State v. Anderson

• Decision Date: 09 April 2003
• Docket Number: No. 36,969-KA.,36,969-KA.
• Citation: 842 So.2d 1222
• Parties: STATE of Louisiana, Appellee, v. Simmie L. ANDERSON, III, Appellant.
• Court: Court of Appeal of Louisiana — District of US

842 So.2d 1222

STATE of Louisiana, Appellee, v. Simmie L. ANDERSON, III, Appellant.

No. 36,969-KA.

Court of Appeal of Louisiana, Second Circuit.

April 9, 2003.

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J. Wilson Rambo, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Brian Harkins, Assistant District Attorney, for Appellee.

Before BROWN, CARAWAY and DREW, JJ.

CARAWAY, J.

After a bench trial, Simmie Anderson ("Anderson") was convicted of the crimes of possession of marijuana and phencyclidine ("PCP") with intent to distribute in violation of La. R.S. 40:966 and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. Anderson was adjudicated a second felony offender and received concurrent sentences of fifteen years at hard labor without benefit of probation or suspension of sentence on the two drug counts and ten years at hard labor, without benefit of parole, probation or suspension of sentence on the firearm conviction.¹ After the denial of his timely motion for reconsideration of sentence, Anderson appealed raising as error, among other matters, the sufficiency of the evidence of his constructive possession of the drugs and gun. For the following reasons, we affirm the convictions and sentence imposed for the felon possession of a firearm conviction. However, we set aside the habitual offender adjudication and sentences for the possession of marijuana and PCP with intent to distribute convictions and remand for resentencing and adjudication since enhancement under the habitual offender law in this case may apply to only one of those convictions.

Facts

On November 3, 2000, the Metro Narcotics Unit of the Monroe Police Department executed a search warrant for a house owned by Anderson. No one was at the residence. During the search of the house police found what laboratory tests later determined to be nineteen grams of marijuana contained in two small plastic bags, seventy-two grams of PCP contained in a small bottle and placed in a cowboy boot, a bottle of Ivomel, a syringe and two needles found in the refrigerator, a partially smoked marijuana cigarette, one package of More brand cigarettes, two types of scales and one gun. The police also found mail belonging to Anderson and other personal effects. The seized gun was a Lorcin.380 caliber pistol and was found under the mattress of a bed in the home. On November 15, 2000, Anderson called police and indicated he wanted to turn himself in. Thereafter, Anderson was arrested. At the time of his arrest, Anderson listed the address of the raided residence as his home address.

Discussion: Sufficiency of the Evidence

On appeal, Anderson argues that the evidence was insufficient to convict him because the state failed to prove that he resided in the residence. He thus contests the finding of his constructive possession of the drugs and the gun. He also insists that the state did not establish the requisite intent to distribute the marijuana.

In brief, Anderson concedes that he has failed to file a motion for post-judgment verdict of acquittal. The question of sufficiency of the evidence is properly raised by such a motion. La. C. Cr. P. art. 821. Nevertheless, this court will consider sufficiency arguments even in the absence of such a motion. State v. Henry, 36,217 (La.App.2d Cir.8/14/02), 823 So.2d 1064. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for a sufficiency-of-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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard 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 is guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991) writ denied, 597 So.2d 1027 (La.1992). For circumstantial evidence to convict, it must exclude every reasonable hypotheses of innocence. La. R.S. 15:438.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984).

The crime of possession with intent to distribute a Schedule I drug requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. State v. Dennis Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201; State v. Marshall, 02-1067 (La.App. 5th Cir.2/25/03), 841 So.2d 881

Regarding the element of possession of a controlled dangerous substance, the state need not prove the defendant was in physical possession of the narcotics found; constructive possession is sufficient to support a conviction. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge can he inferred from the circumstances. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910. A determination of 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 constructive possession include his knowledge that the 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. Id. A subject can have constructive possession if he wilfully and knowingly shares with a companion the right to control the drugs. State v. Marshall, supra.

It is unlawful for any person who has been convicted of any violation or attempted violation of the Uniform Controlled Dangerous Substances Law, which is a felony, to possess a firearm or carry a concealed weapon. La. R.S. 14:95.1. The state can prove possession of a firearm by a convicted felon by either actual or constructive possession. Constructive possession of a firearm is demonstrated when the state shows the firearm was subject to defendant's dominion and control. State v. Ban Johnson, 36,854 (La.App.2d Cir.3/14/03), 839 So.2d 1247. A defendant's dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature and even if' the control is shared. State v. Neeley, 30,008 (La.App.2d Cir.12/23/97), 704 So.2d 443, 447. La. R.S. 14:95.1 requires only general criminal intent, which means that the circumstances indicate that the accused "in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." La. R.S. 14:10(2); State v. Neeley, supra at 448.

The state's case for constructive possession of the drugs and gun centered on the testimony of Detective Mark Johnson ("Johnson"), the Monroe police officer who executed the search warrant at the residence and discovered the drugs in the home. Johnson testified that his search of the house produced mail and loan papers in the name of Anderson and Anderson's photograph. Johnson also testified that he found only male clothing in the home, including three or four sets of City of Monroe Water Department uniforms which bore Anderson's first name. In support of the officer's testimony, the state introduced into evidence copies of the documents and photograph found in the house. These included loan documents reflecting that Anderson alone purchased the McGuire Avenue property. Additionally, police found a hospital bill, addressed to Anderson at the McGuire Avenue residence and postmarked October 16, 2000. The Lorcin .380 automatic pistol was purchased on December 5, 1996 by Anderson and registered in his name. The gun was located under the mattress of the bed in the master bedroom. The state also introduced into evidence a piece of mail addressed to Anderson at the McGuire Avenue location and postmarked October 31, 2000, as well as a water bill for the McGuire Avenue home in the name of Anderson and dated October 13, 2000.

In support of his claim that he had no knowledge regarding the drugs and gun, Anderson presented the testimony of three witnesses who stated that he did not reside at the house at the time of the raid. These witnesses included Anderson's brother, Ron Brothers, and girlfriend, Nedra Jones. Additionally, a neighbor of Jones, Irene Dennis, also testified. Brothers stated that Anderson never stayed at the house where the drugs were found at 1511 North McGuire because he lived with Nedra Jones on 8th Street. Brothers also claimed that on August 21, 1997,...