State Of Louisiana VS Kendall D. Cloud
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA G COURT OF APPEAL FIRST CIRCUdT NUMBER 2012 KA 0647 i J STATE OF LOUISIANA VERSUS KENDALL D CLOUD Judgment Rendered NOV 1 4 ZQ p Appealed from the 22 Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 507 823 Honorable Raymond S Childress Judge Walter P Reed District Attorney Covington LA Attorneys for Appellee Plaintiff State of Louisiana and Kathryn W Landry Special Appeals Counsel Baton Rouge LA Bertha M Hillman Attorney far Appellant Louisiana Defendant Appellate Project Kendall D Cloud Thibodaux LA BEFORE PARRO HiJGHES AND WELCH JJ I WELCH J The defendant Kendall D Cloud was charged by bill of information with one count of felon in possession of a firearm count I a violation of La R S A 1 95 14 and one count of possession of cocaine count II a violation of La R S Cand pled not guilty on each count Fellowing a jury trial on count I he 967 40 was found not guilty and on count II he was found guilty as charged Thereafter the State filed a multiple offender bill of information against the defendant alleging on count II that he was a second habitual offender The defendant agreed felony with the allegations of the multiple offender bill and was adjudged a second felony habitual offender on count IL On count II he was sentenced to eight years at hard labor He now appeals challenging the sufficiency of the evidence on count II For the following reasons we affirm the conviction habitual offender adjudication and sentence on count II FACTS On May 13 2011 the defendant was on parole He was living in his s grandmother trailer on Sylve Road in Slidell On that date Department of Public Safety and Corrections Probation and Parole Officer Letitia Moore conducted a residence check during which she discovered a gun outside the trailer and cocaine in the defendant grandmother car s s SUFFICIENCY OF THE EVIDENCE In his sole assignment of error the defendant argues the testimony of Probation and Parole Officer Letitia Moore was insufficient to support the conviction on count II without corroborating evidence The bill of information charged that the defendant had previously been convicted of possession of 28 grams of cocaine 200 Z The habitual offender predicate offense was set forth as the defendanYs March 26 2002 guilty plea under Twenty Judicial District Court Docket 341035 to distribution of second cocaine 2 The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant identity as the perpetrator of that crime beyond a s reasonable doubt In conducting this review we also must be expressly mindful of scircumstantial evidence test which states in part assuming every fact to Louisiana be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 98 La App 1 Cir 0601 99 19 2 730 So 485 486 writs denied 99 La 10 748 Sa2d 2d 0802 99 29 1157 2000 La 11 773 So 732 quoting La R 15 0895 00 17 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct evidence is thus viewed the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 730 So at 487 2d As applicable here it is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II La R S C 967 40 Cocaine is a controlled dangerous substance as classified in Schedule II See La R 40 Schedule II A S 964 4 The State is not required to show actual possession of drugs by a defendant in order to convict Constructive possession is sufficient A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control regardless of whether or not it is in his physical possession Also a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug However the mere presence in the 3 area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located is insufficient to support a finding of constructive possession State v Smith 2003 La App 1 Cir 12 868 0917 03 31 2d So 794 799 A determination of whether or not there is possessiod sufficient to convict depends on the peculiar facts of each case Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute possession include his knowledge that drugs were in the area his relationship with the person found to be in actual possession his access to the area where the drugs were found evidence of recent drug use and his physical proximity to the drugs Smith 868 So at 799 2d Once the crime itself has been established a confession alone may be used to identify the accused as the perpetrator State v Carter 521 So 553 555 2d La App l Cir 1988 Officer Moore testified her position gave her the authority to search the home the person or the property of those persons she was supervising On May 13 2011 she was supervising the defendant a parolee Officer Moore received information the defendant was doing things that he should not have been doing while on parole Accordingly Officer Moore decided to conduct a residence check of the defendant residence Officer Moore requested assistance from the s St Tammany Parish Sheriff Department and went to the defendant residence s s As Officer Moore and the deputies approached the defendant sresidence she saw Mario Cloud the defendant suncle sitting at a table cleaning a gun Mario Cloud stated he was cleaning the gun for the defendant who was in the house Officer Moore went to the defendant residence handcuffed him searched the residence s and brought the defendant outside A dog trained to detect the odor of narcotics alerted to the area around the driver door of defendant grandmother side s ss 4 i f I there is vehicle Officer Moore told the defendant any in there tell me now I I so the dog doesn tdamage your grandmother car According to Officer Moore s the defendant replied I in the s t 231 grams of cocaine from s of the defendant a recovered I the inside of the driver door side s I Thereafter Officer door on compartxnent s grandmother vehicle Moore Officer Moore indicated she then questioned the defendant about the drugs and the gun and he stated Y eah re they mine After a thorough review of the record we are convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of possession The verdict rendered in this case indicates the jury rejected the of cocaine s defendant theory that the cocaine found in the defendant grandmother vehicle s s belonged to someone other than the defendant When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 2d So 55 61 La App l Cir writ denied 514 So 126 La 1987 No such 2d hypothesis exists in the instant case Further the verdict returned by the jury indicates it accepted the testimony of Officer Moare and rejected the defendant s attempts to disaredit that testimony This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder determination of guilt s The trier of fact may accept or reject in whole or in part the testimony of any witness State v Lofton 96 La App l Cir 3691 So 1365 1368 1429 97 27 2d writ denied 97 La 10 701 So 1331 Additionally in reviewing the ll24 97 17 2d evidence we cannot say that the jury determination was irrational under the facts s and circumstances 06 29 11 946 presented to them 2d So 654 662 See State v Ordodi 2006 La 0207 An appellate court errs by substituting its 5 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 jury State v Calloway 2306 2007 La 1 1 So3d 417 418 per curiam 09 21 This assignment of error is without merit For the foregoing reasons the defendant conviction habitual offender s adjudication and sentence on count II are affirmed CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT II AFFIRMED 6
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