State v. Lowery

• Citation: 609 So.2d 1125
• Decision Date: 02 December 1992
• Docket Number: No. 24191-KA,24191-KA
• Parties: STATE of Louisiana, Appellee, v. Douglas LOWERY, Appellant.
• Court: Court of Appeal of Louisiana (US)

Page 1125

609 So.2d 1125

STATE of Louisiana, Appellee, v. Douglas LOWERY, Appellant.

No. 24191-KA.

Court of Appeal of Louisiana Second Circuit.

Dec. 2, 1992.

Rehearing Denied Jan. 14, 1993.

Steven A. Hansen, Monroe, for appellant.

Richard Ieyoub, Atty. Gen., Jerry L. Jones, Dist. Atty., Marcus R. Clark, Asst. Dist. Atty., for appellee.

Before MARVIN, SEXTON and NORRIS, JJ.

SEXTON, Judge.

The defendant, Douglas Lowery, was charged by bill of information with one count of possession of marijuana with the intent to distribute, a violation of LSA-R.S. 40:966(A)(1), and one count of conspiracy to distribute marijuana, a violation of LSA-R.S. 40:979 and LSA-R.S. 40:966. After a trial by jury, the defendant was convicted as charged on both counts. On the possession with intent to distribute conviction, the defendant was sentenced to 28 years at hard labor and a $5,000 fine, or in default of the fine, to serve one additional year imprisonment. On the conspiracy to distribute marijuana conviction, the defendant was sentenced to ten years at hard labor, to run concurrently with the previous sentence. Defendant now appeals his convictions and sentences asserting four assignments of error. We affirm the defendant's conviction and sentence for possession with intent to distribute and reverse his conspiracy conviction.

FACTS

On January 16, 1991, Louisiana State Trooper Jackie Coleman observed a 1987 GMC pickup truck, driven by the defendant, Douglas Lowery, speeding on I-20 in Monroe, Louisiana. Officer Coleman gave pursuit and stopped the vehicle for speeding. As he walked beside the vehicle, Officer Coleman detected a strong odor of marijuana coming from the rear of the truck.

Officer Coleman asked the defendant, who appeared extremely nervous, for his license and registration papers. Defendant was able to produce his North Carolina driver's license, but he was unable to produce the registration papers. Officer Coleman called in the defendant's name for a computer check, which revealed that he had several prior drug-related convictions. The defendant then found the registration papers to the vehicle which showed the truck was registered to Jonathan Barfoot. The defendant claimed that Mr. Barfoot was his nephew. The officer became more suspicious when the defendant could not remember the name of the town that he was coming from. Officer Coleman then wrote the defendant a citation for speeding and asked him to consent to a search of the truck.

The defendant agreed to the search and signed a consent to search form. Officer Coleman then called for a backup, and when Officer Gary Beasley arrived, the search began. In the cab of the truck, Officer Coleman found two motel keys and receipts to two motels in Maryland. The officer also found a partially smoked marijuana cigarette in the ashtray. In the camper, Officer Coleman found 23 bundles of marijuana, which were packaged in garbage bags and cellophane. Also found in the rear of the truck was an empty briefcase with broken locks. The defendant was immediately placed under arrest and a search of his person revealed $562 in cash.

Narcotics officer George Johnston was then called to the scene. The marijuana in the truck was then transported back to state police headquarters. The marijuana was tagged and its total weight was determined to be 271 pounds. Officer Johnston then interviewed the defendant, who admitted the marijuana belonged to him. When asked if there were other people involved, the defendant stated: "You have me. I'll do the time. I'm not going to help you get the other people involved in this."

TESTIMONY OF THE OFFICERS

On appeal, defendant contends the trial court erred in allowing state police officers to testify as to other cases in which they participated relative to narcotics pricing, trafficking, and packaging. Defendant contends that the testimony of the officers is irrelevant and should not have been allowed into evidence. Defendant asserts that the testimony concerning previous narcotics cases unfairly tainted the jury to the evidence at hand, which lead to him being improperly convicted.

In the instant case, the only police officer who testified to other drug-related cases in which he was involved was Officer Johnston. Officer Johnston testified about his work as a undercover agent, the value of marijuana in Louisiana and other states, the estimated street value of the marijuana in question, his narcotics investigations in other states, and the difference between homegrown marijuana and that grown in other states.

Defense counsel objected to the foregoing testimony based upon the lack of foundation and relevancy. The trial court overruled the objection.

LSA-C.E. Art. 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. State v. Digilormo, 505 So.2d 1154 (La.App. 3d Cir.1987), writ denied, 511 So.2d 1153 (La.1987).

A review of the record indicates that all of Officer Johnston's testimony concerning his prior narcotics cases was based on personal knowledge he had acquired from his 11 years as a law enforcement officer. Furthermore, the testimony of Officer Johnston concerning the packaging of marijuana and the street value in dosage units of the narcotic drug was relevant to the issue of intent to distribute the marijuana. State v. Green, 508 So.2d 602 (La.App. 2d Cir.1987); State v. Winzer, 545 So.2d 1259 (La.App. 2d Cir.1989). Testimony that the instant marijuana was not homegrown may be irrelevant, but it is not prejudicial to the defendant. State v. Mims, 524 So.2d 526 (La.App. 2d Cir.1988), writ denied, 531 So.2d 267 (La.1988); appeal after remand, 550 So.2d 760 (La.App. 2d Cir.1989), 566 So.2d 661 (La.App. 2d Cir.1990), writ denied, 569 So.2d 970 (La.1990). This assignment of error has no merit.

SUFFICIENCY OF THE EVIDENCE

Defendant also contends that there was insufficient evidence to support either of his convictions. As to his conspiracy conviction, defendant contends there is a lack of evidence of another person's involvement, therefore, there could be no conspiracy. Defendant also asserts that there was insufficient evidence to support the conviction for possession with intent to distribute because it was based on a theory of what the police officers thought he would do with the "moderate" amount of marijuana found in his possession. Defendant contends that no proof of his specific intent to distribute the marijuana was offered into evidence. Accordingly, defendant contends that both of his convictions should be reversed.

The standard of review for sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the state proved the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984); State v. Hobbs, 494 So.2d 1246 (La.App. 2d Cir.1986). Furthermore, LSA-R.S. 15:438 provides that when circumstantial evidence is used to convict, every reasonable hypothesis of innocence must be excluded. This statutory rule is not a separate test from the Jackson standard and does not establish a stricter standard of review in circumstantial evidence cases. Therefore, all of the evidence, both direct and circumstantial, must be sufficient under the Jackson standard to satisfy a rational juror that a defendant is guilty beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142 (La.1985).

We first consider defendant's complaints about his conviction for conspiracy to distribute marijuana. Criminal conspiracy is defined in LSA-R.S. 14:26A as follows:

A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing a crime; provided that an agreement or combination to commit a crime shall not amount to criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

In a conspiracy, it is the combination of at least two minds for an unlawful purpose which is the foundation of the offense. Conspiracy imports a corrupt agreement between not less than two people with guilty knowledge on the part of each. The clear purpose of LSA-R.S. 14:26 is to criminalize the conduct of two or more persons who intend a criminal act and as a result of that intention--manifested as an agreement or combination--one of these does something in furtherance of the intended criminal act. State v. Joles, 485 So.2d 212 (La.App. 2d Cir.1986).

The state's burden in proving the defendant committed conspiracy to distribute marijuana is to show that an agreement or combination of two or more persons existed for the specific purpose of distributing marijuana and that one or more parties to the agreement did an act in furtherance of the agreement's object. State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991). The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Perez, supra.

In the instant case, the defendant was caught with 271 pounds of marijuana in the truck and $562 on his person. An empty briefcase, two motel keys, and two motel receipts were also found in the truck. Defendant also gave the previously noted statement to Officer Johnston to the effect that he would not help the police get the other people involved. ¹ The state argues that the above evidence, along with the fact that the defendant was traveling from Texas to North...