State v. Green

508 So. 2d 602
Louisiana Court of Appeal·Decided June 10, 1987·No. 18547-KA·Published·Cited by 17 cases

Opinion

508 So.2d 602 (1987)

STATE of Louisiana, Appellee,
v.
Larry GREEN, Appellant.

No. 18547-KA.

Court of Appeal of Louisiana, Second Circuit.

June 10, 1987.

Rankin, Yeldell, Herring & Katz by Richard Bailly, Bastrop, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James Allan Norris, Jr., Dist. Atty., Lee E. Ineichen, Asst. Dist. Atty., W. Monroe, for appellee.

Before HALL, MARVIN and LINDSAY, JJ.

LINDSAY, Judge.

Defendant, Larry Green, was charged with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966. *603 Mr. Green was indigent and represented by appointed counsel. On March 16, 1983, following a jury trial, defendant was found guilty as charged. On April 22, 1983, the trial court sentenced the defendant to serve seven years at hard labor, consecutive to any other sentence. On the same day, April 22, 1983, and following the imposition of sentence, the defendant moved for and was granted an appeal to this court. The district attorney also filed a multiple offender bill against the defendant in accordance with LSA-R.S. 15:529.1. On May 31, 1983, a hearing was held on the multiple offender bill, resulting in defendant's seven year sentence being revoked and replaced by a sentence of twenty years at hard labor.

PROCEDURAL HISTORY

The procedural history of this case is rather lengthy. Following his conviction, the defendant filed an appeal with this court in which he assigned as error the harshness and severity of the sentence imposed. However, this assignment of error was neither briefed or argued and was therefore considered abandoned. This court examined the pleadings and proceedings for discoverable errors and errors patent and none were found. State v. Green, 446 So.2d 814 (La.App. 2d Cir.1984), writ denied.

Defendant subsequently filed an application for post conviction relief with the trial court. The trial court found each assignment of error contained in the application to be meritless and therefore denied relief. We reviewed the trial court's decision on the application for post conviction relief in State v. Larry Green, No. 17,282-KH (La. App. 2d Cir. April 9, 1985). Therein, we held that the trial court correctly resolved the issues concerning an alleged illegal search and seizure and the alleged illegal admission of applicant's confession. We also found defendant's sentence to be a legal sentence. However, this court also directed the trial court to conduct an evidentiary hearing to determine the merits of defendant's allegation that he was denied reasonably effective assistance of counsel at trial. The case was then remanded to the trial court with instructions that appointed counsel be provided for the defendant and that the evidentiary hearing be held.

The trial court conducted an evidentiary hearing and found that defendant's counsel was effective. We reviewed this decision in State v. Green, No. 18,038-KH (La.App. 2d Cir. Feb. 18, 1986). We found no error in the trial court's rejection of defendant's claim concerning ineffective assistance of counsel at trial. However, the defendant also claimed that he had been denied effective assistance of counsel on his first appeal. This court held that this allegation had merit. Defense counsel's representation of the defendant on his first appeal not only provided ineffective assistance, but no assistance whatsoever because counsel failed to brief or argue any of the assigned errors. Consequently, this court held that defendant had been denied his constitutional right to effective assistance of counsel on appeal and was therefore granted a new appeal from his conviction and sentence. This appeal followed.

FACTS

On November 18, 1982, Sergeant Allen Freeman of the Bastrop Police Department received a tip from a reliable confidential informant that Larry Green would be leaving his residence in a short time and that he had a quantity of marijuana in his possession. The informant provided Sergeant Freeman with a description of the defendant and his address, as well as the license plate number and description of the car defendant would be driving. As Sergeant Freeman drove to the defendant's house, he observed the described vehicle leaving the residence. Sergeant Freeman contacted two patrol officers and requested assistance. Those officers stopped the defendant's car.

Defendant and his eleven year old sister were the only occupants of the car. The defendant was giving his sister a ride to her father's house to spend the night. The police officers proceeded to search the defendant's car. The defendant's sister was *604 carrying her book satchel and an overnight bag. Inside the book satchel the officers found a plastic bag which contained ten small plastic bags of a substance later determined to be marijuana. Defendant was arrested and taken to the police station. While being booked, the defendant admitted to Sergeant Freeman that the marijuana was his and that he placed it in his sister's book satchel. The defendant made no further statements relative to the marijuana.

ASSIGNMENTS OF ERROR

In his new appeal, defendant asserted six assignments of error. Two of the assignments of error, one concerning proof of venue and one concerning the district attorney's rebuttal argument, were neither briefed nor argued in brief. Therefore, they are considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976). The remaining assignments of error were briefed and have been considered in full. Finding that defendant's assignment of error concerning sufficiency of evidence has merit, for the following reasons, defendant's conviction for possession of marijuana with intent to distribute is reversed and his sentence is vacated. However, we find that there is sufficient evidence to support a conviction of the lesser included crime of possession of marijuana and remand the case to the trial court for entry of this verdict and imposition of sentence.

Defendant contends that there was insufficient evidence to convict him of possession of marijuana with intent to distribute. This claim raises two separate questions. First, was possession proven? Second, was there sufficient evidence relating to the defendant's intent to distribute?

When reviewing a case for sufficiency of evidence, the court is guided by the standard of "whether viewing the evidence in the light most favorable to the prosecution, any reasonable trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984).

We first consider whether the state proved that the defendant knowingly and intentionally possessed marijuana in violation of the statute. The record shows that following his arrest the defendant was fully advised of his Miranda rights. Thereafter, the defendant made a free and voluntary oral confession to Officer Freeman that the marijuana found in his sister's book satchel was his and that he had placed it there. Defendant contends that we should ignore Officer Freeman's testimony about the oral confession because it is unsupported by corroborating evidence. However, the defendant gives no other reason for not accepting the testimony of Officer Freeman as truthful. Determinations of credibility are well within the discretion of the finder of fact. We find no reason t

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