author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Robert Todd GRIFFIN, Appellant.
    No. 45,045-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Louisiana Appellant Project by Michael H. Idoyaga, New Orleans, Christopher A. Aberle, for Appellant.
    Robert Todd Griffin, Pro Se.
    James E. Paxton, District Attorney, Linda K. Watson, Anita Tennant Mack, Edwin Moberley, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS & MOORE, JJ.
   PEATROSS, J.

11 Defendant, Robert Todd Griffin, was initially charged under two docket numbers with attempted first degree murder, second degree battery, simple battery of the infirm, simple robbeiy, simple burglary of an inhabited dwelling and possession of drug paraphernalia. In the instant docket number, the charges were later reduced to a single count of second degree robbery. Defendant opted for a bench trial; and, after hearing the evidence, the trial judge found Defendant guilty and then sentenced Defendant to serve 40 years’ imprisonment at hard labor. Defendant now appeals, urging three assignments of error. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

Just before 4:00 a.m. on the morning of October 15, 2004, deputies from the Tensas Parish Sheriffs Office (“TPSO”) responded to a call for assistance at the residence of Mr. James Hill. Deputies David Lee and Mark Guy responded to the call and arrived at Mr. Hill’s house at the same time as the arrival of Mr. Hill’s daughter, Carolyn Crow. When the deputies arrived, they saw Mr. Hill, who was 85 years old and legally blind, standing in the carport appearing badly beaten. His pajamas were torn, his left eye was black and he had blood on his face and ear. Deputy Lee testified that, at first, Mr. Hill could only respond with “ahh-haaa, ahh-haaa” when asked what had happened; but, shortly thereafter, Mr. Hill was able to say, “He’s inside. He’s inside.” Ms. Crow took her father to her car while the deputies entered the residence to search for the suspect.

| Recording to Ms. Crow, once they got into her car, her father told her that he had been awakened earlier that morning by a knock on the door. Mr. Hill related to her that a man was at his door who said that his car had broken down and wanted to use the phone to call someone to pick him up. Mr. Hill related that the man identified himself as “Mike Hale.” Mr. Hill let the man into his home to use the phone. After the man got off the telephone, he asked Mr. Hill where Mr. Hill kept his money. Mr. Hill responded that he did not have any money, and the man then began to beat Mr. Hill.

As Ms. Crow spoke with her father, the deputies searched the house. They found that the back door was partly open. When they entered the home, they saw that a reclining chair had been turned over onto its back. As they continued to search the home, the deputies heard snoring. They found Defendant asleep on the kitchen floor. Defendant smelled strongly of alcohol and the upper portion of his back was covered with fresh feces. Deputy Lee recognized Defendant as Robert Todd Griffin, a person he knew. The deputies rolled Defendant over, handcuffed and searched him. The deputies found a wallet in Defendant’s back pocket that belonged to Mr. Hill and contained Mr. Hill’s state-issued identification card. According to Ms. Crow, Mr. Hill kept his wallet on furniture near his bed or |sin a vanity drawer when he slept. In a continued search of the home, the deputies found blood spots on Mr. Hill’s bed by the pillow. Outside the home, the deputies found Defendant’s vehicle in Mr. Hill’s side yard, the portion of the yard away from the street.

After the deputies arrested Defendant, they placed him into a patrol car. Deputy Guy and Ms. Crow then assisted Mr. Hill back into the home and sat him in the recliner. Deputy Guy testified that Mr. Hill was “nervous, ... hurt,” dazed and walking slowly with assistance just before the interview; he was still bleeding and was being attended by paramedics. According to the testimony of Ms. Crow, her father told the deputy the same story he had just relayed to her about the incident. Deputy Guy also testified that Mr. Hill reported being knocked unconscious by the beating. Deputy Guy did not include Mr. Hill’s statements in the initial incident report, but included some of that information in a subsequent report.

A toxicology report later showed that Defendant had alcohol, cocaine, Xanax and marijuana in his system when he was arrested. He was unable to sign his name when he was booked at the jail and appeared as if he had had too much to drink. A Ph.D. psychologist who subsequently interviewed Defendant and reviewed the evidence opined that Defendant’s ability to form intent or a plan would have been impaired due to Defendant’s consumption of drugs and alcohol prior to the crime, but admitted, however, that his opinion was based primarily on what Defendant told him about the incident. In addition, there was evidence which suggested that Defendant made an effort to escape from an encounter with police earlier that evening [4by leaving a bar when police were called and, further, that Defendant parked his car on the lakeside, or backside, of Mr. Hill’s house in a way calculated to escape attention.

A second Ph.D. psychologist who reviewed the evidence opined that it was possible that a person who had behaved as Defendant had could have been capable of forming intent despite drug use.

After several continuances requested by Defendant, trial in this matter commenced on May 5, 2008. Defendant waived trial by jury. Mr. Hill passed away prior to the trial, and his testimony had not been taken prior to his death. Just prior to trial, Defendant requested yet another continuance based upon his alleged inability to assist his lawyer due to the effects of post-surgical medications that he was taking. In response to the motion, the trial judge spoke with a physician, Dr. Neumann, by telephone on May 5, 2008, the morning of trial. Dr. Neumann had examined Defendant that morning and was familiar with the medications Defendant was taking. The record contains the trial judge’s recitation of the conversation, including that Dr. Neumann had opined that Defendant would be “drowsy, but not stuporous,” and that Defendant had “a good understanding of the operation of a trial.” Defendant’s attorney and the prosecutor were present in chambers during the telephone conversation, which was not held as a conference call due to technical difficulties. Defendant’s attorney argued that, while Defendant “could probably assist me in the defense,” he might Rsuffer prejudice due to his medicated condition should he choose to testify. Ultimately, the trial judge denied Defendant’s motion for a continuance in reliance on the physician’s opinion that Defendant could go forward with the trial.

During the trial, both Ms. Crow and Deputy Guy testified, over repeated objections of Defendant’s attorney and motion in limine, about Mr. Hill’s statement to them in the half hour or so after the incident. The court relied on these witnesses’ recollection of the dazed mental state of Mr. Hill and the close proximity in time of the statements to the event in finding that the statements were admissible into evidence as excited utterances of Mr. Hill.

Near the end of the first day of trial (May 5, 2008), the trial judge made the following observation regarding the capacity of Defendant to proceed and assist his defense counsel:

I’m gonna say something for the record. I don’t think there is any objection to this. But I just think the record should reflect that Mr. Griffin, and I’m not sure what the difference is as far as his medication goes today, but he’s obviously functioning at a more alert level. And I think it’s appropi’iate for the record to say that. And, you know, if anybody wants to comment on it or make some other statement, they may. But, I think the record should reflect that from the Court’s perspective, he’s obviously assisting counsel ably and functioning without the drowsiness that appeared yesterday.

There were no further comments regarding that issue.

As previously stated, at the close of the evidence, the court found that Defendant was guilty of second degree robbery. In particular, the court was convinced that Defendant had the requisite intent to inflict serious bodily injury despite his drug and alcohol use. Subsequently, the court sentenced |fiDefendant to serve 40 years’ imprisonment at hard labor for this offense. Defendant now appeals.

DISCUSSION

Assignment of Error 1 (verbatim): Mr. Griffin was denied his 6th Amendment right to confront his accusers because a police officer was allowed to testifg as to facts not in the police report, which the officer alleged the deceased victim had told him on the night of the incident.

Defendant first argues that the trial court erred by admitting the testimony of Ms. Crow and Deputy Guy relating to what Mr. Hill told them, respectively, in the car and during a subsequent interview conducted in Mr. Hill’s home after Defendant’s arrest. Defendant asserts that the statements were inadmissible hearsay and that the trial court also erred in finding the statements to be excited utterances. He further argues in his brief that, even if the statements were considered to be excited utterances, their admission into evidence violated Defendant’s right to confront his accusers.

La. C.E. art. 801 provides, in part:

C. Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.
D. Statements which are not hearsay. A statement is not hearsay if:
(4) Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

|7La. C.E. art. 802 provides:

Hearsay is not admissible except as otherwise provided by this Code or other legislation.

La. C.E. art. 803 provides, in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

La. C.E. art. 804 B provides, in pertinent part:

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.
(2) Statement under belief of impending death. A statement made by a declar-ant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

Mr. Hill’s statements were offered in part to prove the truth of the matter asserted and not just to explain the actions of police or Mr. Hill’s daughter. The statements, therefore, are hearsay. Since Mr. Hill never presented his testimony in an adversarial setting prior to his death, the exception in La. C.E. art. 804(B)(1) is inapplicable, and because there is no showing that Mr. Hill believed that his death was imminent at the time he IsSpoke to the witnesses, La. C.E. art. 804(B)(2) is inapplicable as well. Finally, the statements are not admissible as part of the res gestae because they are the statements of a participant about an event and were not integrally connected to the robbery. See, e.g., State v. Emerson, 31,-408 (La.App. 2d Cir.12/9/98), 722 So.2d 373, writ denied, 99-1518 (La. 10/15/99), 748 So.2d 470.

In some instances, however, a victim’s statement to police made after a crime may be admissible as an excited utterance, and so the court held in the case sub judiee. For example, in State v. Lawrence, 40,278 (La.App. 2d Cir.3/15/06), 925 So.2d 727, a recording of a 911 call made by a robbery victim immediately after a robbery was held admissible under the excited utterance rule. See also State v. Rhodes, 29,207 (La.App. 2d Cir.1/22/97), 688 So.2d 628, writ denied, 97-0753 (La.9/26/97), 701 So.2d 980, where a witness’s statements to police made immediately upon their arrival was held admissible. As this court stated in State v. Martin, 39,846 (La.App. 2d Cir.8/17/05), 913 So.2d 863, writ denied, 06-0110 (La.6/14/06), 929 So.2d 1267:

This exception requires an occurrence or event sufficiently startling to render the declarant’s normal reflective thought process inoperative. State v. Reaves, 569 So.2d 650 (La.App. 2d Cir.1990), writ denied, 576 So.2d 25 (La.1991). Furthermore, the statement of the de-clarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. State v. Henderson, 362 So.2d 1358 (La. 1978).
In determining whether the declarant was under stress of an excited event, the time span between the event and the statement is considered the most important factor. The trial court must determine whether the interval between the event and the statement was of sufficient duration to permit a 10subsidence of emotional upset and a restoration of a reflective thought process. State v. Jasper, 28,187 (La.App. 2d Cir.6/26/96), 677 So.2d 553, 563, writ denied, 96-1897 (La.2/21/97), 688 So.2d 521. Additional factors that may indicate that a statement was the result of a reflective thought are evidence that the statement was self-serving or made in response to an inquiry, or expansion of the excited utterance beyond a description of the event and into past or future facts, and proof that, between the event and the statement, the declarant performed tasks that required a reflective thought process. However these factors do not automatically justify exclusion, Henderson, supra; Jasper, supra. We also note that the Louisiana Supreme Court has long held that the admission of even hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Johnson, 389 So.2d 1302 (La.1980); State v. McIntyre, 381 So.2d 408, 411 (La.1980), cert denied, McIntyre v. Louisiana, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980).

The passage of time between an event and a statement about the event is an important factor in deciding the admissibility of a statement under this exception. See, e.g., State v. Michael, 39,439 (La.App. 2d Cir.1/7/05), 891 So.2d 109, writ denied, 05-0354 (La.6/17/05), 904 So.2d 681, where the statements of a victim at the hospital after a stabbing “arguably may not have been made under the influence of the traumatic stabbing event because of the passage of time.... ”

In the instant case, there are two sets of statements by Mr. Hill. The first statement was made to Mr. Hill’s daughter immediately after the crime while the deputies searched for a suspect, and the second statement was made 15 to 30 minutes later after Defendant had been arrested.

Statements made to Ms. Crow

We agree with the trial court that the statements made by Mr. Hill to his daughter constitute excited utterances and were, therefore, properly | ^admitted. Mr. Hill was initially unable to speak when his daughter arrived with the deputies, and his statements to her were made immediately after Mr. Hill was able to tell the deputies where to look for the suspect. The record shows that Mr. Hill was clearly still in a very excited state and had no time for reflective thought as he told Ms. Crow what had just happened to him. The trial court correctly concluded that Mr. Hill’s statements to his daughter while in her car qualified as excited utterances.

A finding that Mr. Hill’s statements to his daughter qualify as excited utterances does not, however, end the inquiry. Although the “excited utterance” exception to the hearsay rule has been described as a “firmly rooted” exception, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holds that the confrontation clause of the Sixth Amendment acts as an absolute bar on the admission of all out-of-court testimonial evidence unless (1) the witness who made the statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. State v. Ealy, 44,252 (La.App. 2d Cir.5/13/09), 12 So.3d 1052.

In the instant case, the witness was unavailable to testify because he died prior to the trial, and Defendant did not have the opportunity to cross-examine Mr. Hill prior to his death. Accordingly, the admissibility of the evidence under Crawford turns upon whether it was “testimonial.”

| nThe court in Crawford declined to provide an explicit definition of testimonial evidence, but the opinion explains:

An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

The fact that a statement is made to a person who is not a government officer does not, as a bright line, necessarily mean that the statement is not “testimonial” within the ambit of the Sixth Amendment. Courts have been much more reluctant, however, to find a statement made to a non-governmental officer to be testimonial. For example, in State v. Heggar, 39,915 (La.App. 2d Cir.8/17/05), 908 So.2d 1245, this court found the present-sense impressions of a victim made over the telephone to a witness immediately prior to the victim’s murder to be non-testimonial in nature. There was nothing to suggest that the victim believed that his statements would ever be used for formal purposes such as a trial. See also State v. Parks, 08-423 (La.App. 5th Cir.11/25/08), 2 So.3d 470, writ denied, 09-0142 (La.10/2/09), 18 So.3d 101, discussing Heg-gar and similar cases.

There are several risks, however, in treating all statements to non-governmental actors to be non-testimonial in nature, such as the opportunity for the government to wrongfully procure testimony from such witnesses and the “backdoor” reintroduction of the shibboleth of reliability rejected in Crawford. In this case, we find that Mr. Hill’s statements to his daughter — although they accuse Defendant of a crime — are not testimonial within the ambit of the protection of the Sixth Amendment. The elderly victim, under the immediate stress of a robbery and beating, was explaining to his | ^daughter how he came to be in his current condition. These are not the type of circumstances where an objective person in Mr. Hill’s position would believe that his statements would be used in a subsequent proceeding like a trial. Rather, Mr. Hill was explaining his urgent circumstances and distressed condition to his own daughter while waiting for paramedics to arrive. There was no formality or reflection in Mr. Hill’s statements; the suspect was still at lai’ge, presumably still a danger to others, and the elderly victim had immediate need of medical attention. Mr. Hill’s statements to his daughter were not testimonial under the circumstances of their making. Hence, under the circumstances, the trial court did not err in allowing Mr. Hill’s daughter to testify about what her father told her and in admitting this evidence to prove the truth of the matters asserted therein.

Statements made to Deputy Guy

The classification of Mr. Hill’s statements to Deputy Guy as excited utterances is a much closer question. In most cases, the statements made to police by a victim of a crime during an interview 15 minutes after police have arrived and arrested the suspect would not be considered to be excited utterances. Typically, a victim in those circumstances would have calmed down and had time to engage in reflective thought. The present case is more problematic, however, due to Mr. Hill’s age and condition. Mr. Hill was 85 years old, frail, nearly blind and had just been the victim of a serious beating. The witnesses described Mr. Hill as nervous, hurt and dazed at the time he made the statements to the deputy, and it appears that he was still, to a degree, under the influence of the shock and trauma of the offense. A | <;ireview of the cases applying the excited utterance exception, however, leads us to conclude that the passage of time from the statements made to the daughter in the car to the point when Mr. Hill was moved back inside the residence, placed in his recliner and was answering questions of the deputy disqualifies the statements as excited utterances. We find, therefore, that the statements made to Deputy Guy were improperly admitted.

We further find that Mr. Hill’s statements to the deputy were also inadmissible under Crawford, supra, as they were testimonial in nature. These statements were made to a government officer after the arrest of the suspect, and statements such as those Mr. Hill made to the deputy might be expected by an objective person to be used in a trial setting. Although the State argues that the statements to the deputy were not testimonial because they were made to enable police assistance to an ongoing emergency, that assertion is not well supported by the facts. Defendant was under arrest when the statements were made and the statements were offered, in part, to prove that Defendant beat Mr. Hill and took his property. Thus, Mr. Hill’s statements to police were “testimonial” within the meaning of Crawford.

Confrontation rights claims, however, are subject to harmless error analysis. State v. Ealy, supra, citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131. The inadmissible testimony of Deputy Guy was largely cumulative of the admissible testimony of Mr. Hill’s daughter. Ms. Crow’s testimony proved that Defendant was the person who beat Mr. Hill and that the beating was concomitant with the robbery. Moreover, |14the circumstantial evidence in this case was simply overwhelming. In this regard, we note that the defense at trial focused primarily on Defendant’s ability to form the requisite mental state due to his intoxication at the time of the offense, not that Defendant did not commit the offense.

In summary, although the trial court erred in some respects in its handling of these evidentiary matters, the admissible evidence was sufficient to prove Defendant’s guilt beyond a reasonable doubt, and any error in the admission of the cumulative hearsay evidence was harmless beyond a reasonable doubt. Accordingly, this assignment of error is without merit.

Assignment of Error 2 (verbatim): Mr. Griffin was denied his 6th Amendment right to a fair trial because he was forced into trial under the influence of medication which prevented him from following the proceedings and assisting his lawyer.

Assignment of Error 3 (pro-se, verbatim) The Appellant was denied his right to a contradictory hearing pursuant to La. C.Cr.P. art. 647 and to have all conferences recorded pursuant to La.C.Cr.P. art. 843 during a motion to continue based on Mr. Griffin’s mental competence.

Defendant argues that the trial court should have granted his motion to continue the trial because he was incapable, due to his medication regimen, of assisting his attorney with his defense. He further argues that the record is inadequate to review the trial court’s findings on this issue.

La.C.Cr.P. art. 641 provides: Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

The two-fold test of capacity to stand trial is whether the defendant: (1) understands the consequences of the proceedings, and (2) has the ability to | ^assist in his defense by consultation with counsel. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). While a court may receive the aid of expert medical testimony on the issue of competency to proceed, the ultimate decision of capacity rests with the trial court. Id. The defendant has the burden of proving, by a preponderance of the evidence, his incompetence to stand trial. State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365.

The record in this case demonstrates that the trial judge gave thoughtful consideration to Defendant’s request for a continuance based upon his mental condition. The court had Defendant questioned by a physician on the morning before trial began, and the court then conferred with the physician by telephone. Defendant’s primary objection to proceeding with the trial was his fear that, if he testified, he might suffer prejudice due to his being medicated. In fact, Defendant’s attorney expressed some confidence that Defendant could assist in the conduct of the trial. Although there is no transcript of the conversation between the physician and the trial judge, the record reflects that Defendant’s attorney heard parts of the conversation when repeated out loud by the trial judge during the telephone conversation. In addition, we note that Defendant’s attorney was able to assist the court in recalling what the doctor had said during that telephone conversation.

We conclude that the record is adequate to show that the trial court’s decision is supported by the evidence available to the court at the time the | ^decision was made. Further, the record shows that the court’s decision was correct; the examining physician’s opinion was that Defendant would be drowsy, but not stuporous, during the trial. The trial judge had the opportunity to examine Defendant personally and decide whether he was competent to proceed. In addition, as quoted earlier in this opinion, the trial judge observed Defendant throughout the trial and noted for the record at the end of the first day that Defendant appeared not to be as drowsy as he had been the day before and had been assisting his attorney.

Finding the decision of the trial judge to proceed with the trial to be correct and because the record is adequate to review that decision, we conclude that these assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Robert Todd Griffin, are affirmed.

AFFIRMED.

      . This is a person who, along with Defendant, had done some work at the victim’s property in the past.

      . Defendant called his mother to come and pick him up. His mother traveled to Mr. Hill’s home, but no one answered the door when she arrived, so she left.

      .While Defendant was in jail, his mother retrieved Defendant's belongings; among the belongings was a watch that belonged to Mr. Hill.

      . Defendant was not incarcerated pending trial. He was under house arrest and had undergone surgery. At the time of trial, Defendant was taking prescribed drugs, including Lorcet, Xanax, Zoloft and Trazedone.

      . Crawford criticized the “firmly rooted” distinction. See also Giles v. California,-U.S. -, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), for a discussion of die historical foundations of exceptions to the hearsay bar.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Ronnie ALLEN, Appellant.
    No. 45,040-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Louisiana Appellate Project by Peggy J. Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

11 The defendant was charged with illegal possession of stolen things, possession of marijuana and possession of drug paraphernalia. Pursuant to a plea agreement, in exchange for entering a guilty plea on the first two charges, the state agreed not to prosecute the defendant on the third charge, and it agreed to not file a multiple offender bill against him. The court imposed a sentence of six years. The defendant now appeals, alleging the sentence is excessive. We affirm.

On November 7, 2008, a state trooper in Webster Parish traveling East in the left-hand lane on 1-20 observed a gray Honda Civic passing at a high rate of speed in the right-hand lane. The vehicle, driven by the defendant with his wife in the passenger seat, had a Texas license plate. The trooper entered a license plate check and learned that the vehicle had been reported stolen. A chase ensued, and the trooper initiated a traffic stop, ordering the defendant out of the vehicle.

The defendant told the state trooper that his wife owned the vehicle. Defendant requested the wife to produce the registration of the vehicle. She opened the glove compartment, which contained a cigar box containing marijuana and contraband. She could not produce a vehicle registration. Both were arrested.

Allen, a Texas resident, was charged via three separate bills of information with illegal possession of stolen things (value $500 or more), possession of marijuana, and possession of drug paraphernalia. Pursuant to |2a plea agreement, he would plead to the first two crimes, the state would nolle pros the paraphernalia charge, and the state would not charge him as a multiple offender. He was subsequently sentenced to six years at hard labor. On appeal, the lone error assigned is that the sentence is excessive.

At the sentencing hearing, the trial court reviewed Allen’s criminal history. The court noted that in 1998 Allen pled guilty to the misdemeanor crimes of evading arrest and unlawful carrying of a weapon. Later that year he pled guilty to possession of marijuana and was sentenced to 60 days in jail. Still later that year, he pled guilty to aggravated robbery in Texas and was sentenced in 1994 to serve five years.

The court next reviewed Allen’s family, social, and employment history, including the fact that Allen was married and had a 9-year-old daughter. The court then noted that Allen was considered to be a 38-year-old second felony offender, and that the court had taken into consideration Allen’s criminal history, social factors, and all of the factors under La. C. Cr. P. art. 894.1. The court stated that it did not consider Allen to be a good risk for probation. Finding that any lesser sentence would take away from the seriousness of the offense, the court sentenced Allen to 6 years at hard labor. After motions to reconsider sentence were denied, Allen filed this appeal.

DISCUSSION

As noted above, the lone assignment of error concerns excessive sentence. Allen argues that although he had previous criminal offenses, they all occurred within approximately a four-month time period in 1993 | sand that there was no indication that Allen had any other trouble with the law except for the present offense. He argues that after graduating from high school, he served in the military for two years and was honorably discharged. After his release from prison, he has held the same employment for 10 years before losing his job in a general lay off in June of 2008. He has been married for 10 years, and has a 9-year-old daughter. He states that a lengthy prison sentence will work a considerable hardship on his wife and child, and that with only his wife’s income for support, she and the daughter most likely will find it extraordinarily difficult to make more than occasional trips to visit Allen in Louisiana. Thus, he argues that even though the trial court reviewed all the sentencing factors and imposed a sentence within the statutory limits, the sentence is excessive and is not consistent with the jurisprudence.

The state asserts that Allen received a considerable benefit from the plea agreement which reduced his sentencing exposure, and the state notes that the trial court has great discretion in imposing even the maximum sentence. The state argues that the sentence imposed is well within the statutory limits and that the sentence is not excessive.

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);4 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. Landos, 419 So.2d 475 (La.982); 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. 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; State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 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 |sconsidered 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. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

In the instant case, Allen admits that the first prong of the test is satisfied because the trial court reviewed all the sentencing factors in arriving at a sentence within the statutory limits. Thus, the question is whether his sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App. 2 Cir. 12/13/06), 945 So.2d 267; State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, |fi04-0597 (La.9/24/04), 882 So.2d 1165.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Boyte, 42,763 (La.App. 2 Cir. 12/19/07), 973 So.2d 900, writ denied, 08-0175 (La.6/20/08), 983 So.2d 1272; State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866, writ denied, 06-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2 Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App. 2 Cir. 5/9/07), 956 So.2d 779.

After reviewing the record herein, we conclude that the trial court did not abuse its great discretion in its choice of sentence for this offender. The sentence for illegal possession of stolen things, when the value of the stolen things is $500 or more, is imprisonment, with or without hard labor, for not more than 10 years, or a fíne of not more than $3,000, or both. La. R.S. 14:69(B)(1). Thus, Allen received a mid-range sentence with no fine. Such a sentence is within the trial court’s great discretion where Allen was a second felony offender, even without considering the other two offenses with which he was charged or the prior misdemeanor crimes, and where Allen received some benefit from pleading guilty. The sentence does not 17constitute purposeless and needless infliction of pain and suffering. Accordingly, the defendant’s sentence is hereby affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The record before this court does not indicate that any sentence was imposed for possession of marijuana. Accordingly, nothing in this opinion should be construed to affect the defendant's rights regarding any such sentence.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Diverious C. HOLDEN, Appellant.
    No. 45,038-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Louisiana Appellate Project, by Edward Kelly Bauman, Lake Charles, for Appellant.
    Diverious C. Holden, Richard Christopher Nevils, District Attorney, Steven D. Crews, Assistant District Attorney, for Ap-pellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

11 Defendant, Diverious Holden, a trustee incarcerated in Winn Parish, was convicted at jury trial of four felony drug charges, all committed during his incarceration. He received a significant prison term for each crime, though all sentences were ordered to be served concurrently. The trial court ordered that these four concurrent sentences be served consecutively with the sentences he was serving when he breached the trust granted him as a trustee.

This appeal involves his convictions of and sentences for the following crimes:

• Possession of marijuana with intent to distribute, for which he was ultimately ordered to serve 20 years at hard labor;
• Possession of cocaine with intent to distribute, for which he was sentenced to 20 years at hard labor, with the first two years to be served without benefits;
• Possession of Xanax with intent to distribute, for which he was sentenced to serve 10 years at hard labor; and
• Introduction of contraband into a penal institution, for which he received a sentence of five years at hard labor.

He appeals his convictions and sentences. We affirm in all respects.

FACTS

In 2008, Holden was a trustee at the Winn Parish Jail, housed in a cell designated for such apparently reliable inmates. On the morning of May 15, Holden failed to report for his work detail. The infraction resulted in his loss of trustee status and a transfer to lockdown.

Winn Parish Sheriffs Deputy Raymond Whittington, the jail warden, ordered Holden and another inmate out of their cell. Both were ordered to | ¿move their belongings into the hall. Holden moved two lockers into the hall, one unlocked and the other locked. A search of the unlocked locker revealed only clothing. After cutting the lock from the other locker, Whit-tington found therein a sock containing marijuana, as well as individual packets of white powder and a nonprescription pill bottle containing approximately 45 pills. In addition, the locker also contained 69 packs of cigarettes and various legal personal items. Holden denied ownership of the drugs but admitted that the other items belonged to him.

Analysis of the suspected contraband from the locker revealed the items to be marijuana, cocaine, and alprazolam (Xa-nax). Holden was chai’ged with possession with intent to distribute the three drugs, as well as introduction of contraband into a penal institution.

DISCUSSION

1. Sufficiency of the Evidence

Holden contends the evidence presented was insufficient to sustain the convictions of guilt, in that:

• the testimony of the state’s witnesses was not credible;
• the locker containing the drugs did not belong to him;
• the state did not disprove that the drugs belonged to another inmate; and
• the state did not prove that he specifically intended to distribute the drugs.

Not surprisingly, the state disagrees, arguing that sufficient evidence was presented by which the jury could infer that Holden was a principal to |,,the offenses, and that the jury’s determination on witness credibility is not subject to review.

Our law on sufficiency of the evidence is well settled. Likewise, our law is well settled relative to assessing the requisite proof for crimes of alleged possession of drugs with intent to distribute.

|ltThe state was easily able to establish the essential elements of the charged offenses.

Deputy Raymond Whittington, the jail warden at the time of the incident, testified that:

• he learned that Holden and another inmate had not gone to work on May 15, 2008, so he went to their cell, where he found Holden asleep;
• after awakening Holden, Whittington prepared to move Holden to another cell for lockdown;
• Holden moved his two standard-issue jail lockers into the hallway;
• he (Whittington) used bolt cutters to remove the lock, finding the drugs;
• he consulted with Chief Deputy Gregg Davies about his discovery;
|fi* Chief Davies called in Detective Darrell Winder to investigate the case;
• the lockers were not labeled with names; however, Holden brought the lockers out of the cell himself when told to bring out his belongings;
• the lock he cut off Holden’s locker was a “gun lock” that the sheriffs office supplied to the public;
• these locks were not issued to inmates though some inmates had them;
• he first searched Holden’s unlocked locker, finding no contraband;
• the sock containing the drugs had markings on it matching socks found in Holden’s unlocked locker;
• no key was ever found for the lock; and
• the lockers remained in the hallway outside the cell until he turned the investigation over to Winder.

Chief Deputy Gregg Davies testified that:

• Whittington informed him that Holden had not reported for work;
• he (Davies) told Holden that he would lose his trustee privileges;
• he instructed Whittington to move Holden from the trustee cell;
• shortly thereafter, Whittington arrived at Davies’ office, showing him contraband that was confiscated from Holden’s locker;
• he (Davies) observed marijuana inside the sock; and
• he contacted Winder to take over the investigation.

Winn Parish Detective Darrell Winder testified that:

• Davies assigned him to investigate the discovery of drugs at the jail;
• he (Winder) identified the evidence seized that day and confirmed that it had been in his possession since it was turned over to him;
• he identified the sock that contained the marijuana, as well as a “Dollar General white pill bottle” containing 49 Xanax tablets, as well as the small packages of cocaine seized from Holden’s locker;
!,;• sixty-nine packages of cigarettes were found inside the locker;
• he took possession of the lock that had been cut from Holden’s locker;
• inside the locker containing drugs, he found photos of Holden and his family;
• he took photographs of the items taken from Holden’s locker;
• he interviewed Holden, who waived his rights and voluntarily answered questions, admitting ownership of many items in the locker, but not the drugs;
• Holden initially denied having a key for the locker, but took Winder to the cell to look for it;
• no key to the locker was found;
• the sock containing drugs had an emblem drawn on it that matched socks Holden was wearing as well as other socks found in his other locker;
• Holden indicated a former inmate gave the socks to him;
• he (Winder) submitted the evidence to the crime lab for analysis;
• after analysis, the drugs were secured in the sheriffs evidence room;
• he identified at trial the crime lab certificate reflecting that the substances tested positive for marijuana, cocaine, and alprazolam (Xanax);
• the amount of marijuana recovered was more than someone usually had for personal use;
• the cocaine was individually packaged, inconsistent with personal use;
• the large quantity of pills was also inconsistent with personal usage;
• when asked the significance of all these items being found together in the locker, he testified, “He’s got a store. He’s selling.”;
17* there were approximately six inmates in the cell at the time the drugs were found but he was unsure of how many lockers may have been in the cell;
• he never searched Holden, nor was Holden drug screened, nor did he find any money; and
• another inmate tested positive for marijuana.

Johnny Lowery, another prisoner at the Winn Parish Jail, testified that:

• he was a trustee with Holden on May 15, 2008;
• a few weeks prior to that date, Holden asked Lowery for a lock and key, which Lowery provided him;
• Holden put the lock on his locker;
• Holden locked the locker every morning before leaving and unlocked it upon his return in the evening;
• there were other lockers and locks, but none like what he had given Holden;
• he (Lowery) had obtained the lock from another inmate, who had subsequently been released; and
• he (Lowery) could not use the lock because his locker did not have a latch.

Detective Winder was recalled as the only defense witness, testifying that:

• he had been asked to obtain records detailing what inmates were housed in Holden’s cell on the day the drugs were discovered;
• the records were unavailable, but he did recall a few of the inmates in the cell;
• he again testified that he did not search any of the inmates or their lockers, nor did he ever find the key for the lock; and
• no fingerprints were taken from the evidence because it had been handled by Whittington before Winder took possession of the items.

_|¿¡Possession of the Drugs, with Intent to Distribute

The evidence presented by the state was sufficient to convict Holden of the charged offenses. The state was required to prove beyond a reasonable doubt that Holden knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. With regard to each of the controlled substances, the state was able to show that the substances were found in the locker used by Holden to hold his possessions. When roused from his cell and told to gather his belongings, Holden independently removed the lockers to the hallway, evidencing his dominion over them. While Holden maintained two lockers, only the locker containing the drugs was locked. Several weeks prior to the discovery of the drugs, Holden had obtained a lock for use on the locker containing the contraband. Holden was seen locking the locker when departing his cell and unlocking it upon his return. It was reasonable for the jury to infer that Holden was aware that the contraband was in that locker.

The quantity and packaging of the contraband was consistent with someone selling drugs, and inconsistent with personal use, and it was reasonable for the jury to conclude as much.

Introduction of Contraband into a Penal Institution

La. R.S. 14:402(E) provides, in pertinent part:

It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
i * * * 19
(5) Any narcotic or hypnotic or exci-tive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq.

In order to convict Holden of introduction of contraband into a penal institution, it was necessary for the state to show that he introduced a controlled and dangerous substance upon the premises of a municipal or parish jail. It was proved that Holden was in possession of three controlled dangerous substances as defined in La. R.S. 40:964. Holden through his own efforts, or as a principal with the assistance of unknown others, caused the substances to be located in the jail. Holden’s knowledge of the presence of the substances could be inferred by his actions in secreting the contraband in his locker.

II. Ineffective Assistance of Counsel

Our law on ineffective assistance of counsel is well settled.

1 mDefendant points to these issues in alleging ineffective assistance of counsel:

(A) Sequestration violations;
(B) Allowing the state’s court representative, a deputy, to testify as an expert on drug transactions, after hearing others testify; and
(C) Improper chain of custody.

Sequestration

Defendant complains that his lawyer failed to object to the presence of Detective Winder in the courtroom during the testimony of two other material witnesses, prior to his taking the stand. Holden contends that Winder, the state’s representative at trial, should have testified before other witnesses.

[T1The state responds that this record reflects no prejudice to Holden. Additionally, no objection was made during trial regarding any of the issues now being raised by Holden. With regard to Detective Winder, the state contends there was a sufficient foundation laid for his testimony.

The purpose of sequestration is to assure that a witness testifies as to his own knowledge, to prevent witnesses from being influenced by the testimony of others, and to strengthen the role of cross-examination in developing facts. In examining sequestration violations, the reviewing court considers the facts of each case to determine whether or not prejudice resulted. A violation of a sequestration order does not warrant a mistrial unless the infraction materially prejudiced the defendant. See State v. Barber, 30,019 (La.App. 2d Cir.1/21/98), 706 So.2d 563, writ denied, 98-1353 (La.10/9/98), 726 So.2d 24.

La. C.E. art. 615. Exclusion of witnesses, provides in part:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
* * *
(2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney.

Holden contends that Detective Winder’s testimony should have been taken prior to the testimony of other material witnesses in the case. The Instate argues that its case was presented in sequential order based on the witnesses’ involvement. Holden alleges that his trial attorney should have objected to this and his failure to do so, combined with other errors, requires that the convictions be reversed and the matter be remanded to the trial court for further proceedings.

Expert Testimony by the State’s Court Representative, a Law Officer

Even had he not been qualified as an expert, Detective Winder could have provided the testimony as a lay witness. Based on the detective’s vast experience with narcotics cases, it was permissible for the court to allow him to testify as to the inferences he drew from the observation of the drags seized from Holden. After all witnesses in the matter were placed under the rule of sequestration, the state designated Detective Winder as its case representative. No objection was lodged to this designation by Holden. The trial proceeded, with the state calling two witnesses before Detective Winder testified.

No error occurred in this instance. As noted by the state, the testimony of its witnesses was given in sequential order based on their involvement in the case. The majority of Detective Winder’s testimony was not cumulative of the testimony of the other witnesses in that each described their limited roles in the investigation. Detective Winder’s testimony centered around his own subsequent investigation of the matter, including his interview of Holden and his handling of the evidence obtained in the matter. Neither of the witnesses who testified prior to Detective Winder | ^discussed the investigation following the initial discovery of the contraband. The witnesses indicated in them testimony that they turned the investigation over to Detective Winder. While it is preferable that a case agent testify first (see comment (d) to La. C.E. art. 615), failure to adhere to this procedure is not an absolute prejudice to the defendant. Based on the facts and circumstances presented herein, we cannot say that Holden was prejudiced by allowing Detective Winder to testify after hearing the testimony of the other witnesses.

During the trial, Detective Winder testified that:

• he had worked as a detective with the Winn Parish Sheriffs Office for 13 years and during that time he attended various drug training classes;
• he had been involved in about 100 narcotics cases during his career, including matters involving marijuana, cocaine, and Xanax;
• the amount of marijuana recovered from Holden’s locker was more than someone usually had for personal use;
• the cocaine was individually packaged for sale and each package weighed 0.3 grams, another factor inconsistent with personal use; and
• with respect to the Xanax, Winder indicated the large quantity of pills was also inconsistent with personal usage.

In accordance with La. C.E. art. 701, it was permissible for Detective Winder to express his opinion regarding the packaging and quantity of the drugs found in Holden’s locker. An objection would have been for naught.

Though usually claims of ineffectiveness of counsel are more properly raised on post conviction relief, this record is sufficient to review 114Holden’s claims. In determining whether Holden received ineffective assistance of counsel, it has not been shown by this record that trial counsel’s performance fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Even if prejudice is presumed, Holden has failed to show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Defendant has failed in proving his claim of ineffectiveness.

Chain of Custody

Holden contends that his trial counsel should have objected to the introduction of the evidence, since the state failed to sufficiently establish a chain of custody. The state contends no objection was made to the chain of custody during the trial and, furthermore, that neither the defendant’s brief nor the record discloses a fatal flaw in the chain of custody.

Our law on reviewing the chain of custody is well settled.

We can discern no break in the chain of evidence. Whittington discovered the items in Holden’s locker, took possession of the contraband, ^submitted it to the crime lab for analysis, and then kept it in the sheriffs evidence room until trial.

Considering the testimony regarding the evidence, we do not find that there was any defect in the chain of custody, and even if a defect were presumed, it would have gone to the weight of the evidence as opposed to its admissibility. As it does not appear that there was any error in connection with the chain of custody, it was not necessary for counsel to lodge a meaningless objection. Counsel’s representation was reasonable and competent, as required by prevailing professional standards demanded for attorneys in criminal cases.

Even if error could somehow be presumed, Holden has not shown that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Holden fails to specifically identify how the outcome of the trial would have been different had an objection to the chain been lodged. A defect in the chain of custody would not have rendered the evidence inadmissible but would have gone to the weight of the evidence. This argument falls far short of the mark.

III. Excessiveness of Sentence

Our law on review for excessiveness of sentence is well settled.

| KjThe record shows that the trial judge was cognizant of the appropriate sentencing factors prior to imposing the sentence. Though Holden contends that a presen-tence investigation (PSI) was not utilized, the record lodged with this court does include a PSI. In the written ruling issued by the trial judge, it is noted that Holden was incarcerated as a result of two felony convictions for drug-related offenses at the time of the instant offenses. While the trial judge does not list Holden’s social history |17in its ruling, it cannot be said that the trial judge was unaware of the factors Holden now contends were not considered.

The trial court reviewed the sentencing guidelines listed in La. C. Cr. P. art. 894.1, as evidenced by the court’s finding that there would be an undue risk that during a period of a suspended sentence or probation, Holden would commit another crime. The trial judge also found that Holden was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution. Based on Holden’s criminal history, the court expressed doubt that Holden would respond affirmatively to probationary treatment. The court found no relevant mitigating factors.

The sentences imposed are appropriate for this third felony offender who has previously failed to avail himself of the rehabilitative opportunity presented to him while incarcerated. Instead of seizing an opportunity to reform, Holden, while serving time for two prior drug offenses, embarked upon a venture to distribute drugs while incarcerated. Apparently this recidivist was undaunted by his incarceration. We cannot reward him for this attitude.

CONCLUSION

The evidence in this record, while circumstantial, is overwhelming, and amply justifies the four guilty verdicts. The sentences, if anything, are light, considering the past actions of this repeat offender.

[ |,)We find no errors patent.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . Most inmates typically kept their belongings in lockers issued by the jailer.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97), 701 So.2d 1333. 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. Bason, 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. See also, State v. Bowie, 43,374 (La.App. 2d Cir.9/24/08), 997 So.2d 36.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497.
      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 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, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . To convict a defendant of possession of a controlled dangerous substance with intent to distribute, the state must prove beyond a reasonable doubt that he knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. La. R.S. 40:967; State v. Moore, 40,311 (La.App. 2d Cir.1/13/06) 920 So.2d 334, writ denied, 2006-2267 (La.6/1/07), 957 So.2d 167.
      It is not necessary for the state to prove that the defendant was in actual possession of the contraband; rather, proof of constructive possession is sufficient. Constructive possession is shown when the state proves that the contraband was within the defendant’s dominion and control and that the defendant had knowledge of its presence. State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910; State v. Taylor, 39,651 (La.App. 2d Cir.4/6/05), 900 So.2d 212; State v. Holland, 37,922 (La.App. 2d Cir. 12/10/03), 862 So.2d 448.
      When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant's possession which give rise to reasonable inferences of intent to distribute. State v. Brown, 43,458 (La.App. 2d Cir.9/24/08), 996 So.2d 461.
      The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to distribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute. State v. Clark, 35,272 (La.App. 2d Cir. 12/5/01), 803 So.2d 280. Testimony of street value and dosage of the drug is also relevant to the issue of intent to distribute. State v. House, 325 So.2d 222 (La. 1975); State v. Gladney, 29,791 (La.App. 2d Cir.9/24/97), 700 So.2d 575. Mere possession of contraband does not amount to evidence of intent to distribute "unless the quantity is so large that no other inference is possible.” State v. Hearold, supra; State v. Greenway, 422 So.2d 1146 (La. 1982). La. C.E. art. 701 permits a law enforcement officer to express an opinion regarding matters of personal knowledge gained through experience, even if the witness is not first qualified as an expert. Slate v. Lowery, 609 So.2d 1125 (La.App. 2d Cir. 1992), writs denied, 617 So.2d 905 (La. 1993).

      . At trial, he identified the drugs and several other state exhibits.

      . Including the 69 packages of cigarettes and his personal photos.

      . He also identified the crime lab evidence transfer receipt.

      . 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 evidentiary 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, 2006-1903 (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, the 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, tactical 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, 2007-1193 (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, 2004-2011 (La. 12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel's deficient performance prejudiced his defense. This element requires a showing 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, 2002-1570 (La.5/30/03), 845 So.2d 1067.

      . To admit demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Toney, 26,711 (La.App. 2d Cir.3/1/95), 651 So.2d 387; State v. Daniels, 614 So.2d 97 (La.App. 2d Cir. 1993), writ denied, 619 So.2d 573 (La. 1993); State v. Caston, 583 So.2d 42 (La.App. 2d Cir. 1991), writ denied, 585 So.2d 575 (La. 1991).
      It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. The State need only establish by a preponderance of the evidence that the object is the one connected with the case. State v. Toney, supra. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Jackson, 629 So.2d 1374 (La.App. 2d Cir. 1993), writ denied, 94-0201 (La.5/6/94), 637 So.2d 1046. Also sec State v. Burd, supra.

      . The defendant alleges the trial court failed to consider the appropriate factors in determining his sentence. The defendant indicates that the record is devoid of any indication that the trial judge complied with La. C. Cr. P. art. 894.1. The defendant specifically argues that adequate consideration was not given to his age, his minor son, and his drug addiction. The defendant further alleges that he is not the most egregious of offenders and that he is in need of rehabilitation for his drug addiction which could best be provided in a non custodial environment.
      The state counters that the trial judge adequately reviewed the appropriate sentencing criteria as evidenced by his written ruling. 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. Landos, 419 So.2d 475 (La. 1982); State v. Hampton, 38,017 (La.App. 2d 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. 2d 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. 2d Cir.8/13/08), 989 So.2d 267; 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; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 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.
      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.2d Cir. 1/26/05), 892 So.2d 710.

      . The defendant had prior felony convictions for possession of cocaine with intent to distribute (November 21, 2001) as well as possession of marijuana with intent to distribute and possession of Xanax with intent to distribute (August 28, 2007).


text:
    STATE of Louisiana, Appellee, v. Brandi Roshell JONES, Appellant.
    No. 45,034-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Fred R. McGaha, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS <& DREW, JJ.
   PEATROSS, J.

| defendant, Brandi Roshell Jones, was charged with one count of conspiracy to commit armed robbery and one count of armed robbery for an incident occurring on December 23, 2008. Defendant was also charged with one count of conspiracy to commit armed robbery and one count of armed robbery in connection with a separate incident occurring on December 1, 2008. After defendant entered a guilty plea to one count of armed robbery with a firearm, the remaining charges were dismissed. The trial court imposed an agreed upon sentence of 15 years at hard labor to be served without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s sentence is affirmed.

FACTS

On December 23, 2008, Defendant and two female accomplices robbed Rhonda Naron and Terry Esswein, two employees of a Zales jewelry store, when the employees were attempting to make a deposit in a night deposit box at a Chase Bank in Monroe, Louisiana. During the robbery, Defendant and the two accomplices were armed with a .9 mm handgun. When they were apprehended by the Monroe Police Department, they tried to flee the scene.

As previously stated, with respect to the events of that evening, Defendant was charged with one count of conspiracy to commit armed robbery, in violation of La. R.S. 14:26 and 14:64, and one count of armed robbery, in violation of La. R.S. 14:64. The bill of information mentions that Defendant was armed with a pistol with respect to the armed robbery |2count but does not mention the firearm enhancement statute, La. R.S. 14:64.3, as a provision under which Defendant was charged. The bill also charges Defendant with one additional count each of conspiracy to commit armed robbery and armed robbery for a separate incident occurring on December 1, 2008.

After initially entering a plea of not guilty to the charges in the bill of information, Defendant appeared before the trial court on April 20, 2009, and entered a guilty plea to one count of armed robbery committed with a firearm in exchange for the trial court dismissing the remaining charges pending against her and for an agreed upon minimum sentence of 15 years at hard labor. The following exchange took place between Defendant and the trial judge prior to his acceptance of the plea bargain agreement:

BY THE COURT: You won’t offend me if you interrupt me, I promise you. On your form it should say, “I” and it’ll say “Brandi Jones,” hereby plead guilty to the crime of Armed Robbery. Is that correct?
BY MS. JONES: Yes, sir.
BY THE COURT: And that’s with a firearm, that’s why it’s fifteen years. You understand it goes from minimum of ten years to fifteen years when you have a firearm or dangerous weapon. Do you understand that?
BY MS. JONES: Yes, sir.

Additionally, prior to taking the plea, the trial judge asked the State for the applicable statute and penalty, to which the State replied as follows:

Judge, 14:64 on the Armed Robbery and it’s not less than ten nor more than ninety-nine years and if a firearm is used then there’s an additional five year which has to be consecutive.

|sAfter the court informed Defendant of all of her applicable constitutional rights and confirmed with Defendant that she knowingly and intelligently waived those rights, Defendant submitted a guilty plea. Defendant then waived the sentencing delays and the trial judge imposed sentence as follows:

Okay. Then if you’re waiving the delays then I will go ahead and sentence you to the agreed upon sentence at this time. In count number one, Armed Robbery with a Firearm, as it’s charged, the court will sentence you to the agreed upon sentence of fifteen years at hard labor. That sentence is to be served without benefit of probation, parole or suspension of sentence and you are given credit for time served. The remaining charges are to be dismissed per plea and sentence.

DISCUSSION

Assignment of Enror 1 (verbatim). The sentence imposed in this proceeding is an indeterminate sentence.

In Defendant’s sole assignment of error, she complains that the sentence imposed by the trial judge is indeterminate because she did not receive a distinct sentence for the armed robbery count followed by a separate sentence for the firearm enhancement and, instead, received one aggregate sentence of 15 years at hard labor. In support of her argument, Defendant cites this court’s opinions in State v. White, 42,725 (La.App.2d Cir.10/24/07), 968 So.2d 901, and State v. Birch, 41,979 (La.App.2d Cir.5/9/07), 956 So.2d 793.

In both State v. White, supra, and State v. Birch, supra, the defendants were convicted by juries of armed robbery with a firearm and received sentences of 35 years at hard labor and 30 years at hard labor, respectively. In neither case did the trial judge specify what portion, if any, |4of the defendants’ sentences were imposed under La. R.S. 14:64.3. As this court stated in State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, “the majority in White, supra, found the sentences to be indeterminate because of the trial court’s failure to impose the additional consecutive terms.” The circumstances involving Defendant in the present case, however, are clearly distinguishable.

Defendant’s plea and sentencing transcript clearly shows that the trial judge imposed, during sentencing, the additional consecutive term required by La. R.S. 14:64.3. As the transcript excerpts above reflect, Defendant understood that she was pleading guilty to armed robbery with a firearm and that she was to receive the minimum sentence of 10 years for the armed robbery count along with an additional 5 years under La. R.S. 14:64.3 due to the use of a firearm.

La. R.S. 14:64 defines the crime of armed robbery and provides a sentence of imprisonment at hard labor for not less than 10 and not more than 99 years without benefits. La. R.S. 14:64.3 is an enhancement provision which tacks on an additional 5 years at hard labor without benefits when the weapon used in the commission of armed robbery is a firearm. This additional 5 years is to be served consecutively to the sentence imposed under La. R.S. 14:64.

The statutes under which Defendant was sentenced required her to be sentenced to a minimum of 10 years plus a consecutive sentence of 5 years at hard labor. The record reflects that her 15-year hard labor sentence includes the additional 5 years required under La. R.S. 14:64.3. Accordingly, we find that Defendant’s sentence of 15 years at hard labor without benefits is not an indeterminate sentence.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Brandi Roshell Jones, is affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Billy AUTRY, Appellant.
    No. 45,029-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Edward K. Bauman, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   GASKINS, J.

| jThe defendant, Billy Autry, appeals as excessive his sentence to 20 years at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence, following his guilty plea to possession of cocaine with intent to distribute. For the following reasons, we affirm the conviction and sentence.

FACTS

On October 12, 2008, the Minden Police Department received information that the defendant was at a motel in Minden, Louisiana, selling crack cocaine. The officers who responded to the call smelled marijuana coming from the defendant’s motel room. When the motel room door was opened, the officers asked the defendant to step outside. At that point, the officers saw a marijuana blunt in plain view on a table in the room. The defendant was placed under arrest. The officers found a small container in the defendant’s pocket which he stated contained crack cocaine. The defendant was also carrying $2,500 in cash.

A female inside the motel room with the defendant told the police that she and the defendant had been in the room getting high on crack cocaine and that the defendant was her “dope man.” The money was seized and turned over to the district attorney’s office and the 19 rocks of crack cocaine found on the defendant, as well as the marijuana, were placed into evidence.

On November 20, 2008, the defendant was charged by a bill of information with one count of possession of cocaine with intent to ^distribute. On February 23, 2009, the defendant pled guilty to the charge and the state agreed not to charge the defendant with felony possession of marijuana or to file a multiple offender bill. A presentence investigation report was ordered.

The defendant appeared before the court for sentencing on May 11, 2009. During the sentencing hearing, the court considered the defendant’s extensive criminal history for drug-related offenses. The defendant had prior convictions in 2005 for attempted possession of cocaine and in 2007 for possession of cocaine. The court also noted that the defendant’s pai’ole and probation had been revoked on different occasions because of repetitive offenses. The court considered that the defendant was currently unemployed, had finished the 12th grade in special education, and had one young child who was cared for by the child’s mother. The court noted that the defendant never served in the military and does not attend church regularly.

Before sentencing the defendant, the court stated that it had taken into consideration the La. C. Cr. P. art. 894.1 sentencing factors, the defendant’s family history, prior offenses, and the fact that the defendant was considered a third felony offender. The defendant was sentenced to 20 years at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence. Credit was given for time served. A motion to reconsider the sentence for exces-siveness was filed on May 15, | ¾2009, and denied by the trial court on that date. The defendant then appealed the sentence as excessive.

EXCESSIVE SENTENCE

The defendant claims that his sentence is excessive because it is grossly out of proportion with the crime and the defendant would be better served by being placed in a rehabilitation clinic. The defense further argues that the trial court failed to give adequate consideration to several mitigating factors, including the fact that the defendant is only 29 years old, has a 2-year-old child, was a former special education student, and has an obvious drug problem. Finally, the defense contends that the court should have considered that the defendant has no prior convictions for crimes of violence, and that there is no evidence that he inflicted any physical harm or enduring psychological harm upon any victim, witness, or police officer in the commission of his crimes. This argument is without merit.

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.

14The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. ai*t. 894.1, not rigid or mechanical compliance with its provisions. 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.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La. App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

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

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not |sbe set 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. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330. When the defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 2007-1394 (La.4/4/08), 978 So.2d 321.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra.

In the present case, the defendant’s sentence is not excessive. The sentencing court stated that it considered La. C. Cr. P. art. 894.1. The trial court provided a factual basis for the sentence, including the defendant’s past convictions for drug-related offenses. Within a four-year period, the defendant committed and was prosecuted for three felony drug charges. Furthermore, we do not find that the sentence imposed is grossly disproportionate to the severity of the offense nor is it shocking to the sense of justice. Not only did the defendant receive less than the maximum sentence for this offense, but he also received a significant reduction in | (¡potential exposure to confinement through his plea bargain agreement. The sentencing court did not abuse its discretion in this case.

CONCLUSION

For the reasons stated above, the conviction and sentence of the defendant, Billy Autry, are affirmed.

AFFIRMED.

      . The maximum sentence of incarceration for this offense is 30 years at hard labor. La. R.S. 40:967.