State v. Riley

587 So. 2d 130, 1991 WL 190747
Louisiana Court of Appeal·Decided September 25, 1991·No. 22739-KA·Published·Cited by 27 cases

Opinion

587 So.2d 130 (1991)

STATE of Louisiana, Appellee,
v.
Randy B. RILEY, Appellant.

No. 22739-KA.

Court of Appeal of Louisiana, Second Circuit.

September 25, 1991.

*131 Charles A. Smith, Indigent Defender Bd., for appellant.

William J. Guste, Jr., Atty. Gen., James M. Bullers, Dist. Atty., Charles E. McConnell, Asst. Dist. Atty., for appellee.

Before NORRIS, HIGHTOWER and STEWART, JJ.

NORRIS, Judge.

Randy B. Riley, age 22, was charged by amended bill of information with possession *132 of more than 400 grams of cocaine, a Schedule II CDS, La.R.S. 40:967F(3). After a bench trial he was found guilty as charged and sentenced to 25 years at hard labor and a fine of $250,000. By his assignments of error, Riley challenges the sufficiency of the evidence used to convict him and the alleged excessiveness of the sentence imposed. For the reasons expressed, we affirm the conviction but remand for resentencing.

FACTS

On September 8, 1989, the Bienville-Claiborne-Webster Narcotics Task Force received information from a confidential informant that a black male driving a small green pickup truck with Texas plates was in Minden transporting a large amount of cocaine. Four deputies in two vehicles went in search of the pickup truck. Two of the deputies spotted the truck at the Dairy Queen on Shreveport Road, and called the others for support. Shortly after the second unit arrived, Riley got into his truck and headed east back toward Minden. When Riley failed to pull over in response to the deputies' flashing lights, the four deputies stopped him by blocking his truck from the front and rear. Dep. Haynes saw Riley leaning down across the seat as the deputies approached to remove him from the truck. On the floor of the truck the deputies found approximately $1200 in cash and a clear plastic bag containing 12 grams of white powder which field-tested positive for cocaine. Riley was arrested and read his rights.

In the ashtray of Riley's truck, the deputies found a motel room key with the number 12 on it. They learned that Riley had rented rooms 12 and 13 at the Magnolia Motel in Minden. Riley signed a waiver of search warrant and consented to a search of both rooms. He stated that no one was in the rooms and that there were no drugs there.

The deputies searched both rooms. In room No. 12, they discovered Riley's billfold with his Kansas driver's license and, inside a trash can, 33 plastic baggies containing a white powdery substance. In room No. 13 they found two Colombians who were also arrested.

Shortly after his arrest Riley told Dep. Haynes that he had hidden the cocaine over the truck's spare tire and then driven, along with one of the Colombians, from Houston to Minden, where they met the other Colombian.

At trial Mr. Dempsey Alford, whom the defense stipulated was an expert chemical analyst, testified that the 33 plastic bags seized from the motel room contained a total of 811 grams of 90% cocaine hydrochloride; the bag seized from the truck contained 12 grams of 89% cocaine hydrochloride.

SUFFICIENCY OF THE EVIDENCE

In his first and second assignments, Riley argues that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of possession of more than 400 grams of cocaine.

The proper standard for appellate review of sufficiency of the evidence is whether the facts established by direct evidence and inferred from the circumstances established by that evidence, when viewed in the light most favorable to the prosecution, are sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La. App. 2d Cir.1988).

In 1989, La.R.S. 40:967F(3) provided:

Except as otherwise authorized by this Part, any person who knowingly or intentionally possesses four hundred grams or more of cocaine or a related substance as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years, and to pay a fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars.

WEIGHT

Riley argues that the state failed to prove either that the cocaine seized in the *133 motel room actually weighed more than 400 grams or that the cocaine was in his possession.

Weight

Riley argues that the state failed to prove that the cocaine found in the motel room weighed in excess of 400 grams because only six of the 33 bags were chemically tested and because the bags were not individually weighed. We find this argument unpersuasive.

Mr. Alford testified that the procedure for testing a quantity of individual packets is to first visually examine all of the bags, and if they all appear to contain the same material, to analyze a representative sample in detail. Of the 33 bags seized in Riley's room, Mr. Alford selected six at random and analyzed them in detail; they contained a substance which was 90% cocaine hydrocloride. The total weight of the white powder found in the 33 bags was 811 grams. Riley offered no evidence to contradict these findings.

In State v. Ballom, 562 So.2d 1073, 1075 (La.App. 4th Cir.1990), writ denied 575 So.2d 386 (La.1991), the court concluded that random testing of cocaine "is the accepted customary practice was reasonable and reliable." In that case, the analyst had randomly tested the contents of four out of 1095 bags; each of the four bags tested was found to contain pure cocaine. Similarly, in State v. Rodriguez, 569 So.2d 5 (La.App. 3d Cir.1990), the court found that the state had proved its case-in-chief where the expert in forensic chemistry testified that the four samples he tested from different areas of a single 1,047 gram package all proved to be cocaine.

In the instant case, based on the expert's testimony that the total weight of the substance found in Riley's room was 811 grams, that all 33 of the bags were visually examined and appeared to be the same material, and that the six bags randomly selected and analyzed in detail contained 90% cocaine hydrocloride, we find that a rational trier of fact could have concluded beyond a reasonable doubt that the substance found in Riley's room was more than 400 grams of cocaine.

Constructive Possession

Riley argues that the state failed to prove that he was in possession of the cocaine found in his motel room because it was not in his actual possession and, since he told the deputies there were no drugs in his rooms, any constructive possession was without his knowledge.

While the cocaine was clearly not in Riley's actual possession when it was seized, constructive possession is sufficient to establish possession of a controlled substance within the meaning of the statute. Constructive possession is defined as having a relationship with an object such that it is subject to one's dominion and control. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied 575 So.2d 365 (La. 1991).

While guilty knowledge is an essential element of the crime of possession of contraband, such knowledge may be inferred from the circumstances. State v. Edwards

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