State of Louisiana v. David Javon Arceneaux AKA David Arceneaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-60

STATE OF LOUISIANA

VERSUS

DAVID JAVON ARCENEAUX
AKA DAVID ARCENEAUX

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 17-240
HONORABLE CURTIS SIGUR, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Candyce G. Perret,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Alfred F. Boustany, II
Boustany Law Firm
P. O. Box 4626
Lafayette, LA 70502
(337) 261-0225
COUNSEL FOR DEFENDANT-APPELLANT:
David Javon Arceneaux

M. Bofill Duhe
District Attorney, Sixteenth Judicial District
W. Claire Howington
Assistant District Attorney
300 Iberia St., Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Jeffrey M. Landry
Attorney General
Colin Clark
Chief of the Criminal Appellate Section
J. Taylor Gray
Assistant Attorney General
P. O. Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR OTHER APPELLEE:
State of Louisiana Department of Justice

PICKETT, Judge.

FACTS

On December 2, 2016, Javon Johnson, Truvone Dwellingham, and Travis

Spears were sitting in a car in New Iberia while Mr. Johnson and the defendant,

David Javon Arceneaux, discussed the purchase of marijuana. During the

discussion, the defendant attempted to take money from the victim and then fired

shots, hitting all three victims. The victims suffered non-life-threatening injuries.

On January 22, 2018, the defendant was charged by amended bill of

information with three counts of attempted first degree murder against three

separate victims, violations of La.R.S. 14:30(A)(3) and La.R.S. 14:27; one count of

attempted armed robbery, a violation of La.R.S. 14:64 and La.R.S. 14:27; and one

count of distribution of marijuana, a violation of La.R.S. 40:966(A)(1). After a

three-day jury trial, the defendant was found guilty on April 18, 2018, of three

counts of attempted manslaughter (responsive to three counts of attempted first

degree murder), one count of attempted armed robbery, and one count of

distribution of marijuana. On July 11, 2018, the trial court sentenced the defendant

to ten years at hard labor on each count of attempted manslaughter, to ten years

without benefit of parole, probation, or suspension of sentence for attempted armed

robbery, and to ten years at hard labor for distribution of marijuana.1 All sentences

were ordered to be served concurrently. The defendant filed a Motion to

Reconsider Sentence that was denied without a hearing on August 1, 2018.

On July 30, 2018, the defendant filed a Motion for Appeal that was granted

on August 1, 2018.

1
These are the sentences as they are set forth in the sentencing transcript. As discussed in
the error patent section, there are discrepancies between the minutes of sentencing and the
sentencing transcript.

ASSIGNMENTS OF ERROR

Now before this court is an appeal filed by the defendant alleging three

assignments of error:

1. The defendant believes that the Sixth Amendment to the United States
Constitution, as incorporated by the 14th Amendment’s Due Process
Clause, and applied to the States, requires unanimous jury verdicts in
serious criminal cases. This issue has been accepted for review by the
United States Supreme Court in “Ramos v. Louisiana,” No. 18-5924
(United States Supreme Court). As appears from the face of this
record, this defendant was convicted by a non -unanimous jury verdict.
This was error.

2. The trial judge allowed the State of Louisiana to introduce evidence of
another crime allegedly committed by this defendant, although the State
failed to prove that crime by a preponderance of the evidence. Was this
error?

3. Was it error for the jury to convict the defendant when the State of
Louisiana did not prove the defendant’s guilt beyond a reasonable doubt,
as required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) and Sullivan v. Louisiana, 508 U.S. 275, 278
(1993).

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 there is one error patent and that the court minutes of sentencing require

correction.

The court minutes reflect that the defendant’s sentence for distribution of

marijuana was imposed without the benefit of parole, but the sentencing transcript

does not so indicate. “[W]hen the minutes and the transcript conflict, the transcript

prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,

369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, the trial court

is instructed to correct the court minutes of sentencing to delete the denial of the

benefit of parole for the defendant’s conviction of distribution of marijuana.

2

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant alleges the evidence was

insufficient for the jury to find beyond a reasonable doubt that he was the

perpetrator of the offenses at issue. We will address this assignment of error first,

as a finding that the evidence was insufficient would mandate acquittal. State v.

Hearold, 603 So.2d 731, 734 (La.1992). Additionally, we note that in assignment

of error number two, the defendant challenges the admission of other crimes

evidence introduced at trial. When the issues on appeal relate to both sufficiency

of the evidence and one or more potential trial errors, the reviewing court should

first determine the sufficiency of the evidence. The rationale is that when the

entirety of the evidence is insufficient to support the defendant’s conviction, the

defendant must be discharged as to that crime, and any other issues become moot.

Id. Accordingly, we will address the sufficiency of the evidence first.

The defendant does not contest that the crimes occurred or that the elements

of each offense were proved, he simply argues that the state failed to establish his

identity beyond a reasonable doubt. According to the defendant, the state’s case

“rested solely on the incredible testimony of a convicted felon, drug dealer, and

admitted liar.” The standard of review in such a case is well-established:

“In reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled by the
standard enunciated by the United States Supreme Court in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . .
[T]he appellate court must determine that the evidence, viewed in the
light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime had been
proved beyond a reasonable doubt.” State v. Captville, 448 So.2d
676, 678 (La.1984).

State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (alteration

in original).

3

Evidence at Trial

The first witness at trial was Iberia Parish Sheriff’s Deputy Phillip Early. He

received a dispatch on December 2, 2016, regarding a shooting on Shot Street.

While responding to the call, Deputy Early received another dispatch that a vehicle

left the scene and was traveling west on Admiral Doyle Drive. Deputy Early

eventually caught up to the car when it pulled into a gas station. The occupants of

the car were the victims of the shooting – two white males and one black male. The

victims had called dispatch and advised that they were scared and were not going

to stop. Dispatch told the victims that deputies were behind them and eventually

convinced the victims to stop. When Deputy Early first approached the car, he

saw bullet holes throughout the car, windows, and side panels. Deputy Early

testified that each of the victims was shot in the lower extremities of their bodies.

On cross-examination, Deputy Early testified that none of the victims gave him a

description of the shooter.

One of the victims, Jared Johnson, testified that he traveled to New Iberia on

December 2, 2016, to purchase marijuana with two of his friends. At the time, Mr.

Johnson lived in Pineville, Louisiana, and drove back and forth to Baton Rouge

Community College, where he attended school. Mr. Johnson identified his two

friends as Truvonne Dwellingham and Travis Spears. According to Mr. Johnson, a

person named “K.J.” set up the deal. It was dark when the victims arrived in New

Iberia, and they picked up K.J. from a Walmart which Mr. Johnson agreed may

have been in Broussard. The victims drove to the area where they were going to

buy the marijuana, and K.J. got out of the vehicle. Mr. Johnson described the

events that ensued as follows:

Q. Did y’all go into a house, did y’all stay in a yard, what?

4

A. No. I didn’t even exit the car. None of us exited the car.
Whenever we pulled up - - Like I said, it was very dark. There were -
- The street lights were there, but the street lights weren’t even on.
We pull up and K.J., I don’t know if he got out immediately or if it
was five minutes after, but K.J. does end up getting out of the vehicle,
and that’s when three other individuals were there - -

Q. Uh-huh (An affirmative Response).

A. - - and one of them ended up walking up to the car and - - I
believe once K.J. got out, I think he sat in the back, cause one of them
did sit in the back with a backpack, and I assumed that that was what
we were going to get. And whenever he sat in, he showed part of
what was in his backpack and it wasn’t what they had told me I was
coming to get, so Truvonne, the man in the back seat, my friend, he
said that, “Hey” - - like he just made a remark to them and said, “Hey,
that’s not what you guys had said the deal was.” And so he went back
to his car and in turn came back shortly after and he showed - - well
he didn’t actually get in the car this time. And at this point my nerves
were kind of uneasy. So he didn’t actually get back in the car. I just
rolled my window down about maybe half way, maybe slightly more,
and he had stuck an ounce of marijuana through the window and
asked, “Is this what - - you know - - Is this better” or - - I don’t know
what his words were, but he showed it to me and asked, “This is what
you wanted?” And before I could even say yes or no or even observe
anything he had already snatched back for that in my hand, and I had
four hundred dollars in my passenger door that, I guess, he saw,
because after he snatched what was in my hand, he immediately
snatched the money also. At that point Travis put it in drive - - I don’t
even know if I did or Travis put it in drive, but my foot never left the
brake. In a - - In all a matter of literal split seconds, it went from him
handing me something through my window, to snatching back at it, to
snatching the money, to being put in drive, me slamming the gas, and
literal, just fireworks going off. And after that, I drove off - - I mean
forward and I took the - - there was a stop sign, it was a fork, a left or
a right, so I took a right and that ended up being a dead end.

Q. Uh-huh (An Affirmative Response).

A. So we went down the street to the dead end, and I turned my
lights off halfway or down the dead end, cause the dead end was
actually a loop somewhat, like a cul-de-sac, - - I’m sorry - - like a
block, and whenever I turned back around, cause I turned back around
halfway around the dead end street, I came back and kind of peaked
around the corner and there was two sets of car headlights facing
towards the direction I was coming from. So I turned around again
and went back down the one-way that I was originally going down
and I turned my headlights off and I actually turned around again and
came back to where I saw the headlights and both sets of vehicles
were going back to the way that I would have been coming down had
I not turned back around to go back out with the headlights off; and
5

from there, I actually had my GPS routed at that time and we followed
it and that’s when we found the Chevron right there to the right after
we came out.

Mr. Johnson said he did not see a gun but heard “fireworks” going off. Mr.

Johnson explained where certain individuals were positioned when he heard the

fireworks going off:

A. Whenever I did pull off, the individual that handed me through
the window was about parallel to me with the car, I believe K.J. was
to the back left of the car, and then two other individuals actually
stepped out in front of the car, one on the left, one on the right, and at
that point that’s when - - literal, it’s just bang, bang, bang, fireworks,
and I didn’t even know - - actually, I wasn’t able to fully process what
had - - you know, had happened until after we drove off and I put my
hand on my leg and I - - I realized I had been shot and - -

Mr. Johnson was shot in his upper right leg. According to Mr. Johnson,

Travis was hit, but the bullet lodged in his wallet rather than penetrate his skin.

Truvonne, Mr. Johnson testified, was shot in his left calf, and the bullet traveled to

Truvonne’s other calf.

On cross-examination, Mr. Johnson testified that he met K.J. in Baton Rouge

about two weeks before the shooting. Mr. Johnson and K.J. were smoking weed

together when K.J. told Mr. Johnson he could get better weed. The two exchanged

numbers, and on the day of the shooting, Mr. Johnson called K.J. to buy an ounce

and a half of marijuana. Mr. Johnson believed that he was going to buy an ounce

and a half of weed from K.J. and then K.J. was going to take them somewhere else

to buy “moon rocks.” Mr. Johnson agreed that “moon rock” is “some pretty

expensive weed.” Thus, Mr. Johnson agreed that K.J. knew he would have money

with him. The two agreed to meet at the Walmart in Broussard. Mr. Johnson

understood that K.J. lived at a trailer park near Walmart but acknowledged that

K.J. named two different places when asked where he was from. Mr. Johnson saw

6

K.J. walking in the Walmart parking lot but did not know if K.J. was walking from

a home or walking from a car.

Mr. Johnson testified that he thought he would be buying the weed from K.J.

in the Walmart parking lot. Instead, K.J. directed Mr. Johnson to drive to New

Iberia. When they arrived, K.J. told Mr. Johnson to park in an area that Mr.

Johnson described as dark. K.J. exited the car, walked up to three individuals, and

discussed something that Mr. Johnson did not hear. When asked if “the guy”

showed him the weed through the window, Mr. Johnson replied:

A. Right. Well at first he did sit in the back of the vehicle and he
had a backpack and he showed - - he somewhat took the backpack off
of his back, kind of opened it and showed me, and that’s upon
whenever I said that wasn’t the quality of what I was told I was
getting and so that’s when he walked back and - - to the vehicle and
couple of minutes later walked back to me and that’s whenever he
handed me the - - a bit through the window, my window.

Mr. Johnson could not see the guy’s face since he was sitting behind him. Even

when the guy subsequently approached the window, Mr. Johnson still did not see

him. Mr. Johnson explained that it was dark, none of the street lights were on, and

the guy had a dark hood over his head. Mr. Johnson described the guy as “a larger

individual” when compared to K.J. and the other two individuals.

According to Mr. Johnson, K.J. was still outside of the car when the guy

returned to his window, and K.J. never got back in the car. In fact, Mr. Johnson

testified that he never heard from K.J. again. When defense counsel reminded Mr.

Johnson that he told police that he thought K.J. had something to do with the

incident, Mr. Johnson replied, “I thought that he had everything to do with it. I

thought that he set the whole thing up.” Mr. Johnson agreed that he did not know

whether K.J. had a gun on him when he got into the car. Mr. Johnson testified that

when K.J. got into the car at Walmart, he called someone to tell them they were on

their way.
7

On re-direct examination, the following colloquy took place between Mr.

Johnson and the state:

Q: When K.J. brought you there, there were three other guys there,
correct?

BY MR. JOHNSON:

A. Yes, ma’am.

Q. And those three guys are the ones that robbed and shot at y’all,
right?

A. Yes, ma’am, to my understanding.

Keonta James (K.J.) testified that he had a previous conviction for

possession with the intent to distribute marijuana, that he was charged as a co-

defendant in the present case, and that he admitted to his involvement in the drug

deal at issue by entering a plea of guilty. K.J. testified that he was fearful of the

defendant and concerned for his safety because of his testimony. K.J. described

the incident in question as follows:

Q. Okay. And so y’all went - - Y’all met up at Walmart, you got
in the car and - - and what happened after that?

A. We went to Shot Street. We was parked facing - - like facing
the stop sign. Like the car was like - - We was on the left side the
street, like where the houses at, the shotgun houses, the white houses,
or whatever, and Dave came up to the car and - -

Q. And - - And when you say, “Dave,” that’s - - that’s the
defendant?

A. That’s David Arceneaux, - -

Q. Okay.

A. - - came up to the car, he talked to them, asked them what they
needed, or whatever, stuff like that. He showed them product, asked
them if that’s what they wanted and they didn’t want that, so he left,
went back get some other stuff, came back with some different - -
with some different weed, or whatever, showed it to them. Whenever
he was showing it to them, I - - I hop out - - I hop out the car, he had
hop in to show them the weed, or whatever. And as he was showing
them the weed, they had - - they had somebody else in the car, like
8

sitting back there like watching and stuff, whatever. And at the
moment he had got out the car and he was showing him, like, “This is
what you want? This - - You’re sure this is what you want?” And
they was tussling for - - whatever, it looked like they was tussling, and
pull out the gun, he started shooting. And when he shot out, I - - I
left, I shot out running, like I - - I took off running.

Q. You took off running. Where did you go?

A. I - - I was hiding - - hiding behind a house.

On cross-examination, K.J. stated that when he got out of the car, he stood by the

trunk of the car on the driver’s side.

According to K.J., there were two other individuals with the defendant, one

of which was Shannon Phillips. When asked how he knew the defendant, K.J.

testified, “I been knowing him since - - since I was like - - I want say about

fifteen.” The state then asked K.J. if he and the defendant were good friends, and

K.J. replied, “Not anymore.”

K.J. testified that he did not call the police after the incident because he was

scared. About a week or two after the incident, K.J. was called in to the probation

office and arrested by his probation officer. K.J. testified that the arrest pertained

to the current incident. After his arrest, K.J. spoke with the police.

On cross-examination, K.J. testified that after the shooting, he called a

person named Sage to come and get him. K.J. agreed that when he ran, he did not

know if the victims had been shot. Even after seeing a news report that the police

were looking for the suspects, K.J. did not call the police. K.J. agreed that he did

not name the defendant until after he was “in handcuffs.”

According to K.J., he drove from St. Martinville to the Walmart in

Broussard to meet the victims. When asked if he left his car in the Walmart

parking lot, K.J. responded, “I had - - I actually got dropped off.” At first, K.J.

denied telling Mr. Johnson that he walked to Walmart from a nearby trailer park

9

but then stated that he probably did tell him that. Finally, K.J. stated that he did

not remember if he told Mr. Johnson that he walked from a nearby trailer. When

asked if he was telling the truth when he told police that he no longer had his cell

phone, K.J. replied:

A. I just cut it off. I ain’t get rid of the phone. I had cut it off.

Q. And you cut the phone off because you didn’t want Jared and
them calling you, right? You didn’t want to be in contact with Jared
and the guys in that car?

A. No. I wasn’t worrying about Jared; I was worrying about
David Arceneaux.

When asked if any of his brothers had dreadlocks like him, K.J. responded,

“Only one.” As for meeting with the prosecutor in the case, K.J. said he did not

think he met with her. Defense counsel and K.J. then had the following colloquy

about the crimes for which he was charged in conjunction with the incident in

question:

Q. Now when you got arrested on December 16 th, 2016, you were
charged with three counts of attempted murder?

A. Thought it - - it was two.

Q. Well two. And you also was charged with armed robbery,
right?

A. No.

Q. You wasn’t charged with armed robbery or - -

A. No.

Q. - - distribution of marijuana?

A. I was just charged with present to first - - present to first degree,
attempted.

Q. Now, the detective that you met with, when you interviewed he
told you you were in a lot of trouble, right?

A. Yes.

10

Q. And he told you you was facing a lot of time in jail.

A. Yes.

Q. And, in fact, he told you that principal to first - - attempted first
degree murder carries up to fifty years, right?

A. Yes.

Q. And you were scared of that, right?

A. Yes.

Q. Because you don’t want to go to jail for fifty years.

A. Yes.

Q. Now, I’m just trying to clarify what I heard. You said that you
were convicted of a crime. When you say you were convicted of
possession of marijuana, is that in this case or is that another case?

A. That was a case, I - - I think I caught in, like, 2016 - - ’15. I’m
on probation for it.

Q. Yeah. So that case - - And that case is in St. Martinville, where
you’re convicted of - - actually you’re convicted of distribution of
marijuana.

A. Yes, sir.

Q. In St. Martinville.

A. Yes, sir.

Q. And you’re on probation right now.

A. Yes, [sic]

Q. And, in fact, that’s why you’re in jail right now, because you
have a probation revocation coming up.

A. Yes.

Q. And in that case you’re facing thirty years.

A. No, but - - not - - No. Three years.

Q. Three - - Who told you was facing three years?

A. It’s three years.

11

Q. Okay.

A. Was three years probation.

Q. In that case when you pled guilty, in fact, you didn’t plead
guilty to a sentence, Right?

A. (No Response).

Q. You pled guilty to three years probation; and if you got in
trouble, the judge would later determine what sentence you get; isn’t
that true?

A. Yes.

Q. Okay. So - -

A. I think so, yes.

Q. In that case you’re actually - - On that probation revocation
right now, you’re facing up to thirty years in jail if the judge would
revoke your probation, up to thirty years in jail.

A. I think so. Not that I - - I don’t - - I don’t remember that.

Q. And you don’t want to do thirty years in jail on that neither,
right?

A. No.

K.J. agreed that if he had not made a deal with the state, he would have gone to jail

for a long time. K.J. acknowledged that he wanted to be involved in the lives of

his two young children – a five-year-old son and a newborn baby girl.

K.J. denied being a member of a rap group called Block Lyfe but admitted

that he participated in a music video for the group. K.J. also admitted that the

people in the video, which included himself at times, talked about killing people,

robbing people, and selling drugs. Even though he denied being a member of

Block Lyfe, K.J. acknowledged that he sometimes wore shirts with “BL” written

on them. When asked if he wore the shirt because he was in the video and was

hanging around the guys in the group, K.J. replied, “Yes.” K.J. acknowledged that

he goes by the nickname “Goonie.” Finally, defense counsel introduced
12

photographs identified as Defense Exhibits 1 through 10. K..J. acknowledged that

he was in all of the photographs. Some of the photographs contain multiple

people. There are some photographs, however, containing one individual, which

is presumably K.J. since he testified that he was in all of the photographs. The

photographs show K.J. as having what appears to be dreadlocks, as holding lots of

money, as holding what appears to be a pistol, and as holding what appears to be

an assault rifle.

On re-direct, K.J. agreed that he admitted to his involvement in this case by

pleading to the charges and acknowledged that he is still facing thirty years.

The next witness to testify, Brandon Blood, was a detective for the Iberia

Parish Sheriff’s Office on December 2, 2016, and participated in the investigation

of the incident at issue. According to Detective Blood, K.J. told him the following

after he was arrested:

A. When I first got to him and started speaking to him, at first he
didn’t want to really say anything. He kept saying, you know, you
know the guys, you know the people. He’s like his - - He kept calling
one of the guys Dave. He said, “You know Dave.” It’s like, “I don’t
know Dave.” You know, I kept trying to explain to him I’m not from
here so I really don’t know anybody. And when we finally started
talking to him, he kept telling me that he was scared. He kept telling
me that if - - “If I tell you anything, then I’m gonna get shot.” He
said, “If I tell you anything, my family’s gonna get shot. My family -
- They know where my family lives.”

Detective Blood testified that he did not promise K.J. anything in exchange for his

testimony. According to Detective Blood, the defendant, Shannon Phillips, and

Jashawn McCoy were arrested in connection with the incident in question.

Detective Blood testified that the cases against Shannon Phillips and Jashawn

McCoy are still pending.

On cross-examination, Detective Blood agreed that he knew of no physical

evidence that connected the defendant to the incident in question. Detective

13

Blood also testified that if the recording of Mr. Johnson’s statement said that Mr.

Johnson told police that none of the guys had gold teeth, Detective Blood could not

dispute the recording. During the state’s rebuttal, Detective Blood testified that the

question to Mr. Johnson regarding gold teeth was in reference to K.J. Detective

Blood was trying to get a description of the person referred to as K.J. When asked

if the defendant had gold teeth when he was arrested, Detective Blood testified that

he could not say yes or no.

The next witness, Milton Alexander, testified regarding other crimes

evidence. Defense counsel noted his continuing objection to the court’s pre-trial

ruling to the admissibility of Mr. Alexander’s testimony. At defense counsel’s

request, the trial court gave the following instruction to the jury:2

THE COURT: Okay. Ladies and Gentlemen of the Jury,
you’re about to hear testimony of evidence of other crimes involving
this defendant, which is different from what he - - he’s on trial for. So
the purpose of this evidence is to show guilt, intent and systems,
okay? All right.

Although this statement is arguably incorrect, no objection to it was made at

trial, and the issue was not raised on appeal. Further, in closing instructions the

trial court correctly gave a complete limiting instruction to the jury.

Mr. Alexander testified that he had previous convictions for both simple

burglary and possession of marijuana. When the state directed Mr. Alexander to

the time he was shot on January 4, 2014, Mr. Alexander testified, “All I remember,

(unintelligible) was driving, got flagged down. That’s all I remember. An

2
In its closing instructions to the jury, the trial court stated:

Evidence that the defendant was involved in an offense other than the
offense for which he is on trial is to be considered only for a limited purposes
[sic]. The sole purpose for which such evidence may be considered is whether it
tends to establish proof of the motive, opportunity, intent, preparation, a system or
plan, knowledge, identity, absence of mistake or accident. Remember the accused
is on trial only for the offense charged. You may not find him guilty of this
offense merely because he may have committed another offense.
14

altercation went down. I drove myself to the hospital. That was it.” Mr.

Alexander testified that he was driving a car, and his passengers were Carroll

Delahoussaye and Me’Khi Gregoire. Mr. Alexander denied that he was

participating in a drug deal and denied knowing the person who flagged him down.

When asked what happened after he pulled over, Mr. Alexander testified that he

remembered driving himself to the hospital and then waking up in the hospital.

When asked if he remembered telling the police that David Arceneaux shot him,

Mr. Alexander testified that he never spoke to the police and never told police that

David Arceneaux shot him. Mr. Alexander testified that he was shot in the

stomach.

Carroll Delahoussaye testified that on January 4, 2014, he was in the car

with Milton Alexander and another individual. According to Mr. Delahoussaye,

someone flagged their car down, and the driver stopped. The driver was talking to

“a dude,” and someone pulled Mr. Delahoussaye out of the back seat and hit him

with a pipe or pistol. According to Mr. Delahoussaye, Mr. Alexander was

hollering, “Man, he shot me.” Mr. Delahoussaye stated that Mr. Alexander did not

say who shot him, that Mr. Delahoussaye did not see who shot Mr. Alexander, and

that Mr. Delahoussaye did not tell the police who shot Mr. Alexander. When

asked if he ever told an officer that David Arceneaux shot Mr. Alexander and that

Mr. Delahoussaye was beaten up by Jacoby Harrison, Jabryson Kinchen, and

Jawaski Sam, Mr. Delahoussaye replied, “No. No. No.”

The state called Sean Moore, a detective with the Iberia Parish Sheriff’s

Department who investigated the shooting on January 4, 2014. Detective Moore

spoke with both Mr. Alexander and Mr. Delahoussaye at the hospital. Detective

Moore estimated that he spoke with both victims within an hour or so of the

shooting. According to Detective Moore, Mr. Alexander told him he was shot by
15

David Arceneaux during a sale of marijuana. Mr. Delahoussaye, Detective Moore

testified, described the incident as follows:

A. Carroll stated that they went - - he had went with Milton to sell
the marijuana, along with a juvenile. And when they got there, that
David and some other subjects ran up to the car and that David had
opened the driver’s door and pointed a gun at Milton. And then
shortly after that, there was a struggle over the weapon between David
and Milton and they were shot - - Milton was shot.

Q. Okay. And what happened to Carroll?

A. Carroll was - - attempted to get the gun from David, but was
drugged out the car and kicked in the head and beaten.

Detective Moore attempted to speak with both Mr. Alexander and Mr.

Delahoussaye after they were released from the hospital but was unsuccessful. On

cross-examination, Detective Moore testified that the case had been dismissed by

the Attorney General’s Office.

Tyler Dauphinet was employed with the New Iberia Sheriff’s Department on

December 2, 2016, the date of the incident at issue in the present case. When

Officer Dauphinet arrived at the scene, there were bullet casings all over the

ground. Officer Dauphinet identified State’s Exhibit 4 as a ten-dollar bill found

in the middle of the shell casings. According to Officer Dauphinet, no guns were

recovered from the crime scene.

The final witness to testify in the state’s case-in-chief was Detective Stacie

Smith, a Crime Scene Technician. Detective Smith identified photographs

showing the condition of the car involved in the shooting on December 2, 2016.

On cross-examination, Detective Smith acknowledged that he was able to retrieve

fingerprints from the rear window on the driver’s side. Those fingerprints,

Detective Smith testified, did not link to David Arceneaux. On re-direct, Detective

Smith testified that the fingerprints belonged to Jashawn McCoy.

16

In its case-in-chief, the defense called Riley Muffoleto, a deputy employed

by the Iberia Parish Sheriff’s Office on December 2, 2016. When Deputy

Muffoleto reached the gas station where the car involved in the shooting was

parked, he spoke with Mr. Dwellington, a passenger in the back seat who had been

shot in his right foot. Mr. Dwellington described the suspect as an unknown black

male with long dreads, wearing a dark colored hoodie, and wearing dark colored

pants.

The defense played a recording of the 911 call made in this case. In his

closing argument, defense counsel stated that the 911 caller described the suspects

as some black guys and stated that “they” had dreads. A review of the 911 tape

reflects that the caller described the suspects as black guys with dreads. Defense

counsel also argued that the defendant did not have dreads at the time of trial and

did not have dreads at the time of the incident. However, no evidence was

presented as to whether or not the defendant had dreads at the time of trial or at the

time of the incident.

The defendant argues the state failed to prove its case beyond a reasonable

doubt since the state’s case “rested solely on the incredible testimony of a

convicted felon, drug dealer, and admitted liar.” The defendant asserts that one

“glaring void” that makes “K.J.’s testimony incredibly unbelievable” is the fact

that K.J. never explained how he would make money selling marijuana when the

defendant was the person making the sale. The defendant also notes the state’s

failure to call “Sage” to testify in order to support K.J.’s story. The defendant

further asserts that the jury would not have convicted the defendant without the

admission of the other crimes evidence. Other than K.J., the defendant argues, no

other witness identified the defendant as a participant in the crime, and no physical

evidence connected the defendant to the crime – no fingerprints, no gun, and no
17

telephone records. The defendant further argues that the descriptions given by the

victims did not match the defendant.

The description given during the 911 call, the defendant argues, matched the

description of K.J. as shown in the photographs admitted at trial.

Finally, the defendant argues K.J. lied in order to get a good deal from

police, thus, K.J. had much to gain by testifying falsely. Because of the state’s

weak case, the defendant contends, the state introduced inadmissible other crimes

evidence to prove the defendant had a “pattern of violence.” The defendant argues

his conviction should be reversed since the evidence failed, as a matter of law, to

prove beyond a reasonable doubt that the defendant is guilty.

The state’s response notes that the jury was well aware of K.J.’s criminal

history, his pending probation revocation, and his status as a co-defendant in this

matter. The state further notes that Mr. Johnson’s testimony substantially

corroborated K.J.’s recollection of the shooting. Considering the long-standing

principle that the identification by a single witness, if credited by the jury, is

sufficient to support a conviction, the state contends the jury’s credibility

determination should not be second-guessed. Thus, the state concludes, the

evidence was sufficient to support the defendant’s convictions.

Analysis

The defendant does not contest that the elements of the crimes for which he

was convicted were proven in this case. Rather, the defendant contests the state’s

identification of him as the perpetrator. When the sole issue is the defendant’s

identity as the perpetrator, the supreme court has explained:

[W]hen the key issue is the defendant’s identity as the perpetrator,
rather than whether the crime was committed, the State is required to
negate any reasonable probability of misidentification. State v.
Weary, 03-3067 (La. 4/24/06), 931 So.2d 297; State v. Neal, 00-0674
(La. 6/29/01), 796 So.2d 649. Positive identification by only one
18

witness is sufficient to support a conviction. Weary, 03-3067 at p. 18,
931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v.
Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who
weighs the respective credibilities of the witnesses, and this court will
generally not second-guess those determinations. State v. Bright, 98-
0398, p. 22 (La. 4/11/00), 776 So.2d 1134, 1147.

Hughes, 943 So.2d at 1051.

As this court has previously stated:

In the absence of internal contradiction or irreconcilable
conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. The
question of the credibility of the 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 re-weighed on appeal.

State v. Westmoreland, 10-1408, p. 6 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, 379,

writ denied, 11-1660 (La. 1/20/12), 78 So.3d 140 (quoting State v. Perry, 08-1304,

p. 2 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, 344, writ denied, 09-1955 (La. 6/25/10),

38 So.3d 352).

Through K.J.’s statement to Detective Blood and his description of the

incident at trial, the defendant was identified as the person who attempted to sell

drugs to the victims, as the person who attempted to rob the victims, and as the

person who shot at Mr. Johnson and the other victims. The jury obviously chose to

believe K.J. despite his criminal history and despite his status as a co-defendant in

this case. The jury also saw the photographs of K.J. holding weapons, having

dreadlocks, and appearing with a group of people that could be a gang. The jury

heard Detective Blood’s testimony that one of the victims described the suspect as

having dreadlocks. Although defense counsel argued to the jury during closing

argument that the defendant did not have dreadlocks at the time of the incident, no

evidence of this was presented at trial. Thus, K.J.’s identification of the defendant

did not conflict with physical evidence. As argued by the state, K.J.’s description

19

of the incident was corroborated by Mr. Johnson’s testimony at trial. Specifically,

we note that Mr. Johnson testified that K.J. was to the back left of the car when the

shooting occurred. This matched K.J.’s testimony that he was standing by the

trunk of the car on the driver’s side. Furthermore, Mr. Johnson described the

perpetrator as larger than K.J., distinguishing K.J. from the perpetrator. Finally,

Mr. Johnson testified that he understood the perpetrators were the three guys that

met them at the scene.

After considering all of the above, the jury weighed the credibility of

witnesses and chose to believe K.J.’s testimony that the defendant was the

perpetrator. This court should not re-weigh the credibility of the witnesses in this

case. Accordingly, the defendant’s contention that K.J. is an unreliable witness

lacks merit as it does nothing more than seek to have this court re-assess witness

credibility on appeal.

As argued by the state, the jury rejected the defendant’s hypothesis of

innocence that K.J. was the real perpetrator. This court has stated the following

regarding a jury’s rejection of a defendant’s hypothesis of innocence:

With respect to a jury’s rejection of a hypothesis of innocence, our
supreme court in [State v.] Calloway, [07-2306 (La. 1/21/09),] 1 So.3d
[417] at 422 (citations omitted), concluded:

[W]e have repeatedly cautioned that due process, rational
fact finder test of Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a
reviewing court to substitute its own appreciation of the
evidence for that of the fact finder or to second guess the
credibility determinations of the fact finder necessary to
render an honest verdict. A reviewing court may intrude
on the plenary discretion of the fact finder “only to the
extent necessary to guarantee the fundamental protection
of due process of law.” Thus, as Judge Pettigrew
emphasized, when a jury reasonably and rationally
rejects the exculpatory hypothesis of innocence offered
by a defendant’s own testimony, an appellate court’s task
in reviewing the sufficiency of the evidence under the
Due Process Clause is at an end unless an alternative
20

hypothesis “is sufficiently reasonable that a rational juror
could not ‘have found proof of guilt beyond a reasonable
doubt.’ ”

The jury’s decision to reject the defendant’s hypothesis
regarding the commission of the crime was based upon its rational
credibility and evidentiary determinations. Accordingly, the jury’s
verdict should not be overturned.

State v. Jackson, 14-9, pp. 12-13 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 639,

writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066.

Likewise, the jury’s rejection of the defendant’s hypothesis of innocence in

the present case was based upon its rational credibility and evidentiary

determinations.

Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends the Sixth Amendment to the United States

Constitution, as incorporated by the Fourteenth Amendment and applied to the

States, requires unanimous jury verdicts in “serious criminal cases.” The

defendant notes that the jury’s verdicts in the present case were non-unanimous.

The state argues, however, that the defendant is precluded from raising a

constitutional challenge on appeal since the challenge was not raised in the trial

court. The defendant alleges the issue should be recognized as an error patent

because “[i]t appears highly likely the United States Supreme Court will declare

Louisiana’s non-unanimous jury verdicts unconstitutional.” We recognize that

Ramos v. Louisiana, __ U.S. __, 139 S.Ct. 1318 (2019), a case pending before the

United States Supreme Court, challenges the constitutionality of Louisiana’s non-

unanimous jury verdicts. The defendant is correct in that if the Supreme Court

finds a non-unanimous jury verdict to be unconstitutional for the types of verdicts

returned in the present case and if the Supreme Court applies such a holding

21

retroactively to include the jury verdicts returned in the present case, the verdicts

returned in the present case would be improper and would be considered an error

patent. The Supreme Court, however, has not yet made such a decision, and, as

discussed below, the jury verdicts returned in the present case are valid verdicts

under the law applicable to this case. We find no error patent occurred regarding

the jury’s verdicts in the present case.

The defendant was charged with three counts of attempted first degree

murder, one count of attempted armed robbery, and one count of distribution of

marijuana. The attempted first degree murder charges and attempted armed

robbery charge are all necessarily punishable at hard labor. At the time of the

defendant’s offenses (December 2, 2016) and at the time of his convictions (April

18, 2018), La.Code Crim.P. art. 782(A) provided a defendant charged in a case “in

which punishment is necessarily confinement at hard labor shall be tried by a jury

composed of twelve jurors, ten of whom must concur to render a verdict.” Thus,

the jury’s verdicts of guilty with ten out of twelve concurring on these charges

were proper. Likewise, the jury’s verdict of guilty with ten out of twelve

concurring as to the result was also proper for the charge of distribution of

marijuana, since that charge, which is punishable with or without hard labor, was

properly joined in the same charging instrument as the attempted first degree

murder and attempted armed robbery charges. La.Code Crim.P. art. 493.2.

These statutory requirements for a valid jury verdict are consistent with the

provisions of La.Const. art. 1, § 17 in effect at the time of the defendant’s offenses

and convictions. In the November 6, 2018 election, Louisiana voters opted to

change La.Const. art. 1, § 17 to require unanimous verdicts in some instances, and

the legislature likewise amended La.Code Crim.P. art. 782(A) to coincide with the

constitutional amendment. The amendment to La.Const. art. 1, §17 states:
22

Section 17. (A) Jury Trial in Criminal Cases. A criminal
case in which the punishment may be capital shall be tried before a
jury of twelve persons, all of whom must concur to render a verdict. A
case for an offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, ten of whom must concur to render a
verdict. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, all of whom must concur to
render a verdict.

La.Const. art. 1, § 17(B) was not changed and still allows non-unanimous

jury verdicts in cases where offenses necessarily punishable at hard labor are

joined with offenses punishable with or without hard labor. It is not clear whether

the legislature purposefully left section B unchanged or inadvertently failed to

amend it to align with the new requirements of amended section A. Nonetheless,

resolution of this issue is not necessary since amended section A does not apply to

the defendant. The pre-amendment versions of La.Const. art. 1, § 17 and La.Code

Crim.P. art. 782(A) apply to this case since the defendant’s offenses were

committed prior to January 1, 2019.

The constitutionality of non-unanimous jury verdicts provided for in the pre-

amendment version of La.Code Crim.P. art. 782(A) was upheld by the Louisiana

Supreme Court in State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738.

Additionally, earlier this year, this court denied a defendant’s writ application

seeking to declare the pre-amendment version of La.Code Crim.P. art. 782(A)

unconstitutional, stating:

As recently as 2010, in footnote fourteen of McDonald v. City of
Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020 (2010), the Supreme Court
stated that the Sixth Amendment right to trial by jury does not require
a unanimous jury verdict in state criminal trials, citing Apodaca v.
Oregon, 406 U.S. 404, 92 S.Ct. 1628 (1972), and Johnson v.
Louisiana, 406 U.S. 356, 92 S.Ct. 1620 (1972), and noting the unusual
division of the Justices and Justice Powell’s tie-breaking concurrence
in Apodaca. Given that the Supreme Court has so recently stated that
the Sixth Amendment right to trial by jury does not require a
unanimous jury verdict in state criminal trials, we decline to hold
23

otherwise. We adopt the reasoning utilized by our supreme court in
State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738,
regarding the constitutionality of La.Code Crim.P. art. 782(A) under
the Sixth Amendment.

State v. Small, 19-64 (La.App. 3 Cir. 1/25/19) (unpublished opinion).

Finally, this court recently rejected a defendant’s claim that he should

receive a new trial because he was convicted by a non-unanimous jury. State v.

Jinks, 18-733 (La. App. 3 Cir. 5/1/19) (unpublished opinion). Accordingly, the

non-unanimous verdicts returned in the present case were proper, no error patent

occurred, and the defendant’s assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues the trial judge erred in allowing the admission of other

crimes evidence that was not proved by competent evidence. The other crimes

evidence consisted of the testimonies of Milton Alexander, Carol Delahoussaye,

and Detective Sean Moore as to an incident that occurred on January 4, 2014. We

have reviewed the evidence as to that incident in the previous assignment of error.

A hearing on the admissibility of such evidence was held on January 22, 2018. At

the hearing, Mr. Delahoussaye testified similarly to his trial testimony, denying

that he knew the identity of the perpetrator of the January 4, 2014 incident and

denying that he named David Arceneaux as the perpetrator of that incident.

Detective Sean Moore also testified at the pre-trial hearing. As he did in his trial

testimony, Detective Moore testified that Mr. Alexander and Mr. Delahoussaye

named David Arceneaux as the person who shot them. At the pre-trial hearing,

Detective Moore identified the defendant as David Arceneaux. Detective Moore

also testified that no forensic evidence linked the defendant to the January 4, 2014

incident.

24

At the pre-trial hearing, the state introduced the testimony of K.J. in order to

establish the similarity of the January 4, 2014 incident to the December 2, 2016

incident at issue in this case. Finally, the state introduced an affidavit of Detective

Blood, and the following arguments were then presented:

MS. BURKE: Your Honor - - Your Honor, the Court can rule
that other crimes evidence is admissible to be introduced at trial when
the State meets its burden of proof showing that the other crimes fall
under the exception of intent, knowledge and absence of mistake.
And as it is shown here, the State - - intent is actually gonna be an
issue at trial. It is an element of the - - the crime that’s charged. The
crimes are similar enough. Both of them are shootings, they took
place at basically the same area, it was a drug deal, there’s multiple
victims, there’s vehicles, I mean they’re basically the same thing, just
in different - - different years. The - - And the current case the
victims are from out of town. But other than that, it’s very similar.
There were victims shot in both cases. And in both cases the - - the
defendant was the first initiator with - - with both of the victims. The
State - - The State seeks to introduce this evidence at trial.

MR. DANIELS: Your Honor, as you’re - - Your Honor is well
aware for 404B to be introduced, the very threshold of question that
has to be satisfied to the Court, that this defendant in fact committed
the other crime. The testimony of Mr. Carroll Delahoussaye was
clear; David Arceneaux didn’t commit this crime.

THE COURT: No, he said he - - he had - - they had shirts over
their face.

MR. DANIELS: Yeah, he said they had shirts over their face,
but there was no - - in court identification that David Arceneaux was
one of those men - - he had - - there was no testimony that David
Arceneaux - - he believed that one of these men, masked men, was
David Arceneaux. That’s the very threshold question that they have
to - - they have to - - They have to cross that threshold first. And I
submit that they did not cross that threshold. The next issue: The
State alleges that these crimes are so similar, yet there’s - - there’s no
evidence, other than there was a robbery in the area of Shot Street on
one of them and then there was another robbery on Shot Street.
There’s always robberies in that area, Judge. There’s always
robberies in Iberia Parish, or shootings. So to say that they’re similar,
they didn’t - - they didn’t meet their burden of showing that these two
cases are identical or they - - it is to be some kind of signature crime -
- that Mr. Arceneaux has a signature crime and uses a certain type of
gun or uses a certain - - he does certain type of thing. There’s been no
evidence of that. This evidence, Your Honor, was - - do nothing more
than confuse the issue for the jury, whether or not Mr. David
Arceneaux is guilty of the crime that was committed on December 2nd,
25

2016, nothing more. They would have to call witnesses that would be
unduly delayed - - It would prejudice Mr. Arceneaux to allow this
evidence, cause the witness already said, “Some guys beat me up. I
don’t know who did it. They had masks on their face.” I would
submit, Your Honor, this evidence should not be admitted, cause it’s
simply not relevant, the State hasn’t met their burden of proof;
therefore, this evidence shouldn’t be introduced and the State should
be limited to the evidence that’s before the Court from December 2 nd,
2016. And we ask that the motion be denied.

The state asked the court to delay its ruling until Milton Alexander was

available to testify, but the defendant objected. The trial court then issued the

following ruling:

THE COURT: The Court sat here listening to the witnesses on
the prior incident and the witness here today and the Court is going to
grant the State’s 404B motion, finding intent, knowledge and absence
of mistake.

The defendant noted its objection to the trial court’s ruling. At trial, defense

counsel stated its objection was still standing. Before evidence of the prior

incident was introduced, as we have previously noted, the trial court gave a

limiting instruction to the jury.

Jurisprudence

The supreme court has held that “[a] district court’s ruling on the

admissibility of other crimes evidence will not be overturned absent an abuse of

discretion.” State v. Taylor, 16-1124, 16-1183, p. 18 (La. 12/1/16), 217 So.3d

283, 296 (citing State v. Galliano, 02-2849 (La. 1/10/03), 839 So.2d 932). In

Taylor, 217 So.3d at 291, the supreme court stated the following regarding the

state’s burden of proving the commission of the other crimes evidence:

[We] now recognize and hold that when seeking to introduce evidence
pursuant to La. C.E. art. 404(B), the state need only make a showing
of sufficient evidence to support a finding that the defendant
committed the other crime, wrong, or act.

The defendant’s argument focuses on the lack of competent evidence that

the defendant was the perpetrator of the other crimes evidence. The defendant also
26

takes issue with the state’s attempt to use Detective Moore’s testimony to impeach

the credibility of both Mr. Alexander and Mr. Delahoussaye. Although the

defendant acknowledges that impeachment is permissible, he argues it was not

proper in the present case. No objection was made to Detective Moore’s testimony

either at the pre-trial hearing or at trial.

Finally, the defendant argues that the erroneous admission of the other

crimes evidence was not harmless error. The defendant notes the lack of any

witness other than K.J. that identified the defendant as the perpetrator of the

current offense. Additionally, the defendant notes the lack of physical evidence

linking defendant to the crime as well as the defendant’s lack of dreadlocks even

though the perpetrator was described as having dreadlocks.

The state responds to the defendant’s argument by noting the supreme

court’s decision in Taylor, 217 So.3d 283, that a lower standard than clear and

convincing evidence is required for the admissibility of other crimes evidence. As

noted by the state, the standard is now “sufficient” evidence to support a finding

that a defendant committed the prior offense. The state contends such a standard

was met in this case.

The state argues that although at trial, neither victim identified the defendant

as the perpetrator, they both confirmed that the incident occurred and that they

were both injured as a result. The state further points out that Detective Moore

testified that following the offense both men identified the defendant as the

perpetrator. The state argues the previous offense happened in circumstances

similar to the circumstances at issue in this case.

Legal Analysis

Although neither of the victims of the prior incident named the defendant as

the perpetrator of the January 4, 2014 incident during their testimonies, either at
27

trial or at the pre-trial hearing, Detective Moore testified that the two victims did

name David Arceneaux as the perpetrator very shortly after the incident occurred.

Additionally, at the pre-trial hearing on the admissibility of the evidence, Detective

Moore identified the defendant as the David Arceneaux named as the perpetrator

by Mr. Alexander. Thus, contrary to the defendant’s argument, there was an in-

court identification of the defendant as the perpetrator of the prior incident. The

defendant could have questioned Detective Moore regarding his in-court

identification but chose not to do so. There is no question that in order to prove the

defendant perpetrated the January 4, 2014 incident beyond a reasonable doubt,

more evidence would have been needed to support the identification of the

defendant as the same David Arceneaux named by Mr. Alexander and Mr.

Delahoussaye. As stated by the supreme court, however, the evidence of the prior

incident does not need to be sufficient to convict the defendant beyond a

reasonable doubt:

We caution, however, that this hearing is not intended to be a “mini
trial” of the prior offenses. The state is simply required to make some
showing of sufficient evidence to support a finding that defendant
committed the other act. We cannot mandate or prohibit a specific
form of evidence applicable to every case. Although testimony is not
required, it may be necessary depending on the facts of a particular
case. Other times the submission of documents, such as a police report
or conviction, and a summation of the other crime, wrong, or act will
suffice. Sufficiency of the state’s evidence naturally must be
determined on a case by case basis.

Taylor, 217 So.3d at 292 (citations omitted). Considering this standard of proof,

and applying it to the facts before us, we find the state made a showing of

sufficient evidence that supports a finding the defendant committed the prior act.

The trial court did not abuse its discretion in finding the state’s offering was

sufficient.

28

CONCLUSION

The defendant’s convictions and sentences are affirmed. However, the trial

court is instructed to correct the court minutes of sentencing to delete the denial of

the benefit of parole for the defendant’s conviction of distribution of marijuana.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules−Courts of Appeal, Rule 2−16.3.

29