State v. Jacobs

• Decision Date: 04 March 2009
• Docket Number: No. 2008-1068.,2008-1068.
• Citation: 6 So.3d 315
• Parties: STATE of Louisiana v. Moses Maine JACOBS.
• Court: Court of Appeal of Louisiana — District of US

6 So.3d 315

STATE of Louisiana v. Moses Maine JACOBS.

No. 2008-1068.

Court of Appeal of Louisiana, Third Circuit.

March 4, 2009.

Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, Moses Maine Jacobs.

James C. Downs, District Attorney, Brian Mosely, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.

Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.

PAINTER, Judge.

Defendant, Moses Maine Jacobs, appeals his conviction for possession of cocaine, greater than twenty-eight grams and less than two hundred grams, a violation of La.R.S. 40:967(F)(1)(a). For the following reasons, we affirm.

FACTS

On the evening of March 20, 2007, four Alexandria Police officers were patrolling an area known for drug activity in response to complaints made by the residents. The officers saw Defendant standing next to a car. As they approached, Defendant ran away. Two officers chased and caught him about two blocks from the vehicle. The remaining two officers looked into the vehicle and saw a razor blade, sandwich bags, and a cutting board with what was later determined to be crack cocaine on it on the center of the driver's seat.

On July 25, 2007, Defendant was charged by bill of information with possession of cocaine, greater than twenty-eight grams and less than two hundred grams, a violation of La.R.S. 40:967(F)(1)(a). A jury found Defendant guilty as charged on February 14, 2008. On March 3, 2008, Defendant was sentenced to serve thirty years at hard labor, five years of that time to be served without benefit of probation, parole or suspension of sentence. Defendant timely filed a pro se Motion to Reconsider Sentence on March 24, 2008, which was summarily denied on March 31, 2008. Defendant is now before this court on appeal, asserting through counsel that the evidence is not sufficient to support his conviction and that the trial court erred in granting the State's reverse Batson challenge. Defendant also filed a pro se brief, claiming ineffective assistance of counsel, that he did not receive a fair trial, and that a jury charge was unfair.

DISCUSSION

Errors Patent

All appeals are reviewed for errors patent on the face of the record as set out in La.Code Crim.P. art. 920. After reviewing the record, we find one error patent. However, it requires no action on the part of this court.

The trial court failed to impose a mandatory fine. Louisiana Revised Statutes 40:967(F)(1)(a) provides that:

Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

The trial court's failure to impose a mandatory fine renders Defendant's sentence illegally lenient. However, this court will not recognize an illegally lenient sentence claim unless it is raised as error.

Sufficiency of the Evidence.

Defendant argues that the jury's verdict fails to meet the legal standard for sufficiency of the evidence. The analysis for a claim of insufficient evidence is wellsettled:

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.

To support a conviction for possession of cocaine, the State had to prove that Defendant was in possession of cocaine and that he knowingly possessed it. La.R.S. 40:967. The amount of cocaine is not in dispute.

Although Defendant had no cocaine on his person at the time he was apprehended, the testimony and evidence at trial indicate that he had constructive possession of the cocaine seized in this case. The supreme court in State v. Toups, 01-1875, pp. 3-4 (La.10/15/02), 833 So.2d 910, 913, summarized the law on constructive possession as follows:

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug....

State v. Trahan, 425 So.2d 1222 (La. 1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).

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. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: "evidence that the area was frequented by drug users").

The State established that Defendant was in an area frequented by drug users. Corporals Todd Beamon, Clifton Fairbanks, and Chris Cooper with the Alexandria Police Department testified that on March 20, 2007, they were patrolling an area in an unmarked unit to investigate complaints from residents that drugs were being sold. According to Corporals Beamon and Fairbank, the area was well known for drug activity.

The evidence at trial showed that Defendant had guilty knowledge. The supreme court in State v. Davies, 350 So.2d 586 (La.1977), established that evidence of flight, concealment, and attempt to avoid apprehension is indicative of consciousness of guilt and may be considered by a jury to infer guilt. See also State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529. Corporals Beamon and Fairbanks both testified that as they approached Defendant to get a look at him, he ran from the officers until he was physically restrained and handcuffed by Corporal Fairbanks. Based on their experience as officers and the fact that they were in a high crime area, Corporals Beamon and Fairbanks stated that Defendant's actions indicated to them that he was involved in criminal activity.

The testimony and evidence also established that Defendant had access to the area where the drugs were found and that he was in close proximity to the drugs. Corporals Beamon and Fairbanks testified that when they first arrived and before Defendant ran, they saw him standing next to a vehicle while no one else was nearby. More specifically, Corporal Fairbanks stated that as they approached him, Defendant was walking from the passenger side door toward the front of the vehicle. Corporal Cooper, who stayed behind with the vehicle along with Corporal Kitchen, testified that he did not see anyone else around the vehicle and that the keys were in the lock of the closed passenger side door. Corporal Cooper learned soon thereafter that the vehicle was registered to Defendant.

Corporal Cooper testified that when he walked up to the vehicle, he could see a cutting board on the center of the driver's seat and what he believed to be crack cocaine on the cutting board, in addition to a razor blade and sandwich bags. Based on his experience and training, Corporal Cooper stated that a cutting board and razor blade are used to cut a patty or cookie of crack cocaine into pieces that are packaged in sandwich bags to be sold. Corporal Cooper's suspicion with regard to these items was corroborated by the discovery of crack cocaine residue on the cutting board and razor blade seized from Defendant's vehicle. Further, Corporal Fairbanks estimated that Defendant had between $1,000 to $1,200 on his person when he was apprehended.

In State v. Champagne, 02-1218 (La.6/5/02), 819 So.2d 294, the trial court granted the plaintiff's motion to suppress evidence of cash found on the defendant at the time of his arrest, specifically $2,054.00, and scales and baggies found during a search of his residence. The supreme court reversed, concluding that the evidence formed an...