State of Louisiana v. Mister Ford

• Court: Louisiana Court of Appeal
• Decided: August 9, 2023
• Docket: 55,171-KA
• Status: Published

Opinion

Judgment rendered August 9, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,171-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

MISTER FORD Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 383,411

Honorable Erin Leigh Waddell Garrett, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Annette Fuller Roach

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

REBECCA ARMAND EDWARDS ERICA N. JEFFERSON ROSS STEWART OWEN Assistant District Attorneys

Before STONE, COX, and HUNTER, JJ. STONE, J.

This case arises from the First Judicial District Court, the Honorable

Erin Lee Garrett presiding. A unanimous jury found Mister Ford (the

“defendant”) guilty of seven crimes in all. The defendant was convicted of

one count of possession of at least 28 grams of methamphetamine with

intent to distribute and received a sentence of 18 years at hard labor. He was

also convicted of five counts of possession of a firearm by a convicted felon;

for these convictions, he received four 18-year hard labor sentences and one

20-year hard labor sentence.1 Finally, the defendant was convicted of

possession of a firearm while in possession of a controlled dangerous

substance and sentenced to 10 years at hard labor. The trial court decreed

that all of these sentences will run concurrently. The defendant now appeals

his convictions and his sentences. For the reasons stated herein, we affirm

the defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

In June of 2021, the defendant was on probation for his March 11,

2021, conviction of possession of controlled dangerous substances. As part

of his probation, the defendant was required to inform the probation office

where he would be residing during the term of his probation; he indicated he

would be living in a certain home which he did not own. On June 8, 2021,

the probation officers went to the home to do a “residence check.” The

defendant and his 14-year-old daughter were the only people present when

the officers arrived.

1 The predicate conviction was a March 2021 guilty plea to felony possession of controlled dangerous substances. In the defendant’s bedroom (per the defendant’s own admission), the

officers found a total of five firearms (four of which were loaded) and 173

grams of methamphetamine, along with two food scales and numerous

plastic baggies. One plastic baggie contained 110 grams of

methamphetamine. The other 63 grams of methamphetamine were

distributed between a plastic container and a straw. All contraband and

paraphernalia, except for one gun, was located in the closet of the

defendant’s bedroom. The gun discovered outside the closet was hidden

behind an object on the shelf above the head of the defendant’s bed. After

realizing the quantity of methamphetamine involved, the probation officers

stopped the search out of concern a “meth lab” might be present. In that

accord, the probation officers summoned narcotics agents John Berry and

Kevin Harris of the Caddo Parish Sheriff’s office. The narcotics agents

obtained a search warrant,2 and executed the search warrant.

The defendant admitted to Agent Berry that the methamphetamine

belonged to him, but claimed it was strictly for personal use. He was also

found to have $381 cash on his person. Based on a Drug Enforcement

Agency schedule of values, Agent Berry testified that the total value of the

methamphetamine seized from the defendant’s bedroom was approximately

$11,000. However, Agent Harris, who was admitted as an expert in the area

of drug trafficking, testified that the street value of methamphetamine had

declined significantly. In particular, he testified that methamphetamine had

at that time the street value of up to $600 per ounce, placing the total value

as high as $3,660. Both agents testified that the defendant’s possession of

2 While the search was ongoing, the homeowner returned. She reported that she had been out of town for roughly 3 weeks. 2 $381 cash on his person was consistent with distribution. Likewise, both

agents testified that the overall amount of methamphetamine found in the

defendant’s room was inconsistent with mere personal use. Agent Berry

testified that the plastic baggies found near the methamphetamine were

typically used for drug distribution.

Agent Harris noted in his testimony that only one of the plastic

baggies contained methamphetamine residue and explained that it is not

typical for a mere user to have an inventory of clean, unused packaging

material. He also stated that drug sellers, in addition to having a cache of

drugs, usually also have scales, an inventory of plastic baggies, and guns to

protect their merchandise. Finally, Agent Harris explained that selling and

using drugs are not mutually exclusive: sellers can also be users who sell for

fast cash or to support their habit. Agent Harris, as an expert witness,

concluded that the evidence was indicative of distribution, not mere

possession for personal use.3

ASSIGNMENTS OF ERROR

In this appeal, the defendant, in effect, urges four assignments of

error: (1) the evidence was insufficient to prove he had possession of the

methamphetamine; (2) the evidence was insufficient to prove he intended to

distribute the methamphetamine; (3) the evidence was insufficient to prove

he had possession of the guns; and (4) his sentence is excessive.

3 The defendant’s criminal history includes: (1) conviction of resisting an officer, public drunkenness, profane language, and disturbing the peace (all in connection with the same incident) in 2001; (2) convicted of possession of marijuana in 2003; (3) an arrest for misdemeanor possession of marijuana in 2004; (4) arrested for second degree murder in 2006; (5) convicted of felony possession of marijuana, second offense, in 2007; (5) convicted of felony possession of methamphetamine (schedule II controlled dangerous substance) in 2009; and (6) arrested for possession of schedule II CDS in 2019, convicted in March of 2021. 3 DISCUSSION

Sufficiency of the evidence

In State v. Alexander, 2022-01205 (La. 5/5/23)—So.3d--, 2023 WL

32638978, the Louisiana Supreme Court recently reiterated the general

framework for review of sufficiency of the evidence:

Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the due process standard of Jackson v. Virginia. Under…[that standard]…, 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. In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all of the evidence.

State v. Alexander, supra, also explains how sufficiency of the evidence

review is to be conducted when the state’s case relies largely on

circumstantial evidence:

Circumstantial evidence is evidence of one fact, or a set of facts, from which the existence of the fact to be determined may reasonably be inferred. In criminal cases, the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The Jackson standard leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts. Importantly, the due process standard in Jackson does not allow a jury to speculate on the probabilities of guilt where rational jurors would necessarily entertain a reasonable doubt. The requirement that jurors reasonably reject the hypothesis of innocence advanced by the defendant in a case of circumstantial evidence presupposes that a rational rejection of that hypothesis is based on the evidence presented, not mere speculation.

Possession of methamphetamine; intent to distribute. The defendant

argues that the State failed to sufficiently prove constructive or actual

4 possession of the methamphetamine and intent to distribute. He was

convicted pursuant to La. R.S. 40:967, which in relevant part, provides:

A. Manufacture; distribution. …[I]t shall be unlawful for any person knowingly or intentionally: (1) To …possess with intent to…distribute, or dispense, a controlled dangerous substance… B. Violations of Subsection A. Any person who violates Subsection A of this Section with respect to: (1) Except as otherwise provided in Paragraphs (2), (3), and (4) of this Subsection, a substance classified in Schedule II for an amount of: … (b) An aggregate weight of twenty-eight grams or more, shall be imprisoned at hard labor for not less than one year nor more than twenty years...

In State v. Grant, 54,847 (La. App. 2 Cir. 12/14/22), 352 So. 3d 179,

186–87 we stated:

To convict a defendant of possession of CDS, the state must prove that the defendant knowingly possessed an illegal drug. Possession may be established by showing that the defendant exercised either actual or constructive possession of the controlled dangerous substance. Actual possession means having an object in one’s possession or on one’s person in such a way as to have direct physical contact with and control of the object. The state need not prove the defendant actually possessed the drugs, as evidence of constructive possession is sufficient. Constructive possession is established by evidence that the drugs were within the defendant’s dominion and control and that the defendant had knowledge of its presence. Guilty knowledge is an essential element of possession of contraband and can be inferred from the circumstances. A defendant’s mere presence in area where drugs are located or association with one possessing drugs does not constitute constructive possession. However, proximity to the drug or association with the possessor, may establish a prima facie case of possession when colored by other evidence.

The defendant argues that the evidence was insufficient to support a

finding of possession of the methamphetamine, and was insufficient to

support a finding of intent to distribute. This argument is meritless. The

defendant admitted that the methamphetamine found in his bedroom was 5 indeed his. This admission alone constitutes sufficient evidence for

possession. Furthermore, the circumstances corroborate that admission.

Viewed as a whole, the five guns, two scales, numerous unused plastic

baggies, $361 cash, and amount of methamphetamine worth as much as

$3600, constitute sufficient proof that the defendant had intent to distribute.

All these items were stored in the defendant’s bedroom, and four of the five

guns were loaded. Testifying as an expert in drug trafficking, Agent Harris

concluded that this evidence indicated methamphetamine distribution, not

mere personal use. Accordingly, this assignment of error is without merit

and is rejected.

Possession of firearms. The defendant was convicted of the

contemporaneous possession of firearms and illegal possession of controlled

dangerous substances. He claims that the State failed to sufficiently prove

his actual or constructive possession of the firearms as necessary to establish

violation of La. R.S. 14:95(E), which provides:

If the offender uses, possesses, or has under his immediate control any firearm…while… unlawfully in the possession of a controlled dangerous substance …the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.

The defendant was also convicted of possessing a firearm as a

convicted felon, and likewise argues the state failed to sufficiently prove

possession of the firearms as necessary to establish violation of La. R.S.

14:95.1:

It is unlawful for any person who has been convicted of… any violation of the Uniform Controlled Dangerous Substances Law1 which is a felony…to possess a firearm or carry a concealed weapon. … 6 Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

In State v. Law, 45,435 (La. App. 2 Cir. 8/11/10), 46 So. 3d 764, 770,

we explained:

The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the firearm or through the constructive possession of the firearm. For purposes of the offense of possession of a firearm by a convicted felon, whether the proof is sufficient to establish possession turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature. Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. (Internal citations omitted).

All of the firearms were found in the bedroom that the defendant

admitted was his. Four of the five guns were found in the defendant’s

bedroom closet, wherein he admittedly stored his 173 grams of

methamphetamine and paraphernalia. The fifth firearm was found on a shelf

above the head of the defendant’s bed. The location of four of the guns in

the defendant’s bedroom closet with his methamphetamine was sufficient

evidence to prove that the defendant had dominion and control over these

firearms. Considering the totality of the evidence, the location of the fifth

gun on a shelf above the headboard of the defendant’s bed is also sufficient

to prove the defendant’s dominion and control over that firearm. Agent

Harris testified as an expert witness that drug dealers often have firearms to

7 protect their merchandise from robbers. Accordingly, this assignment of

error lacks merit and is rejected.

Excessive sentence

An excessive sentence claim is reviewed by examining whether the

trial court adequately considered the guidelines established in La. C.Cr. P.

art. 894.1, and whether the sentence is constitutionally excessive. State v.

Vanhorn, 52,583 (La. App. 2 Cir. 4/10/19), 268 So. 3d 357, writ denied, 19-

00745 (La. 11/19/19), 282 So. 3d 1065; State v. Wing, 51,857 (La. App. 2

Cir. 2/28/18), 246 So. 3d 711. First, the record must show that the trial

court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art.

894.1, not rigid or mechanical compliance with its provisions. The trial

court is not required to list every aggravating or mitigating circumstance so

long as the record reflects that it adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Croskey, 53,505

(La. App. 2 Cir. 5/20/20), 296 So. 3d 1151. The important elements which

should be considered are the defendant’s personal history (age, family ties,

marital status, health, and employment record), prior criminal record,

seriousness of offense, and the likelihood of rehabilitation. State v. Jones,

398 So. 2d 1049 (La. 1981); Croskey, supra. There is no requirement that

specific matters be given any particular weight at sentencing. Croskey,

supra. If the record clearly supports the sentence imposed, remand is

unnecessary even when the trial court fails to articulate a factual basis for the

sentence. State v. Harrell, 51, 966 (La. App. 2 Cir. 4/11/18), 247 So. 3d

1030.

Second, the court must determine whether the sentence is 8 constitutionally excessive. Id. Constitutional review turns upon whether

the sentence is illegal, grossly disproportionate to the severity of the offense,

or shocking to the sense of justice. A sentence violates La. Const. art. I, § 20

if it is grossly out of proportion to the seriousness of the offense or nothing

more than the purposeless infliction of pain and suffering. A sentence is

grossly disproportionate if, when the crime and punishment are viewed in

light of the harm to society, it shocks the sense of justice. Id.; State v. Baker,

51,933 (La. App. 2 Cir. 4/11/18), 247 So. 3d 990, writ denied, 18-0858 (La.

12/3/18), 257 So. 3d 195, and writ denied, 18-0833 (La. 12/3/18), 257 So. 3d

196.

The trial court has wide discretion in the imposition of sentences

within the statutory limits, and sentences should not be set aside as

excessive in the absence of manifest abuse of discretion. Vanhorn, supra. A

trial judge is in the best position to consider the aggravating and mitigating

circumstances of a particular case, and, therefore, is given broad discretion

in sentencing. Croskey, supra. Absent specific authority, it is not the role of

an appellate court to substitute its judgment for that of the sentencing court

as to the appropriateness of a particular sentence. Vanhorn, supra.

It is well established that the sentencing court may consider other

charges pending against the defendant at the time of sentencing. La. C.Cr.P.

art. 875; State v. Hatter, 338 So. 2d 100 (La. 1976) (“[I]t is clear that a trial

judge may consider evidence of other offenses in determining sentence”);

State v. Anderson, 30,060 (La. App. 2 Cir. 10/29/97), 702 So. 2d 40 (“For

purposes of sentencing, the court may draw from sources beyond mere

convictions…The court may consider prior arrests, and suspicions of

criminal activity without actual proof the defendant committed the other 9 offenses”). Recently, in State v. Dale, 53,736 (La. App. 2 Cir. 1/13/21), 309

So. 3d 1031, this court stated:

In selecting a proper sentence for a criminal defendant, a trial judge is not limited to considering only prior convictions and may review all evidence of prior criminal activity. When evaluating a defendant’s criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. For example, the trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prossed. (Internal citations omitted).

In effect, the defendant received a 20-year sentence on his conviction

of seven felonies in the instant case. The sentencing transcript reflects that

the trial court did not articulate any factual basis for the sentences, except

stating that it did not believe defense counsel’s suggestion that the

defendant’s commission of the crimes was due in part to his drug addiction.

Regardless, the record clearly supports the sentence, and it is not

excessive. At the time the defendant was found with a cache of guns and

methamphetamine, he was already on probation in relation to his felony

conviction for possession of methamphetamine only three months prior.

This demonstrates the defendant’s recalcitrance and a high likelihood of

further recidivism. The defendant’s poor outlook is exacerbated by his

extensive criminal history. It is also exacerbated by the fact that the

defendant could not rationally have thought he had a worthwhile chance of

not being caught when he stored the guns and drugs in his own bedroom in

the home at which he told the probation officers he would reside.

The moral culpability of the defendant’s actions is further

compounded by the fact that the defendant had his 14-year-old daughter with

him while he held the methamphetamine for sale and protected it with a

10 cache of loaded firearms. The evidence supports a finding that the defendant

knowingly placed his own daughter at risk of being harmed in an accident

with one of his loaded firearms, a drug deal turned violent, an attack by

robbers, a police raid, or her own consumption of her father’s

methamphetamine. In addition, the defendant knowingly took the risk of

normalizing his criminal activities in the mind of his 14-year-old daughter.

Errors Patent

The record reflects three errors patent. All three errors are harmless to

the defendant.

First, the penalty provisions of La. R.S.14:95.1 and 14:95(E) mandate

the imposition of fines within specified ranges. The trial court did not

impose any such fines. That rendered the defendant’s sentence illegally

lenient, and we instruct the trial court to impose a fine in accordance with

law.

Second, at sentencing, the trial court ordered that the sentences be

served concurrently. However, the minutes state that the sentences are to

run consecutively. The trial court is ordered to correct the minutes to reflect

that the sentences are to be served concurrently.

Finally, the defendant’s sentence pursuant to La. R.S. 14:95(E) is

illegally lenient in that the trial court failed to specify that the sentence is to

be served at hard labor. The trial court is ordered to remedy this error.

CONCLUSION

The defendant’s conviction and sentence are AFFIRMED. This case

is REMANDED for correction of the errors patent discussed hereinabove.