State v. Bernard

734 So. 2d 687, 1999 WL 44893
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1999
Docket98-994
StatusPublished
Cited by12 cases

This text of 734 So. 2d 687 (State v. Bernard) 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. Bernard, 734 So. 2d 687, 1999 WL 44893 (La. Ct. App. 1999).

Opinion

734 So.2d 687 (1999)

STATE of Louisiana, Appellee,
v.
Clinton James BERNARD, Defendant-Appellant.

No. 98-994.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1999.

*688 Janet M. Perrodin, Asst. Dist. Atty., Michael Harson, Lafayette, for State of La.

Edward John Marquet, Lafayette, for Clinton James Bernard.

Before: DOUCET, C.J., DECUIR, and PETERS, JJ.

DOUCET, Chief Judge.

This appeal seeks review of the conviction of the Defendant, Clinton James Bernard. On November 7, 1995, a bill of information was filed against the Defendant for a violation of La.R.S. 40:967, distribution of cocaine, and La.R.S. 40:1049, receiving proceeds from a violation of 40:967. The bill pointed out that the Defendant had previously been convicted of the same offense, on May 9, 1995. The bill was later amended to remove the La.R.S. 40:1049 charge.

The Defendant was arraigned and entered a plea of not guilty on December 5, 1995. On August 20, 1997, several motions in limine were disposed of by the trial court. A Notice of Intent to use the Defendant's inculpatory statements or confessions was filed August 21, 1997. Trial began the same day, and the following day the jury found the Defendant guilty as charged.

On January 21, 1998, a Motion to Continue Sentencing, to allow Defendant time to prepare a Motion for New Trial, was denied by the trial court. That same day, the Defendant was sentenced to seven years at hard labor, to run consecutively with any other sentence, with credit for *689 time served. Finally, on February 3, 1998, the Defendant filed a Motion for Appeal, which was granted by the trial judge. In this appeal, the Defendant assigns two errors.

FACTS

The Lafayette Police Department's Action Squad conducted a "buy-bust" operation on August 31, 1995, in which undercover officers were assigned to buy crack from suspected drug dealers. The undercover officers bought a rock of crack cocaine from Michael Bonner. Bonner obtained the rock he sold the officers from the Defendant. The two men realized that Bonner had sold cocaine to police officers when uniformed officers comprising the "take down team" entered the area. Both men fled the scene and were pursued by officers. During the chase, the Defendant threw away two clear bags of marijuana. Soon after, the Defendant was apprehended and arrested. The police also apprehended Michael Bonner, the co-defendant. Bonner later told police that the Defendant had asked him to sell the drugs and, after he was arrested, to take responsibility for the sale in return for money.

Defendant's second assignment of error deals with sufficiency of the evidence; hence, the other pertinent facts will be discussed fully in our disposition of that assignment of error.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Review of the record reveals one error patent.

The Defendant was not informed of the three-year time limit for filing post-conviction relief as is required by La.Code Crim.P. art. 930.8. Thus, the district court is directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the Defendant contends the evidence presented at trial was insufficient to support his conviction. Although submitted as the Defendant's second assignment of error, we address the claim of insufficiency of the evidence first, as, if the assignment has merit, the Defendant will be entitled to an acquittal and consequently, a discussion of the other assignments would be pretermitted. State v. Hearold, 603 So.2d 731 (La.1992).

The Defendant asserts that the evidence was insufficient to convict him of the instant offense. He states that the only person who could testify to the fact that he was the one that gave Michael Bonner the crack was Michael Bonner, and since Bonner was a convicted felon and a "crack head," Bonner was not worthy of belief and thus, any conviction based on his testimony was erroneous.

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. Distribution of cocaine (a Schedule II substance) is defined in La.R.S. 40:967, which provides in pertinent part:

... it shall be unlawful for any person knowingly or intentionally:
(1) To ... distribute ... a controlled dangerous substance classified in Schedule II;

The Defendant maintains that the State did not prove he had the specific intent to distribute the crack cocaine. In order to prove the intent element of the crime, the State was required to prove the Defendant had a subjective specific intent to distribute. State v. Hills, 498 So.2d 240 (La.App. 1 Cir.1986), writ denied, 503 So.2d 13 (La.1987). Specific intent is a state of mind and it need not be proven as a fact; it can be inferred from the circumstances and actions of the Defendant. *690 State v. Gordon, 646 So.2d 995 (La.App. 1 Cir.1994).

In State v. Harmon, 594 So.2d 1054 (La.App. 3 Cir.1992), writ denied, 609 So.2d 222 (La.1992), writ denied, 623 So.2d 1326 (La.1993), this court stated the following in regards to proving intent to distribute:

The intent to distribute may be established by proving circumstances surrounding defendant's possession which give rise to reasonable inferences of intent to distribute. Several factors from which intent to distribute may be inferred have been enumerated in Louisiana's jurisprudence. Those factors include: (1) that defendant ever distributed or attempted to distribute narcotics; (2) that the narcotics were in a form usually associated with narcotics possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id. at 1060 (Citations omitted).

The presence of cash is also considered circumstantial evidence of intent. State v. Jordan, 489 So.2d 994 (La.App. 1 Cir.1986).

Although these are factors to normally be considered when reviewing a distribution conviction, because the Defendant limits his appeal to the credibility determination of the jury as to the testimony of Michael Bonner, we will likewise limit our review.

On August 31, 1995, Lafayette Police were conducting an investigation of street level drug dealers. Undercover officers were assigned to buy drugs from persons suspected of dealing crack cocaine.

According to the police report issued in reference to the arrest of the Defendant, officers assigned to this "buy-bust" operation bought a "rock substance believed to be crack cocaine in the 300 block of Hilda Street." After the purchase, undercover Officer William Soileau radioed uniformed officers, making up the "take down team," a description of the two men who sold him the crack. Soileau said that Michael Bonner sold him a rock for a marked twenty dollar bill. He said that Bonner had received the rock from a man later identified as the Defendant.

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Bluebook (online)
734 So. 2d 687, 1999 WL 44893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bernard-lactapp-1999.