State v. Harris

657 So. 2d 1072, 1995 WL 377078
Louisiana Court of Appeal·Decided June 23, 1995·No. KA 94 0696·Published·Cited by 4 cases

Opinion

657 So.2d 1072 (1995)

STATE of Louisiana
v.
Donald Ray HARRIS.

No. KA 94 0696.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.

*1074 Doug Moreau, Charles Grey, Dist. Attys. Office, Baton Rouge, for appellee State of Louisiana.

David Price, Public Defender, Baton Rouge, for defendant-appellant Donald Harris.

Before FOIL, WHIPPLE and KUHN, JJ.

WHIPPLE, Judge.

The defendant, Donald Harris, was charged by bill of information with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). The defendant pled not guilty and, after trial by jury, was found guilty of the responsive offense of possession of cocaine, a violation of LSA-R.S. 40:967(C). He subsequently was sentenced to five years at hard labor with credit for time served. The defendant has appealed, urging the following assignments of error:

1. The trial court erred in denying the defendant's special requested jury charges.
2. The trial court erred in accepting a verdict not supported by sufficient evidence.
3. The trial court erred in imposing an excessive sentence and failing to consider and apply the sentencing guidelines of LSA-C.Cr.P. art. 894.1.

In his brief to this Court, the defendant expressly abandoned assignment of error number one.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends in his second assignment of error that the trial court erred in accepting a verdict not supported by sufficient evidence. He argues that he did not directly possess cocaine and, because there were four other adults in the house when the cocaine was found and he was arrested, the state failed to negate the reasonable hypothesis that someone else possessed the cocaine. The defendant claims that, although the evidence showed that he associated with persons who used illegal drugs, the evidence was insufficient to show his knowing and intentional possession of cocaine.

Initially, we note that, in order to challenge this conviction on the basis of insufficiency of the evidence, the defendant should have proceeded by way of a motion for post-verdict judgment of acquittal. See LSA-C.Cr.P. art. 821. Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error. See State v. Tate, 506 So.2d 546, 551 (La.App. 1st Cir.), writ denied, 511 So.2d 1152 (La.1987).

In reviewing claims for the sufficiency of the evidence, this Court must consider "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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). In conducting this review, we must be mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438. See State v. Northern, 597 So.2d 48, 50 (La.App. 1st Cir.1992). The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Johnson, 529 So.2d 466, 473 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1233 (La.1989).

To support a conviction of possession of a controlled dangerous substance, the state must prove that the defendant was in possession of the illegal drug and that he knowingly or intentionally possessed the drug. State v. Spates, 588 So.2d 398, 400 (La.App. 2d Cir.1991). Guilty knowledge therefore is an essential element of the crime of possession. State v. Edwards, 354 So.2d 1322, 1327 (La.1978). A determination of whether or not there is "possession" sufficient to convict depends on the peculiar facts *1075 of each case. State v. Trahan, 425 So.2d 1222, 1226 (La.1983).

To be guilty of the crime of possession of a controlled dangerous substance, one need not physically possess the substance; constructive possession is sufficient. State v. Guirlando, 491 So.2d 38, 40 (La.App. 1st Cir.1986). In order to establish constructive possession of the substance, the state must prove that the defendant had dominion and control over the contraband. State v. Bell, 566 So.2d 959, 959-60 (La.1990). A variety of factors are considered in determining whether or not a defendant exercised "dominion and control" over a drug, including: a defendant's knowledge that illegal drugs are in the area; the defendant's relationship with any person found to be in actual possession of the substance; the defendant's access to the area where the drugs were found; evidence of recent drug use by the defendant; the defendant's physical proximity to the drugs; and any evidence that the particular area was frequented by drug users. See State v. Tasker, 448 So.2d 1311, 1314 (La.App. 1st Cir.), writ denied, 450 So.2d 644 (La.1984). See also State v. Love, 527 So.2d 62, 64 (La.App. 3d Cir.1988).

The mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or area where it is located is insufficient to support a finding of possession. State v. Tasker, 448 So.2d at 1314. Additionally, being a resident of the premises where drugs are found is not in and of itself sufficient to prove constructive possession. State v. Pollard, 93-1960, p. 12 (La.App. 4th Cir. 7/14/94); 640 So.2d 882, 888. Nevertheless, a person found in the area of the contraband can be considered in constructive possession if it is subject to his dominion and control. The defendant can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control the drugs. State v. Pollard, 93-1960 at 12; 640 So.2d at 888.

The question in this assignment of error is whether or not under Jackson v. Virginia a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant had dominion and control over the cocaine found in the house and the car and knowingly possessed it. See State v. Trahan, 425 So.2d at 1226.

Officer Frank Caruso of the Baton Rouge City Police Department testified that he and other narcotics personnel executed a search warrant at a home on Fairfields Avenue on August 27, 1991, between 11:30 p.m. and 12:00 a.m. The basis for the search warrant was information provided by a confidential informant (CI) who purchased cocaine from someone in the residence[1]. Caruso stated that he and his partner kept the CI under surveillance and they saw him enter and exit the residence. Caruso stated that the CI gave him a description of the person from whom he purchased the cocaine and he obtained a search warrant to search the premises based on the information.

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State v. Harris, 657 So. 2d 1072, 1995 WL 377078 (La. Ct. App. 1995).

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