State v. Davis

58 So. 3d 631, 10 La.App. 3 Cir. 909, 2011 La. App. LEXIS 278, 2011 WL 798881
CourtLouisiana Court of Appeal
DecidedMarch 9, 2011
DocketNo. 10-909
StatusPublished

This text of 58 So. 3d 631 (State v. Davis) 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. Davis, 58 So. 3d 631, 10 La.App. 3 Cir. 909, 2011 La. App. LEXIS 278, 2011 WL 798881 (La. Ct. App. 2011).

Opinion

THIBODEAUX, Chief Judge.

1 ,The State of Louisiana (State) charged the defendant, Joshua Derrick Davis, with possession with intent to distribute methamphetamine, a Schedule II, controlled dangerous substance (CDS). The jury found Mr. Davis guilty of the responsive offense of possession of methamphetamine, and Mr. Davis received a sentence of five years. The State filed a habitual offender bill seeking the imposition of an enhanced sentence against Mr. Davis as a third offender. The trial court adjudicated Mr. Davis a third felony offender, vacated its previously imposed five-year sentence, and imposed a sentence of seven years at hard labor. Mr. Davis brought this appeal. For the reasons more fully set forth below, we affirm the defendant’s conviction and sentence.

I.
ISSUES
We must decide:
(1) whether the State produced sufficient evidence against the defendant to support the jury’s verdict of possession of methamphetamine; and,
(2) whether the sentence imposed by the trial court was excessive for this offense and this offender.

II.

FACTS AND PROCEDURAL HISTORY

Deputy Kyle Sellers, a patrol officer with the Rapides Parish Sheriffs Depart[633]*633ment, saw Mr. Davis exit a gas station in a blue truck with an expired inspection sticker. The officer turned around to follow, and Mr. Davis sped up and turned into a driveway. Deputy Sellers activated his lights, pulled in behind Mr. Davis, and told him to step to the rear of the truck. Mr. Davis complied but refused | ¡.to make eye contact. He exhibited nervous behavior with shaky hands, attempted but could not produce a driver’s license, and could not provide the name of the person he allegedly was in route to visit. Deputy Sellers discovered that Mr. Davis had three outstanding warrants, advised him of the warrants, and placed him under arrest.

Deputy Sellers then asked Mr. Davis if anything illegal was in the vehicle. Still without making eye contact, Mr. Davis put his head down and moved it back and forth, indicating that there was not anything illegal in the vehicle. Suspecting that something was being hidden, Deputy Sellers presented Mr. Davis with a consent-to-search form, which Mr. Davis signed.

Deputy Sellers then made contact with the passenger in the truck and asked her to step out. She was crying, upset, could barely talk, and seemed nervous and scared. She said that she was Mr. Davis’ girlfriend. When Deputy Sellers asked her if anything illegal was in the truck, she responded that she believed there was, and she indicated that it was in the ashtray.

Deputy Sellers then searched the truck. In the ashtray underneath the radio was a glass pipe, wet with residue, and a folded paper towel containing five small plastic bags of crystal methamphetamine. Mr. Davis admitted the bags were his. The passenger denied that it was hers. Mr. Davis told Deputy Sellers that times were bad, that he was unemployed, that he planned to sell the methamphetamine to someone he knew, and that he had tested it to make sure that it was good before he sold it. At trial, Mr. Davis denied saying that he intended to sell the drugs.

Deputy Sellers had the passenger picked up and the truck towed. Mr. Davis’ truck could not be driven on the road. It was uninsured, and the plates were invalid, having been switched out for those of a tan truck of a different vintage.

JiH.

LAW AND DISCUSSION

Sufficiency of the Evidence

Mr. Davis contends that the State failed to produce sufficient evidence that would support a finding of constructive possession of the methamphetamine found in his truck. In support of his argument, Mr. Davis asserts that when Deputy Sellers stopped him in his vehicle and asked him if there were any drugs in the vehicle, he did not answer. Mr. Davis then asserts that it was the passenger who told the officer that there was something in the ashtray, resulting in the discovery of five bags of methamphetamine and a glass pipe. He contends that, because it was the occupant who provided the information to the officer regarding the location of the drugs, and because Mr. Davis was not in physical possession of the drugs, the evidence was insufficient to convict him. Thus, he contends on appeal that the State did not prove its case against him.

Standard of Review
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 [634]*634(1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Freeman, 01-997, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

LPossession of methamphetamine, a Schedule II CDS, is prohibited by La.R.S. 40:967. The evidence presented at Mr. Davis’ trial clearly establishes the essential elements of this offense.

Deputy Sellers testified that on July 24, 2009, he stopped Mr. Davis after noticing that the inspection sticker on his truck was expired. Mr. Davis could not produce a driver’s license, and he was found to have three active warrants. As a result of the active warrants, Deputy Sellers arrested Mr. Davis. When asked if there was anything illegal in the vehicle, Mr. Davis responded that there was not, and he consented to a search of his vehicle.

When Deputy Sellers made contact with the passenger of the vehicle, she indicated that she believed there was something illegal in the vehicle. A subsequent search of the vehicle revealed a glass pipe and what appeared to be crystal methamphetamine in the ashtray. Upon being questioned, Mr. Davis told Deputy Sellers that the drugs were his and that he was going to sell them to make a profit; the occupant confirmed to the deputy that the drugs did not belong to her.

As alleged by Mr. Davis, Deputy Sellers did testify that his family knew the passenger’s mother. However, when asked why he did not charge the passenger with an offense, he explained that Mr. Davis asked him not to do that because the drugs were not hers. It was stipulated at trial that the substance submitted for testing was indeed methamphetamine.

Mr. Davis testified at trial that prior to being stopped by Deputy Sellers, he had obtained about five grams of methamphetamine from a guy who owed him $400.00 for four tire rims. Mr. Davis accepted the methamphetamine in lieu of money because the guy said he would not have the money for a few more weeks. Mr. Davis testified that he was already in possession of the pipe.

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)
State v. Brown
868 So. 2d 289 (Louisiana Court of Appeal, 2004)
State v. Barling
779 So. 2d 1035 (Louisiana Court of Appeal, 2001)
State v. Richardson
425 So. 2d 1228 (Supreme Court of Louisiana, 1983)
State v. Salameh
38 So. 3d 568 (Louisiana Court of Appeal, 2010)
State v. Cook
674 So. 2d 957 (Supreme Court of Louisiana, 1996)
State v. Smith
766 So. 2d 501 (Supreme Court of Louisiana, 2000)
State Ex Rel. Graffagnino v. King
436 So. 2d 559 (Supreme Court of Louisiana, 1983)
State v. Smith
846 So. 2d 786 (Louisiana Court of Appeal, 2003)
State v. Duncan
420 So. 2d 1105 (Supreme Court of Louisiana, 1982)
State v. Etienne
746 So. 2d 124 (Louisiana Court of Appeal, 1999)
State v. Moody
393 So. 2d 1212 (Supreme Court of Louisiana, 1981)
State v. Batiste
594 So. 2d 1 (Louisiana Court of Appeal, 1991)
State v. Freeman
801 So. 2d 578 (Louisiana Court of Appeal, 2001)
State v. Campbell
404 So. 2d 1205 (Supreme Court of Louisiana, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
58 So. 3d 631, 10 La.App. 3 Cir. 909, 2011 La. App. LEXIS 278, 2011 WL 798881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-lactapp-2011.