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In Acevedo, this Court specifically noted that the State produced evidence to show that the defendant was in possession of a large amount of cocaine and further witness testimony supported the conviction.
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No. 22-KA-124.
12-28-2022
STATE of Louisiana v. Marvin S. ACEVEDO.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr. , Metairie, Thomas J. Butler , Darren Allemand , Monique D. Nolan , Jennifer C. Voss , Christina Fisher . COUNSEL FOR DEFENDANT/APPELLANT, MARVIN S. ACEVEDO, Holli A. Herrle-Castillo . Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr. , Metairie, Thomas J. Butler , Darren Allemand , Monique D. Nolan , Jennifer C. Voss , Christina Fisher .
COUNSEL FOR DEFENDANT/APPELLANT, MARVIN S. ACEVEDO, Holli A. Herrle-Castillo .
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.
CHAISSON, J.
Defendant, Marvin S. Acevedo, appeals his conviction and sentence for possession of over 400 grams of cocaine. On appeal, defendant complains that the evidence presented at trial was insufficient to support his conviction and that his sentence is excessive. For the following reasons, we find no merit to defendant's arguments and, accordingly, affirm his conviction and sentence.
STATEMENT OF THE CASE
On August 31, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of over 400 grams of cocaine, in violation of La. R.S. 40:967(F). In July of 2018, the matter proceeded to trial before a twelve-person jury, which found defendant guilty as charged by an eleven to one verdict. The trial court thereafter sentenced defendant to imprisonment at hard labor for twenty years and imposed a fine of $50,000.00. Defendant appealed, and on May 8, 2019, this Court affirmed defendant's conviction and sentence. State v. Acevedo, 18-683 (La. App. 5 Cir. 5/8/19), 273 So.3d 462. Defendant then filed a writ application in the Louisiana Supreme Court.
While defendant's writ was pending, the United States Supreme Court issued its opinion in Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), holding that the Sixth Amendment right to a jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. On June 3, 2020, in light of the Ramos decision, the Louisiana Supreme Court granted defendant's writ application and remanded the matter to this Court for further proceedings and to conduct a new error patent review. State v. Acevedo, 19-824 (La. 6/3/20), 296 So.3d 1019 (per curiam). On June 30, 2020, this Court found that because the verdict was non-unanimous, defendant was entitled to a new trial and, accordingly, vacated his conviction and sentence and remanded the matter to the trial court. State v. Acevedo, 18-683 (La. App. 5 Cir. 6/30/20), 307 So.3d 322.
On remand, following the resolution of some motions, defendant proceeded to trial before a twelve-person jury on June 16 and 17, 2021. After considering the evidence presented, the jury unanimously found defendant guilty of possession of over 400 grams of cocaine. On July 8, 2021, the trial court sentenced defendant to twenty years imprisonment at hard labor and imposed a fine of $50,000.00. Defendant thereafter filed a motion to reconsider sentence, which was denied by the trial court. Defendant now appeals.
FACTS
In June of 2017, the Jefferson Parish Sheriff's Office (JPSO) Narcotics Division began an investigation of defendant based on information received by Detective Allan Doubleday. At trial, Detective Doubleday testified that he received information that on June 19, 2017, an individual named "Marvin" would be traveling to Texas to obtain a quantity of cocaine. The informant provided the make and model of the vehicle defendant would be using (Nissan Titan truck), the license plate number, and the specific date and time of the trip. Further, the informant relayed that a storage unit near this individual's residence was being used for the narcotics operation.
In an effort to corroborate this information, Detective Doubleday contacted Sergeant Joshua Collins, who entered the vehicle information into the Automated License Plate Recognition (ALPR) system. Based on the information known about the suspect vehicle, Sergeant Collins was able to determine that within a few months, the truck had traveled to the Texas border approximately five times and had returned to Louisiana within a period of twelve to eighteen hours each time. On June 19, 2017, during the course of monitoring the ALPR cameras, Sergeant Collins learned that the suspect vehicle was, in fact, traveling to Texas.
Sergeant Collins also discovered that defendant was not the registered owner of the vehicle.
Detective Doubleday went to the Texas state line, and other detectives strategically positioned themselves on I-10 in order to do mobile surveillance of the truck from Texas back into Jefferson Parish. Detective Doubleday spotted the vehicle as it came back into Louisiana, which was within twelve hours of it leaving Louisiana, and followed it back to Jefferson Parish. As this surveillance was going on, Sergeant Collins applied for and obtained a search warrant for the suspect vehicle based on the vehicle's activities being consistent with a drug courier. Once the vehicle entered into Jefferson Parish, officers in a marked unit stopped the vehicle on I-10 near the Williams Boulevard exit.
When Detective Doubleday arrived at the scene of the stop, he observed two occupants in the vehicle, who were later identified as defendant, the passenger, and Pedro Villareal, the driver. Detective Doubleday separated the two individuals, advised them of their rights in English, and questioned them. According to Detective Doubleday, defendant stated that he was in Texas for a few days for a car auction, which information the officer knew to be incorrect based on the travel that was observed on the ALPR cameras. Mr. Villareal provided a different explanation than the one given by defendant.
Sergeant Nick Garnier, who followed the truck from Lake Charles to Jefferson Parish, testified that the truck stopped at a gas station in Lafayette to refuel. At that time, the two occupants changed positions in the vehicle, with defendant moving from the driver's seat into the passenger's seat.
For safety reasons, the occupants and the vehicle were moved from the interstate to the Louisiana State Police Troop B parking lot in Kenner. Prior to the search, a canine dog did an exterior sweep of the vehicle and alerted to narcotics under the vehicle. As a result of the subsequent search, officers found a magnetic hideaway key box under the vehicle, which contained a clear plastic bag with a white powdered substance that subsequently tested positive for cocaine. In the interior of the truck, the officers located a wallet, approximately $3,300.00 in cash, a padlock with a CubeSmart sticker on it, and four cell phones. The wallet contained a Florida identification card with defendant's name, a CubeSmart storage key, a CubeSmart card with a storage unit number (409) and an access code, and a bag that contained a white powdered substance that later tested positive for cocaine.
One of these phones belonged to Mr. Villareal, who was released after it was determined that the evidence did not link him to the offense. At that time, his phone was returned to him.
Having located cocaine in the vehicle, Detective Doubleday brought defendant and Mr. Villareal to the detective bureau for further questioning. After being advised of his rights again, defendant told the officer that the cocaine in the truck belonged to him and that Mr. Villareal had no knowledge of it. Defendant denied knowing anything about the CubeSmart storage unit, key, or access card.
Based on the information received and the evidence recovered, the officers located the storage facility, obtained a search warrant, and ultimately gained access to Unit 409 using the key that was in defendant's wallet. Inside the storage unit, the officers found a work shirt with a patch that said Marvin, tax documents with defendant's name, and an ice chest that contained documentation from the BP oil spill with defendant's name and four compressed wrapped bricks. The bricks, each weighing approximately one kilogram, tested positive for cocaine. At trial, Detective Doubleday testified that no one else's name, other than defendant's, appeared on any documents or other items located in the storage unit.
In addition, Sergeant Collins obtained a search warrant for documents, leasing information, and surveillance video from the storage facility. Pursuant to this warrant, Detective Doubleday met with the manager of the CubeSmart facility and obtained the leasing and access documents, which listed defendant as the tenant of Unit 409 and showed the specific times the access code was utilized. In addition, Detective Doubleday viewed the surveillance video from the storage facility and observed defendant access the facility at the times the access log indicated he was there. At trial, he explained that he entered the dates and times from the access log into the surveillance system and observed "the same Nissan Titan with Mr. Acevedo punching in the key on the keypad" to access the facility. Detective Doubleday also observed defendant meeting with a CubeSmart employee on the interior video.
Thereafter, a second search of the vehicle was conducted, which resulted in the seizure of an additional phone. Detective Doubleday subsequently obtained search warrants for all four phones, which were sent to the Digital Forensics Unit of the JPSO for extraction and analysis. Sergeant Solomon Burke of the JPSO, accepted as an expert in the field of digital forensics, testified he was able to extract data from the three Samsung phones. Sergeant Burke classified these phones as "burner" or "dump" phones that can be purchased and activated without identifying information. He relayed that in his experience, these types of phones are usually involved in a narcotics case.
Sergeant Collins testified that he obtained this second warrant for the vehicle because he believed the officers may have missed something in the first search based on finding four kilos of cocaine in the storage facility and only thirteen grams from the twelve hour trip to Texas and back.
Sergeant Burke also discussed text messages found on the phone that had evidentiary value and testified that incoming texts identified someone he believed possessed the phone as "Marvin." However, since the majority of messages were in Spanish and Sergeant Burke did not speak Spanish, Detective Edgardo Castro of the JPSO was called in to assist with the translation of text messages. Detective Castro identified and translated several incoming text messages, which, by the terminology used, suggested these individuals were seeking to purchase cocaine.
Sandy Lee, a forensic drug analyst at the JPSO Crime Lab, testified in her expert capacity regarding her examination and analysis of the substances found in this case. She specifically analyzed the following items: specimen 1, identified as a "sealed plastic bag containing one black magnetic key box, containing one clear plastic bag, containing a white powdered substance;" specimen 3, identified as a "sealed plastic bag containing one clear pink plastic bag, containing a white powder;" and specimen 13, identified as a "sealed paper bag containing four individually wrapped packages each containing a compressed white powder substance." Ms. Lee testified that the substances in all three specimens tested positive for cocaine. She further testified that the gross weight of specimen 1 was twelve grams, the net weight of the first bag tested in specimen 13 was 986 grams, and the net weight of the other three bags in specimen 13 was approximately 2,976 grams.
SUFFICIENCY OF THE EVIDENCE
In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him. He specifically contends that the State failed to adequately prove that he was in possession of the cocaine retrieved from the storage unit, and therefore, the State failed to establish the requisite amount of over 400 grams to uphold the conviction.
In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct, circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Robinson, 11-12 (La. App. 5 Cir. 12/29/11), 87 So.3d 881, 892-93, writ denied, 12-279 (La. 6/15/12), 90 So.3d 1059.
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Williams, 14-882 (La. App. 5 Cir 5/14/15), 170 So.3d 1129, 1136, writ denied, 15-1198 (La. 5/27/16), 192 So.3d 741.
In the present case, defendant was convicted of possession of over 400 grams of cocaine, in violation of La. R.S. 40:967(F). To support a conviction for possession of cocaine under La. 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. State v. Robinson, 87 So.3d at 893. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the controlled dangerous substance. State v. Mitchell, 09-996 (La. App. 5 Cir. 5/25/10), 40 So.3d 1122, 1126, writ denied, 10-1557 (La. 10/21/11), 73 So.3d 370. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. The determination of whether there is sufficient evidence of constructive possession to support a conviction depends on the specific facts of each case. State v. Kenner, 12-352 (La. App. 5 Cir. 12/11/12), 106 So.3d 1084, 1087-88. Factors that may establish control or dominion for purposes of constructive possession include knowledge that the drugs were in the area, relationship with the person found to have possession, access to the area where the drugs were found, evidence of recent drug use, and physical proximity to the drugs. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 902, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836.
In the present case, we find that the State proved beyond a reasonable doubt that defendant possessed the cocaine located inside the storage unit. At trial, Detective Doubleday testified that he received information that on June 19, 2017, an individual by the name of "Marvin" would be traveling to Texas to obtain a quantity of cocaine. In addition, he received information that a storage facility near this individual's residence was being used for the narcotics operation. Once the suspect vehicle was stopped, the officers located cocaine in a magnetic box under the truck and in defendant's wallet. Defendant admitted that the cocaine found in the truck belonged to him and that Mr. Villareal was unaware of it. In addition, the wallet found inside the truck contained a Florida identification card with defendant's name, a CubeSmart storage key, a CubeSmart card with a storage unit number (409) and an access code, and a bag that contained cocaine. The officers subsequently located the appropriate storage facility and determined that the storage unit number and access code on the card found in defendant's wallet matched the code to the CubeSmart facility and specific unit that was searched.
The evidence introduced at trial further showed that the officers used the key found in defendant's wallet to open Unit 409 at the storage facility. Inside the storage unit, the officers found four kilos of cocaine inside a cooler. Detective Doubleday also testified that the officers found documents with defendant's name on them inside the cooler and a work shirt with defendant's name on it inside the storage unit. Detective Doubleday testified that no one else's name, other than defendant's, was found on any documents or items located in the storage unit. Additionally, the State established that Unit 409 was leased in defendant's name and that he accessed the unit. At trial, Detective Doubleday relayed that he viewed the surveillance video from the storage facility and observed defendant access the facility at the times the access log indicated he was there. Detective Doubleday explained that he entered the dates and times from the access log into the surveillance system and observed "the same Nissan Titan with Mr. Acevedo punching in the key on the keypad" to access the facility. Detective Doubleday also observed defendant meeting with a CubeSmart employee on the interior video. See State v. Every, 09-721 (La. App. 4 Cir. 3/24/10), 35 So.3d 410, writ denied, 10-929 (La. 11/19/10), 49 So.3d 397, in which the appellate court found that the State established that the defendant constructively possessed the cocaine found in a storage unit.
In light of the foregoing, we find that a rational trier of fact could have found the evidence was sufficient under the Jackson standard to support defendant's conviction for possession of over 400 grams of cocaine. In particular, we find that the evidence established that defendant constructively possessed the cocaine in the storage unit, as well as the cocaine found in the truck, and that the total weight of the cocaine was approximately 3,974 grams. Accordingly, this assigned error is without merit.
EXCESSIVE SENTENCE
In his second assigned error, defendant challenges his twenty-year sentence as excessive.
Defendant was convicted of possession of over 400 grams of cocaine. At the time of the commission of the offense, defendant was exposed to "a term of imprisonment at hard labor for not less than fifteen years, nor more than thirty years and to pay a fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars." La. R.S. 40:967(F)(1)(c). The trial court sentenced defendant to a mid-range sentence of twenty years imprisonment at hard labor and imposed a fine of $50,000. Subsequent to the imposition of sentence, defendant filed a motion to reconsider sentence on the basis that the trial court failed to consider the sentencing guidelines in La. C.Cr.P. art. 894.1 when imposing the sentence, specifically noting the mitigating factors and the absence of aggravating factors. On October 5, 2021, the trial court denied defendant's motion.
Defendant now contends his sentence is excessive because the trial court failed to consider the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 and failed to articulate any reasons for the sentence imposed. Further, defendant contends that the record does not justify a sentence of twenty years for this offense. To support his argument, defendant points to several mitigating factors and also notices that La. R.S. 40:967(F) has since been repealed, and the equivalent crime, had it been committed forty-two days later, would have had a lesser sentencing range.
The law in effect at the time of the commission of the offense is determinative of the penalty imposed. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520. This Court thoroughly discussed and rejected defendant's assertion that the more lenient penalty provisions of the amended article should apply to his case. See State v. Acevedo, 17-708 (La. App. 5 Cir. 3/19/18) (unpublished writ disposition) and State v. Acevedo, 18-683 (La. App. 5 Cir. 5/8/19), 273 So.3d at 476-78.
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628.
A trial court is afforded great discretion in determining sentences, and sentences within the statutory limit will not be set aside as excessive absent a clear abuse of that discretion. State v. Carter, 11-758 (La. App. 5 Cir. 5/31/12), 96 So.3d 1283, 1291. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, while recognizing the trial court's wide discretion in sentencing. State v. Nguyen, 958 So.2d at 64. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 296 So.3d 1107, 1115.
The appellate court can look to the record for support of the defendant's sentence, and if the record supports the sentence imposed, the appellate court shall not set aside the sentence for excessiveness. La. C.Cr.P. art. 881.4(D); State v. Carter, 96 So.3d at 1292. Where the record clearly shows an adequate factual basis for the sentence imposed, remand for resentencing is unnecessary even where there has not been full compliance with Article 894.1. State v. Garrison, 15-285 (La. App. 5 Cir. 12/23/15), 184 So.3d 164, 171, writ denied, 16-258 (La. 2/10/17), 215 So.3d 700. In addition, a remand for more complete compliance with La. C.Cr.P. art. 894.1 is not required when the sentence imposed is not "apparently severe." State v. Chess, 00-163 (La. App. 5 Cir. 6/27/00), 762 So.2d 1279, 1283.
See also State v. Honea, 18-18 (La. App. 1 Cir. 12/21/18), 268 So.3d 1117, 1120, writ not considered, 19-598 (La. 8/12/19), 279 So.3d 915, where the appellate court stated, "Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive."
In the present case, we acknowledge that the trial court did not articulate any reasons for imposing the twenty-year sentence, nor did it reference the sentencing guidelines set forth in La. C.Cr.P. art. 894.1. However, under the particular facts of this case, we find that a remand to the trial court for resentencing is not warranted because the record supports the sentence imposed, and the sentence is not apparently severe.
We specifically note that at trial, the State produced evidence to show that defendant was in possession of a large amount of cocaine. The penalty provision provides a sentencing range when the offense involves 400 grams or more of cocaine. Here, there were approximately 3,974 grams of cocaine, which is roughly ten times the amount designated in the statute. Additionally, Sergeant Collins testified that the four kilos of cocaine located inside the ice chest were packaged in a manner consistent with interstate trafficking. Further, evidence showed that defendant repeatedly drove between Louisiana and Texas on very short trips. Lastly, Sergeant Collins testified at trial that even just one kilo is not an amount that would be purchased for personal use. He testified that the four kilos would sell for about $600,000.00. Accordingly, in light of the foregoing, we find that the twenty-year sentence imposed on defendant is not excessive and is supported by the record.
ERRORS PATENT REVIEW
We have reviewed the record for errors patent, in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals no errors that require corrective action.
Accordingly, for the reasons set forth herein, we affirm defendant's conviction and sentence.
AFFIRMED
Johnson, J., dissents, in part, with reasons.
Johnson, J., Dissenting:
I, respectfully, dissent, in part, from the majority opinion on the excessive sentence assignment of error. La. C.Cr.P. art. 894.1(A) provides that when a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the three specified factors are met. La. C.Cr.P. art. 894.1(B) lists suggested considerations for the court when determining if a sentence should be suspended or if probation should be imposed. La. C.Cr.P. art. 894.1(C) states, "The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence." The trial judge in this matter did not provide reasons for the 22-year sentence; thus, there is no indication as to which factors were considered in the imposition of Defendant's sentence. Consequently, I find that the record does not clearly show an adequate factual basis for the sentence imposed.
Therefore, I would vacate Defendant's sentence and remand the matter to the trial court for compliance under La. C.Cr.P. art. 894.1. See, State v. Jones, 15-1723 (La. 12/4/15), 184 So.3d 668; State v. Daye, 14-1191 (La. 2/27/15), 162 So.3d 371. In all other respects, I agree with the majority opinion.