State of Louisiana Versus Marvin S. Acevedo

• Court: Louisiana Court of Appeal
• Decided: May 8, 2019
• Docket: 18-KA-683
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 18-KA-683

VERSUS FIFTH CIRCUIT

MARVIN S. ACEVEDO COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-3961, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

May 08, 2019

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

AFFIRMED JGG SMC

CONCURS WITH REASONS MEJ COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Rachel L. Africk Jennifer C. Voss

COUNSEL FOR DEFENDANT/APPELLANT, MARVIN S. ACEVEDO Cynthia K. Meyer GRAVOIS, J.

Defendant, Marvin S. Acevedo, appeals his conviction of possession of over

400 grams of cocaine in violation of La. R.S. 40:967(F). For the following

reasons, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

At trial, Detective Allan Doubleday of the Jefferson Parish Sheriff’s Office

(“JPSO”) testified that in June of 2017, he received information from an informant

that a suspect driving a Nissan Titan truck was transporting drugs from Texas to

Jefferson Parish and that the suspect was storing drugs at a storage unit.1 Detective

Doubleday used the automated license plate reader (“ALPR”) system, which takes

photographs of license plates as vehicles pass by cameras throughout the state, to

track the suspect’s vehicle. JPSO Sergeant Joshua Collins monitored the ALPR

cameras and advised Detective Doubleday that they had captured the suspect’s

vehicle traveling to Texas on many occasions. After learning on June 19, 2017

that the suspect’s vehicle was traveling towards Texas, Detective Doubleday and

other officers went to the Texas/Louisiana border to wait for the suspect’s vehicle

to return to Louisiana. Detective Doubleday eventually spotted the vehicle and

followed it. He and the other officers kept in contact with other detectives who

were positioned on I-10 at various locations on the entire route from Texas to

Jefferson Parish.

Detective Doubleday testified that Sergeant Collins applied for and obtained

a search warrant for the subject vehicle. Detective Doubleday was present for the

stop of the vehicle, but Deputy C. Marshall and Detective N. Obiol, who were in a

marked unit, stopped the suspect’s vehicle in order to execute the search warrant.

1 Detective Doubleday later testified that the confidential informant gave him the name “Marvin” and told him that the vehicle involved was a gray Nissan Titan. He also testified that the informant gave him the license plate number of that vehicle and the time of travel. He maintained that the informant was someone whom he was working with and whom he had worked with on other occasions.

18-KA-683 1 Detective Doubleday observed two occupants in the vehicle who were later

identified as defendant, the passenger, and Mr. Pedro Villareal, the driver. He

separated them, advised them of their rights, and spoke to them. Detective

Doubleday said that each of them gave a different explanation as to why they had

been in Texas and were traveling back to Louisiana the same day. Defendant told

him that they had been in Texas for several days attending vehicle auctions.

However, Detective Doubleday knew from the surveillance that they had left

Louisiana and returned that same day. He spoke to defendant and Mr. Villareal in

English and said that defendant fully understood him in English. Detective

Doubleday testified that he also speaks Spanish and could have communicated

with defendant in Spanish if such had been necessary.

Detective Doubleday testified that they brought the vehicle to Louisiana

State Police Troop B at Loyola and Williams Boulevards in Kenner. Prior to the

search of the vehicle, a K-9 dog walked around the vehicle. The dog alerted or

sensed that there were narcotics throughout the vehicle and specifically underneath

it. After searching that area, deputies retrieved a magnetic hideaway key box from

underneath the truck. Inside the box they found a plastic bag containing a white

powdered substance that tested positive for cocaine. Detective Doubleday advised

defendant of his rights a second time. Defendant was later transported to the

detective bureau where Detective Doubleday advised defendant of his rights a third

time. While questioning defendant, he admitted that the cocaine belonged to him

and that Mr. Villareal had no knowledge of it.

Detective Doubleday testified that they searched the interior of the vehicle

and found a wallet in the center console. Inside that wallet were a Florida ID with

the name of “Marvin Santiago Acevedo” on it, a CubeSmart storage key, a

CubeSmart access card with a storage unit number (409) and a PIN on it, and a bag

of cocaine. Detective Doubleday stated that he found four cell phones in the

18-KA-683 2 vehicle, three of which belonged to defendant and one of which belonged to Mr.

Villareal. Detective Doubleday also recovered $3,359 in currency from the

vehicle. Mr. Villareal was released because the evidence did not link him to the

offense.2

Detective Doubleday testified that Sergeant Collins subsequently obtained a

second search warrant for the vehicle. During the second search, they found

another cell phone. On June 6, 2018, detectives applied for and obtained search

warrants for the contents of the four cell phones belonging to defendant.

Detective Doubleday testified that CubeSmart had two locations on Belle

Chasse Highway. They went to both locations because they weren’t sure which

one pertained to defendant. At the first location, they tried to access the site, but

because the PIN produced an error message, they went to the other CubeSmart

located nearby. When they used the PIN to access the gate at the other CubeSmart

location, they received a message to return during certain business hours, which

told them that they were in the right location.

Detective Doubleday testified that Sergeant Collins prepared a search

warrant for the subject storage unit number 409; however, he mistakenly put the

address of the first storage facility they visited (2321 Belle Chasse Highway) and

not the correct one that they visited afterwards (2012 Belle Chasse Highway).

They ultimately obtained a search warrant, after which they used the key from the

wallet and entered storage unit number 409. Detective Doubleday testified that

they found a cooler containing four compressed wrapped bricks. The bricks, each

weighing one kilo, tested positive for cocaine.3 They also found paperwork in the

cooler, including documents from a BP oil spill lawsuit, an Entergy bill with the

2 Detective Doubleday testified that since June 19, 2017, Mr. Villareal had been arrested on drug charges unrelated to the instant case. 3 One kilogram is equal to 1000 grams. One kilogram is also equal to 2.2 pounds.

18-KA-683 3 name “Marvin Santiago” on it, and a pay stub with the name “Marvin Santiago

Acevedo” on it. A work shirt with defendant’s name and his employer’s name on

it was also found in the unit. Nothing else in the storage unit, whether paperwork

or other items, contained any other name on it.

Detective Doubleday testified that Sergeant Collins obtained a search

warrant for leasing and access documents and surveillance video from the storage

facility, after which Sergeant Collins met with Christina Collins, the manager of

that storage facility, the next day. The leasing documents showed that defendant

rented storage unit number 409 from February 27, 2017 until June 19, 2017. The

records indicated that the storage unit was accessed sixteen times, but that he only

saw defendant two times on the video.4 Video surveillance showed defendant

arriving in a Nissan Titan, exiting his vehicle, and entering the office of

CubeSmart.5 Wilmer Cerna was the registered owner of the Nissan Titan.

Detective Doubleday testified that defendant and Mr. Cerna were associates, and

that no other part of the investigation involved Mr. Cerna. Finally, Detective

Doubleday maintained that he did not find a prior conviction for defendant.

Sergeant Collins also testified at trial, his testimony largely corroborating

that of Detective Doubleday. Additionally, Sergeant Collins testified that in his

experience of working many narcotics investigations, it was a common practice for

individuals to store illegal drugs in storage facilities so that they did not have to

keep contraband in their vehicles or houses. More likely than not, in his

experience, those individuals would store their narcotics in a facility in the vicinity

that was being used within their enterprise. Sergeant Collins maintained that they

4 Sergeant Collins asserted that the access code was used to gain entry into unit number 409 on June 18, June 17, June 12, June 7, May 19, May 14, May 4, April 24, April 1, March 21, March 7, March 5, March 4, March 2, February 28, and February 27, 2017, the date when unit number 409 was first rented. 5 Additionally, JPSO Detective Keith Dowling testified that he went to the CubeSmart on Belle Chasse Highway to assist Detective Doubleday with retrieving video surveillance. He viewed the surveillance video with Detective Doubleday at CubeSmart, and Detective Doubleday told him what he needed recorded. However, Detective Dowling explained that he could not retrieve the video because there was a problem with the DVR. He noted that CubeSmart only keeps surveillance for a maximum of three months, after which it gets copied over.

18-KA-683 4 had prior knowledge from the informant that there was a storage facility close to

defendant’s residence. The residence associated with defendant was somewhere

on the Westbank near “Lafayette Boulevard” or Belle Chasse Highway. Sergeant

Collins explained that they started from the closest storage facility and worked

their way in an outward perimeter until they ultimately found the correct one.

Regarding the four cell phones that were found, Sergeant Collins stated that

it was common among drug dealers to obtain and change cell phones and numbers

so that they cannot be tracked.

The trial court accepted Sandy Lee, forensic drug chemist at the JPSO Crime

Lab, as an expert in the field of the analysis of controlled dangerous substances,

who examined evidence in the instant case. Ms. Lee testified that her specimen

001 (State’s Exhibit 2) was a sealed plastic bag containing a magnetic key box

containing one clear plastic bag with a white powdered substance inside.

Specimen 003 (State’s Exhibit 6) was a sealed plastic bag containing one clear

plastic bag with a white powdered substance inside. Specimen 013 was a sealed

paper bag containing four individually wrapped packages each containing a

compressed, white powdered substance. Ms. Lee testified that the material in all

three specimens was found to contain cocaine. The gross weight of specimen 001

was twelve grams, the gross weight of specimen three was under one gram, and the

net weight of specimen 013 was 3,962 grams.

Kortnie Sinon, a latent print examiner at the JPSO Crime Lab, was accepted

as an expert in the field of latent print processing and comparison. Ms. Sinon

testified that she processed four individual blocks of compressed, white powder

wrapped in tape and that she found three fingerprints. She was able to enter two of

those fingerprints into her database, but she was not able to make any identification

on either print. She compared the three fingerprints to defendant, but the results

were inconclusive.

18-KA-683 5 Dr. Marcela Zozaya, a forensic DNA analyst for the JPSO, was accepted as

an expert in the field of forensic DNA analysis. Dr. Zozaya testified that she

analyzed swabs taken from the kilos of cocaine in the instant case and that there

was an insufficient amount of DNA for testing.

Ms. Christine Collins testified that she was the general manager at the

CubeSmart located at 2012 Belle Chasse Highway and that she handled leasing

documents. She produced leasing documents pertaining to unit number 409 for

defendant in response to the search warrant. She stated that the rental date was

February 27, 2017. Ms. Collins produced videos in response to a subpoena for

video surveillance. She met with the detective and reviewed those videos. Ms.

Collins saw the truck on the video that the detective said belonged to defendant;

however, she did not know defendant or what he looked like. She did not know if

the detective was able to retrieve the video, but she asserted that the detective had

difficulty downloading it. Ms. Collins testified that if an access code is used after

10:00 p.m., the machine will continue to beep, and the paperwork will say, “[s]ee

the manager.” She believed that if the access code was entered at the other

location on Belle Chasse Highway, it would say the same thing.

Agent Bryan Huesman testified that he was employed by Immigration and

Customs Enforcement (“ICE”) in the Homeland Security Department. In June of

2017, he was contacted by Detective Doubleday who told him that he had arrested

a man named “Marvin Acevedo” and that this individual had identification cards,

Entergy payments, and BP settlements in that name. He attempted to verify if

defendant was the real “Marvin Acevedo.” Agent Huesman conducted computer

checks and spoke with officials in Puerto Rico, where he learned that the real

“Marvin Acevedo” was currently detained in jail and had been since 2014 for

narcotics related charges in Puerto Rico. Agent Huesman knew the man in Puerto

Rico was the real “Marvin Acevedo” because the social security number that was

18-KA-683 6 given to him by Detective Doubleday was a Puerto-Rican issued social security

number. He stated that he had not been able to develop defendant’s actual birth

name because defendant had refused to talk to them.

JPSO Detective Solomon Burke, accepted as an expert in the field of mobile

device forensics, testified that he was currently assigned to the digital forensics

division where he examines electronic evidence. Detective Burke testified that he

received and examined three Samsung phones and one iPhone in the instant case.

He was able to extract data from the Samsung phones but not the iPhone.

Detective Burke asserted that he found no activity going farther back than thirty

days and that none of the phones’ data went back to February 27, 2017, or even

prior to May of 2017. He said that the Samsung phones were “dump” or “burner”

phones, disposable phones that could be purchased and activated without

identifying information.

JPSO Detective Edgardo Castro, who was fluent in Spanish, identified

State’s Exhibit 33 as text messages from the phones in Spanish that he translated

into English. Detective Castro identified the following incoming text message:

“Need price on china, ounce”6 and indicated that was in English and did not need

translating. He also identified the following text messages: “Look, bro, he wants a

2, 8, 4, 3 p.m. Can you?”; and “Look, Marvin, I’m not going to speak to frogs

anymore. I’ll call you directly. Good night.” Detective Castro testified that “frog”

was another word for middleman. He also identified other text messages: “Bro,

did you mix the one you gave me today?”; “Bro, I want another eight.”;7 “Bro, give

me an eight.”; “I’m the bald one.” (an outgoing message); “Friend, this is Marvin.

6 Sergeant Collins testified that some of the more common street terms used to describe cocaine were “powder”, “white”, “blow”, and “China white”. 7 Sergeant Collins testified that drugs come in common sizes and that when someone says they want an “eight ball”, they want an eighth of an ounce.

18-KA-683 7 Call me.” (an outgoing message); and “Marvin, I’m Pablo. I’m calling you so you

can come to my house to see the champions. I have no work. I took off.”

Following defendant’s arrest, on August 31, 2017, the Jefferson Parish

District Attorney filed a bill of information charging defendant with possession of

over 400 grams of cocaine in violation of La. R.S. 40:967(F).8 Defendant was

arraigned on September 5, 2017, and pled not guilty. He filed a Motion to Quash

Bill of Information that was denied after a hearing on November 30, 2017.

Defendant subsequently filed a writ application challenging this ruling, which this

Court denied. State v. Acevedo, 17-K-708 (La. App. 5 Cir. 3/19/18) (unpublished

writ disposition). He filed a writ application with the Louisiana Supreme Court

challenging this Court’s ruling. The Supreme Court denied the writ. State v.

Acevedo, 18-619 (La. 5/25/18), 243 So.3d 569.

Defendant filed a Motion to Suppress Evidence and Statement that were

denied after a hearing on March 15, 2018. He thereafter filed a writ application

challenging these rulings, which this Court denied. State v. Acevedo, 18-K-196

(La. App. 5 Cir. 6/1/18) (unpublished writ disposition). Defendant filed a writ

application with the Louisiana Supreme Court challenging this Court’s ruling, who

denied the writ. State v. Acevedo, 18-922 (La. 6/25/18), 246 So.3d 578.

On July 2, 2018, the State filed a notice of intent to use evidence of other

crimes, which was granted at a hearing. Following that hearing, on July 9 and 10,

2018, the case was tried before a twelve-person jury, who found defendant guilty

as charged. On August 8, 2018, defendant filed a Motion for New Trial and a

Motion for Judgment of Acquittal that were denied on August 9, 2018.

Afterwards, on August 9, 2018, defendant waived sentencing delays, and the trial

court sentenced him to imprisonment at hard labor for twenty years and ordered

8 On June 29, 2018, the State amended the bill of information to change the dates of the offense to on or between February 27, 2017 and June 20, 2017.

18-KA-683 8 him to pay a $50,000 fine. The trial court also ordered that sentence to run

consecutively to the sentence in case number 17-3961. Defendant subsequently

made an oral motion to reconsider sentence that was denied and an oral motion for

appeal that was granted. On August 10, 2018, defendant filed a timely written

Motion for Appeal that was granted. This appeal followed.

On appeal, defendant argues the following assignments of error:

1. The trial court erred in failing to grant defendant’s Motion to Quash the bill of information. 2. The trial court erred in denying the motion to suppress the statement allegedly made to police and the evidence seized from the storage unit.

3. The trial court erred in failing to grant the motion to disclose the identity of the confidential informant.

4. The trial court erred in allowing the introduction of other crimes evidence. 5. The evidence presented by the State was insufficient to support the conviction.

6. La. C.Cr.P. art. 782(A), allowing for a non-unanimous jury verdict, is unconstitutional and requires reversal of the jury verdict.9

ASSIGNMENT OF ERROR NUMBER FIVE10

In this assignment, defendant argues that the evidence was insufficient to

support his conviction. He also argues that the evidence presented by the State was

inconsistent, misleading, and inconclusive. Defendant contends that the

information from the confidential informant that defendant would be transporting a

large quantity of cocaine was incorrect, because there was no large quantity of

cocaine in the truck in which he was riding. Further, defendant asserts that there

was no physical evidence to connect him to the cocaine found inside of the storage

9 This assignment of error was asserted in a supplemental brief filed on the day of submission of the case. 10 When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.; See also State v. Nguyen, 05-569 (La. App. 5 Cir. 2/3/06), 924 So.2d 258, 262. Thus, the sufficiency of the evidence is addressed first even though it is defendant’s fifth assignment of error.

18-KA-683 9 unit and that it was shown that other people had access to the storage unit. As a

result, defendant maintains that the State failed to prove beyond a reasonable doubt

that he knowingly and intentionally possessed over 400 grams of cocaine.

The State responds that the evidence was sufficient under the Jackson11

standard to support defendant’s conviction. It points out that defendant admitted

that the cocaine found in the vehicle belonged to him and not to his passenger. The

State contends that the evidence showed that defendant was in constructive

possession of the cocaine found in the CubeSmart storage unit. It asserts that the

jury obviously found that the State’s witnesses were credible.

In reviewing the sufficiency of evidence, an appellate court must determine

that the evidence, whether direct or circumstantial, or a mixture of both, viewed in

the light most favorable to the prosecution, was sufficient to convince a rational

trier of fact that all of the elements of the crime have been proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied,

535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the

jury that “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 reviewing court is not required to determine whether another

possible hypothesis of innocence suggested by the defendant offers an exculpatory

explanation of events. Rather, the reviewing court must determine whether the

possible alternative hypothesis is sufficiently reasonable that a rational juror could

not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-

11 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

18-KA-683 10 3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5

Cir. 1/27/04), 866 So.2d 973, 977.

Defendant was convicted of possession of over 400 grams of cocaine in

violation of La. R.S. 40:967(F). To support a conviction for possession of cocaine,

the State is required to prove that defendant was in possession of the drug and that

he knowingly or intentionally possessed it. State v. Robinson, 04-964 (La. App. 5

Cir. 2/15/05), 896 So.2d 1115.

The element of possession may be established by showing defendant

exercised either actual or constructive possession of the substance. State v. Lewis,

04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382 (La.

3/31/06), 925 So.2d 1257. A person not in physical possession of the drug is

considered to be in constructive possession of the drug, even though the drug is not

in his physical custody, when it is under that person’s dominion and control. Id.

The key factors to be considered in determining whether a defendant exercised

dominion and control sufficient to constitute constructive possession are the

defendant’s knowledge that illegal drugs were in the area, his relations with a

person found to be in actual possession, the defendant’s access to the area where

the drugs were found, evidence of recent drug use by the defendant, the existence

of drug paraphernalia, and evidence that the area was frequented by drug users.

Id.; State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 761, writ

denied, 01-2269 (La. 9/20/02), 825 So.2d 1156. “Mere presence in an area where

drugs are found or mere association with the person in actual possession does not

constitute constructive possession.” State v. Jones, 04-1258 (La. App. 5 Cir.

4/26/05), 902 So.2d 426, 431. However, “[p]roximity to the drug, or association

with the possessor, may establish a prima facie case of possession when colored by

other evidence.” Id.

18-KA-683 11 In State v. Every, 09-0721 (La. App. 4 Cir. 3/24/10), 35 So.3d 410, 421, writ

denied, 10-0929 (La. 11/19/10), 49 So.3d 397, the Fourth Circuit found that the

State established that the defendant constructively possessed cocaine found in a

unit of a storage facility. The defendant had contended on appeal that the evidence

was insufficient to convict him because the unit at the storage facility in which the

cocaine was found was rented to Ms. Mathew, that the Mercedes in which the keys

to the storage unit were found was registered to Ms. Mathew, and that there was no

evidence establishing he actually entered the subject unit at the storage facility.

The Court noted that the officers’ testimony established that the defendant had

visited the storage unit alone and had entered the building that contained the

particular unit. After leaving the storage facility, the officers observed a hand-to-

hand transaction between the defendant and an unknown male in a motel parking

lot. After he was arrested, the defendant admitted that he had stored approximately

a quarter kilogram of cocaine at the storage facility and that the keys to the storage

facility were located inside the console of the Mercedes. The appellate court found

that although the storage unit was rented by Ms. Mathew and she was the

registered owner of the Mercedes in which the keys to the storage unit were kept,

the evidence established that the defendant exercised dominion and control of the

cocaine found in the storage facility.

In the instant case, Detective Doubleday testified that defendant admitted

that the cocaine found inside of the magnetic box underneath the truck belonged to

him and that Mr. Villareal was unaware of it. Additionally, the wallet that the

detectives found in the truck contained an ID with defendant’s name on it, the

CubeSmart storage key, the CubeSmart access card with a storage unit number and

a PIN on it, and a bag of cocaine. As previously noted, the officers went to the two

CubeSmart storage facilities in that area and located the one where the access code

worked. They searched the subject unit and found four kilos of cocaine inside of a

18-KA-683 12 cooler. Detective Doubleday testified that they also found documents with

defendant’s name on them inside of the cooler and a work shirt with defendant’s

name and his employer’s name on it inside the storage unit. Nothing else in the

storage unit contained any other names. Additionally, the State established that

unit number 409 was rented in defendant’s name, Detective Doubleday viewed

video surveillance which showed defendant arriving at the storage facility two

times; the records indicated that the storage unit was accessed sixteen times. Also,

$3,359 was recovered from the vehicle in which defendant was riding in, and text

messages indicated that defendant was selling drugs.

The jury heard the testimony from the witnesses at trial and obviously found

them to be credible. The credibility of witnesses is within the sound discretion of

the trier of fact, who may accept or reject, in whole or in part, the testimony of any

witness; the credibility of the witnesses will not be reweighed on appeal. State v.

Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

In light of the foregoing, upon review, we find that a rational trier of fact

could have found that the evidence was sufficient under the Jackson standard to

prove that the substances found in the storage facility, underneath the truck, and in

defendant’s wallet were cocaine and that the total weight of the cocaine was

approximately 3,974 grams. Further, we find that the evidence established that

defendant constructively possessed the cocaine found in unit number 409 of the

storage facility, underneath the truck, and in defendant’s wallet. As such we find

that a rational trier of fact could have found that the evidence was sufficient under

the Jackson standard to support the conviction. This assignment of error is without

merit.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, defendant argues that the trial court erred in denying his

Motion to Quash Bill of Information because a short time after he allegedly

18-KA-683 13 violated La. R.S. 40:967(F), this section of the statute was repealed with the intent

of decreasing the penalties for possession of narcotics. He further argues that in

the instant case, as in State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, there

can be no dispute that the changes to La. R.S. 40:967 were made with the intent to

favor lesser penalties and to provide treatment for persons convicted of drug

offenses.

The State responds that this claim should be denied under the law of the case

doctrine since this Court previously denied relief on this issue, and the record does

not establish a basis for contending that this Court’s previous determination was

patently erroneous and produced an unjust result. Therefore, the State submits that

the applicable penalty provision to be applied to defendant was the pre-amendment

penalty provisions found in La. R.S. 40:967(F), which this Court previously

determined.

In his Motion to Quash Bill of Information, defendant argued that he was

entitled to be charged under the recently amended version of La. R.S. 40:967,

which became effective on August 1, 2017, citing State v. Mayeux in support of his

position. The State opposed the motion to quash, arguing that the motion should

be denied because it was well established that in Louisiana, the law in effect at the

time a defendant committed his crime governs and that the facts in Mayeux were

distinguishable. Following a hearing on the motion, the trial court denied the

motion, agreeing with the State’s position.

Defendant filed a writ application challenging this ruling, which this Court

denied. State v. Acevedo, 17-K-108 (La. App. 5 Cir. 3/19/18) (unpublished writ

disposition). He subsequently filed a writ application with the Louisiana Supreme

Court challenging this Court’s ruling. The Supreme Court denied the writ. State v.

Acevedo, 18-619 (La. 5/25/18), 243 So.3d 569. In its denial, this Court found in

pertinent part:

18-KA-683 14 As a general rule, the law in effect at the time of the commission of a crime is determinative of the sentence the convicted must serve. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520 (citing State v. Wright, 384 So.2d 399, 401 (La. 1980)); State v. Henry, 17-0516 (La. 5/26/17), 220 So.3d 706, 707 (citing State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, 530); State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1239. Therefore, a district court must sentence a defendant in accordance with the penalty provision of a criminal statute in effect at the time the crime took place. Sugasti, 820 So.2d at 520 (citing State v. Narcisse, 426 So.2d 118, 130-31(La. 1983)). This rule applies regardless of whether the penalty provision is subsequently amended to lessen a potential sentence between commission of the crime and conviction. Id. at 520; see also La. R.S. 1:2 (“No section of the Revised Statutes is retroactive unless it is expressly so stated.”) The Louisiana Supreme Court carved out a narrow exception to the general rule that the penalty provision in effect at the time of the crime determines the sentence the convicted must serve in State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526. In Mayeux, the court determined that a penalty provision may apply retroactively if the amendments to the penalty provision are “ameliorative,” and the legislative intent indicates that the new penalty provision is to be applied “upon conviction.” Mayeux, 820 So.2d at 531; Henry, 220 So.3d at 707.

On August 1, 2017, the amendments of the penalty provision of La. R.S. 40:967 took effect. The changes – made by La. Acts. 2017, No. 281 – to the penalty for possession of cocaine are ameliorative with respect to the sentence that must be served. After the amendment, the minimum sentence was reduced from fifteen to ten years, which must be served at hard labor without the benefit of parole, probation or suspension of sentence. However, the bill amending the statute lacks a clear legislative intent that the change in the sentencing provision applies upon conviction. (Internal footnote omitted).

With a lack of a clear legislative intent that the penalty provision in effect at the time of conviction is determinative of the penalty the convicted felon must serve, the general rule must be applied. In Sugasti, supra, the Louisiana Supreme Court noted the strong policy considerations to maintain the general rule that the penalty provision in effect at the date of crime applies. If amendments to a penalty provision of a statute were to apply retroactively, it would encourage defendants to delay progress in the prosecution of their case with hope the legislature would pass an amendment reducing a potential sentence. Sugasti, 820 So.2d at 522. The amendment to the penalty statute in Mayeux, supra, is an example of the precise language and clear legislative intent necessary for an amendment of a sentencing provision to apply retroactively. State v. Parker, 03-0924 (La. 4/14/04), 871 So.2d 317, 326. In Mayeux, the statute contained unique language indicating an explicit legislative intent to change the focus of sentencing individuals with

18-KA-683 15 multiple driving while intoxicated convictions from imprisonment to treatment and rehabilitation; and the language of the statute indicates the ameliorative changes to the penalty provision of the statute may apply to individuals already convicted. Id. Because the legislature failed to use similar language in the amendment of La. R.S. 40:967 to indicate the more lenient sentencing provisions should apply upon conviction, relator’s writ application is denied. State v. Acevedo, 17-K-108 (La. App. 5 Cir. 3/19/18) (unpublished writ

disposition).

Application of the law of the case doctrine is discretionary and the prior

denial of a supervisory writ does not bar reconsideration of an issue on appeal, nor

does it prevent the appellate panel from reaching a different conclusion on the

issue. State v. Voltolina, 10-1090 (La. App. 5 Cir. 10/25/11), 77 So.3d 1027, 1031.

Reconsideration is warranted when, in light of a subsequent trial record, it is

apparent that the determination was patently erroneous and produced unjust results.

State v. Earls, 12-448 (La. App. 5 Cir. 12/11/12), 106 So.3d 1149, 1159, writ

denied, 13-132 (La. 9/20/13), 122 So.3d 1012.

In the instant case, upon review, we find that reconsideration of this issue is

not warranted. No additional hearings were held on the motion to quash, and no

additional evidence was produced at trial for this Court to review on appeal. This

Court has already provided a detailed analysis of this issue and held that the law in

effect at the time of the commission of the crime determines the sentence that a

defendant must serve and that the legislature failed to use language in the

amendment of La. R.S. 40:967 to indicate that the more lenient sentencing

provisions should apply upon conviction. Furthermore, the Louisiana Supreme

Court denied writs, declining to review this Court’s ruling.

Accordingly, we decline to reconsider our prior ruling on this issue. This

assignment of error is without merit.

18-KA-683 16 ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, defendant argues that the trial court erred in denying his

Motion to Suppress the Statement allegedly given to police claiming ownership of

the cocaine found in the magnetic box under the truck because his first language is

Spanish, and the State did not prove that he was properly advised of his rights and

made a knowing and intelligent waiver of his rights.

Defendant also argues that the trial court erred in denying his Motion to

Suppress the Evidence seized from the storage unit because officers did not have a

valid search warrant for that storage unit. He points out that at the time the search

warrant was obtained, the officers were already aware that the confidential

informant’s information was unreliable, namely, that there was a minimal amount

of cocaine in the truck even though the informant said that defendant would be

transporting a “large” quantity of cocaine from Texas to Jefferson Parish. Further,

defendant notes that the affidavit for the search warrant contained false information

in that the affidavit says that a wallet was found with a storage access card

containing the address of the storage facility, when in fact, this card does not

contain an address.

The State responds that the claims regarding the denial of the Motion to

Suppress the Statement are procedurally barred from appellate review. It contends

that defendant abandoned his Motion to Suppress the Statement by proceeding to

trial without having a hearing on that motion. It further contends that the record is

clear that defendant never argued at the trial court level the reasons that he now

argues on appeal with regard to the suppression of his statement.

Motion to Suppress Statement

The record reveals that there was a ruling on the motion to suppress

statement and that it was preserved for appellate review. Defendant filed omnibus

motions, including a motion to suppress statement. In that motion, defendant

18-KA-683 17 argued that the statements he made should be suppressed because they were

obtained unlawfully and illegally as they were not made to officers freely and

voluntarily, because defendant was not advised of his rights under Miranda,12 or

because defendant had invoked his right to remain silent or to have an attorney and

this right had not been honored. Also, defense counsel said prior to the hearing

that the motions to be heard that day were the motions to suppress evidence and

statement and that the witnesses for both were the same. Further, Detective

Doubleday testified regarding issues surrounding the motion to suppress statement.

Although defense counsel did not orally argue at the hearing regarding the

motion to suppress statement, his arguments were contained in the written motion

filed prior to the hearing. Also, the trial court denied the “motion to suppress,”

which arguably meant both motions. The record reflects that the trial court was

aware that both motions were being heard that day as she said before testimony

was taken, “[s]o we’re going to proceed on the motion to suppress evidence and

the motion to suppress statement at this time.” After hearing arguments of counsel,

the trial judge said that she agreed with the State, that the correct location was

searched, and that she was denying the “motion to suppress.” She did not specify

whether she was denying the motion to suppress evidence, the motion to suppress

statement, or both. Defense counsel said that he was going to take a writ “just on

the suppression of evidence portion, not the suppression of statements or anything

along that line.”

The district court’s decision to deny a motion to suppress is afforded great

weight and will not be set aside unless the preponderance of the evidence clearly

favors suppression. State v. Poupart, 11-710 (La. App. 5 Cir. 2/28/12), 88 So.3d

1132, 1140, writ denied, 12-705 (La. 10/8/12), 98 So.3d 867. In determining

12 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

18-KA-683 18 whether the trial court’s ruling on the motion to suppress is correct, an appellate

court is not limited to the evidence presented at the suppression hearing; it may

also review relevant evidence presented at trial. Id.

The State has the burden of proving the admissibility of a purported

confession or statement by the defendant. La. C.Cr.P. art. 703(D); State v. Arias-

Chavarria, 10-116 (La. App. 5 Cir. 9/28/10), 49 So.3d 426, 433, writ denied, 10-

2432 (La. 2/25/11), 58 So.3d 460. Before an inculpatory statement made during a

custodial interrogation may be introduced into evidence, the State must prove,

beyond a reasonable doubt, that the defendant was first advised of his Miranda

rights, that he voluntarily and intelligently waived them, and that the statement was

made freely and voluntarily and not under the influence of fear, intimidation,

menaces, threats, inducements, or promises. State v. Loeb, 09-341 (La. App. 5 Cir.

2/23/10), 34 So.3d 917, 924-25, writ denied, 10-681 (La. 10/15/10), 45 So.3d

1110.

A determination of voluntariness is made on a case-by-case basis, depending

on the totality of the facts and circumstances of each situation. The admissibility

of a confession or statement is a determination for the trial judge, and the judge’s

conclusions on the credibility and weight of the testimony relating to the voluntary

nature of the confession or statement are entitled to great weight and will not be

overturned unless unsupported by the evidence. Testimony of the interviewing

police officer alone may be sufficient proof that a defendant’s statements were

freely and voluntarily given. State v. Arias-Chavarria, 49 So.3d at 433.

At the suppression hearing, Detective Doubleday testified that when they

first stopped defendant while he was in the vehicle on the way back from Texas, he

advised defendant of his Miranda rights. Nevertheless, defendant did not speak to

him at that time. Defendant was detained and brought to the investigation bureau

for a follow-up interview where he was advised of his Miranda rights again.

18-KA-683 19 Detective Doubleday noted that there was a slight language barrier as defendant

was Hispanic; however, the detective stated that he speaks Spanish and had no

trouble communicating with defendant. Defendant indicated that he completely

understood his rights at that time and that he elected to give a statement. Detective

Doubleday said that he did not force, threaten, or coerce defendant into giving a

statement and that he did not promise defendant anything for his statement. At

trial, the detective testified that he advised defendant of his rights three different

times.

Detective Doubleday’s testimony shows that the State proved beyond a

reasonable doubt that defendant was advised of his Miranda rights and voluntarily

and intelligently waived them prior to giving his statement. The evidence

established that the statement was made freely and voluntarily and not under the

influence of fear, intimidation, menaces, threats, inducements, or promises. See

Loeb, supra. Accordingly, we find that the trial court did not abuse its discretion

by denying the Motion to Suppress Statement.

Motion to Suppress Evidence

The State also responds that defendant’s claim regarding his Motion to

Suppress the Evidence should be denied under the law of the case doctrine since

this Court previously denied relief on this issue, and the record does not establish a

basis for contending that this Court’s previous determination was patently

erroneous and produced an unjust result.

As was stated previously, defendant filed a writ application challenging the

ruling on the motion to suppress evidence, which this Court denied. State v.

Acevedo, 18-K-196 (La. App. 5 Cir. 6/1/18) (unpublished writ disposition).

Defendant thereafter filed a writ application with the Louisiana Supreme Court

challenging this Court’s ruling, and the Supreme Court denied the writ. State v.

18-KA-683 20 Acevedo, 18-922 (La. 6/25/18), 246 So.3d 578. In its denial, this Court found in

Under the facts of this case – where officers received information from a reliable confidential informant that relator used a storage facility near his residence on Belle Chasse Hwy. to store cocaine and officers recovered a CubeSmart card with an access code which, according to the officers’ testimony, only permitted access to one CubeSmart location on Belle Chasse Hwy., as well as a physical key for storage unit #409 – we find the trial court was correct in determining that the officers had probable cause to believe that contraband would be found in the CubeSmart storage unit #409. We further find that the officer’s affidavit sufficiently set forth sufficient facts concerning the investigation and set forth an objective basis to support a probable cause finding. Moreover, the officer’s inadvertent mistake of listing the wrong physical CubeSmart address does not warrant suppression of the evidence recovered in this case.

Under the facts of this case, we find that the trial judge did not abuse her discretion in denying relator’s motion to suppress the evidence recovered from storage unit #409 pursuant to a search warrant.

This writ is denied.

State v. Acevedo, 18-K-196 (La. App. 5 Cir. 6/1/18) (unpublished writ

disposition). (Internal citation and footnote omitted).

Upon review, we find that reconsideration of this issue on appeal is not

warranted. The subsequent trial record does not indicate that the determination

was patently erroneous and produced an unjust result. In its writ disposition, this

Court provided a detailed analysis of this issue and found that the officer’s

affidavit sufficiently set forth sufficient facts concerning the investigation and an

objective basis to support a probable cause finding. This Court also found that the

officer’s inadvertent mistake of listing the wrong physical CubeSmart address did

not warrant suppression of the evidence recovered in this case. Accordingly, we

decline to review this Court’s previous ruling, and find that the trial court did not

abuse her discretion in denying the Motion to Suppress the Evidence. This

18-KA-683 21 ASSIGNMENT OF ERROR NUMBER THREE

In this assignment, defendant argues that the trial court erred in denying his

Motion to Disclose the Identity of the Confidential Informant since the confidential

informant played an integral role in the investigation. He argues that the

confidential informant’s information that defendant would be transporting a large

quantity of cocaine was incorrect, that his defense was that the cocaine found in the

storage unit did not belong to him, and that the identity of the confidential

informant would have assisted him in presenting his defense. Defendant contends

that the denial of his motion impinged upon his constitutional right to present his

defense.

The State responds that it is well settled that it is permitted to withhold the

identity of a confidential informant from an accused pursuant to La. C.E. art. 514.

It further responds that defendant has not met his burden of showing that the

confidential informant played a crucial role in the underlying criminal transaction.

The State points out that the trial court denied the motion because it was concerned

that the life of the confidential informant would be endangered if his identity were

made known.

On December 4, 2017, defendant filed a Motion to Disclose Identity of

Confidential Informant. In that motion, defendant argued that the confidential

informant should be produced at a hearing or a trial, that the failure to disclose his

identity would infringe upon the constitutional rights of the accused, that

disclosure of the confidential informant’s identity would be relevant and of

demonstrably material benefit to defendant in establishing defendant’s case, that

the confidential informant was an integral part of the transaction, and that failure to

disclose his identity would substantially prejudice his right to a fair trial.

At the hearing on the motion, at a bench conference, the State said that it had

obtained information from multiple sources that defendant was actively trying to

18-KA-683 22 “put a hit out” on the confidential informant. Defense counsel argued that he was

entitled to proceed on the motion. The trial judge stated that she was denying the

motion outright based on the representations of the district attorney and because

she believed that the life of the confidential informant would be endangered if this

was pursued. Defense counsel noted his objection to the trial court’s ruling.

La. C.E. art. 514 provides, in pertinent part:

A. General rule of privilege. — The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.

B. Who may claim the privilege. — The privilege may be claimed by the prosecuting authority or an appropriate representative of the public entity to which the information was furnished. C. Inapplicability of privilege. — No privilege shall be recognized if:

(1) The informer appears as a witness for the government and testifies with respect to matters previously disclosed in confidence.

(2) The identity of the informer has been disclosed to those who have cause to resent the communication by either the informer or the prosecution, or in a civil case, a person with authority to claim the privilege. (3) The party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.

(4) In a criminal case, the prosecution objects[.] (Emphasis as found in original.)

As a general rule, an informant’s identity is privileged information. State v.

Clark, 05-61 (La. App. 5 Cir. 6/28/05), 909 So.2d 1007, 1014, writ denied, 05-

2119 (La. 3/17/06), 925 So.2d 538 (citing State v. Broadway, 96-2659 (La.

10/19/99), 753 So.2d 801, 815, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146

L.Ed.2d 466 (2000)). This privilege is founded upon public policy and seeks to

further and protect the public interest and law enforcement by encouraging people

18-KA-683 23 to supply information to the police by protecting their anonymity. Clark, 05-61,

909 So.2d at 1014-15. However, exceptions to this privilege exist. See La. C.E.

art. 514(C). The identity of an informant should be made known to the accused

only when his right to prepare his defense outweighs the need for protection of the

flow of information. State v. Zapata, 97-1230 (La. App. 5 Cir. 5/27/98), 713 So.2d

1152, 1158, writ denied, 98-1766 (La. 11/6/98), 727 So.2d 443. The burden is on

the defendant to show exceptional circumstances warranting disclosure of the

name of a confidential informant. State v. Hills, 03-716 (La. App. 5 Cir. 12/9/03),

866 So.2d 278, 282. The trial court is afforded great discretion in making this

determination. Id. When an informant has played a crucial role in the criminal

transaction, and when his or her testimony is necessary to ensure a fair trial,

disclosure of the informant’s identity should be ordered. Clark, 05-61, 909 So.2d

at 1015. Conversely, when an informant only supplies information and does not

participate in the transaction, disclosure is not warranted. Id.

In State v. Howard, 10-869 (La. App. 5 Cir. 5/24/11), 66 So.3d 1160, 1168-

69, writ denied, 11-1468 (La. 4/9/12), 85 So.3d 135, this Court found that the

defendant failed to show exceptional circumstances warranting disclosure of the

name of a confidential informant where the informant’s information may have

provided the evidence to support a search warrant, but it did not contribute to the

crime charged, which was possession of drugs found at an apartment.

In State v. Regis, 09-0806 (La. App. 4 Cir. 11/12/09), 25 So.3d 183, writ

denied, 10-0003 (La. 6/18/10), 38 So.3d 322, the Fourth Circuit found that where a

confidential informant was not a participant in the crime of attempted possession

of cocaine with intent to distribute, and there was no indication that the defendant’s

rights would have been prejudiced by non-disclosure, the defense was not entitled

to compel disclosure of the confidential informant’s identity.

18-KA-683 24 In State v. Smith, 09-259 (La. App. 5 Cir. 11/24/09), 28 So.3d 1092, writ

denied, 10-1414 (La. 6/24/11), 64 So.3d 212, this Court found that there was no

abuse of discretion in a trial court’s refusal to order disclosure of a confidential

informant’s identity because the informant did not play a crucial role in the

transaction that led to the defendant’s arrest where a possession of cocaine charge

was based on cocaine found when a search warrant was executed and not evidence

seized in the controlled buy between the defendant and the informant.

In the instant case, upon review, we find that defendant has failed to show

exceptional circumstances such that the informant’s identity or testimony was

essential to the preparation of his defense or to a fair determination of the issue of

guilt or innocence. See La. C.E. art. 514(C)(3). Also, although the informant

provided information used to support a search warrant, the informant was not a

participant in the crime of possession of over 400 grams of cocaine. Further, the

trial court was concerned for the safety of the informant based on the

representations of the State that it had received information that defendant was

trying to have the informant killed.

Accordingly, we find that the trial court did not abuse its discretion by

denying the Motion to Disclose Identity of Confidential Informant. This

ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment, defendant argues that the trial court erred in allowing the

State to present evidence of another crime he allegedly committed. He further

argues that evidence that he resisted arrest by refusing to provide his true identity

was not relevant and confused the jury. Defendant contends that whether or not

“Marvin Acevedo” was his real name was not material to proving that he had the

intent to possess the cocaine seized from the storage unit. He also contends that

this evidence was used to portray him in the worst possible light, especially

18-KA-683 25 considering the fact that currently there are frequent news stories regarding illegal

aliens committing crimes in this country. Defendant asserts that the improper

admission of this evidence prevented him from receiving a fair trial and

contributed to the guilty verdict.

The State responds that the trial court did not err in admitting the other

crimes evidence. It further responds that the purpose of the other crimes evidence

was to show defendant’s intent to possess the cocaine. The State explains that

evidence that defendant failed to provide the trial court and law enforcement with

his true identity was highly probative to the issue of intent and guilty knowledge,

as well as his opportunity to transport and possess the cocaine and an absence of

mistake or accident. The State further explains that the other crimes evidence was

admissible as res gestae evidence as it constituted an integral part of the crime.

The State notes that because defendant refused to provide his true identity, it was

necessary for the State to charge and try defendant under his alias, “Marvin

Acevedo.”

On July 2, 2018, the State filed State’s Notice of Intent to Offer Evidence of

the Defendant’s Other Crimes, Wrongs, or Acts Pursuant to La. C.E. Article

404(B). In that notice, the State argued that evidence pertaining to these other

crimes was admissible for its independent relevance to show motive, intent, guilty

knowledge, and to negate a claim of accident or mistake. The State also argued

that such evidence was admissible because it constituted res gestae in that the other

crime or bad act forms an integral part of the police investigation. Additionally,

the State said that it intended to conduct the misdemeanor judge trial for

defendant’s charge of violating La. R.S. 14:108, resisting an officer by refusing to

provide his true identification, simultaneously with his jury trial for the possession

of cocaine charge. It asserted that in the interest of judicial economy and

efficiency, since the same witnesses would be called to testify to the same facts at

18-KA-683 26 both trials, and the fact that defendant still had not provided his true identity, it was

both relevant and conserved time and judicial resources.13 The State noted that

without defendant’s real name, it could not properly run his criminal history and

investigate associations to organized crime.

Defense counsel responded that the evidence did not show intent, motive, or

guilty knowledge. He said that the State was able to run a “rap” sheet on defendant

and was able to find that he had a DWI conviction. Defense counsel noted that

defendant’s paperwork indicated that he has been “around for a while,” which was

evidenced by wage information from 2009 and 2010. He pointed out that the State

is using evidence that defendant has not provided his true identity to show that he

came into this country illegally. The State responded that it did not intend to offer

evidence that defendant was an illegal alien and asserted that many people used

fake names for multiple reasons.

After hearing arguments of counsel, the trial judge stated that she was going

to allow the State’s 404(B) evidence as she thought that it tended to show motive,

guilty knowledge, and intent. The trial judge also stated that whether defendant

decided to offer as an excuse that he used the false name to come into the country

was the defense’s decision.

At trial, during the cross-examination of Detective Doubleday, defense

counsel asked him if he was able to find any convictions on defendant, and the

detective responded negatively. After the cross-examination, during a bench

conference, the State said that it was not intending to offer any evidence about

defendant’s identity, but that defense counsel had opened the door by asking the

detective if he was able to find any convictions on defendant. The trial court

13 After the jury convicted defendant of possession of over 400 grams of cocaine, the State told the trial court that it had intended to try the misdemeanor charge of resisting arrest outside of the presence of the jury but since defense counsel opened the door to that evidence, it had already been introduced at trial. The trial judge then found defendant guilty of that charge.

18-KA-683 27 agreed and allowed the evidence to come in. Thereafter, Detective Doubleday

testified during re-direct examination by the State that defendant had been using

the name “Marvin Acevedo” for years and that was the name that was on his ID

card, the BP paperwork, the Entergy bill, the pay stub, and the tax returns.

Detective Doubleday further testified that he later learned that was not defendant’s

real name and that he did not know defendant’s real name. He stated that he could

not run a complete “rap” sheet on defendant because he could not determine what

defendant’s real name was.

Also, Agent Bryan Huesman of ICE testified at trial that he attempted to

verify if defendant was the real “Marvin Acevedo,” discovering instead (as

previously noted) that the real “Marvin Acevedo” had been detained since 2014 for

narcotics related charges in Puerto Rico. He stated that he had not been able to

develop defendant’s actual birth name as defendant had refused to talk to them.

Generally, evidence of other crimes or bad acts committed by a criminal

defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Prieur, 277

So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to

prove a material issue and has independent relevance other than to show that the

defendant is of bad character, it may be admitted by certain statutory and

jurisprudential exceptions to this rule. State v. Williams, 10-51 (La. App. 5 Cir.

7/27/10), 47 So.3d 467, 474, writ denied, 10-2083 (La. 2/18/11), 57 So.3d 330.

Evidence of other crimes is admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or accident, or when it

relates to conduct that constitutes an integral part of the act or transaction that is

the subject of the present proceeding to such an extent that the State could not

accurately present its case without reference to the prior bad acts. La. C.E. art.

404(B)(1); State v. Lawson, 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

18-KA-683 28 In order for other crimes evidence to be admitted under La. C.E. art.

404(B)(1), one of the factors enumerated in the article must be at issue, have some

independent relevance, or be an element of the crime charged. Lawson, 1 So.3d at

525-26. Moreover, the probative value of the extraneous evidence must outweigh

the prejudicial effect. La. C.E. art. 403.

Evidence that constitutes an integral part of the crime, formerly known as

“res gestae,” is admissible without any prior notice to the defense. State v.

Charles, 00-1586 (La. App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close

connexity between the charged and uncharged conduct is required to ensure that

“the purpose served by admission of the other crimes evidence is not to depict the

defendant as a bad man, but rather to complete the story of the crime on trial by

proving its immediate context of happenings near in time and place.” Id. (citing

State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076). This Court

recognized the following in State v. Rhea, 03-1273 (La. App. 5 Cir. 2/23/04), 868

So.2d 863, 867:

The test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State’s case of narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.”

Id. (citing State v. Colomb, 98-2813, 747 So.2d at 1076, quoting Old Chief v.

United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).

The defendant bears the burden to show that he was prejudiced by the

admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir.

12/28/22), 83 So.3d 178, 187, writ denied, 12-0282 (La. 5/18/12), 89 So.3d 1191,

cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). Clearly,

evidence of other crimes or bad acts is prejudicial since all evidence that tends to

make it more probable than not that an individual committed a criminal offense is

18-KA-683 29 necessarily prejudicial. The underlying policy is not to prevent prejudice, since

evidence of other crimes is always prejudicial, but to protect against unfair

prejudice when the evidence is only marginally relevant to the determination of

guilt of the charged crime. State v. Williams, 02-645 (La. App. 5 Cir. 11/26/02),

833 So.2d 497, 507, writ denied, 02-3182 (La. 4/25/03), 842 So.2d 398. Absent an

abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant

to La. C.E. art 404(B)(1) will not be disturbed. State v. Maize, 16-575 (La. App. 5

Cir. 6/15/17), 223 So.3d 633, 649, writ denied, 17-1265 (La. 4/27/18), 241 So.3d

306.

In State v. Walker, 15-0510, 2015 La. App. Unpub. LEXIS 453 (La. App. 1

Cir. 11/6/15), the defendant provided a false name and date of birth when he was

arrested. He contended that the trial court erred by allowing evidence of this crime

as part of the res gestae because it was not an integral part of the crime. The

appellate court found that those statements were part of one continuous transaction

of the criminal act of simple burglary and the attempt to conceal his identity after

being caught. The appellate court also found that even if the other crimes evidence

was inadmissible, any error was harmless considering that the State’s evidence

clearly established the defendant’s guilt.

In State v. Smith, 26,661 (La. App. 2 Cir. 3/1/95), 651 So.2d 890, writ

denied, 95-0918 (La. 9/15/95), 660 So.2d 458, the other crimes evidence was the

defendant’s statements about having outstanding warrants to explain why he fled

police and gave a false name at the hospital. The appellate court found that the

introduction of the defendant’s own exculpatory statements as to why he fled and

gave a false name, combined with the cumulative effect of his testimony at trial,

resulted in a showing that there was no substantial prejudice to his rights in the

admission of this evidence.

18-KA-683 30 In the instant case, defendant provided a false name to police when he was

arrested, and he never provided his real name. Upon review, we find that the trial

court did not err by admitting this evidence because it was part of one continuous

transaction of the criminal act of possession of cocaine and the attempt to conceal

his identity after being caught. Further, defense counsel “opened the door” to the

testimony when he asked Detective Doubleday on cross-examination whether he

was able to find any convictions for defendant. Accordingly, we find that the trial

court did not abuse its discretion by admitting the other crimes evidence in this

case. This assignment of error is without merit.

SIXTH ASSIGNMENT OF ERROR

In his final assignment, defendant argues that the jury verdict should be

declared invalid because the non-unanimous verdict in this case is contrary to

defendant’s rights to due process and equal protection and violates the Sixth and

Fourteenth Amendments of the United States Constitution.

Defendant recognizes that at the time of the commission of the alleged

offense, La. C.Cr.P. art. 782(A) and La. Const. art. 1, § 17(A) generally provided

that cases in which punishment is necessarily confinement at hard labor shall be

tried by a jury composed of twelve jurors, ten of whom must concur to render a

verdict. He notes that effective August 1, 2018, La. Const. art. 1, § 17(A) and La.

C.Cr.P. art. 782(A) were amended to generally provide that the verdict in such

cases must be unanimous. This amendment also provided that it would apply

prospectively. Defendant points out that on March 18, 2019, the United States

Supreme Court granted the application for a writ of certiorari in “Ramos v.

Louisiana, 18-5924, - - U.S. - - (2019),” in order to address the petitioner’s

argument that the Fourteenth Amendment fully incorporates the Sixth Amendment

guarantee of a unanimous verdict. Defendant contends that regardless of the

prospective only effect of the amended legislation, and in light of the fact that the

18-KA-683 31 United States Supreme Court will consider this argument in Ramos, the non-

unanimous verdict rendered against him is a violation of due process and equal

protection such that this verdict cannot stand.

In the instant case, the date of the offense was on or between February 27,

2017 and June 20, 2017. Also, the jury returned a non-unanimous verdict (eleven

to one).

The language of La. Act 2018, No. 722, § 1, effective December 12, 2018,

and La. Act 2018, No. 493, § 1, effective January 1, 2019, amending La. Const. art.

1, § 17(A) and La. C.Cr.P. art. 782(A), respectively, is clear that the amendment

requiring unanimous jury verdicts for crimes whose punishment is necessarily

confinement at hard labor applies only in those cases where the offenses are

committed on or after January 1, 2019. Before the amendment, and at the time of

the instant offense, the constitutionality of non-unanimous jury verdicts was upheld

in both State v. Bertrand, 08-2215 and 08-2311 (La. 3/17/09), 6 So.3d 738, and

Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). As an

intermediate court, we are bound by that precedent. State v. Williams, 18-112 (La.

App. 5 Cir. 11/7/18), 259 So.3d 563, 580.14

In light of the foregoing, upon review, we disagree with defendant’s

assertion that his jury verdict should be declared invalid. This assignment of error

is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,

State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990). We find no errors patent requiring correction.

14 It is noted that a writ application was filed with the Louisiana Supreme Court in Williams, on December 13, 2018 (No. 2018-KO-2038).

18-KA-683 32 CONCLUSION

Accordingly, for the foregoing reasons, defendant’s conviction and sentence

are affirmed.

AFFIRMED

18-KA-683 33 STATE OF LOUISIANA NO. 18-KA-683

JOHNSON, J., CONCURS WITH REASONS

I, respectfully, concur with the majority opinion on the issue of whether

the trial court erred in allowing the State to present evidence during the trial for

possession of cocaine with the intent to distribute that Defendant resisted arrest

for possession by refusing to provide his true identity. It is my opinion that

Defendant’s refusal to provide his real name did not prove a material issue or

have independent relevance to the possession of cocaine over 400 grams trial,

and the refusal was not an integral part of the act or transaction whereby the

State could not present its case in the possession trial without reference to

Defendant’s refusal. I find that the admission of Defendant’s refusal to provide

his real name had the prejudicial effect of portraying him as an illegal

immigrant, and that prejudicial effect outweighed any probative value the

evidence may have had. Additionally, the State should not have been allowed to

benefit from using the name “Marvin Acevedo” in linking Defendant to the

CubeSmart storage unit for purposes of convicting him of possession of cocaine,

then disregard that same evidence and argue “Marvin Acevedo” is not

Defendant’s true identity. However, I find that the error by the trial court was

harmless because there was sufficient evidence presented to prove Defendant’s

guilt.

Therefore, I find the trial court erred in allowing the State to present

evidence during the trial for possession of cocaine over 400 grams that

18-KA-683 1 Defendant resisted arrest by refusing to provide his true identity. In all other

respects, I agree with the majority opinion.

18-KA-683 2 SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 8, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

18-KA-683 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) TERRY M. BOUDREAUX (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)

MAILED HON. PAUL D. CONNICK, JR. (APPELLEE) RACHEL L. AFRICK (APPELLEE) JENNIFER C. VOSS (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053