NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0195 sir

STATE OF LOUISIANA

VERSUS

DONALD CROCHET

DATE OF JUDGMENT., ' N0V 1 5 201 q

ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT NUMBER 546870, DIVISION D, PARISH OF LAFOURCHE STATE OF LOUISIANA

HONORABLE CHRISTOPHER J. BOUDREAUX, JUDGE

Kristine M. Russell Counsel for Appellee District Attorney State of Louisiana Joseph Sidney Soignet Rene Charles Gautreaux Assistant District Attorneys Thibodaux, Louisiana

Bertha M. Hillman Counsel for Defendant -Appellant Covington, Louisiana

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

Disposition: CONVICTIONS AND SENTENCES AFFIRMED.

CHUTZ, I

The defendant, Donald G. Crochet, was charged by amended bill of information with fifty counts of pornography involving juveniles ( counts 1- 50), violations of La. R.S. 14: 81. 1; and one count of possession with intent to

distribute a Schedule I controlled dangerous substance ( marijuana) ( count 51), a

violation of La. R.S. 40: 966. He pled not guilty on all counts. Following a jury trial, the defendant was found guilty as charged by unanimous verdicts on all counts. He moved for a new trial and for a post -verdict judgment of acquittal, but

the motions were denied. On counts 1- 50 ( pornography involving juveniles), the defendant was sentenced on each count to five years imprisonment at hard labor

without benefit of parole, probation, or suspension of sentence, with all sentences

to run concurrently. On count 51 ( possession with intent to distribute marijuana),

he was sentenced to ten years imprisonment at hard labor, to run concurrently with the sentences imposed on counts 1- 50. He was also ordered to comply with the sexual offender registration requirements. See La. R. S. 15: 540 et seq. The

defendant now appeals, contending: ( 1) the evidence was insufficient to support

his conviction on count 51; and ( 2) there is error patent on the face of the record.

For the following reasons, we affirm the convictions and sentences.

FACTS

On September 24, 2015, deputies with the Lafourche Parish Sheriff' s Office

went to the defendant' s home in Thibodaux to investigate a report of a stolen cell

phone. The cell phone was not recovered, but twenty-three pounds of marijuana were discovered in the defendant' s attic and at least fifty images of child pornography were found on a laptop in the home.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant argues the evidence was

insufficient to support his conviction for possession with intent to distribute marijuana ( count 51). He contends the evidence failed to exclude the reasonable

hypothesis of innocence that the marijuana belonged to someone else ( a seafood

dealer), and that the defendant " believed that person had put only two pounds of

marijuana in the attic." He does not challenge the sufficiency of the evidence to support the convictions on counts 1- 50.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier -of f-act could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P.

art. 821( B). The Jackson v. Virginia' standard of review, incorporated in Article

821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., " assuming every fact to be proved that the evidence tends to prove, in order to convict," every

reasonable hypothesis of innocence is excluded. La. R.S. 15: 438. The reviewing court is required to evaluate the circumstantial evidence in the light most favorable

to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a

reasonable doubt. When a case involves circumstantial evidence and the trier -of -

fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Smith, 2003- 0917 ( La. App. 1st Cir. 12/ 31/ 03),

868 So. 2d 794, 798- 99.

As applicable here, it is unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance classified in

Schedule I. La. R.S. 40: 966( A)( 1). Marijuana is classified as a controlled

dangerous substance in Schedule I. See La. R.S. 40: 964, Schedule I(C)( 19). The

offense of possession with intent to distribute a controlled dangerous substance is

comprised of two elements: ( 1) a knowing and intentional possession of the substance ( 2) with a specific intent to distribute it. State v. Taylor, 2016- 1124 ( La.

12/ 01/ 16), 217 So. 3d 283, 295.

On the issue of whether the evidence sufficiently proved possession, the State is not required to show actual possession of the narcotics by a defendant in order to convict. Constructive possession is sufficient. A person is considered to be in

constructive possession of a controlled dangerous substance if it is subject to his

dominion and control, regardless of whether or not it is in his physical possession.

Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. However, the mere presence in the area where narcotics are discovered, or mere association with the person who does

control the drug or the area where it is located, is insufficient to support a finding of constructive possession. Smith, 868 So. 2d at 799.

A determination of whether or not there is " possession" sufficient to convict

depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute

possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs

were found, evidence of recent drug use, and his physical proximity to the drugs.

Smith, 868 So.2d at 799.

L!

As to the evidence of defendant' s intent to distribute the marijuana, it is well

settled that intent to distribute may be inferred from the circumstances. Factors

useful in determining whether the State' s circumstantial evidence is sufficient to prove intent to distribute include: ( 1) whether the defendant ever distributed or

attempted to distribute illegal drugs; ( 2) whether the drug was in a form usually

associated with distribution; ( 3) whether the amount was such to create a

presumption of intent to distribute; ( 4) expert or other testimony that the amount

found in the defendant's actual or constructive possession was inconsistent with

personal use; and ( 5) the presence of other paraphernalia evidencing intent to distribute. Smith, 868 So.2d at 800.

In the instant case, the State presented testimony from Lafourche Parish Sheriff's Office Deputy Clay Blanchard. On September 24, 2015, Deputy Blanchard and a fellow police officer went to the defendant' s home in Thibodaux to investigate a report of a stolen cell phone. The " Find my iPhone" app had identified the defendant' s residence as the location of the phone. The defendant initially claimed he had no knowledge of the stolen iPhone. He did not make direct eye

contact with the deputies, and his hands were very fidgety.

After being advised of his Miranda2 rights, the defendant confessed that at the LSU football game the previous weekend, he had put an unattended iPhone in

his pocket and gone home. The defendant claimed he threw away the iPhone after receiving a notification thereon that the authorities had been contacted concerning the theft. He further stated the " trash passed recently" so he was unsure if the

iPhone would be in the trash can.

Lafourche Parish Sheriff' s Office Sergeant Jeff Chamberlain arrived at the

scene, and the defendant consented to a search of his home. Prior to entering the

home, the police officers asked if there were any animals, booby traps, or anyone else in the home. The defendant stated there were not and he lived alone. He

further stated he was nervous because he had about a quarter pound of marijuana in

a shop -vac in one of the bedrooms.

The police officers noticed wet, damp grocery bags on a wheelchair under the carport. Once they entered the home, they discovered an open chest freezer with parts and pieces of suspected marijuana leaves in the bottom. A subsequent search

of the shop -vac failed to reveal any marijuana. The defendant then claimed he

forgot where "[ he] put it," and began frantically looking in other locations in the

home. The police officers detained the defendant for officer safety and obtained a search warrant for the home.

While Detective Chamberlain was typing the application for a search warrant, the defendant told him, " I got a little bit more than a quarter pound of marijuana in

the house." Sergeant Chamberlain told the defendant to be honest, and the

defendant stated he had "[ a] couple of pounds of weed in the attic."' A large

commercial black garbage bag containing twenty-three pounds of marijuana in one pound packages was found in the attic.

On cross- examination, Sergeant Chamberlain testified "[ i] t was mentioned,

through conversation," that the marijuana " belonged to some guy that owned a seafood place in Terrebonne Parish."

Sergeant Chamberlain testified that the quantity of marijuana recovered in this case was inconsistent with personal use. He testified that based on his twenty years of experience as a police officer and five years of experience as a narcotics

officer, the average drug user would consume approximately one gram of marijuana

that a heavy user of marijuana would consume between ten and fifteen cigarettes a day, so it would take years to consume the amount of marijuana recovered in the case; and by that time, the marijuana would turn into dust.

Additionally, deputies also recovered plastic sandwich bags, a gram scale, a wooden cigar box containing medical forceps, and a larger scale. Sergeant

Chamberlain testified plastic sandwich bags are commonly used to package marijuana, a gram scale is commonly used to weigh out small amounts of marijuana, and forceps are commonly used as a " roach clip" to hold the end of a marijuana cigarette.

Any rational trier -of f-act, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a

reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all the elements of possession with intent to distribute marijuana, and

the defendant's identity as the perpetrator of that offense. The verdict returned on

count 51 indicates the jury rejected the defendant' s claim that he had no knowledge of the twenty-three pounds of marijuana in his attic. This case involved circumstantial evidence and the trier -of f-act reasonably rejected the hypothesis of innocence that the defendant possessed twenty-three pounds marijuana without any intent to distribute the drug. The defense claimed the involvement of the defendant in count 51 was limited to allowing only a couple of pounds of marijuana to be placed in the attic of his home by a third person. No explanation was offered for the open chest freezer that contained marijuana fragments; the wet grocery bags, which may have contained the marijuana in the freezer; the packaging of the drug in one

pound amounts, which would aid in distribution; and the fact that twenty-three pounds of marijuana is inconsistent with personal use.

Rather than establish lack of intent to distribute, the defendant' s claim that he

only allowed a couple of pounds of marijuana to be placed in his attic by a third person provided a basis for the jury to rationally conclude the defendant was at least in joint possession of the large amount of marijuana in his attic because he willfully and knowingly shared with another the right to control the drug. See Smith, 868 So.2d at 799. Further, Sergeant Chamberlain testified that sometimes a house is

used as a " trap house," which is where a " common person is a drug user and then starts participating in the distribution of illegal narcotics to finance their drug usage."

In regard to the evidence of drug paraphernalia in the defendant' s home, the defense argued marijuana is offered for sale in zip -top, rather than fold -top, sandwich bags, but the jury apparently accepted Sergeant Chamberlain' s testimony challenging the truth of that assertion because fold -top bags are cheaper than zip -top bags and drug dealers are not concerned with whether drugs spill out of their bags after the drug sale. The defense also tried to persuade the jury that drug dealers used electronic scales, rather than gram scales like the one found in the defendant' s home,

but the jury apparently accepted Sergeant Chamberlain' s contrary testimony that gram scales were used in the sale of marijuana because they were convenient and cheap. The trier -of f-act is free to accept or reject, in whole or in part, the testimony of any witness. Unless there is internal contradiction or irreconcilable conflict with

the physical evidence, the testimony of a single witness, if believed by the factfinder, is sufficient to support a factual conclusion. The trier -of f-act' s

determination of the weight to be given evidence is not subject to appellate review.

An appellate court will not reweigh the evidence to overturn a factfinder' s

r- determination of guilt. State v. Howard, 2018- 0317 ( La. App. 1st Cir. 9/ 21/ 18), 258 So. 3d 66, 76, writ denied, 2018- 1650 ( La. 5/ 6/ 19), 269 So.2d 692.

In reviewing the evidence, we cannot say that the jury' s determination was irrational under the facts and circumstances presented to them. See State v.

Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See

State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d 417, 418 ( per curiam). In

accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder' s discretion beyond the

extent necessary to guarantee the fundamental protection of due process of law.

See State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 703 ( per curiam).

This assignment of error is without merit.

COMMITMENT ORDER

In assignment of error number two, the defendant argues there is patent

error on the face of the record requiring amendment of the commitment order and transmittal of the amended commitment order to the Louisiana Department of

Corrections. He claims the sentencing transcript and written felony sentencing document state that the sentences are to run concurrently, the commitment order indicates that they are not," and the minute entry is silent on the issue.

The defendant is correct that the sentencing transcript and the felony sentencing document in the record both indicate that the sentences are to run concurrently. He is also correct that the sentencing minutes are silent on the issue.

The defendant is incorrect, however, concerning the commitment order, which

I specifically states in its comments section that " all counts are concurrent."' On

the record, we find no confusion as to the terms of the confinement and, thus, no

substantial rights of the accused are affected. See La. Code Crim. P. art. 921;

State v. Jackson, 2000- 0717 ( La. App. 1 st Cir. 2/ 16/ 01), 814 So. 2d 6, 10- 11, writ denied, 2001- 0673 ( La. 3/ 15/ 02), 811 So. 2d 895.

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.