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APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 510-791, SECTION " L" . Honorable Franz Zibilich, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Frank Gerald DeSalvo, Brigid E. Collins, FRANK G DeSALVO, APLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT, EUGENE THOMAS.
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT, MORRIS J. PATIN.
(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano).
[2014-0510 La.App. 4 Cir. 1] Roland L. Belsome,
The defendants, Morris Patin and Eugene Thomas, appeal their multiple convictions and sentences. Finding that the district court erred in part, we remand for the imposition of the mandatory fines relative to both of the defendants' possession with the intent to distribute marijuana sentences on Count I, as well as Patin's felon in possession of a firearm sentence on Count V. In all other respects, we affirm.
STATEMENT OF THE CASE
The defendants were jointly charged by bill of information with possession with intent to distribute marijuana Count I; possession with intent to distribute cocaine (Count II); possession with intent to distribute heroin (Count III). Patin was charged separately with being a felon in possession of a firearm (Count V). The State amended the bill of information to jointly charge both defendants with possession with intent to distribute alprazolam (Count VI); and to charge Thomas separately with being a felon in possession of a firearm (Count VII).
[2014-0510 La.App. 4 Cir. 2] Thomas pled not guilty at arraignment on the original bill of information. The
trial court granted the State's Prieur  motion regarding the admission of prior crimes of Patin. Dantzler was severed pursuant to the State's motion.
A twelve-person jury found the defendants Patin and Thomas guilty as charged on all counts. Subsequently, the trial court denied Thomas's written motion for mistrial. Patin also filed motions for post-verdict judgment of acquittal, and, alternatively, for a new trial. The record reflects that the trial court denied Patin's motion for a new trial.
After the expiration of the sentencing delay, the trial court sentenced Patin to five years at hard labor on Counts I, II, and VI; eight years at hard labor on Count III; and to fifteen years at hard labor on Count V, all sentences to run concurrently. Approximately one month later, the trial court adjudicated Patin a third-felony [2014-0510 La.App. 4 Cir. 3] offender as to Count III; the court vacated the original sentence on Count III and re-sentenced him to thirty-seven years at hard labor.
On the same day, the trial court denied Thomas's motion for new trial; he announced his readiness for sentencing; and the trial court sentenced him to five years at hard labor on Counts I and II, with the first two years of the sentence on Count II without the benefits; seven years at hard labor on Count III, with the first five years being without benefits; and to three years at hard labor on Count VI; all sentences to run concurrently. The defendants' appeals followed.
After conducting a controlled purchase of heroin through a confidential informant, Detective Mike Dalferes of the New Orleans Police Department obtained a search warrant for the residence located at 2031 Dumaine Street, in New Orleans. On December 29, 2011, following a brief surveillance of the residence, the warrant was executed. When the narcotics officers knocked and announced their presence, they heard feet scrambling as if people were running to the back door, so they breached the front door to gain entry and detained the defendants. Patin and Thomas were found standing in the kitchen and Dantzler was sitting on the left end of the sofa.
A search of the residence yielded the following items: one loaded .40 caliber Glock handgun; twenty-three bags of crack cocaine; one large crack cocaine
rock; a bag containing twelve individual packages of heroin; an unspecified number of pieces of crack cocaine; twenty-two small bags of marijuana; two bags of inositol, [2014-0510 La.App. 4 Cir. 4] a cutting agent for cocaine and heroin; an orange pill bottle with forty-four white pills; two scales, and plastic sandwich bags. In addition to these items, the officers recovered one hundred twenty-seven dollars from Thomas; five hundred five dollars from Patin; one hundred dollars from Dantzler, and seven thousand dollars from a shoe box underneath an end table in the living room. The defendants were subsequently arrested.
There are various sentencing errors related to Patin. The first patent error involves both defendants, Thomas and Patin.
On Count I, Patin and Thomas were convicted of possession with intent to distribute marijuana, and were sentenced to five years at hard labor. The trial court failed to impose the mandatory fine, as required by La. R.S. 40:966(B)(3); therefore, the defendants' sentences were illegally lenient. Accordingly, the case is remanded for imposition of appropriate fines relative to Patin and Thomas's sentences on Count I. Cf., State v. Thomas, 12-852, p. 9 (La.App. 4 Cir. 5/29/13), 116 So.3d 999, 1004, writ denied, 13-1554 (La. 1/27/14), 130 So.3d 957 (remand necessary for imposition of appropriate fine required by La. R.S. 14:95.1(B)).
On Count II, Patin was convicted of possession with intent to distribute cocaine, and sentenced to five years at hard labor. However, the trial court failed to specify that the first two years of the sentence be served without benefits, as required by La. R.S. 40:967(B)(4)(b). Likewise, the trial court failed to restrict the benefits of probation and suspension of sentence as it relates to Patin's habitual offender sentence. Nevertheless, these provisions are deemed to be a part of the sentence. La. R.S. 15:301.1; State v. Handy, 14-1015, p. 6 (La.App. 4 Cir. [2014-0510 La.App. 4 Cir. 5] 12/10/14), 156 So.3d 785, 789 n. 7 ( When a criminal statute requires that all or a portion of a sentence be served without the benefit of probation, parole, or suspension of sentence, or of any one of those benefits or any combination thereof, La. R.S. 15:301.1 self-activates the correction and eliminates the need to remand for a ministerial correction.). Therefore, no corrective action is necessary.
On Count V, Patin was convicted for being a felon in possession of a firearm. In addition to its failure to restrict benefits, the trial court also failed to impose the mandatory fine, pursuant to La. R.S. 14:95.1. Therefore, we also remand the matter for the imposition of an appropriate fine relative to Patin's sentence on Count V. See Thomas, supra.
On appeal, Patin makes three claims related to sufficiency of the evidence, the admission of other crimes evidence, and an incomplete record; while Thomas only asserts one error regarding the denial of his motion for new trial. Since the defendant's assignments of error are unrelated, we address them separately.
First, Patin argues that the evidence was insufficient to support his convictions. When reviewing the sufficiency of the evidence to support a conviction, this Court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which
dictates that to affirm a conviction " the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the [2014-0510 La.App. 4 Cir. 6] crime had been proved beyond a reasonable doubt." State v. Captville, 448 So.2d 676, 678 (La. 1984).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of " proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." State v. Shapiro, 431 So.2d 372, 378 (La. 1982) (citation omitted). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 821 (La. 1987).
In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La. 1/8/99), 725 So.2d 1291, 1293 (citation omitted). " [A] reviewing court is not called upon to decide whether it believes the ...