State v. Mingo

965 So. 2d 952, 2007 La. App. LEXIS 1700, 2007 WL 2713078
CourtLouisiana Court of Appeal
DecidedSeptember 19, 2007
DocketNo. 42,407-KA
StatusPublished
Cited by3 cases

This text of 965 So. 2d 952 (State v. Mingo) 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. Mingo, 965 So. 2d 952, 2007 La. App. LEXIS 1700, 2007 WL 2713078 (La. Ct. App. 2007).

Opinion

CARAWAY, J.

hThe defendant was convicted of possession of a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(C). He was sentenced to four years at hard labor. The defendant now appeals. The defendant’s conviction and sentence are affirmed.

Facts

On November 1, 2005, narcotics agents from the Shreveport Police Department and members of the Caddo Parish Sheriffs Office executed search warrants for two residences in the 3800 block of Mayfield Street. Controlled purchases of cocaine had been made from the house located at 3821 Mayfield Street. The owner of that residence was Danny Mingo, the defendant’s brother.

Agent David Recchia, a narcotics agent, was assigned to the perimeter team. He testified that as he arrived to execute the search warrant, he observed the defendant exit the driver’s side of a pick-up truck parked in the driveway of Danny Mingo’s residence. The defendant left the vehicle and walked to a house nearby and sat on the porch in an attempt to distance himself from the vehicle. Recchia also observed a female seated on the passenger side of the truck and another man in close proximity to the truck.

Recchia gave orders for everyone to show their hands and subsequently made direct contact with the vehicle and the subjects. Inside of the pick-up truck, he observed a yellow plate on the dashboard, directly in front of the steering wheel. The plate contained a residue of a sub[955]*955stance that was field tested positive as cocaine, a razor blade, and a dollar bill. The | aunidentified female passenger told Recchia that she came to the residence to obtain cocaine and smoke it with the defendant. Although no drugs were found on the female passenger, a crack pipe was discovered on the floorboard on the passenger side. Recchia testified that the female passenger was not arrested because she provided pertinent information to the officers.

In a bill of information, the defendant was charged with possession of a Schedule II controlled dangerous substance and convicted after a jury trial. He was sentenced to four years at hard labor.1 , The defendant now appeals.

Discussion

The defendant first assigns as error the sufficiency of the evidence for conviction. The defendant argues that the state failed to show that the defendant was in actual or constructive possession of the cocaine because no evidence was presented to show that the cocaine was subject to his dominion and control or that he had knowledge of its existence.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in LaJjC.Cr.P. art 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App.2d Cir.8/18/99) 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

This court’s authority to review questions of fact in a criminal case is limited to. the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or 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.

La. R.S. 40:967(C), in part, prohibits one from “knowingly and intentionally” possessing a Schedule II controlled dangerous substance. |4Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule 11(A)(4).

The knowing and intentional possession of cocaine is a general intent crime. [956]*956State v. Clift, 339 So.2d 755 (La.1976); State v. Young, 05-702 (La.App. 5th Cir.2/14/06), 938 So.2d 90; State v. Odle, 02-0226 (La.App. 3d Cir.il/13/02), 834 So.2d 483, writ denied, 03-0625 (La.6/20/03), 847 So.2d 1219. A requirement of general criminal intent means that the circumstances indicate that the accused “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband. Constructive possession is sufficient to convict. Constructive possession is defined as having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987. Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra; State v. Allen, 34,103 (La.App.2d Cir.12/22/00), 774 So.2d 1212. Thus, with this general intent crime of possession, the evidence must show that the defendant must have averted to the fact that he had the cocaine within his dominion and control.

A determination of whether there is possession sufficient to convict depends on the peculiar facts of each case. Factors to be considered in | ¡^determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910.

Narcotics Agents Recchia and Carlos Walker testified that they arrived at a residence located at 3821 Mayfield to execute a narcotic search warrant. The agents previously conducted two controlled purchases from the residence. Recchia testified that as they drove up, he observed a pick-up truck in the driveway of the residence. He stated that he witnessed the defendant exit the driver’s side of the vehicle while a female remained in the passenger seat. The plate on the dash in the vehicle contained the residue of a substance that field tested positive as cocaine.

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Bluebook (online)
965 So. 2d 952, 2007 La. App. LEXIS 1700, 2007 WL 2713078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mingo-lactapp-2007.