97-382 La.App. 3 Cir. 10/15/97, State v. Cormier

• Decision Date: 15 October 1997
• Citation: 97-382 La.App. 3 Cir. 10/15/97, State v. Cormier, 702 So.2d 929 (La. App. 1997)
• Parties: 97-382 La.App. 3 Cir
• Court: Court of Appeal of Louisiana

Page 929

702 So.2d 929

97-382 La.App. 3 Cir. 10/15/97

STATE of Louisiana, Plaintiff--Appellee, v. Roscoe David CORMIER, Defendant--Appellant.

No. CR97-382.

Court of Appeal of Louisiana Third Circuit.

Oct. 15, 1997.

Gary C. Tromblay, Houma, Earl Taylor, District Attorney, Barry Fontenot, Baton Rouge, for State.

Alfred Frem Boustany, II, Lafayette, for Roscoe David Cormier.

Before THIBODEAUX, COOKS and SULLIVAN, JJ.

[97-382 La.App. 3 Cir. 1] THIBODEAUX, Judge.

Roscoe David Cormier was convicted by a jury of possession of 400 grams or more of cocaine as well as possession with intent to distribute the same substance, violations of La.R.S. 40:967(F)(1)(c) and La.R.S. 40:967(A)(1), respectively. He was sentenced to forty-five years on the first conviction and ten (10) years on the second, with sentences to run concurrently. His motion to reconsider the sentences was denied.

[97-382 La.App. 3 Cir. 2] The state moved to correct an illegal sentence via a motion styled "Motion to Correct an Illegally Lenient Sentence." It argued that the sentence was illegally lenient insofar as it failed to contain the statutory, mandatory "without benefit of" language as well as failing to impose the mandatory fine specified in La.R.S. 40:967(F)(1)(c). The trial court corrected its sentence, over the objections of the defendant, to reflect the mandatory requirements of the statute.

The defendant appeals on the basis of four primary issues. His convictions and sentences are improper, he contends, because of the prohibition against double jeopardy, insufficiency of the evidence, excessiveness of the sentences, and the impropriety of the trial court's action in reconsidering the sentence after an untimely motion to reconsider the sentence and after the motion for appeal had been granted.

The state conceded the defendant's double jeopardy claim. We, therefore, vacate the conviction of possession with intent to distribute cocaine, the less severely punishable offense. See, State v. Doughty, 379 So.2d 1088 (La.1980); State v. Leblanc, 618 So.2d 949 (La.App. 1 Cir.1993). We conclude that the trial court properly amended the defendant's sentence. Furthermore, we affirm the defendant's conviction for possession of 400 grams or more of cocaine, but vacate his 45 year sentence as excessive and remand for resentencing.

I.

FACTS

On October 4, 1994, two confidential informants arranged to rendezvous with Cormier at the Opelousas General Hospital to effectuate a drug buy. Prior to meeting, and after a series of telephone conversations, the confidential informants, [97-382 La.App. 3 Cir. 3] through an intermediary named Martin Guillory, and defendant agreed that one-half kilogram of cocaine would be sold.

Cormier was to bring the cocaine to the hospital for the exchange. He showed up at the hospital and proceeded to negotiate with the confidential informants. Law enforcement, working with the confidential informants, attempted to get defendant to physically possess the cocaine in their presence. Cormier handled the cocaine, but it was actually a confidential informant, Martin Guillory who transported the cocaine to the van to make the deal.

At some point, Cormier was warned about police presence in the area and he and Guillory fled the scene. A semi-automatic handgun was found on the path taken by defendant in his flight. Defendant admitted he owned a gun at one time just like the gun found. In addition, Guillory stated he knew defendant carried a gun like the one found, and also that he saw the defendant digging in his back pocket for something while they fled. Guillory had previously warned of Cormier's propensity to carry a particular gun and defendant's threat to use it if necessary. The same type of gun was found on the path.

Finally, Cormier made a voluntary inculpatory statement to the effect that he found the cocaine in a ditch.

II.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant raises a sufficiency of the evidence claim. Because of the state's concession on defendant's double jeopardy argument, we will address only the conviction of possession of over 400 grams of cocaine.

[97-382 La.App. 3 Cir. 4] The sufficiency of the evidence standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) was recently addressed by the Louisiana Supreme Court in State v. Maxie, 93-2158 (La.4/10/95); 653 So.2d 526. Maxie admonishes:

"In order to confirm a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational fact finder to conclude that every element of the crime was proved beyond a reasonable doubt."

Id. at 531.

Thus, giving the utmost favorable import to the prosecution's case, this court must find that the prosecution failed to prove each element of its case beyond a reasonable doubt, the fact that a unanimous jury found otherwise notwithstanding. That burden, however, does not typically allow substitution by this court of its own judgment; rather, this court must determine that reasonable minds could not have found the evidence sufficient. Defendant's insufficiency claim therefore hinges upon the jury's conclusion that he exercised the requisite control or dominion over the illegal substance, albeit it was not found on his person. As such, this court must resolve whether a rational fact finder could conclude that defendant possessed--actually or constructively--the cocaine involved in this case.

Cormier points out that he was never seen in possession of the cocaine forming the basis for this conviction. For conviction of possession of cocaine, however, actual possession need not be found; instead, defendant could be found guilty of constructive possession. State v. King, 554 So.2d 254 (La.App. 3rd Cir.1989).

To prove constructive possession the state must show that the substance was within the defendant's dominion and control or in his joint possession. State v. [97-382 La.App. 3 Cir. 5] Trahan, 425 So.2d 1222 (La.1983); State v. Williams, 546 So.2d 963 (La.App. 3 Cir.1989). Several factors may be considered when determining dominion and control:

"[D]efendant's knowledge that illegal drugs are in the area; the defendant's relationship with the person found to be in actual possession; the defendant's access to the area where the drugs were found; the evidence of recent drug use by the defendant; the defendant's physical proximity to the drugs; and any evidence that the particular area was frequented by drug users."

Bujol v. Cain, 713 F.2d 112 (5th Cir.1983). The mere presence of the defendant in the area where the drugs are found or the fact that the defendant knows the person in actual possession is insufficient to prove constructive possession. State v. Tasker, 448 So.2d 1311 (La.App. 1st Cir.1984); State v. Cann, 319 So.2d 396 (La.1975); State v. Williams, supra.; State v. Harvey, [463 So.2d 706 (La.App. 4th Cir.1985)] supra. Joint possession exists when the person willingly and knowlingly [sic] shares the right to control the drug which is in the physical custody of a companion.

State v. Trahan, supra.; State v. Smith, [245 So.2d 327 (La.1971)] supra; State v. Williams, supra. Guilty knowledge is the essential element and may be inferred from the circumstances. State v. Converse, 529 So.2d 459 (La.App. 1st Cir.1988); State v. Jones, 551 So.2d 18 (La.App. 4th Cir.1989). Determination of whether there is possession of drugs sufficient to convict depends on the facts of each case. State v. Trahan, supra.

State v. Schroeder, 572 So.2d 708, 709 (La.App. 4 Cir.1990).

The record clearly supports that defendant, at the very least, constructively possessed the cocaine. Officers, working with the informants employed in the operation, testified at trial concerning the statements defendant made that demonstrated constructive possession of the cocaine. Defendant was also monitored on tape by law enforcement.

Applying the law in Schroeder to the facts adduced, it is apparent Cormier had knowledge of the drugs in the area and was in close physical proximity since he led the informants and police to the drugs. It is also apparent, according to the testimony of Guillory and the fact that he made the introductions between defendant and the others, that defendant had a relationship with Guillory, who did [97-382 La.App. 3 Cir. 6] actually possess the drugs as witnessed by law enforcement. Defendant certainly had immediate access to the area where the drugs were located--both in the hospital and, afterward, in the truck outside the hospital.

These facts strongly show constructive possession. Moreover, Cormier also handled the drugs prior to Guillory's possession and was obviously found by the jury to have brought the drugs to the hospital. The latter argument for actual possession is supported by Cormier's voluntary inculpatory statement in front of a police officer that he "found the drugs in a ditch."

Although Guillory and the other informants had significant criminal histories, the jury believed their testimony. In State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983), the court stated: "It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review." The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Hongo, 625 So.2d 610 (La.App. 3 Cir.1993), writ denied, 93-2774 (La.1/13/94); 631 So.2d 1163.

Thus, Cormier's claims that the confidential informants' characters are impeachable or incredible is not reversible error standing alone. In this case, the record supports both actual and constructive possession of over 400 grams of cocaine. According to the testimony of the informants, defendant possessed the cocaine in the bathroom of the Opelousas General Hospital;...