State v. JordanState v. Jordan
Rebecca Jordan was charged by bill of information with possession of pentazocine (Talwin), a violation of
1. There is an insufficient factual basis upon which a rational trier of fact could find guilt beyond a reasonable doubt;
2. The sentence is excessive; and,
3. Because of error patent on the face of the record, the conviction must be reversed.
Defendant‘s second assignment of error, urging the court imposed an excessive sentence, was not briefed on appeal and is, therefore, considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.
Defendant sets forth an “assignment of error” in which she urges the verdict should be reversed because of error patent on the face of the record, but has failed to
Defendant also briefed four additional arguments. These allegations were not assigned as error and do not constitute error patent on the face of the record. Accordingly, they are not properly before this court for review. See
FACTS
Defendant was arrested after a search of the Disco Lounge in Bogalusa, Louisiana, during which twenty-one tablets containing pentazoсine were discovered. Officer Vanessa Quillen was the first of the officers to enter the lounge.1 She approached defendant, who was behind the bar, and advised her that other officers wеre outdoors and had a warrant authorizing a search of the premises. Quillen testified she saw defendant take a small white plastic bottle from her pocket and throw it into a large trash cоntainer under the bar. As the other officers entered the lounge, Quillen directed them to the trash container. She then accompanied defendant into the ladies’ restroom and conductеd a personal search of defendant. As they returned to the bar area, Officer Glenn McLendon retrieved a small white plastic bottle containing twenty-one yellow tablets and twenty-seven blue tablets approximately four inches from the top of the trash container. The contents of the bottle were sent to the state police crime laboratory for analysis, which revealed that the yellow tablets contained pentazocine. The blue tablets were found to be free of controlled dangerous substances.
SUFFICIENCY OF EVIDENCE
Defendant argues the evidence was insufficient to support the inference that she possessed pentazocine with the intent to distribute.
The proper procedural vehicle for raising the issue of the sufficiency of the evidencе is by motion for a post-verdict judgment of acquittal.
In order to support a conviction, the state must prove beyond a reasonable doubt that defendant possessed the drug with the intent to distribute it. The state is not required to prove actual possession, but needs only to show the defеndant exercised dominion or control over the illegal substance. State v. Walker, 369 So.2d 1345 (La.1979). In order to prove the element of intent to distribute, the state must prove defendant‘s subjective specific intent to pоssess in order to distribute. State v. Elzie, 343 So.2d 712 (La.1977).
The intent to distribute may be inferred from the surrounding circumstances. The trier of fact may look to how the substance was packaged, the quantity of
In the instant case, the state has shown only that defendant was in possеssion of twenty-one tablets of pentazocine. The state offered no evidence that defendant ever distributed or attempted to distribute pentazocine. Although the evidence indicаtes the blue tablets recovered with the pentazocine may have been pyribenzamine, the state did not prove the tablets were packaged in “sets,” (the normal method of distribution in the illiсit wholesale market). See, e.g., State v. Harvey, 463 So.2d 706 (La.App. 4th Cir.1985); State v. Howard, 449 So.2d 69 (La.App. 4th Cir. 1984). The tablets found were sufficient to make twenty-one sets, an amount sufficient to distribute. See, e.g., State v. Harvey, supra. However, the state presented no evidence to establish that the amount was sufficiеnt to create a presumption of intent to distribute. Nor did the state offer expert or other testimony that such an amount is inconsistent with personal use only. No evidence of other parаphernalia necessary to market or package “T‘s and blues” for distribution to others was introduced. See State v. House, 325 So.2d 222 (La.1975). Finally, the state‘s evidence affirmatively established defendant was employed (allegеdly as manager) by the Disco Lounge. Accordingly, we find the state has not proven all of the elements of the offense of possession with intent to distribute pentazocine beyond a reasonable doubt.
However, the discharge of a defendant is neither necessary nor proper when the evidence supports a conviction on a lesser and included offense which is a legislаtively authorized responsive verdict.
The conviction of possession of pentazocine with intent to distribute is set aside, and the matter is remanded to the trial court with instructions to entеr a judgment of guilty of possession of pentazocine and to sentence defendant accordingly.
PATENT ERRORS
The transcript of the hearing on the motion to suppress indicates that the bill of information was amended to charge defendant with the possession of pentazocine with intent to distribute and that, at that time, her counsel entered a plea of not guilty to the amended bill. The transcriрt does not indicate that defendant was present. However, no objection was raised as to the absence of defendant at rearraignment. Hence, we find defendant‘s presence was waived.
For the above reasons, defendant‘s conviction and sentence are set aside, and the cause is remanded to the district court with instructions to enter a judgment of guilty of possession of pentazocine and to sentence defendant accordingly.
CONVICTION AND SENTENCE SET ASIDE, REMANDED TO ENTER JUDGMENT OF GUILTY AND SENTENCING.