State v. Ingram

888 So. 2d 923, 2004 WL 2387430
CourtLouisiana Court of Appeal
DecidedOctober 26, 2004
Docket04-KA-551
StatusPublished
Cited by41 cases

This text of 888 So. 2d 923 (State v. Ingram) 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. Ingram, 888 So. 2d 923, 2004 WL 2387430 (La. Ct. App. 2004).

Opinion

888 So.2d 923 (2004)

STATE of Louisiana
v.
Terrell INGRAM.

No. 04-KA-551.

Court of Appeal of Louisiana, Fifth Circuit.

October 26, 2004.

Hon. Harry J. Morel, Jr. District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.

M. Connie Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

*924 Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA, THOMAS F. DALEY.

JAMES L. CANNELLA, Judge.

The Defendant, Terrell Ingram, appeals from his conviction of distribution of an imitation or counterfeit controlled dangerous substance which is falsely represented to be a controlled dangerous substance. La. R.S. 40:971.1. We affirm the conviction and sentence and remand.

On August 1, 2003, the Defendant was charged with distribution of cocaine. La.R.S. 40:967(A)(1). He was arraigned on August 28, 2003 and pled not guilty. Next, he filed a motion to suppress the evidence that was denied on November 20, 2003. On that same date, the State amended the bill of information to charge the Defendant with distribution of a counterfeit schedule II controlled dangerous substance, in violation of La.R.S. 40:967(A)(2). The Defendant was rearraigned and he pled not guilty.

On December 2, 2003, the State again amended the bill of information to charge the Defendant with distributing a counterfeit schedule II substance, in violation of La.R.S. 40:971.1. The Defendant was arraigned that date and pled not guilty. Following the arraignment and not guilty plea, the case was tried before a six-person jury. The Defendant was found guilty as charged. The Defendant's motion for new trial and motion for post-verdict judgment of acquittal were denied on January 22, 2004. On February 5, 2004, the trial judge sentenced the Defendant to five years imprisonment at hard labor to run concurrently with the time which he was already serving. The Defendant filed a motion for appeal on February 27, 2004.

Captain B.J. Rock, an Assumption Parish Sheriff's officer, testified that, on April 30, 2003, he was working undercover in St. Charles Parish in order to make street-level drug buys. As he traveled down Tinny Street and approached its intersection with South Kinler Street, he observed a black male, later identified as the Defendant, standing on the corner. According to Captain Rock, the Defendant was wearing a sweatshirt with Fat Albert characters on the front.

Captain Rock drove up to the Defendant and asked him if he had "20 hard," which Captain Rock explained was street slang for $20 worth of crack cocaine. The Defendant told him to "[h]old up," and Captain Rock waited for a short time. The Defendant came back to the truck and gave Captain Rock a piece of what he (Captain Rock) thought was crack cocaine. Captain Rock gave the Defendant $20 and drove off. The truck was equipped with a videotape which recorded the transaction.

The videotape shows the transaction starting at 11:06 p.m. There is no audio on the videotape. The videotape depicted a vehicle moving in the dark. When the vehicle stopped, a black male wearing a sweatshirt walked up to the car and then walked away. A moment later he returned to the car and left again. Two men are then seen walking past the car. The same black male approached the vehicle again and walked away again. At that point, the car left the scene. The videotape ends at approximately 11:09 p.m. In the videotape, only the sweatshirt and a portion of the face of the black male are visible.

After the purchase, Captain Rock placed the object in a bag, wrote "buy no. 4" on the bag, indicating that it was his fourth purchase of the evening, and put the date on the bag. Captain Rock then met with his "cover team" at a predetermined location. He gave the bag containing the object to the cover team leader, Detective Jason Guidry of the St. Charles Parish *925 Sheriff's office, and viewed the videotape at slow speed with the detective, pointing out the individual who had sold him what he believed to be crack cocaine. Captain Rock testified at trial that the individual shown in the videotape was the same individual who sold him the substance. Captain Rock positively identified the Defendant in court as the black male in the sweatshirt in the video who sold him the substance.

Detective Guidry testified that, at approximately 11:07 p.m., Captain Rock purchased what he believed to be crack cocaine from the Defendant in a "pretty bad area" where a lot of narcotics trafficking occurred. Detective Guidry explained that the cover team, which was located a short distance away, monitored the transaction using an audio transmitting device. Minutes after making the purchase, he met with Captain Rock and the other members of the cover team at a predetermined location. Detective Guidry testified that when he viewed the videotape of the transaction, he immediately recognized the Defendant as the individual selling the purported crack cocaine. He explained that the audio was not recorded during the transaction in order to protect the identity of the confidential informant who was riding with Captain Rock. He added that the confidential informant sat in the vehicle so street-level dealers would see someone inside the vehicle whom they recognized. Detective Guidry further testified that Captain Rock gave him the suspected crack cocaine, that he field tested it, and that it tested positive for the presence of cocaine.

Bill Slaten, the evidence custodian for the St. Charles Parish Sheriff's Office, testified that the lab report shows that the off-white rock substance was tested, and that no controlled substances were detected.

On appeal, the Defendant asserts that the evidence was insufficient to convict him of distribution of a substance falsely represented to be a controlled substance. He argues that the State failed to negate any reasonable probability of misidentification and that the State failed to prove that the Defendant had the requisite intent to distribute.

The standard for appellate review of the sufficiency of evidence 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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, p. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Cazenave, 00-183, p. 14 (La.App. 5th Cir.10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.; State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

In cases involving circumstantial evidence, La.R.S. 15:438 mandates 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." In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court stated:

On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a the Defendant could afford an exculpatory explanation *926

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Cite This Page — Counsel Stack

Bluebook (online)
888 So. 2d 923, 2004 WL 2387430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ingram-lactapp-2004.