State v. Cash

• Decision Date: 10 December 2003
• Docket Number: No. 03-853.,03-853.
• Citation: 861 So.2d 851
• Parties: STATE of Louisiana v. William Odell CASH.
• Court: Court of Appeal of Louisiana — District of US

861 So.2d 851

STATE of Louisiana v. William Odell CASH.

No. 03-853.

Court of Appeal of Louisiana, Third Circuit.

December 10, 2003.

Michael Cade Cassidy, District Attorney, Thirty-first Judicial District, Bennett R. Lapoint, Asst. District Attorney, Jennings, LA, for Plaintiff/Appellee, State of Louisiana.

Jack Derrick Miller, Crowley, LA, for Defendant/Appellant, William Odell Cash.

William Odell Cash, In Proper Person.

Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

GREMILLION, Judge.

The defendant, William Odell Cash, was convicted by a jury of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966, and possession of methamphetamine, a violation of La.R.S. 40:967, and was sentenced to ten years at hard labor. He now appeals his conviction. For the following reasons, we affirm.

ERRORS PATENT

We review all appeals for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that there is one error patent. Defendant and a co-defendant were charged by bill of information with two offenses—one count of possession with the intent to distribute marijuana and one count of possession of methamphetamine. Defendant and co-defendant were not tried together and the bill of information read at Defendant's trial cited only one of the offenses charged on the bill—possession of marijuana with the intent to distribute. Consequently, the jury returned a verdict as to that charge alone, and no verdict was returned on count two—possession of methamphetamine. We sent an information request to the Jefferson Davis Clerk of Court's Office for any minute entry, motion, order, or other pleading showing the disposition of count two, possession of methamphetamine. The clerk's office responded with an affidavit stating, "that there is no minute entry, motion, order or other pleading showing the disposition" of that charge in the docket number that is before this court. We also conducted an examination of the transcripts included in the record, but found no mention of the disposition of count two. Thus, it appears that count two is an outstanding charge against Defendant, for which no verdict was returned by the jury.

Louisiana Code of Criminal Procedure Article 819 requires a verdict to be returned on each count charged in an indictment: If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.

In two previous cases, when faced with a similar error patent, we remanded for a proper disposition of the outstanding charge. State v. Davis, 614 So.2d 270 (La.App. 3 Cir.1993), reversed on other grounds, 93-0599 (La.4/11/94), 634 So.2d 1168,

and State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125,

writ denied,

00-1595 (La.3/23/01), 787 So.2d 1010. Likewise, we remand this matter for a proper disposition of the possession of methamphetamine charge.

SUFFICIENCY OF EVIDENCE

In this assignment, Defendant attacks the sufficiency of the evidence. Because a ruling that the evidence was insufficient would necessitate an acquittal, we will address this argument before the others. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. The statute states, in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I[.]

We have stated:

The State was required to prove two essential elements: possession of the controlled dangerous substance and the intent to distribute it.

The prosecution is not required to show actual possession in order to convict. The State need only show that the defendant exercised dominion and control over the illegal substance. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Rexrode, 536 So.2d 671 (La.[App.3rd Cir.]1988). The mere presence of the defendant in the area where narcotics are discovered is insufficient to support a finding of possession. State v. Matthews, 552 So.2d 590 (La.App. 2nd Cir. 1989). What must be shown is that the defendant had a direct right and ability to exercise control. State v. Segura, 546 So.2d 1347 (La.App. 3rd Cir.1989). Additionally, the prosecution must show guilty knowledge. Trahan, supra; Matthews, supra.

State v. Newberry, 560 So.2d 121, 123 (La. App. 3 Cir.1990).

We have also explained constructive possession as follows:

The following factors should be considered in determining whether defendant exercised dominion and control so as to constitute constructive possession: defendant's knowledge that illegal drugs were in the area; the defendant's relationship with the person in actual possession; the defendant's access to the area where the drugs were found; evidence of recent drug use; the defendant's proximity to the drugs; and any evidence that the area was frequented by drug users.

State v. Laws, 95-593, p. 4 (La.App. 3 Cir. 12/6/95), 666 So.2d 1118, 1121, writ denied, 96-0089 (La.9/13/96), 679 So.2d 102 (citation omitted).

On appeal, Defendant claims the State's case was circumstantial, thus requiring it to produce evidence that excluded "every reasonable hypothesis of innocence," as required by La.R.S. 15:438. At trial, the State relied mainly upon the testimony of Louisiana State Trooper Richard Elliot, a motor carrier safety inspector. Elliot testified that on July 19, 2000, in Jefferson Davis Parish, he stopped a tractor-trailer rig driven by Defendant. There was also a passenger, Karen Kayla. The purpose of the stop was a routine safety inspection. After Defendant produced his log book, Elliot checked its entries and noticed discrepancies. We note that Defendant stipulated there were falsified entries in the log book.

Elliot testified Defendant "seemed extremely nervous." He explained that people are often nervous when they encounter police, but usually relax after the initial contact. However, he testified that Defendant did not relax. He further testified that Defendant's demeanor made him suspicious, as did the presence of a number of locks on the trailer section of the rig. Defendant was hauling produce, which Elliot testified is not normally a high-security load. Thus, Elliot obtained Defendant's written permission to search the vehicle. After a backup officer arrived, Elliot commenced his search. He began in the cab area of the truck, which included a sleeper compartment. Behind the driver's seat, he found a bag containing a full bottle of wine. Elliot testified that drivers may not possess alcohol in commercial vehicles. About three feet away from the wine, he found a dog-food box in plain view. Elliot observed there was no dog in the truck, and Defendant admitted he did not have a dog. Also, Elliot could tell the box had been opened and then re-sealed with packing tape. He opened the box and discovered several bricks of a substance he believed to be marijuana. He said there were "little perfume things" packed in with the marijuana. Subsequent laboratory testing confirmed the substance was marijuana and that its weight was 9,579.9 grams.

Elliot immediately arrested Defendant and Kayla, advised them of their rights, and separated them. He then resumed the search. He found possible drug paraphernalia, i.e., clips and pipes, but no other drugs in the cab area. He then checked the utility boxes on the outside of the truck and found one or two more bricks of marijuana in a shopping bag, packaged in a manner similar to those found in the dog-food box. Elliot then searched the trailer. He found more bottles of alcoholic beverages, but no other contraband.

The State also presented the testimony of Trooper Martin Zaunbrecher, who participated in the follow-up investigation of Defendant. Zaunbrecher testified that the lower section of Texas, along the Mexican border, is an area of high drug-trafficking. Elliot's testimony had already indicated Defendant had been in the Corpus Christi, Texas area on the same date as the traffic stop and arrest. Subsequently, another state trooper, Sergeant Christopher Ivey, testified regarding the prevalence of drug trafficking in lower Texas. Ivey also testified the marijuana in this case was packaged in a manner meant to conceal its odor, as it was wrapped in dryer sheets and vacuum-sealed. Further, he explained the manner of packaging was consistent with distribution rather than...