State Of Louisiana VS Floyd T. Easlon, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 0020 STATE OF LOUISIANA VERSUS FLOYD T EASLON III Judgment Rendered SEP 2 4 2012 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 498382 The Honorable Allison H Penzato Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Prentice L White Baton Rouge Louisiana Counsel for DefendantAppellant Floyd T Easlon III BEFORE CARTER C GUIDRY AND GAIDRY JJ J GAIDRY J The defendant Floyd T Easlon 111 was charged by bill of information with one count of distribution of a Schedule IV controlled dangerous substance to wit alprazolam a violation of La S R 1 A 969 40 The defendant pled not guilty and following a jury trial was found guilty as charged After denying the defendant motions for a new s trial and for post verdict judgment of acquittal the trial court sentenced the defendant to seven 7 years at hard labor The defendant moved for reconsideration of sentence which was denied The defendant now appeals arguing two assignments of error We affirm the conviction and sentence FACTS Sergeant Brandy Toups a communications supervisor in the 911 division of the St Tammany Parish Sheriff sOffice STPSO was working as an undercover narcotics agent on April 22 2010 At trial Sgt Toups testified that on that day the narcotics office set up an operation for her to work in an undercover capacity to purchase prescription medication from a subject named Tommy Her supervisor was Detective Bill Johnson the STPSO narcotics detective who was the case officer on the matter Det Johnson testified at trial that he had received information from a confidential informant that a person named Tommy was selling prescription medication in the Slidell area The confidential informant said he could introduce an undercover officer to Tommy to attempt to purchase narcotics from him Det Johnson arranged for Sgt Toups to call Tommy while he monitored the call which was recorded In that phone call Sgt Toups and Tommy arranged to meet later that day at the Grand Theater in Slidell for her to purchase eight Xanax tablets alprazolam No price was discussed over the phone and Sgt Toups admitted that 2 the word Xanax was never mentioned though she explained that the term bars was used instead to refer to the Xanax tablets After the phone call Det Johnson equipped Sgt Toups with a KEL monitoring device which would record her conversation with Tommy and thereby allow other police officers to monitor the transaction for her safety as well as record it for evidentiary purposes When Sgt Toups drove to meet Tommy at the Grand Theater four other officers went to that location as well including Det Johnson Det Johnson parked in the theater parking lot about twenty yards away from Sgt Toups vehicle in order to observe s the transaction from afar Sgt Toups testified that when she arrived at the theater Tommy walked over to her vehicle and as it was daytime she was able to get a good look at him Tommy had the Xanax tablets for Sgt Toups and she asked him how much he wanted for them Tommy told her forty dollars which Sgt Toups paid to him with money provided by Det Johnson Sgt Toups and Tommy talked about purchasing drugs again at a later date and then she left At the trial Sgt Toups identified Tommy as the defendant From his vantage point in the parking lot Det Johnson was the closest officer to Sgt Toups vehicle Det Johnson testified that he saw s someone approach Sgt Toups vehicle and go to the driver s sside window and that he could somewhat identify the person as a white male with a medium complexion with dark colored hair and facial hair Det Johnson did not see the actual handtohand transaction Det Johnson also testified that although the STPSO has cameras he did not even attempt to photograph the man as he stood by Sgt Toups vehicle s Once the transaction was complete Det Johnson observed the man walk to and briefly enter a marooncolored truck before returning into the theater ki Det Johnson recorded the truck license plate number which came back as registered to s a Floyd Easlon who the detective identified in court as the defendant Once Sgt Toups had the tablets she put them in the center console of her vehicle and did not count them immediately Upon meeting with Det Johnson at a prearranged location after the transaction it was discovered that Sgt Toups received seven tablets instead of eight though Det Johnson explained that it is not unusual to be shorted in a drug transaction Sgt Toups turned the seven tablets over to Det Johnson who packaged and submitted them to the STPSO Crime Laboratory which confirmed that the tablets were alprazolam Det Johnson also showed Sgt Toups an affidavit of identification that he had created which had only one person sphoto on it the defendant s The affidavit was prepared in order for Sgt Toups to identify the person who sold her illegal drugs Sgt Toups was not shown any other photographs Det Johnson recalled that he showed the affidavit to Sgt Toups probably within two hours of the transaction and Sgt Toups thought that it was within one hour Sgt Toups identified the person in the photograph as the person who had just sold her Xanax and testified at trial that she had no doubt in her mind that it was the same person She said that in the past she had been shown affidavits of information where the person pictured was not the person she had dealt with but that in this case she was absolutely sure that it was the same person Det Johnson also testified that Sgt Toups did not display any hesitancy in confirming that the man in the photograph was the same man who sold her Xanax at the theater that Det Johnson did not tell her who the man was and that she would not have been punished if she had not identified the man as the defendant rd ASSIGNMENT OF ERROR NUMBER ONE In his first assignment of error the defendant argues that the State failed to prove beyond a reasonable doubt his identity as the perpetrator of the instant offense The defendant maintains that generally in a drug transaction orchestrated by law enforcement not only does the undercover agent wear a KEL device but several officers monitor the agent with recording devices in order to capture the event by visual and auditory means The defendant argues that in this case while such officers were on hand to protect their colleague and help identify the person selling the drugs no pictures or video were taken In addition instead of allowing Sgt Toups to identify the seller on her own Det Johnson told her the person identity s The defendant contends that from that point forward Sgt Toups committed herself to identifying the defendant as the person who sold alprazolam to her and that she was especially motivated to do so in order to be respected by her colleagues in the narcotics department The standard of review for the sufficiency of evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant sidentity beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S S Ct 27811 2789 61 L 560 1979 See also La Code Crim P art 821 2d Ed State v Lofton 96 1429 La App 1st Cir 3 691 So 1365 1368 97 27 2d writ denied 97 1124 La 10 701 So 1331 The Jackson standard 97 17 2d of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt State v Davis 2000 2685 La App 1 st Cir 11 818 So 76 79 01 9 2d 5 Where the key issue is the defendant identity as the perpetrator of s the crime rather than whether or not the crime was committed the State is required to negate any reasonable probability of misidentification State v Johnson 99 2114 La App 1st Cir 12 800 So 886 888 writ 00 18 2d denied 2001 0197 La 12 802 So 641 Positive identification by 01 7 2d only one witness may be sufficient to support a conviction State v Davis 2001 3033 La App lst Cir 6 822 So 161 163 Moreover it is 02 21 2d the factfinder who weighs the respective credibilities of the witnesses and this Court generally will not secondguess those determinations State v Hughes 2005 0992 La 11 943 So 1047 1051 06 29 2d The defendant does not contest that the offense was committed Rather he denies that he was the person who sold alprazolam to Sgt Toups raising an issue of identity The State case largely came down to the s testimony of a single witness Sgt Toups who identified the defendant as the man she purchased seven Xanax tablets from on April 22 2010 Sgt Toups stated that there was no doubt in her mind regarding identification both immediately after the transaction and at the trial this The transaction occurred in the daylight and the man who sold the Xanax tablets to her was standing at the driver sside window of her vehicle where she was able to get a good look at him Det Johnson also testified that while he did not observe the handto hand transaction he did observe the man from afar and that he later tracked the licenseplate number of the truck that the man got into as belonging to the defendant In addition to this testimony the State introduced into evidence the seven Xanax tablets Sgt Toups purchased along with the STPSO Crime Laboratory Scientific Analysis Report stating that the substance was alprazolam The State introduced and played aloud the audio recording of T the telephone call between Sgt Toups and a man identified as Tommy setting up the drug transaction as well as the audio recording of the transaction itself captured by the KEL device The defendant did not testify at trial or introduce any other evidence At trial and on appeal the defendant attacks Sgt Toups credibility s alleging that she had been persuaded to tailor her testimony to what her supervisor Det Johnson told her Specifically on appeal the defendant contends that Sgt Toups obviously wanted to advance her career otherwise she would have remained in the communications department of the sheriff s office The defendant did not raise this specific point in the trial court though presumably a juror could have contemplated this potential motive In response to insinuations about her credibility raised by defense counsel Sgt Toups testified that she had been shown affidavits of information on past occasions where the person in the photograph was not the same person she purchased drugs from but that on the occasion involving the defendant she was absolutely sure that the person in the photograph was the same person who sold drugs to her In addition Sgt Toups testified that if she had had doubts about whether the person in the photograph was the same person who sold her drugs she would not have identified him as such Further Sgt Toups testified that she did not get paid by the number of arrests that were made Det Johnson also testified that Sgt Toups would not have been punished if she had not identified the defendant as the person in the photograph on the affidavit Besides attacking the credibility of the State main witness the s defendant argues that the lack of photo or video evidence of the transaction raises reasonable doubt In support of his position the defendant relies upon State v Slocum 2001 La App 5th Cir 6 791 So 143 0207 01 27 2d 7 which involved facts similar to the instant case but in that matter the police used video recording of the drug transaction to help prove the identity of the defendant and instead of a single photograph shown to the undercover officer a sixphoto lineup was used However while additional evidence could be helpful to the jury we note that the State is not required to prove by video recording or photograph that the defendant was the perpetrator but is only required to prove beyond a reasonable doubt the defendant identity as s the perpetrator In the absence of internal contradiction or irreconcilable conflict with physical evidence one witness testimony if believed by the s trier of fact is sufficient support for a requisite factual conclusion Davis 818 So at 80 2d See At trial Sgt Toups unequivocally identified the defendant as the person from whom she purchased alprazolam Where the State presented other evidence to support its case the lack of video or photographic proof did not by itself create reasonable doubt but was simply another factor for the jury to weigh in its deliberation The defendant also argues that the identification procedure was overly suggestive because Det Johnson showed Sgt Toups only one picture the s defendant essentially instructing her as to the seller identity s At the outset we note that the defendant never filed a motion to suppress the identification and is not arguing on appeal that the identification should not have been admitted into evidence He only appears to argue that the suggestive nature of the identification procedure created reasonable doubt regarding his identity as the perpetrator and that the jury should have recognized this The record shows that the defendant argued this suggestive identification issue before the jury During cross examination of Sgt Toups defense counsel pointed out that she only viewed one picture and in his closing arguments he specifically argued that the identification procedure 8 should raise reasonable doubt Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature Manson v Brathwaite 432 U 98 116 97 S S Ct 2243 2254 53 L 140 1977 In this case the jury was informed of 2d Ed the method of identification to which they could attach whatever weight they deemed appropriate Since the defendant counsel urged the defense of s misidentification to the jury the question of reliability was fully considered See State v Chevalier 616 So 834 La App 3rd Cir 1993 2d Because a determination of the weight of the evidence is a question of fact this court has no appellate jurisdiction to review it in appeals of criminal cases State v Gordon 2001 La App 1st Cir 2 0236 02 5 1 809 So 549 552 writ denied 2004 2438 La 6 904 So 733 2d 05 24 2d On appeal this Court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury determination of guilt s See State v Hendon 940516 La App 1st Cir 4 654 So 447 450 95 7 2d The reviewing court cannot substitute its idea of what the verdict should be for that of the jury Further the appellate court is constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases that determination rests solely on the sound discretion of the trier of fact State v Mitchell 99 3342 La 10 772 So 78 83 00 17 2d In finding the defendant guilty the jury had before it evidence that Sgt Toups was working as a communications supervisor but had been recruited to work undercover on narcotics investigations The jury was also told that Sgt Toups was not paid by the number of arrests she made nor would she be punished for not identifying the defendant as the man who sold her drugs They could draw whatever credibility conclusions they wanted from this information including that Sgt Toups was so motivated to please 6 her supervisors that she might intentionally misidentify the defendant The jury was also aware that no photographs or video recording of the transaction were taken but they were able to weigh the absence of photographic proof against the eyewitness testimony given by Sgt Toups In addition the jury was informed of the method in which the defendant s photograph was presented to Sgt Toups and they could decide whether or not her identification was independent or overly influenced As the trier of fact the jury was free to accept or reject in whole or in part the testimony of any witness The guilty verdict returned by the jury indicates that it s accepted the State evidence and rejected the defendant theory of s misidentification See State v Andrews 94 0842 La App 1st Cir 5 95 655 So 448 453 2d We cannot say that the jury determination was s irrational under the facts and circumstances presented to them See State v Ordodi 20060207 La 11 946 So 654 662 An appellate court 06 29 2d errs by substituting its appreciation of the evidence and credibility of witnesses for that of the jury and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury See State v Calloway 20072306 La 1 1 09 21 3d So 417 418 per curiam After a careful review of the record we are convinced that a rational trier of fact viewing the evidence in the light most favorable to the prosecution could have concluded that the State proved beyond a reasonable doubt that the defendant was the person who sold alprazolam to Sgt Toups on April 22 2010 Accordingly the evidence being sufficient to support the s jury verdict the trial court correctly denied the defendant motion for s post verdict judgment of acquittal This assignment of error is without merit 10 ASSIGNMENT OF ERROR NUMBER TWO In assignment of error number two the defendant contends that the trial court erred in imposing a constitutionally excessive sentence given that the he was a first felony offender and had no history of committing illegal drug offenses Specifically he argues that his sentence was extremely harsh in comparison to his criminal record and the other mitigating factors that the district court could have considered As an initial matter we note that the defendant did not make an oral motion to reconsider sentence and the subsequent written motion alleged only that the sentence was constitutionally excessive that the interests of justice require a less severe sentence and all reasons orally argued before the court at the time of sentencing and the ruling in State v Dorthey 623 2d So 1276 La 1993 Under La Code Crim P art 881 a defendant E 1 must file a motion to reconsider sentence setting forth the specific ground upon which the motion is based in order to raise an objection to the sentence on appeal If the defendant does not allege any specific ground for his claim of excessiveness or present any argument or evidence not previously considered by the court at original sentencing he is relegated on appeal to a review of his bare claim of excessiveness State v Mims 619 So 1059 2d 060 1 La 1993 per curiam In the instant case besides the written motion the defendant only made a statement to the court prior to the imposition of the sentence urging leniency Accordingly since the s defendant motion to reconsider sentence does not allege any specific ground for his claim of excessiveness our review is limited on appeal to a bare claim of constitutional excessiveness Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against s excessive punishment and is subject to appellate review State v Sepulvado 367 So 762 767 La 1979 2d Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in the light of the harm to society it is so disproportionate as to shock one sense of justice s A trial judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion State v Hurst 992868 La App 1st Cir 10 797 So 00 3 2d 75 83 writ denied 20003053 La 1015101 798 So 962 2d Louisiana Code of Criminal Procedure article 894 sets forth items 1 which must be considered by the trial court before imposing sentence While the trial court need not recite the entire checklist of Article 894 the 1 record must reflect that it adequately considered the guidelines Williams 521 So 629 633 La App 1st Cir 1988 2d State v In light of the criteria expressed by Article 894 a review for individual excessiveness 1 must consider the circumstances of the crime and the trial court stated s reasons and factual basis for its sentencing decision State v Watkins 532 2d So 1182 1186 La 1988 However the goal of Article 894 is the 1 articulation of the factual basis for a sentence not rigid or mechanical 2d compliance with its provisions See State v Lanclos 419 So 475 478 La 1 Even when a trial court assigns no reasons the sentence will be 982 set aside on appeal and remanded for resentencing only ifthe record is either inadequate or clearly indicates that the sentence is excessive See La Code 12 Crim P art 881 State v Harris 601 So 775 779 La App l st D 4 2d Cir 1992 For the crime of distribution of alprazolam the defendant was exposed to a term of imprisonment at hard labor for not more than ten years and may have in addition been sentenced to pay a fine of not more than fifteen thousand dollars s La R 40 Thus the trial court S 969 2 B sentence of seven years imprisonment at hard labor with no fine falls within the statutory guidelines At the sentencing hearing the trial court considered the factors of Article 894 and found that there was an undue risk that during any period 1 of a suspended sentence or probation the defendant would commit another crime and that the defendant was in need of correctional treatment most effectively provided by his commitment to an institution The trial court recalled that the defendant sold illegal drugs to an undercover officer The defendant was invited to make a statement before sentence was passed at which point he said that he had no criminal record and that the events that led up to my crime had a lot to do with my brain aneurism and my brain surgery The defendant said he was thirtyone years old had five daughters and that his family was seriously hurting without me and I just ask for leniency In addition the defendant apologized for failing to appear at an earlier hearing explaining that he had twins who had been born three months premature and were on life support A presentence investigation report was not ordered However we note that the defendant waived sentencing delays and allowed the trial court to impose punishment immediately after denial of the motions for new trial and post verdict judgment of acquittal 13 After the defendant made his statement the trial judge said she took what he said into consideration but that I still cannot ignore the fact that you sold prescription drugs in this parish and that that a problem s s It a problem for you and it a problem for our community that the bigger s s problem considered She continued ve I already indicated the factors that I have 1 consider this to be a very serious crime prescription medication and the abuse of prescription medication is a very serious problem throughout this country and it is events like this that promote and aid that problem The trial court then imposed a sentence of seven years at hard labor with credit for time served observing that a lesser sentence would deprecate the seriousness of the offense Given the trial court wide discretion in the imposition of sentences s and the fact that the defendant ssentence is well within the statutory limits we cannot say that the trial court abused its discretion in sentencing him to seven years at hard labor We find that the trial court reasons for the s sentence adequately demonstrate compliance with Article 894 1 We note that there was evidence in the record that the defendant was willing and prepared to sell more illegal prescription medication to the undercover officer We also note that the trial judge explicitly stated that she considered the statement by the defendant which raised several mitigating factors Based on the facts adduced at trial and at the sentencing hearing we find that the trial court did not abuse its discretion in sentencing the defendant to seven years at hard labor This assignment of error is without merit For the foregoing reasons the defendant conviction and sentence are s affirmed CONVICTION AND SENTENCE AFFIRMED 14
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