author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Juan Rodriguez GARCIA, Appellant.
    No. 44,562-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Juan Rodriguez Garcia, in proper person.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

| iDefendant, Juan Rodriguez Garcia, was convicted at a bench trial of aggravated rape, aggravated kidnapping, and armed robbery. He was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence for the convictions of aggravated rape and aggravated kidnapping and 60 years at hard labor without the benefit of probation, parole, or suspension of sentence for the armed robbery conviction; the sentences were ordered to run concurrently. Defendant was also ordered to register as a sex offender for life. Defendant has appealed his convictions for aggravated rape and aggravated kidnapping. For the reasons set forth below, defendant’s convictions and sentences are affirmed.

Discussion

Sufficiency of the Evidence

Aggravated Rape

According to defendant, there was insufficient evidence to prove the necessary elements of aggravated rape. Specifically, defendant asserts that sexual intercourse was not established because there was no evidence of “penile” penetration and therefore the act was only a “touching” best classified as sexual battery. Defendant also argues that the state failed to prove beyond a reasonable doubt that defendant was the person who assaulted the victim.

La. R.S. 14:42 provides in part that:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
|2(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

La. R.S. 14:41 provides in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct |sevidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,-903 (La.App. 2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

It is not the function of the appellate courts to reevaluate the credibility of witnesses and then proceed to overturn factual determinations of guilt. La. Const. art. 5, § 5(C); State v. Richardson, 425 So.2d 1228 (La.1983); State ex rel. K.M.T., 44,731 (La.App. 2d Cir.08/19/09), 18 So.3d 183; State v. Gullette, 43,032 (La.App. 2d Cir.02/13/08), 975 So.2d 753. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.05/08/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.06/26/98), 719 So.2d 1048. This is equally applicable to the testimony of victims of sexual assault. State ex rel. K.M.T., supra; State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific or | .¡physical evidence to prove the commission of the offense by the defendant. State ex rel. K.M.T., supra; State v. Robinson, supra.

La. R.S. 14:24 defines principals as:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding another. La. R.S. 14:24; State v. Smith, 513 So.2d 438 (La.App. 2d Cir.1987). Under this theory, the defendant need not actually have sexual intercourse with the victim to be found guilty of the crime. State v. Evans, 27,750 (La.App. 2d Cir.02/28/96), 669 So.2d 719, writ denied, 96-0793 (La.06/28/96), 675 So.2d 1119. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). An individual may only be convicted as a principal for those crimes for which he has personally had the requisite mental state, the requisite mental knowledge, the requisite mental intent. State v. Watson, supra.

Having viewed both the direct and circumstantial evidence in the light most favorable to the prosecution, we find that it was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime of aggravated rape.

|fiThe victim and her husband lived in the Towne Oaks Apartments in Shreveport, Louisiana. Just after midnight on September 9, 2006, defendant and his cousin, Alfredo Rodriguez Gonzales, both Mexican nationals working at the complex and living in the apartment below the newlywed victims, knocked on the victims’ door and asked for some water. When the wife unlocked the door, the assailants rushed in armed with a knife. They threatened to kill the victims. They tied the victims up, forced them into the back bedroom, demanded money, and assaulted them before eventually putting them inside a closet.

The female victim testified on direct that she physically resisted the attack, but was unable to resist once she was gagged, had her comforter placed over her head, and had her hands, elbows and feet bound behind her. While she was lying facedown on the ground, defendant pulled her pants down. Defendant got on top of her and she felt something penetrate her in her private area. According to the victim, while defendant was on top of her, he still had the knife at her throat.

During direct examination the victim’s husband stated:

A. They [defendant and his cousin, Alfredo] took us to the bedroom, threw her on the bed and had her tied up; threw me on the floor, hog-tied me, and they began raping her.

He called the attack a rape in the interview taken by the police as well. When asked about specific details, his response was:

A. It was hard for me to tell. I was laying down parallel with the foot of the bed. And all I could, I mean all I could do is look over and see both, oh my God.

IfiSexual Assault Nurse Examiner Chris Philipbar examined the victim shortly after the attack. Ms. Philipbar testified that there were abrasions on the victim’s genitals consistent with penetration. Ms. Phil-ipbar testified on cross-examination that “it may be possible” for these types of abrasions to be inflicted in ways that are not synonymous with sexual assault.

Defendant also argues that the State failed to prove beyond a reasonable doubt that he was the man who sexually assaulted the victim because he testified that he was not the attacker and because the victim’s account of the assault changed, leaving only circumstantial evidence to convict defendant. However, the victim positively identified defendant as the perpetrator of the rape. Even so, the trial court did not have to determine that defendant was the attacker if the evidence supported that he was at least a principal to the attack. Defendant aided and abetted in the commission of the attack by helping to force the newly married victims into the bedroom and tying them up. One attacker beat the husband, giving the other attacker the chance to sexually assault the wife. Defendant had the requisite mental intent even if he was not the attacker who did the sexual assault because he knew his code-fendant had a knife and helped the sexual assault occur, watched it happen, and ensured that it could continue by subduing the husband. Thus, viewing the evidence in the light most favorable to the prosecution, the trial court could have found that defendant was a principal to the attempted aggravated rape.

17Aggravated Kidnapping

According to defendant, a charge of false imprisonment or second degree kidnapping is more appropriate in the instant case than the charge of aggravated kidnapping because the victims were not taken anywhere and there was no attempt to extort something of value in order to secure their release.

La. R.S. 14:44 provided:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The Louisiana Supreme Court has held that the crucial question in determining whether an aggravated kidnapping has occurred is not whether the defendant intended to release the victim at either the outset of the crime or indeed at any point during the crime, but “whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.” State v. Arnold, 548 So.2d 920, 924 (La.1989). Further, proof of intent to extort can be shown by “analyzing whether a reasonable person in the victim’s position would believe that she would not be safely released unless she complied with the [8kidnapper’s demands.” Id.; State v. Hill, 40,023 (La.App. 2d Cir.09/21/05), 911 So.2d 379, 382, writ denied, 06-1476 (La.03/09/07), 949 So.2d 434. Finally, movement of the victims from place to place is not required to find aggravated kidnapping under La. R.S. 14:41(3). State v. Essex, 24,781 (La.App. 2d Cir.05/05/93), 618 So.2d 659; State v. White, 22,946 (La.App. 2d Cir.01/22/92), 593 So.2d 882.

When viewed in the light most favorable to the prosecution, we find that the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of aggravated kidnapping. The state proved all necessary elements of aggravated kidnapping by proving that the victims were imprisoned with the intent to force them to give up something of value to secure their release. The jurisprudence does not require any movement of the victims to take place as imprisonment can constitute aggravated kidnapping. It was not necessary to show that the victims were moved from, or even around, the apartment. The fact that the victims were tied up and locked in a closet is sufficient. The defendant exhibited a specific intent to gain something of value from the victims using their “fear and hope of release” in order to make them comply with his demands. He used a knife to gain power over the victims and then attacked them. During the attack they were repeatedly asked where their money was and these demands were accompanied with both physical beatings and sexual assault. It is reasonable for the victims to have believed that if they could provide defendant with the money he was demanding they would be set free. Both victims testified that had they had money they 19would have given it to the defendant to try to get him to leave the apartment and they believed that defendant stayed as long as he did because they had no money to give him.

The state established each element of aggravated kidnapping, thus, the trial court was reasonable in finding defendant guilty of this charge.

Ineffective Assistance of Counsel

The Vienna Convention on Consular Relations and Optional Protocol on Disputes is a treaty governing the consular relations between its member nations; the United States has been a member since 1969. Article 36 of the Vienna Convention on Consular Relations is the portion which pertains to the instant case and states:

Communication and contact with nationals of the sending State:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
a. consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
b. if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
c. consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal | inrepresentation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Suppression of evidence is not an appropriate remedy for violations of the Vienna Convention. Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006). Article 36 only provides a right for foreign nationals to have their consulate informed of their arrest or detention-not to have them consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention. As noted by the supreme court, in most circumstances, there is likely to be little connection between an Article 36 violation and evidence or statements obtained by police. Sanchez-Llamas, 548 U.S. at 349, 126 S.Ct. at 2681.

Defendants can, however, challenge the voluntariness of their statement and the trial court has the ability to “make appropriate accommodations to ensure the defendant secures, to the extent possible, the benefits of consular assistance.” Sanchez-Llamas, 548 U.S. at 350, 126 S.Ct. at 2682.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or |npromises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App. 2d Cir.08/19/05), 909 So.2d 1038; State v. Roddy, 33, 112 (La.App. 2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Franklin, 35,268 (La.App. 2d Cir.12/19/01), 803 So.2d 1057, writ denied, 02-0352 (La.02/07/03), 836 So.2d 85; State v. Roddy, supra.

To prevail on a claim of ineffective assistance of counsel, defendant must show that (1) his counsel’s performance fell below an objective standard of reasonableness when measured against “prevailing professional norms,” and (2) but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Leger, 05-0011 (La.07/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

While the general rule is that a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal, when the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.09/27/95), 661 So.2d 673.

In the instant case, the record is sufficient to address defendant’s claims of ineffective assistance of counsel. Defendant has raised ineffective | ^assistance of counsel in regard to his attorney’s handling of his “freeness and voluntariness” hearing under La. R.S. 15:450-451. Defendant gave a statement to the police stating that he had been invited into the victims’ apartment with Alfredo, and that Alfredo got mad when the liquor ran out and grabbed the wife. Defendant also stated that Alfredo sexually assaulted her. Defendant admitted only to being present in the apartment and tying up the husband. He denied having a knife, sexually assaulting the wife, hitting either of the victims, or stealing anything from the apartment. The trial court found that based on the totality of the evidence the statement was free and voluntary. The officer who interviewed the defendant, Officer John Rios, testified that he informed defendant in Spanish of his Miranda rights, including his right to contact an attorney, to stop the interview at any time, and further, that in the United States people have rights which allow them to be treated fairly when charged with a crime. Defendant does not contend that the court erred in finding the statement to have been freely and voluntarily made, but rather that had his counsel explained the Vienna Convention and applicable jurisprudence more adequately the trial court would have “considered the confession in a different light.”

Defendant’s claim is without merit. Contrary to appellate counsel’s assertion, defendant’s trial attorney made the court aware of defendant’s rights under the Vienna Convention, stating in part:

Your Honor, just that Detective Rios knew that this defendant was not an American citizen and that he was from Mexico; he never advised him that he had a right to contact the consulate or the embassy, which is — this is a reciprocal right between Americans and people in Mexico and other countries pursuant to treaty between the U.S. government and those countries, just 113if an American is arrested in Mexico, they have the right to contact the American consulate. It’s an important law. That law was violated with this defendant. And for that reason I would ask — I would say that it’s not free and voluntary; they’re not completely advised of their rights. And although he was advised on his Miranda rights, he was not advised of this additional right he has nor was he allowed to contact the embassy or consulate to find out further information on what other rights he might have.

The U.S. Supreme Court’s holding in Sanchez, supra, does not authorize the suppression of the statement; rather the court opined that in some cases defense counsel could raise a challenge to the free and voluntary nature of the statement which, in the instant case, defendant’s trial counsel did. We find that defendant’s trial attorney’s performance in raising the issue of defendant’s rights in the context of the “free and voluntary” hearing did not fall below an objective standard of reasonableness as required by the first prong of the test set forth in Strickland.

Defendant further contends that his counsel was ineffective because he did not challenge the failure to inform defendant of his rights to consular notification before trial so that defendant could secure assistance from the Mexican Consulate. This claim is without merit. Sanchez provides that the only right a defendant has is to have his consulate informed of his arrest, not to have the consulate intervene or to have proceedings halted until the consulate can provide assistance. Sanchez-Llamas, 548 U.S. at 349, 126 S.Ct. at 2681. Furthermore, defendant has not shown how he was prejudiced by this as the record shows that he was provided adequate due process in this matter. Strickland puts the burden on a defendant to show prejudice and defendant has failed to carry this burden. Defendant was interviewed |14by a police officer fluent in Spanish, he signed a form advising him of his rights in Spanish, his interview was videotaped, and he was appointed counsel to represent him. Defendant’s own attorney was likely far better to explain the United States legal system to him than any consular official would have been. Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1993). Defendant has offered no evidence whatsoever that the Mexican consulate could (or would) have offered any assistance that his attorney did not. See, Murgas v. United States, Not Reported in F.Supp.2d, 2002 WL 553462 (N.D.N.Y.2002); Polanco v. Untied States, Not Reported in F.Supp.2d, 2000 WL 1072303 (S.D.N.Y.2000). Again, defense counsel’s performance fails to meet the first prong of the Strickland test and does not constitute ineffective assistance of counsel in this instance. This assignment is without merit.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences for aggravated rape and aggravated kidnapping are affirmed.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Dale Earl MARSHALL, Appellant.
    No. 44,759-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    James E. Paxon, District Attorney, Anita T. Mack, Edwin Moberley, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

hThe defendant, Dale Earl Marshall, was charged with aggravated rape pursuant to La. R.S. 14:42. After trial, a jury returned a responsive verdict of guilty of molestation of a juvenile, a violation of La. R.S. 14:81.2. Marshall was adjudicated a second felony offender and sentenced to 30 years imprisonment at hard labor without benefit of diminution of sentence. He now appeals, alleging that the 30-year sentence is excessive. For the following reasons, we affirm.

FACTS

On January 18, 2004, Dale Earl Marshall, the defendant, was visiting in the home of his five-year old daughter and her mother. The defendant and the girl were in her mother’s bedroom watching television while her mother went to take a bath. After she returned, she sat at the head of the bed and told her daughter to sit near her. Both mother and the child got under the covers while the defendant was putting a movie on for them to watch. Once the movie started playing, the defendant got under the covers from the foot of the bed and began playing with the mother’s legs. The victim became very upset and ran from the room stating words to the effect “I hate when he does that.”

The defendant thwarted the mother’s first attempts to follow her daughter from the room. Concerned about what was troubling the child, the mother went to her daughter’s room to console her. After some questioning by her mother, the child stated that the defendant had pulled her panties to the side and licked her vagina while the mother was bathing.

12After a physical altercation between the defendant and the victim’s mother, the defendant was forcibly pushed out of the home. The child was taken to a local hospital where she was examined and police were contacted. The defendant was eventually arrested and indicted for aggravated rape.

Following a jury trial, the defendant was found guilty of the responsive charge of molestation of a juvenile. Thereafter, the defendant was adjudicated a second felony offender and then sentenced to 30 years of imprisonment at hard labor without diminution of sentence. This appeal ensued.

DISCUSSION

The defendant contends that the maximum sentence imposed in this case is unconstitutionally excessive in that the trial court failed to consider his history and background, or the mitigating factors present in the case. The defendant also contends that the goals of punishment and rehabilitation can be accomplished with a less harsh sentence. In opposition to the defendant’s contentions, the state argues that the trial court considered the appropriate factors prior to imposing the defendant’s sentence and the punishment is proportionate to the seriousness of the offense.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267; State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are 14viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710.

When a defendant fails to file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, 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. Jones, 41,449 (La.App. 2 Cir. 9/20/06), 940 So.2d 61. 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, supra; State v. Livingston, 39,390 (La.App. 2 Cir. 4/6/05), 899 So.2d 733.

In this instance, it does not appear that the defendant filed a motion to reconsider sentence with the trial court; thus, review of his sentence is limited to a constitutional review of excessiveness. However, contrary to the defendant’s assertions, we note that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge considered the defendant’s personal history, including his age, family ties, marital ^status, health, employment record. The court noted that the defendant had an extensive criminal record dating back more than 20 years, including three convictions for simple battery, a conviction of simple criminal damage to property, theft, and distribution of cocaine, in addition to the present offense of molestation of a juvenile. The court observed that the defendant also had numerous arrests, including arrests for crimes ranging from aggravated rape, aggravated battery, resisting an officer, attempted armed robbery, and others, all of which were dismissed either pursuant to a plea agreement to other crimes or were not prosecuted. On April 23, 1992, the defendant pled guilty to distribution of cocaine. His five-year sentence was suspended, and he was placed on supervised probation for five years. His probation was revoked, however, at least four times, and he was on parole when he committed the instant offense. The record clearly shows that there is simply no merit to the contention that the trial court failed to consider the factors the defendant alleges were not considered.

Defendant also argues that the court’s imposition of a maximum 30-year hard labor sentence pursuant to his status as a habitual offender, in effect, amounted to an unconstitutional, ex post facto application of the current stricter penalty for molestation of a juvenile. We cannot agree. During sentencing, the court noted that the current' sentencing range for molestation of a juvenile when the victim is under the age of 13 years is a hard labor sentence of 25 years to life, without eligibility of parole for the first 25 years. However, the court expressly stated that it was sentencing the defendant under the law in effect at the time of the offense, which provided |¿for a sentence with or without hard labor from one to fifteen years when the offender has control or supervision of the juvenile. Because the defendant was adjudicated a second felony offender under La. R.S. 15:529.1(A)(2)(a), the habitual offender sentencing range for molestation of a juvenile was not less than 7 ½ years, nor more than 30 years with or without hard labor. Although the court noted that under the current statute, the defendant could have faced a harsher sentence, it is clear from the sentencing transcript that the court fashioned the sentence under the applicable law and thorough consideration of the factors under La. C. Cr. P. art. 894.1, including the pre-sentence investigation, the statements of the victim, the victim’s mother, and the impact this crime -will have on the victim.

We find that the defendant’s 30-year sentence at hard labor is not grossly out of proportion to the seriousness of the offense when considering the fact that the defendant, a second felony offender, sexually violated his five-year-old daughter. This crime occurred while the defendant was on supervised release for his prior conviction. In reviewing the totality of the circumstances, the imposition of the maximum sentence for this defendant cannot be said to be nothing more than a purposeless and needless infliction of pain and suffering nor a shock to our sense of justice. Accordingly, the maximum sentence imposed in this case is within the trial court’s discretion and is not constitutionally excessive.

CONVICTION AND SENTENCE AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Kevin FALCON, Appellant.
    No. 44,829-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, John T. Pham, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, Kevin Falcon, was previously convicted by a jury of second degree murder. In State v. Tensley, 41,726 (La.App. 2d Cir.04/04/07), 955 So.2d 227, writ denied, 2007-1185 (La.12/07/07), 969 So.2d 629, this court reversed his conviction and remanded the matter to the trial court for further proceedings. On remand, pursuant to a plea agreement, Falcon pled guilty to a reduced charge of manslaughter, a violation of La. R.S. 14:31. Subsequently, the trial court sentenced the defendant to 40 years at hard labor. Falcon filed a motion to reconsider sentence which was denied, and this appeal ensued. For the following reasons, we affirm Falcon’s conviction and sentence.

Facts

The detailed facts of this case were set forth in our prior opinion in State v. Tensley, supra. Jessica Tensley, the mother of the victim, and her live-in boyfriend, Falcon, were the only caregivers for her five-month-old child several weeks before his death. One morning, Tensley found the victim unresponsive in his crib. After being transported to the hospital, the victim was examined and found to have numerous injuries including fractures of the skull, ribs, wrists, and femurs. Tensley was arrested immediately, while Falcon was arrested after further investigation revealed that he was responsible for care of the victim with Tensley. Both Falcon and Tensley denied culpability for the child’s injuries. They were tried together and found guilty of second degree murder. This court reversed the convictions and remanded the matter to the trial court for further proceedings. Id. at 246. On remand, Falcon accepted a plea agreement | ¿which allowed him to plead guilty to manslaughter with no sentencing recommendations. The trial court sentenced Falcon to 40 years at hard labor and this appeal ensued.

Discussion

Falcon now claims that his 40-year sentence is harsh and excessive. He contends that despite his fourth offender status the maximum sentence is clearly excessive. When entering his guilty plea, Falcon conceded the fact that there was sufficient evidence to support his conviction; however, he now argues that there was no direct evidence presented to show that he committed the acts that led to the death of the victim. Because of this, Falcon reasons that his involvement does not warrant the imposition of the maximum sentence. We disagree.

The law on this issue is well settled. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial coui*t took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where |3there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57 and 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be [4set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Hardy, 39,233 (La.App. 2d Cir.01/26/05), 892 So.2d 710.

Absent a defendant’s assertion that he was falsely or mistakenly charged with an offense, the sentencing court may consider a dismissed charge as part of the defendant’s criminal history, even when the dismissal forms part of the plea agreement. State v. Pamilton, 43,112 (La.App. 2d Cir.03/19/08), 979 So.2d 648.

Finally, as stated, a trial court has broad discretion to sentence within the statutory limits. Moreover, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App. 2d Cir.04/30/08), 981 So.2d 792. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.05/12/04), 873 So.2d 939.

Louisiana R.S. 14:31(B) mandates that: Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

In this case, during Falcon’s sentencing hearing the trial judge noted several factors that were considered in determining his sentence including |Bthe police reports from the offense and the Pre-Sentence Investigation report (“PSI”) which included Falcon’s personal history. In reviewing the PSI, the trial judge found that Falcon’s criminal history was troubling and it had a large impact on the sentencing. The trial court read Falcon’s significant criminal history into the record, noting that he reported his first arrest at the age of nine years old. The trial court also found that as an adult Falcon was engaged in criminal activity from 1993, at the time he was 18 years old, until the time he was arrested in 2003 for the instant offense. The periods when Falcon was not engaged in criminal activity corresponded to the times when he was incarcerated. The trial court found that a significant portion of Falcon’s life involved injury to others through violations of persons or their property.

We find that Falcon’s sentence is not constitutionally excessive. The evidence presented at the original trial, the substance of which was not disputed by him during his guilty plea hearing, provided a sufficient factual basis for accepting Falcon’s guilty plea. The record clearly shows that the trial judge considered the appropriate factors in determining the appropriate sentence for this offender. The trial court considered Falcon’s personal history as well as his criminal history, finding that the defendant could be considered a fourth felony offender for habitual offender purposes. The trial judge opined that the defendant was the type of offender for whom a maximum sentence was appropriate, and he should receive a significant sentence for his criminal action.

| r,Considering the facts of this heinous crime in which a helpless infant senselessly and brutally lost his life as a result of physical abuse, the maximum sentence for this fourth felony offender does not shock the sense of justice nor is it a needless infliction of punishment. The sentence imposed is within the statutory limits and Falcon substantially reduced his sentencing exposure as a result of his plea agreement.

Conclusion

So considering, we find no abuse of discretion by the trial court in this matter. Kevin Falcon’s conviction and sentence are both affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Eddie D. WALLACE, Appellant.
    No. 44,831-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project, by Paula C. Marx, for Appellant.
    Charles Rex Scott, II, District Attorney, Brady D. O’Callaghan, R. Bennett Lang-ford, III, F. Stanton Hardee, III, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

liThe defendant, Eddie Wallace was convicted of simple burglary, adjudicated a fourth felony offender and sentenced to 25 years at hard labor with credit for time served. The defendant now appeals. We affirm.

FACTS

Eddie Wallace was charged by bill of information with simple burglary (La. R.S. 14:62) on February 25, 2008 for an unauthorized entry of a home located at 639 Herndon in Shreveport with the intent to commit a felony or theft therein. He entered a plea of not guilty and rejected a plea offer by the state for a 12-year sentence and no multiple offender bill.

Additionally, on February 25, 2008, there was a “free and voluntary” hearing in regards to statements made by the defendant to Officer Joshua Mayfield, the responding officer. The court found that any and all statements made by the defendant to Officer Mayfield were freely and voluntarily made and were made pursuant to the defendant having been given his Miranda rights.

At trial, Officer Mayfield testified that he responded to a burglary in progress at 639 Herndon on January 16, 2008. The complaint was made by Warren Charles who testified that he was working across the street from 639 Herndon, and he observed a black male go through the screen window of the vacant house, and come out with a television. On his way to the scene, Officer Mayfield observed the defendant further down the street on Herndon carrying a television.

Officer Mayfield testified that the defendant, after being Mirandized, stated that he found the television in the trash beside the road. After | aWaIlace was told by the officers of the witness’ statement and the presence of shoe-prints on the porch floor, the defendant confessed that he did take the television from the residence. Although the conversation was recorded, it was not preserved by Officer Mayfield. Ms. Elizabeth Shackelford, the homeowner, testified that the defendant did not have her permission to enter her home, nor did he have permission to take her television.

On August 19, 2008, a unanimous jury found the defendant guilty of simple burglary, and on August 25, 2008 he was sentenced to 12 years at hard labor with ci'edit for time served. On the same date of sentencing, the state filed a bill of information alleging sixth offender status. The defendant waived arraignment and pled not guilty.

On November 19, 2008, the bill was amended to allege fourth offender status and a hearing was held upon which the defendant was adjudicated a fourth felony offender. The original bill was amended from a sixth felony habitual offender to a fourth felony habitual offender because the state was unable to obtain the fingerprints from two prior felony convictions.

At the hearing, Corporal Tommy Rachal qualified as an expert in the area of fingerprint identification and analysis. Corporal Rachal testified that the fingerprints he took from the individual in open court on the date of the hearing were identical to those contained in the certified documents pertaining to the defendant’s prior offenses. The certified documents included a bill of information for, and fingerprints of the defendant for, the offenses of (1) forgery, (2) theft of a vehicle and theft of property, (3) ^unauthorized use of a motor vehicle, and (4) simple burglary. On November 24, 2008, the original 12-year sentence was vacated and the defendant was sentenced to 25 years at hard labor without benefit of probation or suspension of sentence.

This appeal followed.

DISCUSSION

By his first assignment of error, the defendant alleges that the state failed to prove the identification of the accused and further failed to prove he was the person convicted of the predicate offenses. He asserts that Eddie D. Wallace was never identified at the hearing in which he was found to be a fourth felony offender.

The state contends that although Cpl. Rachal was not specifically asked to point out the person whose fingerprints he had taken, there can be no reasonable doubt that it was the appellant. The state argues that the sentencing court was able to discern whatever physical manifestations Cpl. Rachal made to indicate “the individual” at the time of his testimony. Moreover, the state also argues that there was no contemporaneous objection that the defendant’s identity was not sufficiently proven as the same person who had pled guilty to the three predicate convictions.

La. R.S. 15:529.1(D)(l)(b) provides that “the district attorney shall have the burden of proof beyond a reasonable doubt of any issue of fact,” and “any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.”

14When a defendant denies a pri- or felony conviction, the state must establish the existence of the prior felony conviction and prove that the defendant is the person convicted in that earlier offense. State v. Gray, 948 So.2d 335, 342 (La.App. 2 Cir. 1/10/07). Proving that a defendant is the same person convicted in the earlier offense may be accomplished through different means, including the testimony of witnesses, expert testimony as to the fingerprints of the accused when compared to those in the prison record introduced or by photographs contained in the duly authenticated record. Id.; State v. Mays, 05-2555 (La.5/26/06), 929 So.2d 1231, citing State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988).

In this case, after the defendant was sentenced, the state filed a multiple offender bill against Wallace alleging that his first felony conviction was for forgery, to which he pled guilty on December 18, 1991, in the First Judicial District Court of Caddo Parish; defendant’s second felony conviction was for felony theft, to which he pled guilty on November 10, 1998, in the Twenty-Sixth Judicial District Court of Bossier Parish; and defendant’s third felony conviction was for unauthorized use of a motor vehicle, to which he pled guilty on March 19, 2001, in the First Judicial District Court of Caddo Parish. After the third felony conviction, the defendant committed and was convicted of the fourth felony offense, namely, the instant simple burglary, on August 19, 2008, in the First Judicial District Court of Caddo Parish.

|sThe state introduced copies of records from the First and Twenty-Sixth Judicial District Courts, including certified copies of the bills of information charging the defendant with the respective crimes (enumerated above in the preceding paragraph), and a certified copy of the minutes of court showing defendant’s guilty plea to each charge.

Corporal Tommy Rachal, the state’s expert in the area of fingerprint identification and analysis, identified bills of information charging the defendant with forgery in December of 1991, theft of a vehicle in November of 1998, unauthorized use of a motor vehicle in March of 2001, and the most recent conviction for simple burglary in August of 2008. Each bill included a certified document containing inked fingerprint impressions. Corporal Rachal identified the fingerprints from the certified documents as belonging to the same person. Corporal Rachal then fingerprinted the “individual” in open court (obviously referring to the defendant as the hearing was the defendant’s multiple offender hearing) and testified that they were the same prints as those appearing on the certified fingerprint documents.

The use of Cpl. Rachal’s expert testimony as to the fingerprints of the defendant when compared to photographs contained in the duly authenticated record is clearly within the confines of Louisiana’s habitual offender law. Corporal Rachal testified that he took the fingerprints of the “individual” in open court and that those fingerprints matched those documented for the prior convictions. Those fingerprints (contained in the bills of information) which Cpl. Rachal stated were all from the same | (¡individual were identified on the respective bills as belonging to the defendant. Moreover, this hearing was to adjudicate Wallace as a habitual offender so it is clear that Wallace is the individual whose fingerprints were taken in open court. If not, the defendant or his attorney should have objected, which they did not do.

We therefore conclude that this assignment is without merit.

By his second assignment of error, the defendant alleges that the state failed to prove the dates of the defendant’s discharge from state supervision in connection with the predicate offenses alleged. The defendant contends that the state’s failure to provide any documentation of defendant’s discharge at the habitual offender hearing requires that his adjudication as a fourth felony offender and the corresponding sentence be vacated.

The state contends that the date of discharge is not required for a multiple offender adjudication. It asserts that it is only necessary that the evidence reflect that 10 years had not elapsed since the defendant’s release from custody and the commission of a subsequent offense.

The state’s burden of proof in habitual offender proceedings under La. R.S. 15:529.1 is stated in State v. Shelton, 621 So.2d 769 (La.1993):

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and 17specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. [Footnote omitted.]

La. R.S. 15:529.1(C) provides:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses. (Emphasis added.)

This ten-year period begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311 (La.1977); State v. Davis, 41,245 (La.App. 2 Cir. 8/9/06), 937 So.2d 5. In an habitual offender proceeding, the state bears the burden of proving that the period of time between adjacent offenses has not expired. State v. Ignot, 29,745 (La.App. 2 Cir. 8/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618.

Although the state has the burden of proving that the 10-year period has not expired, the state need not prove the discharge date when less than | s10 years have elapsed between the last conviction and the subsequent conviction. State v. Smith, (La.App. 4 Cir. 7/20/05), 913 So.2d 836; State v. Collins, 2001-1459 (La.App. 4 Cir. 8/21/02), 826 So.2d 598. We endorsed this rationale in State v. Capers, 43,743 (La.App. 2 Cir. 12/3/08), 998 So.2d 885 at 889, writ denied, 2009-0148 (La.10/2/09), 18 So.3d 102 (“[E]ven if the record were devoid of any evidence of defendant’s discharge from state custody and supervision, the ten-year period necessary to exclude its use for purpose of sentencing ... had not elapsed at the time of the commission of the following offense.”) See also, State v. Harris, 44,402 (La.App. 2 Cir. 6/24/09), 20 So.3d 1121 (on rehearing). (“Although the release-dates from supervision for two of the predicate convictions were not shown ... the record clearly demonstrates that the ten-year time period between discharge and the instant offense had not run at the time of the commission of the present crimes”).

In this case, Wallace was convicted of forgery on December 18, 1991. Less than seven years later, he was convicted of felony theft on November 10, 1998. Less than three years following the felony theft conviction, he was convicted for unauthorized use of a motor vehicle on March 19, 2001. Wallace’s most recent felony conviction for simple burglary occurred on August 25, 2008, less than eight years following his conviction for unauthorized use of a motor vehicle. It was therefore unnecessary for the state to prove the date of discharge of defendant’s prior convictions because each of defendant’s prior convictions occurred within less than 10 years of each other, and it was not possible that 10 years could have elapsed between | ¡¡release from custody and commission of the offénse at issue. See State v. Harris, supra.

Accordingly, this assignment is without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Christopher Antrell BERNARD, Appellant.
    No. 44,859-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project By: Paula C. Marx, for Appellant.
    Christopher Antrell Bernard, Pro Se.
    J. Schuyler Marvin, District Attorney, Charles Smith, Matthew Altimus, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| j Defendant, Christopher Antrell Bernard, was charged with distribution of cocaine, found guilty as charged by a jury and was sentenced to 11 years of imprisonment at hard labor with credit for time served. A timely motion for reconsideration of sentence was denied and this appeal ensued. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

With the assistance of a confidential informant (“C.I.”), Narcotics Agent David Boudreaux planned to make a narcotics purchase from a supplier identified by the C.I. The transaction was arranged to take place on May 31, 2007, in the parking lot of the Bass Pro Shop located at the Louisiana Boardwalk in Bossier City, Louisiana. The C.I. told Agent Boudreaux that he would have to purchase at least an “eight ball” of cocaine from the supplier, who the C.I. identified as Defendant, Chris “Bucket Head” Bernard. Agent Boudreaux and the C.I. arrived at the arranged location and found Defendant waiting, as he had indicated, with his car hood open. The C.I. called Defendant to Agent Bou-dreaux’s vehicle for the transaction. When Defendant walked to the vehicle, Agent Boudreaux briefly talked to him and Defendant handed to Agent Boudreaux what was believed to be cocaine in exchange for $100. Defendant returned to his vehicle and left the area. Agent Bou-dreaux transferred the substance received from Defendant into evidence. Subsequent testing determined that the substance contained cocaine.

IsAgent Boudreaux attempted to make additional purchases from Defendant, but was unable to do so. Thereafter, a warrant was issued for Defendant’s arrest.

Defendant was subsequently arrested and charged with distribution of cocaine. As previously stated, a jury found Defendant guilty as charged and Defendant was sentenced to 11 years’ imprisonment. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The state failed to prove that Christopher Antrell Bernard was guilty of distribution of cocaine beyond a reasonable doubt.

Defendant argues that the State failed to present sufficient evidence to convict him in that the State failed to negate the reasonable probability of misidentification. Defendant emphasizes that his identification was made by the agent months after the drug transaction. Further, Defendant challenges the agent’s testimony regarding a tattoo as an identifying mark on Defendant’s forearm. He argues that the presence of a tattoo was not previously listed by the agent in police reports or the arrest warrant as an identifying mark. Defendant also claims that there was no physical evidence that connected him to the charged offense.

The State maintains that it presented sufficient evidence to establish the essential elements of the charged offense. Specifically, the State asserts that the testimony of Agent Boudreaux identifying Defendant as the individual who sold him the cocaine was sufficient to support the conviction. We agree.

|sThe 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, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833. 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. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. This is equally applicable to the testimony of undercover drug agents. State v. Anderson, 30,306 (La.App. 2d Cir.1/21/98), 706 So.2d 598.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Youngblood, 41,976 (La.App. 2d Cir.5/9/07), 957 So.2d 305, writ denied, 07-1226 (La.12/14/07), 970 So.2d 530; State v. Davis, 27,961 (La.App. 2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990).

An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The state must show (1) delivery or physical transfer, (2) guilty knowledge of the controlled dangerous substance at the time of transfer and (3) the exact identity of the controlled dangerous substance. State v. Kelley, 36,602 (La.App. 2d Cir.1/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App. 2d Cir.6/24/98), 715 So.2d 668.

| fiAgent Boudreaux testified during the trial and related that the C.I. set up the “dope deal” for him. Agent Boudreaux stated that it was not uncommon for individuals who had outstanding cases to agree to assist the officers in purchasing drugs from a supplier. In this instance, the C.I. had “about four distribution warrants that we had on him and basically it was he go [sic ] to jail or he start [sic ] doing some work for us.” The C.I. agreed to set up the deal and told Agent Boudreaux that the deal would have to be for at least “an eight ball of crack cocaine” because the person would not deliver anything less than that amount. Defendant was contacted and arranged to meet Agent Boudreaux and the C.I. in the parking lot of the Bass Pro Shop. Defendant told the C.I. that he would be in the parking lot with his car’s hood open.

Agent Boudreaux and the C.I. went to the designated area around 7:00 p.m. and saw a car with its hood raised. They parked in the parking space across from the vehicle. Agent Boudreaux testified that the C.I. called Defendant over to the agent’s vehicle. Agent Boudreaux told the C.I. to open the passenger door and move over onto the middle seat, anticipating that Defendant would get into the vehicle to conduct the transaction. Agent Bou-dreaux stated that he preferred to get the subject as close to him as possible during a transaction to aid in making an identification. Defendant did not get into the vehicle; however, Agent Boudreaux indicated he was not more than four feet away from Defendant during the transaction. Agent Boudreaux testified that he was able to get a | figood view of Defendant’s face, as well as a tattoo on Defendant’s left arm. Agent Boudreaux stated that the tattoo was lettering which read “D-E-E B-L-K.” Defendant showed his tattoo to the jury at this time.

Agent Boudreaux confirmed that Defendant had the same tattoo that he saw on the day of the drug transaction and he identified Defendant in court as the person who sold him the cocaine. Agent Bou-dreaux described the transaction for the jury, stating that, when Defendant arrived at the vehicle, he asked him, “Okay, you got me? Are we good? Yeah. He [the defendant] handed me 2.9 grams of crack cocaine. I handed him a hundred dollar bill.” After making the purchase, Agent Boudreaux sealed the evidence and it was later identified as cocaine by the crime lab.

Agent Boudreaux further testified that Defendant was not arrested on the day of the transaction because Agent Boudreaux wanted to attempt to make other purchases from him, hoping that this would provide some leverage to be used against Defendant as incentive for him to cooperate in a future investigation. After he was unable to set up additional purchases from Defendant, Agent Boudreaux concluded that Defendant “hinked up,” meaning that he got nervous about conducting subsequent transactions with him. A warrant was eventually issued for Defendant’s arrest and the warrant was executed while Defendant was in custody in Shreveport.

Agent Boudreaux was the only witness at trial. The State rested at the conclusion of his testimony and the defense presented no evidence.

We conclude that the State sufficiently proved the essential elements of the charged offense. The State was required to prove delivery or physical |7transfer, guilty knowledge of the controlled dangerous substance at the time of transfer and the exact identity of the controlled dangerous substance. State v. Kelley, supra. Through the testimony of Agent Bou-dreaux, the State showed that Agent Bou-dreaux and a cooperating C.I. arranged to purchase an “eight ball of cocaine” from Defendant. Defendant was waiting at the prearranged location and transferred what was suspected to be cocaine to Agent Bou-dreaux in exchange for $100. The substance Agent Boudreaux received from Defendant was tested and determined to contain cocaine. The testimony of Agent Boudreaux alone was sufficient to establish the essential elements of the offense.

Defendant argues that Agent Boudreaux did not sufficiently identify him and that the failure to list his tattoo in a police report or warrant was an indication that Defendant’s identity was not known at that time. The fact that this information was not listed does not negate the fact that Agent Boudreaux testified that he was approximately four feet from Defendant during the transaction and there was sufficient lighting to see Defendant at that time. Agent Boudreaux also testified he knew Defendant had the tattoo before he met Defendant for the drug purchase. Agent Boudreaux indicated he was able to identify the tattoo at the time of the transaction, essentially confirming Defendant’s identity at the time of the purchase. The delay in the arrest of Defendant does not taint the identification made by the agent. Further, the State sufficiently negated the possibility of misidentification of Defendant.

This assignment of error is without merit.

IsAssignment of Error Number Two (verbatim): The trial court failed to comply with code of criminal procedure 894.1 in fashioning a sentence to this offender and offense.

Defendant argues that the trial court failed to give any consideration to Defendant’s personal history and the mitigating factors of the case. We disagree.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, supra; State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

In the case sub judice, Defendant argues that the trial court failed to consider his personal history and focused only on his criminal history when determining his sentence. Defendant also argues that the trial court did not consider mitigating factors in this case. Defendant does not specify, however, what mitigating factors were not, but should have been, considered by the trial court.

11 oDuring the sentencing hearing, the trial judge noted that a presentence investigation had been ordered and he specifically stated that the results of the PSI were received and considered in accordance with C. Cr. P. art. 894.1 guidelines. The trial judge also noted that he gave the greatest weight to the seriousness of the offense, as well as Defendant’s prior criminal record. The judge noted that Defendant had one other felony conviction in addition to pending federal charges. Defendant’s criminal history also included seven misdemeanor convictions that were not traffic related.

The trial judge stated that bench warrants had been issued for Defendant in most of his cases, finding that this indicated that Defendant had a general inability to comply with basic legal rules and regulations. It was also noted that Defendant continued to deny his guilt and, thus, refused to accept responsibility for his actions. The trial judge also considered the fact that Defendant was classified as a second-felony offender, and, if a habitual offender bill of information was filed, Defendant’s minimum sentence would be 15 years. The record further indicates that the trial judge considered all of the aforementioned factors and determined that a fair and appropriate sentence for Defendant was 11 years at hard labor.

The record clearly reflects that the trial judge was cognizant of the factors that should be considered in fashioning an appropriate sentence for this defendant. This sentence is not grossly disproportionate when the crime and punishment are viewed in light of the harm done to society, and does not the sentence shock the sense of justice.

This assignment of error is without merit.

^Assignment of En~or Number Three (verbatim): The trial court erred in denying defense motion for mistrial based on testimony of Agent David Boudreaux that appellant was in jail in Shreveport on other charges when he was arrested for this offense.

Defendant argues that a mistrial should have been declared in the case after Agent Boudreaux made two references to Defendant being in jail and having other charges prior to the arrest for the instant offense. The following exchange is the basis for Defendant’s motion for mistrial:

State: When did you come into contact with him [the defendant] or did you — -did you identify him after he was re-arrested?
Agent Broudeaux[Boudreaux]: Yes, sir, I did.
State: How did that come about?
Agent: Well, I found out that he was in a Shreveport jail, had been arrested on charges over there, so I went over there and had them pull his booking picture. Defense counsel: Your Honor, I’m going to have to object for 404B relevance, Your Honor.

During cross-examination, the following exchange occurred:

Defense counsel: Oh, okay. All right. Do you have any information on why he was arrested nine months later?
Agent Boudreaux: I believe he was down in Houston. Don’t quote me on that. But he had left the area and he was brought back up here, like I said, on charges from Shreveport and that’s when I found out he was in the Shreveport Jail and that’s when I went over there and served the warrant on him.

Shortly after both sides rested them case, the jury was removed and the court briefly recessed. After the recess, the judge indicated the parties needed to discuss whether the court could provide the jury with a copy of the jury charges and the responsive verdicts sheet for review as the court charged the jury. Defense counsel then requested permission to approach 112the judge and an off-the-record bench conference was held. Once back on the record, defense counsel moved for a mistrial:

Your honor, at this time, I would like to make a motion for a — an oral motion for a mistrial. During the examination of one of the state’s witnesses the witness alluded to an arrest and prior acts of criminal activity during his testimony. That evidence is inadmissible, your hon- or. And I believe it was extremely prejudicial to the jury and I believe it could even be inferred that he had other drug charges in other parishes. And I think it’s going to affect their outcome when they deliberate, your honor.

The motion was denied and the trial judge found that any reference to other acts' was only made in an attempt to “better explain” the answers being provided. The trial judge ruled that the prejudicial value of any inadvertent reference to other acts was not such to merit a mistrial. The judge noted that the jury would be instructed to disregard anything to which an objection was made and sustained. The judge also found that any other action would call attention to the testimony. The defense objected to the trial court’s ruling. A portion of the jury charges stated:

The evidence which you should consider consists of testimony of witnesses and of exhibits, such as writings and physical objects which the court has permitted the parties to introduce. You must not consider any evidence which was not admitted, or which you were instructed to disregard, or to which an objection was made and sustained.

The law in this area is well settled. As this court stated in State v. Smith, 43,136 (La.App. 2d Cir.4/23/08), 981 So.2d 200:

La. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by [ igthe defendant as to which evidence is not admissible. For purposes of article 770, a law enforcement officer is not considered a “court official,” and an unsolicited, unresponsive reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C. Cr. P. art. 770.
La. C. Cr. P. art. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under article 770. La. C. Cr. P. art. 775 also sets forth additional permissive grounds for mistrial. Under these articles, mistrial is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused. A trial court’s ruling denying mistrial will not be disturbed absent an abuse of discretion. Even if a mistrial was warranted under article 770, 771, or 775, the failure to grant a mistrial would not result in an automatic reversal of defendant’s conviction, but would be a trial error subject to the harmless error analysis on appeal. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” (Internal citations omitted.)

Further, La. C. Cr. P. art. 771 provides that the court shall promptly admonish the jury to disregard a remark or comment, on motion of the defendant or the state.

We find Defendant’s argument to be without merit. While Defendant raised an objection to the agent’s comments during direct testimony, a motion for mistrial was not made until after both parties rested their respective cases. As the comment made would not be within the ambit of a mandatory mistrial in accordance with La. C. Cr. P. art. 770, Defendant’s initial remedy would have been to request that the trial court admonish the jury to disregard the statements. Defendant did not make such a request of the court. Since Defendant’s request for a mistrial was not made until some 114time after the alleged prejudicial statements, the trial judge rightfully concluded that any action taken after the objection was raised could bring undue attention to the statements. Further, the court was not required to admonish the jury as Defendant did not make a request for an admonishment. State v. Sudds, 43,-689 (La.App. 2d Cir.12/3/08), 998 So.2d 851. As there has been no showing of substantial prejudice to Defendant, it cannot be said that the trial court abused its discretion in denying Defendant’s motion for a mistrial.

Pro Se Assignment of Eyror Number One: Ineffective assistance of counsel.

Defendant filed a brief, pro se, on appeal in which he argues that his trial counsel was ineffective in that he failed to compel the State to produce and/or disclose the identity of the C.I. Defendant argues that the C.I. did not exist and, had his attorney attempted to subpoena the C.I., this fact would have been revealed. Additionally, Defendant states that his attorney failed to address the issue at the preliminary examination phase of the proceedings thereby subjecting him to a trial in the matter. Defendant also argues that, without the use of the C.I. at trial, the State presented insufficient evidence to convict him as there was no evidence of marked currency, audio or video taping, DNA or fingerprints to reasonably link him to the alleged sale of the narcotics.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, a defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, |1Rtactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App. 2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991). Also State v. Tilmon, 38,003 (La. App. 2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

Second, a defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App. 2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

Louisiana has a strong public policy in favor of protecting the identity of confidential informants. State v. Davis, 411 So.2d 434 (La.1982); State v. Hall, 549 So.2d 373 (La.App. 2d Cir.1989), writ denied, 556 So.2d 1259 (La.1990). The defendant bears the burden of showing exceptional circumstances which would require divulging a confidential informant’s identity; the trial court has much discretion in deciding whether disclosure is warranted. State v. Oliver, 430 So.2d 650 (La.1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); State v. Babbitt, 363 So.2d 690 (La.1978). A showing that the informant participated in the crime constitutes exceptional circumstances requiring disclosure. State v. James, 396 So.2d 1281 (La.1981); State v. McDonald, 390 So.2d 1276 (La.1980); State v. Humphries, 463 So.2d 804 (La.App. 2d Cir.1985).

In the instant case, as a threshold matter, we conclude that the issue raised by Defendant of ineffective assistance of counsel can be resolved on the record presented. Next, Defendant alleges that his trial counsel was ineffective in failing to require the State to divulge the identity of the C.I. and, absent the testimony of the C.I. at the trial, the evidence presented was insufficient to support a conviction. As previously discussed, we find that the State presented sufficient evidence, through the testimony of Agent Bou-dreaux, to support the conviction of Defendant. The evidence that Defendant claims was not presented, such as marked currency, DNA or fingerprint evidence, and even audio or video recordings, was not required to establish the essential elements of the instant crime.

Furthermore, while Defendant argues that his trial attorney should have obtained the identity of the C.I. from the State, the prevailing jurisprudence dictates that exceptional circumstances must be shown to require the State to provide that information. Here, Defendant does not [isallege exceptional circumstances, but instead argues that there was no other direct evidence connecting him to the distribution of the cocaine. Agent Boudreaux’s testimony established the elements of the offense and the testimony highlighted the fact that the C.I. did not participate in the transaction. The C.I.’s participation was limited to setting up the meeting where the sale occurred. Though the C.I. was on the scene, Agent Boudreaux stated that he asked Defendant if he had the cocaine, the cocaine was passed to Agent Boudreaux who, in turn, tendered $100 to Defendant to complete the transaction. Based on these facts, it cannot be said that the C.I. participated in the transaction. Defendant makes no further argument that would indicate that the identity of the C.I. should have been disclosed.

When analyzing these circumstances under the first prong of the Strickland test, we conclude that Defendant has failed to allege facts to show that his trial attorney’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. The defense was not entitled to demand that the State disclose the identify of the C.I. and failure to do so does not constitute ineffective assistance of counsel in this case. It is noted that trial counsel attempted to use the issue of the C.I.’s motives (four pending warrants), as well as the State’s failure to produce the C.I., in an attempt to create reasonable doubt as to Defendant’s guilt. The jury was entitled to disregard these efforts.

Even if error is presumed, we note that Defendant has failed to show how his defense was prejudiced by his attorney’s failure to obtain the | I9identity of the C.I. Had the identity of the informant been disclosed, Defendant presumably would have cross-examined the C.I. regarding his motives for informing the authorities of Defendant’s distribution operation. It was noted, however, that during direct examination of Agent Boudreaux that the C.I. was in fact cooperating with the police in an effort to gain some advantage in relationship to his possible charges. The C.I. had four pending warrants and the jury was aware of this fact. Defendant does not specifically state what additional information could have been obtained by requiring the State to disclose the identity of the C.I., nor does Defendant show how the outcome of the trial would have been different.

This assignment is, therefore, without merit.

Defendant’s final assignment was a request for this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App. 2d Cir.5/7/97), 694 So.2d 556.

The jurisdictional check of the record reveals that the trial judge failed to impose the first two years of Defendant’s sentence without benefits as required by La. R.S. 40:967(A)1. This error will be corrected pursuant to La. R.S. 15:301.1(A). No further action is required by this court.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Christopher Antrell Bernard, are affirmed.

AFFIRMED.

      . Agent Boudreaux testified that an eight ball is three and one-half grams of cocaine.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Christopher Eugene ASHLEY, Appellant.
    No. 44,861-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Marti Grosjean, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Lane Pittard, Dale Montgomery, Karen Elizabeth Stubbs, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

| ¶ Following a jury trial, the defendant, Christopher Eugene Ashley, was convicted of distribution of marijuana, a schedule I controlled dangerous substance (CDS); he was acquitted of three other drug charges. He was sentenced to five years at hard labor to run consecutively with a six-month sentence for contempt. The defendant appeals. We affirm his conviction and sentence.

FACTS

On June 6, 2007, an undercover narcotics agent for the Bossier City Police Department participated in the purchase of a half pound of marijuana; the transaction took place in a vehicle parked in the driveway of a Bossier City residence. The agent sat in the back seat of the car, while the defendant sat in the front passenger seat and D’Carrio Wilson sat in the driver’s seat. The agent paid $300 and was given a bag of marijuana. The defendant and Wilson were later arrested. A search of the vehicle revealed additional marijuana, as well as Lortab and ecstasy pills.

The defendant was charged with distribution of marijuana; possession of marijuana with intent to distribute; possession of MDMA (ecstasy) with intent to distribute; and possession of hydrocodone (Lor-tab) with intent to distribute.

At the defendant’s trial in May 2008, the agent testified that when he, the defendant and Wilson were in the car, he asked Wilson if he had “the dope” with him. Wilson replied affirmatively, at which point the defendant pulled out the bag of marijuana and handed it to the agent. The agent then [2handed the money to Wilson. However, Wilson testified that he was solely responsible for the drug transaction; he stated that he — not the defendant — put the marijuana on the console and the agent picked it up. He insisted that the defendant was unaware of the drugs in the vehicle and took no part in the transaction. The defendant, who absconded on the first day of the trial, did not testify. Due to his flight, a bench warrant was issued for his arrest, and the court ordered forfeiture of his bond.

The jury convicted the defendant of distribution of marijuana, but acquitted him of the three other charges. Following his subsequent capture, the defendant was found to be in contempt of court and sentenced to six. months in jail for fleeing during the trial. On the distribution of marijuana charge, the trial court sentenced the defendant to five years at hard labor, to be served consecutively to any other sentence including the contempt sentence. A motion to reconsider the sentence was filed and denied.

The defendant appeals, asserting that the evidence was insufficient to support his conviction.

SUFFICIENCY OF EVIDENCE

Law

To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Braziel, 42,668 (La.App. 2d Cir.10/24/07), 968 So.2d 853.

|sThe proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 43,916 (La.App. 2d Cir.2/25/09), 4 So.3d 301.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833. 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. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

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. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The testimony of a single undercover police officer is sufficient to convict one charged with the distribution of a CDS. State v. Kelley, 36,602 (La.App. 2d Cir.1/29/03), 836 So.2d 1243.

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; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Discussion

The defendant contends that the evidence was insufficient to convict him because of the following factors: the agent’s reports did not mention the defendant handing the drugs to the agent; the buy money was found on Wilson after his arrest; and Wilson testified that the defendant had no involvement in the crime.

|sThe defendant asserts that the agent’s testimony is unworthy of belief because his reports did not specify that the defendant was the party who actually handed the drugs to him. However, the document shown to the agent at trial — which was determined on redirect examination to be an arrest booking sheet, not an incident report — stated that the defendant sold marijuana to the agent. The agent clarified that a booking sheet is only a brief summary, as opposed to the detailed report written by the officer at a later time.

A review of the evidence shows that the agent testified that both Wilson and the defendant participated in the drug transaction. Specifically, the agent testified that he handed the $300 in buy money to Wilson, which was subsequently recovered from Wilson at the time the men were arrested. According to the agent’s testimony, it was the defendant who handed him the bag of marijuana. In contrast, Wilson accepted all blame for the crime and insisted that the defendant had no knowledge of the drugs and played no role in the transaction.

As the trier of fact, the jury determines the credibility of the witnesses. In the instant case, the jury chose to believe the undercover narcotics agent over Wilson, a convicted felon. Simply failing to detail that the defendant physically handed the drugs to him in a brief booking summary does not show an internal contradiction or irreconcilable conflict impeaching the agent’s testimony. Further, finding the money on Wilson, and not the defendant, does not relate to the elements of the crime. The | (¡elements that the state was required to prove were: delivery or physical transfer of the marijuana, guilty knowledge of the marijuana at the time of the transfer, and the exact identity of the marijuana. The state carried that burden of proof beyond a reasonable doubt through the testimony of the agent, which was accepted as credible by the jury, and the admission of the crime lab report, which identified the substance purchased by the agent as marijuana.

Based on this record, a rational jury could have found the essential elements of distribution of marijuana to have been proven beyond a reasonable doubt and convicted the defendant accordingly. This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Since the other charges called for a 12-person jury, a possession of cocaine charge— which required a six-person jury — was dismissed to simplify the proceedings.

      . The document shown to the agent was not admitted into evidence and thus is not included in the appellate record.