State v. Sheppard

466 So. 2d 493
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1985
Docket84 KA 0583
StatusPublished
Cited by8 cases

This text of 466 So. 2d 493 (State v. Sheppard) 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. Sheppard, 466 So. 2d 493 (La. Ct. App. 1985).

Opinion

466 So.2d 493 (1985)

STATE of Louisiana
v.
Mary SHEPPARD.

No. 84 KA 0583.

Court of Appeal of Louisiana, First Circuit.

February 26, 1985.
Rehearing Denied April 12, 1985.

*495 Ossie Brown, Dist. Atty. by Louis Daniel, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

David Haymon, Baton Rouge, for defendant-appellant.

Before EDWARDS, SHORTESS and SAVOIE, JJ.

SHORTESS, Judge.

Mary Sheppard (defendant) was charged by bill of information on May 22, 1981, with possession of phenmetrazine (preludin), a violation of La.R.S. 40:967(C)[1]. She pled not guilty and waived jury trial. The trial court found defendant guilty as charged and sentenced her to confinement for two years at hard labor in the custody of the Department of Corrections, with credit for time served.

From her conviction and sentence, defendant appeals, assigning sixteen assignments of error. Assignment of error no. 9 has been abandoned by defendant; therefore we do not consider it. Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir. 1983), writ denied, 437 So.2d 1141 (La. 1983).

FACTS

On January 21, 1981, a warrant to search defendant's residence was obtained based on information supplied by a confidential informant that he had observed defendant and her husband sell preludin (phenmetrazine) at that address. Upon execution of the search warrant, a quantity of preludin was discovered along with various other drug paraphernalia. Twelve preludin tablets were found in plain view in the front room where Wilbert Sheppard was. Twenty-two preludin tablets were found in a basket in the kitchen where defendant was when the officers arrived. There were several other persons present including Dennis Sheppard, but the testimony is confusing as to whether they were adults or children. Some of these individuals fled when the officers drove up.

Mary Sheppard and Wilbert Sheppard were arrested and charged with possession of phenmetrazine. They were tried together and found guilty as charged. Mary Sheppard alone brings this appeal.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3 AND 4

In these assignments of error, defendant alleges that the trial court erred in imposing sentence in the following respects:

(1) by relying on the fact that she had been arrested three times subsequent to the crime for which she was being sentenced;
(2) by taking into consideration an earlier conviction for which she received probation, *496 which crime, however, took place after the instant one;
(3) by imposing an excessive sentence; and
(4) by imposing a sentence which would work undue hardship on her under La.C. Cr.P. art. 894.1.

Defendant argues that the court should not take into consideration in sentencing any subsequent arrests when no determination of her guilt or innocence has been made.

The current offense occurred in January of 1981. Defendant was subsequently arrested for drug violations in March, May and September of 1983. At the time of her sentencing in the present case, one of the three pending prosecutions had been dismissed; two were scheduled for trial.

Subsequent criminal activity by the defendant can be considered by the trial judge. State v. Jenkins, 419 So.2d 463 (La.1982). This activity obviously indicated to the trial judge the defendant's proclivity for continuing drug-related conduct notwithstanding her contact with the legal system on the pending charges. Subsequent criminal activity which the court may consider in imposing sentence is not limited to subsequent convictions. See State v. Jenkins. Defendant also complains about the trial judge's consideration of her prior conviction for a subsequent offense. Under the rationale of State v. Jenkins, this conviction is also properly a consideration in sentencing.

Defendant also submits that her sentence was excessive and would impose an undue hardship on her in view of her advanced age (68 at the time of sentencing), and her poor health and the poor health of her husband.

The maximum penalty for the crime of possession of phenmetrazine is $5000.00 plus five years at hard labor. La.R.S. 40:967(C)(2). Defendant received two years at hard labor.

The imposition of a sentence within statutory limits is within the discretion of the trial court, subject only to the constitutional limitations on excessive sentences, and should not be disturbed absent manifest abuse. State v. Marler, 428 So.2d 954 (La.App. 1st Cir.1983), writ denied, 433 So.2d 151 (La.1983).

The trial judge considered several mitigating as well as aggravating factors under La.C.Cr.P. art. 894.1 in sentencing defendant. He took her age into consideration, indicating, however, that while she does have some physical problems, he did not see anything in the record to indicate that she did not have full control of her mental faculties. Neither was there anything in the record to indicate the extent of her physical impairment. It is therefore apparent that the trial court considered defendant's age and health, but her recent and extended criminal history outweighed any consideration she would be entitled to because of advanced age.[2] The trial judge mentioned defendant's subsequent criminal activity, stating that he felt a lesser sentence would deprecate the seriousness of her crime. The trial court sufficiently articulated its reasons for this sentence and adequately considered the sentencing criteria. These assignments or error are without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 13

In these assignments, defendant alleges that there was insufficient evidence introduced to prove that she was in constructive possession of the drugs that were found and the trial judge incorrectly applied the law of constructive possession to this case.

The standard of review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable *497 doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

Possession is an essential element of this crime. La.R.S. 40:967(C). Possession need only be constructive [State v. Little, 353 So.2d 255 (La.1977)] and constructive possession exists if the thing is subject to the dominion and control of the accused. State v. Cann, 319 So.2d 396 (La.1975).

Defendant asserts that she resided in a duplex and that she did not exercise exclusive possession, control, and dominion over both sides of the duplex. She alleges she occupied one side of the duplex, while her son, Dennis Sheppard, occupied the other side, and that the drugs were not seized on her side. Her testimony at trial directly contradicts this argument. She testified that the officers came through her front door rather than Dennis'.

Captain Michael Fourrier and Sergeant Paul Maranto both testified that Mary Sheppard was in the kitchen when they entered the house and her husband was in the front living room area. Maranto found a tinfoil packet containing 22 preludin tablets in a basket on the kitchen table. Defendant was the only person present in the kitchen. Fourrier testified that he found 12 preludin tablets in the front room where Wilbert Sheppard was, in plain view on the sofa. Defendant testified that she was in the bathroom when the police kicked in the door.

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