State v. Wilson

635 So. 2d 494, 93 La.App. 3 Cir. 1150, 1994 La. App. LEXIS 973, 1994 WL 113054
Procedural entryThis page is a short order in State v. Wilson. Read the opinion of the Court — 632 So. 2d 861
Louisiana Court of Appeal·Decided April 6, 1994·No. No. CR93-1150·Published

Opinion

KNOLL, Judge.

Defendant, Henry Wilson, Jr., was charged on May 21, 1992, with possession of cocaine, a violation of LSA-R.S. 40:967 C. After trial by a six person jury, defendant was found guilty as charged. The trial court ordered a presentence investigation report but no felony sentencing guidelines report was prepared. The State then filed a habitual offender bill of information, charging defendant as a fourth felony offender. Defendant denied the allegations in the habitual offender bill of information and after a hearing, he was declared a fourth felony offender and sentenced to 20 years with the Louisiana Department of Corrections.

ASSIGNMENTS OF ERROR

Defendant was represented at trial by Stephen Salter and on appeal he is represented by David Williams. Originally, Williams filed twelve assignments of error. Yet, the appellate brief lists six assignments of error.

With regard to those assignments of error which were filed but not briefed, we consider them abandoned. LSA-Uniform Rules, Courts of Appeal, Rule 2-12.4.

In addition, defendant’s appellate brief contains arguments of assignments of error which were not specified as errors in the trial court in accordance with LSA-Uniform Rules, Courts of Appeal, Rule 1-3 and LSA-C.Cr.P. Art. 920(1) and thus are not properly before us. Accordingly, we will allude in our opinion to those instances where this occurs.

FACTS

On March 20, 1992, at approximately 9:30 a.m., Sergeant Paul Charles and Corporal Donald Shilow of the Lake Charles Police Department were on patrol in the area of Boston Alley in Lake Charles. While they were talking to several persons, an elderly man informed them that a man and woman were smoking crack cocaine inside the bathroom of a local pool hall. The police officers immediately went to the club and the elderly man identified defendant as the man he witnessed smoking the cocaine. Defendant was walking to the front door when Corporal Shilow stopped him at the exit, standing halfway inside and halfway outside the front door of the pool hall. Because of the vicinity’s reputation as a high crime area, Corporal Shilow performed a weapons frisk of defendant. As defendant was raising his hands, Sergeant Charles and Corporal Shilow testified that several rocks fell from his right hand. At this point, Sergeant Charles advised Corporal Shilow that defendant had dropped something and proceeded to retrieve the items from the sidewalk. At this point, Corporal Shilow arrested defendant and handcuffed him. The four rocks which were recovered were analyzed by the Southwest [497]*497Louisiana Crime Lab and found to contain cocaine.

Contrary to the police officer’s appreciation of the facts, defendant testified that he was in the pool hall. He further stated that the police officers stopped him, made him raise his hands and back onto the sidewalk where they searched the ground until they found the rocks of crack cocaine in the street. Defendant denied smoking crack cocaine and claimed he knew two witnesses, Cathy Stanton and the unidentified bartender at the pool hall, who could have corroborated his version, but his attorney would not subpoena them.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the verdict was contrary to the law and evidence and that the evidence was insufficient to show that he committed the crime.

When an appellate court is presented with the issue of sufficiency of the evidence, the critical inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, could any rational trier of fact 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). It is the role of the fact finder to weigh the respective credibility of the witnesses; accordingly, a reviewing court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard. See, State ex rel. Grajfagnino v. King, 436 So.2d 559 (La.1983), citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. LSA-R.S. 40:967 C provides that it is unlawful for any person to knowingly or intentionally possess a Schedule II controlled dangerous substance. Cocaine is a Schedule II controlled dangerous substance.

In the case sub judice, the evidence established that the two police officers standing next to defendant saw four rocks of crack cocaine drop from his hands as they checked him for weapons. The police officers further testified that they immediately retrieved the crack cocaine from the ground and turned them over to the crime lab. The crime lab later determined that the rocks submitted to them for analysis contained cocaine.

As pointed out in the facts, defendant testified, giving a different version of what transpired when the police stopped him. Succinctly stated, defendant claimed that the rocks of cocaine the police found on the ground were dropped by an unidentified person, not by him.

A determination of the weight of evidence presented is a factual question. The resolution of a matter where conflicting testimony exists requires a determination of credibility of the witness and is a matter of weight of the evidence and not sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A determination of the weight of evidence rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. State v. Nolan, 503 So.2d 1186 (La. App. 3 Cir.1987), writ, denied, 507 So.2d 226 (La.1987).

A reviewing court will impinge upon a fact finder’s discretion only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson, supra. Where rational triers of fact could disagree about the interpretation of the evidence, we, as a reviewing court, must adopt the rational trier’s view of all the evidence most favorable to the prosecution. Stated another way, a reviewing court will only overturn a trier of fact’s irrational decisions to convict. See, State v. Mussall, 523 So.2d 1305 (La.1988).

In the present case, the jury chose to believe the two police officers and not defendant. Viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found that the State proved defendant’s guilt beyond a reasonable doubt.

Therefore this assignment of error is without merit.

[498]*498HABITUAL OFFENDER STATUTE

In this assignment of error, defendant contends that the habitual offender statute was misapplied and that the State failed to prove that the five year cleansing period did not elapse between defendant’s prior offenses and this offense.

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State v. Wilson, 635 So. 2d 494, 93 La.App. 3 Cir. 1150, 1994 La. App. LEXIS 973, 1994 WL 113054 (La. Ct. App. 1994).

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Tibbs v. Florida
457 U.S. 31 (Supreme Court, 1982)
State v. Sanders
542 So. 2d 1134 (Louisiana Court of Appeal, 1989)
State v. Mussall
523 So. 2d 1305 (Supreme Court of Louisiana, 1988)
State v. Richardson
425 So. 2d 1228 (Supreme Court of Louisiana, 1983)
State Ex Rel. Graffagnino v. King
436 So. 2d 559 (Supreme Court of Louisiana, 1983)
State v. Vincent
387 So. 2d 1097 (Supreme Court of Louisiana, 1980)
State v. Seiss
428 So. 2d 444 (Supreme Court of Louisiana, 1983)
State v. Burkhalter
428 So. 2d 449 (Supreme Court of Louisiana, 1983)
State v. Sears
298 So. 2d 814 (Supreme Court of Louisiana, 1974)
State v. Nolan
503 So. 2d 1186 (Louisiana Court of Appeal, 1987)