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State v. Cobb

Court of Appeal of Louisiana, Second Circuit

January 14, 2015

STATE OF LOUISIANA, Appellee
v.
CHARLEY N. COBB, Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 314,939. Honorable Craig O. Marcotte, Judge.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

CAREY J. ELLIS, III, Louisiana Appellate Project, Counsel for Appellant.

CHARLES R. SCOTT II, District Attorney; CLOYCE CLARK III, TOMMY J. JOHNSON, JANET L. SILVIE, Assistant District Attorneys, Counsel for Attorney Appellee.

Before CARAWAY, MOORE and GARRETT, JJ. MOORE, J., concurs in part and dissents in part.

OPINION

Page 909

[49,410-KA La.App. 2 Cir. 1] CARAWAY, J.

Charley Cobb was charged with possession of Xanax (Alprazolam) in violation of La. R.S. 40:969(C). Following a jury trial, Cobb was found guilty as charged. She was sentenced to five years at hard labor, concurrent with any other sentence, a $500 fine, court costs and substance abuse treatment. In default of payment, Cobb was ordered to serve 60 days in jail. Cobb now appeals the conviction and sentence. We affirm the conviction and

Page 910

amend the sentence to delete the default jail time.

Facts

On April 1, 2013, officers of the Shreveport Police Department attempted execution of an arrest warrant for Joseph Cobb at his home in Shreveport Louisiana. Charley Cobb, Joseph Cobb's sister, and her boyfriend, Michael Moore, were present in the home and allowed the officers to enter and unsuccessfully search the residence for Joseph Cobb. When asked, Cobb also gave the officers consent to search the residence and her purse. In Cobb's purse, officers found two, orange oval-shaped pills marked G-3720.[1] Using a pill identifier application on a cell phone, the officers determined that the pills were Alprazolam or Xanax. Although Cobb told the officers she had a prescription for the pills, she failed to produce one. Cobb was charged with possession of a Schedule IV controlled dangerous substance in violation of La. R.S. 40:969.

[49,410-KA La.App. 2 Cir. 2] A jury trial commenced on September 24, 2013, and Cobb was found guilty as charged. She filed motions for post-verdict judgment of acquittal and new trial which were denied. Cobb appeared for sentencing on October 31, 2013, when the presentence investigation report (" PSI" ) was not yet complete. Noting its intent to get Cobb on " DOC time" to begin drug rehabilitation, the trial court sentenced her to five years' imprisonment at hard labor, with credit for time served, concurrent with any other sentence. Additionally, the trial court ordered her to pay a $500 fine and court costs or serve an additional 60 days in jail. Finally, the trial court ordered that she participate in a drug treatment and rehabilitation program. Cobb did not file a motion to reconsider sentence.[2] On December 19, 2013, the trial court granted Cobb's motion for appeal as an indigent.

On appeal, Cobb raises two assignments of error. She contends that the evidence was insufficient to convict her because the State failed to prove that she possessed the drug illegally. She also argues that the imposed maximum sentence is unduly harsh and excessive.

Sufficiency of the Evidence

A claim of insufficient evidence is determined by whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review, the appellate court considers whether, after viewing the evidence in the light most favorable to the prosecution, any [49,410-KA La.App. 2 Cir. 3] rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson, supra; State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley, 48,149 (La.App. 2d Cir. 6/26/13), 117 So.3d 585, writ denied, 13-1798 (La. 2/14/14), 132 So.3d 410. The appellate court does ...


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