State Of Louisiana VS Michael Ravy
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL v FIRST CIRCUIT 2013 KA 0297 G STATE OF LOUISIANA VERSUS MICHAEL RAVY Judgment Rendered November 1 2013 Appealed from the ventieth 1 Judicial District Court In and for the Parish of West Feliciana State of Louisiana Trial Court Number 11 267 WFLN Honorable William G Carmichael Judge Presiding x Samuel C Stewart B Aquilla D Hughes Counsel for Appellee State of Louisiana St Francisville LA Frank Sloan Mandeville LA Counsel for DefendanUAppellant Michael Ravy And Michael Ravy In Proper Person St Gabriel LA x BEFORE WHIPPLE C WELCH AND CRAIN JJ J i WHIPPLE C J The defendant Michael Ravy was charged by bill of information with distribution ofXanax Alprazolam a violation of LSA 40 He pled not S R 969A guilty and following a jury trial was found guilty as charged He was sentenced to five years at hard labor to be served consecutively to any other sentences he was currently serving or would have to serve He filed a motion for new trial which was denied The defendant now appeals asserting one counseled and two pro se assignments of error For the following reasons we affirm the defendant s conviction and sentence FACTS On July 21 2009 Officer Mary Ratcliff ofthe Baker Police Department was working in an undercover capacity with Sergeant Marty Freeman of the West Feliciana Parish SherifPs Office when a deal was made to purchase Xanax tablets from the defendant Officer Ratcliff rode with a confidential informant to the Weyanoke Post Office in West Feliciana Parish where the two met the defendant The defendant approached the vehicle and handed C Ratcliff who was seated fficer in the passenger side the tablets in exchange for money Sergeant Freeman monitored the transaction from nearby through an audio listening device After being submitted to the Louisiana State Police Crime Laboratory for analysis the tablets were confirmed as Alprazolam In an interview following his arrest the defendant admitted that he sold the Xanax tablets to Officer Ratcliff The defendant was on parole when he committed the instant offense Z PRO SE ASSIGNMENT OF ERROR NUMBER 1 In the defendant sfirst pro se assignment of error he argues that the State failed to prove beyond a reasonable doubt his identity as the perpetrator of the instant offense He maintains that there were no surveillance videos or photographs takexi to prove that he distxibuted Xanax tablets to Officer Ratcliff nor was there a recording of the transaction that Sergeant Freeman heard through his audio listening device The standard of review for the sufficiency of 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 that the State proved the essential elements of the crime and the defendant identity beyond a reasonable s doubt 7ackson v Vir 443 U 307 319 99 S Ct 2781 2789 61 L Ed 2d inia S 560 1979 See also LSA art 821 P Cr C The Jackson standard of review incorparated in Article 821 is an objective standard for testing the overall evidence both direct and aircumstantial for reasonable doubt State v Davis 2000 2685 La App lst Cir 1 U9 818 So 2d 76 79 O1 Where the key issue is the defendant identity as the perpetrator of the s crime rather than whether the crime was committed the State is required to negate any reasonable probability of misidentification State v Johnson 99 La 2114 App lst Cir 12 800 So 2d 886 888 writ denied 2001 La 00 18 0197 O1 7 12 802 So 2d 641 Positive identification by only one witness may be sufficient to support a conviction 5tate v Davis 2001 La App lst Cir 3033 02 21 6 822 So 2d 161 163 Moreover it is the factfinder who weighs the respective credibilities of the wimesses and this court generally will not second guess those determinations State v Hughes 2005 La 11 943 So 0992 06 29 2d 1047 1051 3 The defendant denies that he w the person who sold Xanax to Officer s Ratcliff raising an issue of identity However in an interview with Sergeant Freeman after his arrest the defendant admitted that he was involved in the July 21 2009 transaction He claimec that he got the dnags from someone else and simply delivered them to Officer Ratcliff Viewed in the iight most favorable to the prosecution this statement would clearly demonstrate the defendant guilt s beyond a reasonable dout t In addition to the defendarxt confessior the State introduced testimony s from Officer Ratcliff that she wa positive that the defendant was the man who sold the Xanax to her T State aiso introduced into evidence the Xanax tablets he that Officer Ratcliff purchased along with a scientific analys report stating that s the substance was Alprazolam The defendant did not testify at trial The defendant complaina that no surveillance videos phoYographs or recordings were introduced to prove thax he distributed Xanax tablets to Officer Ratclif While the StaYe is req to prove beyond a reasonable doubt the ired sidentity as th perpetrator the State is not required to do so by video defendant recording or photograph to establish that the defendant was the perpetrator In the absence of internal contradiction or inreconciia confl with physical evidence le ict one witness stestimony if believed by r trier of f is sufficient support for a he ct requisite factual conclusion See Davis 822 So 2d at 163 The defendant admitted that he participated in the transaction and Officer Ratcliff unequivocally identified the defendant as the person from whom she purchased the Xanax tablets Thus where the State presented other evidence to support its case the failure to present video or photographic proof of the transaction did not by itself create reasonable doubt I 4 Based on the physical evidence eyewimess testimony and the defendant s own confession the jury verdict reflected the reasonable conclusion that the s defendant distributed the 3ianax tablets to Officer Ratcliff This court will not reassess the credibility of witnesses or reweigh the evidence to overturn a jury s determination of guilt See S v Iendon 94 La App ls Cir 4 ate 516 95 7 654 So 2d 447 45t The reviewin 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 juror in assessing what thirieenth weight to give evidence in criminal cases that determination resis solely on the sound discretion of the trier of fact Sta v Mitchell 99 La 10 772 e 3342 00 17 So 2d 78 83 After a thorough review f the recard we find that the evidence negates any reasonable probability of misidentification and supports the jury verdict We are s convinced that viewing the evidence ir the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonabie hyp c innocence suggested by the defense at thesis f trial that the defendant was the person who sold the Xanax tablets to Officer Ratcliff on July 21 2009 See State v Callowav 2Q47 L 1 1 So 3d 2306 a 21I09 417 418 per curiam This assignment qf error is without eriY PRO SE ASSIGNMENT OF RROR NUMBER 2 In his second pro se assignment of error the defendant argues that the s State failure to disclose the name of the conf dential informant to him in this case deprived him of his constitutional righi to confront his accusers As a general rule the State is not required to divulge to the accused the name of a confidential informarit However an exception is made when the 5 informant was a participant in an illegal drug transaction State v Buffin 452 ton So 2d 1313 La App lst Cir 1984 The informant in the instant matter made phone contact with the defendant and was also present during the transaction as the driver of the vehicle However contrary to the defendant assertion that the tablets were passed through the s informant Officex Ratcliff testified that the defendant handed the tablets to her and she gave him the money Therefore the informant did not play a crucial role in the actual transaction between Officer Ratcliff and the defendant leading to the s defendant arrest See State v Clark 2005 La App Sth Cir 6 909 61 OS 28 So 2d 1007 1015 denied 2005 La 3925 So 2d 538 See writ 16 2119 06 17 also State v Diliberto 362 So 2d 566 567 La 1978 State v Jackson 94 68 1500 La App 4th Cir 4654 So 2d 819 823 writ denied 95 La 26195 1281 95 13 10 661 So 2d 495 Accordingly because the informant contact with the s defendant did not constitute a drug transaction the participant exception is inapplicable and the State was not required to divulge the name of the informant This assignment of error is without merit COUNSELED ASSIGNMENT OF ERROR In his sole counseled assignm of error the defendant claims that his nt counsel was ineffective in failing to object t the prosecutor comments during s opening and closing statements A claim of ineffective assistance of counsel s more properly raised by an application for postconviction relief in the district court where a full evidentiary hearing may ba conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial 6 economy State v Carter 96 La App lst Cir 11 684 So 2d 432 0337 96 8 43 8 A defendant is entitled to effective assistance of counsel under the Sixth Amendment to Constitution employed the United States Constitution and Article I 13 of the Louisiana In assessing a claim of ineffectiveness a two test is pronged The defendant must show that 1 his attorney performance was s deficient and 2 the deficient performance prejudiced him The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable Strickland v Washin 466 U 668 687 104 S Ct ton S 2052 2064 80 L Ed 2d 674 1984 In order to show prejudice the defendant must demonstrate that but for counsel un conduct the result of the s professional proceeding would have been different Strickland 466 U at 694 104 S Ct at S 2068 State v Felder 2000 La App lst Cir 9809 So 2d 360 370 2887 O1 28 writ denied 2001 La 10 827 So 2d 1173 Further it is unnecessary 3027 02 25 to address the issues of both counsel performance and prejudice to the defendant s if the defendant makes an inadequate showing on one ofthe components State v ny Seri 610 So 2d 857 860 La App lst Cir 1992 writ denied 614 So 2d 1263 La 1993 In her opening statement the prosecutor stated that drugs are very devastating to a community and that s suffers when a drug crime has ociety been committed She argued about the consequences of drug use and stated that here t is no real end to the destruction that illegal drugs brings sic about She went on to say that the destruction starts with the sale of one litkle pill In this case ten pills of Xanax The defendanY contends that the prosecutor used her opening statement to turn the trial into a plebiscite on the devastation that illegal drug usage causes to the people of the community 7 The prosecutor argued in her closing staiement that Xanaac is highly sought after by addicts and that people like concluded by arguing that it was time the defendant enable to put a stop to the addicts start She Stop the destruction the devastation and the far c That man right reachang nsequences there guilty of distribution of Sehedule IV Xanax Based on these statements the defendant claims that the prosecutor went outside the record to excite passion and prejudice in the minds ofthe jurors Louisiana Code of Criminal Procedure article 766 confines the scope of the opening statement by the State to the explanation of the nature of the charge and evidence by which the State expects to prove the charge Louisiana Code of Criminal Procedure article 774 confines the scope of the closing argument to evidence admitted to the lack of evidence to conclusions of fact that the state or defendant may draw therefrom and to the law applicable to the case It is improper for a prosecutor to turn closing argument into a plebiscite on crime by making overt references to coznmunity sentiment See State v Jol 2000 nson 0680 La App lst Cir 12 775 So 2d 670 680 writ denied 2002 00 22 1368 La 5 845 So 2d 1066 However an appellate court will not reverse a 03 30 conviction if not thoroughly convinced that the argument influenced the jury and contributed to the verdict State v Patton 2010 La App lst Cir 6 1841 11 10 68 So 3d 1209 1221 22 We have reviewed the record and are not thoroughly convinced that the s prosecutor arguments influenced the jury and contributed to the verdict The defendant was convicted based on physical and testimonial evidence and his admission that he sold the Xanax tablets to Officer Ratclif Even assuming that the remarks were objectionable and thus that defense counsel should have objected to the remarks the defendant was not prejudiced by the alleged deficient 8 performance See State v Robinson 471 So d 1035 1038 La App lst Cir 39 writ denied 476 So 2d 350 La a The defendant has failed to make the 985 required show9ng of sufficient prejudice and as such his claim of ineffective assistance fcounsel is without merit Accordingly the defendant nvi and sentence are affinmed sc ctior CONVICTION AND SENTENCE AFFIRMED i 9
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