State v. Moore

920 So. 2d 334, 2006 WL 75123
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2006
Docket40,311-KA
StatusPublished
Cited by18 cases

This text of 920 So. 2d 334 (State v. Moore) 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. Moore, 920 So. 2d 334, 2006 WL 75123 (La. Ct. App. 2006).

Opinion

920 So.2d 334 (2006)

STATE of Louisiana, Appellee
v.
Ted W. MOORE, Appellant.

No. 40,311-KA.

Court of Appeal of Louisiana, Second Circuit.

January 13, 2006.

*338 Peggy Sullivan, Louisiana Appellate Project, for Appellant.

Ted W. Moore, Pro Se.

Jerry Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.

Before WILLIAMS, STEWART and CARAWAY, JJ.

CARAWAY, J.

The defendant was convicted by a jury of possession of cocaine with intent to distribute and sentenced to 20 years at hard labor with at least two years of the sentence to be served without benefits. Defendant appeals the conviction, asserting inter alia that his waiver of the right to appointed counsel was deficient.

Facts

On July 17, 2003, a parole officer, Diane Walker, was making field calls and looking for Rhonda Hurd, a parolee whom Walker supervised. Walker knew that Hurd sometimes stayed at the home of Ted W. Moore, the defendant, which was prohibited under the conditions of Hurd's parole. On July 17, Walker learned that Hurd was at Moore's residence. Walker then contacted Moore's parole officer, Alexis Hopper, and the two, along with other parole officers, went to Moore's house where they confronted Moore, Hurd, and others. After observing Moore walk out of one of the rear bedrooms with his hands in his pockets, the officers suspected he was in possession of either a weapon or contraband. Moore was searched, and he was found in possession of what appeared to be crack cocaine. The crime lab report confirmed that the contraband seized as evidence tested positive as cocaine.

At a pre-trial hearing on a motion to suppress, the defendant's request for different appointed counsel was denied by the trial court. The motion was tried with his appointed counsel. Subsequently, on the day of trial, Moore's appointed lawyer advised the trial court that Moore wanted to represent himself, and that Moore had threatened both him and the prosecutor. Counsel then asked to be relieved of the representation. When the trial court questioned defendant about self-representation, Moore answered affirmatively that he wanted to represent himself. The trial court asked about his level of education before permitting him to proceed to trial the same afternoon. The record reflects *339 that the defendant had represented himself in an earlier proceeding with the same judge some years before. The defendant was convicted of the charged offense and sentenced to 20 years at hard labor with 2 years to be served without benefits.

Discussion

Moore first argues that the evidence does not support the conviction of possession of cocaine with the intent to distribute. While appellant does not deny possessing the cocaine, he argues that the state failed to prove beyond a reasonable doubt that he did so with intent to distribute because he claims the state's expert testimony regarding cocaine use and distribution did not establish that element of the crime. Moore also argues that the expert did not address the possibility "that a user in their own home might not feel compelled to have a crack pipe on his person and the State never made their `expert' aware of the evidence found in the house that someone was smoking." Finally, Moore notes that Rhonda Hurd admitted to use of cocaine and testified at trial that their joint use of the 27 rocks of cocaine found at the residence could have occurred over a short period of time.

It is unlawful for any person to knowingly or intentionally produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II. La. R.S. 40:967. To convict a defendant of possession of CDS with intent to distribute, the state must prove beyond a reasonable doubt that he knowingly and intentionally possessed the contraband and that he did so with the intent to distribute it. La. R.S. 40:967; State v. Clark, 35,272 (La.App.2d Cir.12/5/01), 803 So.2d 280.

When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. State v. Greenway, 422 So.2d 1146 (La.1982); State v. Grant, 39,102 (La.App.2d Cir.12/15/04), 890 So.2d 689; State v. Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201, writ denied, State ex rel. Johnson v. State, 03-3546 (La.12/17/04), 888 So.2d 854. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant's possession which give rise to reasonable inferences of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1981); State v. Johnson, supra.

The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to distribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute. State v. House, 325 So.2d 222 (La.1975); State v. Clark, supra. Testimony of street value and dosage of the drug is also relevant to the issue of intent. State v. Tornabene, 337 So.2d 214 (La. 1976); State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575.

The proper standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. *340 2781, 61 L.Ed.2d 560 (1979); 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. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. 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.

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,

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Bluebook (online)
920 So. 2d 334, 2006 WL 75123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-lactapp-2006.