State Of Louisiana VS Karen L. Wilcox
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 1073 fir u STATE OF LOUISIANA 0 1 VERSUS KAREN L WILCOX Judgment Rendered December On Appeal 23 2009 from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 432880 Division Honorable Peter J Garcia D Judge Presiding Walter P Reed Counsel for District State of Louisiana Attorney Covington LA Kathryn Landry Special Appeals Baton Rouge E Mary Baton Counsel LA Counsel for Defendant Appellant Roper Louisiana Appellee Appellate Project Rouge Karen L Wilcox LA BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J The defendant Karen L Wilcox with distribution of cocaine of hydrocodone of possession 40 1238 1 1 legend drug a The defendant which of on were sentence The count to offender count 1 as one re without pleaded charged to was all on at at court to thirty 15 and on each of the a s of the merits two years or of suspension remaining second a sentenced the court parole probation on counts counts felony habitual twenty year sentence as to years at hard labor under the Habitual 1 529 assignments of error Finding two hard labor the first vacated the defendant sentenced her adjudication hard labor trial a The trial counts possession violation of LSA R S a After guilty subsequently adjudicated Offender Statute LSA R S offender not 1 A and 40 968C prescription a twenty years and five years The trial and violation of LSA R S 40 967 be served without benefit of defendant charged by bill of information violation of LSA R S a jury found her guilty defendant a was Defendant no error we appeals designating three affirm the convictions habitual sentences FACTS On March 24 2007 Detective the St wore a a narcotics detective in Tammany Parish Sheriff s Department acting undercover up the Jeremy Church operative with the defendant met in his throughout receiver monitored the operation that transmitted by other detectives who as an A confidential informant set meeting which occurred in the parking lot of a device capacity were hidden gas station a Church digital signal near to a the gas station drug or drug product bearing on the label of the required by the Federal Food and Drug Administration La R S the statement Caution Federal law prohibits dispensing without prescription 40 1237 3 The specific legend drugs the defendant was convicted of possessing are Soma carisoprodol and Zoloft sertraline Legend drug manufacturer or means distributor any as 2 Those detectives were able to hear and record Church interaction with the s defendant After Church defendant pulled parked her truck into the front passenger his truck in the gas station next to The defendant then Church then got of the defendant seat truck s plastic baggies at out least out cocaine The defendant baggies Church agreed to pay 600 for the 100 bills and drugs pulled 20 bills and previously agreed that detectives listening to that Church finished the money count the receiver counting money to the defendant defendant the to arrest s Neither the truck when he drugs nor s but left it was would be Church the defendant operadon s cue on pulled the money truck out were Church to the About the time the money the officers tasked with surrounded the defendant arrest began 600 Church and the other detectives involved in this undercover had of in each and told Church it would quarter a the money in denominations of counting couple a one two stated that there 600 for both After from her bra pulled cocaine and the other crack cost of his truck and the containing powder was out the Church asked the defendant if she had minutes of idle conversation stuff his lot parking never the front passenger making handed the of the seat by the officers making removed from the truck the arrest during 2 the arrest Once the defendant arrest s truck containing cocaine 2 removed from her truck and Detective Sergeant Brad Rummel and defendant various was prescription In on plain view medications Church remained undercover on throughout seat the driver s 3 the two and seat the arrest He custody under Fred Ohler searched the they found the front passenger placed was a pill plastic baggies bottle containing The defendant handcuffed and s name taken into was displayed filled by the on bottle pill to pharmacy pursuant a as was the fact that it had prescription a for originally generic a been variation of Zoloft The cocaine and the various plastic baggies containing the pill bottle were sent to the Sheriff s found in pills Crime Lab for Department analysis Sergeant Harry O Neal tested the substances and determined them cocaine substances the defendant was and Zoloft carisoprodol Soma hydrocodone be to sertraline the charged with distributing and possessing MOTION TO SUPPRESS EVIDENCE In her first court erred in denying seized pursuant of assignment to a her motion A and seizures suppress any evidence from unconstitutionally ruling on credibility motion a because the Cir to court of their 11 8 02 use at a obtained had the 841 So 2d 791 trial U S 977 the ruling v limited to s the an the evidence adduced at to 4 s great weight weigh the App 1 st a trial judge La on a 4 21 03 motion abuse of that discretion 2005 hearing determining was on State to v 1179 cert denied 544 In to suppress the that it the witnesses and 884 So 2d 1176 motion ground A trial court 703 A art to move 2001 0908 p 4 La Jones 161 L Ed 2d 728 the defendant on 706 writ denied 2002 2989 La 9 9 04 125 S Ct 1860 on the merits Consequently the ruling of 2003 2592 p 5 bottle arrest the evidence is entitled suppress will not be disturbed absent Long on LSA C Cr P State 835 So 2d 703 pill affected may adversely opportunity to observe testimony her of the protect persons against unreasonable defendant to suppress to contents the United States Constitution and Article 5 of the Louisiana Constitution searches was suppress the to search of her truck incident The Fourth Amendment I the defendant contends that the trial error correct the motion whether we are not We may consider all 1223 Chopin 372 So 2d 1222 Relying Arizona the on n 2 completely was to arrest urges the warrantless seizure of the Prior to Gant the law lawful custodial pill bottle that New York Belton 1981 in Gant that Belton concern the to of evidence preservation understood occupant to even at of arrest allow a recent a It no possibility the warrant The warrantless the ie Gant a as re S Ct Supreme Court vehicle officer searches safety has been could gain 129 S Ct at 1718 of and widely recent a access to the Wanting to defined the lawful parameters of to Iawful arrest exception applicable only reaching distance 5 a 101 460 arrest Fourth Amendment is defendant is unsecured and within Thus she he may the to arrestee that the search incident requirement of the she being generally applied far occupant restrict such searches the Court in Gant holding 454 observed that Belton the time of the search such searches bottle automobile vehicle search incident if there is possibility policeman has made a 453 U S was for beyond the underlying justifications real pill footnotes omitted 2860 2864 69 L Ed 2d 768 expressed inside the truck search the passenger compartment arrest v the unreasonable when an 2009 takedown team area was no was m unlawful because she by a retrieve the of the occupant of arrest of that automobile to provided contemporaneous incident of that incident was Therefore she contends the could have reached inside the vehicle vehicle 173 L Ed 2d 485 129 S Ct 1710 within her immediate control and there not v Court opmlOn Supreme outside of the vehicle and surrounded when the search occurred State case La 1979 defendant argues that the search incident was the trial of the at United States recent U S Gant v given evidence pertinent to when a of the passenger time of the search at the compartment Gant 129 S Ct this law the defendant argues that the search of her truck However the defendant fails still in Gant recognized further justify Id that based emphasized of will arrest 1719 at Here had police evidence to a was pulled could have driver s supply a s the vehicle when it is arrest was case on the offense passenger Id the search of the vehicle for distribution of cocaine the crime which had presence and within the audible presence of of the truck by the seat arresting to sell to Church where Church left it when he officers contained further evidence relevant The officers were just multiple Further the officers reasonably believed that the pill bottle also in plain view seat to on arrest See id within the scope of the automobile at 1721 contains evidence of criminal If there is activity a of the vehicle in which the evidence United States 572 1982 v probable might Ross 456 U S 798 825 to cause warrantless be found exception when believe a to vehicle search of any area is authorized 102 S Ct 2157 2173 72 L Ed 2d stating the automobile exception permits 6 the the offense of arrest they initiated the warrantless entry into the defendant s truck subsequent her to In accordance with Gant the supported the front passenger the and offered displayed to the Court searching the arrested after she context reasonable Specifically basis for on Court might be found in The cocaine that the defendant intended view out to the Supreme vehicle and any containers therein s reasonable belief that other detectives plain crime of Church the undercover officer occurred in Church in to arrestee pertaining was arrest to the factual circumstances of the on the defendant sell cocaine lawful a unique Based unlawful was that the internal citations omitted continue compartment of an to to the believe evidence relevant vehicle that circumstances search incident a acknowledge to at 1723 a search that is no broader and than that which could be authorized pursuant no narrower Therefore the trial warrant court properly The defendant further argues evidence purposeful leaving contemplated as defendant fails truck once to without citation by good allow to reason a authority that the to Church of evidence of the crime inside of a vehicle a warrantless taken into were that resulted in the seizure of the evidence the decision searching defendant custody led not The the search to On the contrary her Church not from his it on arrest s and delivery the seat of the truck after The officers would have been made to arrest was leaving justified in the truck for additional evidence of the crime for which the arrested whether was or not the specific baggies by the defendant had remained in the truck subsequent hold that the trial This suppress was search the subsequent search incident thereto resulted from the defendant to the and that articulate how the fact that Church left the cocaine in the he and the defendant of the cocaine a denied the motion to suppress left inside the truck purposely was to court acted within its discretion in assignment handed to her denying to Church arrest We the motion to of error lacks merit SUFFICIENCY OF THE EVIDENCE In her second assignment sufficiency of the evidence without a valid the fact that the to prescription pills were 3 of the defendant error challenges the support her conviction for possession of Zoloft See LSA R S 40 1238 1 found in a prescription She contends that bottle with her name on indicating that generic Zoloft had been prescribed for her shows that more likely than not In reviewing the sufficiency Louisiana 3 that she did have appellate Defendant cites no court authority a prescription of the evidence is controlled to valid was for Zoloft support a conviction a by the standard enunciated by the support this issue on 7 to it it appeal United States Court in Jackson Supreme 2781 61 L Ed 2d 560 the in Legislature whether 1979 That standard of appellate review light favorable most any rational trier of fact could conclude that the State elements of the crime v Ordodi State v Mussall doubt When reasonable La must App a See State 822 So 2d 141 jury is free testimony about factual La matters its not 1st Cir App of will guilt not reweigh State So 2d 929 932 of fact defense v to sufficiency provides is not subject 97 2261 a case hypothesis v p 6 La a is in conflicting depends matter or upon one a of the Richardson 459 So 2d s appellate to overturn in whole reject or where there is State to pp 144 accept determination of the review factfinder s App 1st Cir An appellate determination 9 25 98 721 involves circumstantial evidence and the trier reasonably rejects the hypothesis of that for reasonable Patorno 2001 2585 The trier of fact the evidence Taylor When The Jackson the resolution of which 1984 weight to be given evidence court 660 objective standard for credibility of the witnesses the of the evidence 38 1988 an v Moreover part the testimony of any witness 31 La 1308 09 821 B art be satisfied that the overall evidence excludes every As the trier of fact weight the essential 946 So 2d 654 both direct and circumstantial 1st Cir 6 2102 determination of the 11 29 06 in Article 821 is of innocence hypothesis proved circumstantial evidence LSA R S 15 438 analyzing that the factfinder La 1305 incorporated the overall evidence testing 10 p is the prosecution to reasonable doubt LSA C Cr P a So 2d 523 standard of review 4 5 beyond 2006 0207 State adopted by Code of Criminal Procedure Article 821 enacting the evidence in the viewing Virginia 443 U S 307 99 S Ct v innocence falls and the defendant is 8 presented by the guilty unless there is another that raises hypothesis So 2d 55 61 La 1st Cir App a reasonable doubt State 510 writ denied 514 So 2d 126 La 1987 Louisiana Revised Statutes 40 1 1238 A states It shall be unlawful for any person to sell A Moten v deliver or legend drug except upon the order or prescription of a physician or licensed health care practitioner as defined in R S 40 961 31 This Section shall not apply to sale delivery or possession by drug wholesalers or drug manufacturers or their agents or employees or to any practitioner acting within possess any the scope of his license or to a common or contract carrier or warehouseman or any employee thereof whose possession of any legend drug is in the usual course of business or employment her possession The defendant does not contest that the State failed to prove that she did However to LSA R S 40 990 A of pursuant State prescription rehearing State Lewis v Ducre v have the indictment prescription as for it bears the burden 839 40 604 So 2d 702 708 09 La La App a valid 1983 on to 1 st Cir 1992 follows It shall not be necessary for the state to exception valid defendant 427 So 2d 835 Louisiana Revised Statutes 40 990 A reads or a Rather she argues possessed otherwise illegal drugs pursuant that she proving not of Zoloft negate any exemption forth in this part in any complaint information other pleading or in any trial hearing or other set or proceeding under this part and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit See also State 452 So 2d 178 absence of State s a Beridon La 1984 prescription 449 So 2d 2 Thus 7 La the State is App 1st Cir writ denied not required to prove the Rather the defendant had the burden charges by asserting an affirmative defense See State 554 So 2d 269 part v on other 270 La grounds App 3d Cir 1989 558 So 2d 595 9 La writ 1990 v to rebut the Rodriguez granted in part denied in burden of showing the controlled was on dangerous substance defendant was affirmative defense as an The evidence revealed that Soma and truck hydrocodone claiming that it was the pill was originally on one found was immediately after she information possessed pursuant bottle on the driver filled with the Although the label s who by generic filled for the defendant with a the four was are generic The police a s label version of Zoloft for or five months arrested for the bottle indicated that it on Zoloft of the defendant seat seat containing Rummel testified that such people 4 but officers could read was worn for bottle removed from that Sergeant carrying container common use arrest s prescription the crime of possession prescription the defendant in October of 2006 which the defendant to valid to to prior bottle is a a prescription drug had been originally version of Zoloft there several were types of drugs in the bottle and the report from the Sheriff s Department Crime Lab indicates that the tablets determined ZOLOFT I00 mg indicating that the pills no other evidence day of arrest was The defendant offered possession on that he took prescription the no action for Zoloft at indicated that she had seized that on A 1324 4 La Although to a the court We 1992 5 a were generic marked variation suggest that the Zoloft in her to 5 Rummel testified determine whether the defendant had the time of her valid arrest prescription is not called upon a valid because the defendant never for any of the are 674 So 2d 1108 The defendant did not to pills that were decide whether the conviction State Smith 600 So 2d 1319 v from constitutionally precluded the bill of information does include the 229 La 223 228 Cir 5 8 96 not possessed lawfully weight of the evidence disregard surplusage Code authorizes the Court to Wagner were be Zoloft day reviewing is contrary to to 85 So 2d 272 274 I 1 12 writ denied language without State Baker 28 152 v 96 I909 La 12 6 96 10 valid LSA C Cr P 1956 testiry a in the bill acting as prescription art 486 p 6 La 684 So 2d 925 a the State v App 2d thirteenth See State cases what assessing in juror weight to Mitchell 99 3342 p 8 v give evidence in criminal La 10 17 00 772 So 2d 78 The fact that the record may contain evidence which conflicts with the 83 trier of fact s verdict does not fact insufficient See State 479 So 2d 592 596 the defendant hypothesis Zoloft s La La 4 29 94 App 727 La 637 So 2d 460 1 st Cir 1985 The the trier of App State v 1st Cir Quinn jury obviously rejected of innocence based upon the contention that the obtained pursuant was accepted by Azema 633 So 2d 723 v writ denied 94 0141 1993 render the evidence to a valid prescription We find such rejection convinced that viewing reasonable After a thorough review of the the evidence in the light every reasonable possession error beyond hypothesis of Zoloft a favorable most of fact could have found record a we are the to prosecution reasonable doubt and any rational trier to the exclusion of of innocence that the defendant The defendant s second legend drug was guilty of assignment of is without merit JURY CHARGE In her third court gave assignment of an erroneous illegal no to possess objection to the court s in part that have was with failed a to valid inform the jury that it was not The record reveals prescription charge contemporaneous objection verdict unless it charge hydrocodone In order to preserve provides misleading jury charge regarding possession and of hydrocodone because the the defendant argues that the trial error a n objected consistently recognized an issue for appeal a party must make a Code of Criminal Procedure Article 841 A irregularity or error cannot to at the time of occurrence this as the 11 be availed of after Louisiana courts contemporaneous objection rule irregularity that so that he may gambling from 1 its dual purposes noting for charge 1169 5 5 06 935 or State objection court may has not problem to 801C art give reasonably lacks merit notice of the to a cure A jury charge State applies the party may or any jury retires alleged this issue for review prevent to p a 8 defendant or La jury a 11 22 06 as 942 error thereof unless within such time Therefore this 591 1st Cir App assign portion on errors claim that La not alleged Potter v as the an the the defendant Accordingly error a resorting to appeal by objection This rule thereto is made before the preserved and 2 Cooper 2005 2070 v on 199 writ denied 2006 1314 So 2d 194 failure 1991 La 6 n So 2d 554 LSA C Cr P giving the favorable verdict and then a improper was cure put the trial judge have been corrected might easily So 2d 1166 to assignment of error 6 CONCLUSION Having found no merit in the defendant convictions habitual offender adjudication and s assignments of sentences are HABITUAL OFFENDER CONVICTIONS error the affirmed ADJUDICATION AND SENTENCES AFFIRMED 6 Moreover as discussed is not valid 1987 v assignment of error possession Rather it the defendant s second element of the offense of the existence of a is an affirmative this affirmative defense the defendant waived it See request charge writ denied 508 St Romain 505 So 2d 223 227 La App 3d Cir 2d So 86 La prescription defense By failing State regarding Having an to failed a to on properly request this affirmative right to this instruction trial the defendant waived his 12 defense jury instruction at the time of
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