State v. Spencer

707 So. 2d 96, 1998 WL 17801
CourtLouisiana Court of Appeal
DecidedJanuary 21, 1998
Docket29993-KA
StatusPublished
Cited by7 cases

This text of 707 So. 2d 96 (State v. Spencer) 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. Spencer, 707 So. 2d 96, 1998 WL 17801 (La. Ct. App. 1998).

Opinion

707 So.2d 96 (1998)

STATE of Louisiana, Appellee,
v.
Donald Ray SPENCER, Appellant.

No. 29993-KA.

Court of Appeal of Louisiana, Second Circuit.

January 21, 1998.

*98 Wilson Rambo and Peggy J. Sullivan, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Hamilton Stephens Winters, Assistant District Attorney, for Appellee.

Before MARVIN, C.J., and NORRIS and STEWART, JJ.

NORRIS, Judge.

Beginning in October of 1995, the Metro Narcotics division of the Monroe Police Department commenced an undercover narcotics investigation which focused on illicit drug sales at a motel in Monroe. Shortly thereafter, an unidentified male known only as Don became the target of the investigation.

Equipped with audio recording devices and Metro "buy" money,[1] undercover officer Jeremy Taylor purchased various amounts of cocaine from Don in room 18 of the motel on October 5 and 17, 1995 and on January 17, 1996. These purchases were conducted in the form of a "buy walk."[2] Meanwhile, Detective Mark Little, who opened the investigation, was able to identify the person in room 18 selling the cocaine as Donald Ray Spencer, defendant, and obtained a photo of Spencer from a probation file.

Following the "buy walk" on January 17, Taylor identified Spencer in a photo line-up as the person who had sold him the drugs on the three previous occasions. On January 30, 1996, undercover reserve officer Harry Caine replaced Taylor and went to room 18 to meet with Spencer to buy cocaine. Caine knocked on the door; a female later identified as Virginia Moore, Spencer's girlfriend, opened the door. (Taylor had testified that Virginia was in room 18 during the October 17 drug transaction.) Spencer was in the room but did not sell Caine any drugs because he did not know Caine. Caine walked back to his car and was followed by Virginia who told him, "Well, you just have to understand our position." (At trial, Virginia testified that she was acting on her own and that Spencer did not know that she had sold the drug to Caine.) Nevertheless, she handed him a piece of cocaine and he gave her a twenty dollar bill.

Later that day, a search and an arrest warrant were executed. Neither Spencer nor Virginia was present in room 18 when the officers obtained entry. In fact, as Officer Hereford and Nappier returned to their vehicles to secure equipment, Spencer walked upon the scene. He was carrying a box of Popeye's Fried Chicken and a Popeye's cup. Spencer placed the box and cup on the ground to allow the officers to perform a "pat down" search. Officer Nappier then escorted him to Detective Little, while Officer Hereford retrieved the box and drinking cup, removed the lid from the cup, and found three loose rocks and eight packaged rocks of cocaine. Spencer was subsequently arrested.

*99 Spencer was charged by bill of information[3] with the following six counts: (Count # 1) Distribution of Cocaine on October 5, 1995; (Count # 2) Distribution of Cocaine on October 17, 1995; (Count # 3) Distribution of Cocaine on January 17, 1996; (Count # 4) Distribution of Cocaine on January 30, 1996; (Count # 5) Conspiracy to distribute cocaine on January 30, 1996; and (Count # 6) Possession of Cocaine with intent to distribute on January 30, 1996.

Spencer proceeded to jury trial. He was found guilty on counts one, two, three and six; and found not guilty on counts four and five. The court later sentenced him to 20 years at hard labor on each of the counts, sentences to be served concurrently with each other but consecutively as to other sentences he may be serving. Credit was given for time served.

Spencer now appeals raising four[4] assignments of error: (1) The evidence herein is legally insufficient to support the verdicts of distribution of cocaine and possession of cocaine with intent to distribute; (2) the court erred in imposing an unduly harsh and excessive sentence under these circumstances and failed to sufficiently articulate and consider La.C.Cr.P. art. 894.1 guidelines as well as certain mitigating factors present herein in fashioning a sentence; (3) the court erred in dividing ex parte the pool of prospective jurors between two different courtrooms and trials without notice to and the consent of the defendant. Further, the trial court erred in removing from the selection process one-half of the names of prospective jurors who were present and listening to voir dire in the other courtroom so that those names were not available to be drawn in a random manner from the prospective jurors in defendant's trial; and (4) the court erred in denying defendant's motion to Reconsider Sentence. For the following reasons, we affirm.

SUFFICIENCY OF THE EVIDENCE

When a defendant challenges both the sufficiency of evidence and one or more other trial errors, the appellate court should first determine the sufficiency challenge. State v. Hearold, 603 So.2d 731 (La.1992); State v. Evans, 29, 675(6) (La.App.2d Cir. 9/24/97), 700 So.2d 1039. The constitutional standard for testing the sufficiency of evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.), writ denied 619 So.2d 573 (1993). 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 circumstantial evidence must be 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. State v. Sutton, 436 So.2d 471 (La.1983); State v. Appacrombie, 616 So.2d 285 (La.App. 2d Cir.), writ denied 623 So.2d 1302 (La.1993).

Although Spencer assigns as error an insufficient amount of evidence required to convict on all counts, his argument is only directed to Count # 6, possession of cocaine with intent to distribute, in contravention of La. R.S. 40:967.

*100 To support a conviction for possession with intent to distribute, the state must prove (1) possession of the controlled dangerous substance and (2) specific intent to distribute it. La. R.S. 40:967 A(1); State v. Elzie, 343 So.2d 712 (La.1977); State v. Daniels, supra. Because Spencer has further limited his argument to the intent element of § 967, we likewise limit our review.

Intent is a fact which may be inferred from circumstantial evidence. State v. Hall, 602 So.2d 256 (La.App. 2d Cir.), writ denied 609 So.2d 254 (1992).

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Bluebook (online)
707 So. 2d 96, 1998 WL 17801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spencer-lactapp-1998.