 So.3d 419 ; State v. Ellis , 2014-1511, (La. 10/14/15), 179 So.3d 586.

In State v. Howard, supra , this Court and the state supreme court upheld Howard's conviction for possession of marijuana with intent to distribute. In a bedroom where Howard was lying in bed, officers found four bags containing a total of 11 grams of marijuana in a larger bag tied around the waistband of Howard's boxer shorts that were on the bedroom floor. Also found in the bedroom or its closet were another bag containing 7 grams of marijuana, a box of plastic sandwich bags, some jeweler's bags, a gun, and an empty prescription bottle. Howard told the police that the marijuana belonged to him for personal use. No cash was found, but no smoking paraphernalia or devices, indicating the marijuana was intended for personal use, were found either.

Simon's parole officer and the assisting law enforcement officers found a total of 694 grams of marijuana in Simon's house, with some on Simon's kitchen table, some in a laundry basket in Simon's kitchen/laundry area, and the rest in two bags located in Lane's bedroom. Simon admitted to his parole officer that he knew there was marijuana in the house, and Simon had access to all rooms containing the marijuana. The evidence was sufficient to infer that Simon had dominion and control over the marijuana, given Simon's physical proximity and access to the drugs.

Consistent with the distribution of drugs, a large amount of marijuana, some of it individually packaged in plastic sandwich bags, was found in Simon's house. Also consistent with the distribution of drugs, a large amount of cash in small denominations, separated into plastic sandwich bags, was found under Simon's bed. In addition, Simon reported that he did not have a job or steady source of income to account for that money. The officers did not find evidence of personal use paraphernalia or devices that would indicate that the 694 grams of marijuana was for personal use. The state's expert, Townley, testified that this amount would be equivalent to two years' worth of marijuana for a normal user and one year's worth for a heavy user, except that the marijuana would spoil in the manner in which it was found packaged. Townley testified that these factors indicated the marijuana was for distribution rather than personal use. Townley also estimated that the marijuana had a retail value of almost $7,000. In light of the amount of marijuana and cash found, and the packaging consistent with distribution, the evidence was sufficient to infer that Simon had intent to distribute the marijuana.

Lane and Powell, two of Simon's co-perpetrators who were also charged with possession with intent to distribute, testified that the marijuana belonged only to them for their personal use, sharing with friends, and occasional sales. Without much elaboration, Powell offered that the cash hidden under Simon's bed was the proceeds from an auto accident. Powell stated that she and Lane each contributed $300 to purchase the marijuana. Even allowing for a lower price for marijuana purchased in bulk instead of by the gram, it is difficult to believe that two pounds of marijuana could be obtained for $600. While Lane and Powell insisted that Simon knew nothing about any of the marijuana, the verdict indicates that the jury did not find their testimony to be credible.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude that all elements of the charge of possession of marijuana with intent to distribute were proven beyond a reasonable doubt. Simon's assignment of error regarding the sufficiency of the evidence is without merit.

Batson challenge

Simon contends in his second assignment of error that the trial court's determination that the defendant failed to make a prima facie showing of a Batson violation was error.

Trial in this matter began on January 23, 2017, with jury selection by the state and the defendant's appointed counsel. Four panels of 12 prospective jurors each were brought before the court.

The first panel was composed of three African-American prospective jurors and nine Caucasian prospective jurors. Neither side made any challenges for cause. The state made four peremptory challenges, three of which were against African-American potential jurors, while the defense peremptorily challenged three Caucasian potential jurors. From the first panel, five Caucasian jurors were empaneled on the jury.

The second panel was composed of five African-American prospective jurors and seven Caucasian prospective jurors. The state challenged five potential jurors for cause; three of these potential jurors were African-American. The defense objected to three of the challenges for cause, but withdrew one of these objections. Four of the five challenges for cause were granted. The defense made no challenges for cause. The state raised one peremptory challenge, against the same African-American prospective juror who was not excused for cause. The defense peremptorily challenged two persons for cause, both Caucasian.

At this point, the defense objected and claimed a Batson violation. The defense argued that out of the five peremptory challenges that the state had so far exercised, four of them were for African-American jurors, and that the state had peremptorily excluded all three African-American persons on the first panel. The trial judge stated that he would review the issue from the perspective of the state of the jury panel at that time, which showed 10 jurors seated so far, and two of the jurors were African-American. The trial court found that there was no established pattern showing that the state had systemically used its peremptory challenges to exclude African-Americans from the jury.

From the second panel, two African-Americans and three Caucasians were empaneled on the jury. After the second panel, the jury was composed of two African-Americans and eight Caucasians. The state had exercised a total of five peremptory challenges, four of which were against African-American potential jurors.

The third panel was composed of three African-American potential jurors and nine Caucasian potential jurors. One Caucasian prospective juror was excused by the judge. The state challenged two prospective jurors for cause: one African-American and one Caucasian. The defense did not object to either challenge for cause, and both were granted. The defense did not challenge anyone for cause. The state peremptorily challenged one potential Caucasian juror, while the defense peremptorily challenged four potential Caucasian jurors.

Next, the state made two backstrikes, peremptorily challenging one African-American potential juror and one Caucasian potential juror. The defense made one backstrike, peremptorily challenging one Caucasian potential juror. The only person added to the jury from the third panel was an African-American juror. The defense raised a second Batson violation claim. The trial judge observed that there was no pattern of exclusion because three African-Americans jurors had been empaneled on the jury at that point. The defendant's attorney stated that he did not want to argue, and asked that the court simply note his objection.

After the third panel, the jury was composed of three African-American jurors and eight Caucasian jurors. The state had exercised a total of eight peremptory challenges, five of which had been used to exclude African-American prospective jurors from the panel.

The fourth panel was composed of seven African-American prospective jurors and five Caucasian prospective jurors. However, one potential juror did not appear for jury duty, while another potential juror arrived late and fell asleep. The state challenged four prospective jurors, all of whom were African-American, for cause. The defense did not object to any of these challenges for cause, and all were granted. The defense raised no challenges for cause. The state made no peremptory challenges, while the defense peremptorily challenged one Caucasian potential juror. This left three African-American potential jurors and four Caucasian potential jurors. The next potential juror on the list was empaneled to the jury, bringing the total to 12, with three African-American jurors and nine Caucasian jurors. The court proceeded with selection of an alternate juror, who was Caucasian.

Simon argues that a prima facie showing of a Batson violation was made when the state peremptorily challenged all three of the African-American potential jurors from the first panel and another African-American potential juror from the second panel. In other words, from two panels, four of the five peremptory challenges raised by the state were used to exclude African-American prospective jurors. Simon's attorney raised a second challenge after a fifth African-American potential juror was excluded during the third panel but then decided not to argue the objection. Simon contends that the issue is whether the state excluded any of these jurors on the basis of race and that the trial court erred in overruling his Batson challenge on grounds that not all African-American prospective jurors were excluded from the jury.

The state contends that the issue is whether the defendant successfully proved that the state's exercise of its peremptory challenges demonstrated a pattern of purposeful discrimination against African-American jurors. The state argues that the trial court was correct in concluding that there was no prima facie showing because the defendant failed to demonstrate that the state established a pattern of using its peremptory challenges to purposefully exclude African-Americans from the jury.

An exercise by the state of its peremptory strikes to remove potential jurors from the venire panel solely on the basis of race or gender violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky , supra. Batson was codified in La. C.Cr.P. art. 795.

In State v. Crawford , 2014-2153, pp. 27-28 (La. 11/16/16), 218 So.3d 13, 30, our supreme court discussed the Batson analysis:

Batson and its progeny from this court provide a three-step process to guide courts in evaluating a claim of racial discrimination in the voir dire process:
(1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;
(2) if the requisite showing has been made, the prosecution "must demonstrate that 'permissible racially neutral selection criteria and procedures have produced the monochromatic result;' " and
(3) in light of the parties' submissions, the trial court must determine if the "defendant has established purposeful discrimination."
The burden of persuasion never shifts from the opponent of the strike. However, after the opponent of the strike establishes a prima facie case of racial discrimination, the burden of production shifts to the proponent of the strike to articulate race-neutral reasons for its use of peremptory challenges. Not until steps one and two of the Batson test have been satisfied is the trial court's duty under step three triggered.

Citations omitted.

A violation of a prospective juror's equal protection rights under Batson is proven by evidence of a racially discriminatory purpose, not a racially discriminatory result. State v. Dorsey , 2010-0216 (La. 9/7/11), 74 So.3d 603, cert. denied , 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012) ; State v. Green , 94-0887 (La. 5/22/95), 655 So.2d 272. Thus, the sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. State v. Dorsey, supra ; State v. Green, supra .

To establish a prima facie case, the objecting party must show: (1) the striking party's challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the peremptory challenge was used to strike the venireperson on account of his or her being a member of that cognizable group. If the trial court determines the opponent failed to establish the threshold requirement of a prima facie case (step one), then the analysis is at an end and the burden never shifts to the proponent of the strike to articulate neutral reasons (step two). State v. Nelson , 2010-1724 (La. 3/13/12), 85 So.3d 21.

Regarding the approach to determine whether the defendant has made a prima facie case, our supreme court has stated:

The defendant may offer any facts relevant to the question of the prosecutor's discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

State v. Green , 94-0887 at p. 24, 655 So.2d at 288.

No formula exists for determining whether the defense has established a prima facie case of purposeful racial discrimination. State v. Berry , 51,213 (La.App. 2 Cir. 5/17/17), 221 So.3d 967.A trial judge may take into account not only whether a pattern of strikes against African-American venirepersons has emerged during voir dire , but also whether the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. State v. Jacobs , 1999-0991 (La. 5/15/01), 803 So.2d 933, cert. denied , 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002).

Simon is African-American. However, the mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence to lead to an inference of purposeful discrimination. State v. Draughn , 2005-1825 (La. 1/17/07), 950 So.2d 583, cert. denied , 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). In Draughn , the state's exercise of peremptory challenges to exclude four African-American potential jurors, by itself, was considered insufficient to support a prima facie finding under Batson .

Bare statistics alone are insufficient to support a prima facie case of discrimination. State v. Dorsey, supra . The determination of whether a prima facie case was established is fact-intensive, and per se rules regarding numbers are inconsistent with Batson , which requires consideration of all relevant circumstances. State v. Duncan , 99-2615 (La. 10/16/01), 802 So.2d 533. The defendant must present facts, not just numbers alone, in the attempt to establish a prima facie case. Id.

In Duncan , the defendant claimed that the state's use of five of its eight peremptory challenges to exclude African-American potential jurors violated Batson , but the Louisiana Supreme Court held that the defendant's reliance on bare statistics in an attempt to establish a prima facie case was misplaced. While the supreme court in Duncan recognized that the mere presence of African-Americans on the jury did not bar a finding of a prima facie case of discriminatory intent, it also noted that the fact that the state did not exclude all African-Americans from the jury may be considered in the determination of whether a prima facie case existed.

In State v. Dorsey, supra , the defendant claimed that the state's peremptory challenge to five of the eight African-American prospective jurors was a Batson violation. The trial court denied the objection, finding no systematic pattern of exclusion based on race. The Louisiana Supreme Court held that the defendant's reliance on statistics alone did not support a prima facie case of racial discrimination. The court noted that while there was a disparity in the state's use of its peremptory challenges, the defendant failed to present any facts to support a prima facie case of purposeful discrimination.

The trial court plays a unique role in the dynamics of voir dire , for it is the court that observes firsthand the demeanor of the attorneys and the venirepersons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. See State v. Jones , 42,531 (La.App. 2 Cir. 11/7/07), 968 So.2d 1247. The trial court's determination that the defense has failed to set forth a prima facie case of purposeful discrimination merits great deference on appeal. State v. Berry , supra ; State v. Tucker , 591 So.2d 1208 (La.App. 2 Cir. 1991), writ denied , 594 So.2d 1317 (La. 1992).

Simon's initial Batson challenge was based solely on the ground that four of five peremptory challenges exercised by the state during the first two panels were used to strike African-American potential jurors. The first factor to establish a prima facie case was clearly met, as those four potential jurors were African-American. Regarding the second factor to establish a prima facie case, the first three African-American potential jurors were only peremptorily challenged, and the fourth was struck by peremptory challenge after the trial court denied the state's challenge for cause. Simon's attorney made a second Batson objection after the state's fifth peremptory challenge of an African-American prospective juror. However, Simon's attorney then elected not to argue it, thereby abandoning the objection and the defendant's burden to show a prima facie case of purposeful discrimination as to that peremptory challenge.

Simon presented no argument or facts to establish the prosecution's discriminatory intent other than the number of peremptory strikes made. Simon presented no facts regarding the prosecutor's statements or actions, and there was no comparison of the prosecutor's statements, questions, or comments toward the African-American and Caucasian potential jurors to establish that the prosecutor exercised his peremptory challenges with a discriminatory intent. Based on this scant argument and considering the state's use of four out of five peremptory challenges to strike African-American potential jurors and that two African-American jurors were already selected for the jury at that time, the trial judge found no systematic pattern of discriminatory intent.

From our review of each peremptory challenge by the prosecution, the responses of the jurors who were peremptorily struck, and the prosecutors' statements, questions, and comments during voir dire , we do not discern any inference of a race-based use of peremptory challenges by the prosecution:

• An African-American female on the first panel knew a couple of Simon's family members, and she also thought recreational use of marijuana should be legalized.
• Another African-American female on the first panel had an incident involving a fight with her sister, but was not arrested. She admitted that she sometimes holds ill will against law enforcement.
• An African-American male on the first panel had been arrested for rape; the charges were ultimately dismissed.
• A Caucasian female on the first panel had been convicted of a crime but it was expunged. She thought marijuana should be legalized for recreational use.
• An African-American male on the second panel had been accused of crimes in the past, although he had never been convicted. He was also very interested in the potential economic impact of the legalization of marijuana, and considered moving to California to study the industry.
• A Caucasian male on the third panel thought marijuana should be legalized for medicinal purposes, and his grandfather had a prescription for medical marijuana to treat Parkinson's disease.
• An African-American male on the third panel knew Simon's family and would see them "out and about," but he didn't know the defendant personally. He also had a cousin convicted of possession of crack cocaine in Desoto Parish six years earlier, and thought marijuana should be legalized for medical and recreational purposes.
• A Caucasian male on the third panel was hearing impaired and was given a hearing device during voir dire to help him. He also had difficulty comprehending an analogy used by the prosecutor, and at one point during questioning, the trial judge asked the prosecutor if he wanted the judge to help him out.

In conclusion, recognizing the deference owed to the trial court, the defendant's reliance on statistical data alone, the voir dire responses of the potential jurors peremptorily challenged by the state, and the fact that three African-Americans were on the jury despite the state not exhausting all of its peremptory challenges, we conclude that the trial court's determination that Simon failed to establish a prima facie case of racial discrimination was not an abuse of discretion. Accordingly, this assignment of error is without merit.

Excessive sentence

In his third assignment of error, Simon contends that the trial court erred by imposing a constitutionally harsh and excessive sentence. Simon argues that the imposed sentence of 20 years at hard labor, run consecutively to his other sentences, was a needless imposition of pain and suffering.

The state argues that Simon's 20-year sentence fell within the statutory guidelines of 5-30 years. The state argues that the sentence was not constitutionally excessive where Simon had two prior convictions for drug distribution offenses, showing a history of drug sales and a history of parole/probation violations.

When a defendant fails to file a motion to reconsider sentence pursuant to La. C. Cr. P. art. 881.1, the appellate court's review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Boyd , 46,321 (La. App. 2 Cir. 9/21/11), 72 So.3d 952. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Livingston , 39,390 (La. App. 2d Cir. 4/6/05), 899 So.2d 733 ; State v. White , 37,815 (La. App. 2 Cir. 12/17/03), 862 So.2d 1123.

A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La.App. 2 Cir. 12/14/11), 81 So.3d 228.

La. R.S. 40:966(B)(3), at the time the offense was committed on June 8, 2016, provided that the penalty for possessing marijuana with the intent to distribute was imprisonment at hard labor for 5-30 years, and a fine of not more than $50,000.

Courts have upheld sentences for possession of marijuana with intent to distribute that imposed terms ranging from 10 to 30 years. In State v. Traylor , 40,627 (La. App. 2 Cir. 3/8/06), 923 So.2d 947, this Court upheld a 15-year sentence for possession of 161.5 grams of marijuana with intent to distribute, where the defendant had a significant history of criminal activity and had four prior felony convictions. In State v. Purvis , 51,215 (La. App. 2 Cir. 4/5/17), 217 So.3d 620, this Court upheld a 15-year sentence for possession of 28 grams of marijuana with intent to distribute where the defendant, although remorseful for his conduct, had prior convictions for illegal use of a weapon, attempted possession with intent to distribute, and illegal use of a firearm. See also, 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, where this Court upheld two 10-year sentences for distribution of marijuana, run concurrently with each other, but consecutively to the defendant's prior sentences.

In State v. Brown , 03-581 (La. App. 5 Cir. 11/12/03), 861 So.2d 644, writs denied , 2003-3407 (La. 4/2/04), 869 So.2d 875, and 2004-0049 (La. 4/2/04), 869 So.2d 877, the defendant received a maximum 30-year sentence for possession of 1,578 grams of marijuana with intent to distribute that was to be served concurrently with a mandatory minimum 30-year sentence for possession of cocaine in excess of 400 grams. Brown had been convicted of both crimes at the same trial. Upholding the sentence for the marijuana-based conviction, the Fifth Circuit noted the large amount of marijuana found, the defendant's prior drug arrests, and a separate drug possession conviction between the dates of conviction and sentencing.

The 20-year imposed sentence falls within the statutory guidelines and is not the maximum sentence. The trial judge considered the circumstances of the instant crime, where law enforcement officers found over one pound of marijuana and over $7,000 in cash in Simon's home, and Simon admitted to his parole officer that he ignored her directive to stop because he knew there was marijuana in his house. The trial judge also considered Simon's criminal history, which shows he has at least three prior felony convictions, two of which were for possession with the intent to distribute, and a history of violating his parole/probation. The trial judge concluded that Simon had demonstrated that he had no intention of being rehabilitated despite prior attempts to afford him that opportunity and leniency in sentencing. Simon showed no remorse or responsibility for his actions. Given the circumstances in Simon's case, the 20-year imposed sentence does not shock the sense of justice and is not constitutionally excessive.

CONCLUSION

For the foregoing reasons, Navarius Simon's conviction and sentence are AFFIRMED.

      Lane testified that he had packaged the marijuana in the Crown Royal bag in case anyone wanted to purchase some. There were apparently at least 12 Baggies of marijuana in the Crown Royal bag.

      The record reveals that the state challenged him for cause on the grounds that he believed marijuana should be legalized, he could not judge another person, and he could not say that he could render a verdict to convict. The defense objected. The trial court denied the challenge for cause, finding that this prospective juror, who was African-American, had been "rehabilitated" during the defense's voir dire questions.

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      The 30-year sentence for the cocaine possession was also upheld.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Ashley Nicole HEINS, Appellant
    No. 51,763-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, Counsel for Appellant
    JAMES. E. STEWART, SR., District Attorney, HOLLY Y. McGINNESS, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and COX, JJ.
   MOORE, J.

Ashley Nicole Heins pled guilty as charged to vehicular homicide and received a sentence of 25 years at hard labor, including three years without benefits. She now appeals her sentence as excessive. We find no excessiveness, but vacate and remand the sentence for compliance with La. R.S. 14:32.1B.

Shortly after 3:00 pm on August 18, 2015, Heins was driving a 2003 Kia Optima north in the inside southbound lane of Linwood Avenue in Shreveport. Near the intersection with West 83rd Street, she collided head-on with a Suzuki motorcycle that was riding south, properly in the inside southbound lane of Linwood. Police responded to this major crash and found the cyclist, 55-year-old Franklin Jacobs, lying on the ground, unconscious and with massive injuries. He was taken to University Health, where doctors were unable to restore his consciousness; several days later, his family took him off life support.

Heins told an officer at the scene that she did not know what happened: "the motorcycle came out of nowhere and appeared in front of" her car. She also said she was on her way to rehab, and had taken four Klonopin, a tranquilizer; the officer felt that her condition contributed to the accident. (He also found that Heins had no insurance or valid driver's license, and that the Kia had switched tags.) A police corporal officer gave her her Miranda rights, and she admitted having taken Klonopin, Latuda (an antipsychotic) and Flexeril (a muscle relaxer); she repeatedly fell asleep in the patrol car, while talking to officers, and while submitting to a blood test. Officers later talked to witnesses who had seen Heins driving erratically just before this accident-swerving around an 18-wheeler on the Inner Loop and striking a cement guardrail on Linwood.

Heins's toxicology report was positive not only for Klonopin and Flexeril, but for benzodiazepines and Xanax (minor tranquilizers), Tramadol (an opioid pain medication) and Buprenorphine (a drug for treating opioid addiction), all Schedule III CDS.

The state charged Heins by bill of information with vehicular homicide, La. R.S. 14:32.1A(3). She initially pled not guilty, but on March 2, 2016, she appeared before the district court, withdrew her prior plea and pled guilty as charged. There was no agreement as to sentence.

At the hearing, Heins testified that she was 36 years old, had completed 11th grade, had discussed the charge with her attorney, and understood the nature of the proceeding. The court advised her of her Boykin rights, and the prosecutor gave a brief statement of facts, which Heins confirmed as true. The court accepted the guilty plea and ordered a presentence investigation report ("PSI").

At sentencing, in January 2017, the court acknowledged letters from the victim's family members asking that Heins receive the maximum sentence. Heins apologized to family members who were present in the courtroom. The court noted Heins's criminal history, disclosed in the PSI, with prior convictions for hit-and-run, drug offenses and DWI. The court recognized Heins's expression of remorse, but found that she acted under the influence of narcotics and the crime was serious. The court sentenced her to 25 years at hard labor, with three years without benefit of parole, probation or suspension of sentence, and concurrent with any other sentence she may be serving.

Heins filed a motion to reconsider sentence, urging the court to consider her history of addiction, which is recognized as an illness by DSM-5, and the fact that she was seeking help, actually driving to rehab at the time of the accident. She asked the court to impose a lesser sentence, and one that included drug rehab. The court denied the motion; this appeal followed.

By one assignment of error, Heins urges her 25-year sentence is excessive in that the district court failed to consider her addiction to prescription drugs as a mitigating factor to sentencing. She shows that she had prescriptions for most of the drugs in her system (Klonopin, Xanax, Tramadol ), and there was no indication that she obtained any of these illegally. She reiterates that substance abuse disorder is recognized as an illness by DSM-5, she was on her way to treatment at the time of the offense, and she should not be doubly punished for her effort to drive herself to treatment. She submits that she is not a "worst offender." Finally, she urges that the entire nation is swept up in a search for noncriminal solutions to the opioid and prescription drug epidemic, and in this environment it makes no sense to disregard her addiction as a mitigating factor.

As it applies to this case, vehicular homicide is the killing of a human being caused directly by an offender engaged in the operation of a motor vehicle when the operator was under the influence of any CDS listed as a schedule drug in R.S. 40:964. La. R.S. 14:32.1A(3). The penalty for conviction of vehicular homicide is a fine of $2,000 to $15,000, and imprisonment, with or without hard labor, for 5 to 30 years, with at least three years of the imprisonment to be served without benefit of probation, parole or suspension of sentence. La. R.S. 14:32.1B. For an offender with a prior DWI conviction, at least five years of the imprisonment must be without benefits; also, the court must order any offender to participate in a court-approved substance abuse program. Id.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall , 94-0461 (La. 9/5/95), 660 So.2d 819. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato , 603 So.2d 739 (La. 1992). No sentencing factor is accorded greater weight by statute than any other factor. State v. Taves , 2003-0518 (La. 12/3/03), 861 So.2d 144.

The second prong is constitutional excessiveness. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman , 99-1753 (La. 5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7. The issue is not whether some other sentence might have been more appropriate, but whether the district court abused its discretion. Id. ; State v. Presentine , 51,241 (La. App. 2 Cir. 4/5/17), 217 So.3d 590.

Heins's sentence of imprisonment falls within the statutory limits of La. R.S. 14:32.1B and is thus not statutorily excessive. We agree that the district court's recitation of Art. 894.1 factors was not extensive, but find that the overall record exposes no abuse of sentencing discretion. The court stated that it had considered the PSI, which includes the offender's statement, "I'm a drug addict and I need help." The PSI also reports that for an August 2012 guilty plea to DWI, she received a three-month suspended sentence, six months' supervised probation, and an order to attend substance abuse classes; however, she "failed to attend substance abuse class as ordered," and her probation was revoked. In short, the district court was implicitly aware of Heins's addiction.

The PSI also shows a February 2013 guilty plea to attempted distribution of Schedule IV CDS, pled down from two counts of distribution, and a host of arrests involving drug use and impaired driving (October 1997, simple possession of marijuana; March 2007, possession of Schedule II CDS; April 2011, misdemeanor operating a vehicle while intoxicated) and offenses against the person (November 1996, March 1997, March 2006 and August 2010, simple battery; September 2006, second degree battery; March and September 2015, domestic abuse battery) which were either nol prossed or their dispositions could not be found. Again, the district court was surely aware of Heins's ongoing issues with CDS and with harming people.

We agree that Heins's effort to get herself to rehab shows a certain awareness of her problem and could count in mitigation. However, getting behind the wheel after taking four Klonopin with Flexeril, weaving around an 18-wheeler on the Inner Loop, scraping her own car on a guardrail, driving on the wrong side of Linwood, and failing to see an oncoming motorcycle all diminish her commendable pursuit of treatment. Given the gravity of the offense and Heins's frequent brushes with the law for similar offenses, we do not find that the district court abused its discretion. For the same reasons, even in the current climate of seeking noncriminal avenues for treating opioid addiction, we do not find that the sentence shocks the sense of justice or serves merely to inflict pain and suffering.

By reply brief, the state correctly shows that the sentence is illegally lenient as it makes only three years of imprisonment without benefits, instead of "at least five"

for an offender with a prior DWI conviction, and it omits the court-approved substance abuse program, both required under La. R.S. 14:32.1B. The state submits that this court should correct the sentence or remand for the district court to do so.

Certain prior opinions of this court have treated the failure to deny benefits for "at least five" years under La. R.S. 14:32.1B as "automatically corrected" by operation of La. R.S. 15:301.1A and not subject to remand. State v. Shaw , 41,233 (La. App. 2 Cir. 8/23/06), 939 So.2d 519, aff'd , 2006-2467 (La. 11/27/07), 969 So.2d 1233, and citations therein. We have also, in certain opinions, declined to amend or remand for failure to order a court-approved substance abuse program where, as here, the state neither appealed nor formally answered the defendant's appeal. State v. Presentine, supra, and citations therein.

However, both the amount of time to be served without benefits and the selection of the substance abuse program involve the exercise of the district court's discretion. The current consensus of the court, therefore, is that the illegally lenient sentence under La. R.S. 14:32.1B must be vacated and the case remanded for compliance with the statute. State v. Patrick , 51,579 (La. App. 2 Cir. 10/18/17), 244 So.3d 778, 2017 WL 4654907 ; State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596, and citations therein . On remand, the district court may state for the record its reasons for selecting a certain number of years to be served without benefits and for the particular substance abuse program. The defendant retains her right to challenge these portions of the sentence for excessiveness under State v. Dorthey and State v. Guzman , supra.

We have reviewed the entire record and find nothing else we consider to be error patent. La. C. Cr. P. art. 922(2). For the reasons expressed, Ashley Nicole Heins's conviction is affirmed. The sentence is vacated and remanded for resentencing that complies with R.S. 14:32.1B.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


text:
    Larry FULLER, Plaintiff-Appellant v. Leman BISSELL and his Insurer, State Farm Mutual Automobile Insurance Company, Jointly and Insolido, Defendants-Appellees
    No. 51,759-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 10, 2018
    DAVIS LAW OFFICE, LLC By: Kharmen Davis, Counsel for Appellant
    CASTEN & PEARCE, APLC By: Hunter S. Crawford, Theodore J. Casten, Counsel for Appellees
    Before BROWN, MOORE, and PITMAN, JJ.
   MOORE, J.

Larry Fuller appeals a judgment of involuntary dismissal that rejected his claims against Leman Bissell and his insurer, State Farm, for personal injury and property damage arising from an auto accident. We affirm.

FACTUAL BACKGROUND

In the late morning or early afternoon of August 22, 2014, Fuller was exiting the parking lot of the County Market store on Hearne Avenue. He pulled his 1997 Ford truck into the northbound lane of Hearne, where he was struck by a 2010 Chevy Colorado driven by Bissell. The front of Bissell's Colorado ran into the driver's door of Fuller's Ford.

Fuller filed this suit against Bissell and his insurer, State Farm. He alleged that he pulled into Hearne when the traffic was clear, but his truck unexpectedly stalled; stranded in the right-hand northbound lane, he gestured to several other northbound drivers, all of whom safely swerved around him, but Bissell's truck came up fast and broadsided him. He alleged that the impact injured his lower back, caused radiating pain down his left leg, and required two months of treatment with a neurologist and multiple sessions with a physical therapist. He later stipulated that his damages did not exceed $50,000.

State Farm responded that Bissell faced a sudden emergency, as Fuller basically lurched out of the parking lot and into passing traffic; Bissell simply did not have time to avoid the collision.

TRIAL EVIDENCE AND JUDGMENT

The matter came to trial in January 2017. State Farm stipulated that the neurologist's and therapist's records were authentic, and that their treatment was causally related to the accident. The parties also stipulated that there would be no personal judgment against Bissell, if found to be negligent; any judgment would be strictly against State Farm. Fuller offered no documentary evidence or photos.

Fuller called three witnesses. Cpl. Mike Schulz, who investigated the accident, had no independent recollection of it, and had to refer to his report (not introduced in evidence). He said he took no measurements, as both trucks had been moved off the road by the time he arrived; he interviewed both drivers, and neither said he was injured; Fuller said he stalled in the road, but Bissell said that by the time he saw this, it was too late to avoid the accident. Cpl. Schulz issued no citations, but wrote in his report that "Fuller failed to yield right of way," and he felt that Fuller should not have brought his truck on a public highway if it was "not operating properly." He did not write in his report that Fuller said he waved drivers around his stalled truck or that traffic was clear when he pulled into the street. On cross-examination, Cpl. Schulz testified that both trucks were still in the street when he arrived, and that Fuller backed his truck, on its own power (without pushing or towing), into the County Market parking lot.

Bissell, on cross-examination, testified that it was about 1:00 pm on a clear, sunny day, and he was doing about 35-40 mph on Hearne. Coming up to County Market, he saw two vehicles waiting to pull out of the parking lot. The first one came out, crossed the northbound lanes, and stopped in the turning lane, but the second one, Fuller's truck, darted out right behind it, and stopped in the right-hand lane because the turning lane was occupied. Bissell estimated he was only about 10 feet away when Fuller pulled into his path, and he could not avoid the accident. Bissell was emphatic that Fuller was not stalled in the road and was not waving other cars around him; he just pulled "straight out there and stopped." The officer arrived about 15 minutes later, after the trucks had been moved onto the County Market lot, and did not interview him (Bissell); however, he talked to Fuller, and then told Bissell that Fuller "admitted it was his fault." On direct examination, Bissell identified two street-level and one overhead photo of Hearne, in front of County Market, and marked them to show where he was when he saw Fuller pull into the street and where the accident occurred. State Farm offered these photos in evidence.

Fuller testified that the accident actually happened a little after 10:00 am, as he was leaving County Market. He pulled up to the edge of the concrete, and then pulled out, but his engine killed. He tried, unsuccessfully, to restart it. Glancing out his window, he saw some cars coming north on Hearne, so he gestured to them, through his window, to drive around, and a few did so. But then he saw the white Colorado, which actually appeared to speed up. Fuller said he "jumped" into the passenger seat to avoid the impact, but still got thrown around. He insisted his truck had never stalled before, and after the impact he was able to start it and back it into the parking lot. He did not drive it away, however, because the left front wheel was broken. He admitted that he apologized to Bissell, but recalled that the officer spoke to both of them, separately.

On cross-examination, Fuller admitted that he had drawn disability for about 10 years, and was actually drawing it when this accident occurred; he had been in at least three prior auto accidents, at least one of which culminated in a lawsuit; and his driver's license had been revoked for no proof of insurance. He also admitted there was no reason he could not see Bissell's truck before the impact, and insisted this was the only time his Ford ever stalled, even though he kept the truck only about three or four months after this accident.

After this testimony, Fuller rested. State Farm then moved for involuntary dismissal. After argument, the court held it was "just a credibility call," and there were too many inconsistencies in Fuller's testimony, including his disability history, prior accidents, and how often his engine stalled. By contrast, the court found, Bissell was entirely consistent. The court granted involuntary dismissal, rejecting Fuller's claims.

Fuller has appealed devolutively.

APPLICABLE LAW

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. La. C. C. P. art. 1672 B. This motion requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based on a preponderance of the evidence. Taylor v. Tommie's Gaming , 2004-2254 (La. 5/24/05), 902 So.2d 380. Proof by a preponderance means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not. Hebert v. Rapides Parish Police Jury , 2006-2001 (La. 4/11/07), 974 So.2d 635. The plaintiff opposing a motion for involuntary dismissal is entitled to no special inferences in his favor.

Crowell v. City of Alexandria , 558 So.2d 216 (La. 1990). The appellate court will not reverse an involuntary dismissal in the absence of manifest or legal error. Town of Arcadia v. Arcadia Chamber of Commerce , 50,564 (La. App. 2 Cir. 4/13/16), 195 So.3d 23, and citations therein.

Under manifest error review, the trial court's factual findings can be reversed only if the appellate court finds, based on the entire record, no reasonable factual basis for the factual finding and the factfinder is clearly wrong. Baker v. PHC-Minden L.P. , 2014-2243 (La. 5/5/15), 167 So.3d 528. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings. Robinson v. Board of Supervisors , 2016-2145 (La. 6/29/17), 225 So.3d 424, 347 Ed. L. Rep. 1273. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, then the court of appeal may find manifest error or plain wrongness even in a finding based on credibility. But where such factors are not present, and the factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. ; Rosell v. ESCO , 549 So.2d 840 (La. 1989).

DISCUSSION

Fuller has advanced two assignments of error. He concedes that the standard of review is manifest error, but urges that the court was plainly wrong in (1) failing to recognize Bissell's "multiple inconsistent statements" and in (2) not considering that his own vehicle "had already stalled in the roadway" when Bissell's truck approached it.

We have closely reviewed the record and find no basis to disturb the district court's credibility call in favor of Bissell. We must observe that Fuller offered no documentary evidence of any kind to contradict Bissell's account, thus negating one avenue of discrediting his testimony under Rosell v. ESCO , supra. Moreover, the alleged inconsistencies in Bissell's testimony concern peripheral facts that do not detract from the main thrust of his account. Fuller cites certain portions of Cpl. Schulz's testimony: the officer testified he took Bissell's statement at the scene, whereas Bissell said he did not "interview" him; and the officer testified (on cross) that the parties moved their wrecked trucks off the street "a little later," after he arrived, whereas Bissell said they did this before the officer arrived. Notably, Cpl. Schulz admitted having no independent recollection of this accident, and had to testify strictly from reading a report he wrote some 2½ years prior, so it is difficult to find that his testimony refutes Bissell's in any way. Fuller made no attempt to offer the report in evidence, as might have been possible under La. C.E. art. 803(5). Maricle v. Liberty Mut. Ins. Co. , 2004-1149 (La. App. 3 Cir. 3/2/05), 898 So.2d 565.

Fuller also argues that one of the photos offered by State Farm, Ex. D-13, disproves Bissell's testimony that a driver cannot see the accident scene from the stoplight one block down, at Sunnybrook Street. The court stated that it was "very familiar" with the area and that before a northbound driver on Hearne reaches Sunnybrook, "you cannot see around the curve," but after the light "it is a straight shot." The photo provides no basis to reverse the court's decision to credit Bissell's testimony. This assignment lacks merit.

By his second assignment, Fuller urges the court erred in not finding that his truck was stalled in the roadway, and that is the reason it was in the way when Bissell approached. In support, he cites his own testimony, nearly a full page of trial transcript, and Cpl. Schulz's testimony that Fuller told him his truck had stalled. Because he was "disabled" on the highway, La. R.S. 32:141 B, he contends that the oncoming driver owed a duty of proper lookout, Douglas v. West , 10-932 (La. App. 5 Cir. 5/10/11), 65 So.3d 746, but Bissell failed to do so. Fuller submits that the court's conclusion to the contrary is clearly wrong and contrary to the law and the evidence.

The issue is simply whether the district court was plainly wrong to discredit Fuller's claim that he was faultless, only the victim of a stalled truck. Ample record evidence-including Fuller's admission that the truck never stalled before or after this incident-supports the court's decision to disbelieve that it stalled, inopportunely, seconds before Bissell drove by. Moreover, the court cited Fuller's frequency of auto accidents and injury claims, disability claims, and health issues as clouding his overall credibility. The district court did not abuse its discretion in finding that Fuller was not, in fact, a disabled vehicle on the highway and entitled to a special duty of care, under R.S. 32:141 B. The court was entitled to find that Fuller was a driver about to enter or cross a highway from a private road, driveway, alley or building, with the duty to yield the right of way to all approaching vehicles so close as to constitute an immediate hazard, La. R.S. 32:124, and that he breached that duty. We find no abuse of discretion. This assignment lacks merit.

CONCLUSION

For the reasons expressed, the judgment of involuntary dismissal is affirmed. All costs are to be paid by Larry Fuller in accordance with La. C. C. P. art. 5188.

AFFIRMED.

      Fuller also contends that, contrary to Bissell's recollection that the accident happened about 1:00 pm, Cpl. Schulz testified it was about 10:20 am; however, even a cursory review of the transcript shows that the officer never once mentioned a time of day. In other words, the alleged discrepancy is completely without evidentiary support.