The defendant appeals her convictions for attempted possession with intent to distribute cocaine and attempted distribution of cocaine. The first issue raised on appeal is whether there was sufficient evidence to convict the defendant on charges of attempted distribution of cocaine and attempted possession with intent to distribute cocaine. The next issuе is whether the prohibition against double jeopardy was violated when the trial court found the defendant guilty of both offenses arising out of the same events. The final issue is whether the trial court erred when it denied defendant’s motion to suppress the evidence. For the reasons below, we affirm the decision of the trial court.
PROCEDURAL HISTORY
The defendant, Cyntrell Armstead, was charged by bill of information with possession with intеnt to distribute cocaine and distribution of cocaine in violation of La. R.S. 14:967(B)(1). The defendant entered a plea of not guilty and counsel for the defendant filed motions, including motions to suppress confession and evidence. The trial court heard the motions, which were opposed by the State, and after hearing testimony from Officer Michael Cahn, the trial court denied the motions to supрress and found probable |?cause for possession with intent to distribute cocaine. The trial court did not make a specific ruling as to probable cause for distribution of cocaine.
A bench trial in this matter was held, and the defendant was found guilty of attempted possession with intent to distribute cocaine and attempted distribution of cocaine. The State filed a multiple bill charging the defendant as a second felony offender, which the defendant initially contested. The defendant subsequently admitted to being a multiple offender, and the trial court sentenced her to seven years and six months on each count, pursuant to La. R.S. 15:529.1.
STATEMENT OF FACTS
At the trial, the State first called Officer Michael Cahn, who testified that he was on patrol on May 29, 1998 at approximately 6:30 p.m. in the 1200 block of Columbus Street in New Orleans. He and his partner, Officer Bret Pittman, were in a marked police vehicle in full uniform. As they approached the apartments at 1218 Columbus Street, where they had made numerous narcotics arrests in the past, he observed the defendant and another female, Rebecca Holbrook, engage in a hand-to-hand drug transaction. In partic
laWhen Officer Cahn arrived at the apartment, he observed the defendant sitting in a room with two juveniles. Officer Pittman handcuffed the defendant and advised her that she was under arrest for distribution of crack cocaine. The defendant had been patted down for weapons, and the officers, who are male, called for a female officer to conduct a strip search of the defendant based on the officer’s observation of the defendant stuffing something in the back of her pants. Officer Gerldine Daniels, a female officer from the Fifth District, responded to the call. The handcuffs were removed from the defendant, and Officer Daniels took the defendant to a back room of the apartment, leaving the door slightly ajar. Officer Cahn testified that he observed the strip search from the hallway in the interest of officer safety.
The defendant removed her clothing, and while nude, refused to reveal the cоntents of a hand she kept pressed to her buttock. Officer Daniels reached toward the defendant’s hand, the defendant began to fight the female officer, and the bag in the defendant’s hand broke open, spilling thirty to forty pieces of crack cocaine onto the floor. Officer Cahn assisted Officer Daniels in restraining the defendant, and he identified the bag of crack cocainе at the trial as the bag that fell to the floor during the struggle, and the State entered the bag into evidence. A lab report confirming that the substance from the bag tested positive for cocaine was also entered into evidence. Officer Cahn identified the single piece of crack cocaine he retrieved from Holbrook’s hand, and the State entered that piece of сocaine into evidence along with a lab report confirming the substance as cocaine. Officer Cahn identified two hundred and seventeen dollars in U.S. currency that was retrieved from the right hand pocket of defendant’s pants, which was also offered into evidence by the State.
|4Officer Daniels testified for the State that she was the female officer called to assist with the searсh of the defendant on May 29, 1998. Officer Daniels stated that she conducted the strip search of the defendant in a second bedroom of the apartment and that the defendant cooperated' by undressing herself. When the defendant was almost finished undressing, the officer noticed a plastic bag under her right palm, which she kept against her buttock. When the officer asked the defendant to bend over, to move her hand, or to extend her hand, the defendant pulled away. At that point, a large quantity of rock like substance spilled on the floor from under her right palm. Officer Cahn assisted Officer Daniels as she struggled with the defendant. Officer Daniels identified the bag and the evidence contained therein as the substance she observed falling from the defendant’s hand. Officer Daniels testified that the doоr to the bedroom was practically closed, with the crack small enough to prevent anyone from observing the strip search. Officer Daniels testified that the defendant’s outrage and the ensuing struggle was unrelated to be
ERRORS PATENT
A review of the record for errors patent reveals the trial court erred in the sentence it imposed upon the defendant. The court imposed the minimum sentence allowed by law for attempted possession with the intent to distribute cocaine as a second offender and for attempted distribution of cocaine as a second offender, seven and one-half years. However, the court erred by failing to ordеr that the sentence was at hard labor and that the first | ¡¡two and one half years
In instances where statutory restrictions are not recited at sentencing, La.Rev.Stat. Ann. 15:301.1(A) deems that those required statutory restrictions arе contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. State v. Williams, 2000-1725, p. 10 (La.11/28/01),
ASSIGNMENT OF ERROR NUMBER 1
The defendant first argues that there was insufficient evidence to convict the defendant of both attempted distribution of cocaine and attempted possession with intent to distribute cocaine. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rationаl trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the еxistence of the main fact may be inferred according to reason and com
In the instant case, the defendant was convicted of attempted possession of cocaine with the intent to distribute. In State v. Page, 95-2401, p. 28 (La. App. 4 Cir. 8/21/96),
To prove that a defendant attempted to possess a controlled dangerous drug, the State must prove that the defendant committed an act tending directly toward the accomplishment 17of his intent, i.e. possession of the drugs. State v. Chambers,563 So.2d 579 (La.App. 4th Cir.1990). Moreover, the State need only establish constructive possession, rather than actual or attempted actual possession of cocaine, to support an attempted possession conviction. State v. Jackson,557 So.2d 1034 (La.App. 4th Cir.1990). A person found in the area of the contraband can be considered in constructive possession if the illegal substаnce is subject to his dominion and control. State v. Trahan,425 So.2d 1222 (La.1983). An intent to distribute can be inferred from the quantity found in the defendant’s possession. Trahan, supra.
Determining whether the defendant had constructive possession depends upon the circumstances of each case; and among the factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute construсtive possession are: whether the defendant knew that illegal drugs were present in the area; the defendant’s relationship to the person in actual possession of the drugs; whether there is evidence of recent drug use; the defendant’s proximity to the drugs; and, any evidence that the area is frequented by drug users. State v. Allen,
The defendant was also convicted of attempted distribution of cocaine. La. R.S. 40:967 provides that it shall be unlawful for any person “knowingly or intentionally ... [t]o ... distribute, or dispense, a controlled dangerous substance classified in Schedule II.” Cocaine and its derivatives are listed in Schedule II. La. R.S. 40:964. A defendant is guilty of distribution of cocaine whеn he transfers possession or control of cocaine to his intended recipients. State v. Cummings, 95-1377 (La.2/28/96),
In the case at bar, the police officer testified that he observed the defendant engage in a hand-to-hand narcotics transaction. He stated he watched as the defendant took currency from a female and gave her a small object. The officer further stated that he observed the defendant stuff something down the back of her pants. The officer then detained the female while his partner pursued and detained the defendаnt. The officer was present when the bag of additional rocks of cocaine held by the defendant in her hand broke open during a struggle with the female officer. United States currency in the amount of two hundred and seventeen dollars was found on the defendant’s person. The testimony of the officer that he observed the defendant engage in a narcotics transaction and the discovery of additional rocks of cocaine and two hundred and seventeen dollars on the defendant’s person were sufficient evidence for the trial court to conclude that the defendant was guilty of attempted possession with the intent to distribute cocaine and attempted distribution of cocaine. This assignment of error is without merit.
^ASSIGNMENT OF ERROR NUMBER 2
The defendant next argues that she was twice put in jeopardy for the same offense when the State was permitted to charge both distribution of cocaine and possession with intent to distribute cocaine. Charging a defendant with both distribution of cocaine and possession with intent to distribute cocaine does not violate the double jeopardy clause, where a defendant committed two separate and distinct acts, such as distributing coсaine to an individual and then, upon arrest, being found in possession of more drugs. State v. Baptiste, 99-0288, p. 2 (La.App. 4 Cir. 3/29/00),
ASSIGNMENT OF ERROR NUMBER 3
The defendant contends that the prohibition against double jeopardy was violated when the trial court found the defendant guilty of both attempted distribution of cocaine and attempted possession with intent to distribute cocaine when both charges arose out of the same offense. The Louisiana Supreme Court in City of Baton Rouge v. Ross, 94-0695 (La.4/28/95),
In State v. Carouthers,607 So.2d 1018 , 1028 (La.App. 3 Cir.1992), vacated on other grounds,618 So.2d 880 (La.1993), the court of appeal found that where nine rocks of cocaine seized in the defendant’s room were used to prove possession of cocaine with intent to distribute, and two other rocks sold to an undercover officer were used to prove distribution of cocaine, no double jeopardy attached because the “same evidence” was not used to secure each conviction. Ca-routhers may be contrasted with State v. Leblanc,618 So.2d 949 , 957 (LaApp. 1 Cir.1993), whеre the court found that the use of the same package of cocaine to prove possession of cocaine and 1 inattempted distribution of cocaine arising out of the same transaction constituted double jeopardy under the “same evidence” test. See also State v. Two-*396 hig,624 So.2d 16 , 17 (La.App. 4 Cir. 1993).
As discussed above, the evidence was sufficient to show the defendant engaged in two distinct acts, and the evidеnce used to find the defendant guilty of each crime was distinct: the single rock of cocaine for the distribution charge and the bag of additional rocks of cocaine for the possession with intent to distribute charge. Therefore, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 4
Lastly, the defendant claims that the trial court committed reversible error when it denied the motion to suppress evidence because absent Officer Cahn’s claim that he saw the defendant stuff contraband down the back of her pants, there was no basis for the strip search of the defendant. On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard but reviews conclusions to be drawn from those facts de novo. State v. Hamilton, 2000-1176, p. 5-6 (La.App. 4 Cir. 9/13/00),
The defendant argues that Officer Pittman, who did not testify at either the motion hearing or the trial, allegedly pursued the defendant, followed her into her apartment, detained her, arrested her, and patted her down for weapons. Officer Cahn’s claim is not worthy of belief, argues the defendant, as he was preoccupied with detaining Ms. Holbrook, and Officer Pittman would have been better able to testify as to the course of events regarding the arrest of the defendant and any basis for a strip search. A In search performed incident to lawful arrest has long been recognized as an exception to the warrant requirement. Chimel v. California,
This Court recently held La. C.Cr.P. art. 213 authorizes a policeman to arrest a person who has committed an offense in his presence. State v. Daniel, 2001-1736, p. 3 (La.App. 4 Cir. 2/13/02),
For the foregoing reasons, we find that there was sufficient evidence to convict the defendant on both charges. The defendant was not put in jeopardy when she was charged with distribution of cocaine and possession with intent to distribute cocaine. The prohibition against double jeopardy was not violated since the offenses did not arise out of the same еvents. The trial court did not err in denying defendant’s motion to suppress the evidence.
Therefore, the defendant’s conviction and sentence are affirmed.
AFFIRMED.
Notes
. The version of La. R.S. 40:967B(4)(b); 40:979 in effect at the time of the defendant's crimes required "a term of imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of said sentence being without benefit of parole, probation, or suspension of sentence.”