State v. Kenner

106 So. 3d 1084, 12 La.App. 5 Cir. 352, 2012 WL 6176780, 2012 La. App. LEXIS 1613
CourtLouisiana Court of Appeal
DecidedDecember 11, 2012
DocketNo. 12-KA-352
StatusPublished
Cited by3 cases

This text of 106 So. 3d 1084 (State v. Kenner) 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. Kenner, 106 So. 3d 1084, 12 La.App. 5 Cir. 352, 2012 WL 6176780, 2012 La. App. LEXIS 1613 (La. Ct. App. 2012).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

^Defendant appeals his conviction for possession of cocaine in violation of La. R.S. 40:967(C). We affirm.

Procedural Background

On August 1, 2011, the St. Charles Parish District Attorney’s Office charged defendant, Anthony Kenner, with possession of cocaine in violation of La. R.S. JO^TIC).1 Defendant was arraigned and pled not guilty. The matter proceeded to trial and a six-person jury returned a unanimous verdict of guilty as charged.

On August 5, 2011, defendant filed a Motion for Post-Verdict Judgment of Acquittal and/or Motion for New Trial. On August 23, 2011, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. On September 14, 2011, the trial court heard and denied defendant’s |smotion and adjudicated defendant a triple felony offender. Defendant waived sentencing delays and the trial court sentenced him to five years at hard labor with credit for time served. On September 20, 2011, the trial court granted defendant’s motion for appeal.

Factual Background

In November of 2009, a confidential informant advised Detective David Ehrmann of the St. Charles Parish Sheriffs Office that defendant was distributing quantities of crack cocaine from various locations, including his residence at 1120 Kinler Street in Luling. Pursuant to this information, Ehrmann — with the assistance of the confidential informant — conducted two successful controlled narcotics purchases from defendant at 1120 Kinler Street. Field tests on the narcotics obtained from both purchases yielded positive results for the presence of cocaine.

Pursuant to the results of the investigation, Ehrmann obtained a search warrant for 1120 Kinler Street. In the early morning hours of December 9, 2009, Ehrmann, along with other officers, executed the warrant. Upon entering the residence, defendant and a female, later identified as Ms. Toriana Ingram, were located in the [1087]*1087master bedroom. The occupants were detained as the officers conducted the search.2 The officers discovered cocaine in the second drawer of a nightstand in the master bedroom and inside a microwave in the kitchen.

Assignment of Error

In his sole assignment of error, defendant claims that the evidence presented at trial was insufficient to support his conviction for possession of cocaine. Specifically, defendant asserts that the state failed to prove that he knowingly and intentionally possessed the cocaine as required under La. R.S. 40:967(C). Further, ¡^defendant challenges the chain of custody form, arguing that the inconsistent descriptions of the cocaine substance seized demonstrates that the state failed to prove the cocaine removed from the home is in fact the same cocaine tested and introduced at trial.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence presented at trial, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); and State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. An appellate court’s primary function is not to determine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671. Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833.

To support a conviction for possession of cocaine under La. R.S. 40:967(C), the state must prove beyond a reasonable doubt that defendant was in possession of the cocaine and. that he knowingly possessed it. State v. Ruffin, 96-226 (La.App. 5 Cir. 8/28/96), 680 So.2d 85. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the |ssubstance. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Id. In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, courts have considered the following factors: (1) his knowledge that drugs were in the area, (2) his relationship with the person found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of recent drug use, and (5) his physical proximity to the drugs. State v. Robinson, 11-12, p. 12 (La.App. 5 Cir. 12/29/11), 87 So.3d 881, 893.

The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to the drug may establish a prima facie case of possession when [1088]*1088colored by other evidence. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464 and State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65 writ denied, 2003-2343 (La.2/6/04), 865 So.2d 738. Determination of whether there is sufficient evidence of constructive possession to support a conviction depends on the specific facts of each case.

In this case, the evidence presented at trial supports the jury’s conclusion that defendant did have constructive possession of the cocaine seized. At trial, to demonstrate defendant’s use of the master bedroom and nightstand, the state introduced evidence that the nightstand in the master bedroom contained a folder labeled “Family Security Plan” in the name of defendant and Ms. Ingram. The state also presented the testimony of Detective David Ehrmann with the St. Charles Parish Sheriffs Office. Ehrmann testified that officers executing the search in the early morning hours of December 9, 2009, found defendant and Ms. Ingram together in the master bedroom. Ehrmann further testified that, “all evidence | (¡indicated it (the master bedroom) belonged to Mr. Anthony Ken-ner and Ms. Toriana Ingram.” Ehrmann also testified that, at the time of the search, defendant resided at 1120 Kinler Drive and had access to the kitchen area in the home.

The state offered Ehrmann’s testimony with no objection from defense counsel. No testimony or evidence was presented by the defense after the state rested its case. Therefore, defendant presented nothing to the jury to contradict Ehrm-ann’s testimony that defendant resided at 1120 Kinler Street with Ms.

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Bluebook (online)
106 So. 3d 1084, 12 La.App. 5 Cir. 352, 2012 WL 6176780, 2012 La. App. LEXIS 1613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kenner-lactapp-2012.