State Of Louisiana VS Clifton Clay
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0450 STATE OF LOUISIANA VERSUS CLIFTON CLAY v J Judgment Rendered October 29 2010 APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA DOCKET NUMBER 442 DIVISION C 542 THE HONORABLE WALTER I LANIER Ill JUDGE Camille A Morvant Attorneys for State District Attorney and Rene C Gautreaux Lisa R Pinho Stephen E Caillouet Thibodaux Louisiana Larry P Boudreaux Thibodaux Louisiana Attorney for Defendant Appellant Clifton Clay BEFORE WHIPPLE McDONALD AND McCLENDON JJ McDONALD I The defendant Clifton Clay was charged by bill of information with possession with intent to distribute cocaine in violation of La R 40 1 S 967 A Countl and possession with intent to distribute methylenedioxy methamphetamine MDMA also known as ecstasy a violation of La R S 1 A 966 40 Count 2 The defendant pled not guilty to the charges and following a jury trial was found guilty of the responsive offenses of attempted possession with intent to distribute cocaine a violation of La R 40 and La S 979 S 967 R 40 Count l and attempted possession of MDMA a violation of 1 A La R 40 and La R 40 Count 2 See La R 14 The S 979 S 966 C S 27 A defendant filed a motion for post verdict judgment of acquittal which was denied For the attempted possession with intent to distribute cocaine conviction the defendant was sentenced to eight years For the attempted possession of MDMA conviction the defendant was sentenced to two years The sentences were ordered to run concurrently The defendant now appeals designating three assignments of error We affirm the convictions amend the sentences and affirm as amended FACTS On June 28 2006 Lafourche Parish Drug Task Force agents used Audrey Cheramie Cheramie a confidential informant CI to attempt to purchase cocaine from Tyeine Jones at a twostory house on 160th Street in Galliano which was being rented by Samantha Merrill Merrill Based on the CI transaction as s well as anonymous calls to the police about illegal drug activities at the Galliano house Agent Robert Mason with the Lafourche Parish Sheriffs Office secured a search warrant to search the house for narcotics On July 7 2006 Drug Task Force agents executed the search warrant at the Galliano house Therein agents found the defendant and Merrill in a downstairs bedroom and Kelly Campbell the defendant brother in an upstairs bedroom s 2 The three occupants were secured in the downstairs living room where they were Mirandized as a group by Agent Mason A K9 unit brought into the house alerted on a chest of drawers in the bedroom where the defendant and Merrill had been sleeping In the top drawer Agent Mason found a brown paper bag containing four wrapped cookies of crack cocaine and an Advil bottle which contained twelve tablets of MDMA In a cabinet drawer in the kitchen Lieutenant Chet Caillouet with the Lafourche Parish Sheriffs Office found a razor blade and a digital scale inside a Ziploc box of sandwich bags Lieutenant Josh Champagne with the Lafourche Parish Sheriffs Office and the Drug Enforcement Administration testified at trial that he Mirandized the defendant and questioned him about the drugs found in the room The defendant told Lieutenant Champagne that the drugs were his and that his brother and girlfriend had nothing to do with the drugs Agent Mason heard the defendant s admission to Lieutenant Champagne The defendant also told Lieutenant Champagne that the drugs came from Houma Campbell testified at trial According to his testimony the defendant lived in Houma with his mother On the day before the execution of the search warrant Campbell along with the defendant was driving back from Florida where Campbell worked While on their way back to Houma the defendant received a call from his friend Merrill who invited the defendant to come to her house in Galliano Campbell and the defendant agreed to spend the night at Merrill house s instead of driving straight through to Houma The defendant did not bring any drugs with him and there were no drugs in Campbell car When they arrived at s s Merrill house it was the first time Campbell had met Merrill and according to Campbell as far as he knew it was the first time the defendant had ever been to s Merrill house However Cheramie testified at trial that Merrill was the s defendant girlfriend and she Cheramie had seen them hanging out a few times 3 ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the trial court erred in denying his motion to quash the search warrant and suppress the evidence or seized from the execution of the search warrant Specifically the defendant contends that Agent Mason intentionally provided false information in the search warrant affidavit wherein he stated that the Cl had been proven credible and reliable in the past and that the Cl possessed the crack cocaine briefly before Jones took the drugs back from her On February 11 2008 the trial court held a pretrial hearing on the s defendant motion to quash andor suppress the search warrant Agent Robert Mason with the Lafourche Parish Drug Task Force testified that he secured the search warrant for the Galliano residence Agent Mason stated in the search warrant affidavit that the police had received anonymous phone calls about possible drug activity at the residence Agent Mason further stated that he used a Cl to attempt to purchase cocaine from Tyeine Jones who was at the residence Agent Mason testified he had utilized the CI prior to the date of the attempted drug buy and that she had proven reliable in the past When asked how her reliability had been proven Agent Mason indicated that there had been convictions based on her information Regarding the drug transaction between the Cl and Jones Agent Mason testified that Jones gave the Cl crack cocaine and the Cl gave Jones the money During the transaction Jones received a call on his Nextel cell phone Immediately thereafter Jones took the cocaine out of the CI hand and gave the s CI the money back All of this information was contained in the search warrant affidavit In finding that the search warrant affidavit established probable cause for the search to be conducted the trial court denied the defendant motion to quash s andor suppress the search warrant 4 Subsequently although trial had not yet commenced the defendant filed a motion for new trial andor rehearing of the motion to suppress At the hearing for this motion on February 19 2008 the defendant fired his attorney and in proper person asserted that Agent Mason had lied in his testimony at the hearing on the s defendant motion to quash andor suppress the search warrant According to the defendant Cheramie the confidential informant would testify if called that no drug transaction between her and Jones took place The defendant informed the trial court that he was going to secure new counsel The trial court continued the motion At the hearing on July 9 2008 the motion for new trial and rehearing of or the motion to suppress was resumed The defendant through his new defense counsel informed the trial court that the basis for the motion was the intentionally false information included in the affidavit that was submitted to obtain the search warrant The prosecutor responded that a new trial could be granted when there was newly discovered evidence which was unavailable at the time of the previous trial without the exercise of due diligence Defense counsel called Cheramie who testified that prior to June 28 2006 the day she attempted to buy drugs from Jones she had never worked with or had any affiliation with the Lafourche Parish Drug Task Force She testified she had not worked any cases or supplied any information to the Task Force about any drug transactions or dealings When asked about the claim that she had worked with the Task Force before and had proven credible and reliable in the past Cheramie responded That false She s further stated that this was the o and only case that she had any type of ne involvement with the Drug Task Force She testified that when she met with Jones there was no transaction and that she did not see any drugs She further testified that she did not inform any representative of the Drug Task Force that she had seen any drugs while talking to Jones 5 On cross examination Cheramie testified that she was friends with the defendant and his wife and had known the defendant for a few years She also testified that while she saw the defendant about ten times a year she was not aware in 2006 or 2007 of the defendant legal s problems regarding this case At the end of that day proceedings wherein no s ruling was made the hearing was held over until a later date At the hearing on April 21 2009 the motion for new trial and rehearing or of the motion to suppress was resumed The prosecutor argued that the evidence introduced at the hearing on July 9 2008 was not evidence that was newly discovered by due diligence Defense counsel argued the motion before the trial court was a motion for new trial based on newly discovered evidence following the February 11 2008 hearing on the motion to quash andor suppress the search warrant which the trial court ruled on The trial court agreed that the present motion was a new trial motion and in denying the defendant motion made the s following pertinent findings I do not believe that any new evidence has been exposed that through due diligence the defendant that in reading the transcript which the Court did go back and read the transcript Mr Stewart the s defendant first defense counsel made a reference to knowing who the CI was I think I want to say he adamantly said we know who the CI is but they need to disclose it or something to that effect If there any credibility call between Mr Mason and Ms Cheramie s that potentially can be resolved in calling the Cl to the stand during the trial There not any new evidence that has been brought forth to s this Court after this Court has heard numerous motions on the same issue I believe If there was any evidence of a Cl I do believe that with due diligence after the attorney at that time knew who it was they could have asked certain questions of that Cl And Mr Clay has the right to present his defense at his trial So I will deny the motion for new trial as I read your current motion in this case Under La C art 851 the court on motion of the defendant shall P Cr 3 grant a new trial whenever New and material evidence that notwithstanding the exercise of reasonable diligence by the defendant was not discovered before or 6 during the trial is available and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty In its ruling denying the defendant motion for new trial andor rehearing of s the motion to suppress the trial court clearly relied on the law for grounds for new trial under La C art 851 See La C art 854 P Cr 3 P Cr Under the plain language of La C art 851 a motion for a new trial shall be filed after the P Cr defendant has had a trial Because the trial had not yet begun in this case when the trial court made its ruling we find the defendant motion for new trial to be an s improper procedural device for requesting that a hearing on a motion to suppress be reopened Similarly we find the trial court reasons for its denial of the s s defendant motion which were based on new trial law under Article 851 to be 3 misplaced The defendant did not fail to exercise reasonable diligence in informing the trial court of ostensibly newly discovered evidence To the contrary about a week after Agent Mason testified at the February 11 2008 hearing the defendant in proper person informed the trial court at the February 19 2008 hearing on the motion for new trial andor rehearing of the motion to suppress that his defense attorney in failing to call any witnesses at the February 11 2008 hearing made no attempt to contradict Agent Mason testimony regarding the s drug transaction and the reliability of the CI The defendant further represented to the trial court that the CI was at the present hearing and that if called she would testify that no drug transaction took place and that the information about the Cl and the transaction that Agent Mason provided in the search warrant affidavit was false The defendant also told the trial court that Merrill would testify that the drugs found in the house were hers Subsequently the defendant requested that the Cl be allowed to testify that day at the hearing After some discussion the trial court stated it was prepared to have the Cl testify at a later date Almost five months later the Cl testified for the first time at the July 9 2008 hearing 7 Nevertheless in detennining whether the ruling on the defendant motion to s suppress was correct we are not limited to the evidence adduced at the hearing on the motion We may consider all pertinent evidence given at the trial of the case State v Chopin 372 So 1222 1223 n La 1979 Upon our review of the 2d 2 entire trial record we find that while the reasoning in denying the motion may have been erroneous the trial court did not err or abuse its discretion in ultimately denying the defendant motion for new trial and rehearing of the motion to s or suppress At trial during the defendant caseinchief Cheramie testified on direct s examination that this was the first and only case that she ever worked with the Lafourche Parish Drug Task Force Defense counsel asked Cheramie So if Robert Mason under oath stated that you had worked with the Task Force prior to that date that would not be true Cheramie responded No sir Defense counsel further asked And if Mason said that you had made some cases and that drugs had been seized and sent to the Crime Lab and had come back cocaine that would not be true Cheramie responded No sir I would like to see that Cheramie further testified that while she and Jones had a discussion about the purchase of drugs while she was wired she did not purchase any drugs On cross examination Cheramie testified that she had a conviction for possession of cocaine The arrest for this possession of cocaine conviction was in 2007 yet Cheramie testified she was already on probation in 2006 when the police sought to use her as a Cl for the drug transaction with Jones Accordingly Cheramie had another conviction that she could not account for When asked by the prosecutor how she had come to work for the Drug Task Force Cheramie responded Well first of all they was always after me for any reason at all And it had nothing I mean they was always watching everywhere I go everywhere sic I do And not just me my female friends too Cheramie testified that she had just gotten out of a mental hospital about a week or so prior to trial When D asked why she was in a mental institution she responded For Bipolar borderline Schizophrenia panic anxiety m I an anxiety depression P D S T She also stated she was a recovering addict She testified that during her transaction with Jones she showed him the money but she never saw the drugs When the prosecutor asked her if she had told Robert Mason or any agents of the Drug Task Force that she had the drugs in her hand she responded that she had told them that but that it was not true Cheramie explained that she lied to Agent Mason because she felt if she did not make the deal she would be arrested Furthermore according to Cheramie if she would have had the drugs in her hand she would have run with them Cheramie stated And if he woulda gave me the dope I woulda run off took my little dope in my pocket and gave them that and gave them then let them go bust him But no I didn get no dope t Defense counsel recalled Agent Mason who testified that Cheramie as a Cl had been proven to be credible and reliable in the past When asked how many times Agent Mason had used Cheramie in the past and the nature of such use Agent Mason responded Well when we say we used the individual that not s necessarily buying narcotics It using their information to either s forward an investigation or corroborate Cause we might also have a Cl in the same position in this case saying I have information on John Smith And in this case she provided information that we may have linked and backed up some other CI information s Agent Mason further explained that he had not previously used Cheramie in an undercover operation where she was actively involved in the drug transaction Agent Mason further testified that based on his understanding of the transaction between Cheramie and Jones drugs were purchased On cross examination the following relevant colloquy between the prosecutor and Agent Mason took place Q Did she provide you credible and reliable information which you corroborated 0 A Absolutely Q What did she provide you A She provided us information on names or m I not going into specific the location of what we call bunkhouses in Leeville we knew to be distribution points and through other intel and other sources of information about illegal activity there Also a residence on Orange Street The lady name was Lacey Nelson who we had s ve not investigations before arrests before and current and ongoing this day obviously but during this time And her intel was right along with everybody else s Q So credible and reliable to you meant what A First off she came and gave us her identity her information and also criminal intelligence that seemed you know and was backed up both by our investigations as well as other Cls or sources of information or concerned citizens that called up So all this stuff it kinda builds It doesn build weight just by one person saying it t unless you know they have intimate knowledge or something like that t Then we would use them to back it up It wouldn be necessarily credible and reliable because we wouldn have anything t to back it up But in this case the information that she provided on other investigations both from our own and other sources of information we deemed her and I deemed her reliable She wasn telling us t something that we couldn back up t Q Now if she testified here earlier today this morning that she never gave you any information about Lacey Nelson would that be a lie A Absolutely Q So Agent Mason if Audrey Cheramie testified this morning that she never gave you information about Lacey Nelson would that be a lie A Yes it would Q if she testified that she never gave you information about bunkhouses in Leeville would that be a lie A Absolutely Q if she testified that she never gave information to you about drug activity on Orange Street would that be a lie A Yes Absolutely 10 Q s Let talk about you testified that there was a purchase of narcotics at 118 E 160th Street Could you explain your answer A Yes Initially we had the confidential informant in this case Audrey Cheramie approach the house in question 118 Q Now what I gonna do is I don mean to interrupt you I may m t interrupt you to flesh your testimony out Okay A Sure Q Was she acting as a Cl at this time A Absolutely Q This was 6 06 28 A Absolutely Q Was she wired A Yes she was With an audio transmitter yes Q Did youall record that transmission A Absolutely A I heard over the audio system the male subject Here Here s half hard here half soft She and while that was taking place I s heard a Beep Beep in the background Nextel So we heard the Beep Beep You hear Tyene He sic goes Beep Beep Yes And the male voice says Hold up s The male subject I didn hear I mean I didn hear or see if he went t t back inside or if he was still at the doorway But moments later he goes Come see You know the male say Come see And then the next thing I heard was the female saying What up Bro or s s What going on And you can hear the male either Hey We gotta go or Hey and there was some conversation about a phone number giving a phone number from the Cl to the male subject who we believe you know was Tyene sic based on the audio She then left the premises and we picked her up shortly thereafter And So as soon as she got in the car I asked her What happened to my surprise she handed me over back the hundred dollars in the serialized Task Force funds So I was like Well what happened Well it was in my Ping hands Actually she said fucking hands And he took it back He took it back That mother fucker That exactly what she said So and I at this time we s m re departing the area debriefing her And I said you know Did he She said threaten you Did he you know put a gun to your head No He got a phone call and you know he took the dope back after So Q Have you listened to a tape of the KEL system on that night A Oh yes The audiotape of the drug transaction was played for the jury The following colloquy between the prosecutor and Agent Mason then took place Q Did you hear Audrey say I had it in my fucking hand A Yes I did Q Did she tell you when she got to her car that she had it in her hand the drugs A Yes He told me to hold up You know he got an fing phone call And when he came back out he was a totally different person took the dope and told me to leave Q So you I sorry so your testimony is that she actually did tell m you that she saw drugs A She had it in her hand Q If she testified on July 9 2008 to the question Did you tell representatives of the Task Force that after Mr Jones answered the knock at the door that he gave you or handed you a Baggie of cocaine in one hand and a Baggie of crack cocaine in the other and she said No sir That what I had ordered to give me and he was s going to supply that But after he went inside and came back the phone rang so I never saw nothing would that be contradictory to what she told you A Absolutely Q And if she said to the question Did you inform any of the representatives of the Task Force that you saw any drugs while talking with Mr Jones and her answer was No sir that would be a lie also A Well that incorrect She told me in the back of my car s When a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial s court discretion i unless such ruling is not supported by the evidence See e State v Green 940887 p 11 La 5 655 So 272 280 81 However a 95 22 2d 12 trial court legal findings are subject to a de novo standard of review See State s v Hunt 20091589 p 6 La 12 25 So 746 751 09 1 3d A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which m constitute ay evidence tending to prove the commission of an offense La P Cr C art 3 A 161 A search warrant may issue only upon probable cause established to the satisfaction of the judge by the affidavit of a credible person reciting facts that establish the cause for the issuance of the warrant La C art 162 P Cr As provided in this state constitution and the Code of Criminal Procedure a search s warrant shall particularly describe the person or place to be searched the person or things to be seized and the lawful purpose or reason for the search La Const art 1 5 La C art 162 State v Green 20021022 pp 67 La 12 831 P Cr 02 4 2d So 962 968 Probable cause sufficient to issue a search warrant exists when the facts and circumstances within the affiant knowledge and of which he has reasonably s trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant Moreover the process of determining probable cause simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system Green 20021022 at p 7 831 So 2d The testimonial evidence supports the trial court finding that the search s warrant affidavit established probable cause Agent Mason testimony was s credible and internally consistent with the facts of the case He explained fully and 13 convincingly what he meant in the search warrant affidavit by his statement that the Cl had been proven credible and reliable in the past He further made clear that he stated in the affidavit that the Cl had the drugs in her hand because that is what the Cl had told him Furthermore our review of the audiotape of the transaction confirms that as the Cl was walking back to Agent Mason vehicle she stated that s she had it in her hand The trial court did not err or abuse its discretion in denying the defendant s motion to suppress Accordingly this assignment of error is without merit ASSIGNMENTS OF ERROR NOS 2 and 3 In his second and third assignments of error the defendant argues respectively that the trial court erred in denying his motion for post verdict judgment of acquittal and the evidence was insufficient to support the guilty verdicts Specifically the defendant contends there was no evidence that he attempted to possess with intent to distribute cocaine or attempted to possess MDMA because there was no evidence of an act or omission for the purpose of and tending directly toward the accomplishing of the object A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 S Ct 61 L 560 1979 See also La C art 821 State v Ordodi 2006 2d Ed P Cr B 0207 p 10 La 11 946 So 654 660 State v Mussall 523 So 1305 06 29 2d 2d 1308 09 La 1988 The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La 14 S 438 R 15 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 pp 4 5 La App 1st Cir 6 822 So 141 144 21102 2d Louisiana Revised Statute 14 provides A 27 Any person who having a specific intent to commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose In his brief the defendant contends there was no evidence to suggest he knew the drugs were inside the drawer much less that he attempted to secure possession of the drugs with the intent to distribute them In the absence of any evidence whatsoever of an act or omission on his part to accomplish the purpose of possessing the drugs the defendant suggests there could be no reasonable inference of an attempt to possess the drugs The verdict in this case of attempted possession with intent to distribute cocaine likely represents a compromise verdict which is a legislatively approved responsive verdict that jurors for whatever reason deem to be fair as long as the evidence is sufficient to sustain a conviction for the charged offense See State ex rel Elaire v Blackburn 424 So 246 251 La 1982 cert denied 461 U 2d S 959 103 S 2432 77 L 1318 1983 The trial court charged the jury on Ct 2d Ed attempted possession with intent to distribute cocaine without a timely defense objection Further the defendant did not object to the verdict Absent a contemporaneous objection a defendant cannot complain if the jury returns a legislatively approved responsive verdict provided that the evidence is sufficient to support the charged offense See State v Schrader 518 So 1024 1034 La 2d 1988 1 See La R 40 S 979 15 To support a conviction for the charged offense of possession with intent to distribute cocaine the State must prove beyond a reasonable doubt that the defendant possessed the cocaine with the intent to distribute it See State v Gordon 93 1922 pp 89 La App 1st Cir 11 646 So 995 1002 La 94 10 2d S 966 R 40 La R 40 The State must prove that the defendant 1 A S 967 1 A was in possession of the illegal drug and that he knowingly or intentionally possessed the drug Guilty knowledge therefore is an essential element of the crime of possession A determination of whether or not there is possession sufficient to convict depends on the peculiar facts of each case To be guilty of the crime of possession of a controlled dangerous substance one need not physically possess the substance constructive possession is sufficient In order to establish constructive possession of the substance the State must prove that the defendant had dominion and control over the contraband A variety of factors are considered in determining whether or not a defendant exercised dominion and control over a drug including a defendant knowledge that illegal drugs are in the area the s s defendant relationship with any person found to be in actual possession of the substance the defendant access to the area where the drugs were found evidence s of recent drug use by the defendant the defendant physical proximity to the s drugs and any evidence that the particular area was frequented by drug users State v Harris 940696 pp 3 4 La App 1st Cir 6 657 So 1072 95 23 2d 107475 writ denied 95 2046 La 11 662 So 477 95 13 2d It is well settled that intent to distribute may be inferred from the circumstances Factors useful in determining whether the State circumstantial s evidence is sufficient to prove intent to distribute include 1 whether the defendant ever distributed or attempted to distribute illegal drugs 2 whether the drug was in a form usually associated with distribution 3 whether the amount was such to create a presumption of intent to distribute 4 expert or other 16 testimony that the amount found in the defendant actual or constructive s possession was inconsistent with personal use and 5 the presence of other paraphernalia evidencing intent to distribute In the absence of circumstances from which an intent to distribute may be inferred mere possession of drugs is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable For mere possession to establish intent to distribute the State must prove the amount of the drug in the possession of the accused andor the manner in which it was carried is inconsistent with personal use only State v Smith 2003 0917 pp 78 La App 1 st Cir 12 868 So 794 800 03 31 2d In this case through physical evidence and testimony the State established that cocaine and MDMA were found in the bedroom of the defendant female s s friend house where the defendant was sleeping More importantly the defendant admitted to Lieutenant Champagne that the drags were his Also Agent Mason heard the defendant admission to Lieutenant Champagne s Based on the foregoing there was sufficient evidence of the defendant dominion and control of s the cocaine and the MDMA and thus his constructive possession of the drugs See Gordon 93 1922 at pp 1011 646 So at 1003 2d The defendant admitted the MDMA was his and that it came from Houma and further that his girlfriend and brother had nothing to do with the MDMA Accordingly since the defendant had dominion and control over the MDMA guilty of attempted possession of MDMA was a proper verdict See State v Walker 20001349 pp 5 6 La App 4th Cir 5 789 So 632 636 37 01 16 2d writ denied 2001 1785 La 5 815 So 96 02 3 2d Regarding the evidence of the defendant intent to distribute the cocaine s Agent Mason found in a drawer a few feet from where the defendant slept a brown paper bag containing drugs which the defendant admitted belonged to him Inside the paper bag were four cookies of cocaine individually wrapped in baggier and 17 an Advil bottle containing twelve tablets of MDMA At trial Agent Mason explained that a cookie was a large chunk of cocaine that resembled a cookie Crime lab results indicated that the respective weight of each of the four cookies of cocaine was 13 grams 16 grams 13 grams and 7 grams for a total 83 37 24 72 weight of 51 grams of cocaine 16 Louisiana State Police Trooper Craig Rhodes testified at trial as an expert in streetlevel narcotics Trooper Rhodes testified that he had never arrested a drug user with any more than about 40 worth of crack cocaine or about two rocks of crack cocaine He testified an average rock size was about the size of his thumbnail and that the cookie in evidence he was shown was much larger than a rock of cocaine Trooper Rhodes was shown all four cookies together and asked by the prosecutor if he would consider a person with that amount of crack cocaine on him to be a user Trooper Rhodes replied That thought would never come into my mind This is possession with intent According to Trooper Rhodes that amount of crack cocaine found on one person would not be for personal use He further testified that every user he had ever encountered had some way to smoke the crack cocaine namely with a crack pipe Trooper Rhodes explained that a distributor would chip off pieces from the cookies and sell those for a profit He opined that an ounce of crack cocaine was 28 grams and that there were about five crack rocks to a gram He further explained that because dealers usually have multiple customers the dealer will have something to weigh the cocaine such as a digital scale The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when 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 The trier of fact determination of the weight to be given evidence is not subject to s 18 appellate review An appellate court will not reweigh the evidence to overturn a s factfinder determination of guilt State v Taylor 972261 pp 5 6 La App 1st Cir 9 721 So 929 932 We are constitutionally precluded from acting 98 25 2d as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 772 So 78 83 The fact 00 17 2d that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App 1 st Cir 1985 2d Given the testimony of Agent Mason Lieutenant Champagne and Trooper Rhodes the amount of cocaine found near the defendant the admission of the defendant that the drugs were his the razor blade and digital scale found in the kitchen and the lack of paraphernalia to use the cocaine such as a crack pipe a factfinder could have reasonably concluded that the defendant intended to sell rather than use the cocaine See State v Robertson 96 1048 La 10 680 96 4 2d So 1165 1166 per curiam See also State v Hollins 99278 pp 9 10 La App 5th Cir 8 742 So 671 679 writ denied 992853 La 115101 778 99 31 2d 2d So 587 where the court found that the evidence of the amount nineteen rocks of crack cocaine totaling 4 grams the packaging and the lack of paraphernalia 01 all support an inference that defendant had the intent to distribute the cocaine After a thorough review of the record we find that the evidence supports the s jury verdicts We are convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of attempted possession with intent to distribute cocaine and of attempted possession of MDMA These assignments of error are without merit 19 SENTENCING ERROR Under La C art 920 we are limited in our review to errors P Cr 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found sentencing errors See State v Price 2005 2514 La App 1st Cir 12 952 06 28 2d So 112 en banc writ denied 2007 0130 La 2 976 So 1277 08 22 2d The sentence for a conviction of attempted possession with intent to distribute cocaine is necessarily at hard labor See La R 14 S 27 3 D b 4 B 967 40 Also the sentence for a conviction of attempted possession of MDMA is necessarily at hard labor See La R 14 S 27 3 D 3 C 966 40 In sentencing the defendant the trial court failed to provide that the sentences were to be served at hard labor Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence La P Cr C art 920 authorizes consideration of such an error on appeal Further 2 La C art 882 authorizes correction by the appellate court We find that P Cr A correction of these illegally lenient sentences does not involve the exercise of sentencing discretion and as such there is no reason why this court should not simply amend the sentences See Price 2005 2514 at pp 1822 952 So at 123 2d 125 Accordingly since sentences at hard labor were the only sentences that could be imposed we correct the sentences by providing that they be served at hard labor CONVICTIONS AFFIRMED SENTENCES AMENDED TO PROVIDE THAT THEY BE SERVED AT HARD LABOR SENTENCES AFFIRMED AS AMENDED The minutes reflect the trial court sentenced the defendant to hard labor for both of the convictions When there is a discrepancy between the minutes and the transcript the transcript prevails State v Lynch 441 So 732 734 La 1983 2d 3 An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review La C art 882 P Cr A OTC
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