Algar Ferguson v. Judge James A. Knight

792 F.2d 581
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 29, 1986
Docket85-5726
StatusPublished
Cited by5 cases

This text of 792 F.2d 581 (Algar Ferguson v. Judge James A. Knight) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Algar Ferguson v. Judge James A. Knight, 792 F.2d 581 (6th Cir. 1986).

Opinions

PER CURIAM.

This is a habeas corpus proceeding in which the petitioner, Algar Ferguson, contends that a state court convicted him of a felony on insufficient evidence. We find that the evidence passes constitutional muster, and we affirm the district court’s denial of the writ.

I

The calendar of the Lawrence County Kentucky District Court for September 3, 1980, shows that Algar Ferguson entered guilty pleas on that date to three charges: resisting arrest, trafficking in marijuana, and possession of marijuana. A fourth charge — public intoxication — was dismissed on motion of the Commonwealth.

About four months later, on January 14, 1981, Mr. Ferguson was taking his ease in a friend’s automobile, parked in the parking lot of an establishment identified as the Collier Creek Community Market. The owner of the car was in the front seat with a female companion. Ferguson was in the back seat with another young woman. Ferguson was engaged in throwing beer cans out of the car when two Kentucky State Troopers pulled up.

The troopers asked Ferguson to get out of the car, which he did, and to take his hands out of his pockets, which he refused to do. One of the troopers then put his hand on the outside of Ferguson’s jacket and felt metal inside. Yelling for assistance from the other trooper, he put Ferguson up against the car and extracted from his pocket a .22 caliber pistol. Ferguson was then placed under arrest.

One of the troopers subsequently started picking up the beer cans, and in so doing he saw lying on the back seat, where Ferguson had been sitting, a roll of paper towels. Sticking out of the end of the paper towel roll was a plastic bag containing marijuana.

Further inspection disclosed a total of four small plastic bags, equal in size, of a type commonly called “dime bags” and commonly used for carrying an individual portion of marijuana. Three of the bags were empty, and one contained 19 grams (approximately two-thirds of an ounce) of marijuana. There was also a fifth bag, [583]*583larger in size than the others, that contained 37 grams of marijuana. The fifth bag was approximately twice as big as the others.

Ferguson was indicted and tried before a Kentucky jury on a charge of “Trafficking in a Controlled Substance ..., Second Offense.” (The minimum sentence of incarceration for a second trafficking offense, under Kentucky law, is one year in the penitentiary. The maximum sentence of incarceration for a first trafficking offense is one year in the county jail.)

The Commonwealth’s Attorney argued to the jury that the marijuana in Ferguson’s possession was considerably more than he would have had for personal use (an argument supported by the testimony of one of the troopers); that if the marijuana were for Ferguson’s personal use he would have had no need for the empty bags; and that marijuana from the big bag was to be transferred to the small bags and subsequently sold. In arguing that Ferguson intended to sell the marijuana — an essential element of the crime with which he was charged — the Commonwealth’s Attorney stressed the fact that Ferguson had pleaded guilty to trafficking in marijuana only four months prior to his arrest.

The jury (which under Kentucky law has responsibility for fixing punishment) returned a verdict of guilty of trafficking in marijuana for a second time. The jury believed that the evidence established, beyond a reasonable doubt, each of the four elements necessary, under the court’s charge, to support a conviction:

—That Ferguson had a quantity of marijuana in his possession;
—That he knew it was marijuana;
—That he had it with the intention of selling it; and
—That he had been convicted of trafficking in marijuana by a final judgment of the Lawrence District Court entered on or about September 3, 1980.

The jury fixed Ferguson’s punishment at one year in the penitentiary, the minimum sentence of incarceration provided for in the statute.

Ferguson appealed his conviction to the Kentucky Court of Appeals, which affirmed. The Kentucky Supreme Court denied discretionary review. Ferguson then applied to the U.S. District Court for a writ of habeas corpus under 28 U.S.C. § 2254. A federal magistrate filed a ten page report recommending denial of the petition, and the district court, having reviewed the record, adopted the magistrate’s report and entered judgment denying Ferguson’s application for habeas corpus relief. That judgment is now here on appeal.

II

It is axiomatic that this court is not to ask itself whether it believes the evidence at trial established guilt beyond a reasonable doubt. “Instead, the relevant question 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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). (Emphasis by the court.)

We think it would have been rational for the jury to find against Ferguson on the third element of the crime (intent to sell) if it could consider proof of the fourth element (a prior trafficking conviction) as evidence of intent.

Without proof of the prior trafficking conviction, the conclusion that Ferguson intended to sell any of the relatively small quantity of marijuana found with him on the back seat of the car would have been strained. There is no reason to believe that any of the three people in the car with Ferguson was a prospective customer. No one was smoking marijuana, as customers might have been doing, and the arresting officers detected no smell of marijuana smoke. Neither of the women was intoxicated, neither appeared to have any marijuana in her possession, and neither was arrested. The owner of the car was drunk, as was Ferguson, and there was no sub[584]*584stantial basis for concluding that the owner was intoxicated on marijuana rather than beer. Unless the circumstance that marijuana was not being used at the time of his arrest can be thought to support an inference that Ferguson was preserving his inventory for later sale, the only real evidence that Ferguson intended to sell the marijuana at some future time lay in the facts that the quantity of marijuana with which he was found arguably exceeded what he would have needed for personal use; that Ferguson had packaging materials with him; that he was carrying a weapon, which might also have been thought to be a tool of the trafficker’s trade; and that he had admittedly trafficked in marijuana in the past.

Most courts — including Kentucky’s (see, e.g., Marshall v. Commonwealth, 482 S.W.2d 765 (Ky.1972)) — refuse to admit evidence of similar past misconduct when offered for the sole purpose of proving that the defendant had a bad character and acted in conformity therewith. Cf. Rule 404(b) of the Federal Rules of Evidence.

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Algar Ferguson v. Judge James A. Knight
792 F.2d 581 (Sixth Circuit, 1986)

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792 F.2d 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/algar-ferguson-v-judge-james-a-knight-ca6-1986.