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State v. Dixon

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

STATE OF LOUISIANA
v.
CLARENCE E. DIXON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-736, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Andrew Decoste Douglas E. Rushton.

          COUNSEL FOR DEFENDANT/APPELLANT, CLARENCE E. DIXON Sherry A. Watters.

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore.

         CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART; REMANDED FOR RESENTENCING

         MFE

         SMC

         CONCURS IN PART; DISSENTS IN PART WITH REASONS

         MEJ

          MARION F. EDWARDS, JUDGE PRO TEMPORE JUDGE.

         Defendant appeals his convictions and sentences for possession with the intent to distribute heroin and attempted possession of cocaine on the basis other crimes evidence was improperly admitted, expert testimony was allowed on the packing, sales and trafficking of drugs without any showing of the accepted standards for the expert opinion, and his sentences are unconstitutionally excessive. For following reasons, we affirm Defendant's convictions, amend Defendant's sentence for count one, and affirm as amended. We vacate Defendant's sentence on count two and remand to the trial court for resentencing.

         Defendant, Clarence Dixon, was charged in a bill of information on February 6, 2015 with possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count one) and possession of cocaine in violation of La. R.S. 40:967(C) (count two). The State subsequently amended count two of the bill to charge Defendant with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A). Defendant proceeded to trial on September 13, 2016 before a 12-person jury, which found him guilty as charged as to count one and guilty of the lesser included offense of attempted possession of cocaine on count two.

         On October 14, 2016, after denying Defendant's motions for post-verdict judgment of acquittal and new trial and after delays were waived, the trial court sentenced Defendant to 50 years imprisonment at hard labor with the first 10 years without benefit of parole, probation or suspension of sentence on count one and to two and one-half years imprisonment on count two to run concurrently with each other.

         FACTS

         At approximately 9:15 p.m. on January 23, 2015, Deputy Salvador Provenzano with the Jefferson Parish Sheriff's Office (JPSO) Reserve Task Force and his partner were patrolling in the 6500 block of Airline Highway in a marked police unit when he noticed a Nissan SUV that had a license plate with an expired registration. He initiated a traffic stop and approached the SUV's driver's side while his partner approached the passenger side. Deputy Provenzano observed two individuals, the driver and a passenger, identified as Defendant, inside the vehicle and noted the two were engaged in furtive activity within the vehicle.

         He spoke with the driver, Jenny Montecino, who provided her driver's license and indicated that she did not have registration or insurance for the vehicle. Deputy Provenzano learned that Ms. Montecino's driver's license was suspended and that she had several outstanding warrants. Deputy Provenzano's female partner then performed a pat-down search on Ms. Montecino. The deputy subsequently advised Deputy Provenzano that Ms. Montecino indicated she had narcotics in her underwear.

         Meanwhile, Deputy Provenzano went to the passenger side of the vehicle where he encountered Defendant, who had a stack of money in his hands that he was trying to hide. Deputy Provenzano explained that Defendant had no identification on him, was not truthful in providing his name and Social Security number, and was acting like he wanted to run or get away, so Deputy Provenzano placed Defendant in handcuffs for safety purposes and advised him of his Miranda[1] rights.

         Deputy Nicholas Buttone with the JPSO's Narcotics Division subsequently arrived on the scene to assist with the narcotics investigation. Upon his arrival, he learned that heroin and crack cocaine were recovered from Ms. Montecino's person. Deputy Buttone spoke with Ms. Montecino who advised that additional narcotics, specifically heroin, were located in a motel room at the Knights Inn Motel where she and Defendant were living. A search of the motel room pursuant to a search warrant yielded a bag of heroin containing 43 grams, two bottles of room deodorizer, a digital scale, and Defendant's driver's license.

         At trial, Ms. Montecino testified that she had known Defendant for approximately nine years and that he was the father of two of her sons. She recalled that on the morning of January 23, 2015, she took her son to school[2] and returned to the motel room where she and Defendant had been staying for several months. At some point late in the morning after Defendant's customers had been calling his cell phone, the two prepared to leave the room so Defendant could "meet his clients for the sales." Ms. Montecino explained that Defendant sold heroin and crack.

         She recounted the traffic stop that morning, explaining that when the police activated their lights to pull them over, Defendant told her to "stuff" the drugs in her pants. She explained that when the officers spoke with her, she willingly turned over the drugs because she was scared and the drugs were not hers. She also told the officers about a red box containing heroin that was in the motel room, as well as a scale and room deodorizer Defendant used to cut the drugs.

         Sergeant Joshua Collins with the JPSO testified as an expert in the field of narcotics investigations, distribution, and pricing and packaging. He reviewed the evidence and noted factors - the large amount of money ($2, 568) seized from the vehicle and the fact it was mostly in $20 increments, the digital scale, and room deodorizer[3] - that indicated the narcotics in this case, both the heroin and cocaine, were intended for distribution. He also pointed to the amount of heroin, 43 grams, as another factor that was consistent with the intent to distribute. He ...


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