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
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.
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
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.
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.
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.
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.
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
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).
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.
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 ...