State v. Hayes

108 So. 3d 360, 2012 La.App. 4 Cir. 0357, 2013 WL 264637, 2013 La. App. LEXIS 96
CourtLouisiana Court of Appeal
DecidedJanuary 23, 2013
DocketNo. 2012-KA-0357
StatusPublished
Cited by4 cases

This text of 108 So. 3d 360 (State v. Hayes) 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. Hayes, 108 So. 3d 360, 2012 La.App. 4 Cir. 0357, 2013 WL 264637, 2013 La. App. LEXIS 96 (La. Ct. App. 2013).

Opinion

DANIEL L. DYSART, Judge.

| tDefendant, Bruce Hayes was charged with one count each of possession with intent to distribute cocaine and methylene-dioxymethamphetamine, MDNA (ecstasy). A jury found defendant guilty as charged as to count one, possession with intent to distribute cocaine and as to count two, he was found guilty of the lesser included offense of attempted possession of ecstasy. Defendant was sentenced to serve five years at hard labor on count one and to serve two years at hard labor on count two. Defendant appeared for a multiple bill hearing and pled guilty to being a second felony offender. After vacating the previous sentences imposed, the district court resentenced defendant on both counts to serve fifteen years at hard labor, to run concurrently. This Court twice ordered the district court to grant defendant an out-of-time appeal.1 An appeal was granted on September 15, 2011.

Defendant raises three assignments of error on appeal: that he received ineffective assistance of counsel during the plea negotiations, trial and sentencing; that the trial court erred in admitting the criminalist lab report without testimony Land the evidence was insufficient to convict; and, that the his sentence is unconstitutionally excessive.

For the reasons set forth below we affirm the convictions, vacate the sentences in part, and render.

FACTUAL BACKGROUND:

The testimony at the trial reflected that on October 20, 2008 New Orleans Police Department Detectives Robbie Bangham and Victor Gant, Jr., conducted a surveillance of the residence located at 1328 Charbonnet Street due to several citizen complaints of drug activity in the area. The detectives were not in uniform, and they were driving an unmarked police vehicle. Using binoculars, the detectives observed an African-American male, later identified as the defendant standing in the gated yard of the residence on Charbonnet Street. The detectives observed three separate exchanges between the defendant [363]*363and unknown subjects, which they believed to be drug transactions. As defendant was crossing the street to meet a third unknown subject at an abandoned house, he was confronted by the detectives. The defendant fled on foot, and discarded an object retrieved by one of the detectives, found later to be cocaine. After the defendant was apprehended he was brought back to the Charbonnet residence. After obtaining a search warrant, and with the use of a drug-sniffing dog, cocaine as well as ecstasy pills were found in a box located in the front bedroom of the residence.

Defendant presented a defense which included the testimony of his mother and two sisters. Their testimony revealed that while the defendant visited the Charbonnet house several times a week and received his mail there, it was not his residence. However, the search of the house revealed two tax forms bearing defendant’s name with the Charbonnet Street address in the room where the |3cocaine and ecstasy were located. In addition, male clothing was found in the same room.2

DISCUSSION:

A. Insufficiency of Evidence

Defendant argues that the evidence was insufficient to support his convictions. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

|41. Proof of Dominion and Control:

Defendant argues that the State failed to show he had dominion and control over the narcotics found inside the closet at the Charbonnet Street residence and that the crime lab report, introduced without supporting testimony, was improperly admitted.

Addressing the issue of dominion and control, to support a conviction for possession of a controlled dangerous substance in violation of La. R.S. 40:967 and La. R.S. 40:966, the State must prove that the defendant knowingly and intentionally possessed the drug. State v. Perron, 01-[364]*3640214, p. 6, (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir.1990). A determination of whether a defendant had constructive possession depends on the circumstances of each case. Perron, 01-0214, p. 6, 806 So.2d 924, 928, citing State v. Cann, 319 So.2d 396, 397 (La.1975). In determining whether defendant exercised the requisite dominion and control, factors which may be considered are his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users. Perron, 01-0214, p. 6-7, 806 So.2d 924, 928, citing State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir.1989). In the instant matter, the evidence presented at trial j¿established that the defendant exercised dominion and control over the cocaine and ecstasy found in the Charbonnet Street residence.

The detectives observed the defendant outside of the Charbonnet Street residence taking part in what they believed to be three separate drug transactions. During the first two exchanges, defendant met with the subject, received currency, entered the residence and then returned outside moments later to deliver an object to the subjects.

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Bluebook (online)
108 So. 3d 360, 2012 La.App. 4 Cir. 0357, 2013 WL 264637, 2013 La. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hayes-lactapp-2013.