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State v. Keene

Court of Appeals of Louisiana, Third Circuit

November 2, 2017

STATE OF LOUISIANA
v.
CHARLES C. KEENE

         APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 15-1225 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

          J. Reed Walters District Attorney Steven P. Kendrick Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Katherine M. Franks Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Charles C. Keene

          Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.

          MARC T. AMY JUDGE

         The State alleged that a confidential informant purchased prescription pain pills from the defendant. The State charged the defendant with distribution of hydrocodone in combination with a non-narcotic ingredient, a violation of La.R.S. 40:968(A)(1) and La.R.S. 40:964(D)(1)(d) (Schedule III), and with conspiracy to distribute hydrocodone in combination with a non-narcotic ingredient, a violation of La.R.S. 14:26, La.R.S. 40:968(A)(1), and La.R.S. 40:964(D)(1)(d) (Schedule III). A jury found the defendant guilty of both charges. The trial court sentenced the defendant to twenty-five years at hard labor for the distribution charge and to thirteen years at hard labor for the conspiracy charge, with the sentences to run concurrently. The defendant appeals. For the following reasons, we affirm the defendant's conviction, vacate the defendant's sentences, and remand for resentencing.

         Factual and Procedural Background

         According to Detective Brant King's testimony in this matter, Ms. Charty Berry began acting as a confidential informant for the Narcotic Division of the LaSalle Parish Sheriff's Office in October 2014 at which time "she wanted help for a driving under suspension. A contempt charge." In describing the arrangement in which Ms. Berry would perform narcotics purchases for the detectives, Detective King explained that it was agreed that "[the detectives] would try to help her and if she made cases[, ]" then they "would pay her one hundred dollars per case." Detective King explained that Ms. Berry occasionally received money for gasoline too.

         Detective King explained that as of January 18, 2015, he "had heard [Charles Keene's] name[, ]" but was not conducting an ongoing investigation into Mr. Keene at that time. However, on that day, Ms. Berry "notified [Detective King] of being able to purchase…prescription pain pills from Mr. Keene." Ms. Berry recalled that she "had talked to [the defendant's] wife earlier that day" about the purchase. Detective King testified that, on the same day, he and Detective Tracy Clark provided Ms. Berry with "a covert audio/video camera along with twenty dollars in official funds for the purchase of the…suspected…prescription pills" by placing the items in Ms. Berry's mailbox at 5:28 p.m. Detective King said that the "covert audio/video camera" was disguised as "a [wrist]watch." Detective King testified that he and Detective Clark then "went to a remote location" so that they "wouldn't be seen…during the transaction."

         Ms. Berry explained that after the detectives left, she retrieved the items from the mailbox, put the watch on her wrist, and walked to the Keenes' residence, recording the events with the wristwatch as she went. Ms. Berry testified that initially Mr. Keene said he did not have any pills to give her, but eventually "he went in the house and he got some and brought the pill bottle back out." Ms. Berry testified that she then walked back home and "put the…camera and the pills in the mailbox." Regarding the pills that she put in the mailbox, Ms. Berry clarified that she "got them from [Mr. Keene]."

         Detective King said that Ms. Berry contacted him again at approximately 6:11 p.m., and the detectives met with Ms. Berry around 6:15 p.m. Detective King testified that upon arriving, the detectives discovered that Ms. Berry had placed "two suspected hydrocodone pills and the covert audio/video camera" in her mailbox for the detectives to retrieve. Detective King explained that Ms. Berry then met the detectives at the mailbox, and they discussed what had occurred. Detective King testified that he then took the camera and suspected hydrocodone pills into custody.

         On August 20, 2015, the State filed a bill of information charging the defendant, Charles C. Keene, with one count "of Distribution of CDS III - Hydrocodone in combination with a Non-Narcotic Ingredient" in violation of La.R.S. 40:964(D)(1)(d) [1] and 40:968(A)(1). The bill of information also charged the defendant with one count of conspiracy "to Distribute CDS III-Hydrocodone in combination with non-narcotic ingredient" in violation of La.R.S. 14:26, 40:964(D)(1)(d), and 40:968(A)(1). The defendant entered a plea of not guilty to both charges. On January 24, 2017, a jury found the defendant guilty as charged. Thereafter, the trial court sentenced the defendant to twenty-five years at hard labor for the distribution charge and thirteen years at hard labor for the conspiracy charge. The trial court ordered that the sentences run concurrently. At the sentencing hearing, the defense attorney orally objected to the sentence as excessive.

         The defendant appeals, asserting as error that:

1. The evidence is insufficient to establish that Charles Keene ...

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