25,765 La.App. 2 Cir. 2/23/94, State v. Tate

• Decision Date: 23 February 1994
• Citation: 632 So.2d 1213
• Parties: 25,765 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1213

632 So.2d 1213

25,765 La.App. 2 Cir. 2/23/94

STATE of Louisiana, Appellee, v. Raymond TATE, Appellant.

No. 25765-KA.

Court of Appeal of Louisiana, Second Circuit.

Feb. 23, 1994.

Rehearing Denied March 24, 1994.

John W. Montgomery, Minden, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, James M. Bullers, Dist. Atty., Whitley R. Graves, Asst. Dist. Atty., Minden, for appellee.

Before LINDSAY, VICTORY and WILLIAMS, JJ.

VICTORY, Judge.

Raymond Tate, found guilty of one charge of possessing cocaine, in violation of LSA-R.S. 40:967(F)(1), was sentenced to 20 years imprisonment at hard labor and fined $50,000. On appeal, he complains that the evidence adduced at trial was insufficient to support a conviction, that an evidentiary ruling made by the trial court was in error and that an excessive sentence was given. For the reasons stated, we affirm the conviction and the sentence.

FACTS

On September 10, 1992, Raymond Tate and a friend, Marcus Hill, drove from Minden, Louisiana, to Houston, Texas, arriving at approximately 5:00 p.m. They drove straight to Tate's grandmother's house, where several people were gathered, including Tate's grandmother, Rose Tate, his grandfather, numerous cousins, and friends.

According to Tate, the sole purpose of the trip was to locate and purchase used shock absorbers for a 1984 Lincoln automobile. Tate testified that Hill asked if he could accompany him to Houston to visit a friend, Randy Tims. Tate stated that while in Houston he made only one telephone call, to a friend, Joe, at Jesse's Wrecking Yard, to inquire about used shock absorbers. He testified that he did not leave his grandmother's house the entire time that he was in Houston, and that he knew nothing about the cocaine later found by police.

Hill, testifying for the State, told the jury that the purpose of the trip was to purchase cocaine. He testified that he was not aware of Tate's telephone call to the wrecking yard, but stated that he overheard telephone calls made by Tate to a local drug dealer. Hill stated that after these telephone calls were made, an unknown individual visited Tate at the house, and the sale of cocaine occurred at this time. Hill testified that he left the house twice; first, with Tate to buy fish at a local market, and then with Tate's cousin to go to a grocery store.

At approximately 8:00 p.m., Tate and Hill left Houston to return to Minden. Hill stated that when they left Houston the cocaine was located in the armrest between the front seats of the car, but when they arrived in Nacogdoches, Texas, Tate asked him to place the cocaine in the crotch of his pants because Tate assumed that if they were stopped, the police would probably search him rather than Hill, due to Tate's prior drug convictions.

Upon returning to Minden, at approximately 1:55 a.m., on September 11, 1992, Officers Hank Haynes and Dan Weaver of the Minden City Police Department stopped Tate and Hill, upon information that an outstanding warrant for Tate's arrest had been issued for a Texas parole violation. They conducted "pat down" searches of both men. Officer Weaver discovered a brown paper sack, filled with six packets of cocaine, in the crotch of Hill's pants. Both men were charged by bill of information with two counts of possession of cocaine.

Following a trial by jury, Tate was found guilty of count one, possession of greater than 28 grams but less than 200 grams of cocaine, in violation of LSA-R.S. 40:967(F)(1)(a). He was fined $50,000 and sentenced to 20 years imprisonment at hard labor, without benefit of parole, probation or suspension for five years.

On appeal, Tate complains that: (1) the evidence adduced at trial was insufficient to support the conviction; (2) the trial court erred by excluding, as hearsay, certain testimony of the defendant's grandmother, Rose Tate, regarding a telephone conversation which she overheard between Tate and a third party; and (3) the sentence is excessive.

DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. State v. Washington, 606 So.2d 838, 841 (La.App. 2d Cir.1992), writ denied, 612 So.2d 56 (La.1993); and State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992). The Jackson standard, now codified as part of LSA-C.Cr.P. Art. 821, is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); Washington, supra; and State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

Thus, the elements of the offense are that: (1) Tate knowingly or intentionally possessed cocaine; and (2) the amount of cocaine possessed was between 28 and 200 grams. LSA-R.S. 40:967(F)(1)(a).

To satisfy the possession element, the prosecution is not required to prove "actual" or "physical" possession. It is sufficient to show that the defendant had "constructive" possession of the cocaine. Constructive possession has been defined as having dominion and control over the contraband, and having knowledge of the substance. State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992); State v. Harris, 597 So.2d 1105 (La.App. 2d Cir.1992). A defendant may be found to have been in joint possession, if the cocaine was in the physical possession of another, and if the defendant willfully and knowingly shared with the other the right to control the drug. State v. Kingsmill, 514 So.2d 599 (La.App. 4th Cir.1987); State v. Herndon, 513 So.2d 486 (La.App. 2d Cir.1987). The determination of whether there is possession sufficient to convict depends on facts peculiar to each case. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Spates, 588 So.2d 398 (La.App. 2d Cir.1991).

Tate and Hill arrived in Houston at 5:00 p.m., and left to return to Minden only three hours later, without automobile parts. Tate testified that he did not make any effort to contact Houston automobile parts dealers before leaving Minden, nor did he make prior arrangements to have them stay open past typical working hours (i.e., past 5:00 p.m.). The jury concluded that the true motive behind the trip was not, as Tate testified, to purchase automobile parts; rather, as Hill stated, it was to purchase cocaine.

Although Tate denied having purchased the drug or having any knowledge of its presence, the jury obviously rejected his testimony and accepted Hill's. As previously noted, Hill witnessed the defendant telephoning a drug dealer. Thereafter, an unidentified man visited Tate at his grandmother's house, and according to Hill, the drug sale transpired at this time. Tate admitted leaving Minden with $1200 cash (which he claimed had been given to him by his mother to buy automobile parts), and returning to Minden without this money. Although Tate attempted to explain this by testifying that he left the money with his grandmother, Rose Tate, to enable her to purchase the used automobile parts, the jury clearly rejected his testimony and that of his grandmother.

Further, Hill stated that the defendant knew that the cocaine was in the car. He recalled that the cocaine was initially stored in the arm rest between the front seats. According to Hill, as they drove through Nacogdoches, Texas, where they had been stopped and detained by police officers on their way to Houston, Tate gave Hill the cocaine, and told him to conceal it in his crotch. Hill did as Tate instructed. That Tate took responsibility for concealing and hiding the cocaine, indicates his dominion and control over the drug. The possession element has been satisfied.

The jury afforded credibility to Hill's testimony and not Tate's, and concluded that the purpose for traveling to Houston was to purchase cocaine, that Tate was aware of it and had constructive possession of the cocaine. Our authority to review questions of fact in criminal cases does not extend to credibility determinations made by the jury. It is the province of the jury to assess the credibility of witnesses, and this court accords great deference to the jury's decision to accept or reject the testimony of a witness in whole or in part. LSA-La. Const., Art. 5, § 5(C); State v. Trosclair, 443 So.2d 1098 (La.1983), cert. dismissed, 468 U.S. 1205, 104 S.Ct. 3593, 82 L.Ed.2d 889 (1984); State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992); State v. Emerick, 499 So.2d 195 (La.App. 2d Cir.1986).

The record reveals that the packets discovered by Officer Weaver contained between 28 and 200 grams of cocaine, and that the second element of this crime was proven beyond a reasonable doubt. Mr. Brian Keith Watson, a chemist at North Louisiana Crime Lab, was qualified at the trial as an expert in chemical analysis of controlled dangerous substances. He analyzed the contents of each of the six packages, and concluded that they all contained...