State v. McGraw

1 So. 3d 645, 2008 La. App. LEXIS 1603, 2008 WL 5158603
CourtLouisiana Court of Appeal
DecidedDecember 10, 2008
Docket43,778-KA
StatusPublished
Cited by8 cases

This text of 1 So. 3d 645 (State v. McGraw) 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. McGraw, 1 So. 3d 645, 2008 La. App. LEXIS 1603, 2008 WL 5158603 (La. Ct. App. 2008).

Opinions

CARAWAY, J.

11 James McGraw was convicted after a jury trial of attempted possession of a controlled dangerous substance, Schedule III (hydrocodone), in violation of La. R.S. 14:27 and La. R.S. 40:968. McGraw received the maximum sentence of two and one-half years’ imprisonment at hard labor. He now appeals contesting, among other issues, the validity of the search of his vehicle. He also alleges an excessive sentence. We now affirm the conviction and sentence.

Facts

On December 6, 2005, the state filed a bill of information charging McGraw with possession of hydrocodone (in violation of La. R.S. 40:968), possession of marijuana (in violation of La. R.S. 40:966), possession of an open container (in violation of La. R.S. 32:300), and making an improper turn (in violation of La. R.S. 32:104 B). The charges were severed. The instant case relates to possession of hydrocodone charge stemming from a late-night traffic stop in which McGraw, the driver, and Leon Day, the passenger, were ultimately arrested. Trial of this matter revealed the following facts.

On October 26, 2005, Monroe Police Officer Satre observed McGraw make an improper turn at an intersection. Officer Satre stopped, approached McGraw’s vehicle and asked for his license and registration. The officer’s testimony revealed the following concerning McGraw’s arrest that led to the vehicle’s search:

12A. I made contact with Mr. McGraw, asked for his driver’s license, registration, insurance which he gave me. And I observed a cup in his cup holder.
Q. With regard to placing Mr. McGraw under arrest, had you made a decision at that point in time on what to do with Mr. McGraw?
A. No, sir.
Q. So you’re investigating the improper turn, received his driver’s license, registration, insurance. All that seemed to be in order?
A. Yes, sir.
Q. And then notice a cup in the cup holder?
A. Yes, sir.
Q. What did you do then? Did you take possession of that?
A. Took possession and smelled it. It smelled like an alcoholic beverage.
Q. What did you do with the cup at that point in time?
A. I threw it out. Well, I poured the drink out.
Q. What did you do with Mr. McGraw at that time?
A. At that point, well, at that point I decided that — I don’t know if I thought he made a — you know lied to me or not. I made the decision to arrest him for the improper turn.
Q. Did you place him anywhere?
A. I took him out of the car and placed him in my patrol car.

The arrest reports show that McGraw was also arrested for a violation of the open container law, but Officer Satre’s testimony does not indicate when that arrest was made.

| ¡¡At some point in time after the above events, Officer Satre searched “just the driver’s side” of McGraw’s vehicle, which he characterized as the area where McGraw could reach. In the middle console, Satre discovered what laboratory [650]*650tests later identified as hydrocodone. He also found what was later determined to be marijuana in the driver’s door pocket. Officer Satre also placed McGraw under arrest for possession of hydrocodone and marijuana. A subsequent search of his person uncovered over $500 in cash.

Monroe Police Corporal James Crouch provided Officer Satre with backup assistance. Corporal Crouch testified that he assisted Officer Satre with finding the passenger’s identity. Crouch’s warrant check on Day showed that he had an outstanding warrant in Monroe City Court. Corporal Crouch got Day out of the vehicle, arrested him on the outstanding warrant and took him to his unit to do a search. Corporal Crouch noticed that Day’s hand was clenched. When he asked Day to open his hand, Day attempted to throw something into the air, but the officers successfully restrained him and confiscated a rock of crack cocaine. Day was ultimately held on the outstanding warrant and arrested for two counts of resisting an officer and one count of possession of cocaine.

McGraw’s friend and sole defense witness, David Cyrus, Jr., testified that at some point before the defendant’s arrest, he had detailed McGraw’s vehicle, and another customer’s. As part of his cleaning procedure, he removed the personal property from both cars, cleaned them, and placed their property back into their respective cars. Around the day McGraw was arrested, the other customer complained to Cyrus that various CDs and a | ¿napkin containing a Lortab (a pink pill) was missing from his car. When Cyrus heard about McGraw’s arrest, he testified that he realized he might have inadvertently placed the Lortab in the wrong vehicle. Cyrus reiterated several times that he knew the pill was pink because he had actually seen it. Upon cross-examination, Cyrus admitted that the hydrocodone admitted into evidence was not pink.

A six-person jury convicted McGraw of the responsive verdict of attempted possession of hydrocodone. A post-judgment verdict of acquittal was denied by the trial court, and McGraw was sentenced to the maximum term of two-and-one-half years at hard labor on May 15, 2008.1

Discussion

McGraw argues that the state failed to prove that he was in constructive possession of the hydrocodone due to the lack of evidence that the drug was in his dominion and control or that he had knowledge of the drug in his car.

When issues are raised on appeal both 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. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. [651]*651Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

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Cite This Page — Counsel Stack

Bluebook (online)
1 So. 3d 645, 2008 La. App. LEXIS 1603, 2008 WL 5158603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgraw-lactapp-2008.