State v. Toups

• Decision Date: 15 October 2002
• Docket Number: No. 2001-K-1875.,2001-K-1875.
• Citation: 833 So.2d 910
• Parties: STATE of Louisiana v. Mary L. TOUPS a/k/a Mary Billiot.
• Court: Louisiana Supreme Court

833 So.2d 910

STATE of Louisiana v. Mary L. TOUPS a/k/a Mary Billiot.

No. 2001-K-1875.

Supreme Court of Louisiana.

October 15, 2002.

Rehearing Denied January 24, 2003.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Juliet L. Clark, Terrytown, Counsel for Applicant.

Kevin V. Boshea, New Orleans, Counsel for Respondent.

VICTORY, J.

We granted this writ to determine whether the court of appeal erred in vacating defendant's conviction for possession of cocaine, finding that the State failed to prove the element of possession. After reviewing the facts and the applicable law, we reverse the judgment of the court of appeal and reinstate defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

After receiving confidential information that a person named "Stan" was selling drugs from a residence at 633 North Scott Street and conducting a controlled purchase of drugs from that address on the afternoon of October 18, 1999, on that evening, New Orleans Police Department Officer Dennis Bush and five other officers executed a search warrant at that residence. Before executing the warrant, the officers conducted a surveillance of the residence for approximately thirty minutes. After receiving no response at the front door, Bush entered the shotgun residence. He observed defendant Mary Toups and Stanley Williams, the known resident of that address, seated on a sofa in the front living room, facing one another and apparently engaged in conversation.¹ Two pieces of crack cocaine, three clear glass crack pipes and a razor blade were found on a coffee table positioned directly in front of defendant and Williams. Defendant was approximately three feet from the drugs on the table, which were directly in front of her. Another 16 rocks of cocaine found at the home were located in a plastic container that was next to Williams. Police also seized $304.00 in cash from the same area. The officers did not see defendant or Williams smoking from the pipes. The officers did not see defendant enter the residence during their 30-minute surveillance, indicating she was in the residence for at least that long, but were unable to find any indication that defendant resided there. Defendant falsely gave her name as "Mary Billiot" at the time of her arrest. While defendant was not charged with any offense with regard to the cocaine in the container, the State filed a bill of information charging defendant with possession of the two pieces of cocaine found on the coffee table.²

At trial, in addition to the above testimony, a criminologist with the New Orleans Police Department Crime Laboratory testified that the rocks in the container, the two additional rocks, and the pipes all tested positive for cocaine. None of the items were submitted for fingerprint analysis.

Defendant was found guilty as charged by a jury of six and was sentenced as a multiple offender to serve four years in the department of corrections. On May 23, 2001, her conviction was reversed by the Fourth Circuit Court of Appeal, which found that the evidence introduced at trial was constitutionally insufficient to support the conviction. State v. Toups, 00-1944 (La.App. 4 Cir. 5/23/01), 792 So.2d 18. We granted the State's writ application. State v. Toups, 01-1875 (La.5/24/02), 815 So.2d 851.

DISCUSSION

In reviewing the sufficiency of the evidence to support a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved the essential 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). Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207 (La.1984). La. R.S. 15:438, however, does not establish a stricter standard of review than the more general rational juror's reasonable doubt formula; it is merely an evidentiary guide for the jury when considering circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). Finally, the fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So.2d 1305 (La.1988). A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319 (La.1992). Toups was charged with possession of cocaine, a violation of La. R.S. 40:967, which makes it unlawful for any person to knowingly or intentionally possess a controlled dangerous substance. The State need not prove that the defendant was in physical possession of the narcotics found; constructive possession is sufficient to support a conviction. The law on constructive possession is 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").

Toups argued to the jury that the only evidence connecting her with the drugs was her mere presence in the area where the drugs were found. However, most, if not all, of the factors used to determine whether a defendant exercised dominion and control sufficient to constitute constructive possession have been met in this case: (1) Toups inevitably had knowledge that drugs were in the area in that they were in plain view directly in front of her; (2) Toups had access to the area where the drugs were found; (3) Toups was in very close physical proximity to the drugs; and (4) the area was frequented by drug users, as the police received confidential information on the morning of October 18, 1999 that Williams was conducting drug transactions and the police did a controlled purchase of drugs from Williams that afternoon, and another 16 rocks of cocaine were on the sofa next to Williams. While there was no evidence presented of any specific relationship between Toups and Stanley Williams, it is reasonable to conclude that they were not strangers given that she was with Williams for at least 30 minutes prior to their arrest and that Williams would not sit at his coffee table with crack cocaine in plain view ready to be smoked with someone he did know personally or someone who he did not know would be amenable to using the drugs. Further, although there was no evidence presented of recent drug use, the fact that the drugs and paraphernalia were on the table in front of them and that the paraphernalia contained drug residue suggests that they were preparing to use, or had already used, drugs. Finally, it is important to note that the jury was presented with evidence that Toups gave a false name, "Mary Billiot," to the police upon her arrest, indicating consciousness of guilt. State v. Davies, 350 So.2d 586 (La.1977) (evidence of flight, concealment, and attempt to avoid apprehension indicate consciousness of guilt and is one of the circumstances from which the jury may infer guilt); State v. Wade, 33,121 (La.App. 2 Cir. 5/15/00), 758 So.2d 987 (concealing identity by giving false name relevant because it indicates consciousness of guilt). The jury was presented with all this evidence and determined that Toups exercised dominion and control over the drugs sufficient to constitute constructive possession. We find that this evidence was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.

We disagree with the court of appeal's view that "[c]onsidering the evidence adduced at trial, one can only speculate as to what the defendant was doing in the residence," suggesting that "[s]he could have been a non-drug using member of a neighborhood church proselytizing defendant." 792 So.2d at 23. The jury rejected the "innocent" hypothesis that Toups was merely present at the sofa in front of illegal drugs, for the obvious reasons that there was no evidence presented to lead the jury to that conclusion and that any hypothesis other than possessing drugs was unreasonable. We agree.

Further, the cases relied upon by the court of appeal in reversing defendant's conviction are distinguishable. In State v. Bell, supra,

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