State v. Roberts

683 So. 2d 1335, 1996 WL 638204
CourtLouisiana Court of Appeal
DecidedNovember 6, 1996
Docket96-603
StatusPublished
Cited by5 cases

This text of 683 So. 2d 1335 (State v. Roberts) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Roberts, 683 So. 2d 1335, 1996 WL 638204 (La. Ct. App. 1996).

Opinion

683 So.2d 1335 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Randolph Paul ROBERTS, Defendant-Appellant.

No. 96-603.

Court of Appeal of Louisiana, Third Circuit.

November 6, 1996.

*1337 Bernard E. Boudreaux, Jr., Dist. Attorney, for State of La.

Gary Legros, Lake Charles, for Randolph Paul Roberts.

Before THIBODEAUX, COOKS and GREMILLION, JJ.

GREMILLION, Judge.

Defendant, Randolph Paul Roberts, was arrested on October 23, 1992, for distribution of crack cocaine to an undercover agent and was subsequently charged by bill of information with Distribution of Cocaine on November 16, 1992. Defendant was tried by a twelve member jury and was unanimously found guilty on September 20, 1995. At his sentencing proceeding on November 9, 1995, defendant was sentenced to sixteen years at hard labor. Defendant appeals his conviction and the sentence imposed. We affirm the conviction and remand for further proceedings.

FACTS

On June 10, 1992, the New Iberia Police Department was involved in an undercover narcotics operation. The target group for this particular operation was street level dealers within New Iberia. In the instant case, Detective Arthur Welch, an undercover narcotics agent with the St. Mary Parish Sheriff's Office, and a confidential informant were working together in a vehicle when they spotted defendant driving his truck. They flagged defendant down. He stopped his truck and walked over to the undercover vehicle where he distributed crack cocaine to Officer Welch. Officer Welch was wired with a wireless body wire and there was a resultant audio tape of the entire transaction. Also, two other police officers drove by the distribution scene and videotaped the defendant and his vehicle. The defendant was arrested at a later date.

ERRORS PATENT

La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

In accordance with this article, all appeals are reviewed by the court for errors patent on the face of the record. After review of the record for errors patent, we find there is only one error patent and that it is harmless.

*1338 This error patent deals with an error in the form of indictment. La.Code Crim.P. arts. 383 and 461 et seq. In State v. Cox, 474 So.2d 523, 526 (La.App. 3 Cir.1985), writ granted in part, denied in part, 481 So.2d 1328 (La.1986), this court stated the standard for technical sufficiency of an indictment:

The technical sufficiency of an indictment may not be raised after conviction where the accused has been fairly informed of the charge against him and has not been prejudiced by surprise or lack of notice and will not be truly subject to any jeopardy of further prosecution. (citations omitted).

In the case sub judice, there was a handwritten notation on the bill of information which appears to mark out the word "distribute" and to write in the word "possess" followed by three initials. However, this notation does not create a substantial error for a number of reasons. First, the change itself had no effect on the proceeding whatsoever. The indictment for distribution of cocaine and defendant's plea were read in open court. The minute entries and the trial transcript all have distribution of cocaine as the proper charge attributable to defendant's crime. Additionally, the statutory citation was not amended and defendant was ultimately convicted of distribution of cocaine.

Second, defendant never objected to the change on the bill. He consistently spoke of distribution as the charge levied against him during the entire trial. Also, no mention was made of the error during the sentencing proceeding. Finally, there is no date on the notation nor are there any references to the notation in the minute entries; therefore, we cannot say when the change occurred.

For the aforementioned reasons, we find that defendant waived his rights to protest this discrepancy in the bill. He was fairly informed of the distribution charge and he was not prejudiced by surprise or lack of notice. Furthermore, he will not be placed in any jeopardy of another prosecution. The error, thus, is harmless.

ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, defendant argues that the verdict is contrary to the law and the evidence and that the trial court erred in finding that reasonable finders of fact could have concluded that he was guilty of the charge of distribution of cocaine. When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La. 1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness, and therefore the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the state to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. Defendant was convicted of distribution of crack cocaine. La.R.S. 40:967A states in part:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense ... a controlled dangerous substance classified in Schedule II;....

In State v. Bernard, 441 So.2d 817, 820 (La. App. 3 Cir.1983), this court held that, "[i]n spite of the words that `it shall be unlawful for any person knowingly or intentionally...' to do the prohibited acts, the statute requires no more than general criminal intent. LSA-R.S. 14:11. A distribution offense is a crime requiring only general criminal intent. Such intent is established by mere proof of voluntary distribution." (Citations *1339 omitted) See also State v. Jones, 587 So.2d 787, (La.App. 3 Cir.), writ denied, 590 So.2d 78 (La.1991); State v. Williams, 352 So.2d 1295 (La.1977); State v. Clark, 338 So.2d 690 (La.1976). State v. Banks, 307 So.2d 594 (La.1975). Thus, the state must prove beyond a reasonable doubt that defendant voluntarily distributed cocaine.

Viewing the facts in the light most favorable to the prosecution, we find that the state proved defendant distributed cocaine beyond a reasonable doubt. The prosecution's main witness was Officer Welch. Welch was working with the New Iberia Police Department as an undercover agent. He was issued a wireless body wire, marked money, and a confidential informant.

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Bluebook (online)
683 So. 2d 1335, 1996 WL 638204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roberts-lactapp-1996.