State v. Bannister

658 So. 2d 16, 95 La.App. 5 Cir. 172, 1995 La. App. LEXIS 1967, 1995 WL 380990
CourtLouisiana Court of Appeal
DecidedJune 28, 1995
DocketNo. 95-KA-172
StatusPublished
Cited by6 cases

This text of 658 So. 2d 16 (State v. Bannister) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bannister, 658 So. 2d 16, 95 La.App. 5 Cir. 172, 1995 La. App. LEXIS 1967, 1995 WL 380990 (La. Ct. App. 1995).

Opinion

IrKLIEBERT, Chief Judge.

The defendant, Larry Bannister, appeals his conviction of possession of cocaine with intent to distribute within 1000 feet of school property. Defendant contends that the evidence is insufficient to support his conviction, and also assigns any errors patent. For the following reasons, we affirm defendant’s conviction and remand with instructions.

The defendant was charged by bill of information filed on February 22, 1993 with possession of cocaine with intent to distribute within 1000 feet of school property1 in violation of LSA-R.S. 40:981.3. When arraigned on December 9, 1993, the defendant entered a plea of not guilty. The defendant proceeded to trial on July 13,1994, and the following day, the jury returned with a verdict of guilty as charged. The defendant filed a motion for new trial on July 21,1994, and the trial court denied it that same day. On July 27, 1994, the defendant made an oral motion in arrest of judgment, and after denying the motion, the trial court sentenced the defendant to eighteen years at hard labor with credit for time served. On August 23, 1994, the State filed a multiple offender bill of information seeking enhanced sentencing of the |2defendant as a fourth felony offender, and on September 29, 1994, the defendant entered a plea of not guilty to the multiple bill. At a multiple bill hearing on November 16,1994, the defendant pled guilty to being a fourth felony offender. The trial court then vacated the previous sentence and resen-tenced the defendant as a fourth felony offender to thirty years at hard labor with credit for time served.

On the evening of September 10, 1993 at approximately 10:15, Officer Henry Saacks and his partner, Officer Darrel Sherman, were proceeding southbound on Causeway Boulevard in an unmarked white'four-door Ford Crown Victoria followed by two other two-man units. While driving down the overpass above Airline Highway, Officer Saacks looked in the direction of Andover Street, an area where numerous narcotics arrests had been made, and he observed a blue vehicle stop on the Service Road in front of the third residence off the corner of And-over and South Causeway Boulevard.

As the officers continued to approach the area, Officer Saacks observed a black male, later identified as the defendant, “run up” to the passenger’s side of the vehicle and then enter the front yard of the third residence. After losing sight of the defendant for approximately five seconds while “he was on [18]*18the other side of a front porch,” Officer Saacks observed the defendant emerge from the front yard. As the officers arrived at the residence, the defendant was approaching the blue vehicle. Upon noticing the officers’ unit, the defendant dropped his right arm to his side and released a clear package to the ground. The officers then exited their unit and Officer Sherman apprehended the defendant while Officer Saacks retrieved the package which contained three small pieces of crack cocaine.

Subsequently, Officer Saacks measured the distances from the point where the contraband was recovered to Lemon Ball Park and Lemon Gymnasium and whose distances were 968' and 738', respectively.

The defendant contends that the evidence was insufficient to prove the essential element of intent to distribute considering the |s“small amount of cocaine and the money and the absence of any acts of distribution” by the defendant and therefore his conviction should be reduced to simple possession of cocaine within 1000 feet of school property.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986); State v. McCaleb, 593 So.2d 1388 (La.App. 5th Cir. 1992), writ denied; State ex rel. McCaleb v. State, 626 So.2d 1185 (La.1993).

The defendant was convicted of possession of cocaine with intent to distribute within 1000 feet of school property. Narcotics offenses involving possession with intent to distribute require proof of specific intent. State v. Elzie, 343 So.2d 712 (La.1977); State v. McCaleb, supra. LSA-R.S. 14:10(1) defines specific criminal intent as that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” The intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1981). Mere possession of narcotics is not, in and of itself, evidence of an intent to distribute, unless the quantity of drugs possessed is so large that no other inference is reasonable. State v. Greenway, 422 So.2d 1146 (La.1982).

The following factors can give rise to a reasonable inference that the defendant had an intent to distribute: previous attempts to distribute; whether the drug was in a form consistent with distribution to others; the amount of the drug; expert or other testimony showing the amount found on the defendant to be inconsistent with personal use only; and paraphernalia evidencing an intent to distribute. State v. House, 325 So.2d 222 (La.1975).

Lin order to prove guilt by circumstantial evidence, the State must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438. This statutory test is not a purely separate one from the Jackson sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Rosiere, supra.

At trial, Officer Saacks testified to the facts previously mentioned. He further testified that the defendant’s activity of approaching a stopped vehicle was “very consistent with the street sales of drugs.” Thereafter, the following exchange occurred:

Q. Explain what you observe on a regular basis, sir.
A. On a regular basis a very quick drug transaction would be a male or female standing on a — it don’t even have to be a corner — on a sidewalk or on the street, a vehicle stops, they exchange some words, an exchange of currency and exchange of dope or some type of contraband is active. Sometimes because of the high police presence the individuals do not keep the dope on them, or whatever type of — whether it’s Marijuana or Cocaine, whatever we’re dealing with — they sometimes keep it in a secret area where the police won’t be able [19]*19to find it. So, you may have a conversation, the male or female runs to his secret area where the dope is located, brings whatever small amount is for the purchase and the exchange is made.
Q. Did you observe what you believed to be that that night?
A. Yes, sir, I did.

Additionally, Officer Saaeks further testified that five twenty dollar bills were seized from the defendant and a rock of crack cocaine sells for twenty dollars.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Brown
235 So. 3d 1314 (Louisiana Court of Appeal, 2017)
State v. Bell
178 So. 3d 234 (Louisiana Court of Appeal, 2015)
State v. Jordan
836 So. 2d 609 (Louisiana Court of Appeal, 2002)
State v. Bates
742 So. 2d 1004 (Louisiana Court of Appeal, 1999)
State v. Walker
684 So. 2d 12 (Louisiana Court of Appeal, 1996)
State v. Lassere
683 So. 2d 812 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 16, 95 La.App. 5 Cir. 172, 1995 La. App. LEXIS 1967, 1995 WL 380990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bannister-lactapp-1995.