State v. Washington

866 So. 2d 973, 3 La.App. 5 Cir. 1135, 2004 La. App. LEXIS 58
CourtLouisiana Court of Appeal
DecidedJanuary 27, 2004
DocketNo. 03-KA-1135
StatusPublished
Cited by1 cases

This text of 866 So. 2d 973 (State v. Washington) 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. Washington, 866 So. 2d 973, 3 La.App. 5 Cir. 1135, 2004 La. App. LEXIS 58 (La. Ct. App. 2004).

Opinion

J^SUSAN M. CHEHARDY, Judge.

On November 6, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rendell Washington, with possession with the intent to distribute marijuana within' 1,000 feet of Kenner Drug Free Zone #11, in violation of La. R.S. 40:981.3. Defendant pled not guilty and filed several pre-trial motions.1

After a two-day trial that commenced on September 23, 2002,. defendant was unanimously found guilty as charged by twelve-person jury. On January 10, 2003, the trial judge sentenced defendant to eight years at hard labor and imposed a $50,000 fine.

On April 28, 2003, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. After a multiple bill hearing on April 30, 2003, the trial court found that the State had proven that defendant was a second felony offender. The trial judge vacated defendant’s original sentence for his underlying felony drug conviction and imposed an enhanced sentence of 22]/¿ Dyears without the benefit of probation or suspension of sentence. Defendant filed a timely motion for appeal.2

Facts

On September 25, 2001, Detective Reynaldo Suarez of the Kenner Police Department was on patrol with his partner, Detective Sandino, in a high crime area in Kenner when they observed a black male on the corner of 27th Street and Panama flagging down vehicles. The detectives parked their unmarked police car about one block away and conducted surveillance.

During surveillance, Detective Suarez saw the man flag down a couple of vehicles. The man also walked. toward the middle of the block of 27th Street to meet another mam The two men engaged in a quick conversation. Detective Suarez then observed a hand-to-hand transaction between the men. Specifically, Detective Suarez saw the first man remove something from his left front pocket and hand it to the second man. Although Detective Suarez did not see what was exchanged, he believed the men exchanged money.

The detectives decided to approach the two men. When they did, the men ran in opposite directions. Detective Suarez chased the first suspect. As Detective Suarez was chasing his suspect, the man slowed down as he was reaching into his pocket. When the suspect slowed down, Detective Suarez caught him immediately after he discarded a clear plastic bag containing five smaller bags of marijuana. Detective Suarez subdued the suspect, later identified as the defendant. Detective Suarez also- retrieved the bag. When defendant was searched incident to his arrest, Detective Suarez found that defendant was holding a crumpled ten dollar bill in his right hand. No drug paraphernalia [977]*977was found on defendant at the time of his arrest.

|4At trial, defendant testified that, on the evening in question, he borrowed his mother’s jeep to go to the store. On his way to the store, he stopped and talked to his friend, Terrell Hines. Defendant stated Hines had just given him two dollars to purchase a drink for him from the store when the police approached defendant’s vehicle. Washington’s mother and Hines corroborated these events. Defendant also testified that he ran from the police because he was driving on a suspended license and had an outstanding warrant for his arrest. He denied ever having or throwing down the marijuana.

In his first counseled assignment of error, defendant contends that the evidence was insufficient to support his conviction for possession of marijuana with the intent to distribute. He claims that the State failed to prove he had the specific intent to distribute the marijuana. He asserts there was no evidence that the amount of marijuana found was inconsistent with personal use.

The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When circumstantial evidence is involved, the evidence must exclude every reasonable hypothesis of innocence. LA. R.S. 15:438; State v. Gilbert, 02-922 (La.App. 5 Cir. 1/28/03), 839 So.2d 250, 253. The reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events” but rather must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (U.S.La.10/31/94).

|sThe crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La. R.S. 40:966(A); State v. Kelly, 01-321 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 01-3266 (La.11/1/02), 828 So.2d 565. We note that, on appeal, defendant does not challenge the finding that he was in possession of marijuana but rather challenges the determination that he had specific intent to distribute marijuana.

Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Kelly, 800 So.2d at 982. Factors which may give rise to a reasonable inference that defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. Id. Mere possession of a drug does not evidence intent to distribute absent circumstances from [978]*978which intent to distribute may be inferred unless the quantity is so large that no other inference is possible. State, v. Hearold, 603 So.2d 731, 735-736 (La.1992).

In the present case, defendant was observed discarding a clear plastic bag that contained five smaller bags of marijuana totaling 16.1 grams. Detective Blane Don-novan, an expert in the packaging, distribution and handling of narcotics, testified that the packaging of the marijuana was consistent .with distribution. He | ^explained that the five bags were “dime” bags and sold for ten dollars each on the street.

Detective Donnovan further stated that the lack of drug paraphernalia found on defendant evidenced his intent to distribute it rather than use it for personal consumption. He explained that the marijuana is smoked using a pipe or rolling papers. He testified the fact defendant did not have a pipe or rolling papers in his possession indicated defendant did not intend to smoke the marijuana himself.

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Related

State v. Washington
866 So. 2d 973 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
866 So. 2d 973, 3 La.App. 5 Cir. 1135, 2004 La. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-lactapp-2004.