STATE of Louisiana, Appellee, v. Douglas LOWERY, Appellant.
No. 24191-KA
Court of Appeal of Louisiana, Second Circuit
December 2, 1992
Rehearing Denied January 14, 1993
609 So. 2d 1125
Before MARVIN, SEXTON and NORRIS, JJ.
Richard Ieyoub, Atty. Gen., Jerry L. Jones, Dist. Atty., Marcus R. Clark, Asst. Dist. Atty., for appellee.
SEXTON, Judge.
The defendant, Douglas Lowery, was charged by bill of information with one count of possession of marijuana with the intent to distribute, a violation of
FACTS
On January 16, 1991, Louisiana State Trooper Jackie Coleman observed a 1987 GMC pickup truck, driven by the defendant, Douglas Lowery, speeding on I-20 in Monroe, Louisiana. Officer Coleman gave pursuit and stopped the vehicle for speeding. As he walked beside the vehicle, Officer
Officer Coleman asked the defendant, who appeared extremely nervous, for his license and registration papers. Defendant was able to produce his North Carolina driver‘s license, but he was unable to produce the registration papers. Officer Coleman called in the defendant‘s name for a computer check, which revealed that he had several prior drug-related convictions. The defendant then found the registration papers to the vehicle which showed the truck was registered to Jonathan Barfoot. The defendant claimed that Mr. Barfoot was his nephew. The officer became more suspicious when the defendant could not remember the name of the town that he was coming from. Officer Coleman then wrote the defendant a citation for speeding and asked him to consent to a search of the truck.
The defendant agreed to the search and signed a consent to search form. Officer Coleman then called for a backup, and when Officer Gary Beasley arrived, the search began. In the cab of the truck, Officer Coleman found two motel keys and receipts to two motels in Maryland. The officer also found a partially smoked marijuana cigarette in the ashtray. In the camper, Officer Coleman found 23 bundles of marijuana, which were packaged in garbage bags and cellophane. Also found in the rear of the truck was an empty briefcase with broken locks. The defendant was immediately placed under arrest and a search of his person revealed $562 in cash.
Narcotics officer George Johnston was then called to the scene. The marijuana in the truck was then transported back to state police headquarters. The marijuana was tagged and its total weight was determined to be 271 pounds. Officer Johnston then interviewed the defendant, who admitted the marijuana belonged to him. When asked if there were other people involved, the defendant stated: “You have me. I‘ll do the time. I‘m not going to help you get the other people involved in this.”
TESTIMONY OF THE OFFICERS
On appeal, defendant contends the trial court erred in allowing state police officers to testify as to other cases in which they participated relative to narcotics pricing, trafficking, and packaging. Defendant contends that the testimony of the officers is irrelevant and should not have been allowed into evidence. Defendant asserts that the testimony concerning previous narcotics cases unfairly tainted the jury to the evidence at hand, which lead to him being improperly convicted.
In the instant case, the only police officer who testified to other drug-related cases in which he was involved was Officer Johnston. Officer Johnston testified about his work as a undercover agent, the value of marijuana in Louisiana and other states, the estimated street value of the marijuana in question, his narcotics investigations in other states, and the difference between homegrown marijuana and that grown in other states.
Defense counsel objected to the foregoing testimony based upon the lack of foundation and relevancy. The trial court overruled the objection.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. State v. Digilormo, 505 So.2d 1154 (La.App. 3d Cir. 1987), writ denied, 511 So.2d 1153 (La. 1987).
A review of the record indicates that all of Officer Johnston‘s testimony concerning his prior narcotics cases was based on personal knowledge he had acquired from his 11 years as a law enforcement officer. Furthermore, the testimony
SUFFICIENCY OF THE EVIDENCE
Defendant also contends that there was insufficient evidence to support either of his convictions. As to his conspiracy conviction, defendant contends there is a lack of evidence of another person‘s involvement, therefore, there could be no conspiracy. Defendant also asserts that there was insufficient evidence to support the conviction for possession with intent to distribute because it was based on a theory of what the police officers thought he would do with the “moderate” amount of marijuana found in his possession. Defendant contends that no proof of his specific intent to distribute the marijuana was offered into evidence. Accordingly, defendant contends that both of his convictions should be reversed.
The standard of review for sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the state proved the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984); State v. Hobbs, 494 So.2d 1246 (La.App. 2d Cir. 1986). Furthermore,
We first consider defendant‘s complaints about his conviction for conspiracy to distribute marijuana. Criminal conspiracy is defined in
A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing a crime; provided that an agreement or combination to commit a crime shall not amount to criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
In a conspiracy, it is the combination of at least two minds for an unlawful purpose which is the foundation of the offense. Conspiracy imports a corrupt agreement between not less than two people with guilty knowledge on the part of each. The clear purpose of
The state‘s burden in proving the defendant committed conspiracy to distribute marijuana is to show that an agreement or combination of two or more persons existed for the specific purpose of distributing marijuana and that one or more parties to the agreement did an act in furtherance of the agreement‘s object. State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La. 1991). The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Perez, supra.
We disagree. We conclude that under the standards of Jackson v. Virginia, supra, the evidence is insufficient to prove beyond a reasonable doubt that the defendant was engaged in a conspiracy to distribute marijuana.
The evidence reflects that the defendant had a relatively large amount of marijuana and that he had stayed in two motels in the process of traveling across Louisiana from North Carolina to Texas. The only evidence remotely suggesting the involvement of others was the statement by the defendant to Officer Johnston. Presumably, the relatively large amount of marijuana was obtained from an unknown person. Presumably the defendant also intended to transfer it to one or more unknown persons. However, any such party or parties are only speculative.2
It is essential to a conspiracy that there be a joining of the minds to accomplish a concerted action which has an unlawful purpose. See State v. D‘Ingianni, 217 La. 945, 47 So.2d 731 (1950). Criminal intent to commit a specific offense must exist in at least two minds. State v. Joles, supra. The fact that this defendant apparently obtained this marijuana from someone else who knew, because of the nature of the business of distributing marijuana, that the defendant was likely to transfer it to one or more other persons unknown to the person from whom the defendant obtained the marijuana is all that can be determined from the instant evidence. This is not a combination of minds to accomplish a concerted unlawful purpose sufficient to establish the offense of conspiracy to distribute marijuana.
In other words, the fact that the person from whom the defendant obtained the marijuana may have presumed that the defendant intended to distribute it to others does not amount to a conspiracy to distribute marijuana between the two. There must be sufficient evidence that the defendant‘s supplier specifically intended for the defendant to do certain and specific acts with the marijuana as part of a joint enterprise. The instant evidence does not rise to this level. Accordingly, the defendant‘s conviction for the offense of conspiracy to distribute marijuana is reversed and set aside.
As to defendant‘s conviction for possession with intent to distribute marijuana, the test for determining whether intent to distribute exists in a particular case includes five factors which should be considered in evaluating the existence of intent to distribute: (1) packaging in a form usually associated with the distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of substance such as to create a presumption of intent to distribute; (4) an amount inconsistent with personal use; and (5) the existence of any paraphernalia. State v. House, 325 So.2d 222 (La.1975); State v. Winzer, supra. 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 the substance seized, and the presence of scales or other paraphernalia for drug use or packaging. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Winzer, supra. Testimony of street value and dosage units of the narcotic is also relevant to the issue of
In this case, Officer Johnston testified that the defendant readily admitted that the marijuana belonged to him. Officer Evans also testified that the defendant admitted ownership of the marijuana. There is no doubt that the defendant had possession of the 271 pounds of marijuana which was found in the back of the truck that he was driving.
Officer Johnston testified that the marijuana was packaged in two ways. Eighteen bundles of marijuana were compressed and wrapped with clear cellophane, while there were also five garbage bags filled with marijuana. Officer Coleman testified that the packaging of the marijuana was consistent with drug trafficking. Two hundred seventy-one pounds of marijuana is a large amount which creates a presumption of intent to distribute. This large amount of marijuana is also inconsistent with personal use. The arresting officers also found $562 in cash on the defendant‘s person.
It is clear the defendant had the subjective intent to distribute the marijuana. Considering all the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the state proved the elements of possession with intent to distribute beyond a reasonable doubt. This conviction is affirmed.
EXCESSIVE SENTENCE
In his last assignment of error, the defendant contends the trial court erred by imposing excessive sentences. The defendant contends there has been no evidence introduced that would indicate that he is the worst kind of offender and that improper weight was given to prior convictions in the determination of his sentences. Since defendant‘s conspiracy conviction has been vacated, we will only address these arguments with respect to defendant‘s sentence for possession with intent to distribute.
The Felony Sentencing Guidelines, which became effective on January 1, 1992, and are a part of the Louisiana Administrative Code, are applicable in the instant case since the defendant was sentenced on January 8, 1992.4 In determining the appropriate grid cell under which the defendant should have been sentenced under the Felony Sentencing Guidelines, we note that possession with intent to distribute marijuana is a Level 5 offense.5
Defendant‘s criminal history index can be computed from the presentence investigation report which shows that the defendant had separate convictions in 1973 for possession of marijuana with the intent to distribute and maintaining a dwelling in which marijuana was used. Defendant also had 1981 convictions for theft of a tractor and manufacturing marijuana. When the point values of these crimes are reduced by the crime-free time factor, we note that defendant has a Class B criminal
The trial court‘s sentence obviously exceeds the designated sentencing range under the Felony Sentencing Guidelines. However, § 209(A) of the Felony Sentencing Guidelines allows for departures from the designated sentencing range and provides, in pertinent part:
A. Procedures for Departure
....
3. The court should depart from the designated sentence range when sufficient aggravating or mitigating circumstances are present significantly to differentiate the case from the typical case arising under the offense of conviction.
4. When departing from the designated sentence range, the court shall:
a. pronounce a sentence which is proportional to the seriousness of the offense and the offender‘s criminal history; and
b. state for the record the reasons for the departure which shall specify the mitigating or aggravating circumstances, and the factual basis therefor.
5. Reasons for departure from the designated sentence range are appropriate only when such reasons are based on mitigating or aggravating circumstances.
Section 209(B) then lists aggravating circumstances which allow departure from the designated sentencing range.
The trial court stated that the nature of the defendant‘s crime and the record of his criminal history are so severe and aggravating, that they support the imposition of the near maximum sentence. The court noted that the marijuana in this case posed a great risk to untold numbers of unknown victims and stated that the defendant should have known better than to have been involved in drugs based on his prior incarceration and parole. Finally, the court noted that the defendant‘s own greed for money was a factor in his conviction for possession with intent to distribute. Thus, since this was defendant‘s third felony conviction for this same type of offense, along with the large amount of marijuana found in his possession, the trial court departed from the designated sentencing range and sentenced the defendant to 28 years of incarceration.
Some of the reasons given by the trial judge for his upward departure are not aggravating circumstances under the guidelines. The nature of possessing drugs, the defendant‘s criminal history, that drugs pose a great risk to many victims, and that the defendant should have known better are factors that have already been weighed under the guidelines in ranking the seriousness of crimes, establishing the criminal history classes of offenders, and in setting the penalty ranges on the guidelines grid. They are not proper aggravating circumstances for a departure from the designated grid range because they are factors present in a typical case. Felony Sentencing Guidelines § 103.
15. The offense was a controlled dangerous substance offense and the offender obtained substantial income or resources from ongoing drug activities.
....
19. Any other relevant aggravating circumstances which distinguish the case from the typical cases of the offense of conviction.
Felony Sentencing Guidelines § 209(B)(15) is designed to allow an upward departure for a large scale drug offender who receives substantial profit from drug activities that are ongoing, as is the obvious circumstance in the instant case. Felony Sentencing Guidelines § 209(B)(19), the catch-all provision for aggravating circumstances, is pertinent because of our view that the sentencing guidelines do not contemplate that transporting 271 pounds of marijuana across state lines is a typical case of possession with intent to distribute.
Once an aggravating factor is found to be present to a significant degree justifying an upward departure, the guidelines do not specify the sentence to be imposed, but state the judge shall “... pronounce a sentence which is proportional to the seriousness of the offense and the offender‘s criminal history.”8 Felony Sentencing Guidelines § 209(A)(4)(a). Said another way, if a departure from the guidelines is justified, the judge is free to pronounce a sentence commensurate to the circumstances of the case without consideration of the proportionality of the sentence to the guidelines.
While the court is mandated to consider the sentencing guidelines in determining the appropriate sentence to be imposed after conviction of a felony,
Here, the trial court, for the reasons it expressed, imposed a 28-year sentence at hard labor. In reviewing this sentence for excessiveness under the Louisiana Constitution, we conclude the sentence imposed is not grossly disproportional to the crime in light of the harm done to society, and our sense of justice is not shocked. State v. Richardson, 545 So.2d 714 (La.App. 2d Cir. 1989). The defendant has not demonstrated a manifest abuse of the wide discretion afforded the trial court in the sentence imposed. State v. Square, 433 So.2d 104 (La.1983); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir.1988). The sentence imposed is affirmed.
CONVICTION AND SENTENCE FOR CONSPIRACY TO DISTRIBUTE MARIJUANA REVERSED; DEFENDANT ORDERED DISCHARGED. CONVICTION AND SENTENCE FOR POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AFFIRMED.
Before MARVIN, SEXTON, NORRIS, LINDSAY and STEWART, JJ.
Rehearing denied.
Notes
In 1981, the defendant was convicted of theft of a tractor and the manufacture of marijuana. These crimes are a Level 5 and a Level 4 offense, respectively, and therefore worth 2 points apiece. The manufacture of marijuana conviction is similar prior criminal behavior, therefore .5 point is added. When the total of these points is reduced by the crime-free time factor, defendant‘s 1981 convictions add up to a total of 2.25 points. Therefore, defendant‘s total point value for his prior convictions is 4.75 points. Under the felony sentencing guidelines, defendant is therefore classified as a 5B offender.