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State v. Acevedo

Court of Appeals of Louisiana, Fifth Circuit

May 8, 2019

STATE OF LOUISIANA
v.
MARVIN S. ACEVEDO

          ON 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. Meyer

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

          JUDE G. GRAVOIS JUDGE

         Defendant, 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.

         FACTS AND PROCEDURAL HISTORY

         At 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.[1] 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.

         Detective 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.

         Detective 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.

         Detective 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.[2]

         Detective 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.

         Detective 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.

         Detective 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.[3] 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 it.

         Detective 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.[4] Video surveillance showed defendant arriving in a Nissan Titan, exiting his vehicle, and entering the office of CubeSmart.[5] 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.

         Sergeant 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.

         Regarding 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.

         The 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.

         Kortnie 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 inconclusive.

         Dr. 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.

         Ms. 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.

         Agent 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.

         JPSO 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.

         JPSO 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"[6] 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.";[7] "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."

         Following 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).[8] 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.

         Defendant 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 578.

         On July 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 followed.

         On 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 jury verdict.[9]

         ASSIGNMENT OF ERROR NUMBER FIVE[10]

         In this 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.

         The State responds that the evidence was sufficient under the Jackson[11]standard 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.

         In 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).

         In 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.

         Defendant 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.

         The 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 evidence." Id.

         In 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.

         In the 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.

         The 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 ...


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