State v. Cobb

161 So. 3d 908, 2015 La. App. LEXIS 34
CourtLouisiana Court of Appeal
DecidedJanuary 14, 2015
DocketNo. 49,410-KA
StatusPublished

This text of 161 So. 3d 908 (State v. Cobb) 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. Cobb, 161 So. 3d 908, 2015 La. App. LEXIS 34 (La. Ct. App. 2015).

Opinions

CARAWAY, J.

11 Charley Cobb was charged with possession of Xanax (Alprazolam) in violation of La. R.S. 40:969(C). Following a jury trial, Cobb was found guilty as charged. She was sentenced to five years at hard labor, concurrent with any other sentence, a $500 fine, court costs and substance abuse treatment. In default of payment, Cobb was ordered to serve 60 days in jail. Cobb now appeals the conviction and sentence. We affirm the conviction and [910]*910amend the sentence to delete the default jail time.

Facts

On April 1, 2013, officers of the Shreveport Police Department attempted execution of an arrest warrant for Joseph Cobb at his home in Shreveport Louisiana. Charley Cobb, Joseph Cobb’s sister, and her boyfriend, Michael Moore, were present in the home and allowed the officers to enter and unsuccessfully search the residence for Joseph Cobb. When asked, Cobb also gave the officers consent to search the residence and her purse. In Cobb’s purse, officers found two, orange oval-shaped pills marked G-3720.1 Using a pill identifier application on a cell phone, the officers determined that the pills were Alprazolam or Xanax. Although Cobb told the officers she had a prescription for the pills, she failed to produce one. Cobb was charged with possession of a Schedule IV controlled dangerous substance in violation of La. R.S. 40:969.

|2A jury trial commenced on September 24, 2013, and Cobb was found guilty as charged. She filed motions for post-verdict judgment of acquittal and new trial which were denied. Cobb appeared for sentencing on October 31, 2013, when the presentence investigation report (“PSI”) was not yet complete. Noting its intent to get Cobb on “DOC time” to begin drug rehabilitation, the trial court sentenced her to five years’ imprisonment at hard labor, with credit for time served, concurrent with any other sentence. Additionally, the trial court ordered her to pay a $500 fine and court costs or serve an additional 60 days in jail. Finally, the trial court ordered that she participate in a drug treatment and rehabilitation program. Cobb did not file a motion to reconsider sentence.2 On December 19, 2013, the trial court granted Cobb’s motion for appeal as an indigent.

On appeal, Cobb raises two assignments of error. She contends that the evidence was insufficient to convict her because the State failed to prove that she possessed the drug illegally. She also argues that the imposed maximum sentence is unduly harsh and excessive.

Sufficiency of the Evidence

A claim of insufficient evidence is determined by whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review, the appellate court considers whether, after viewing the evidence in the light most favorable to the prosecution, any | srational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley, 48,149 (La.App.2d Cir.6/26/13), 117 So.3d 585, writ denied, 13-1798 (La.2/14/14), 132 So.3d 410. The appellate court does not assess the credibility of witnesses or reweigh evidence, and gives great deference to the jury’s decision to accept or reject the testimony of a witness or the weight the jury gives to direct or [911]*911circumstantial evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Hill, 47,568 (La.App.2d Cir.9/26/12), 106 So.3d 617; State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

It is unlawful for anyone to knowingly possess a Schedule IV, controlled dangerous substance without a valid prescription. La. R.S. 40:969(C). Alprazolam is a Schedule IV controlled dangerous substance. La. R.S. 40:964.

Guilty knowledge is an essential element of the possession charge and can be inferred from the circumstances. State v. Towps, 01-1875 (La.10/15/02), 833 So.2d 910; State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222.

La. R.S. 40:990 provides that:

A. It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of |4proof of any such exemption or exception shall be upon the person claiming its benefit.
B. In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this part, he shall be presumed not to be the holder of such registration or form, and the burden of proof shall be upon him to rebut such presumption.

La. R.S. 40:991 states that:

A. An individual who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the Uniform Controlled Dangerous Substances Law shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office. Production of the original prescription bottle with the defendant’s name, the pharmacist’s name, and prescription number shall be sufficient proof of a valid prescription as provided for in this Section.
B. As used in this Section, “controlled dangerous substance” shall have the same meaning as provided in R.S. 40:961(7) and “prescription” shall have the same meaning as provided in R.S. 40:961(33).
C. Any individual who claims the defense of a valid prescription for any controlled dangerous substance shall raise this defense before commencement of the trial through a motion to quash.

Once the state proves that the defendant had possession of the scheduled substance, the burden shifts to the defendant to prove the affirmative defense that he possessed the drug pursuant to a valid prescription. State v. Lewis, 427 So.2d 835 (La.1982); State v. Hilsher, 11-1981 (La.App. 1st Cir.5/2/12), 2012 WL 1552269; State v. Charles, 11-628 (La.App. 3d Cir. 12/7/11), 2011 WL 6077830; State v. Blazio, 09-851 (La.App. 5th Cir.6/29/10), 44 So.3d 725, writ denied, 10-1781 (La.2/4/11), 57 So.3d 310; State v. Ducre, 604 So.2d 702 (La.App. 1st Cir.1992).

Is At trial, each of the four responding officers testified as set forth in the facts above. The officers attempted to execute an arrest warrant for Cobb’s brother and instead encountered the defendant and her boyfriend in the home. Cobb gave consent to search not only the house, but her purse as well. In it, officers found what was later identified as Zanax. The defense stipulated to the authenticity of the crime lab report which indicated that the pills found in Cobb’s purse were in fact Al-prazolam or Xanax. The pills, the property report showing the chain of custody, [912]

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

Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Robertson v. Casual Corner Group, Inc
541 U.S. 905 (Supreme Court, 2004)
State v. Smith
661 So. 2d 442 (Supreme Court of Louisiana, 1995)
State v. Lewis
427 So. 2d 835 (Supreme Court of Louisiana, 1983)
State v. Eason
3 So. 3d 685 (Louisiana Court of Appeal, 2009)
State v. Dorthey
623 So. 2d 1276 (Supreme Court of Louisiana, 1993)
State v. Toups
833 So. 2d 910 (Supreme Court of Louisiana, 2002)
State v. Bonanno
384 So. 2d 355 (Supreme Court of Louisiana, 1980)
State v. Ducre
604 So. 2d 702 (Louisiana Court of Appeal, 1992)
State v. Tate
851 So. 2d 921 (Supreme Court of Louisiana, 2003)
State v. Smith
839 So. 2d 1 (Supreme Court of Louisiana, 2003)
State v. Quebedeaux
424 So. 2d 1009 (Supreme Court of Louisiana, 1982)
State v. Cozzetto
974 So. 2d 665 (Supreme Court of Louisiana, 2008)
State v. Anderson
842 So. 2d 1222 (Louisiana Court of Appeal, 2003)
State v. June
873 So. 2d 939 (Louisiana Court of Appeal, 2004)
State v. Guzman
769 So. 2d 1158 (Supreme Court of Louisiana, 2000)
State v. Fatheree
77 So. 3d 1047 (Louisiana Court of Appeal, 2011)
State v. Gardner
77 So. 3d 1052 (Louisiana Court of Appeal, 2011)
State v. Blazio
44 So. 3d 725 (Louisiana Court of Appeal, 2010)
State v. Arkansas
104 So. 3d 459 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
161 So. 3d 908, 2015 La. App. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cobb-lactapp-2015.