108 So. 3d 1246
La. Ct. App.2013Background
- Defendant Kewana Drewery appeals two-conviction bill: possession with intent to distribute marijuana (count 1) and possession of a firearm while in possession of marijuana (count 2).
- Convictions followed a 2011 jury verdict; sentences issued September 2011 with concurrent terms and fines; defendant filed a post-trial appeal.
- Drewery moved to suppress statements and evidence pretrial; motions were denied by the trial court.
- Sept. 11, 2006 traffic stop on I-10 by Trooper Schilleci revealed a rental vehicle rented by a third party (Jacques Rivers); defendant claimed Houston trip to check her apartment.
- Co-defendant Cooks seated in front passenger seat; officer detected odor of marijuana; handgun found; trunk search led to marijuana in bags; bags allegedly belonging to Rivers per defense.
- Defendant and Cooks testified Rivers owned the marijuana and that they lacked knowledge or possession; jury credited State witnesses and rejected defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for possession with intent to distribute | State contends circumstantial evidence suffices to prove possession and intent | Drewery lacked knowledge or dominion over the marijuana; Rivers owned it | Sufficiency supported constructive possession and intent; conviction upheld |
| Double jeopardy violation from separate firearm and drug counts | Separate convictions allowed when evidence supports both offenses | Same evidence proven for both offenses; one offense subsumes the other | Double jeopardy violated; vacate the firearm conviction and sentence |
| Advisal and probation fee issues; incomplete notice to defendant | No substantive error; standard advisal sufficed | Advisal about post-conviction relief period and probation fee was defective | Advisal corrected; remand to impose mandatory probation fee; other advisal and related issues noted |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency review standard for direct/circumstantial evidence)
- State v. Bazley, 60 So.3d 7 (La.App. 1st Cir. 2011) (circumstantial evidence and possession concepts)
- State v. Proctor, 901 So.2d 477 (La.App. 5th Cir. 2005) (factors for constructive possession and dominion/control)
- State v. Morgan, 557 So.2d 977 (La.App. 4th Cir. 1990) (constructive possession when trunk accessible and shared control)
- State v. Robbins, 979 So.2d 630 (La.App. 2nd Cir. 2008) (constructive possession where trunk accessible and inconsistent trial testimony)
- State v. Sims, 7 So.3d 1288 (La.App. 2nd Cir. 2009) (same-evidence double jeopardy consideration)
- State v. Thomas, 764 So.2d 1104 (La.App. 4th Cir. 2000) (double jeopardy analysis—same evidence test)