State of Louisiana v. Michael D. Patterson

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-892

STATE OF LOUISIANA

VERSUS

MICHAEL D. PATTERSON

**********

APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 89656
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T.
Genovese, Judges.

CONVICTIONS AFFIRMED, SENTENCES AFFIRMED
AS AMENDED, REMANDED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Michael D. Patterson

J. Reed Walters
District Attorney – Twenty-Eighth Judicial District
Post Office Box 1940
Jena, Louisiana 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Michael D. Patterson, was convicted of five

counts of distribution of methamphetamine and sentenced to five years at hard

labor on each count to run consecutively to each other. He appeals his convictions

and sentences, alleging insufficiency of the evidence, trial court error in denying

his motions for new trial, trial court error in allowing evidence of other crimes/bad

acts, and excessive sentence. For the following reasons, we affirm Defendant‘s

convictions, we affirm Defendant‘s sentences as amended, and we remand with

instructions to amend the minutes.

FACTS AND PROCEDURAL HISTORY

Samantha Jones was married to Defendant‘s cousin before she was caught

selling methamphetamine to an Alcohol, Tobacco, and Firearms agent and charged

with two counts of distribution of methamphetamine. Trooper Charles Turnage of

the Louisiana State Police asked Jones ―if she would be willing to cooperate with

law enforcement and provide to [them] who her source was.‖ In exchange for her

cooperation, Trooper Turnage ―would speak to [the district attorney‘s office] on

her behalf.‖ As a result of that agreement, Jones served as a confidential informant

in Operation Third Option, an undercover operation in LaSalle Parish.

Operation Third Option began in the latter part of 2007 and concluded

around July of 2009. On five different occasions as part of that operation, Jones

met with authorities before making drug purchases from Defendant.1 She began

with a telephone call to Defendant to arrange for each purchase. Her person and

her vehicle were searched to insure she took no illegal substances or weapons into

the operation. On the first two occasions, March 10 and March 16, 2009, Jones

1
The purchases were made from Defendant on March 10, 2009, March 16, 2009,
March 24, 2009, April 8, 2009, and July 6, 2009.

was equipped with an audio device. The police ―got good audio‖ on the first buy,

but the equipment failed on the second buy. On the third occasion, March 24,

2009, authorities had video but no audio. On the final two buys, they had both

audio and video. Recordings from the buys on March 10, March 24, and July 6,

2009, were introduced into evidence at trial and played to the jury.2

Jones testified that the tapes showed accurate representations of what

occurred during each buy. During the first four buys, she ―would tell [Defendant]

what [s]he wanted[,] and he‘d go around behind the house and then he‘d come

back with it.‖ For the last buy, she went inside his house. Each time, she took her

methamphetamine purchase back to Trooper Turnage and Robert Terral, the chief

narcotics officer of the LaSalle Parish Sheriff‘s Office. Four of the transactions

were for three hundred dollars each, and one transaction was for one hundred

dollars. Several defendants were involved in the operation. Each substance Jones

purchased from Defendant was subjected to laboratory analysis and identified as

methamphetamine as per the testimony at trial of Alex King of the North Louisiana

Crime Lab. Jones stated that she worked with Trooper Turnage and Officer Terral

―[t]o try to get help with [her] charges.‖

Defendant was tried and convicted by a jury of five counts of distribution of

methamphetamine on January 26, 2011. He was originally sentenced on March 1,

2011, to five years at hard labor on each count, with the first two years of each

sentence to be served without benefit of parole, probation, or suspension of

sentence, and with the sentences to run consecutively. However, at the hearing on

Defendant‘s motion for reconsideration of his sentence on April 13, 2011, the trial

court amended his sentences to five years at hard labor on each count, with the

2
The trial court ruled that the April 8, 2009 video was not ―an accurate representation of
what went on because of the way the voice went with the video‖ and sustained Defendant‘s
objection to its admission into evidence.
2

sentences to run consecutively. Defendant now appeals his convictions and

sentences.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find one

error patent.

During the sentencing proceeding, the trial court ordered Defendant to

participate in and complete a GED program at the institution where he is to be

housed. For distribution of methamphetamine, La.R.S. 40:967 carries a sentence

of imprisonment at hard labor for not less than two nor more than thirty years and a

potential fine of not more than fifty thousand dollars. The statute does not provide

for completion of a GED program as part of the penalty. Additionally, we know of

no statute or jurisprudence authorizing the imposition of such a condition when the

defendant is not placed on probation. However, this court addressed a similar issue

in State v. Webre, 09-351, p. 8 (La.App. 3 Cir. 11/4/09), 21 So.3d 1154, 1159:

In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745
So.2d 694, this court vacated, as an error patent, the portion of the
defendant‘s penalty requiring him to participate in a substance abuse
program. Whether this condition was imposed as part of his sentence
for negligent homicide or his sentence for driving while intoxicated
was not clear. Nevertheless, the court observed that ―[n]either statute
allows the trial court to require participation in a substance abuse
program, absent part of the sentence being subject to probation
requirements.‖ Id. at 696. Because Gregrich was not placed on
probation, this court held that the trial court‘s order to attend
substance abuse evaluations was illegal. Id.

Here, the trial court ordered Defendant to undergo drug
treatment if the Department of Corrections could accommodate him.
The court did not suspend Defendant‘s sentence, nor was he placed on
probation. Thus, as in Gregrich, the court‘s order to undergo drug
treatment without placing Defendant on probation was illegal.

This court also noted in Gregrich that, under La.Code Crim.P.
art. 882(A), an illegal sentence may be corrected at any time by the
court that imposed the sentence or by an appellate court on review,

3

―when such correction does not involve the exercise of sentencing
discretion,‖ quoting State v. Fraser, 484 So.2d 122 (La.1986).
Accordingly, we amend the sentence imposed by the trial court to
delete that portion requiring participation in drug treatment.

We find that the portion of the sentence requiring Defendant to participate in

and complete a GED program is illegal. Accordingly, we amend the sentence

imposed by the trial court to delete the portion requiring participation in and

completion of a GED program. Additionally, we instruct the trial court to make an

entry in the minutes reflecting this amendment.

ASSIGNMENTS OF ERROR

The Defendant assigns the following five errors:

I.

The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a
reasonable doubt that Michael Patterson distributed methamphetamine
to Samantha Jones on five separate occasions in 2009.

II.

The trial court erred in denying the two requested motions for
mistrial. As a result, Appellant was denied a fair trial as guaranteed to
him by both the Sixth Amendment to the United States Constitution
and [La.Const. art. 1], § 16.

III.

The trial court erred in denying the Motion for New Trial and in
assuring that Appellant received a fair trial as guaranteed to him by
both the Sixth Amendment of the United States Constitution and
[La.Const. art. 1], § 16.

IV.

The trial court erred in permitting the State to question Trooper
Turnage and Robert Terral concerning ―Operation Third Option‖ aka
―Operation Option Three‖ as this reference not only permitted
evidence of other crimes/bad acts by others, it improperly linked
Appellant to the investigation of criminal activity. This testimony
deprived Appellant of a fair trial as guaranteed by both the Sixth
Amendment of the United States Constitution and [La.Const. art. 1],
§ 16.
4

V.

The trial court failed to sufficiently consider and weigh the
factors set forth in [La.Code Crim.P.] art. 894.1, resulting in the
imposition of sentences which violate the Eighth Amendment of the
Constitution of the United States and [La.Const. art. 1], § 20, as they
are nothing more than cruel and unusual punishment and, thus,
excessive.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the evidence was insufficient to convict him of

distribution of methamphetamine. The standard of review in a sufficiency of the

evidence claim is ―whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found proof beyond a reasonable

doubt of each of the essential elements of the crime charged.‖ State v. Leger,

05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221,

127 S.Ct. 1279 (2007) (citing Jackson, 443 U.S. 307 (1979); State v. Captville,

448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively

embodied in La.Code Crim.P. art. 821. It does not allow the appellate court ―to

substitute its own appreciation of the evidence for that of the fact-finder.‖ State v.

Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson,

96-1048 (La. 10/4/96), 680 So.2d 1165). The appellate court‘s function is not to

assess the credibility of witnesses or reweigh the evidence. See State v. Smith,

94-3116 (La. 10/16/95), 661 So.2d 442.

The factfinder‘s role is to weigh the credibility of witnesses. See State v.

Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring

the sufficiency evaluation standard of Jackson, ―the appellate court should not

second-guess the credibility determination of the trier of fact,‖ but rather, it should

defer to the rational credibility and evidentiary determinations of the jury. Id. at

5

1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98),

720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder‘s
discretion and its role in determining the credibility of witnesses ―only
to the extent necessary to guarantee the fundamental due process of
law.‖ State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a conviction,
an appellate court must preserve ― ‗the factfinder‘s role as weigher of
the evidence‘ by reviewing ‗all of the evidence . . . in the light most
favorable to the prosecution.‘‖ McDaniel v. Brown, 558 U.S. ----, ----,
130 S.Ct. 665, 674, 175 L.Ed.2d 582 [(2010)](quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979)). When so viewed by an appellate court, the relevant question
is whether, on the evidence presented at trial, ―any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.‖ Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Applied in cases relying on circumstantial evidence . . . this
fundamental principle of review means that when a jury ―reasonably
rejects the hypothesis of innocence presented by the defendant[ ], that
hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.‖ State v. Captville,
448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

It is unlawful to knowingly or intentionally distribute methamphetamine, a

Schedule II controlled dangerous substance. See La.R.S. 40:964(C) and

La.R.S. 40:967(A). Defendant argues Jones was not a credible witness, and neither

Trooper Turnage nor Officer Terral had personal knowledge of a drug deal

between Jones and Defendant.

The jury had the opportunity to observe Jones and to evaluate her credibility.

Jones testified that she made arranged purchases of methamphetamine from

Defendant on five occasions as discussed earlier herein. Trooper Turnage and

Officer Terral supported her testimony with details about the monitoring of her

purchases from Defendant. This testimony, if true, is sufficient to convict

Defendant, and the jury obviously believed that it was. This assignment of error is

without merit.

6

ASSIGNMENT OF ERROR NUMBER TWO

During the trial, Defendant made two motions for mistrial, and the trial court

denied them both. The first motion was based on a comment made by a potential

juror who was ultimately placed on the jury.

Defendant claims the issue is not whether this juror was erroneously allowed

on the jury, but rather, that his comments during voir dire tainted all the other

potential jurors who heard those comments. He argues the trial judge should have

granted the motion for mistrial under La.Code Crim.P. art. 771 because an

admonition was insufficient.3

Louisiana Code of Criminal Procedure Article 771 provides the trial court

should issue an admonition ―to disregard a remark or comment made during the

trial, or in argument within the hearing of the jury, when the remark is irrelevant or

immaterial and of such a nature that it might create prejudice against the defendant

. . . .‖ The admonition pertains to such a remark made ―by a witness or person

other than the judge, district attorney, or a court official . . . .‖ La.Code Crim.P.

art. 771(2). However, the article also allows the trial judge to grant a defendant‘s

motion for mistrial if he ―is satisfied that an admonition is not sufficient to assure

the defendant a fair trial.‖

During voir dire, the juror indicated that he knew Defendant, but that he

could be fair and impartial. When asked whether there was any ―personal,

business, family or health reason . . . why [the juror could not] serve as an

impartial juror,‖ this juror replied, ―[t]he only dealings I had with [Defendant] is

just through jail ministries.‖ Defendant made no objection at that time.

3
Defendant‘s brief erroneously refers to ―the admonition article‖ as La.Code Crim.P. art.
772 instead of La.Code Crim.P. art. 771.
7

When the State asked the juror how long he had been involved in the jail

ministry, the juror indicated ―[e]ight years.‖ He then volunteered:

I was, about a year or so I was inactive, but here recently I‘ve
been back in it. But that was my first acquaintance with him, I
believe, back in – I was trying to think I met him back, in, I believe.
I‘m pretty sure I‘ve got the right person. Pretty sure.

At that point, defense counsel asked for a mistrial ―because [his] client‘s never

been in jail. Never been in the prison ministry.‖ The State‘s counsel indicated he

―was flabbergasted‖ at the juror‘s remark and feared it had infected the jury.

The trial judge recessed court to research the issue and determined a mistrial

was not warranted based on La.Code Crim.P. arts. 770, 771, and 775. He then

admonished the twelve people in the jury box being examined at the time the

remark was made:

[I]n regards to the comments made by [the juror] in answer to his
questions, that, for the record, there‘s no conclusive information as to
whether or not [Defendant] was ever or not incarcerated, for whatever
reason, and the fact that he may or may not have ever been
incarcerated for anything, whether it be these charges or otherwise,
that has no bearing or impact upon the guilt or innocence of
[Defendant] in this regard. Therefore, any comments that were made
in regards to the possibility, because I don‘t think it was conclusively
shown, they said ―maybe‖ that [the juror] was involved with
[Defendant] in a ministry, prison ministry or what have you, should be
basically ignored as far as any determination as to the guilt or
innocence of [Defendant] in these proceedings.

The juror was further questioned about his thoughts that he might know Defendant

from his prison ministry:

I‘m, [sic] this is where I was at when I made that statement. There
was [sic] people sitting here[,] and they was [sic] asking how they
knew him[,] and in my mind, I‘m sitting here thinking: I‘m pretty
sure I met [Defendant]. It might not have been him, but in my mind,
I‘m sitting here thinking, that‘s the only acquaintance other than, I‘ve
seen him[.] I‘ve seen [Defendant] in Wal-Mart, you know. But my
first account [sic] was not at Wal-Mart, I‘m – at the end of the day, if
the man‘s never spent one night in jail, I‘m a wrong man.

....

8

If he‘s ever spent one night, I‘m pretty sure I met him.

....

If he‘s never been in jail, I didn‘t meet him there.

Defense counsel challenged this juror for cause, but the trial judge denied the

request. Defendant did not exercise a peremptory challenge on this juror, and he

was ultimately placed on the jury. Defendant did not use all of his peremptory

challenges.

Admonition is the preferred remedy over mistrial, and the trial court‘s

decision to deny a motion for mistrial and admonish the jury will not be disturbed

absent an abuse of discretion. See State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05),

915 So.2d 365, writ denied, 06-186 (La. 6/23/06), 930 So.2d 973, cert. denied,

549 U.S. 1052, 127 S.Ct. 668 (2006) (citing State v. Narcisse, 426 So.2d 118

(La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202 (1983) and State v. Givens,

99-3518 (La. 1/17/01), 776 So.2d 443). Even if the motion for mistrial was

erroneously denied, this court should review the matter under a harmless error

analysis. See State v. Knight, 45,231 (La.App. 2 Cir. 5/19/10), 36 So.3d 1163, writ

denied, 10-1425 (La. 1/14/11), 52 So.3d 899 (citing State v. Johnson, 94-1379

(La. 11/27/95), 664 So.2d 94).

We find the evidence was sufficient to convict Defendant of five counts of

distribution of methamphetamine without the comments about Defendant‘s

possible prior incarceration. Thus, we find the denial of the motion for mistrial on

the basis of the juror‘s comments is, if any error at all, a harmless one that did not

affect the outcome of the trial. ―Trial error is harmless where the verdict rendered

is ‗surely unattributable to the error.‘‖ Knight, 36 So.3d at 1172 (quoting Johnson,

644 So.2d at 102).

9

Defendant‘s second motion for mistrial was based on defense counsel‘s

observation of two jurors who appeared to be asleep. Counsel remarked to the trial

judge, ―[T]he other thing I want to point out to the [c]ourt, I guess I probably

should make a mistrial motion on it, though, is the juror in the seat here in this

corner . . . [t]hen the one over here in the back . . . I think [they] were sleeping

during the . . . .‖ The trial judge indicated he had not noticed this, and defense

counsel responded, ―[b]ut I need to let you know and make a motion anyway.‖

The trial judge never ruled on this motion. Defense counsel never asked for

a ruling or objected to the lack of a ruling on the motion. However, because the

trial progressed, we find that the trial court impliedly denied the motion for

mistrial. See State v. Johnson, 05-180 (La.App. 5 Cir. 11/25/09), 917 So.2d 576,

writ denied, 06-1254 (La. 12/15/06), 944 So.2d 1282.

The fact that a juror may ―briefly doze off‖ does not necessarily require a

mistrial. State v. Cass, 356 So.2d 396, 398 (La.1977). Here, it is impossible to

determine whether either of the jurors to whom Defendant referred was impaired,

or if either was impaired at all. The record shows simply that defense counsel

thought two jurors were asleep. He submitted no evidence beyond his one

comment to support his objection, and he never asked for a ruling or for argument

on his motion. Consequently, this argument is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends he is entitled to a new trial because the trial judge‘s

comments on the evidence on two occasions during trial prohibited him from

receiving a fair trial. Defense counsel objected during the State‘s closing

argument, contending the State misstated some of the evidence. The State‘s

attorney commented, ―I don‘t recall [witness Samantha Jones] saying she got

arrested in Baton Rouge. In fact, I recall her saying, [‗]No, I wasn‘t. They talked
10

to me, but I wasn‘t arrested.[‘]‖ When defense counsel objected on grounds ―that‘s

in Officer‘s [sic] Turnage‘s report,‖ the trial judge commented:

It may be in Officer Turnage‘s report, but that‘s exactly what
Ms. Jones said. But if there‘s other, if there‘s other evidence to [sic]
that type[,] you‘ve brought it out, but as far what, the recitation of
what Ms. Jones said, that‘s what she said because I remember that
specifically from my notes.

Defense counsel again noted his objection.

A trial judge ―shall not comment upon the facts of the case, either by

commenting upon or recapitulating the evidence, repeating the testimony of any

witness, or giving an opinion as to what has been proved, not proved, or refuted.‖

La.Code Crim.P. art. 772. The purpose of this rule is:

to safeguard the role of the jury as the sole judge of the facts on the
issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421
(La.1974). Thus, if the effect of a comment is to permit a reasonable
inference that it expresses or implies the judge‘s opinion as to the
defendant‘s innocence or guilt, this constitutes a violation of the
defendant‘s statutory right to no-comment and thus requires reversal.
State v. Green, 231 La. 1058, 93 So.2d 657 (1957). To constitute
reversible error, however, the effect of the improper comment must be
such as to have influenced the jury and contributed to the verdict.
State v. Johnson, 438 So.2d 1091 (La.1983).

State v. Grainer, 02-703, p. 16 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 565-66,

writ denied, 03-152 (La. 10/10/03), 855 So.2d 325.

Here, the trial judge‘s comments referred to Jones‘ testimony about whether

she had been arrested in Baton Rouge, an issue not related to Defendant‘s guilt or

innocence. Defendant argues the trial judge‘s comments implied he ―had resolved

Ms. Jones‘ credibility favorably.‖ While the trial judge may have repeated a

portion of Jones‘ testimony, he made no comment about whether the testimony he

recalled was true, only that this was what he recalled the testimony to be. Thus, we

find the trial judge‘s comments, while perhaps out of sync with La.Code Crim.P.

11

art. 772, were not of a nature that influenced the jury, contributed to the verdict, or

had any effect on the ultimate issue of Defendant‘s guilt.

In a second instance, the State sought to introduce video evidence of Jones‘s

April 8, 2009 methamphetamine purchase from Defendant. Defendant objected on

grounds the video did not ―show his actual image or his voice identification.‖ The

trial judge then commented and instructed the jury:

The only problem I have with [the video] is, is I‘m not sure it‘s an
accurate representation because the stupid video doesn‘t look like it
was actually running. It was messed up on [sic]. I don‘t think that
this regards Ms. Jones‘ testimony previously, however, I don‘t think
that that video is an accurate representation of what went on because
of the way the voice went with the video. I‘m going to sustain the
objection as to the video only. However, you‘re not supposed to
disregard any testimony that Ms. Jones has rendered in regards to the
– what day was this – the April 8, 2009[] alleged purchase.

Again, defense counsel noted his objection. Defendant argues the instruction to

the jury to not disregard Jones‘ testimony calls for a new trial.

We find that this instruction was not a ―comment upon the facts of the case‖

as defined by La.Code Crim.P. art. 772. While the trial judge instructed the jury to

not disregard Jones‘s testimony, he did not instruct the jury to regard her testimony

as true. Likewise, his remarks did not concern the guilt, vel non, of Defendant.

See State v. Colligan, 95-880 (La.App. 3 Cir. 8/7/96), 679 So.2d 184. Further, the

trial judge instructed the jury members immediately prior to deliberation that they

were ―the judges of the facts on the question of the guilt or innocence of the

accused.‖ We find that the trial judge did not imply or suggest any opinion about

Jones‘s credibility, but simply instructed the jury to consider her testimony about

the April 8, 2009 purchase. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the reference by Trooper Turnage and Officer Terral to

Operation Third Option, the undercover drug investigation, improperly allowed
12

evidence of other crimes to be admitted against him. No objection was made

during Officer Terral‘s testimony about the investigation. Thus, this court may not

consider this argument as it pertains to him. See La.Code Crim.P. art. 841.

Trooper Turnage, called as the State‘s witness, identified himself as the lead

case agent in Operation Third Option and testified about other law enforcement

agencies involved. Then he was asked, ―[b]riefly tell us what took place in terms

of the organizational operation, so to speak, of Operation Third Option.‖ At that

point, defense counsel made his only objection during this line of questioning.

Questioning about the operation continued, and Trooper Turnage testified

Defendant and Jones were both involved in the operation. Again, no further

objection was made. Accordingly, we find this court may only consider whether

the single request to tell ―what took place in terms of the organizational operation‖

improperly referenced other crimes. La.Code Crim.P. art. 841.

The fifth circuit addressed a similar issue in State v. Dee, 09-712 (La.App.

5 Cir. 2/23/10), 34 So.3d 892, writ denied, 10-705 (La. 10/29/10), 48 So.3d 1097.

In Dee, a detective testified he was participating in a narcotics investigation at a

motel, and the defendant was a target in the investigation. The detective confirmed

his sole purpose in being at the motel was the defendant, who complained on

appeal that this testimony improperly referred to other crimes evidence ―because it

led the jury to believe that he was a career drug dealer.‖ Id. at 902. The fifth

circuit determined the challenged testimony was not evidence of other crimes and

did not imply the defendant had committed other crimes in the past. ―Rather it

simply describe[d] information regarding the matter defendant was currently on

trial for.‖ Id.

Likewise, we find that a description of the ―organizational operation‖ of the

investigation here does not constitute evidence of other crimes committed by
13

Defendant. The only question to which Defendant objected made reference only to

the organization of the operation, not to Defendant. The trial judge overruled

Defendant‘s objection ―because I haven‘t heard anything about going into any

other crimes evidence or anything else. I think this is more of a structural aspect

about how it was determined.‖ We find the trial judge was correct in his

reasoning. Nothing at that point of the questioning referred to other crimes

evidence. Objection to any further testimony was not preserved for appellate

purposes. See La.Code Crim.P. art. 841. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues the trial court inadequately considered the factors of

La.Code Crim.P. art. 894.1 and imposed an excessive sentence. This court has set

out a standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, ―[n]o
law shall subject any person to cruel or unusual punishment.‖ To
constitute an excessive sentence, the reviewing court must find the
penalty so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v. Campbell,
404 So.2d 1205 (La.1981). The trial court has wide discretion in the
imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of
discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99);
746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674
So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

14

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative
purpose behind the punishment and a comparison of the sentences
imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00),
766 So.2d 501. While a comparison of sentences imposed for similar
crimes may provide some insight, ―it is well settled that sentences
must be individualized to the particular offender and to the particular
offense committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge ―remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.‖ State v. Cook, 95-2784 (La. 5/31/96),
674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

Applying the Smith factors, the trial judge reviewed the factors of La.Code

Crim.P. art 894.1 and noted Defendant was ―generous with [his] time and generous

with [his] money for youth activities in [the] community.‖ He was ―a first time

felony offender,‖ but he was convicted on five counts. Defendant‘s pre-sentencing

report indicated a prior misdemeanor conviction for carrying a weapon as a student

on school property many years prior. He was ―with the same woman for over

[seventeen] years‖ and had three children—ages sixteen, thirteen, and four at the

time of sentencing. His youngest child has Downs Syndrome. However, the trial

judge noted he had no evidence of the extent to which Defendant‘s family relied on

him for support. And, even though Defendant expressed the desire to ―finish

raising [his] kids,‖ he provided a poor role model by distributing drugs.

The trial judge considered Defendant to be ―a member of productive society

if [he] should so choose,‖ since he had operated a local car wash for approximately

eleven years. However, the trial judge also noted Defendant ―did not make one

mistake,‖ he made five mistakes over a four-to-five-month time period. As the

crimes were drug crimes, the trial judge did not consider Defendant‘s offenses to

be ―victimless cases.‖ Rather, the trial judge considered distribution of
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methamphetamine to be ―one of the most reprehensible crimes in our society.‖

Even though Defendant sold methamphetamine only to Jones, and only at her

instigation, he did so not knowing whether the drugs were only for her personal use

or whether she intended to sell them to others. The trial judge found Defendant‘s

actions to be ―a pattern of conduct that must be broken.‖ He believed ―a lesser

sentence would deprecate the seriousness of the offense[s] charged.‖

Defendant was exposed to a potential sentence of two to thirty years at hard

labor and a fifty thousand dollar fine on each of the five counts. See La.R.S.

40:967(B). Thus, his sentence of five years at hard labor on each count falls in the

lower range of sentencing. However, the trial judge ordered the sentences to be

served consecutively so that Defendant‘s sentences total twenty-five years at hard

labor. Nevertheless, his sentencing exposure was one hundred and fifty years.

Sentences for multiple offenses ―constituting parts of a common scheme or

plan . . . shall be served concurrently unless the court expressly directs that some or

all be served consecutively.‖ La.Code Crim.P. art. 883. The trial judge

determined Defendant‘s five offenses constituted a pattern or lifestyle. He

expressly directed the five terms to run consecutively, satisfying the exception of

La.Code Crim.P. art. 883.

This court has previously held that imposing consecutive
sentence[s] for offenses occurring on separate dates and under
different circumstances did not constitute an abuse of discretion. State
v. Baker, 08-54, (La.App. 3 Cir. 5/7/08), 986 So.2d 682. The fifth
circuit has held that consecutive sentences are indicated for offenses
occurring on different dates and locations. State v. Wilson, 99-105,
(La.App. 5 Cir. 7/27/99), 742 So.2d 957, writ denied, 99-2583
(La.2/11/00), 754 So.2d 935. The fifth circuit has applied this holding
to distribution of cocaine occurring on different days. State v. Dillon,
01-906, (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189
(La.4/21/03), 841 So.2d 779.

State v. Chaisson, 09-119, p. 28 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1184.

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Considering the reasons given by the trial judge and the application of the

Smith factors, we find Defendant‘s sentences are not excessive. This assignment

of error also lacks merit.

DISPOSITION

We amend the sentences imposed upon Defendant by the trial court to delete

that portion of the sentences requiring participation in and completion of a GED

program. Additionally, we instruct the trial court to make an entry in the minutes

reflecting this amendment. In all other respects, Defendant‘s convictions and

sentences are affirmed.

CONVICTIONS AFFIRMED, SENTENCES AFFIRMED AS
AMENDED, REMANDED WITH INSTRUCTIONS.

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