State of Louisiana Versus Kevin Johnson

STATE OF LOUISIANA NO. 22-KA-383

VERSUS FIFTH CIRCUIT

KEVIN JOHNSON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 18,669, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

August 09, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Cornelius E. Regan, Pro Tempore

CONVICTION AFFIRMED; ENHANCED SENTENCE VACATED;
REMANDED FOR RESENTENCING
SJW
JGG
CER

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Jeffrey M. Landry
J. Taylor Gray
Marko Marjanovic

COUNSEL FOR DEFENDANT/APPELLANT,
KEVIN JOHNSON
Prentice L. White

WINDHORST, J.

Defendant, Kevin Johnson, appeals his conviction for distribution of

methamphetamine. For the reasons that follow, we affirm relator’s conviction,

vacate his enhanced sentence, and remand for resentencing.

PROCEDURAL HISTORY

On January 15, 2019, the St. Charles Parish District Attorney’s Office filed a

bill of information charging defendant with distribution of methamphetamine, in

violation of La. R.S. 40:967 A(1). At his arraignment, defendant pled not guilty.

On November 10, 2021, a six-person jury unanimously found defendant guilty

as charged. On February 15, 2022, defendant filed a motion for new trial, which the

trial court denied. On February 16, 2022, the State filed a habitual offender bill of

information, alleging defendant was a fourth-felony offender, to which defendant

pled not guilty. On May 2, 2022, after a contradictory hearing, the trial court

adjudicated defendant a fourth-felony offender pursuant to La. R.S. 15:529.1. The

trial court sentenced defendant as a fourth-felony offender to sixteen years

imprisonment at hard labor without the benefit of probation or suspension of

sentence under State v. Dorthey, 623 So.2d 1276 (1993).1

The State filed a notice of intent seeking supervisory review of the trial court’s

deviation from the mandatory minimum sentence for a fourth-felony offender. The

State’s writ application is before this court in companion case number 22-KH-300.2

Defendant filed the instant appeal challenging only his conviction.

1 The trial court imposed only the enhanced habitual offender sentence on May 2, 2022. La. R.S. 15:529.1
D(3) requires a trial court to vacate a defendant’s previous sentence only “if already imposed” before
sentencing him as a habitual offender. State v. Turner, 09-1079 (La. App. 5 Cir. 07/27/10), 47 So.3d 455,
460 n.8; State v. Bell, 00-1084 (La. App. 5 Cir. 02/28/01), 781 So.2d 843, 845, writ denied, 01-776 (La.
04/26/02), 813 So.2d 1098. Here, sentence on the underlying offense was not already imposed.
2 Defendant filed a motion to dismiss or alternatively, motion for consolidation, seeking to dismiss the
State’s writ application. For the reasons stated in State v. Johnson, 22-300 (La. App. 5 Cir. 08/09/23), —
So.3d —, this court denied defendant’s motion and maintained this court’s previous designation of these
cases as companion.

22-KA-383 1

FACTS and EVIDENCE

On October 30, 2018, Detective Harold Kingsmill and two other detectives,

Detective Daniel April and Detective Alan Tabora, with the St. Charles Parish

Sheriff’s Office (“SCPSO”) conducted a traffic stop on Ashton Road after observing

a turn signal violation. The driver was identified as Kadrina Tappan and Detective

Kingsmill discovered she had an outstanding attachment for her arrest for a missed

court date. Ms. Tappan was advised of her Miranda3 rights. Ms. Tappan provided

consent to search her vehicle and voluntarily informed the detectives that she had

clonazepam pills in her vehicle. A search revealed four clonazepam pills in the

vehicle and Ms. Tappan admitted she did not have a prescription for the pills. To

avoid going to jail, Ms. Tappan agreed to become a confidential informant (“CI”)

and assist the SCPSO with narcotics investigations. Consequently, Ms. Tappan was

not arrested on the attachment or for the clonazepam pills. The following day, Ms.

Tappan filled out a CI packet at the SCPSO and provided a list of potential targets,

including defendant, from whom she could purchase narcotics. Ms. Tappan became

a CI for the SCPSO in this case and in another case concerning a different target.4

Detectives Kingsmill and April testified that on November 6, 2018, Ms.

Tappan was given audio-visual equipment and currency in the amount of $125.00 to

purchase narcotics from defendant.5 The detectives conducted a search of Ms.

Tappan’s person and her vehicle prior to the controlled buy and followed her to

defendant’s residence. Detective Kingsmill testified that while monitoring the

transaction through the audio-visual equipment, he witnessed what he believed was

a hand-to-hand transaction between defendant and Ms. Tappan. Subsequent to the

3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4 Detective Kingsmill testified that Ms. Tappan “worked her charge off” for the clonazepam pills by
participating in the controlled buy involving a different target.
5 The expense form showed that Ms. Tappan was given $175.00 on the day of the controlled buy. Detective
Kingsmill testified that the money covered the purchase of narcotics from defendant, as well as a $50.00
payment to Ms. Tappan to pay off her open attachment.

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transaction, Ms. Tappan departed defendant’s residence and met with the detectives

at a predetermined location, where she immediately provided the alleged narcotics.

Another search of her person and vehicle was conducted and afterwards, the

detectives retrieved the audio-visual equipment. Detective Kingsmill testified that

Ms. Tappan did not provide them with any currency because it was used to purchase

the narcotics. He stated that a field test showed that the substance was

methamphetamine and it weighed 3.05 grams.

Detective Daniel April testified that CI’s generally have a criminal history,

use drugs, and are used in attempts to purchase narcotics from drug dealers. In

exchange for cooperating with a narcotics investigation, CI’s are afforded the

opportunity to “work off” charges. Detective April testified that defendant was not

immediately arrested after the narcotics transaction because Ms. Tappan was also

involved as a CI in another investigation. Defendant was subsequently arrested

during a traffic stop on November 26, 2018. Detective April stated that he was

familiar with defendant, who he identified in open court, and that he had previously

been to defendant’s residence located at 1021 Paul Frederick Street in Luling. He

testified that defendant had convictions for possession of cocaine in 2006 and 2012

and distribution of cocaine in 2015, and that he was involved in the investigations

which resulted in defendant’s 2012 and 2015 convictions.

Ms. Tappan testified that she became a CI for the SCPSO after four

clonazepam pills were discovered in her vehicle during a traffic stop. At the time,

she was on probation and to avoid going to jail, she agreed to become a CI.6 She

testified that she signed a CI contract with the SCPSO and she provided defendant’s

name as a potential target. She testified that she used drugs for twelve years and that

6 Ms. Tappan testified that she has had previous attachments for her arrest and she also has convictions
for possession of methamphetamine, simple battery, and making a false police report. As to the conviction
for making a false police report, she admitted she lied to police about her fiancé trying to strangle her. She
testified that she was “high as a kite” and lied to get her fiancé removed from her house. She testified that
when she “sobered up,” she came forward and admitted to the police that she had lied.

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she has used crack cocaine, methamphetamine, Xanax, and ecstasy. She stated that

she met defendant through a friend and began purchasing drugs from him in 2017 or

2018. Initially, she bought crack cocaine from defendant every day, but then she

quit using crack cocaine. She was told she could go to defendant for

methamphetamine, which she bought from him a “couple of times. Not very often.”

She testified that on November 6, 2018, she bought three grams of

methamphetamine from defendant for $125.00 dollars.7

Ms. Tappan testified that while the detectives were present, she set up the

controlled buy with defendant through Facebook Messenger and negotiated a price

for the methamphetamine while on speakerphone. Prior to meeting defendant, the

detectives searched her person and vehicle for narcotics, she was given money to

purchase the narcotics, and outfitted with audio-visual equipment. As instructed,

she drove straight to defendant’s residence. Upon arrival, she asked to go inside

defendant’s residence because she did not feel comfortable conducting the

transaction outside. She testified that she had the money to buy the

methamphetamine in her hand with her keys. Once inside, defendant placed the

methamphetamine on the counter. Ms. Tappan testified that although you cannot

see it on the surveillance video, you can hear her keys drop on the counter. At that

time, she also placed the money on the counter because it was in her hand with her

keys. Ms. Tappan testified that although defendant did not ask “where’s my $125”

nor did he physically place the narcotics in her hand, he did tell her to “check it out”

before she left with it. She thanked him, picked up the methamphetamine and her

keys and left, leaving the money on the counter.

7 She testified that she was also given $50 to remove an open attachment. On cross-examination, Ms.
Tappan admitted that she was arrested for failing to appear for a traffic ticket on December 10, 2018, after
this narcotics transaction, and was found in contempt of court. However, despite defense counsel’s
contention to the contrary, she believed that the $50 she received for payment as a CI went toward a
different ticket, not the December 10, 2018 ticket, because she had several tickets.

22-KA-383 4

Ms. Tappan testified that she drove straight to meet the detectives and she

immediately handed over the narcotics she received from defendant. Another search

of her person and vehicle was performed and then the detectives retrieved the audio-

visual equipment. Ms. Tappan denied using any narcotics at defendant’s residence

the day before or the morning of the narcotics transaction with defendant. She

further testified that she did not leave or plant the narcotics at defendant’s residence.

Ms. Tappan testified that she has been “clean” for three years, since she signed the

CI contract with the SCPSO. Ms. Tappan identified defendant in open court and on

the surveillance video.

A video of the November 6, 2018 narcotics transaction was played for the

jury.8 Detective April testified that he and Detectives Tabora and Kingsmill

monitored the narcotics transaction on a device in “real-time moment” in their

vehicle at a nearby location. The video shows that Ms. Tappan entered defendant’s

residence and defendant sat down on a chair by a countertop. As the video continued

playing for the jury, Detective April testified that while speaking to someone on his

cell phone, defendant placed a clear plastic bag of a “crystal-like substance” on the

countertop. In the video, defendant gave Ms. Tappan a “fist pump” and a “thumbs-

up.” Detective April testified that in his experience, those actions signify that “the

transaction’s complete; we’re good.” Detective April conceded that you could not

see an exchange of currency between defendant and Ms. Tappan in the video. Ms.

Tappan, however, testified that she had the money and her keys in her hand when

she entered the residence. Ms. Tappan testified that when defendant placed the

narcotics on the counter, you can hear in the video her keys dropping on the counter.

She stated that the money was with her keys when she placed them down. After

8 Two videos were played to the jury, one in black and white and the other in color.

22-KA-383 5

thanking defendant, she grabbed her keys and walked out of his residence, leaving

the money behind.

Brian Schulz, an expert in the field of analysis and identification of controlled

dangerous substances with the Jefferson Parish Sheriff’s Office Crime Lab, testified

that he tested the substance from the controlled buy in this case. He testified that the

substance tested positive as methamphetamine and the net weight of the

methamphetamine was two grams. Mr. Schultz testified that net weight is the weight

of the material without the packaging it came in. He testified that most suspected

narcotics weighed in the field by law enforcement officers are weighed with “the

packaging that it’s collected in.” He explained that accordingly, his calculated net

weight can be different from the law enforcement officer’s field-tested weight.

Defendant testified that he developed a drug addiction while in the military.

He admitted he was convicted of possession of cocaine in 2006 and in 2012 and

distribution of cocaine in 2015.9 He stated that throughout the ten years that he knew

Ms. Tappan, they would periodically use drugs together. Defendant testified in

November of 2018, around 6:30 A.M.,10 Ms. Tappan was at his residence smoking

methamphetamine while he smoked crack cocaine.11 Defendant testified that upon

her request, he allowed Ms. Tappan to leave her drugs with him and return later for

her “package.” He stated that he did not speak with Ms. Tappan on Facebook

Messenger or on the phone about purchasing methamphetamine for $125.00. He

testified that Ms. Tappan did not leave any money for her drugs and he denied

9 Defendant emphasized that that he pled no contest to the charge of distribution of cocaine in 2015. He
stated that an undercover agent purchased drugs from another street dealer, who said that he left his drugs
at defendant’s residence. He asserted that the dealer was not going to purchase drugs from him. During
cross-examination, a jail call was played for the jury, wherein the State alleged to the jury that defendant
admitted to the distribution of cocaine charge. In response, defendant testified that he was only telling the
other party on the phone about the information he read from the police report and from his lawyer, not that
he admitted distributing crack cocaine.
10 Defendant testified that the time was 6:30 A.M. and later stated it was between “6:00, 6:30.” When
questioned by the State how he knew what time it was, defendant replied “I’m assuming. I don’t know for
sure.”
11 During his testimony, defendant was asked whether he and Ms. Tappan were “smoking out of the same
stuff?” Defendant responded, “No. I supplied—well, again, her addiction is different from mine. I, I—my
choice of addiction of drug is, is crack; hers is meth; so, no, we did not use the same drug.” (Emphasis
added.)

22-KA-383 6

requesting any money or anything of value from her for holding the drugs for her at

his house. He testified that when Ms. Tappan returned for her drugs, they did not

communicate because he was on the phone. He stated he placed the

methamphetamine on the counter and pointed towards it for Ms. Tappan to retrieve.

She picked up the methamphetamine and left. He testified that he is not a drug

dealer, he is a “user.” He stated that he did not sell methamphetamine to Ms. Tappan.

Defendant testified that Ms. Tappan staged a fake distribution and that she stated she

would do “anything” to avoid the narcotics charge.

Defendant acknowledged that he had methamphetamine in his house and that

he knew that the methamphetamine was in his house. He also admitted that he

placed the methamphetamine on the counter and gestured toward it for Ms. Tappan

to retrieve.

DISCUSSION

In his first assignment of error, defendant contends that the evidence was

insufficient to support his conviction. Defendant challenges the reliability and

credibility of the CI, Ms. Tappan. He argues that Ms. Tappan admitted that she was

a drug addict and would do “anything” to avoid prison. He contends that she did not

inform the police that she had used methamphetamine at his house hours before the

scheduled, undercover drug purchase and that she left her methamphetamine at his

house. He contends that he only returned the drugs she left at his residence.

Defendant asserts that it is not out of character for Ms. Tappan to lie and manipulate

others for her own benefit, especially in this case, where she agreed to be a CI to

avoid jail time for possession of narcotics. He contends that the jury was forced to

assume the State met its burden of proof, even though the video recording of the

alleged drug purchase did not clearly show that a narcotics purchase had occurred.

In reviewing the sufficiency of evidence, an appellate court must determine

that the evidence, whether direct or circumstantial, or a mixture of both, viewed in

22-KA-383 7

the light most favorable to the prosecution, was sufficient to convince a rational trier

of fact that the State proved all of the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307 So.3d 1189, writ

denied, 21-274 (La. 04/27/21), 314 So.3d 838, cert. denied, — U.S. —, 142 S.Ct.

296, 211 L.Ed.2d 138 (2021); State v. Sosa, 05-213 (La. 01/19/06), 921 So.2d 94, 99.

Review for sufficiency of evidence requires the reviewing court to defer to the

trier of fact’s rational credibility calls, evidence weighing, and inference drawing.

State v. Clifton, 17-538 (La. App. 5 Cir. 05/23/18), 248 So.3d 691, 702. This

deference to the fact-finder does not permit a reviewing court to decide whether it

believes a witness or whether the conviction is contrary to the weight of the evidence.

State v. Caffrey, 08-717 (La. App. 5 Cir. 05/12/09), 15 So.3d 198, 202, writ denied,

09-1305 (La. 02/05/10), 27 So.3d 297. Further, a reviewing court errs by

substituting its appreciation of the evidence and the credibility of witnesses for that

of the trier of fact and overturning a verdict on the basis of an exculpatory hypothesis

of innocence presented to, and rationally rejected by, the jury. State v. Lane, 20-181

(La. App. 5 Cir. 01/27/21), 310 So.3d 794, 804. Consequently, under the Jackson

standard, a review of the record for sufficiency of the evidence does not require the

reviewing court to determine whether the evidence at trial established guilt beyond

a reasonable doubt but whether, upon review of the whole record, any rational trier

of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.

App. 5 Cir. 04/15/08), 985 So.2d 234, 240.

The credibility of witnesses is within the sound discretion of the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness; the

credibility of the witnesses will not be reweighed on appeal. State v. Bartholomew,

18-670 (La. App. 5 Cir. 10/23/19), 282 So.3d 374, 382. Absent internal

contradiction or irreconcilable conflict with physical evidence, one witness's

22-KA-383 8

testimony, if believed by the trier of fact, is sufficient support for a requisite factual

conclusion. State v. Washington, 16-732 (La. App. 5 Cir. 04/12/17), 219 So.3d

1221, 1226. It is not the function of this court to assess the witnesses’ credibility or

re-weigh the evidence. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d

886, 906, writ denied, 21-100 (La. 04/27/21), 314 So.3d 836.

Defendant was convicted of one count of distribution of methamphetamine

weighing less than twenty-eight grams in violation of La. R.S. 40:967 A(1), which

provides that it is unlawful for any person to knowingly or intentionally distribute a

controlled dangerous substance classified in Schedule II, which includes

methamphetamine. La. R.S. 40:964 C(2). To establish the offense of distribution

of a controlled dangerous substance, the State must prove: (1) delivery or physical

transfer; (2) guilty knowledge of the controlled dangerous substance at the time of

transfer;12 and (3) the exact identity of the controlled dangerous substance. State v.

Beason, 16-195 (La. App. 5 Cir. 12/07/16), 204 So.3d 1206, 1210. The term

“distribute,” means “to deliver a controlled dangerous substance whether by physical

delivery, administering, subterfuge, furnishing a prescription, or by filling,

packaging, labeling or compounding the substance pursuant to a lawful order of a

practitioner.” La. R.S. 40:961(15). “Delivery” has been jurisprudentially defined

as transferring possession or control. Brown, 904 So.2d at 808.

Defendant challenges his conviction on the basis of Ms. Tappan’s credibility.

He contends that her testimony was not believable because of her CI contract, prior

drug use, and prior criminal history. The jury heard testimony from the State’s

witnesses and from defendant as to the details of the alleged narcotics transaction

between Ms. Tappan and defendant, weighed the evidence, and made a credibility

12 The element of guilty knowledge is satisfied with proof of general intent. State v. Brown, 05-102 (La.
App. 5 Cir. 05/31/05), 904 So.2d 805, 808, writ denied, 06-1287 (La. 01/26/07), 948 So.2d 159. General
intent is present when “there is specific intent, and also when the circumstances indicate that the offender,
in the ordinary course of human experience, must have adverted to the prescribed criminal consequences
as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2).

22-KA-383 9

determination. In returning a guilty verdict, the jury obviously believed Ms. Tappan

and the detectives’ version of events, over defendant’s version, and found that the

evidence supported a conviction for distribution of methamphetamine weighing less

than twenty-eight grams.13 See Washington, supra; Lane, supra. Viewing the

evidence in the light most favorable to the prosecution under the Jackson standard,

we find that a rational trier of fact could have found that the evidence was sufficient

to convict defendant of distribution of methamphetamine weighing less than twenty-

eight grams. This assignment is without merit.

In his second assignment of error, defendant contends that the trial court erred

in allowing evidence that the CI, Ms. Tappan, purchased drugs from him on multiple

prior occasions. He asserts that the State did not provide any other corroborating

evidence besides Ms. Tappan’s self-serving statement. He claims that Ms. Tappan

had credibility issues and provided false testimony. He asserts that the admission of

this other crimes evidence was highly inflammatory and it caused the jury to believe

he was a bad person and a known drug dealer in the area.

On September 18, 2019, the State filed a notice of intent to introduce evidence

pursuant to La. C.E. art. 404 B, seeking to introduce evidence that defendant was

willing to sell methamphetamine to Kadrina Tappan in this case because they knew

each other. The State contended that Ms. Tappan purchased small amounts of

13 Further, considering State v. Raymo, 419 So.2d 858, 861 (La. 1982), we find the State presented
sufficient evidence under the Jackson standard to establish the essential statutory elements of distribution
of methamphetamine weighing less than twenty-eight grams. Ms. Tappan testified that she purchased
three grams of methamphetamine from defendant for $125.00. The detectives testified that they were
present when Ms. Tappan set up the controlled buy of the narcotics and negotiated a price of $125.00.
They also testified they gave Ms. Tappan $125.00 to purchase the narcotics, monitored the controlled buy,
and immediately received the substance from Ms. Tappan afterwards. The substance tested positive as
methamphetamine weighing 3.05 grams in a field test. Defendant also testified that he had possession of
the methamphetamine in his house, had knowledge that it was there, placed the methamphetamine on the
counter and gestured for Ms. Tappan to retrieve the methamphetamine. He stated that she picked up the
methamphetamine and left his residence. Ms. Tappan testified that she left the $125.00 on the counter
when she purchased the methamphetamine from defendant. The detectives testified that immediately after
the controlled buy, a search of Ms. Tappan’s person and vehicle showed that she did not have any money
on her and it was left with defendant. Mr. Schultz also confirmed that the substance was methamphetamine
and it had a net weight of two grams.

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narcotics from defendant on several occasions “between late 2017 and late 2018.”14

The State argued that evidence of the prior sales was sufficiently similar to the

evidence that would be presented in this case. The State averred that this evidence

indicated a pattern of intentional conduct by defendant. The State asserted that the

evidence of the prior sales was relevant pursuant to the provisions of La. C.E. art.

404 B in order to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, and absence of mistake or accident.”

On September 24, 2019, defendant filed an opposition and motion in limine

seeking to prohibit the State from making any direct or indirect reference to any

alleged prior narcotics sales to Ms. Tappan. Defendant asserted that the evidence

should be precluded because the State failed to show that evidence of the previous

alleged sales of narcotics has independent relevance. Defendant also argued that the

prejudicial effect of the evidence outweighed its probative value. The trial court set

defendant’s motion in limine for hearing.

On January 14, 2020, the trial court granted the State’s notice of intent, finding

that the “law was designed specifically for these types of facts,” noting defendant’s

objection.15

At trial, Ms. Tappan testified that she began purchasing drugs from defendant

in 2017 or 2018. She stated that she initially bought crack cocaine from defendant

every day. Ms. Tappan testified that after she quit using crack cocaine, she had

trouble finding methamphetamine. She was told she could go to defendant if it “was

something that [she] needed.” Ms. Tappan testified that she bought

methamphetamine from defendant “a couple of times. Not very often.”

14 On January 29, 2020, the State filed a second notice of intent to introduce evidence of defendant’s three
prior narcotic convictions pursuant to La. C.E. art. 404 B. Admission of this evidence was not appealed by
defendant.
15 The transcript and minute entry state that the trial court granted the State’s notice of intent.
The trial
court presumably denied defendant’s motion in limine to exclude the evidence sought to be admitted,
although the trial court did not specifically rule on the motion in limine.

22-KA-383 11

Generally, evidence of other crimes or bad acts committed by a criminal

defendant is not admissible at trial. La. C.E. art. 404 B(1); State v. Prieur, 277 So.2d

126, 128 (La. 1973). However, when evidence of other crimes tends to prove a

material issue and has independent relevance other than to show that the defendant

is of bad character, it may be admitted by certain statutory and jurisprudential

exceptions to this rule. State v. Williams, 10-51 (La. App. 5 Cir. 07/27/10), 47 So.3d

467, 474, writ denied, 10-2083 (La. 02/18/11), 57 So.3d 330. Evidence of other

crimes is admissible to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident, or when it relates to conduct

that constitutes an integral part of the act or transaction that is the subject of the

present proceeding to such an extent that the State could not accurately present its

case without reference to the prior bad acts. La. C.E. art. 404 B(1); State v. Lawson,

08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

In order for other crimes evidence to be admitted under La. C.E. art. 404 B(1),

one of the factors enumerated in the article must be at issue, have some independent

relevance, or be an element of the crime charged. Lawson, 1 So.3d at 525-26.

Moreover, the probative value of the extraneous evidence must outweigh the

prejudicial effect. La. C.E. art. 403. Even if independently relevant, the evidence

may be excluded if its probative value is substantially outweighed by the dangers of

unfair prejudice, confusion of the issues, misleading the jury, considerations of

undue delay or waste of time. La. C.E. art. 403. As used in the balancing test,

prejudice limits the introduction of probative evidence of prior misconduct only

when it is unduly and unfairly prejudicial. State v. Ard, 20-221 (La. App. 5 Cir.

04/28/21), 347 So.3d 1046, 1057.

The defendant bears the burden to show that he was prejudiced by the

admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir.

12/28/11), 83 So.3d 178, 187, writ denied, 12-282 (La. 05/18/12), 89 So.3d 1191,

22-KA-383 12

cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). Clearly,

evidence of other crimes or bad acts is prejudicial since all evidence that tends to

make it more probable than not that an individual committed a criminal offense is

necessarily prejudicial. State v. Garcie, 17-609 (La. App. 5 Cir. 04/11/18), 242

So.3d 1279, 1285; State v. Cotton, 07-782 (La. App. 5 Cir. 02/19/08), 980 So.2d 34,

42, writ denied, 08-603 (La. 10/03/08), 992 So.2d 1010. The underlying policy is

not to prevent prejudice, since evidence of other crimes is always prejudicial, but to

protect against unfair prejudice when the evidence is only marginally relevant to the

determination of guilt of the charged crime. Garcie, 242 So.3d at 1285; State v.

Williams, 02-645 (La. App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-

3182 (La. 4/25/03), 842 So.2d 398. Absent an abuse of discretion, a trial court’s

ruling on the admissibility of evidence pursuant to La. C.E. art. 404 B(1) will not be

disturbed. Garcie, 242 So.3d at 1285; State v. Maize, 16-575 (La. App. 5 Cir.

06/15/17), 223 So.3d 633, 649, writ denied, 17-1265 (La. 04/27/18), 241 So.3d 306.

Upon review, we find that the trial court did not abuse its discretion in

admitting the other crimes evidence. Ms. Tappan’s testimony that she previously

purchased small amounts of crack cocaine and methamphetamine from defendant

was sufficiently similar to the evidence presented in the instant case. Evidence of

prior sales of narcotics from defendant to Ms. Tappan indicates a pattern of

intentional conduct by the defendant and shows an absence of mistake or accident.

Additionally, defendant did not show that he was prejudiced by the trial court’s

admission of the other crimes evidence.

Nevertheless, even if the trial court erred in allowing admission of the

evidence, the erroneous admission of other crimes evidence is subject to a harmless

error analysis. State v. Williams, 05-318 (La. 01/17/06), 921 So.2d 1033, 1036, writ

denied, 06-973 (La. 11/03/06), 940 So.2d 654. An error is harmless when the verdict

is “surely unattributable to the error.” State v. Massey, 11-358 (La. App. 5 Cir.

22-KA-383 13

03/27/12), 97 So.3d 13, 29, writ denied, 12-993 (La. 09/21/12), 98 So.3d 332. In

this case, there was ample evidence to support defendant’s conviction without

evidence of defendant’s prior narcotics transactions with Ms. Tappan. Ms. Tappan

testified that on November 6, 2018, while working as a CI, she purchased three

grams of methamphetamine from defendant for $125.00. Additionally, Detective

Kingsmill and Detective April testified as to the details of the controlled buy that

occurred between Ms. Tappan and defendant and a video of the transaction was

shown to the jury. Even if the trial court erred by admitting the evidence, any such

error was harmless considering the evidence submitted established that defendant

distributed methamphetamine to Ms. Tappan. We find the guilty verdict of

distribution of methamphetamine was surely unattributable to the evidence of any

prior drug transactions between defendant and Ms. Tappan. Accordingly, we find

the trial court did not err in admitting the prior narcotics sales from defendant to Ms.

Tappan. This assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to the mandates of La.

C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,

556 So.2d 175 (La. App. 5 Cir. 1990). The following errors patent require corrective

action.

The trial court adjudicated defendant as a fourth-felony offender and

sentenced him to sixteen years imprisonment at hard labor without the benefit of

probation or suspension of sentence pursuant to Dorthey, supra.16 Upon review of

the facts and law, we find that the mitigating factors cited by defendant and relied

upon by the trial court, and the court’s stated reasons, are not sufficient to warrant a

16 A review of the sentencing minute entry reflects that defendant’s enhanced sentence was to be served
without the benefit of probation, parole, or suspension of sentence. However, the sentencing transcript
reflects that the trial court ordered the enhanced sentence to be served without benefit of probation or
suspension of sentence as required by La. R.S. 40:967 and La. R.S. 15:529.1 G. Because this court is
vacating defendant’s enhanced sentence and remanding for resentencing, this issue is moot.

22-KA-383 14

deviation from the mandatory minimum sentence of twenty years imprisonment at

hard labor for a fourth-felony offender. For the reasons fully discussed in the

companion case State v. Johnson, 22-300 (La. App. 5 Cir. 08/09/23), — So.3d —,

we find defendant’s enhanced sentence is illegally lenient and that the trial court

abused its discretion in deviating from the mandatory minimum sentence for a

fourth-felony offender. Accordingly, we vacate defendant’s enhanced sentence and

remand for resentencing according to law.

Additionally, the Uniform Commitment Order (“UCO”) shows the date of this

offense as November 28, 2018. However, the record indicates that this offense was

committed on November 6, 2018. Accordingly, we remand this matter to the trial

court for correction of the UCO to reflect the correct date of the offense. The Clerk

of Court for the 29th Judicial District Court is ordered to transmit the original of the

corrected UCO to the officer in charge of the institution to which defendant has been

sentenced and the Department of Corrections’ legal department.

CONVICTION AFFIRMED; ENHANCED SENTENCE
VACATED; REMANDED FOR RESENTENCING

22-KA-383 15

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 9, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-383
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
J. TAYLOR GRAY (APPELLEE)

MAILED
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