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.
composed of Judges Susan M. Chehardy, Marc E. Johnson, and
Marion F. Edwards, Judge Pro Tempore.
AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART;
REMANDED FOR RESENTENCING
IN PART; DISSENTS IN PART WITH REASONS
F. EDWARDS, JUDGE PRO TEMPORE JUDGE.
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.
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.
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
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.
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.
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
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.
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 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.
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
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 - 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 ...