| ¡¿Defendant, Daryl A. Smith aka Daryl Vinet, appeals his convictions, challenging the sufficiency of the evidence presented at trial. For the reasons that follow, we affirm.
Procedural History
On October 19, 2010, the Jefferson Parish District Attorney filed a five-count bill of information charging defendant, Daryl A. Smith aka Daryl Vinet, with (1) possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1;
On December 1, 2010, the State amended the bill of information to dismiss the charges for (2) possession of a handgun while in possession of cocaine, in |sviolation of La. R.S. 14:95(E) and (3) possession of a handgun while in possession of heroin, in violation of La. R.S. 14:95(E). That day, defendant proceeded to trial before a twelve-person jury, which found him guilty as charged of the remaining three counts of the bill of information.
On December 9, 2010, the trial court sentenced defendant as a felon in possession of a firearm to 15 years imprisonment in the Department of Corrections; for possession with intent to distribute heroin to 30 years imprisonment with the first five years without benefit of parole, probation, or suspension of sentence; and, for possession with intent to distribute cocaine to 30 years imprisonment with the first two years without benefit of parole, probation, or suspension of sentence.
Additionally, on December 9, 2010, the State filed a multiple offender bill of information, charging defendant as a fourth felony offender. On the same date, defendant stipulated to being a fourth felony offender. The trial judge thereafter vacated defendant’s original sentence for possession with intent to distribute heroin and imposed an enhanced sentence of 30 years without benefit of probation or suspension of sentence with the first five years without any benefits. Next, the trial judge vacated defendant’s original sentence for possession with intent to distribute cocaine and imposed an enhanced sentence of 30 years without benefit of probation or suspension of sentence with the first two years without any benefits.
On February 23, 2011, defendant filed a motion for an out-of-time appeal, which was subsequently granted. This appeal follows.
In late September of 2010, Detective Tim Anclede of the Jefferson Parish Sheriffs Office (“JPSO”) began an investigation into illegal drug activity, which included surveillance of a residence at 8009 Macon Street in Jefferson Parish. Daryl Smith was seen entering and exiting the residence numerous times. After a few days, Detective Anclede requested and obtained a warrant to search the residence.
On October 4, 2010, Detective Anclede and other members of JPSO, including Detective Keith Locascio, executed the search warrant. After the officers entered the residence, they found defendant asleep in one of the bedrooms. After Detective Locascio advised defendant of his Miranda rights, Detective Anclede advised defendant that JPSO would be bringing a drug-detecting canine to help in executing the search warrant. Defendant advised that he had a weapon under the mattress where he had been sleeping.
When the drug-detecting dog entered that bedroom, the dog alerted, or “hit,” on a white jacket in the closet, a pair of black jeans on the floor, and a small measuring scale with white powder residue on a shelf near the bed. The dog did not alert in any other room of the residence.
Based on the alerts in that bedroom, JPSO seized from the pocket of a white jacket in the closet: (1) a clear plastic bag of white substance, which was later determined to be cocaine and (2) a plastic bag of another substance, which was later determined to be heroin. Further, JPSO also seized from a pair of black jeans on the floor next to defendant’s bed: (3) $1330.00 in cash, mainly $20.00 bills; (4) [5two small, clear plastic bags with a white substance, later determined to be cocaine; and (5) a wallet with defendant’s State identification card.
Next, the officers seized (6) a small, digital scale with a (7) razor blade on it; (8) small, clear sandwich bags; (9) two cell phones; (10) aluminum foil;
Detective Anclede testified that, when defendant was asked about the money in the pocket, he explained that he works for friends and gets paid in cash. In a taped statement given after defendant waived his constitutional rights, defendant admitted that the two handguns; 8.3 grams of cocaine; and 8 grams of heroin belonged solely to him.
Marcel Folse of the Jefferson Parish Sheriffs Office Crime Lab, who was accepted as an expert in the field of controlled dangerous substance analysis, specifically cocaine and heroin, testified that the white powder in a clear plastic bag was cocaine, with a gross weight
Lieutenant Daniel Jewell, Jr. of the JPSO was accepted as an expert in the field of narcotics investigation. In this capacity, he testified that three primary factors are used to evaluate whether an offender is charged with distribution: [ (¡quantity, value, and packaging. In his opinion, the amount of cocaine and heroin seized in this case were consistent with distribution, rather than personal use.
Further, the State presented certified conviction packets of two previous convictions, which matched fingerprints taken from defendant on the morning of trial by an expert in fingerprint analysis. Based on the foregoing, the jury found defendant guilty as charged of being a felon in possession of a firearm; possession with intent to distribute heroin; and possession with intent to distribute cocaine.
Law and Analysis
On appeal, defendant argues that the evidence presented at trial was insufficient to support his convictions of possession of a firearm by a convicted felon, possession with intent to distribute cocaine, and possession with intent to distribute heroin. The State responds that the evidence presented was sufficient to convict defendant of these offenses.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia,
| /‘Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton,
First, defendant challenges the evidence relating to his conviction for felon in possession of a firearm. In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) an absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. La. R.S. 14:95.1; State v. Jones,
Here, defendant does not challenge the prior felony conviction or the requisite ten-
Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1. Constructive possession is sufficient to satisfy the | ^element of possession. Jones, supra. A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. Id.
Courts have regularly found that a gun placed under the mattress of a bed where the defendant sleeps is subject to his dominion and control. State v. Roundtree, 44,817 (La.App. 2 Cir. 3/3/10);
In the present case, defendant advised the police prior to the discovery of the firearms that there was a gun under his mattress. Further, the officers found two loaded firearms under the mattress where defendant had been sleeping when the police opened the door to the bedroom. As such, the jury could have found that defendant was in constructive possession of the firearms found in his bedroom and knowingly possessed the firearms in light of the location of the firearms and defendant’s admission to his knowledge of at least one weapon prior to its discovery. Further, the jury could have believed that defendant’s intention to possess the weapons was related to the narcotics and amount of cash found in the bedroom.
Defendant argues his confession alone cannot support this conviction and makes arguments regarding the law of corpus delicti. “In the trial of every criminal case the State, to warrant a legal conviction of an accused, must prove the corpus delicti, or the fact that a crime has been committed. Without such proof no conviction will be permitted to stand.” State v. Brown,
The corpus delicti rule does not require that independent evidence corroborate every element of the crime admitted in the accused’s statement, where its general reliability has been corroborated. Therefore, the corroborating evidence need only tend to show the major or essential harm involved in the offense charged, and not all of the elements technically distinguished. State v. Schnyder,
In the present case, the State presented evidence, independent of defendant’s statements regarding the firearms, establishing the fact that a crime was committed. A
Next, defendant challenges his convictions for possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A), and possession with intent to distribute heroin, in violation of LSA-R.S. 40:966(A). To prove these offenses, the State was required to show defendant knowingly and intentionally possessed the drug, and that he did so with the specific intent to distribute it. See State v. Jones, 11-8 (La.App. 5 Cir. 11/15/11);
Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. State v. Major, 03-3522 (La.12/1/04);
The mere presence in an area, however, where drugs are found or mere association with the person found to be in possession of the drugs is insufficient to constitute constructive possession. The question of possession hinges on the particular facts of each case. Factors to be considered in determining whether a defendant exercised sufficient dominion and control to constitute constructive possession include the following: (1) the defendant’s knowledge that illegal drugs were in the area; (2) the defendant’s relationship with the person found to be in |n actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. Id.
La. R.S. 14:10(1) defines specific criminal intent as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” The intent to distribute may be established by proving circumstances surrounding the defendant’s possession, which give rise to reasonable inferences of intent to distribute. Jones,
Drug paraphernalia such as a scale indicates that the defendant possessed with intent to distribute. State v. Trahan,
With respect to his conviction for possession with intent to distribute cocaine, defendant argues that the State failed to produce sufficient evidence to link him to the cocaine found on the scene. Although defendant suggests that the cocaine in the bedroom was not linked to him, the State presented evidence that the bedroom where the cocaine was discovered belonged to defendant, even though defendant argued he did not live at this address. Further, the cocaine was found in a jacket pocket in a closet full of clothes that defendant admitted belonged to him. Also, cocaine was found in the pocket of a pair of jeans that also contained defendant’s wallet and state identification card. Further, defendant admitted in his statement that the cocaine, which was approximately 8.3 grams, belonged to him.
The State presented evidence of previous attempts to distribute. In fact, the State presented evidence regarding defendant’s prior convictions of two counts of possession with intent to distribute cocaine in case number 01-2327. Further, the State presented evidence through expert testimony that the cocaine found in the bedroom was consistent with distribution and inconsistent with personal use, after considering the quantity, value, and packaging of the cocaine. The expert also testified regarding the paraphernalia, which evidences an intent to distribute.
Lieutenant Jewell explained that nine grams of powder cocaine would cost about $350.00 or $400.00 and would be much more than the amount generally obtained by an addict for personal consumption. He also testified that, when the police come across a user, the user generally possesses devices, such as needles, 113spoons, metal objects, bottle caps, straws, a rolled up piece of paper, or a dollar bill, to ingest the drugs they obtain.
Lieutenant Jewell explained that, if a person was selling cocaine, the police
With regard to this case, Lieutenant Jewell testified that, in his opinion, the fact that two individual packages of drugs in two different pants’ pockets “is a possibility of distribution.” Further, large amounts of currency in small bills, multiple cell phones, and weapons used to protect the “cache” of drugs and money are indicative of intent to distribute.
Lieutenant Jewell opined that a “very wealthy person” might have the resources to obtain eight grams of cocaine for personal use but examples of that are “few and very far in between.” He also explained that typically people who possess drugs solely for personal use do not possess weapons because they usually do not have the money to buy or maintain the weapon or would sell the weapon for the money to buy drugs.
In the present case, the State presented evidence that defendant had been convicted of possession with intent to distribute cocaine in 2002. Further, in the same bedroom where more than eight grams of cocaine was discovered, the police also seized a large amount of currency; firearms; multiple cell phones; sandwich bags; and a scale with white powder residue.
| i/The jury, by its verdict of guilty, obviously accepted Lieutenant Jewell’s testimony that the evidence surrounding the cocaine was consistent with distribution and rejected the possibility that the cocaine was for personal use. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones,
It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. As such, we find, after viewing the evidence presented at trial in the light most favorable to the prosecution, a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant was guilty of possession with intent to distribute cocaine.
Finally, with respect to his conviction for possession with intent to distribute heroin, defendant contends that the State failed to prove the requisite intent and possession. Defendant argues that, without his statement, all that is left is his mere presence in the area where the drugs were found, which is insufficient.
Here, the State presented evidence that heroin was found in a jacket in the closet of defendant’s bedroom. Defendant admitted that the clothes in this closet belonged to him. Further, after the heroin was discovered, defendant admitted that the heroin belonged to him. Defendant had access to the area where the drugs were located in his bedroom and was in the bedroom when the officers arrived at the residence for execution of the search warrant.
Further, the circumstances surrounding defendant’s possession of the heroin give rise to reasonable inferences that defendant had the specific intent to distribute |15the heroin. The State presented evidence through expert testimony that the heroin found in the bedroom was
Lieutenant Jewell testified that he would expect to see money and sometimes multiple cell phones as well as firearms or weapons to protect the drugs and money. Lieutenant Jewell testified that with heroin, eight grams would be very expensive. He explained that this drug was more addictive, more volatile, and more expensive. He believed that eight grams of heroin would cost between $800.00 and $1250.00. He testified that with personal use of heroin, he would look for needles and cooking devices. He explained that, for distribution of heroin, they look for paraphernalia such as plastic baggies and a small, square piece of foil, which is often used for a $20.00 or $25.00 “foil.” Much of the currency found in defendant’s bedroom was $20.00 bills.
When asked about eight grams of heroin, Lieutenant Jewell said he definitely would not consider that amount to be for personal use. He explained that it was expensive and that it took a toll on a body. Although Detective Anclede testified that none of the items such as.the scale, razor blade, aluminum foil, or sandwich bags were illegal by themselves, he also testified that usually such items are kept in the kitchen.
The jury, by its verdict of guilty, obviously accepted Lieutenant Jewell’s testimony that the evidence surrounding the heroin was consistent with distribution. Further, the jury was instructed as to the law and obviously found that there was more evidence than defendant’s mere association with the bedroom in which the heroin was found.
| j (¡Defendant again makes the argument that his statement alone cannot support his conviction. However, there was independent evidence of the crime without defendant’s admission that the narcotics belonged to him. The narcotics were found in a bedroom established to be his. Defendant was found to be in possession of the narcotics, even without his admission that it belonged to him. Also, defendant’s statement did not admit his intent to distribute.
As such, we find, after viewing the evidence presented at trial in the light most favorable to the prosecution, that a rational trier of fact could have concluded, beyond a reasonable doubt, that defendant was guilty of possession of a firearm by a convicted felon, possession with intent to distribute cocaine, and possession with intent to distribute heroin. Accordingly, defendant’s convictions are affirmed.
Errors patent
As is our practice pursuant to La. C.Cr.P. art. 920, we have reviewed the record for errors patent. We find none that require correction.
Conclusion
For the foregoing reasons, defendant’s convictions are affirmed.
AFFIRMED
Notes
. The bill of information reflects that defendant had been previously convicted of possession of cocaine in case number 02-6613 in Division "B” of the 24th Judicial District Court.
. When sentencing defendant, the trial judge stated defendant’s sentences were to be served in the custody of the "Department of Corrections.” Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance,
. The identification with defendant’s name found in the wallet reflected defendant’s address as 1359 South Dilton Street.
. Detective Anclede testified that aluminum foil was consistent with narcotics trafficking, especially heroin.
. Folse explained that gross weight includes the substance and packaging.
. In Johnson, the jury was faced with conflicting testimony as to whether this room belonged to the defendant and as to whether the defendant even lived at this residence.
. Lieutenant Jewell did explain that a razor blade could be used for personal consumption if it was used to cut it down into lines to snort it or to break it down to smaller amounts to ingest.