State of Louisiana v. Johnny L. Eubanks

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-896

STATE OF LOUISIANA

VERSUS

JOHNNY L. EUBANKS

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 90,234
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

J. Reed Walters
District Attorney – 28th Judicial District Court
P. O. Box 1940
Jena, LA 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
La Appellate Project
P. O. Box 2806
Monroe, LA 71207
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
Johnny L. Eubanks

Steven P. Kendrick
Attorney at Law
P. O. Box 1889
Jena, LA 71342
(318) 992-4107
COUNSEL FOR APPELLEE:
State of Louisiana

SAUNDERS, Judge.

The Defendant, Johnny L. Eubanks, was charged by bill of information filed

on November 16, 2009, with possession of marijuana with intent to distribute, a

violation of La.R.S. 40:966. A plea of not guilty was entered on December 1,

2009. Trial by jury commenced on June 21, 2010, and the jury returned a verdict

of guilty the following day. On August 31, 2010, the Defendant was sentenced to

serve twenty years at hard labor. A motion to reconsider sentence was filed on

October 1, 2010, and was denied as untimely filed on October 6, 2010.

A motion for out-of-time appeal was filed on March 8, 2012, and was

subsequently denied. An application for post-conviction relief was filed on April

20, 2012. On July 3, 2012, the trial court granted the Defendant fifteen days to

perfect an appeal. The Defendant filed a motion for appeal on July 3, 2012.

The Defendant is now before this court asserting three assignments of error.

Therein, he contends the evidence is insufficient to support his conviction, his

sentence is excessive, and supplemental materials may reveal erroneously denied

challenges for cause or Batson challenges.

FACTS:

The Defendant ran a stop sign at the intersection of Louisiana 127 and

Highway 165 in Olla on September 19, 2009, and was stopped by Officer Steve

Poole. Upon exiting his vehicle, the Defendant told Officer Poole that he was

driving under suspension. The Defendant was then arrested and read his Miranda

rights. The Defendant subsequently admitted he had illegal narcotics on his person

and in his truck. The Defendant pulled a bag of marijuana from the waistband of

his pants and told Officer Poole there was a bag of marijuana in a backpack that

was in a toolbox in the truck.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find that there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, the Defendant contends the evidence

adduced at trial was insufficient to support a conviction for possession of

marijuana with intent to distribute. He argues the State failed to prove he had the

intent to distribute the marijuana.

There is sufficient evidence for conviction if the appellate court
determines 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 crime had been proved beyond a reasonable
doubt.” State v. Hobley, 98–2460, p. 33 (La.12/15/99), 752 So.2d
771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61
(2000).

State v. Bivens, 11-156, p. 4 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, 788, writ

denied, 11-2494 (La. 3/30/12), 85 So.3d 115.

The Defendant was convicted of possession of marijuana with intent to

distribute. Thus, the State was required to prove beyond a reasonable doubt that

the Defendant had the specific intent to distribute the marijuana. State v. Hunter,

09-1487, p. 2 (La.App. 3 Cir. 6/2/10), 41 So.3d 546, 549.

“Intent is a condition of mind which is usually proved by
evidence of circumstances from which intent may be inferred.” State
v. Hearold, 603 So.2d 731, 735 (La.1992) (citations omitted). There
are five factors courts consider to determine whether an intent to
distribute can be inferred:

1) whether the defendant ever distributed or attempted to
distribute the drug; 2) whether the drug was in a form
usually associated with possession for distribution to
others; 3) whether the amount of drug created an
inference of an intent to distribute; 4) whether expert or
other testimony established that the amount of drug
found in the defendant‟s possession is inconsistent with
personal use only; and 5) whether there was any

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paraphernalia, such as baggies or scales, evidencing an
intent to distribute.

Id.

Bivens, 74 So.3d at 790. “Mere possession of marijuana is not evidence of intent

to distribute it unless the quantity is so large that no other inference is reasonable.

State v. House, 325 So.2d 222 (La.[] 1975).” State v. Greenway, 422 So.2d 1146,

1148 (La.1982).

Trooper Charles Turnage testified that he weighed the marijuana found and

it weighed 368 to 370 grams, and a gallon plastic bag weighed fifteen and one-half

grams. He agreed that the marijuana had previously been weighed and was

heavier. Trooper Turnage and the trial court then calculated there were 451 grams

in one pound.

Trooper Turnage testified that the average size joint contained half a gram of

marijuana, and a large joint would contain approximately three-fourths of a gram

of marijuana. Trooper Turnage stated that a heavy user would smoke about two

grams of marijuana a day. He also stated that a 400 gram package of marijuana

would last a heavy smoker using two grams a day 200 days. Trooper Turnage

testified that, in his experience, it was not typical of a drug user to purchase a 200-

day supply. Trooper Turnage further stated that, if a person smoked five blunts a

day composed of two grams of marijuana each, the person would use a pound of

marijuana in approximately forty-five days.

Trooper Turnage testified that he found a set of digital scales inside a

compact disc case in the console of the Defendant‟s truck. Trooper Turnage

testified that scales would be used to weigh drugs when buying and selling. He

stated that fifty percent of the time, a common user would bring a scale to a drug

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buy. However, he testified this would not be the case with the purchase of “nickel

and dime sacks.”

Trooper Turnage testified that he had purchased a pound of marijuana in the

past and did not bring scales with him because he would need a scale the whole

package could sit on in order to get an accurate weight. When asked what type of

scale would be used, Trooper Turnage responded:

Well, you‟ve got some triple beams there, I would not bring
that on a dope deal, I‟m sorry. Because most of the time I‟m going to
meet at somebody‟s, if I meet at somebody‟s house they‟re going to
have a set. If I meet in a parking lot . . . that‟s going to look, that‟s
just too far-fetched.

Trooper Turnage testified that he had never investigated the Defendant for

dealing drugs. He indicated that it was typical to find cash on a person arrested for

dealing drugs, and it would not be uncommon for the cash to be fives or tens.

Conversely, no cash was found on the Defendant at the time of his arrest.

Additionally, no weapons were found on the Defendant.

Trooper Turnage testified the marijuana found in this case was not packaged

in small bags, and no empty bags or cellophane were found. Trooper Turnage

testified that drugs packaged in smaller bags would be more indicative of intent to

distribute. Additionally, having a single package of marijuana with a bunch of

empty Ziplock bags “decreases . . . slightly from the scenario where you‟ve already

got it packaged.” “[B]ut . . . it weighs heavier than just having that one single

bag.”

Trooper Turnage testified there was a small partially used marijuana

cigarette in the small package of marijuana the Defendant pulled from his

waistband and a package of Zig-Zags in the purse of the passenger. Trooper

Turnage stated these things “could go with personal consumption.”

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Trooper Turnage was questioned regarding the purchase of marijuana in

bulk as follows:

Q Okay. I‟m saying is it common, doesn‟t [sic] you think it makes
sense for someone with a severe marijuana problem to use that same
theory of economics? In other words, to buy in bulk as verse, buy-

A I would say it makes good sense.

Q It makes good sense, right? Okay. So, in your, and I think you
answered this earlier, in your practice it‟s not uncommon for people
who purchase marijuana to buy in bulk, right?

A It‟s not uncommon for people who purchase marijuana to buy
in bulk.

Q To buy in bulk. As opposed to buying a whole bunch of nickel
sacks or dime sacks?

A I will say that if, normally, if I‟m going to buy just for my
personal use, for a day-to-day basis, I‟m not going to buy that large, of
course, I don‟t smoke weed-

....

A And I, you‟re right, I don‟t have knowledge of what it would
have on me as a person. I would say that, you know, each person is-

Q Different.

A -diferent [sic]. There‟s a lot of variables and is what you‟re
asking is-

Q Impossible.

A -would somebody choose to go to Sam‟s versus the corner
store. You ask yourself also risk, you know, what is the risk here?

Trooper Turnage was further questioned as follows:

Q So, I‟m going to Holden to get my marijuana. It would
probably be safer for me to buy in bulk as opposed to making a trip
every weekend to get an ounce. It would probably be safer for me to
get a pound in one trip, wouldn‟t you think?

A If the only person that I‟m going to go to is that person down
there at Holden-

Q Uh-huh (yes).

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A -and I‟m going to travel from here, then that analogy makes
sense to me.

Trooper Turnage agreed that possession of a pound of marijuana was not a

one hundred percent guarantee that a person was selling marijuana. He testified

that a pound of marijuana was worth $600 to $1,000.

The Defendant contends the evidence was insufficient to prove he had the

specific intent to distribute the marijuana he possessed. In support of this

argument, the Defendant cites State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831

So.2d 433, writ denied, 02-2874 (La. 4/4/03), 840 So.2d 1213, for the proposition

that an average user could smoke a pound of marijuana in less than two months. In

Cho, a police officer testified that a pound of marijuana would make 448 large

blunts, and he made a calculation based on an average user smoking ten marijuana

cigarettes a day. The Defendant also asserts that, at the sentencing hearing, he

stated he was a very heavy marijuana user and smoked all day every day.

Additionally, based on the evidence presented regarding the bulk purchase of

marijuana and his heavy use, his possession of slightly less than a pound of

marijuana should not create an inference of intent to distribute and was not

inconsistent with personal use.

The expert testimony presented in Cho and the Defendant‟s remarks

regarding his marijuana use were not before the jury in the case at bar. Such

calculations and remarks cannot be considered by this court in its review of the

sufficiency of the evidence. Uniform RulesCourts of Appeal, Rule 1-3.

In support of its argument that the evidence was sufficient to support the

Defendant‟s conviction, the State cites State v. Decuir, 599 So.2d 358 (La.App. 3

Cir.), writ denied, 605 So.2d 1095 (La.1992). The State asserts that therein, this

court found that possession of marijuana in an amount that would produce almost

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500 cigarettes, along with paraphernalia that included a box of sandwich bags, a

scale, a pipe, a roach clip, scissors, and rolling papers was sufficient to support an

inference that the defendant intended to distribute marijuana. The State asserts the

Defendant in the case at bar possessed almost three times as much marijuana as the

defendant in Decuir did. The police officers in Decuir found 126 grams of

marijuana. Testimony by police indicated that one gram of marijuana made four

cigarettes and the total amount of marijuana found would produce almost 500

cigarettes.

Here, Trooper Turnage testified that the amount of marijuana found was not

a one hundred percent guarantee that a person was selling marijuana, however, it

was not typical for a drug user to buy a 200-day supply. The Defendant possessed

paraphernalia in the form of a scale found inside the truck‟s console and Zig-Zags

found in the purse of the truck‟s passenger. Additionally, there was a small,

partially used marijuana cigarette inside the package of marijuana the Defendant

removed from his waistband.

Trooper Turnage testified the scale he found could be used for weighing

drugs at the time of purchase by the Defendant or by the Defendant for sale to

individuals. Further, Trooper Turnage testified that a buyer could bring a scale to a

drug buy fifty percent of the time.

In State v. Sibley, 310 So.2d 100 (La.1975), police found eleven packets of

marijuana in two houses belonging to the defendant and his automobile. The

marijuana was found in several plastic bags. The supreme court found “there was

evidence establishing that defendant possessed enough marijuana for 600

cigarettes. Intent to distribute could be inferred from this circumstance.” Id. at

103.

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In State v. Francois, 03-1313, p. 4 (La. 4/14/04), 874 So.2d 125, 128 our

supreme court stated:

In cases involving circumstantial evidence, when the jury reasonably
rejects the hypothesis of innocence advanced by the defense, “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). In the present case, respondent Francois‟s
attorney put the issue of intent squarely before the jury . . . .

In State v. Love, 06-539, p. 10 (La.App. 4 Cir. 12/6/06), 947 So.2d 161, 166-

67, the fourth circuit stated:

The jury in this matter was presented with a reasonable hypothesis of
innocence and rejected it. This Court‟s function is not to determine
whether it believes the witnesses or whether the conviction is contrary
to the weight of the evidence, but instead to “assure that the jurors did
not speculate where the evidence is such that reasonable jurors must
have a reasonable doubt.” State v. Mussall, 523 So.2d 1305, 1311
(La.1988). (citing 2 C. Wright, Federal Practice and Procedure,
Criminal 2d, § 467, at 465-466 (1982)). Furthermore, this Court
“cannot substitute its idea of what the verdict should be for that of the
jury.” Id. This Court is also “constitutionally precluded from acting
as a „thirteenth juror‟ in assessing what weight to give evidence in
criminal cases; that determination rests solely on the sound discretion
of the trier of fact.” State v. Mitchell, p. 8, 1999-3342 (La.10/17/00),
772 So.2d 78, citing State v. Azema, 633 So.2d 723, 727 (La.App. 1
Cir.1993). Applying this standard, this Court must conclude that the
jury‟s verdict was a fundamental denial of due process before it can
reverse the jury‟s verdict. State v. Mitchell.

Based on Sibley, 310 So.2d 100, and the jury‟s rejection of the Defendant‟s

argument that the marijuana was purchased in bulk for personal use, we affirm the

Defendant‟s conviction.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, the Defendant contends the sentence of

twenty years was excessive under the facts and circumstances of this case. We do

not agree.

The Defendant was sentenced on August 31, 2010, and defense counsel

orally objected to the sentence but failed to state specific grounds for the objection.

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The Defendant then filed a motion to reconsider sentence on October 1, 2010,

alleging his sentence was excessive. The trial court denied the motion as untimely

filed.

In State v. Gordon, 11-898, p. 2 (La.App. 3 Cir. 2/22/12), 85 So.3d 242, 244,

writ denied, 12-659 (La. 9/14/12), 97 So.3d 1015; and State v. Barling, 00-1241,

01-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.

2/1/02), 808 So.2d 331, this court noted that defense counsels made an oral

objection to the sentence but did not specify the grounds for the objection. This

court went on to perform a “bare bones” review of the sentences for constitutional

excessiveness.

A panel of this court summarized the standard to be used in reviewing
excessive sentence claims in State v. Davenport, 07-254, pp. 3-4
(La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565, stating:

The Eighth Amendment to the United States
Constitution and La. Const. art. 1, § 20 prohibit the
imposition of cruel or excessive punishment. “ „[T]he
excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this court.‟
” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) [ ( ]
quoting State v. Sepulvado, 367 So.2d 762, 764
(La.1979)). Nevertheless, the trial court is given wide
discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a
sentence imposed within statutory limits. State v. Pyke,
95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713.
“Maximum sentences are reserved for the most serious
violations and the worst offenders.” State v. Farhood,
02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217,
225. The only relevant question for us to consider on
review is not whether another sentence would be more
appropriate, but whether the trial court abused its broad
discretion in sentencing a defendant. 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).

In making this determination, the appellate court may take into
account 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, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846
9

So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.
However, the appellate court should remain mindful that the sentence
should be particularized to the individual defendant and the particular
offense committed. State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08),
996 So.2d 1208.

State v. Skinner, 11-703, pp. 3-4 (La.App. 3 Cir. 2/1/12), 84 So.3d 760, 763

(alterations in original).

The Defendant was convicted of possession of marijuana with intent to

distribute, which is punishable by five to thirty years imprisonment and a fine of

not more than $50,000. La.R.S. 40:966(B)(3). The Defendant was sentenced to

serve twenty years at hard labor and was not ordered to pay a fine.

At the sentencing hearing, the Defendant informed the trial court that he had

been using marijuana since the age of twelve and had been in trouble in the past,

but drugs had never been the basis for such. The trial court subsequently sentenced

the Defendant, noting he was twenty-seven years old and a fourth felony offender.

The trial court then discussed the Defendant‟s criminal history and its reasons for

the sentence imposed, stating the following:

[Y]ou pled guilty to simple burglary on March 23, 2001, for an event
that occurred on September 10, 2000. As part of that plea you
received a sentence of three years at hard labor in the custody of the
Department of Corrections and those three years were suspended and
you were placed on three years of active supervised probation. You
were next arrested on June 28, 2001, and charged with the
unauthorized use of a movable, along with several other crimes. For
the charge of unauthorized use of a movable, you received another
sentence of three years at hard labor in the custody of the Department
of Corrections, which is again, suspended. You were also placed on
three years active supervised probation for that conviction as well.
Some time afterward your probation was revoked. Finally, on May 25,
2004, you were sentenced on another simple burglary charge in
Caldwell Parish to two years at hard labor for an incident which
occurred on October 19, 2003, and this constituted your third felony
offense. Subsequent to your felony convictions starting in May of
2005, you were arrested to [sic] the charge of simple burglary, but
pled two months later to a charge of disturbing the peace. In May of
2008, you again returned to crime, entering a pre-trial diversion
program for simple battery. Pleading guilty to the misdemeanor of
driving while intoxicated in January of 2009, concerning an incident
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that happened in July of 2008, and finally, you were arrested on the
instance [sic] charges on September 2009. Your continued criminal
history, shows that you engaged in felony criminal activity since you
were 18 years old. Basically, it‟s the entire time that you‟ve been an
adult, you‟ve been engaged in felony criminal activity. You‟ve either
been in jail or you‟ve life [sic] somewhat restricted on all these
occasions because of your continued criminal activity. And your
continued violation of the restrictions placed upon you show to me
that you don‟t take the rules of society really very seriously as it
relates to criminal activity. The pattern of conduct that you exhibit
shows me that you do not understand boundaries and that you place
your desires and wants above that of society, and expectations as
shown by its law. No information has been provided to me as to any
profession or trade that you may possess, so I can only assume that the
only way you earn income to support yourself is stealing others
belongings or through the sale of drugs. This is simply unacceptable
in today‟s society. Because of your past actions, I must find that there
is an undue risk that you would commit another crime if you were
given a suspended sentence or placed on probation. Additionally, the
record is clear that you cannot effectively participate in a free society.
It appears from the information provided to me that if you are not in
the custody of the State of Louisiana, you are committing criminal
acts. Accordingly, given your continued extensive criminal history, as
well as the instant drug charges on which your plea is based, on which
your conviction is based, I believe you‟re in need of correctional
treatment that can be provided most effectively by committed [sic] to
an institution. Possession of marijuana with intent to distribute is a
serious offense and it will not be treated lightly in this Court. The jury
found that the marijuana in your possession was packaged to sell. I
understand what you say it was for personal use. However, a jury of
your peers indicated otherwise. And you also had the tools by which
to accomplish, the division of that large amount of marijuana into
smaller quantities. This shows to me that you intended to prey on the
weakness of others and potentially make a profit on the sale of this
poison. This is not even a situation where treatment can help you.
There is no allegations [sic] of use or your addiction to your illegal
substances other than your own self-serving statement that you
provided to me this morning. The only addiction I see is that you have
is to other people‟s stuff and acquiring their property through
whatever means is necessary. Therefore, I believe that a lesser
sentence would deprecate the seriousness of the offense charged. As
indicated earlier, it‟s [sic] part of the Pre-sentence Investigation
Report I was provided information that you are 27 years old. I have no
information as to any persons that may rely on you for support.
However, the report indicates that you have not been able to maintain
consistent employment, have no outstanding or marketable skill, and a
limited education. Therefore, it seems the only way a free [sic] society
for you to make a living is by stealing others property or selling drugs.
This mitigates against - excuse me – this mitigates toward a sentence
of incarceration.

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The Defendant contends that costing the taxpayers of the State $20,000 per

year for twenty years is grossly disproportionate to the offense, as he is not a

marijuana dealer, smoked marijuana religiously since the age of twelve, and none

of his prior offense demonstrate dangerous or violent tendencies. The State asserts

the Defendant‟s sentence is not excessive and cites State v. Cass, 46,228 (La.App.

2 Cir. 4/13/11), 61 So.3d 840, writ denied, 11-1006 (La. 11/4/11), 75 So.3d 922;

and State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, in support of its

argument.

In Cass, 61 So.3d 840, the defendant was convicted of possession of

marijuana with intent to distribute and adjudicated a second felony offender. He

was then sentenced to forty years at hard labor.

In Jones, 33 So.3d 306, the defendant was convicted of possession of

marijuana with intent to distribute and sentenced to the maximum term of thirty

years at hard labor, but no fine was imposed. The fifth circuit found the sentence

was not excessive, noting the defendant had two prior convictions for drug

offenses, numerous arrests for serious charges, had two additional weapons

convictions and two additional drug convictions at the time of the possession of

marijuana with intent to distribute conviction, ran from the police almost striking

an officer with his car, and possessed a loaded gun.

In State v. Jackson, 07-975 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, the

defendant was convicted of possession of marijuana with intent to distribute for

possessing 10.5 grams of marijuana and was sentenced to eighteen years at hard

labor. The fifth circuit found the sentence was not excessive based on the

defendant‟s criminal history, which included a conviction for manslaughter. The

Defendant in the case at bar possessed significantly more marijuana than Jackson

did. However, Jackson had a prior conviction for a violent felony, and the
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Defendant has two prior convictions for simple burglary and one for unauthorized

use of a movable.

In State v. Moton, 35,150 (La.App. 2 Cir. 8/22/01), 793 So.2d 1269, the

defendant was sentenced to twenty years at hard labor for possession with intent to

distribute marijuana. The second circuit found the sentence was not excessive in

light of the fact that Moton had a prior conviction for possession of cocaine, a

record of assaultive behavior, and two felony convictions for fleeing from police

officers. Additionally, the offense involved over ten pounds of marijuana, and, at

the time of his arrest, the defendant had absconded from parole in Ohio and was

wanted on an active Ohio arrest warrant. The cases are similar in that both Moton

and the Defendant were sentenced for a fourth felony offense.

In light of the sentences imposed in Jackson, 985 So.2d 246, and Moton, 793

So.2d 1269, we find the Defendant‟s sentence is not excessive. Therefore, we

affirm the sentence.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, the Defendant asserted the requested

supplemental materials may reveal erroneously denied challenges for cause of

Batson challenges.

In brief, the Defendant noted the transcript of jury selection was not included

in the record at the time of filing and a motion to supplement, requesting a

transcript of jury selection, was filed. The Defendant sought leave of court to file a

supplemental brief in the event the transcript of jury selection revealed any errors.

No supplemental brief was filed in this matter. Thus, the Defendant has

presented this court with nothing to adjudicate.

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DECREE:

The Defendant‟s conviction and sentence are affirmed.

AFFIRMED.

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