APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 17-3961, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Rachel L.
Africk, Jennifer C. Voss
COUNSEL FOR DEFENDANT/APPELLANT, MARVIN S. ACEVEDO Cynthia K.
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Marc E. Johnson
G. GRAVOIS JUDGE
Marvin S. Acevedo, appeals his conviction of possession of
over 400 grams of cocaine in violation of La. R.S. 40:967(F).
For the following reasons, we affirm defendant's
conviction and sentence.
AND PROCEDURAL HISTORY
trial, Detective Allan Doubleday of the Jefferson Parish
Sheriff's Office ("JPSO") testified that in
June of 2017, he received information from an informant that
a suspect driving a Nissan Titan truck was transporting drugs
from Texas to Jefferson Parish and that the suspect was
storing drugs at a storage unit. Detective Doubleday used the
automated license plate reader ("ALPR") system,
which takes photographs of license plates as vehicles pass by
cameras throughout the state, to track the suspect's
vehicle. JPSO Sergeant Joshua Collins monitored the ALPR
cameras and advised Detective Doubleday that they had
captured the suspect's vehicle traveling to Texas on many
occasions. After learning on June 19, 2017 that the
suspect's vehicle was traveling towards Texas, Detective
Doubleday and other officers went to the Texas/Louisiana
border to wait for the suspect's vehicle to return to
Louisiana. Detective Doubleday eventually spotted the vehicle
and followed it. He and the other officers kept in contact
with other detectives who were positioned on I-10 at various
locations on the entire route from Texas to Jefferson Parish.
Doubleday testified that Sergeant Collins applied for and
obtained a search warrant for the subject vehicle. Detective
Doubleday was present for the stop of the vehicle, but Deputy
C. Marshall and Detective N. Obiol, who were in a marked
unit, stopped the suspect's vehicle in order to execute
the search warrant. Detective Doubleday observed two
occupants in the vehicle who were later identified as
defendant, the passenger, and Mr. Pedro Villareal, the
driver. He separated them, advised them of their rights, and
spoke to them. Detective Doubleday said that each of them
gave a different explanation as to why they had been in Texas
and were traveling back to Louisiana the same day. Defendant
told him that they had been in Texas for several days
attending vehicle auctions. However, Detective Doubleday knew
from the surveillance that they had left Louisiana and
returned that same day. He spoke to defendant and Mr.
Villareal in English and said that defendant fully understood
him in English. Detective Doubleday testified that he also
speaks Spanish and could have communicated with defendant in
Spanish if such had been necessary.
Doubleday testified that they brought the vehicle to
Louisiana State Police Troop B at Loyola and Williams
Boulevards in Kenner. Prior to the search of the vehicle, a
K-9 dog walked around the vehicle. The dog alerted or sensed
that there were narcotics throughout the vehicle and
specifically underneath it. After searching that area,
deputies retrieved a magnetic hideaway key box from
underneath the truck. Inside the box they found a plastic bag
containing a white powdered substance that tested positive
for cocaine. Detective Doubleday advised defendant of his
rights a second time. Defendant was later transported to the
detective bureau where Detective Doubleday advised defendant
of his rights a third time. While questioning defendant, he
admitted that the cocaine belonged to him and that Mr.
Villareal had no knowledge of it.
Doubleday testified that they searched the interior of the
vehicle and found a wallet in the center console. Inside that
wallet were a Florida ID with the name of "Marvin
Santiago Acevedo" on it, a CubeSmart storage key, a
CubeSmart access card with a storage unit number (409) and a
PIN on it, and a bag of cocaine. Detective Doubleday stated
that he found four cell phones in the vehicle, three of which
belonged to defendant and one of which belonged to Mr.
Villareal. Detective Doubleday also recovered $3, 359 in
currency from the vehicle. Mr. Villareal was released because
the evidence did not link him to the offense.
Doubleday testified that Sergeant Collins subsequently
obtained a second search warrant for the vehicle. During the
second search, they found another cell phone. On June 6,
2018, detectives applied for and obtained search warrants for
the contents of the four cell phones belonging to defendant.
Doubleday testified that CubeSmart had two locations on Belle
Chasse Highway. They went to both locations because they
weren't sure which one pertained to defendant. At the
first location, they tried to access the site, but because
the PIN produced an error message, they went to the other
CubeSmart located nearby. When they used the PIN to access
the gate at the other CubeSmart location, they received a
message to return during certain business hours, which told
them that they were in the right location.
Doubleday testified that Sergeant Collins prepared a search
warrant for the subject storage unit number 409; however, he
mistakenly put the address of the first storage facility they
visited (2321 Belle Chasse Highway) and not the correct one
that they visited afterwards (2012 Belle Chasse Highway).
They ultimately obtained a search warrant, after which they
used the key from the wallet and entered storage unit number
409. Detective Doubleday testified that they found a cooler
containing four compressed wrapped bricks. The bricks, each
weighing one kilo, tested positive for cocaine. They also found
paperwork in the cooler, including documents from a BP oil
spill lawsuit, an Entergy bill with the name "Marvin
Santiago" on it, and a pay stub with the name
"Marvin Santiago Acevedo" on it. A work shirt with
defendant's name and his employer's name on it was
also found in the unit. Nothing else in the storage unit,
whether paperwork or other items, contained any other name on
Doubleday testified that Sergeant Collins obtained a search
warrant for leasing and access documents and surveillance
video from the storage facility, after which Sergeant Collins
met with Christina Collins, the manager of that storage
facility, the next day. The leasing documents showed that
defendant rented storage unit number 409 from February 27,
2017 until June 19, 2017. The records indicated that the
storage unit was accessed sixteen times, but that he only saw
defendant two times on the video. Video surveillance showed
defendant arriving in a Nissan Titan, exiting his vehicle,
and entering the office of CubeSmart. Wilmer Cerna was the
registered owner of the Nissan Titan. Detective Doubleday
testified that defendant and Mr. Cerna were associates, and
that no other part of the investigation involved Mr. Cerna.
Finally, Detective Doubleday maintained that he did not find
a prior conviction for defendant.
Collins also testified at trial, his testimony largely
corroborating that of Detective Doubleday. Additionally,
Sergeant Collins testified that in his experience of working
many narcotics investigations, it was a common practice for
individuals to store illegal drugs in storage facilities so
that they did not have to keep contraband in their vehicles
or houses. More likely than not, in his experience, those
individuals would store their narcotics in a facility in the
vicinity that was being used within their enterprise.
Sergeant Collins maintained that they had prior knowledge
from the informant that there was a storage facility close to
defendant's residence. The residence associated with
defendant was somewhere on the Westbank near "Lafayette
Boulevard" or Belle Chasse Highway. Sergeant Collins
explained that they started from the closest storage facility
and worked their way in an outward perimeter until they
ultimately found the correct one.
the four cell phones that were found, Sergeant Collins stated
that it was common among drug dealers to obtain and change
cell phones and numbers so that they cannot be tracked.
trial court accepted Sandy Lee, forensic drug chemist at the
JPSO Crime Lab, as an expert in the field of the analysis of
controlled dangerous substances, who examined evidence in the
instant case. Ms. Lee testified that her specimen 001
(State's Exhibit 2) was a sealed plastic bag containing a
magnetic key box containing one clear plastic bag with a
white powdered substance inside. Specimen 003 (State's
Exhibit 6) was a sealed plastic bag containing one clear
plastic bag with a white powdered substance inside. Specimen
013 was a sealed paper bag containing four individually
wrapped packages each containing a compressed, white powdered
substance. Ms. Lee testified that the material in all three
specimens was found to contain cocaine. The gross weight of
specimen 001 was twelve grams, the gross weight of specimen
three was under one gram, and the net weight of specimen 013
was 3, 962 grams.
Sinon, a latent print examiner at the JPSO Crime Lab, was
accepted as an expert in the field of latent print processing
and comparison. Ms. Sinon testified that she processed four
individual blocks of compressed, white powder wrapped in tape
and that she found three fingerprints. She was able to enter
two of those fingerprints into her database, but she was not
able to make any identification on either print. She compared
the three fingerprints to defendant, but the results were
Marcela Zozaya, a forensic DNA analyst for the JPSO, was
accepted as an expert in the field of forensic DNA analysis.
Dr. Zozaya testified that she analyzed swabs taken from the
kilos of cocaine in the instant case and that there was an
insufficient amount of DNA for testing.
Christine Collins testified that she was the general manager
at the CubeSmart located at 2012 Belle Chasse Highway and
that she handled leasing documents. She produced leasing
documents pertaining to unit number 409 for defendant in
response to the search warrant. She stated that the rental
date was February 27, 2017. Ms. Collins produced videos in
response to a subpoena for video surveillance. She met with
the detective and reviewed those videos. Ms. Collins saw the
truck on the video that the detective said belonged to
defendant; however, she did not know defendant or what he
looked like. She did not know if the detective was able to
retrieve the video, but she asserted that the detective had
difficulty downloading it. Ms. Collins testified that if an
access code is used after 10:00 p.m., the machine will
continue to beep, and the paperwork will say, "[s]ee the
manager." She believed that if the access code was
entered at the other location on Belle Chasse Highway, it
would say the same thing.
Bryan Huesman testified that he was employed by Immigration
and Customs Enforcement ("ICE") in the Homeland
Security Department. In June of 2017, he was contacted by
Detective Doubleday who told him that he had arrested a man
named "Marvin Acevedo" and that this individual had
identification cards, Entergy payments, and BP settlements in
that name. He attempted to verify if defendant was the real
"Marvin Acevedo." Agent Huesman conducted computer
checks and spoke with officials in Puerto Rico, where he
learned that the real "Marvin Acevedo" was
currently detained in jail and had been since 2014 for
narcotics related charges in Puerto Rico. Agent Huesman knew
the man in Puerto Rico was the real "Marvin
Acevedo" because the social security number that was
given to him by Detective Doubleday was a Puerto-Rican issued
social security number. He stated that he had not been able
to develop defendant's actual birth name because
defendant had refused to talk to them.
Detective Solomon Burke, accepted as an expert in the field
of mobile device forensics, testified that he was currently
assigned to the digital forensics division where he examines
electronic evidence. Detective Burke testified that he
received and examined three Samsung phones and one iPhone in
the instant case. He was able to extract data from the
Samsung phones but not the iPhone. Detective Burke asserted
that he found no activity going farther back than thirty days
and that none of the phones' data went back to February
27, 2017, or even prior to May of 2017. He said that the
Samsung phones were "dump" or "burner"
phones, disposable phones that could be purchased and
activated without identifying information.
Detective Edgardo Castro, who was fluent in Spanish,
identified State's Exhibit 33 as text messages from the
phones in Spanish that he translated into English. Detective
Castro identified the following incoming text message:
"Need price on china, ounce" and indicated
that was in English and did not need translating. He also
identified the following text messages: "Look, bro, he
wants a 2, 8, 4, 3 p.m. Can you?"; and "Look,
Marvin, I'm not going to speak to frogs anymore. I'll
call you directly. Good night." Detective Castro
testified that "frog" was another word for
middleman. He also identified other text messages: "Bro,
did you mix the one you gave me today?"; "Bro, I
want another eight."; "Bro, give me an eight.";
"I'm the bald one." (an outgoing message);
"Friend, this is Marvin. Call me." (an outgoing
message); and "Marvin, I'm Pablo. I'm calling
you so you can come to my house to see the champions. I have
no work. I took off."
defendant's arrest, on August 31, 2017, the Jefferson
Parish District Attorney filed a bill of information charging
defendant with possession of over 400 grams of cocaine in
violation of La. R.S. 40:967(F). Defendant was arraigned on
September 5, 2017, and pled not guilty. He filed a Motion to
Quash Bill of Information that was denied after a hearing on
November 30, 2017. Defendant subsequently filed a writ
application challenging this ruling, which this Court denied.
State v. Acevedo, 17-K-708 (La.App. 5 Cir. 3/19/18)
(unpublished writ disposition). He filed a writ application
with the Louisiana Supreme Court challenging this Court's
ruling. The Supreme Court denied the writ. State v.
Acevedo, 18-619 (La. 5/25/18), 243 So.3d 569.
filed a Motion to Suppress Evidence and Statement that were
denied after a hearing on March 15, 2018. He thereafter filed
a writ application challenging these rulings, which this
Court denied. State v. Acevedo, 18-K-196 (La.App. 5
Cir. 6/1/18) (unpublished writ disposition). Defendant filed
a writ application with the Louisiana Supreme Court
challenging this Court's ruling, who denied the writ.
State v. Acevedo, 18-922 (La. 6/25/18), 246 So.3d
2, 2018, the State filed a notice of intent to use evidence
of other crimes, which was granted at a hearing. Following
that hearing, on July 9 and 10, 2018, the case was tried
before a twelve-person jury, who found defendant guilty as
charged. On August 8, 2018, defendant filed a Motion for New
Trial and a Motion for Judgment of Acquittal that were denied
on August 9, 2018. Afterwards, on August 9, 2018, defendant
waived sentencing delays, and the trial court sentenced him
to imprisonment at hard labor for twenty years and ordered
him to pay a $50, 000 fine. The trial court also ordered that
sentence to run consecutively to the sentence in case number
17-3961. Defendant subsequently made an oral motion to
reconsider sentence that was denied and an oral motion for
appeal that was granted. On August 10, 2018, defendant filed
a timely written Motion for Appeal that was granted. This
appeal, defendant argues the following assignments of error:
1. The trial court erred in failing to grant defendant's
Motion to Quash the bill of information.
2. The trial court erred in denying the motion to suppress
the statement allegedly made to police and the evidence
seized from the storage unit.
3. The trial court erred in failing to grant the motion to
disclose the identity of the confidential informant.
4. The trial court erred in allowing the introduction of
other crimes evidence.
5. The evidence presented by the State was insufficient to
support the conviction.
6. La. C.Cr.P. art. 782(A), allowing for a non-unanimous jury
verdict, is unconstitutional and requires reversal of the
OF ERROR NUMBER FIVE
assignment, defendant argues that the evidence was
insufficient to support his conviction. He also argues that
the evidence presented by the State was inconsistent,
misleading, and inconclusive. Defendant contends that the
information from the confidential informant that defendant
would be transporting a large quantity of cocaine was
incorrect, because there was no large quantity of cocaine in
the truck in which he was riding. Further, defendant asserts
that there was no physical evidence to connect him to the
cocaine found inside of the storage unit and that it was
shown that other people had access to the storage unit. As a
result, defendant maintains that the State failed to prove
beyond a reasonable doubt that he knowingly and intentionally
possessed over 400 grams of cocaine.
State responds that the evidence was sufficient under the
Jacksonstandard to support defendant's
conviction. It points out that defendant admitted that the
cocaine found in the vehicle belonged to him and not to his
passenger. The State contends that the evidence showed that
defendant was in constructive possession of the cocaine found
in the CubeSmart storage unit. It asserts that the jury
obviously found that the State's witnesses were credible.
reviewing the sufficiency of evidence, an appellate court
must determine that the evidence, whether direct or
circumstantial, or a mixture of both, viewed in the light
most favorable to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements of the
crime have been proven beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Neal, 00-0674 (La. 6/29/01), 796
So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002).
cases involving circumstantial evidence, the trial court must
instruct the jury that "assuming every fact to be proved
that the evidence tends to prove, in order to convict, it
must exclude every reasonable hypothesis of innocence."
La. R.S. 15:438. The reviewing court is not required to
determine whether another possible hypothesis of innocence
suggested by the defendant offers an exculpatory explanation
of events. Rather, the reviewing court must determine whether
the possible alternative hypothesis is sufficiently
reasonable that a rational juror could not have found proof
of guilt beyond a reasonable doubt. State v.
Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83;
State v. Washington, 03-1135 (La.App. 5 Cir.
1/27/04), 866 So.2d 973, 977.
was convicted of possession of over 400 grams of cocaine in
violation of La. R.S. 40:967(F). To support a conviction for
possession of cocaine, the State is required to prove that
defendant was in possession of the drug and that he knowingly
or intentionally possessed it. State v. Robinson,
04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115.
element of possession may be established by showing defendant
exercised either actual or constructive possession of the
substance. State v. Lewis, 04-1074 (La.App. 5 Cir.
10/6/05), 916 So.2d 294, writ denied, 05-2382 (La.
3/31/06), 925 So.2d 1257. A person not in physical possession
of the drug is considered to be in constructive possession of
the drug, even though the drug is not in his physical
custody, when it is under that person's dominion and
control. Id. The key factors to be considered in
determining whether a defendant exercised dominion and
control sufficient to constitute constructive possession are
the defendant's knowledge that illegal drugs were in the
area, his relations with a person found to be in actual
possession, the defendant's access to the area where the
drugs were found, evidence of recent drug use by the
defendant, the existence of drug paraphernalia, and evidence
that the area was frequented by drug users. Id.;
State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01),
791 So.2d 749, 761, writ denied, 01-2269 (La.
9/20/02), 825 So.2d 1156. "Mere presence in an area
where drugs are found or mere association with the person in
actual possession does not constitute constructive
possession." State v. Jones, 04-1258 (La.App. 5
Cir. 4/26/05), 902 So.2d 426, 431. However, "[p]roximity
to the drug, or association with the possessor, may establish
a prima facie case of possession when colored by other
State v. Every, 09-0721 (La.App. 4 Cir. 3/24/10), 35
So.3d 410, 421, writ denied, 10-0929 (La. 11/19/10),
49 So.3d 397, the Fourth Circuit found that the State
established that the defendant constructively possessed
cocaine found in a unit of a storage facility. The defendant
had contended on appeal that the evidence was insufficient to
convict him because the unit at the storage facility in which
the cocaine was found was rented to Ms. Mathew, that the
Mercedes in which the keys to the storage unit were found was
registered to Ms. Mathew, and that there was no evidence
establishing he actually entered the subject unit at the
storage facility. The Court noted that the officers'
testimony established that the defendant had visited the
storage unit alone and had entered the building that
contained the particular unit. After leaving the storage
facility, the officers observed a hand-to-hand transaction
between the defendant and an unknown male in a motel parking
lot. After he was arrested, the defendant admitted that he
had stored approximately a quarter kilogram of cocaine at the
storage facility and that the keys to the storage facility
were located inside the console of the Mercedes. The
appellate court found that although the storage unit was
rented by Ms. Mathew and she was the registered owner of the
Mercedes in which the keys to the storage unit were kept, the
evidence established that the defendant exercised dominion
and control of the cocaine found in the storage facility.
instant case, Detective Doubleday testified that defendant
admitted that the cocaine found inside of the magnetic box
underneath the truck belonged to him and that Mr. Villareal
was unaware of it. Additionally, the wallet that the
detectives found in the truck contained an ID with
defendant's name on it, the CubeSmart storage key, the
CubeSmart access card with a storage unit number and a PIN on
it, and a bag of cocaine. As previously noted, the officers
went to the two CubeSmart storage facilities in that area and
located the one where the access code worked. They searched
the subject unit and found four kilos of cocaine inside of a
cooler. Detective Doubleday testified that they also found
documents with defendant's name on them inside of the
cooler and a work shirt with defendant's name and his
employer's name on it inside the storage unit. Nothing
else in the storage unit contained any other names.
Additionally, the State established that unit number 409 was
rented in defendant's name, Detective Doubleday viewed
video surveillance which showed defendant arriving at the
storage facility two times; the records indicated that the
storage unit was accessed sixteen times. Also, $3, 359 was
recovered from the vehicle in which defendant was riding in,
and text messages indicated that defendant was selling drugs.
jury heard the testimony from the witnesses at trial and
obviously found them to be credible. The credibility of
witnesses is within the sound discretion of the trier of
fact, who may accept or reject, in whole or in part, the
testimony of any witness; the credibility of the witnesses
will not be ...