State v. Barakat

• Decision Date: 23 June 2004
• Docket Number: No. 38, No. 419-KA, No. 421-KA., No. 420-KA
• Citation: 877 So.2d 223
• Parties: STATE of Louisiana, Appellee, v. Ibrihim BARAKAT, Appellant.
• Court: Court of Appeal of Louisiana — District of US

877 So.2d 223

STATE of Louisiana, Appellee, v. Ibrihim BARAKAT, Appellant.

Nos. 38,419-KA, 38,420-KA, 38,421-KA.

Court of Appeal of Louisiana, Second Circuit.

June 23, 2004.

Mark Manno, Indigent Defendant Board, James E. Beal, Jonesboro, Louisiana Appellate Project, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Joseph Gregorio, Assistant District Attorneys, for Appellee.

Before STEWART, GASKINS and MOORE, JJ.

GASKINS, J.

Following a jury trial, the defendant, Ibrihim Barakat, was convicted of possession of Schedule I controlled dangerous substance (CDS) (Methylenedioxyamphetamine or "MDA," commonly known as "Ecstasy"), possession of Schedule II CDS (cocaine), possession of Schedule III CDS (hydrocodone), and possession of a firearm while in possession of CDS (marijuana, MDA, cocaine, and hydrocodone).

The defendant was sentenced to serve two years imprisonment at hard labor on each of the drug possession convictions. For his conviction of possession of a firearm while in possession of CDS, he was sentenced to serve five years imprisonment at hard labor, without benefits. All sentences were ordered to run concurrently. The defendant now appeals.

Finding a double jeopardy violation, we vacate the defendant's drug possession convictions; however, we affirm his conviction and sentence for possession of a firearm while in possession of CDS.

FACTS

Between 7 and 8 p.m. on the night of June 13, 2001, undercover narcotics officers of the Bossier City Police Department began following the defendant, who was driving a rented green four-door Chevrolet Impala. The defendant and his passenger, Randall Hicks, traveled back and forth between Shreveport and Bossier City. At about 10 p.m., the officers stopped the defendant in Bossier Parish on the Texas Street bridge for failure to use his turn signal.

According to one officer, immediately prior to the stop, the car was going very slowly and there was movement between the defendant and his passenger. He testified that, as the car stopped, it appeared that they were reaching under the seats and passing things between them. Another officer testified that he observed "very aggressive movement" inside the car, particularly from the defendant's side. He seemed to be frantically moving items toward the center console or under the seat.

When the officers approached the car, both occupants appeared to be nervous. After they exited the vehicle, the officers noticed that Hicks had something in his mouth which he was trying to chew. He was ordered to remove the items from his mouth; they included eight small baggies of crack cocaine and a small amount of marijuana.

A search of the car yielded a Beretta .40 caliber handgun concealed between the passenger's and driver's bucket seats. Also, a crack cocaine pipe was found on the floor of the passenger's seat. In a film cannister in the console area between the seats were 20 pills of MDA or Ecstasy, three plastic bags of crack cocaine, a partial marijuana "blunt" or cigar, and two Lortab pills containing hydrocodone (dihydrocodeinone). Both the defendant and Hicks were arrested.

The defendant was charged with possession with intent to distribute a Schedule I CDS, MDA (No. 38,419-KA); possession with intent to distribute a Schedule II CDS, cocaine (No. 38,419-KA); possession of a Schedule III CDS, hydrocodone (No. 38,420-KA); and possession of a firearm while in possession of controlled dangerous substances (No. 38,421-KA). He was also charged with possession of marijuana.

These matters were consolidated for trial and the defendant was tried by jury. He was convicted as charged on the firearm charge and the hydrocodone possession charge. On the MDA and cocaine charges, he was convicted of the lesser offenses of possession, as opposed to possession with intent to distribute. The jury's verdicts were all unanimous. At the conclusion of trial, the state dismissed the charge of possession of marijuana still pending against the defendant.

The defendant filed a motion for new trial or alternatively for postverdict judgment of acquittal. The motion was denied.

On the firearm conviction, the trial court imposed the mandatory minimum sentence of five years at hard labor without benefit of parole, probation or suspension of sentence. On each of the three drug possession convictions, the court sentenced the defendant to two years at hard labor. All sentences were ordered to be served concurrently.

The defendant appeals.

SUFFICIENCY OF EVIDENCE

In this assignment of error, the defendant challenged the sufficiency of the evidence that he was in constructive possession of the drugs found in his car. He argued that the drugs belonged to Hicks, his passenger. Hicks testified at trial that the drugs were his and that the defendant was unaware that he had them until they were stopped by the police.

The 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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 was 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,1998-2723 (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. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one's dominion and control, with knowledge of its presence, even though it is not in one's physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987.

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 constructive 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. State v. Toups, XXXX-XXXX (La.10/15/02), 833 So.2d 910.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, XXXX-XXXX (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Lee, 38,114 (La.App.2d Cir.3/3/04), 868 So.2d 256.

Hicks testified that the drugs found in the defendant's car were his and that the defendant was unaware of their presence. However, we note several contradictions between Hicks' testimony and that of the police officers. Among other things, he testified that the defendant's gun was in a paper bag in the back seat of the car; the officers testified that it was recovered from between the passenger's and driver's seats and that it was within a foot of either occupant. He also testified that the Ecstasy and Lortab pills were in his pocket; according to the officers, a film cannister containing these drugs was found in the console between the front seats occupied by the defendant and Hicks.

The jury as the trier of fact heard the testimony of all of the witnesses and obviously chose to believe the two police officers instead of Hicks. Such a credibility call was well within the jury's province.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the defendant exercised dominion and control over the controlled dangerous substances in his car sufficient to constitute constructive possession. The defendant had rented the vehicle. He had immediate and close access to the drugs found in the console area of the vehicle. This alone is sufficient to find that the defendant had possession of the drugs; thus, it is unnecessary to consider the drugs that were in Hicks' actual possession. The officers noticed "frantic" and "very aggressive" activity between the two car occupants immediately before the traffic stop which was indicative of efforts to conceal the evidence. Also, drug paraphernalia, a crack pipe, was found inside the defendant's vehicle.

The peculiar facts of this case support the finding that the defendant constructively possessed the drugs. Although the defendant offered a hypothesis of innocence — that the drugs belonged to Hicks and were present without his knowledge — this hypothesis was obviously rejected and not considered reasonable by the jury.

This assignment of error lacks merit.

DOUBLE JEOPARDY

The defendant contends that his conviction on the firearm charge constituted...