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State v. Moultrie

Court of Appeals of Louisiana, First Circuit

December 14, 2017


         On Remand from the Louisiana Supreme Court Appealed from the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana Trial Court No. 586702 The Honorable David W. Arceneaux, Judge Presiding

          Joseph Waitz Jr. District Attorney Marian M. Hamilton Assistant District Attorney Houma, Louisiana Attorneys for Plaintiff/ Appellee, State of Louisiana.

          Margaret S. Sollars Thibodaux, LouisianaAttorney for Defendant/ Appellant, Joseph Michael Moultrie.


          CRAIN, J.

         The defendant, Joseph Michael Moultrie, was convicted of possession with intent to distribute cocaine and, after admitting to his status as a habitual offender, was adjudicated a second-felony habitual offender and sentenced to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. See La. R.S. 40:967(A)(1). On original appeal, this court determined the search of the barbeque grill where the drugs were found violated the defendant's constitutional rights, granted the defendant's motion to suppress, and reversed the defendant's conviction that was dependent upon the drug evidence. The Louisiana Supreme Court reversed, finding the defendant failed to make a threshold showing of any reasonable expectation of privacy in the grill, and remanded the matter to this court for consideration of the defendant's argument that the evidence was insufficient to support his conviction of possession with intent to distribute cocaine. State v. Moultrie, 14-1535 (La.App. 1 Cir. 10/23/15), 182 So.3d 1017, rev'd, 15-2144 (La. 6/29/17), 224 So.3d 349 (per curiam). We affirm the conviction, habitual offender adjudication, and sentence.


         A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging sufficiency of evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258-59; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis for conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; Oliphant, 133 So.3d at 1258.

         The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295 (La. 1/27/16), ___So.3d___, ___ (2016WL314814). Rather, appellate review is limited to determining whether facts established by direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 14-1619 (La.App. 1 Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748. The weight given evidence is not subject to appellate review; therefore, evidence will not be re weighed by an appellate court to overturn a fact finder's determination of guilt. State v. Wilson, 15-1794 (La.App. 1 Cir. 4/26/17), 220 So.3d 35, 40-41.

         It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II, which includes cocaine. See La. R.S. 40:964, Schedule 11A(4); La. R.S. 40:967C. The defendant does not dispute the amount of cocaine seized or that the substance seized was actually cocaine. Instead, he argues the state's evidence is insufficient to prove he put the drugs in the grill. In his brief he contends the jury was asked to make the assumption that because he was the only person outside, he was the only one who could have hidden the drugs. According to the defendant, the "very real possibility of someone else putting the [drugs] there was never eliminated." Although the defendant frames his argument in terms of proof of who put the drugs in the grill, the only relevant inquiry is whether the state proved the defendant possessed the drugs. Accordingly, we consider the sufficiency of the evidence demonstrating the defendant's actual or constructive possession of cocaine.

         The state is not required to show actual possession of the drugs by a defendant to establish the element of possession. Constructive possession is sufficient. It is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910, 913. Nonetheless, a person in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control. See State v. Trahan, 425 So.2d 1222, 1226 (La. 1983). Furthermore, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. State v. Gordon, 93-1922 (La.App. 1 Cir. 11/10/94), 646 So.2d 995, 1002.

         A determination of whether there is possession 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 constructive possession include (1) his knowledge that illegal drugs were in the area, (2) his relationship with the person, if any, found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of recent drug use by the defendant, (5) his physical proximity to the drugs, and (6) any evidence that the particular area was frequented by drug users. See Gordon, 646 So.2d at 1002. Guilty knowledge, an essential component of constructive possession of contraband, may be inferred from the circumstances of the case. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517, 521 (per curiam).

         Agents Dallas Bookenberger and Joseph Renfro of the Terrebonne Parish Sheriffs Office narcotics task force testified at both the motion to suppress hearing and trial that the defendant was the only person on the street when they arrived. Aside from a woman briefly looking out of her trailer door, the defendant was the only person around and the only one seen by the agents. When the defendant saw the agents approach, he moved quickly out of their sight toward the grill, then returned toward the agents at a slower pace. Agent Renfro testified he had seen this behavior many times before, and that it usually meant that the suspect was getting rid of contraband. Further, as the supreme court pointed out in its consideration of the suppression of the evidence issue, one of the agents noticed the grill's lid was slightly askew with dew that had been disturbed on the handle. See Moultrie, 224 So.3d at 351.

         The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one ...

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