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State v. Simon

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

STATE OF LOUISIANA Appellee
v.
NAVARIUS SIMON Appellant

         Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 16-CR-27774 Honorable Charles Blaylock Adams, Judge

          MICHAEL JOHN VERGIS Counsel for Appellant

          GARY V. EVANS Counsel for Appellee District Attorney

          KENNETH PATRICK HAINES CLOYCE CLARK, III Assistant District Attorneys

          Before COX, BLEICH (Ad Hoc), and GASKINS (Pro Tempore), JJ.

          GASKINS (PRO TEMPORE), J.

         Following a jury trial, the defendant, Navarius Simon, was found guilty as charged of possession of marijuana with intent to distribute. Simon was sentenced to imprisonment at hard labor for 20 years, to run consecutively with his prior sentences for two drug offenses. Simon appeals his conviction and sentence. We affirm both.

         FACTS

         On June 8, 2016, Donna Richardson, Simon's parole officer, paid a visit to Simon's home, located at 400 Topeka Street in Mansfield, Louisiana. Richardson testified that when she pulled up to the home, Simon, who was outside washing his carport, noticed her and began walking into the house. Richardson asked him to stop, but when he continued, she followed him into the home. They immediately stopped in the kitchen area, where she noticed what appeared to be a small amount of loose marijuana on the kitchen table, along with some sandwich bags. After she asked Simon what the substance was, he admitted that it was indeed marijuana. Later, when she asked Simon why he had not stopped, he answered that he knew the marijuana was on the table.

         Richardson placed Simon under arrest and called for backup to search the house because Sharice Powell, Simon's girlfriend; Terrance Lane, his cousin; and Khadijah Cotton, Lane's girlfriend, were also present. Law enforcement officers, including Sgt. Justin Taylor and Lt. Chato Atkins, both with the Desoto Parish Sheriff's Office, responded. Taylor was a narcotics investigator, and Atkins was a supervisor of the narcotics agents.

         Richardson searched Simon's bedroom, where she found loose money on a dresser. Under his bed, the officers found two boxes full of money in sandwich bags. The money, which totaled approximately $7, 000, was mostly in small bills, separated by denomination into bags.

         Next to Simon's bedroom was his cousin's bedroom. A red first aid bag containing marijuana was found inside a dresser drawer in this bedroom. On the bedroom floor was a Crown Royal bag, also containing marijuana. Some of the marijuana had been packaged into little plastic bags.

         During the search of the home, the officer also discovered 1.2 pounds of marijuana in a shopping bag atop clothes in a laundry basket in front of a washer or dryer that was located in the combined laundry/kitchen area of the house.

         Powell, Lane, and Cotton were arrested with Simon. All four were charged with possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1).

         Officer Richardson, Lt. Atkins, and Sgt. Taylor testified at trial about what took place at Simon's home on the date of his arrest. The officers also identified exhibits containing the marijuana found on the kitchen table, the first aid bag, the Crown Royal bag, the plastic bags that contained the cash found under Simon's bed, the 1.2 pounds of marijuana found in the laundry basket, and the sample of marijuana sent to the lab for testing.

         Officer Atkins testified that Simon reported he was not employed. The marijuana and the large amount of cash found in the house led Atkins to believe that Simon was selling marijuana.

         Alanna Brauer, a forensic chemist with the North Louisiana Crime Lab, was accepted as an expert in forensic chemistry. She testified that the samples from the drugs recovered from Simon's house tested positive for marijuana.

         Carl Townley was tendered and accepted as an expert in narcotics investigation, packaging, use and sales, and simple possession versus possession with intent to distribute. Townley retired from the Caddo Parish Sheriff's Office after 32 years, with 27 years served in the narcotics division and in the street level interdiction unit. Townley testified that certain elements serve as indicators of whether someone is a drug user or a drug seller, including the drug packaging, the amount of drugs, the amount and denomination of currency found, and the presence or absence of personal smoking paraphernalia.

         Having reviewed the police reports, Townley noted that officers searching Simon's home found a total of 694 grams, or approximately 1.5 pounds of marijuana, some of it separated into sandwich bags, and over $7, 000 in small bills, separated into sandwich bags. The officers did not find any smoking devices that would indicate the marijuana was for personal use.

         In Townley's opinion, a normal user would smoke one-half to one gram of marijuana a day, whereas a heavy user might smoke up to three grams. Based on these figures, Townley believed that the amount of marijuana recovered from Simon's home would last a normal user for two years. However, Townley commented that due to the limited shelf life of marijuana, it would dry out and would lose its potency if stored in plastic bags.

         Townley agreed that the small amount of marijuana found on the kitchen table, by itself, might be for personal use. However, in Townley's expert opinion, the total amount of marijuana and cash found indicated that the marijuana was intended for sale rather than just personal use. Townley also testified that it was not uncommon to find multiple persons selling marijuana from one location. Townley further explained that it was not uncommon for officers to find that the marijuana was kept separate from the cash, and that this setup could indicate distribution. Townley estimated that the retail value of the marijuana was $10 per gram, or almost $7, 000 for the total amount.

         After the state rested, the defense called Terrance Lane, Smith's cousin. Lane testified that he also lived at 400 Topeka Street, and he was there on June 8, 2016, with his girlfriend, the defendant, and Simon's girlfriend, Sharice Powell. Lane confirmed that he was awakened around 9:40 a.m. by the officers and that he was handcuffed while they searched the house. He was later arrested and charged with possession of marijuana with intent to distribute. Lane pled guilty and was sentenced to seven years at hard labor, suspended, and four years of supervised probation.

         Lane stated that he and Powell purchased over two pounds of marijuana to smoke with friends at a gathering they were planning, that the marijuana belonged to him and Powell, and that Simon knew nothing about the marijuana. Lane said that they did not tell Simon about purchasing the marijuana because he would be mad since Simon was still on parole. Lane testified that he purchased the marijuana from an unknown male who called Lane as he was traveling through the area.

         Lane insisted that he did not have any partnership with Simon and that he was not selling the marijuana. When asked about the packages of marijuana found in his room, Lane admitted that he would sell some of the marijuana found in his room if someone was interested.[1]

         Lane testified that he knew nothing about the money found in Simon's bedroom and insisted that the money was not proceeds from selling the marijuana. Lane confirmed that he earned money working at a pecan plant and stacking bricks. Lane also testified that Simon did not have a job, but he thought Simon did a little work at the pecan plant.

         Sharice Powell was called as a witness on behalf of Simon. She testified that she had been with Simon for three years and that she lived with him at 400 Topeka Street. Powell stated that she had been arrested and charged with possession with intent to distribute. Like Lane, Powell swore that Simon knew nothing about the marijuana that she and Lane purchased to share with friends at a gathering.

         Powell testified that she and Lane each contributed $300 to purchase two pounds of marijuana. She insisted that neither she, nor Lane, sold marijuana, and she stated that she worked at McDonald's. Powell testified that the marijuana in the laundry basket was in a shopping bag and was covered with clothes. Powell explained that the money found underneath Simon's bed came from an auto accident settlement and that he used it to loan money to others. Powell denied knowing about the marijuana found in Lane's bedroom.

         The jury returned a verdict of guilty as charged of possession with intent to distribute marijuana.

         The trial judge ordered a presentence investigation report and scheduled sentencing. Simon appeared for sentencing on April 6, 2017. The trial judge confirmed that both sides had reviewed the PSI report and had no objections.

         The trial judge noted that the instant conviction is Simon's third conviction for possession with intent to distribute, with the first conviction in 2006 and the second in 2007. Simon was still on probation for the 2006 conviction when he committed the second offense in 2007 and his probation was revoked. Simon had been released on good-time parole supervision on February 14, 2013, for the drug convictions. The trial judge further observed that Simon was arrested in 2013 for unlawful presence of a sex offender and was sentenced to 120 days in parish jail. The trial judge noted that Simon was still on parole at the time he committed the instant offense.

         The trial judge informed Simon that he faced a potential sentencing range of 5-30 years at hard labor. Having considered Simon's criminal history, the trial judge found that Simon had no intention of changing his criminal ways. Simon was sentenced to 20 years at hard labor, to run consecutively to his remaining sentences for the two prior drug convictions. Simon was given credit for time served and advised that he had two years from the date his conviction and sentence were final to seek post-conviction relief.

         Simon, who did not file a motion to reconsider sentence, appealed his conviction and sentence.

         DISCUSSION

         Sufficiency ...


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