State Of Louisiana VS Clifton John Trahan, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0554 STATE OF LOUISIANA VERSUS E CLIFTON JOHN TRAHAN JR Judgment Rendered October 29 2010 Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No 522 341 The Honorable Timothy C Ellender Judge Presiding Joseph L Waitz Jr District Attorney Counsel for Appellee State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma Louisiana Martin E Regan Jr Counsel for Defendant Appellant Cate L Bartholomew Clifton John Trahan Jr New Orleans Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY I The defendant Clifton John Trahan Jr was charged by amended grand jury indictment with one count of possession with intent to distribute marijuana count I a violation of La R 40 one count of being S 966 1 A a felon convicted of possession with intent to distribute marijuana in possession of a firearm count II a violation of La R 14 and S 95 A 1 one count of obstruction of justice count III a violation of La R S A 1 130 14 He pled not guilty on all counts Following a jury trial he was found guilty as charged on all counts On count I he was initially sentenced to twenty years at hard labor On count II he was sentenced five to twelve years at hard labor without benefit of parole probation or suspension of sentence On count III he was sentenced to ten years at hard labor The trial court ordered all the sentences would run concurrently Thereafter the defendant agreed in regard to his conviction on count I he had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law and on count I the court sentenced him to fifty years at hard labor to run concurrently with the sentences imposed in counts II and III See La R 40 S 982 A He moved for reconsideration of sentence but the motion was denied He now appeals contending 1 the evidence was insufficient 2 the trial court erred in admitting La Code Evid art 404 evidence 3 the trial court erred in denying his Batson B challenge and in failing to maintain a sufficient record to review the challenge and 4 the sentence imposed was unconstitutionally excessive For the following reasons we affirm the convictions and sentences on all counts 2 FACTS On May 14 2008 a vehicle stop occurred involving the defendant who was driving a Ford F250 truck on I10 close to Orange County Texas The vehicle contained 112 cash It also contained Hawaiian Punch 032 codeine and marijuana in a Hawaiian Punch bottle It also contained a rental application for 400A Idlewild Drive listing Aaron L Butler as the applicant and listing the defendant as the emergency contact There was also a napkin from Domino Pizza with writing on it stating ADD s MONEY up should BE 250 There were also paystubs for the pay 000 periods January 8 14 2008 December 2531 2008 and January 1 7 2009 listing C Trahan Trucking as the employer listing the defendant as the employee and listing his address as 400 A Idlewild Houma There were also loose notebook pages from LaQuinta Inn listing initials and nicknames with various amounts ranging from 400 to 20000 next to them as well as the notation DEposit 3 in BANK There was also a utility bill due 500 March 18 2008 addressed to Aaron Butler with a receipt showing payment for 400 Idlewild Dr Apt A Houma LA 70364 1417 There was also a Comcast bill due February 27 2008 addressed to AARON BUTLER with a receipt showing payment for 400A IDLEWILD DR HOUMA LA 70364 1417 There was also a receipt for certified mail listing the defendant name and 400A Idlewild Dr HOUMA LA 70364 s in the return address section There was also a 2008 occupational license issued to the defendant listing his address as 515 OAKWOOD DR HOUMA LA 70363 His driver license also listed his address as 515 s OAKWOOD DRIVE HOUMA LA 70363 0000 The defendant was wearing a designer watch worth 20 He claimed he was going to Texas 000 to return a vehicle and to buy a Mate trailer Subsequent police investigation 3 indicated the defendant had an agreement to purchase a Mate dump trailer from a company in Houston but on numerous occasions he had failed to show up to make the payments After the defendant was pulled over Floyd Franklin who had been following in a separate vehicle also pulled over and repeatedly asked for a garage door opener in the defendant s possession Immigration and Customs Enforcement ICE Special Agent Joel Mata a veteran of over three hundred fifty narcotics investigations testified the notes on the LaQuinta Inn notebook pages were consistent with a drug ledger citing the use of a notebook rather than a spreadsheet the use of code words and nicknames rather than complete names and citing the fact that all the amounts were rounded He also indicated the paycheck stubs for future dates were obviously fabricated ICE Senior Special Agent Mark Andrew Low took the defendant into custody from the Orange County Police At the defendant request Agent s Low allowed the defendant to use Agent Low cell phone s No one answered the first number the defendant entered on the phone Someone did however answer the second number the defendant entered on the phone The defendant instructed the person to break a window on the back door of his house or the house cover the window so that mosquitoes did not get in and get the keys Agent Low testified that in his experience with narcotics cases the word keys referred to kilos of cocaine or marijuana The State and the defense stipulated that certified records of Floyd s Franklin cell phone indicated he received a phone call from Agent Low s telephone at the time the defendant used the phone 13 In May of 2008 Terrebonne Parish Narcotics Task Force Agent Steven Nathaniel Bergeron was investigating a drug network transporting and distributing large amounts of liquid codeine from California to Terrebonne Parish Floyd Franklin was a s and person of interest uspect in connection with that case In connection with the instant case Agent Bergeron went to 515 Oakwood and found the defendant parents living there The bed in the s s defendant bedroom was made and a stack of mail was on the bed The mail included some incoming checks but no personal papers The closet had a few items of clothing hanging in it but appeared to be mostly used for storing Christmas ornaments and old board games The s defendant neighbors had not seen him for at least thirty days After obtaining the necessary warrants Agent Bergeron then went to 400A Idlewild The glass panel of the back door had been shattered from the outside and two pieces of wood had been used to cover the hole One of the pieces of wood was held up by the refrigerator which had been pushed against the inside of the door There was loose marijuana on the floor and on the counter tops It was later determined to weigh two and onehalf to three pounds which Agent Bergeron indicated was in and of itself sufficient to distribute There was a small scale a digital scale with a two hundred pound capacity a vacuum sealer a doublestack money counter an unplugged deep freezer and chisels Agent Bergeron testified in the narcotics industry vacuum sealers are customarily used for packaging for distribution and deep freezers are used to store narcotics because their air tight seal can contain the pungent odor of drugs He also indicated chisels are used for breaking down large quantities of illegal drugs which come tightly packed and even a single pound of marijuana is packaged as a 5 brick There was a caliber handgun in the laundry room There were 357 also over two hundred documents with the defendant name on them s including receipts bills a credit report a notice of cancellation of insurance a monetary judgment an automobile insurance identification card a bank statement for the period March 1 2008 to March 31 2008 a November 2007 certificate of title for a 2000 Ford Excursion a July 20 2007 certificate of title for a 2002 BMW 745I and a boating registration certificate The title for the 2000 Ford Excursion listed the seller as Lentrell Wesley on behalf of Paragon Executive Transport Paragon Agent Bergeron testified that Wesley was the first cousin of Lennotch Taplett who was the owner and operator of Paragon and a key suspect in the codeine investigation Agent Bergeron also found a ledger consistent with a drug ledger containing some of the same code words and nicknames found on the LaQuinta Inn notebook pages in the defendant truck There were also s notes referencing the defendant daughter by name a drawing with her s name on it and a 2007 08 Terrebonne Parish Recreation girls basketball schedule There was also a note stating PEEZY U goNNA HAVE 2 lAY off DAt WEED R stAY iNsiDE if u CAN REMEMBER 2 lock thEsE t DooRs BRA MAN U should REMEMBER that NOW I DONE told U 2 MANY timEs U must BE 2 ZONED out iN HERE There were also highend electronics in the house including a 42inch flat screen television a 52 inch flat screen television and equipment for two recording studios There was also a notebook containing four sentences of lyrics Additionally there were four garbage bags containing what appeared to be marijuana bale wrappings with marijuana shavings in them and with large poundage numbers on them The numbers included 30 20 96 00 0 14 27 and totaled 580 There were approximately twelve documents 46 in 400A Idlewild with Butler name on them Those documents were not s personal papers but only bills Agent Bergeron also obtained a search warrant for two storage units leased by the defendant One of the units contained recording equipment The other unit contained the defendant BMW bale wrappings with s suspected marijuana and two AK47 magazines Agent Bergeron testified that during his investigation of the defendant he learned that the defendant used the nicknames CliffCat and Cat Agent Bergeron subsequently searched the defendant 18 wheeler s and found a notebook page containing lyrics to a song titled CAt SEts of 20 The lyrics had the same four sentences of lyrics found in the notebook in 400A Idlewild traffica game The lyrics included And no Im not a hustla Im a get the razor chop it up look at me I a portrait of the dope m But the bricks still 99 percent pure There was also a card with lyrics including U NiggAS would like MINE MORE DOPE than u SEEiNg oN the F1oRidA PipeliNE I gEt it Do the CouNt MOVE it out At the Right time HERE COME ANOTHER DROP MORE THAN U SEEN IN A LifEtimE Valerie Rhodes managed rental property including the house located at 400A Idlewild Drive in Houma for Grand Terre Real Estate The house was located towards the end of a deadend street She indicated Aaron Butler his girlfriend two children and the defendant were present when the rental application for the property was completed The lease period was from December 1 2007 to November 30 2008 and the rent was 1 per 050 month At the signing of the lease Butler paid a 1 security deposit and 050 the first month rent in cash s Thereafter Rhodes was unable to contact 7 Butler because the phone number he provided was disconnected However when she contacted the defendant because the rent for January February March April and May was late he either paid her the rent by money order directly or she found a money order for the rent in the drop box after he told her he would drop it off The policy and procedures of Grand Terre Real Estate required the lessee to allow regular inspections of the leased premises but the locks on 400A Idlewild were changed following the signing of the lease Doyle Anthony Thibodeaux formerly of the Terrebonne Parish Narcotics Division testified concerning the defendant arrest following s circumstances that indicated a drug transaction in May of 1999 In connection with that offense the defendant was convicted of possession with intent to distribute marijuana During that incident over two kilograms of marijuana valued at 12 a scale plastic baggies and 326 cash were 443 seized from an apartment rented by the defendant Clifton J Trahan Sr the defendant father testified the defendant s lived with him at 515 Oakwood Drive in Houma and he did not know of him living anywhere else in 2008 He claimed that in 2006 he and his wife purchased a Peterbilt truck for the defendant to get him started in the trucking business and the defendant had worked in that business since that time He had no explanation for why the defendant had paycheck stubs listing his address as 400 A Idlewild Aaron Butler testified that from 2007 to May 2008 he worked as a truck driver for the defendant and lived at 400 A Idlewild He claimed the gun found at the house belonged to him and the defendant had no knowledge of the weapon He claimed the studio equipment in the house also belonged to him He claimed he purchased the large scale in the house E from a shrimper from Golden Meadow He claimed he gave a key to the house to Mr Otis to keep but only gave a key temporarily to the defendant so that he could receive furniture deliveries for him He claimed the defendant would buy him furniture and subtract the cost of the furniture from his pay He claimed he had a similar arrangement with the defendant concerning the rent owed on the house He denied any knowledge of the small scale money counter and small and large plastic bags found in the house He also claimed he never saw any marijuana in the house and never saw the defendant bring any marijuana into the house Otis Davis testified Aaron Butler was his friend and the defendant s friend Davis claimed he had seen the defendant at 400 A Idlewild once or twice He claimed during April and May of 2008 he Davis had a key to the house and would bring girls over there He claimed the marijuana found in the house belonged to him He also claimed one of the scales the money counter and the small plastic bags found in the house belonged to him SUFFICIENCY OF THE EVIDENCE In assignment of error number 1 the defendant argues there was insufficient evidence to support the convictions for possession with intent to distribute marijuana and possession of a firearm by a convicted felon because he was not in actual possession of either the marijuana or the gun found at 400 A Idlewild and the State failed to establish his constructive possession of those items He also argues there was insufficient evidence to support the obstruction of justice conviction because the State failed to establish evidence of the corpus delecti of that charge independently from his uncorroborated confession the telephone call made on Agent Low s cell phone 0 The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant identity as the perpetrator s of that crime beyond a reasonable doubt In conducting this review we also must be expressly mindful of Louisiana circumstantial evidence test which s states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 98 0601 p 2 La App 1st Cir 2 730 99 19 2d So 485 486 writs denied 990802 La 10 748 So 1157 99 29 2d 20000895 La 11 773 So 732 quoting La R 15 00 17 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 98 0601 at p 3 730 So at 487 2d As applicable here it is unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance classified in Schedule I La R 40 Marijuana is a S 966 1 A controlled dangerous substance classified in Schedule L See La R 40 S 964 Schedule I prior to amendment by 2008 La Acts No 67 22 C 1 The State is not required to show actual possession of drugs by a defendant in order to convict Constructive possession is sufficient A person is considered to be in constructive possession of a controlled dangerous 10 substance if it is subject to his dominion and control regardless of whether or not it is in his physical possession Also a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug However the mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located is insufficient to support a finding of constructive possession State v Smith 2003 0917 pp 56 La App 1st Cir 12 03 31 868 So 794 799 2d A determination of whether or not there is possession sufficient to convict depends on the peculiar facts of each case Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute possession include his knowledge that drugs were in the area his relationship with the person found to be in actual possession his access to the area where the drugs were found evidence of recent drug use and his physical proximity to the drugs Smith 2003 0917 at p 6 868 So at 799 2d It is unlawful for any person who has been convicted of violation of the Uniform Controlled Dangerous Substances Law felony to possess a firearm or carry a concealed weapon any which is a La R S A 1 95 14 Possession with intent to distribute marijuana is a violation of the Uniform Controlled Dangerous Substances Law which is a felony La R S 4 3 A B 2 966 14 40 Whether the proof is sufficient to establish possession under La R 14 turns on the facts of each case Further S 95 1 guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence State v Johnson 2003 1228 p 5 La 4 870 So 995 998 Constructive possession of a firearm 04 14 2d occurs when the firearm is subject to the defendant dominion and control s Louisiana cases hold that a defendant dominion and control over a weapon s 11 constitutes constructive possession even if it is only temporary and even if the control is shared However mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession Johnson 20031228 at pp 5 6 870 So at 99899 2d La R 14 in pertinent part provides S 130 1 A The crime of obstruction of justice is any of the following when committed with the knowledge that such act has reasonably may or will affect an actual or potential present past or future criminal proceeding as hereinafter described 1 Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding Tampering with evidence shall include the intentional alteration movement removal or addition of any object or substance either a At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state local or United States law enforcement officers Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 S 10 1 Though intent is a question of fact it need not be proven as a fact It may be inferred from the circumstances of the transaction Specific intent may be proven by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant actions or facts depicting s the circumstances Specific intent is an ultimate legal conclusion to be resolved by the fact finder State v Henderson 991945 p 3 La App 1st Cir 6 762 So 747 751 writ denied 20002223 La 6 00 23 2d 01 15 793 So 1235 2d IN It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone in other words without proof of the corpus delicti The corpus delicti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt State v Willie 410 So 1019 1029 La 1982 2d After a thorough review of the record we are convinced that any rational trier of fact viewing the evidence presented in this case in the light most favorable to the State could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of possession with intent to distribute marijuana possession of a firearm by a convicted felon and obstruction of justice and the defendant identity as the perpetrator of those offenses The s jury rejected the defendant theory that he had no knowledge of either the s marijuana or gun at 400A Idlewild and that his telephone call did not concern removal of keys of marijuana from the home When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1 st Cir writ 2d denied 514 So 126 La 1987 No such hypothesis exists in the instant 2d case The State presented testimony that the defendant had dominion and control of the marijuana and weapon found in 400A Idlewild and that he was not merely associated with that house The defendant presented testimony to the contrary Additionally the State did not rely solely on the defendant s telephone call to establish the corpus delicti of the obstruction of justice 13 charge but rather corroborated that evidence with physical evidence of the removal of marijuana from the house and testimony concerning the manner in which the house had been broken into which was exactly as the defendant had directed in his telephone call The verdict rendered against the defendant indicates the jury accepted the testimony offered against him and rejected the testimony offered in his favor As the trier of fact the jury was free to accept or reject in whole or in part the testimony of any witness Furthermore 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 Johnson 990385 pp 910 La App 1st Cir 11 745 So 217 223 99 5 2d writ denied 20000829 La 11 774 So 971 On appeal this court 00 13 2d will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder determination of guilt State v Glynn 940332 p 32 La App s 1st Cir 4 653 So 1288 1310 writ denied 951153 La 10 95 7 2d 95 6 661 So 464 Moreover in reviewing the evidence we cannot say that the 2d s jury determination was irrational under the facts and circumstances presented to them See State v Ordodi 20060207 p 14 La 11 06 29 946 So 654 662 An appellate court errs by substituting its appreciation 2d of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 20072306 pp 1 2 La 1 1 So 417 418 per curiam 09 21 3d This assignment of error is without merit OTHER CRIMES EVIDENCE In assignment of error number 2 the defendant argues his alleged illegal possession of codeine was not probative on the issue of whether or 14 not he possessed with intent to distribute marijuana possessed a firearm or obstructed justice but was more prejudicial than probative and thus should not have been admitted at trial He also argues the events preceding the execution of the search warrant for 400A Idlewild should have been presented in a minimized and substantially less prejudicial manner He also argues admission of the facts concerning the predicate possession with intent to distribute marijuana conviction were more prejudicial than probative Louisiana Code Evidence art 403 provides Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury or by considerations of undue delay or waste of time La Code Evid art 404 in pertinent part provides B Other crimes wrongs or acts 1 Except as provided in Article 412 evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith It may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding Generally evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant However La Code Evid art 404 1 B authorizes the admission of evidence of other crimes wrongs or acts when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding In State v Brewington 601 So 656 657 La 1992 per curiam the Louisiana 2d 15 Supreme Court indicated its approval of the admission of other crimes evidence under this portion of La Code Evid art 404 when it is 1 B related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances State v Taylor 2001 1638 pp 1011 La 1 So 729 741 cert denied 540 U 838 03 14 2d S 1103 124 S 1036 157 L 886 2004 Ct 2d Ed Further the res gestae doctrine incorporates a rule of narrative completeness by which the prosecution may fairly seek to place its evidence before the jurors as much to tell a story of guiltiness as to support an inference of guilt to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant legal fault Taylor 2001 1638 at pp 12 s 13 838 So at 743 quoting Old Chief v United States 519 U 172 188 2d S 117 S 644 654 L 574 1997 Ct 136 Ed 2d Prior to trial the State filed a notice of other crimes evidence setting forth its intent to introduce the evidence outlined in the motion to show that the defendant had the opportunity intent preparation plan knowledge identity or and as proof of motive and as evidence showing lack of mistake or Additionally the State gave notice that some of the evidence it sought to introduce related to conduct that constituted an integral part of the act or transaction that was the subject of the proceedings The notice set forth that the State would introduce all evidence concerning the defendant traffic stop s and subsequent arrest occurring on or about May 15 2008 in Orange Texas iCi including but not limited to the bottles of codeine the 112 of U 032 S currency statements made by the defendant to law enforcement a 20 000 watch and evidence of phone calls made to Floyd Franklin on Senior Special Agent Mark Low phone all evidence concerning the defendant arrest and s s conviction of January 5 2000 for possession with intent to distribute marijuana and all evidence seized pursuant to search warrants at 400 A Idlewild 515 Oakwood Drive 206 Venture Boulevard unit 105 112 Edgewood Boulevard and 135 Crozier Drive The defense moved to exclude the other crimes evidence arguing the potential prejudice to the defendant was not outweighed by the probative value of the other crimes evidence Following hearings the trial court denied the motion to exclude other crimes evidence The trial court did not abuse its discretion in denying the motion to exclude other crimes evidence Evidence of the defendant possession of s codeine was related and intertwined with the possession with intent to distribute marijuana charge to such an extent that the State could not have accurately presented its case without reference to the evidence This evidence constituted an integral part of the defendant crime and was part of the res s gestae Additionally assuming arguendo the balancing test of La Code Evid art 403 is applicable to integral act evidence admissible under La Code Evid art 404 that test was satisfied in this matter The defendant possession B s of codeine was probative of his connection to Floyd Franklin Lentrell Wesley and Lennotch Taplett The defendant called Franklin and instructed him to break into 400 A Idlewild and get the keys Wesley and Taplett were connected to the defendant through the title for the 2000 Ford Excursion The Louisiana Supreme Court has left open the question of the applicability of the Article 403 test to integral act evidence admissible under La Code Evid art 404 See B State v Colomb 982813 pp 45 La 10 747 So 1074 1076 per curiam 99 1 2d 17 which was found at 400 A Idlewild The State was required to present evidence concerning the items connecting the defendant to 400A Idlewild to establish the defendant constructive possession of the marijuana and gun s found at that residence The facts concerning the predicate possession with intent to distribute marijuana offense were highly probative on the issue of the s defendant intent preparation and plan in the instant offense possession with intent to distribute marijuana because the prior offense also involved marijuana a scale and plastic baggies in leased premises connected to the defendant Additionally the State was required to establish the defendant s commission of the predicate offense possession with intent to distribute marijuana as an element of the instant offense possession of a firearm by a convicted felon charge Accordingly the prejudicial effect to the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence This assignment of error is without merit BATSON In assignment of error number 3 the defendant argues the trial court erred in denying his challenge to the venire composition under Batson v Kentucky 476 U 79 106 S 1712 90 L 69 1986 and erred in S Ct 2d Ed failing to record the racial makeup of the venire Batson held an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person s race Id 476 U at 84 106 S at 1716 See also La Code Crim P art S Ct CE If the defendant makes a prima facie showing of discriminatory 795 strikes the burden shifts to the State to offer racially neutral explanations for the challenged members The neutral explanation must be one which is clear M reasonable specific legitimate and related to the particular case at bar State v Elie 20051569 p 5 La 7 936 So 791 795 06 10 2d If the race neutral explanation is tendered the trial court must decide in step three of the Batson analysis whether the defendant has proven purposeful discrimination A reviewing court owes the district judge evaluations of s discriminatory intent great deference and should not reverse them unless they are clearly erroneous Id The Batson explanation does not need to be persuasive and unless a discriminatory intent is inherent in the explanation the reason offered will be deemed race neutral The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination Id In order to satisfy Batson first step a moving party need only produce s evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred Id Batson admonition to consider all relevant s circumstances in addressing the question of discriminatory intent requires close scrutiny of the challenged strikes when compared with the treatment of panel members who expressed similar views or shared similar circumstances in their backgrounds The one relevant circumstance for a trial judge to consider is whether the State articulated verifiable and legitimate explanations for striking other minority jurors Id The failure of one or more of the State s articulated reasons for striking a prospective juror does not compel a trial judge to find that the State remaining articulated race neutral reasons s necessarily cloaked discriminatory intent Elie 2005 1569 at pp 67 La 06 10 7 936 So at 796 2d In the instant case following the completion of jury selection the swearing of the jurors and the discharge of the jury venire the defense made a Batson objection to the venire composition and the actual jury empanel The 7 IL defense argued The venire resulted in one African American being seated on the jury The State replied it did not recall excusing a single African American from the jury and noted one African American had been selected as a juror The court ruled All right first of all the Court notes that there were no objections made during the selection process at the table with regards to Batson Secondly I wasn paying attention to what t color any of the jurors were and so I have no idea who was black and who was white I don know how many black people they t had and I don know how many white people they had and I t t don know how many Indian people they had Perhaps we should in the future make note of that when we pull a panel and ask them what their nationality is So for those reasons your Motion is denied sir Initially we note a Batson challenge was the incorrect objection to attack either the composition of the jury venire or the jury selected in this case The State exercise of peremptory challenges during voir dire had nothing to s do with the composition of the jury venire The proper method to challenge the jury venire as improperly drawn selected or constituted is by a pretrial motion to quash See La Code Crim P art 532 Further if the State 9 excused no African Americans from the jury it could not have exercised a peremptory challenge to exclude a prospective juror because they were African American In any event the trial court correctly denied the s defendant objections as untimely See La Code Crim P art 841 A This assignment of error is without merit In assignment of error number 4 the defendant argues the sentence imposed on the instant offense possession with intent to distribute marijuana was excessive and argues While the trial court gave specific reasons for its original sentence of twenty five years the trial court gave no reason other than 20 an apparent misunderstanding of the law for the fiftyyear sentence imposed The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence La Code Crim P art 894 The trial court need not recite the entire checklist of 1 Article 894 but the record must reflect that it adequately considered the 1 criteria In light of the criteria expressed by Article 894 a review for 1 individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis for its sentencing decision s State v Hurst 992868 p 10 La App 1st Cir 10 797 So 75 83 00 3 2d writ denied 2000 3053 La 1015101 798 So 962 2d Article I section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against s excessive punishment and is subject to appellate review Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense of justice A trial judge is given s wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion Hurst 992868 at pp 1011 797 So at 83 2d Any person who violates La R 40 with respect to a S 966 A substance classified in Schedule I which is marijuana shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years and pay a fine of not more than fifty thousand 21 dollars La R 40 Any person convicted of any offense under the S 966 B Uniform Controlled Dangerous Substances Law if the offense is a second or subsequent offense shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized or both If the conviction is for an offense punishable under R 40 and if it is the offender second or subsequent S 966 B s offense the court may impose in addition to any term of imprisonment and fine twice the special parole term otherwise authorized La R 40 S 982 A In regard to his conviction on the instant offense possession with intent to distribute marijuana the defendant agreed he had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law and the trial court sentenced him to fifty years at hard labor Contrary to the defendant argument the sentencing transcript s reveals no misunderstanding by the trial court of the applicable penalty The court explained the penalty to the defendant as follows The minimum and maximum sentence provided by law is imprisonment at law from ten at hard labor from ten to sixty years with a payment of a fine from zero to one hundred thousand dollars The court may also impose twice the special parole term other than what is authorized for the crime of possession with intent to distribute marijuana Additionally the court indicated it was aware that in sentencing the defendant under La R 40 it did not have to double the sentence S 982 A imposed for the instant offense possession with intent to distribute marijuana prior to the defendant agreement that he had previously been convicted for s an offense under the Uniform Controlled Dangerous Substances Law While the court did not set forth reasons for the sentence it imposed following the defendant agreement that he had previously been convicted s for an offense under the Uniform Controlled Dangerous Substances Law 22 moments earlier it set forth reasons in sentencing the defendant prior to his agreement that he had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law The court found there was an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime the defendant had a propensity to involve himself in the drug world as witnessed by his previous conviction although there were only two and onehalf pounds of marijuana found in 400A Idlewild it was obvious from the other sacks that were there as well as the defendant telephone call and the professional dollar counting s machine that a whole lot more marijuana had been moved out of the house it was obvious to the court that the defendant needed correctional treatment or a custodial environment that could most effectively be provided by his commitment to an institution the defendant was smart and it was a shame that his good intelligence had been wasted upon criminal activity a lesser sentence would deprecate the seriousness of the defendant crime s and the offense was a controlled dangerous substance offense and the defendant obtained substantial income or resources from ongoing drug activities There was no error in the court not repeating the reasons for sentence it had set forth moments earlier at the same sentencing hearing for the same offense A thorough review of the record reveals the trial court adequately considered the criteria of Article 894 and did not manifestly abuse its 1 discretion in imposing the sentence on the instant offense possession with intent to distribute marijuana after the defendant agreement that he had s previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law 2 3 15 A A B See La Code Crim P art 894 A 1 1 21 B Further the sentence imposed was not 23 grossly disproportionate to the severity of the offense and thus was not unconstitutionally excessive This assignment of error is without merit FAILURE TO VACATE ORIGINAL SENTENCE FOR POSSESSION WITH INTENT TO DISTRIBUTE MARIJUANA In addition to his assignments of error the defendant argues the trial court failed to expressly vacate the sentence it imposed for the possession with intent to distribute marijuana conviction after sentencing him for that offense after his agreement that he had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law The defendant is correct Prior to the defendant agreement that he s had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law the court sentenced him on the instant offense possession with intent to distribute marijuana conviction to twentyfive years at hard labor Following his agreement that he had previously been convicted for an offense under the Uniform Controlled Dangerous Substances Law the court sentenced the defendant under La R S A 982 40 to fifty years at hard labor We note the State advised the court that the sentence imposed under La R 40 would vitiate or vacate S 982 A by law the first sentence Although it is apparent from the court actions s that it intended to vacate the original sentence out of an abundance of caution we vacate the original twentyfive year sentence See State v Meneses 980699 p 2 n La App 1st Cir 2 731 So 375 376 1 99 23 2d 1 n REVIEW FOR ERROR The defendant requests that this court examine the record for error under La Code Crim P art 920 This court routinely reviews the record 2 24 for such errors whether or not such a request is made by a defendant Under La Code Crim P art 920 we are limited in our review to errors 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence In sentencing on the possession of a firearm by a convicted felon conviction the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars See La R S B 1 95 14 Although the failure to impose the fine is error under La Code Crim P art 920 it certainly is not inherently prejudicial to the defendant 2 Because the trial court failure to impose the fine was not raised by the s State in either the trial court or on appeal we are not required to take any action As such we decline to correct the illegally lenient sentence See State v Price 20052514 pp 1822 La App 1st Cir 12 952 So 06 28 2d 112 123 25 en banc writ denied 20070130 La 2 976 So 1277 08 22 2d DECREE We affirm the defendant sentences and convictions on all counts s CONVICTIONS AND SENTENCES AFFIRMED 25
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