State v. Sanders

• Decision Date: 11 April 2003
• Docket Number: No. 36,941-KA.,36,941-KA.
• Parties: STATE of Louisiana, Appellee, v. Fredrick SANDERS aka Jerome Williams, Appellant.
• Court: Court of Appeal of Louisiana — District of US

842 So.2d 1260

STATE of Louisiana, Appellee, v. Fredrick SANDERS aka Jerome Williams, Appellant.

No. 36,941-KA.

Court of Appeal of Louisiana, Second Circuit.

April 11, 2003.

COPYRIGHT MATERIAL OMITTED

Charles L. Kincade, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary Stephen Aycock, Assistant District Attorney, for Appellee.

Before STEWART, PEATROSS and DREW, JJ.

DREW,

A petit jury (10-2) convicted Fredrick Sanders (aka Jerome Williams) of possession of marijuana with intent to distribute. La. R.S. 40:967. The trial court imposed a sentence of eight years at hard labor, to be served consecutively with another sentence, granting the mandatory credit for time served. Sanders appeals his conviction and sentence. We affirm.

FACTS

On September 2, 2001, at approximately 5:10 a.m., Sterlington Police Officer Jason Smalling observed a vehicle speeding and swerving across the center line and fog line of U.S. Hwy. 165 South in Ouachita Parish. The officer made a traffic stop of the car, driven by Dedrick Sanders aka Tyrone Williams ("Dedrick/Tyrone"). At the time of the stop, Dedrick/Tyrone's twin brother, Frederick Sanders aka Jerome Williams ("Frederick/Jerome"), was a guest passenger in the front seat.

Officer Smalling asked the driver for his license. Dedrick/Tyrone replied that he did not have a valid driver's license. He gave his name as "Tyrone Williams." Officer Smalling noticed that the driver exhibited slurred speech and was clearly impaired. There was an open fifth of Hennessy Cognac in one cup holder in the passenger compartment. The officer also noticed a strong odor associated with marijuana. Dedrick/ Tyrone was arrested for DWI under the name "Tyrone Williams." While frisking Dedrick/Tyrone, Officer Smalling noticed that a large clear plastic bag, containing six individually-wrapped bags of marijuana, fell from Dedrick/Tyrone's left pant leg.¹ The officer also felt a long slender object inside Dedrick/Tyrone's left front pocket, resulting in Smalling's seizure of $610 cash as well as three shotgun shells. When the officer inquired as to his employment, Dedrick/Tyrone first replied, "No," then stated that he cut hair. Officer Smalling put the driver into the back of his patrol car, as per agency policy and his practice.

Officer Smalling then requested that Fredrick/Jerome exit the vehicle. In checking for weapons, the defendant was handcuffed for the officer's safety.

Ouachita Deputy Curtis Dewey and Sterlington Assistant Chief James Laing joined Officer Smalling at the scene. As Smalling was retrieving the open container of cognac from the vehicle, he found a partially-smoked marijuana cigarette in a cup holder. Both Dedrick/Tyrone and Fredrick/Jerome denied knowledge of the marijuana cigarette. Officer Smalling then placed this defendant, Fredrick/Jerome, under arrest for possession of marijuana. The officer's actions were confirmed at trial by Assistant Chief Laing.

During vehicular inventory, Smalling found a loaded .32 caliber semiautomatic Berretta pistol in plain view on the passenger-side floorboard, directly in front of where Fredrick/Jerome had been seated. Again, both defendants denied any knowledge of the firearm. As the officer was placing Frederick/Jerome into the back of his patrol car, Smalling observed two individually-wrapped bags of marijuana fall from the defendant's left pant leg.

After booking both the defendant and his twin brother under the names of "Jerome Williams" and "Tyrone Williams," respectively, Officer Smalling later learned their true identities—Fredrick Sanders and Dedrick Sanders.

Dedrick/Tyrone, the driver, pled guilty to possession of marijuana with intent to distribute and was sentenced to five years at hard labor, suspended, and placed on five years supervised probation.

After a jury trial, this defendant, Fredrick Sanders, was found guilty as charged of the same crime, possession of marijuana with intent to distribute. This defendant being a prior felon, the trial court sentenced him to eight years at hard labor, to be served consecutively with any other incarceration time.

DISCUSSION

The defendant argues that no rational trier of fact could have found the defendant guilty of possession of marijuana with intent to distribute, in that:

• the amount of marijuana actually on Fredrick/Dedrick's person is an amount consistent with personal consumption;

•the jury may have been improperly persuaded to convict the defendant based on the large amount of money and the additional drugs found on the defendant's brother;

• the jury may have been improperly persuaded to convict the defendant based on the loaded gun found in the vehicle; and

• the only connection between this defendant with the gun, money, and larger amount of drugs is physical proximity.

The defendant concedes that sufficient evidence existed to find him guilty of simple possession, a misdemeanor.

The state counters that the direct and circumstantial evidence presented at trial clearly supports the defendant's conviction of possession of marijuana with intent to distribute, in that:

• the jury's verdict should be given great deference and all evidence should be examined in the light most favorable to the prosecution;

• Sanders wasn't hitchhiking with a stranger at 12:00 noon—he was cruising with his apparently unemployed (except for dealing dope) twin brother at 5:10 a.m., certainly not a "normal" time to drive around;

• within the passenger compartment of the jointly-occupied vehicle were:

• eight individually-wrapped bags of marijuana (six and two bags, respectively, each bag being packaged exactly the same and each bag being hidden by the twin brothers in a similar manner),

• a loaded .32 caliber semiautomatic pistol, on the passenger floorboard, chambered and ready for use (noting the routine connexity between drugs and guns²), and

• $610 cash, later found to be laced with marijuana, showing a connexity between this $610 cash cache and the drug trade • a partially-smoked marijuana cigarette was in plain view between the brothers;

• Officer Smalling and Assistant Chief Laing, both experienced law enforcement officers, testified, without contradiction, that in their opinion the eight individually-wrapped bags were packaged in a manner customarily associated with distribution;

• each brother lied to the officer, providing similar aliases, further proving their actions were in concert; and

• this defendant's twin brother pled guilty to the same crime for which this defendant was convicted at jury trial, weakening any theory that these two people might have just been out before dawn smoking weed together.

Applicable Law

When issues are raised on appeal. both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason. for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a. rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ deified, 97-1203 (La.10/17/97), 701 So.2d 1333.

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, supra.; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 132. 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

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 defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens. 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

To support a conviction for possession with intent to distribute, the state must prove: (1) possession of the controlled dangerous substance; and (2) intent to distribute it. La. H.S. 40:967(A)(1); State v. Thomas, 32,495 (La.App.2d Cir.10/27/99), 745 So.2d 776, writs denied, 00-1008 (La.11/27/00), 775 So.2d 445, and 00-0242 (La.12/08/00), 775 So.2d 1076.

These elements were apparently proven to the jury, the members of which examined the evidence, and observed the only four witnesses presented, all from the state.

Testimony of street value and dosage of the drug is also relevant to the issue of intent. State v. Tornabene, 337 So.2d 214 (La.1976); State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575.

Mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. State v. Greenway, 422 So.2d 1146 (La.1982).

Application of Law to Facts

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