State Of Louisiana VS Danita Tate Joseph
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1335 STATE OF LOUISIANA VERSUS TITA DAI TATE JOSEPH DATEOFJUDGMENT i MAR 2 5 2013 ON APPEAL FROM THE NINETEENTH JLJDICIAL DISTkICT COURT NLJMBER 07 SEC 6 PARISH OF EAST BATON ROUGE 0659 09 STATE OF LOUISIANA HONORABLE RICHARD CHIP MOORE JUDGE James D Caldwell Counsel for Plaintiff Appellee Louisiana Attorney General State of Louisiana Matthew B Derbes Terri R Lacy Baton Rouge Louisiana Michael A Fiser Baton e Roug Louisiana Counsel for Defendant Appellant Danita Tate Joseph FORE B KUHN PETTIGREW AND McDONALD JJ Disposition CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFII2MED SENTENCE VACATED AND REMANDED FOR RESENTENCING IHN Ki J Defendant Danita Joseph was charged by bill of information with possession with intent to distribute marijuana a Schedule I controlled dangerous substance in violation of La R S S 964 1 A 966 40 See La R 40 She entered a plea of not guilty and was found guilty as charged after a trial by jury The trial court sentenced defendant to six years imprisonment at hard labor The State filed a habitual offender bill of informarion and the trial court adjudicated defendant a fourth habitual offender resentencing her to thirty years felony imprisonment at hard labor without the benefit ofprobation parole or suspension of sentence evidence Defendant appeals and assigns as enor the sufficiency of the For the following reasons we affirm the conviction and habitual offender adjudication vacate the sentence and remand for resentencing STATEMENT OF FACTS On May 26 2009 Detective Drew White of the Narcotics Division of the Baton Rouge Police Department BRPD received a telephone call from an anonymous concerned citizen reporting drug trafficking at 710 North 32nd Street in Baton Rouge Two days later May 28 Detective White and Detective Jeff Pittman also of BRPD Narcotics Division went to the reported location wearing s street clothes and traveling in an un vehicle They arrived at approximately arked 30 m 2 p and Detective White conducted surveillance behind bushes in a vacant wooded lot located just north of the location in question As Detecrive White stood within view of the residence at an estimated distance of fifteen to twenty feet The habitual offender adjudication is based on the following predicate convictions forgery theft of goods and theft 2 Detecti ve Pittman awa y waited in the vicinity Both detectives were equipped with communication devices Approximately a vehicle pull into ten the minutes into the surveillance driveway residence in at the Detective White observed question According to Detective White the driver identified as defendant stepped out of the vehicle with a white grocery bag in her hand She walked north across the vacant lot to an abandoned house and placed the garbage bag in a crevice underneath the front porch of the abandoned house and walked back to the residence where she initially parked Detective White reported his observations to Detective Pittman According to Detective White shortly thereafter another vehicle pulled up defendant made contact with the passenger walked back to the abandoned s house retrieved the bag and appeared to remove something from the bag walked back to the vehicle made a handing motion with the person inside and the driver drove away Several minutes later another vehicle pulled up to the residence and defendant repeated the exact conduct and transaction again going back to the bag and making contact specifically described as a handtransactiod with the to hand s passenger of this vehicle After making the observations regarding the second transaction Detective White radioed Detective Pittman with instructions to make contact with defendant At that point Detective Pittman drove to the front of the residence in his unmarked vehicle Detective White came out of his hiding spot and they approached defendant After defendant was given her Miranda rights and questioned she denied any knowledge of the bag Detective White walked over to the abandoned house and retrieved the white grocery bag while Detective 3 I Pittman held defendant The bag contained loose marijuana and a plastic baggie containing a smaller amount of suspected marijuana Detective White found no other items in the crevice of the abandoned house After she was shown the contents of the bag defendant again denied any knowledge of it or its contents and was placed under arrest ASSIGNMENT OF ERROR Defendant contends that the evidence in support of the conviction of possession with intent to distribute marijuana is insufficient initially disputing proof of the element of possession She asserts that the uncorroborated testimony I of Detective White was the only evidence that she knew the marijuana had been stashed under the porch of the abandoned house She also notes a lack of any evidence that she had recently used drugs Defendant further disputes the element of specific intent to distribute marijuana While conceding that Detective White gave uncorroborated testimony of his observations of what appeared to him to be hand transactions she to points out that he did not see what was exchanged She additionally contends that the quantity of marijuana was not large enough to infer intent to distribute and could have been indicative of personal use In reviewing the sufficiency of the evidence to support a conviction a Louisiana appellate court is controlled by the standard enuncia by the United ed States Supreme Court in Jackson v Virginia 443 U 307 319 99 S 2781 S Ct 2789 61 L 560 1979 1 standard of appellate review adopted by the 2d Ed hat Legislature in enacting La C art 821 is whether the evidence when viewed P Cr in the light most favorable to the prosecution was sufficient to convince a rational 4 trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt State u Brown 2003 La 4 907 So 1 18 cert 0897 OS 12 2d denied 547 U 1022 126 S 1569 164 L 305 2006 The Jackson S Ct 2d Ed standard of review is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides that in order to convict the trier of fact must S 438 be satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 2002 La App lst Cir 2 845 So 1492 03 14 2d 416 420 When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant own testimony s that hypothesis falls and the defendant is guilry unless there is another hypothesis that raises a reasonable doubt State u Captville 448 So 676 680 La 1984 2d As the trier of fact a jury is free to accept or reject in whole or in part the testimony of any witness State v Richardson 459 So 31 38 La App lst 2d Cir 1984 Moreover where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibil of the ty witnesses the matter is one of the weight of the evidence not its sufficiency Richardson 459 So at 38 2d A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence State v Smith 600 So 1319 1324 La 1992 In the 2d absence of internal contradiction or irreconcilable conflict with physical evidence one witness testimony if believed by the trier of fact is sufficient support for a s requisite factual conclusion State u Thomas 2005 La App lst Cir 210 06 9 6938 So 168 174 writ denied 2006 La 4 955 So 683 2d 2403 07 27 2d 5 La R 40 provides in pertinent part that it shall be unlawful S 966 1 A for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance classified in Schedule L A determination of I whether there is possession sufficient to convict depends on the peculiar facts of each case One need not physically possess the controlled dangerous substance to violate the prohibition against possession constructive possession is sufficient A person not in physical possession of the drug is considered to be in constructive possession of a drug when the drug is under that person dominion and control s Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include 1 his knowledge that illegal drugs were in the area 2 his relationship with the person if any found to be in actual possession 3 his access to the area where the drugs were found 4 evidence of recent drug use by the defendant and 5 his physical proximiry to the drugs State v Gordon 93 La App lst Cir 11 1922 94 10 646 So 995 1002 It is well settled that the mere presence in an area where 2d drugs are located or the mere association with one possessing drugs does not constitute constructive possession State v Toups 2001 La 10 833 1875 02 15 2d So 910 913 Nonetheless a person found in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control State v Trahan 425 So 1222 1226 La 1983 A 2d person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug State v Gordon 646 Sa2d at 1002 A defendant is guilty of distribution when he transfers possession or control of a controlled dangerous substance to 6 intended recipients See La R S 14 961 40 see State v Cuminings 95 La 2 668 So ll32 1377 96 28 2d 1135 To support a conviction for possession with intent to distribute a controlled dangerous substance the State was required to prove both possession and specific intent to distribute See La R 40 In order to prove the element of S 966 1 A intent to distribute the State must prove the defendant specific intent to possess s in order to distribute Specific intent is a state of mind It need not be proven as a fact and may be inferred from the circumstances present and the actions of the defendant State u Gordon 646 So2d at 1003 In cases where the intent to distribute a controlled dangerous substance is an issue a court may look to various facts 1 whether the defendant ever distributed or attempted to distribute the drug 2 whether the drug was in a form usually associated with possession for distribution to others 3 whether the amount of the drug created an inference of an intent to distribute 4 whether expert or other testimony established that the amount of drug found in the defendant possession is inconsistent with personal s use only and 5 whether there was any paraphernalia such as bags or scales evidencing an intent to distribute State v House 325 So 222 225 La 1975 2d At the time of the trial June 1 2011 Detective White had been in the narcotics division far seven years while Detective Pittman had been in the division for nine years Both had attended several narcotics training seminars Detective White estimated that he had been involved in the investigation of somewhere between one hundred and five hundred distribution of marijuana cases Detective Pittman testified that his daily routine included street level narcotics sales executing warrants and responding to drug trafficking complaints 7 Detective White testified that based on his experience distributors often stored drugs somewhere outside of the home to avoid being caught in possession Detective White was familiar with and had been to the residence in question for other marijuana distribution cases before receiving the anonymous tip leading to the instant offense Detective Pittman was also familiar with the residence and testified that the occupants were related to the Tate family The tipster did not mention the nearby abandoned house but described drive activity of through weed sales being conducted at 710 North 32nd Street Detective White specifically testified that he not only observed defendant leave the white grocery bag under the porch of the abandoned house but each time she walked back to that front porch she appeared to retrieve something from the bag then she walked back to each vehicle in front of 710 North 32nd Street and made a hand to transaction The first vehicle tl defendant approached was headed north as it pulled in front of the residence and the defendant approached at the passenger side while the second vehicle was traveling south as it pulled up and defendant approached the driver side As to each transaction brief verbal exchanges took place before defendant walked to the abandoned house and returned to the vehicles to conduct the transaction Detective White could not discern the content of the conversations As to the hand transactions Detective White to specifically observed defendant and the other individual give and take something though he could not see the objects ofthe exchange In the midst of this conduct Detective White lost sight of defendant for z In various portions of the record defendant is identified as Danita Tate Joseph although we note that the bill of information does not include a middle name 8 I seconds even up to two minutes at a time as she entered the driveway area and walked in front of the residence Detective White testified in that regard that the edge of the house sticks out and specifically stated If I behind the house a m little bit I can only see a certain portion of this driveway She was hanging out in the driveway area and so she would come in and out of my sight just from walking around in front of the house Insofar as the lack of money on defendant sperson at the time of her arrest Detective White testified that based on his experience with drug trafficking some distributors did not keep money on themselves for fear of being robbed or that it might be used as evidence against them The detectives testified that they did not search the residence or defendant vehicle after the s arrest The detectives did not recall anyone else in the area when they first made contact with defendant although onlookers appeared later when defendant was detained When specifically asked about defense witness Kendrick Bell Detective White stated that he did not know whether Bell who had been among those previously arrested on marijuana charges at the residence was there on the night of the instant offense Detective White added Well like I said a bunch of people showed up You know every time the police show up people show up andom R people were standing around I don know who all they were t Detective White testified that marijuana was typically sold packaged in small plastic baggies In this case according to the Louisiana State Police Crime Laboratory report the loose marijuana in the white plastic store bag weighed 45 213 grams while the marijuana in the small plastic baggie also recovered from the v plastic store bag weighed 3 grams Detective White described the hite 02 smaller bag as a bag meaning the street value was ten dollars Detective dime 9 Pittman testified that the amount of marijuana in this case was inconsistent with personal use based on the quantity and consistent with distribution He specifically added that based on his experience the common user would only purchase an ounce 28 grams or less of marijuana for consumption not half a pound s Defendant sister Robin Michelle Tate and son Justin Lavergne law in testified as defense witnesses Tate testified that she lived at the residence and that defendant did not live there but visited everyday Defendant stated that she used the address since it was a family residence but that she did not live there According to their testimony defendant and Lavergne arrived at the residence on the day in question about the same time that Tate arrived home from work Tate invited defendant and Lavergne to sit outside with her and they walked around to the back of the house Tate went into the house to change her shoes and use the restroom Lavergne and defendant were sitting under a tent when the police approached Tate testified that when she raised the garage door one of the officers was standing in front of defendant at the tent and the other Detective White was at the abandoned house They observed Detective White reach under the porch of the abandoned house and pull out the white plastic bag befare he arrested defendant and Lavergne Defendant testified that the police searched her vehicle before she and Lavergne were taken to the police station Tate initially testified that her past criminal offenses including drugs possession of cocaine stealing armed robbery took place when she lived in 3 The detectives could not recall whether a tent was set up that day but Detective White testified that there was often a tailgating tent set up outside of the xesidence in the middle of the type driveway in front of the garage doors He recalled having anested other individuals who used the tent for shade from the sun presumably as drug transactions were conducted 10 Chicago and that she did not have any Baton Rouge arrests But during cross examination she was again asked if she had any East Baton Rouge Parish offenses and stated I don have t I don t simple marijuana thing I fell in the car with a friend girl who had a blunt or something in the car and they s it been so long The only thing I have is a sent me to a decision making class Lavergne had a prior conviction for possession of marijuana in 2009 Defendant admitted that she used to smoke marijuana and testified that her prior convictions included possession of marijuana Lavergne Tate and defendant all denied any knowledge of the marijuana stashed under the abandoned house Defendant specifically testified that the bag was never in her possession and that she never distributed drugs or observed any drug transactions Defense witness Kendrick Bell who had a child with the defendant niece s testified that he had prior misdemeanor convictions for possession of marijuana and that he placed some marijuana under an abandoned house on 32nd street on the day in question He further stated that he left when he heard the police coming He estimated that he had about 200 grams of marijuana and identified the white plastic bag in evidence as the one he stashed that day Bell confirmed that he initially indicated that he got the marijuana from defendant but testified that he lied in that regard because he did not want to go to jail Bell further testified that he had the marijuana for personal use and routinely purchased that amount We find that the evidence presented was sufficient to support the jury s finding that defendant was aware of the presence of the marijuana and that she exercised dominion and control sufficient to constitute constructive possession Detective White was certain that it was defendant who drove up and exited her 11 vehicle placed the white grocery bag under the porch of the abandoned house and made contact with the occupants as the other two vehicles drove up before and after returning to the bag and appearing to remove something from the bag These facts are sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant stashed the marijuana thereby having knowledge of its presence and had full access to the area where the marijuana was recovered Through defendant own testimony and that of other defense witnesses the jury s was made aware of the hypothesis of innocence urged by defendant i that she e was unaware of the presence of the marijuana under the porch and Bell or someone else stashed it in that location The guilry verdict indicates that the jury rejected this hypothesis We find no error in the jury conclusion on this issue s Based on the evidence before us it was entirely reasonable far the jury relying on the testimony of Detective White to conclude defendant had the requisite guilty knowledge in the commission of the offense Analyzing the facts of the instant case and applying the House factors the jury finding of specific intent to s distribute marijuana was sufficiently supported by the evidence presented The State presented testimony by experienced narcotics detectives to show that the large amount of marijuana was inconsistent with personal use Detective Pittman testified that based on his experience the common user would only purchase 28 grams ar less of marijuana for consumption not half a pound And Detective White indicated that the conduct including two hand exchanges was to consistent with a marijuana transaction as described in the anonymous complaint and noted that the smaller baggie in evidence had a street transaction value often dollars 12 I Based on a tharough review of the record we are convinced that any rational trier of fact could have concluded beyond a reasonable doubt that the evidence was sufficient to exclude every reasonable hypothesis of innocence The jury reasonably rejected the defendant testiinony that she was unaware of the s presence of the drugs See State v Ordodi 2006 La ll 946 So 0207 06 29 2d 654 662 An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trier of fact See State u Calloway 2007 La 2306 09 21 3d 1 1 So 417 418 per curiam Based on a thorough review of the evidence in the light most favorable to the prosecution we are convinced that any rational trier of fact could have concluded beyond a reasonable doubt that the evidence was sufficient to exclude defendant hypothesis of innocence and to s support a conviction for possession of marijuana with intent to distribute The assignment of enor lacks merit SENTENCING ERROR Under La C art 920 we are limited in our routine review to errors P Cr 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found a sentencing error According to the commitment order the trial court imposed s year defendant thirty habitual offender sentence without the benefit of parole According to the penalty provision of the substantive statute and the habitual offender law the sentencing range was thirty years to life imprisonment and a parole restriction is not authorized See 13 La S R 3 B 966 40 La S R i c A 1 529 15 priar to the 2010 amendments Thus the inclusion of the parole restriction rendered the sentence illegal Because of the sentencing discretion involved we vacate the sentence and remand for resentencing See State u Haynes 2004 La 12 889 So 224 per curiam After a 1893 04 10 2d careful review of the record in these proceedings other than the illegal parole restriction on the sentence we have found no reversible errors See State u Price 2514 2005 La App lst Cir 12 952 So 112 123 en banc writ 06 28 2d 25 denied 2007 La 2 976 So 1277 0130 08 22 2d DECREE For these reasons we affirm the conviction and habitual offender adjudication of defendant Danita Joseph The sentence is vacated and appellant the matter is remanded for resentencing CONVICTION AND HABTTUAL OFFENDER ADJUDICATION SENTENCE VACATED AFFIRMED AND REMANDED FOR RESENTENCING 4 We note that the sentencing minute entry in conflict with the commitment order does not include a parole restriction and the habitual offender sentencing transcript is not a part of the instant record Out of an abundance of caution this court will remand for resentencing as indicated herein In further conflict with the commitment order the minutes do not reflect that the original sentence was vacated before the habitual offender sentencing though it is apparent from the trial court actions that it intended to do so If it has not already done so the trial court s shall vacate the original sentence pursuant to La R 15 prior to resentencing the S 5291 3 D defendant See State u Meneses 98 La App 1 st Cir 2 731 So 375 376 n1 0599 99 23 2d 14
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