State v. Owens
Decision Date | 13 December 1989 |
Docket Number | No. 89-KA-428,89-KA-428 |
Citation | 554 So.2d 294 |
Parties | STATE of Louisiana v. Anthony OWENS. |
Court | Court of Appeal of Louisiana — District of US |
Dan L. Gilbert, New Orleans, for defendant/appellant.
John M. Mamoulides, Dist. Atty., Andrea Janzen, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff/appellee.
Before GAUDIN, GRISBAUM and WICKER, JJ.
Anthony Owens appeals his bench conviction and sixty-day sentence for simple possession of marijuana, La.R.S. 40:966. We affirm the conviction, vacate the sentence, and remand for resentencing.
Owens was driving his automobile, with three passengers, when he was stopped for speeding and going through a red light. The troopers making the stop found marijuana under the driver's seat and in the console. The marijuana was accessible to Owens, but it also could be reached by the other people occupying the car.
Owens complains that the proof of his crime was insufficient, that he should have been sentenced pursuant to La.R.S. 40:983, and that his sentence is unconstitutionally excessive.
In order to convict him, the state must prove that Owens knowingly or intentionally possessed marijuana. La.R.S. 40:966 C. Constructive possession, meaning the marijuana was subject to Owens' dominion and control, is sufficient. State v. Sweeney, 443 So.2d 522 (La.1983).
Only prosecution witnesses testified, including the arresting officers and a forensic scientist. Two Louisiana State Policemen, Troopers Dike and Winkler, testified that Owens, driving his own Mustang, passed them on the right going fast, through a red light, at 4:20 in the morning. They chased him briefly until he pulled over; and Owens got out of the car, leaving his three passengers in their seats. His speech was slurred, his eyes were bloodshot, and there was an odor of alcohol on his breath. Dike asked for his driver's license and accompanied him to the car so that he could get into the driver's seat and retrieve his license from the console. Dike, who was shining his flashlight into the car, saw a baggie in the console containing green vegetable matter which he recognized as marijuana. He asked Owens to pass him the dope, which Owens did. Winkler then arrested Owens and searched his car pursuant to that arrest. Winkler found a frisbee under the driver's seat containing roll papers, a matchbox with two partially-burned handrolled cigarettes, and traces of green vegetable matter. Laboratory analysis revealed the green vegetable matter to be marijuana.
The judge found the testimony of the troopers to be candid and believable. He found the state had proved its case beyond a reasonable doubt. With regard to Owens' possession of the marijuana, he found both areas, the console and the driver's seat, to be within his immediate control. He also noted the chase was very quickly begun and very quickly ended.
The Third Circuit has held...
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State v. Williams
...found in the automobile, even though it was never established who was the registered owner of the vehicle. In State v. Owens, 554 So.2d 294, 295-296 (La.App. 5th Cir.1989), this court cited Ashlock with approval and found that the driver of a vehicle had constructive possession of the marij......
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95-615 La.App. 5 Cir. 1/30/96, State v. Jackson
...sentence. With a vacant record, this court cannot determine whether the sentence imposed is excessive or appropriate. State v. Owens, 554 So.2d 294 (La.App. 5th Cir.1989). Recently, in State v. Cook, 598 So.2d 423 (La.App. 5th Cir.1992) this court set aside two fifteen year sentences impose......
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