State v. Francis

• Decision Date: 11 January 2017
• Docket Number: No. 51,048–KA,51,048–KA
• Parties: STATE of Louisiana, Appellee v. Jakeith L. FRANCIS, Appellant
• Court: Court of Appeal of Louisiana — District of US

213 So.3d 1213

STATE of Louisiana, Appellee

v.Jakeith L. FRANCIS, Appellant

No. 51,048–KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered January 11, 2017

LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, JANET L. SILVIE, Assistant District Attorneys, Counsel for Appellee

Before MOORE, GARRETT, and CARAWAY (ad hoc), JJ.

GARRETT, J.

The defendant, Jakeith L. Francis, was found guilty by a jury of one count of attempted possession of a Schedule III controlled dangerous substance ("CDS") (acetaminophen with codeine), in violation of La. R.S. 40:968(C) and La. R.S. 14:27, and one count of attempted possession of a Schedule II CDS (methamphetamine), in violation of La. R.S. 40:967(C) and La. R.S. 14:27. He was sentenced to serve 12 months at hard labor on each count, with the sentences to be served concurrently, and was given credit for time served. He appeals, claiming there was insufficient evidence to support his convictions. For the following reasons, we affirm the convictions and sentences.

FACTS

On February 12, 2015, Francis was stopped for speeding by Officers Joseph Bassett and Josh Owen of the Shreveport Police Department. Francis's girlfriend, Euradell Lewis, was a passenger in the car. Officer Bassett smelled a strong odor of marijuana and removed Francis and Lewis from the vehicle. One of the officers noticed a bulge in Lewis's clothing. She gave the officer a plastic bag containing various drugs. According to Lewis, when the officers activated their lights to pull Francis over, he removed the bag from his pocket, threw it into her lap, and told her to hide it.

Both Francis and Lewis were arrested. Francis was originally charged with possession of acetaminophen with codeine, possession of marijuana, second offense, and possession of Ecstasy ("MDMA"). The bill of information was later amended to charge him with possession of acetaminophen with codeine and possession of methamphetamine. He was tried by jury on February 2, 2016, and was convicted of the responsive verdicts of attempted possession on both counts. He was sentenced as set forth above. On appeal, he claims the evidence was not sufficient to support his convictions.

LEGAL PRINCIPLES

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) ; State v. Tate, 2001–1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied,

2008–0499 (La. 11/14/08), 996 So.2d 1086 ; State v. Crossley , 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied, 2013–1798 (La. 2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005–0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009–0310 (La. 11/6/09), 21 So.3d 297 ; State v. Crossley, supra .

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. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009–0372 (La. 11/6/09), 21 So.3d 299 ; State v. Crossley, supra .

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra ; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002–2595 (La. 3/28/03), 840 So.2d 566, 2002–2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004) ; State v. Crossley, supra . 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. Randle , 49,952 (La.App. 2 Cir. 6/24/15), 166 So.3d 465.

An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; these inducements only affect the witness's credibility. State v. Eason , 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 2009–0725 (La. 12/11/09), 23 So.3d 913 ; State v. Jetton, 32,893 (La.App. 2 Cir. 4/5/00), 756 So.2d 1206, writ denied, 2000–1568 (La. 3/16/01), 787 So.2d 299. See also State v. Wilhite , 40,539 (La.App. 2 Cir. 12/30/05), 917 So.2d 1252, writ denied, 2006–1078 (La. 11/9/06), 941 So.2d 35. The credibility of an accomplice's testimony is not within the province of the court of appeal to decide. Rather, credibility evaluations are within the province of the jury as trier of fact. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra ; State v. Casey, 1999–0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Francis was convicted of the responsive verdicts of attempted possession of a Schedule III CDS, and attempted possession of a Schedule II CDS. La. R.S. 40:968(C) provides in relevant part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule III unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978 or R.S. 40:1239, while acting in the course of his professional practice or except as otherwise authorized by this Part.

La. R.S. 40:967(C) states in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27(C) ; State v. McNair , 597 So.2d 1096 (La. App. 2d Cir. 1992), writ denied , 605 So.2d 1113 (La. 1992).

The elements of attempted possession of a CDS require a person to knowingly or intentionally do or omit an act for the purpose of and tending directly toward the accomplishing of the possession of the CDS, without a valid prescription or in the absence of an enumerated professional practice. La. R.S. 14:27 ; La. R.S. 40:967(C) ; La. R.S. 40:968(C). See State v. McGraw , 43,778 (La.App. 2 Cir. 12/10/08), 1 So.3d 645, writ denied , 2009–0317 (La. 11/6/09), 21 So.3d 297 ; State v. Holloway , 37,021 (La.App. 2 Cir. 5/16/03), 847 So.2d 200, writs denied , 2003–1720 (La. 12/19/03), 861 So.2d 558, 2003–1929 (La. 12/19/03), 861 So.2d 560.

Attempted possession of a controlled dangerous substance may be proved by constructive possession. State v. Taylor , 39,651 (La.App. 2 Cir. 4/6/05), 900 So.2d 212 ; State v. Daniels, 614 So.2d 97 (La. App. 2d Cir. 1993), writ denied , 619 So.2d 573 (La. 1993). Constructive possession is shown when the state proves that the contraband was within the defendant's dominion and control and that the defendant had knowledge of its presence. See State v. Toups , 2001–1875 (La. 10/15/02), 833 So.2d 910 ; State v. McGraw , supra.

DISCUSSION

At the jury trial, Bassett, one of the officers who stopped Francis, testified that he was patrolling in the Ingleside area of Shreveport on the afternoon of this offense, when he noticed a car traveling at 40 mph in a 25 mph zone. He activated the lights on his patrol car and pulled the driver over. While approaching, Officer Bassett smelled a strong odor associated with high-grade marijuana coming from the stopped vehicle. He asked the driver, Francis, to get out of the car. Francis was searched for weapons and put into the police car. He was wearing a hat with the word "Kush" on it, a term for high-grade marijuana. Eventually, the passenger, Lewis, was also asked to get out of the car and Owen searched the vehicle while the officers waited to determine if there were any outstanding warrants for Francis or Lewis. An open container of alcohol was found in the car. Francis and Lewis were both subject to arrest for violation of the open container law.

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