State v. BrownState v. Brown
The defendant, Eddie Brown, III, was convicted by a jury of possession of cocaine. He was then adjudicated a second felony habitual offender and was sentenced to serve eight years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence. We amend, and as amended, affirm the conviction and sentence.
After midnight on April 10, 2002, Officers Joel Heard and Daryl Stapp of the Monroe Police Department were on patrol in an area of town known for drug trafficking. They observed a vehicle, driven by the defendant, stopped in the middle of Dixie Street. Two men were standing at the driver‘s side of the vehicle with their hands inside the car. As the officers approached the vehicle in their patrol car, the two men ran away and the defendant started driving away. The officers followed the vehicle and turned on their emergency lights. The car turned into a residential driveway, the passenger door opened, and two men immediately got out. Officer Stapp stopped the men and put them on the ground. The defendant put the car in reverse and attempted to leave the scene. Officer Heard pointed his gun at the defendant and commanded him to stop.
Officer Heard then ordered the defendant to get out of the car. After handcuffing him, the officer observed a brown piece of paper on the ground on the driver‘s side of the car. The paper was dry although the ground was wet due to recent rain. The paper was found to contain two plastic bags containing substances later determined to be marijuana and cocaine. The defendant denied that the drugs belonged to him. He contended that they belonged to the passengers. The officer saw no other people in the area at the time of the arrest. The defendant did not have a significant amount of money with him nor did he have any drug paraphernalia.
The defendant was charged with possession of cocaine. On October 29, 2002, a jury convicted him as charged. The defendant was sentenced to serve five years at hard labor. After being adjudicated a second felony habitual offender, he was sentenced on January 17, 2003 to serve eight years at hard labor without benefit of probation or suspension of sentence. A motion to reconsider the sentence was filed on January 21, 2003. On August 12, 2003, pursuant to an order of this court, the trial court denied the motion to reconsider the sentence and clarified that the original five-year sentence was vacated following the defendant‘s adjudication as a habitual offender. The trial court then stated that the defendant was sentenced to serve eight years at hard labor without benefit of parole, probation or suspension of sentence. The defendant appealed, claiming that the evidence was insufficient to support the conviction, that the sentence imposed was excessive, and that the sentence was improperly ordered to be served without parole.
SUFFICIENCY OF THE EVIDENCE
The defendant argues that his conviction should be overturned because the evidence was not sufficient to convict him of possession of cocaine. This argument is without merit.
Although the record does not reflect that the defendant filed a motion for post verdict judgment of acquittal pursuant to
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1039 (La.10/17/97), 701 So.2d 1333.
This standard, now legislatively embodied in
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.
Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence.
However, to be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one‘s dominion and control, with knowledge of its presence, even though it is not in one‘s physical possession. State v. White, 37,261 (La. App.2d Cir.6/25/03), 850 So.2d 987.
Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra; State v. Allen, 34,103 (La.App.2d Cir. 12/22/00), 774 So.2d 1212.
A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining
The defendant argued that the drugs belonged to the passengers of the car. He questioned the officers about whether there was a sofa under the carport of the driveway in which the defendant stopped. He argued that there may have been people on the sofa who dropped the drugs when they saw the police approaching. The testimony of Officer Heard and Officer Stapp showed that they did not see any other people in the area. Also, the defendant stopped his car in the driveway, not under the carport.
Mark Johnson of the Monroe Police Department testified as an expert in training techniques, as well as packaging, value and handling of narcotics. He stated that the situation observed by Officers Heard and Stapp looked like a drug deal. Officer Johnson testified that the amount of cocaine found in this case was approximately one-eighth of an ounce and is known as an “eight ball” on the street. He said that amount of cocaine could be bought by a dealer for $200 to $225. If cut and resold, a dealer could make between $300 to $350 for an “eight ball.”
The officers’ testimony shows that, although they did not see the actual drug transaction, when they first observed the defendant‘s vehicle, two men were standing outside on the driver‘s side of the car, with their hands in the car. The individuals standing outside the car fled when the police approached. The defendant also attempted to drive away from the police.
The officers followed in their patrol car with emergency lights activated. When the defendant pulled into a driveway, his passengers jumped out of the vehicle and tried to run away. The defendant then tried again to drive away, and was ordered out of the car at gunpoint. After the defendant was handcuffed, the dry paper containing the drugs was found on the wet ground, on the driver‘s side of the vehicle.
In this case, no drugs were found on any occupants of the car, the officers did not see the drugs passed to them while the car was stopped on Dixie Street, and the officers did not see anything being tossed from the car. However, the testimony of the officers shows that the defendant and his passengers were stopped in an area known for drug trafficking, engaging in behavior that appeared to be a drug transaction. When the defendant was apprehended, drugs were found near him and appeared to have been there only a short time. The defendant was the only person close to the area where the cocaine was found.
Under these facts, the evidence is sufficient for the jury to conclude that the defendant and his friends purchased the cocaine from the individuals outside the car and that the defendant was in constructive possession of cocaine. The jury did not err in finding the defendant guilty of possession of cocaine based upon this record.
EXCESSIVE SENTENCE
Following the defendant‘s conviction for possession of cocaine, his adjudication as a second felony habitual offender, and his sentence to serve eight years at hard labor without benefit of probation or suspension of sentence, the defendant filed a motion to reconsider his sentence. When the trial court failed to rule on the
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
The articulation of the factual basis for a sentence is the goal of
There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1110 (La.2/2/01), 783 So.2d 385.
The second prong of the test of whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates
The defendant argues that the trial court failed to adequately consider that, at 22 years of age, he was a youthful offender, that he is not dangerous, and that there was only circumstantial evidence against him. The trial court had access to and considered a presentence investigation report listing all pertinent information about the defendant‘s family background and listing his extensive criminal record, including convictions for burglary of a pharmacy and attempted possession of marijuana. One month prior to the present offense, the defendant had been released from prison on a 2000 conviction for possession of cocaine with intent to distribute.
ILLEGAL SENTENCE
The defendant argues that the minutes from his resentencing on August 12, 2003, reflect an illegally excessive sentence because the defendant was ordered to serve eight years at hard labor without benefit of probation, suspension of sentence, or parole. The prosecution agrees that this argument has merit.
We note that when the defendant was originally sentenced as a habitual offender on January 17, 2003, the trial court specifically stated that the sentence was imposed under the provisions of
ERROR PATENT
The transcript of the defendant‘s resentencing on August 12, 2003, shows that he was not advised of the delays within which he may seek post conviction relief under
CONCLUSION
For the reasons stated above, we affirm the conviction of the defendant, Eddie Brown III, for possession of cocaine. We amend the sentence to provide that the defendant is to serve eight years at hard labor without benefit of probation or suspension of sentence. We delete reference to denial of parole. The sentence is affirmed in all other respects.
AMENDED AND AFFIRMED AS AMENDED.
STEWART, J., dissents with written reasons.
STEWART, J., dissenting.
Because I find the circumstantial evidence upon which this conviction rests insufficient to establish the defendant‘s guilt beyond a reasonable doubt, I respectfully dissent from the majority‘s decision to affirm the defendant‘s conviction for possession of cocaine.
This is a matter of constructive possession, which requires proof that the accused exercised dominion and control over the
APPLICATION FOR REHEARING
Before BROWN, WILLIAMS, STEWART, GASKINS and PEATROSS, JJ.
Rehearing denied.
Stewart, J., would grant rehearing.