State v. Furgerson

• Citation: 781 So.2d 1268
• Decision Date: 02 March 2001
• Docket Number: No. 34,344-KA.,34,344-KA.
• Parties: STATE of Louisiana, Appellee, v. Thomas L. FURGERSON, Appellant.
• Court: Court of Appeal of Louisiana (US)

781 So.2d 1268

STATE of Louisiana, Appellee, v. Thomas L. FURGERSON, Appellant.

No. 34,344-KA.

Court of Appeal of Louisiana, Second Circuit.

March 2, 2001.

Rehearing Denied March 29, 2001.

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John M. Lawrence, Shreveport, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Michael Wayne Powell, Tommy J. Johnson, Assistant District Attorneys, Counsel for Appellee.

Before NORRIS, GASKINS and CARAWAY, JJ.

NORRIS, Chief Judge

The defendant, Thomas L. Furgerson, was convicted by a jury of possession of cocaine, a Schedule II controlled dangerous substance, a violation of La.R.S. 40:967 F(1)(b). The trial court sentenced Furgerson to serve 30 years at hard labor, without benefit of parole, probation, or suspension of sentence, and to pay a fine of $100,000.00 or, in default thereof, serve 1000 days in the parish jail, with credit for time served. For the reasons expressed herein, we affirm.

Factual Background

On January 22, 1997, Shreveport PD undercover agents Russell Sarpy and Jean P. Gallion, assigned to the DEA Task Force, initiated and made contact by phone with Alvin Furgerson, a known drug dealer and the defendant's brother, to buy nine ounces of cocaine for $6,000.00. The deal was set for 9:00 p.m. that night at a car wash in the 6700 block of Linwood Avenue in Shreveport. At approximately 9:00 p.m., Sarpy and Gallion arrived at the car wash to wait for the delivery. Across the street, in an undercover van, a DEA surveillance team videotaped the car wash parking lot. After waiting some time for the cocaine to arrive, Sarpy called the same phone number that he had called earlier that day to set up the drug deal and was told that another person would be delivering the drugs. Approximately 20 minutes later, Sarpy received a page from a woman who informed him that a person named "Chucky" was en route to deliver the drugs, and would be there in about 20 minutes in a green vehicle. Sarpy and Gallion then left the car wash and waited approximately one mile away for the surveillance team to notify them when the green car arrived.

Shortly thereafter, the surveillance team informed them that a green Nissan Altima containing three black males had arrived. The surveillance team noted that the man riding in the passenger seat got out, placed a white package in a nearby trash can, and was back in the car, waiting with the driver and a third man who was in the backseat. Sarpy and Gallion then returned to the car wash and stopped five to seven feet from the green car, which was backed into one of the car wash stalls. At trial, Sarpy testified that the car lot "was lit up decent" and he got a good look at the driver, noting that he had a gold tooth and a teardrop tattoo under his right eye. The driver asked Sarpy whether he had the money, and then nodded his head towards the trash can and indicated that the drugs were in the can. Sarpy then advised him that he wanted to check the drugs first; at that time, the man sitting in the backseat leaned forward and said something to the driver and the driver then told Sarpy, "hey, ain't nothing happening"—street slang indicating that the deal was off because the drug dealers were uncomfortable with the situation. Sarpy and Gallion then left the car wash and instructed the surveillance team to arrest the drug dealers once they retrieved the drugs from the trash can.

The passenger of the green car, who was later identified as Rickey D. Clark, went to retrieve the drugs from the trash can, which prompted the surveillance team to move in. Once the surveillance team moved in, the green Nissan sped away, leaving Clark behind. Sarpy saw Clark running across Linwood Avenue with a white object in his hand. Several officers from the surveillance van pursued Clark. Sarpy and Gallion pursued the green car in a high speed chase, but eventually abandoned their pursuit once they determined that it had gotten too far away. Meanwhile, the other officers found Clark hiding under a house a block from the car wash. Upon conducting a canvass of the nearby area, the officers discovered a bag of cocaine and a flannel shirt under another nearby house along the path that Clark had run. The officers identified the flannel shirt as the shirt Clark was wearing when he retrieved the drugs from the trash can and fled from the police. Agent Sarpy also identified Clark as the same man he had seen in the passenger seat of the green Nissan. The next day, a fingerprint expert found prints on the white bag matching Clark's, but there were no matches to defendant Furgerson. The contents of the bag were later confirmed by the crime lab to be 252.41 grams of pure, uncut powder cocaine.

Within 24 hours, agents Sarpy and Gallion, through mug shots at the SPD, identified the driver of the green Nissan as the defendant, Thomas L. Furgerson, aka "Chucky." Agent Sarpy then obtained a warrant to arrest Furgerson; he was subsequently taken into custody at a traffic stop.

On March 25, 1999, Furgerson was tried together with Clark. Both were found guilty of possession of 200 grams or more, but less than 400 grams, of cocaine, a Schedule II controlled dangerous substance. On March 2, 2000, Furgerson was sentenced to serve 30 years at hard labor, without benefit of parole, probation, or suspension of sentence, and to pay a fine of $100,000.00 or, in default thereof, serve 1000 days in the parish jail, credit for time served.¹ This appeal followed.

Discussion

On appeal, Furgerson urges three assignments of error: that the trial court erred by not granting him a new trial; that the trial court erred by not granting his motion for a post-verdict judgment of acquittal because the evidence was insufficient to sustain a conviction; and that his sentence is excessive. When issues are raised on appeal concerning both the sufficiency of the evidence and one or more trial errors, this court reviews the sufficiency of the evidence claim first because if the entirety of the evidence is insufficient to support the conviction, the accused must be acquitted and the remaining issues concerning trial error become moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); State v. Fuller, 32,734 (La.App.2d Cir.12/17/99), 759 So.2d 104, writ denied, 00-0159 (La.8/31/00), 766 So.2d 1273. Therefore, we shall address Furgerson's three assignments of error in practical order, rather than as briefed.

Sufficiency of the Evidence

In this assignment of error, Furgerson contends that the trial court erred by not granting his motion for post-verdict judgment of acquittal, urging that the evidence presented by the state was not sufficient to support a conviction for possession of 200-400 grams of cocaine. A motion for post-verdict judgment of acquittal raises the question of sufficiency of the evidence and shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916; La.C.Cr.P. art. 821B.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper 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. 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; State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (1992). The Jackson standard is applicable in cases involving both direct and circumstantial evidence.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. 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 (1992).

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, 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). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 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. White, 28,095 (La. App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

Possession of a controlled dangerous substance is defined in La. R.S. 40:967C as the knowing and intentional possession of cocaine without a valid prescription or order from a practitioner while acting in the course of his profession. Louisiana courts have consistently held that guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance, and such knowledge may be inferred from the circumstances. State v. Goiner, 410 So.2d 1085 (La.1982); State v. Lias, 28,091 (La. App.2d Cir.5/8/96), 674 So.2d 1044; State v. Ferrell, 25,851 (La.App.2d Cir.3/30/94), 634 So.2d 977. Mere presence in an area where drugs are discovered is insufficient to support a finding of possession. State v. Cann, 319 So.2d 396 (La.1975); State v. Ferrell, supra; State v. Young, 618 So.2d 1149 (La.App. 2d Cir.1993). In order to prove...