State v. Hunt

568 So. 2d 1104, 1990 WL 140236
Louisiana Court of Appeal·Decided September 26, 1990·No. 21642-KA, 21703-KA·Published·Cited by 10 cases

Opinion

568 So.2d 1104 (1990)

STATE of Louisiana, Appellee,
v.
Terrance Keith HUNT aka Terry Hunt, Appellant.

Nos. 21642-KA, 21703-KA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1990.

*1105 Hunter, Scott, Blue, Johnson & Ross by Robert C. Johnson, Monroe, for appellant.

*1106 William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., L. Douglas Lawrence, Asst. Dist. Atty., Monroe, for appellee.

Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

NORRIS, Judge.

The defendant, Terrance Keith "Terry" Hunt, was originally charged in a four-count bill of information with (1) possession of methamphetamine with intent to distribute, LSA-R.S. 40:967; (2) possession of marijuana with intent to distribute, R.S. 40:966; (3) possession of a firearm by a convicted felon, R.S. 14:95.1; and (4) distribution of methamphetamine to a person under the age of 18, R.S. 40:981 C. By amended bills, the state changed Count 1 to charge possession of methamphetamine and amphetamine with intent to distribute; and severed the firearm charge. Hunt proceeded to a jury trial on the three CDS counts in early June 1989 and was found guilty as charged. About two weeks later he pled guilty to the firearm charge. Judge Joyce, who had presided at the CDS trial, sentenced Hunt to consecutive terms of 10, 10 and 20 years at hard labor on the respective charges (appealed as No. 21,642-KA). Judge Harrison, who had accepted the guilty plea, sentenced Hunt to a concurrent 10 years at hard labor (No. 21,703-KA). Hunt now appeals, urging that all the sentences are excessive; that those in No. 21,642-KA should not have been ordered consecutive; and that the evidence was insufficient to sustain the jury verdict. An assignment regarding special jury charges is neither argued nor briefed and is abandoned. URCA-Rule 2-12.4; State v. Williams, 338 So.2d 672 (La.1976). For the reasons expressed, we affirm.

Facts

In June 1988 the Metro Narcotics Unit conducted an investigation of alleged illegal drug activity at Hunt's house, 809 South 4th Street, Monroe. They obtained a search warrant and executed it on the afternoon of June 15. Upon entry, they found the defendant, 41-year old Hunt, and 17-year old Beverly Phillips. Officers did not interrupt a drug sale, and neither suspect had CDS on his or her person. Conducting the search, however, officers found a plethora of incriminating items, including numerous packets containing quantities of substances suspected as amphetamine, methamphetamine and marijuana; gadgets such as syringes, ampoules, scales, and a pipe, some of which also had residue suspected as CDS;[1] an account book listing dollars, dates and grams; two rifles, four shotguns, five pistols, ammo and reloading supplies; over $1,800 in cash and a $40 check. These and other items were seized and the suspects arrested.

Later that evening Hunt gave a recorded statement; by agreement, part of this was played at trial. In it he admitted the guns were his; that he had the marijuana and methamphetamine at the house for sale (the latter at $100 per 0.8 oz.); and that he had given (but not sold) crystal methamphetamine to Beverly Phillips earlier that day. He thought his marijuana on hand at the time of the search was about half a pound.

Linda Armstrong of the North Louisiana Criminalistics Laboratory testified that nine of the seized items tested positive for marijuana, a Schedule I CDS, for a total of nine ounces. She also testified that 13 seized items tested positive for amphetamine and one for methamphetamine, but she could not determine the total weight of these Schedule II CDS.

Sergeant Via, who headed the investigation, and Detective Smith, who participated in the search, both testified that the scales were drug paraphernalia used to measure quantities of drugs to be packaged and sold. Sgt. Boney said that the scales could be consistent with either commercial or personal use.

*1107 Beverly Phillips also testified for the state. She had been getting methamphetamine from Hunt. On June 15, he prepared a syringe containing a greyish liquid and gave it to her some 30 minutes or so before the police arrived; she shot it up. She was fairly sure it was methamphetamine, but she could not positively say it was not amphetamine. She had, however, pled guilty to simple possession of methamphetamine as a result of this incident.

Sufficiency of evidence

By his third assignment Hunt urges the evidence was insufficient to support his conviction on the CDS charges. In brief he concedes the evidence was sufficient to convict him of simple possession of amphetamine, methamphetamine and marijuana, but not to prove his intent to distribute them. He also argues the evidence does not sufficiently prove that he distributed methamphetamine (rather than amphetamine) to Beverly Phillips.

The constitutional standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the offense 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). The Jackson standard applies to all evidence, direct and circumstantial. State v. Wright, 445 So.2d 1198 (La.1984); State v. Eason, 460 So.2d 1139 (La.App. 2d Cir. 1984), writ denied 463 So.2d 1317 (La.1985). Even so, because of the nature of circumstantial evidence and a statutory rule requiring it to exclude every reasonable hypothesis of innocence, the Jackson standard must be carefully observed and methodically implemented in cases that hinge on circumstantial evidence. LSA-R.S. 15:438; State v. Chism, 436 So.2d 464 (La.1983); State v. Nealy, supra. Ultimately all the evidence must meet the Jackson standard by convincing a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Wright, supra.

One of the offenses with which Hunt was charged was distribution of methamphetamine to a person under the age of 18 and at least three years his junior. R.S. 40:981 C. The state introduced as Ex. 21-A Hunt's signed Miranda form which listed his birth date; he was 41 years old at the time of the offense. The state also offered the edited tape recording of his statement in which he admitted giving, if not selling, a syringe prepared with crystal methamphetamine to Beverly Phillips. Ms. Phillips testified she was 17 years old at the time of the offense, that she knew the experience of shooting methamphetamine and that she had pled guilty to simple possession of methamphetamine. On direct examination she referred to the drug Hunt gave her that day as methamphetamine or crystal, and said she "understood" that this was what Hunt was giving her. On cross examination she said she was not positively sure whether it was methamphetamine or really amphetamine; she did not know the difference.

This evidence easily satisfies the first element of the crime, the age requirements. As for the second element, Ms. Phillips's fairly strong identification of the substance on direct examination offsets her later equivocation on cross, elicited in response to leading questions. Viewed in the favorable light of Hunt's direct admission that he gave her crystal methamphetamine, and the fact that this drug was f

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