Opinion
2016 KA 1121
02-17-2017
STATE OF LOUISIANA v. TERRANCE SPENCER
Camille A. Morvant, II District Attorney Rene' C. Gautreaux Assistant District Attorney Thibodaux, Louisiana Counsel for Appellee State of Louisiana Lynden J. Burton New Iberia, Louisiana And Paul R. Brown Houma, Louisiana Counsel for Defendant/Appellant Terrance Spencer
NOT DESIGNATED FOR PUBLICATION On Appeal from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana
No. 511,339 Honorable Christopher J. Boudreaux, Judge Presiding Camille A. Morvant, II
District Attorney
Rene' C. Gautreaux
Assistant District Attorney
Thibodaux, Louisiana Counsel for Appellee
State of Louisiana Lynden J. Burton
New Iberia, Louisiana And Paul R. Brown
Houma, Louisiana Counsel for Defendant/Appellant
Terrance Spencer BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. McCLENDON, J.
Defendant, Terrance J. Spencer, was charged by bill of information with possession with intent to distribute a Schedule I controlled dangerous substance (marijuana), a violation of LSA-R.S. 40:966A(1) (count one), and illegal carrying of a weapon while in possession of a controlled dangerous substance, a violation of LSA-R.S. 14:95E. He entered a plea of not guilty. Following a jury trial, defendant was found guilty as charged on both counts. Defendant filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. On count one, the trial court sentenced defendant to five years at hard labor; on count two, the trial court sentenced defendant to five years at hard labor, without the benefit of parole. The trial court ordered these sentences to run concurrently. Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm the convictions and sentences.
While not explicitly stated by the trial court, the sentence on count two is also to be served without the benefit of probation or suspension of sentence. See LSA-R.S. 14:95E & 15:301.1A.
FACTS
On the evening of June 5, 2012, several officers with the Thibodaux Police Department and Lafourche Parish Sheriff's Office joint narcotics task force served an arrest warrant on defendant at his home in Thibodaux. The officers made contact with defendant at the door of his residence and placed him under arrest. Upon taking defendant into custody, the officers smelled an odor of marijuana emanating from the residence. Thibodaux Police Corporal Corey Brooks spoke with defendant's mother (Dona Nora), advised her that defendant was under arrest, and asked for consent to search the residence. Ms. Nora, who also lived at the residence, signed a consent-to-search form granting the officers permission to search the home. In an ensuing search of defendant's bedroom, the officers recovered a bag containing 148.5 grams of suspected marijuana and a handgun.
Defendant testified at trial that the marijuana and handgun did not belong to him. He stated that he left his ex-girlfriend alone in his bedroom while he went to the store and a nearby residence with his neighbor. He also testified that the handgun belonged to a friend, for whom he was making repairs to the weapon.
The State presented rebuttal evidence from Corporal Brooks who testified that defendant, after being informed of his Miranda rights, admitted to owning the marijuana and handgun. According to Corporal Brooks, defendant said he had the gun for protection on the streets in the event anyone tried to rob him. Corporal Brooks testified that when he asked defendant why he sold drugs, defendant replied, "It's hard out here in the streets. I got to do what I have to do." During his own testimony, defendant denied making these statements.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
SUFFICIENCY OF THE EVIDENCE
When issues are raised on appeal as to both sufficiency of evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). In his second assignment of error, defendant contends that the evidence presented at trial was insufficient to support his conviction on count one, for possession with intent to distribute marijuana. He argues that the State failed to prove his ownership of the drugs and any intent to distribute them.
Defendant does not challenge on appeal the sufficiency of the evidence related to his conviction on count two. Therefore, we do not address this issue.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
As applicable here, it is unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance classified in Schedule I. LSA-R.S. 40:966A(1). Marijuana is a controlled dangerous substance classified in Schedule I. See LSA-R.S. 40:964, Schedule I C(19). It is undisputed that the substance recovered from defendant's residence was marijuana.
The State is not required to show actual possession (or ownership) of drugs by a defendant in order to convict. Constructive possession is sufficient. A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, regardless of whether it is in his physical possession. Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. However, the mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located is insufficient to support a finding of constructive possession. See State v. Smith, 03-0917 (La.App. 1 Cir. 12/31/03), 868 So.2d 794, 799.
A determination of whether there is "possession" sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. Smith, 868 So.2d at 799.
Intent to distribute may be inferred from the circumstances. Factors useful in determining whether the State's circumstantial evidence is sufficient to prove intent to distribute include: (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant's actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. In the absence of circumstances from which an intent to distribute may be inferred, mere possession of drugs is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. For mere possession to establish intent to distribute, the State must prove the amount of the drug in the possession of the accused and/or the manner in which it was carried is inconsistent with personal use only. The presence of large sums of cash is also considered circumstantial evidence of intent to distribute. Smith, 868 So.2d at 800.
In the instant case, the State presented the testimony of three officers who were involved in defendant's arrest and the subsequent search that led to the instant charges and convictions. All three officers testified similarly.
The arrest warrant the officers served on defendant was for an incident where defendant was alleged to have sold marijuana to a confidential informant in a controlled buy. This instance of alleged distribution occurred on March 19, 2012. The video of this transaction taken by the confidential informant was played for the jury at trial, and it clearly showed the face of the individual alleged to have distributed the marijuana on that occasion. Defendant testified at trial that he had never sold marijuana to the confidential informant, and he offered the names of other individuals who might have had access to the vehicle used in the alleged drug transaction.
There is no explicit testimony in the record as to whether defendant's face is the one depicted on the video.
The three officers also testified that, in executing the arrest warrant, they made contact with defendant at the door of his residence. In contrast, defendant testified that he encountered the police officers as he was walking near the steps of his residence, on his return from a neighbor's home. Defendant also testified that he knew nothing about the marijuana in his bedroom, that he had left his ex-girlfriend in the bedroom while he was with a neighbor, and that he had not been back inside his residence since leaving to meet up with his neighbor. Defendant admitted on cross- examination that he had approximately $770.00 in cash on him when he was arrested, but he explained that $550.00 of that money was for his ex-girlfriend's rent payment.
Finally, on rebuttal, the State presented evidence from Corporal Brooks that defendant had admitted to owning the marijuana and handgun and that he further explained his actions, stating, "It's hard out here in the streets. I got to do what I have to do." This rebuttal testimony was presented to counter defendant's assertions that he had made no statements to the police following his arrest.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.
Viewed in the light most favorable to the State, the evidence establishes that the police officers recovered a substantial quantity of marijuana from defendant's bedroom, as well as a large sum of money from defendant's person. Furthermore, the State presented evidence that defendant had previously engaged in the distribution of marijuana to a confidential informant. Finally, Corporal Brooks testified that defendant admitted to possessing the marijuana and at least implicitly admitted to having distributed it in the past.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdicts in this case reflected the reasonable conclusion that defendant was in possession of marijuana and that he possessed the marijuana with the intent to distribute it. In finding defendant guilty, the jury clearly rejected the defense's theories of innocence, including the claim that the marijuana belonged to defendant's ex-girlfriend and the claim that the marijuana was intended only for personal use. See Moten, 510 So.2d at 61. In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 14-2295 (La. 1/27/16), ___ So.3d ___, ___ (per curiam).
After a thorough review of the record, we find that the evidence supports the jury's unanimous verdict finding defendant guilty of possession with intent to distribute marijuana. We are convinced that viewing the evidence in the light most favorable to the State, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of possession with intent to distribute marijuana. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).
This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his remaining assignment of error, defendant contends that his trial counsel was ineffective for failing to object to the introduction of the State's evidence concerning the distribution of marijuana to the confidential informant. Defendant argues that the State could not have proved intent to distribute without this evidence.
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La.App. 1 Cir. 11/8/96), 684 So.2d 432, 438. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Defendant assigns as error his trial counsel's failure to request a hearing under State v. Prieur, 277 So.2d 126 (La. 1973), to determine the admissibility of the alleged distribution offense. In his brief, defendant also states that defense counsel was never notified by the State of its intent to introduce this evidence at trial. Defendant argues that a "professionally reasonable attorney would have known of these requirements and objected to" the admissibility of this evidence.
While we note that the "clear and convincing" evidence standard set forth in Prieur has been legislatively abrogated, and the State need only make a showing of "sufficient" evidence to support a finding that a defendant committed the other crime, wrong or act, the longstanding requirement of a pretrial Prieur hearing is maintained. See State v. Taylor, 16-1124 (La. 12/1/16), ___ So.3d ___, ___.
Any evaluation of this claim will necessarily require further explanation from defense counsel concerning pretrial procedures. Because defendant's claims raise issues related to his counsel's investigation, preparation, and strategy, these claims cannot be reviewed on appeal. Only in an evidentiary hearing in the district court, where defendant could present evidence beyond what is contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review. See State v. Albert, 96-1991 (La.App. 1 Cir. 6/20/97), 697 So.2d 1355, 1363-64; see also State v. Johnson, 06-1235 (La.App. 1 Cir. 12/28/06), 951 So.2d 294, 304.
Defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., in order to receive such a hearing.
This assignment of error is not reviewable on appeal.
CONCLUSION
For the foregoing reasons, we affirm defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.
2016 CA 1067
VIRGINIA STAFFORD
VERSUS EXXON MOBILE CORPORATION, ABC INSURANCE COMPANY, LARD OIL COMPANY AND FEDERATED INSURANCE COMPANY McClendon, J., concurring.
I concur with the result reached by the majority.