|2The Jefferson Parish District Attorney filed a bill of information on January 10, 2007, charging defendant, Daniel Ronq-uille, with possession of cocaine, in violation of LSA-R.S. 40:967(C). 1 At the arraignment, defendant pled not guilty. On March 23, 2007, the trial court heard and denied defendant’s motion to suppress evidence. The matter thereafter proceeded to trial on May 10, 2007. After considering the evidence presented, the jury found defendant guilty of possession of cocaine.
On May 31, 2007, the trial judge sentenced defendant to five years to run consecutively with defendant’s sentence in another case. On the same date as sentencing, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender. After being advised of his rights, defendant, on July 27, 2007, admitted to the allegations in the multiple offender |3bill. The trial judge vacated defendant’s original sentence and then sentenced him to twenty years at hard labor without benefit of parole, probation, or suspension of sentence. In addition, the court ordered that twelve years of the sentence run consecutively and eight years run concurrently with the sentence defendant was already serving. On September 11, 2008, the trial court granted defendant an out-of-time appeal.
FACTS
On December 19, 2006, Deputy Paul Sperandeo of the Jefferson Parish Sheriffs Office was patrolling a high crime and narcotics area in Marrerro, Louisiana. At approximately 1:09 a.m., he initiated a traffic stop of a vehicle in which defendant was a passenger. Deputy Sperandeo approached the vehicle and asked the driver, Willis Granier, to exit and to produce a driver’s license, proof of insurance, and registration.
During the officer’s interaction with the driver, he observed that defendant became nervous, that he was visibly shaking, and that he kept looking over his shoulder at the officer. Based on these observations as well as the fact that there were other passengers in the car, Officer Sperandeo asked defendant to exit the vehicle. According to Deputy Sperandeo, defendant
At trial, defendant admitted to having a drug problem, but denied being in possession of crack cocaine on the day of the incident and claimed that the officer planted the cocaine to frame him. Defendant also testified that he was not nervous or shaking prior to his removal from the car because he did not have any crack cocaine; rather, he was merely playing a video game. Moreover, defendant testified that if he had possessed one little piece of crack cocaine, like the one shown in court, he would have swallowed it instead of dropping it in front of Deputy Sperandeo and risking arrest.
Willis Granier, the driver of the vehicle, testified for the defense. According to Granier, at the time of the stop, two of the female passengers were going into the neighborhood to try to buy crack cocaine; however, defendant was not interested in purchasing crack cocaine. Granier further testified that he did not see defendant drop anything when he exited the vehicle.
Debra Cloud, defendant’s girlfriend, testified that Deputy Sperandeo ordered defendant out of the car within a minute of their being stopped, handcuffed him, and searched his pockets. After all the other passengers were ordered out of the vehicle, Deputy Sperandeo thoroughly searched the vehicle and then returned to his vehicle and talked to another officer. Cloud testified that Deputy Sperandeo then searched the stopped vehicle a second time. During this second search, Deputy Sperandeo went to the passenger side of the vehicle, reached in, came out with what appeared to be a bag or envelope, shook it, and said, “Look what I found.”
| ¿ANDERS BRIEF
On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in
Anders v. California,
To comply with
Jyles,
appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but also his brief must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.”
State v. Jyles,
Defendant’s appellate counsel has asserted that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel has determined that the issue of whether there was sufficient evidence to convict the defendant of possession of cocaine does not present an arguable issue for appeal. In addition, appellate counsel notes that as part of his plea bargain, defendant received the minimum sentence that could be given; and therefore, he is legally precluded from arguing that his sentence is excessive.
Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. A review of the bill of information reveals that defendant was properly charged. In addition, a review of all minute entries reveals that defendant was present at all crucial stages of the proceedings, that the jury composition and verdict were correct, and that the sentence imposed was legal. Also, a review of all pleadings in the record, jury sheets, and all transcripts do not reveal any arguable basis for appeal.
Along with the appellate brief and a request for an error patent review, the appellate counsel has filed a motion to withdraw as attorney of record, which states that she sent defendant a letter to inform him that she had filed an Anders brief and that he has the right to file a supplemental brief. Additionally, this Court sent defendant a letter, by certified mail, informing him that an Anders brief had been filed and that he had until March 23, 2009, to file a supplemental brief. Defendant has filed a supplemental brief raising three assignments of error. We will now address the arguments raised by defendant.
JjPRO SE ASSIGNMENT OF ERROR ONE
In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him.
2
Defendant specifically contends that the State’s evidence presented through the testimony of one witness, Deputy Sperandeo, was insufficient to convict him of possession of cocaine, especially since the officer’s testimony had internal contradictions regarding where the cocaine fell, how many passengers were in the vehicle, and how many passengers were female. Defendant also suggests that Deputy Sperandeo planted the drug evidence in this case, as he had in a previous traffic stop. Defendant further notes that all of the defense witnesses
The standard for review of the sufficiency of the evidence on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
In order to support a conviction for possession of cocaine pursuant to LSA-R.S. 40:967, the State must prove beyond a reasonable doubt that the defendant was in possession of the cocaine and that he knowingly possessed it. The element of possession may be proven by showing that the defendant exercised either actual or constructive possession of the cocaine. Proximity to the drug or association with its possessor may establish a prima facie case of possession when colored by other evidence.
State v. Walker,
In the present case, Deputy Sperandeo testified that after initiating a traffic stop in a high crime and narcotics area, he noticed that defendant, a passenger, was sitting “extremely upright.” Then, as he was questioning the driver, defendant was extremely nervous and repeatedly looked over his shoulder at him. Later, he observed that defendant was physically shaking. Deputy Sperandeo testified that defendant made him feel unsafe; and therefore, he ordered defendant to exit the vehicle for officer safety. According to Deputy Sperandeo, he observed an off-white, rock-like item fall from defendant’s hands, as he exited the vehicle. The officer further stated that he never lost sight of the object, and he did not observe any of the other occupants of the vehicle move over to the area where defendant was seated. Deputy Sperandeo was positive that the object that he picked up was the exact same object that fell from defendant’s hand. Deputy Sperandeo testified that based on his training and experience, he immediately identified the white object that was dropped as consistent with crack cocaine. Officer Angelica, the forensic scientist, found that the object was positive for cocaine.
While the State presented the majority of its case through the testimony of Deputy Sperandeo, this Court has previously found that in the absence of internal contradiction or irreconcilable conflicts with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support the requisite factual finding.
State v. Wright,
PRO SE ASSIGNMENT OF ERROR TWO
In his second assigned error, defendant claims that his appellate record is
LSA-C.Cr.P. art. 914.1(A) states in pertinent part that “[t]he party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged.” Portions of the transcript that do not relate to anticipated assignment of errors shall not be furnished to a party for purposes of the appeal. LSA-C.Cr.P. art. 914.1(B). Consequently, the party making the motion for appeal bears the burden of furnishing the appellate court with a record of the trial proceedings needed for | l0review; and therefore, any inadequacy of the record is imputable to the appellant. Since an appellate court must render its judgment based upon the record filed on appeal, if transcripts, exhibits, or other documentation is missing and the appellant fails to act, there is no basis for the appellate court to determine that the trial court erred.
State v. Shaw,
In
State v. Sharp,
35,714 (La.App. 2 Cir. 2/27/02),
In the present case, the record reveals that prior to the granting of defendant’s out-of-time appeal, he filed a motion for production of the trial transcript, the sentencing transcript, and the jury instructions. In its order of July 31, 2008, the trial judge informed defendant that as the
PRO SE ASSIGNMENT OF ERROR THREE
In his final assigned error, defendant claims that the State withheld exculpatory evidence which showed the State’s only witness lied during his testimony. Specifically, defendant contends that the State withheld aerial photographs which were taken on December 19, 2006. Defendant contends that the outcome of the trial would have been different if he had access to the photographs because the jury would have seen that he was “sitting on the curb of the street and not under arrest and placed in a police unit” when the cocaine was found, as testified to by all the defense witnesses. Defendant asserts that the jurors would have seen that Deputy Speran-deo took the cocaine out of his police car and planted 112it on him; and therefore, the jury would not have given Deputy Speran-deo’s testimony any weight.
The record does not support defendant’s argument. On March 23, 2007, over a month before trial, the State filed a notice of the documents that it submitted and provided to the defense. This document specifically noted that the aerial photographs taken on December 19, 2006, were available for the defense to review. Therefore, the State did not either willfully or inadvertently suppress the aerial photographs that defendant contends would have impeached Deputy Sperandeo. Accordingly, this assigned error is without merit.
ERROR PATENT DISCUSSION
We have also reviewed the record for errors patent and have found none. LSA-C.Cr.P. art. 920;
State v. Oliveaux,
Based on the foregoing discussion, we find that defendant’s pro se arguments are without merit. Moreover, because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we grant counsel’s motion to withdraw as attorney of record.
Accordingly, defendant’s conviction and sentence are hereby affirmed.
CONVICTION AND SENTENCE AFFIRMED.
Notes
. The bill of information also charged defendant with aggravated burglary, in violation of LSA-R.S. 14:60. However, that count of the bill was dismissed by the State on April 9, 2008.
. Defendant's appellate counsel notes that a claim based on the sufficiency of the evidence to convict defendant of possession of cocaine does not present an arguable issue for appeal.
. A copy of the instructions read to the jury is included in the record. The trial judge signed and dated the jury instructions on the date of defendant's trial.