State v. Moore

128 So. 3d 608, 2013 WL 6087745, 2013 La. App. LEXIS 2364
CourtLouisiana Court of Appeal
DecidedNovember 20, 2013
DocketNo. 48,492-KA
StatusPublished
Cited by4 cases

This text of 128 So. 3d 608 (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, 128 So. 3d 608, 2013 WL 6087745, 2013 La. App. LEXIS 2364 (La. Ct. App. 2013).

Opinion

BROWN, Chief Judge.

| defendant, Latellas Delanio Moore, a 28-year-old third felony offender, was convicted at a bench trial of possession with the intent to distribute marijuana. His initial 15-year sentence was vacated, and he was adjudicated as a third felony offender. As such, defendant was sentenced to 20 years at hard labor to run consecutively with any other sentence. Defendant now appeals, urging that the evidence was insufficient to support his conviction. We affirm.

Facts

This charge against defendant originated out of a traffic stop on Loreco Street in Bossier City, Louisiana, on January 28, 2010. Defendant, the driver of the vehicle, was charged by bill of information with one count of possession with intent to distribute marijuana, a Schedule I Controlled Dangerous Substance, a violation of La. R.S. 40:966(A).

[610]*610Defendant waived formal arraignment and entered a plea of not guilty. Defendant changed his plea to guilty on August 17, 2010, but changed it back to not guilty later at the same hearing. Defendant waived his right to a jury trial.

At the bench trial, Officer Jeremy Nelson of the Bossier City Police Department testified that on January 28, 2010, he saw a black Honda Accord on John Wesley Boulevard heading toward Loreco Street with its license plate light out. He stopped the vehicle on Loreco Street outside of the Alexis Park Apartments. The car was driven by defendant. One passenger, Carlos Love, was in the vehicle. Officer Nelson asked defendant to exit the vehicle and performed a pat down search for officer safety. 12Officer Nelson went to the driver’s side window and spoke with the passenger, who stated that his name was Johnny Love. Subsequent investigation revealed that the passenger was in fact Carlos Love (the brother of Johnny Love). While standing at the driver’s side window, Officer Nelson observed an open container in the car, a 24-ounce Bud Light can in the console cup holder. Officer Nelson asked defendant if there was anything illegal in the car, and he admitted that there was an open container in the vehicle. Officer Nelson then handcuffed defendant, who remained calm and cooperative throughout the process, and then performed a pat down of the passenger, Carlos Love, who appeared nervous. Defendant consented to a search of the vehicle. Officer Brett Tyson, a backup officer, arrived and opened the passenger side door. He saw a bag of marijuana on the floorboard of the passenger side. At this time, Love ran away, with Officer Nelson in pursuit.

Carlos Love testified at defendant’s trial. He stated that he was a habitual offender. At the time of the stop, Love was on parole from a 2006 seven-year sentence for possession of a firearm by a convicted felon. One of his previous convictions was possession with intent to distribute marijuana and ecstasy. He had no deal for his testifying but did so because his attorney told him “it wasn’t a deal but it would be in your best interest to testify.” Love testified that defendant picked him up from the Alexis Park apartment complex and asked Love to go with him to buy some marijuana. Love stated that when the two men met the dealer in Shreveport, defendant gave the money to Love, who passed it out of his car window to the dealer, |swho went into his house. The dealer came back with the marijuana, which he gave to Love, who put it under his seat for defendant. Love said the dealer’s street name was Malcolm.

Defense counsel agreed to the admission into evidence of the bags of marijuana found in defendant’s car. He also agreed to the admission of the crime lab certificate stating that the contents of one of the bags seized was in fact marijuana. Additionally, the state entered into evidence a videotape of the event taken from a camera on one of the police cruisers.

The court accepted Bossier Parish Sheriffs Officer Lt. Shawn Phillips as an expert in the determination of whether a quantity of marijuana was meant for personal use or for sale. Lt. Phillips testified that the marijuana found in defendant’s car was in four bags, two of which weighed approximately one pound apiece, one of which weighed 63 grams, and the other which weighed 13 grams. Lt. Phillips stated that the weight (approximately 2 lbs. combined) and the number of bags found indicated that the owner of the marijuana intended it for resale rather than for personal use.

Defendant testified. According to defendant, Love called him to ask for a ride home to Bossier. Defendant picked Love up from the Alendale neighborhood in

[611]*611Shreveport and on their way to the Alexis Park Apartments, the traffic stop occurred. Defendant claimed that the beer can was his, but he did not know that there was marijuana in the car and he did not make any stops before the traffic stop. Defendant testified that he had prior convictions for simple burglary and monetary instrument abuse.

l4On rebuttal, the judge allowed the state to ask witnesses about the smell of marijuana to counter defendant’s testimony that he did not know there was marijuana in his vehicle. Love testified that he could smell the marijuana in the courtroom, and the judge observed at the close of trial that he could smell it as well. Lt. Phillips stated that the smell emanating from such an amount of marijuana would have disclosed its presence to defendant. However, Officer Tyson admitted that, while he easily observed the marijuana on the floorboard of the car when he opened the door, he did not smell the drugs at that time.

In his reasons for ruling, the judge stated that he did not find either defendant or Carlos Love to be a credible witness because each man was motivated to testify against the other in an attempt to avoid conviction and habitual offender proceedings. The judge concluded that the intent to distribute the marijuana was established by the amount and packaging of the marijuana. The judge then found there to be constructive possession in that the marijuana could have easily been smelled by either occupant of the car and because Officer Tyson’s videotaped reaction upon seeing the marijuana when he partially opened the car door indicated that both men could have easily seen the drugs. The judge concluded that the state proved beyond a reasonable doubt that defendant possessed the marijuana, that he intended to distribute it, and that he was guilty of possession with intent to distribute.

At the sentencing hearing held on August 30, 2011, defendant was sentenced to 15 years at hard labor, to run consecutively with any other sentences. Trial court minutes added to the record indicate that the court |BIater adjudicated defendant to be a third felony habitual offender and increased his sentence to 20 years at hard labor. Defendant has challenged neither his sentence nor its enhancement, but has asserted that the evidence is insufficient to support his conviction.

Discussion

According to defendant, the state failed to prove either that he had possession or an intent to distribute the marijuana found in the vehicle.

The 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. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert, denied,

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Cite This Page — Counsel Stack

Bluebook (online)
128 So. 3d 608, 2013 WL 6087745, 2013 La. App. LEXIS 2364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-lactapp-2013.