State of Louisiana Versus Charles R. Lane ( 2020 )

STATE OF LOUISIANA NO. 20-KA-137
VERSUS FIFTH CIRCUIT
CHARLES R. LANE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-2090, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
December 23, 2020
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Hans J. Liljeberg
AFFIRMED
FHW
MEJ
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
COUNSEL FOR DEFENDANT/APPELLANT,
CHARLES R. LANE
David F. Gremillion
Ravi G. Shah
WICKER, J.
On June 20, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Charles R. Lane, with the following offenses
occurring on or about April 12, 2018: possession with intent to distribute cocaine
weighing 28 grams or greater, in violation of La. R.S. 40:967(A) (count one);
possession of methamphetamine weighing less than 2 grams, in violation of La.
R.S. 40:967(C) (count two); aggravated criminal damage to property belonging to
the Jefferson Parish Sheriff’s Office, in violation of La. R.S. 14:55 (count three);
and aggravated flight from an officer, in violation of La. R.S. 14:108.1(C) (count
four).1 On June 26, 2019, a unanimous jury returned a verdict of guilty as charged
on counts one, two, and four. On count three, the jury found defendant guilty of
simple criminal damage to property where the damage amounted to one thousand
dollars but less than five thousand dollars. On appeal, defendant assigns the
following errors:
I. The trial court erred when it denied defendant's motion for new
trial because it allowed testimony that under Louisiana law
called for a mistrial or admonishment of the jury, yet the trial
court did neither.
II. The trial court violated defendant's constitutional rights and due
process rights by allowing the admission of inadmissible and
prejudicial evidence.
III. The jury erroneously convicted appellant of the crimes charged
because there was not sufficient evidence to do so.
For the following reasons, we affirm Defendant’s convictions and sentences.
PROCEDURAL HISTORY
On July 23, 2018, Defendant was arraigned and pled not guilty on all counts.
Defendant filed a motion to suppress evidence, which was denied on October 11,
1
As to count four, the bill of information specifically charged defendant with intentionally refusing to
bring a vehicle to a stop, under circumstances wherein human life was endangered, knowing he had been
given a visual and audible signal to stop by Lieutenant D. Dubroc of the Jefferson Parish Sheriff’s Office
when the officer had reasonable grounds to believe that defendant had committed an offense.
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2018. This Court denied defendant’s writ application seeking review of that ruling
on January 22, 2019. State v. Lane, 18-733 (La. App. 5 Cir. 1/22/19) (unpublished
writ disposition), writ denied, State v. Lane, 19-280 (La. 4/8/19), 267 So.3d 613.
On May 23, 2019, the State filed a notice of intent to call Detective John
Wiebelt of the Jefferson Parish Sheriff’s Office (JPSO) Narcotics Division as an
expert in the field of illicit narcotics, packaging, quantity, and pricing. On May 28,
2019, defendant filed a motion for a Daubert/Foret2 hearing to exclude Detective
Wiebelt’s testimony, and an “expert witness hearing” was held that same day. At
the conclusion of the hearing, because the State had not had the opportunity to
respond to the Defense’s motion in writing, the trial court reset the matter for a
motion hearing relative to defendant’s Daubert/Foret hearing request. The
defense’s motion was eventually denied and Detective Weibelt was qualified as an
expert on June 24, 2019.
On June 12, 2019, the State filed a notice of intent to offer evidence of
defendant’s other crimes, wrongs, or acts pursuant to La. C.E. art. 404(B)(1). The
State sought to introduce evidence of the facts and circumstances of defendant’s
May 31, 2002 arrest leading to his September 20, 2002 convictions for possession
with intent to distribute cocaine in violation of La. R.S. 40:967(A) and possession
with intent to distribute marijuana in violation of La. R.S. 40:966(A).
On June 20, 2019, the State filed a supplemental notice of intent to admit
evidence of other acts under La. C.E. art. 404(B) and a notice of res gestae
regarding “the set up purchase with the [confidential informant] and the
defendant.”
On June 21, 2019, defendant filed an objection and motion in limine to the
State’s notice of intent to offer res gestae evidence under La. C.E. art. 404(B),
2
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993); State v. Foret, 628 So.2d 1116 (La. 1993).
20-KA-137 2
contending the State could not elicit testimony on matters purportedly discussed
between the confidential informant (CI) and defendant through any other parties.
On the same day, defendant also filed an objection and motion in limine to the
State’s notice of intent to offer evidence of defendant’s past conviction under La.
C.E. art. 404(B).
Also on June 21, 2019, the State amended the bill of information as to count
four, asserting that defendant violated La. R.S. 14:108.1(C), to reflect that
defendant had been given a visual and audible signal to stop by Deputy John
Walsdorf, not Lt. Dubroc, of the JPSO.
On June 24, 2019, the trial court held a hearing on the State’s 404(B)
notices, granting the State’s 404(B) motion regarding defendant’s prior guilty pleas
in 2002 and the State’s supplemental 404(B) notice of res gestae.
On June 25, 2019, the State amended the bill of information to reflect that
defendant is also known as (“AKA”) Charles R. Lane, Jr. The State also amended
the bill of information as to count three, asserting that defendant violated La. R.S.
14:55, to reflect that he did commit aggravated criminal damage to property
belonging to the JPSO “where the damage amounted to $1,000 or more but less
than $50,000.”
Jury selection began on June 25, 2019. On June 26, 2019, a unanimous jury
returned a verdict of guilty as charged on counts one, two, and four. On count
three, the jury found defendant guilty of simple criminal damage to property where
the damage amounted to one thousand dollars but less than fifty thousand dollars.
On July 15, 2019, defendant filed a motion for new trial, asserting that the
trial court erred in overruling defendant’s objection to admitting evidence of
defendant’s prior convictions and in denying defendant’s motion for a mistrial. On
the same date, defendant also filed a motion for post-verdict judgment of acquittal.
Defendant contended the State failed to prove that defendant possessed cocaine or
20-KA-137 3
methamphetamine. Defendant also suggested that the criminal damage to property
charge should have been rejected because defendant did not intentionally cause any
damages, and defendant argued that defendant’s flight, from persons he did not
know were officers, was justified.
On August 21, 2019, the trial court denied defendant’s motion for new trial
and motion for post-verdict judgment of acquittal. The trial court sentenced
defendant as follows: on count one, eighteen years imprisonment with the
Department of Corrections; on count two, two years imprisonment with the
Department of Corrections; on count three, two years imprisonment with the
Department of Corrections; and on count four, five years imprisonment with the
Department of Corrections.3 The trial court ordered the sentences to run
concurrently with each other.
On August 28, 2019, the State filed a multiple offender bill of information
against defendant as to count four, alleging he was a third-felony offender under
La. R.S. 15:529.1.4 After initially objecting to the multiple bill, Defendant waived
his objection and stipulated to the multiple bill on November 14, 2019. On the
same day, the trial court vacated defendant’s sentence as to count four and
resentenced him to eight years imprisonment at hard labor to be served without
benefit of probation or suspension of sentence and concurrent with the sentences
previously imposed for counts one through three.
On December 23, 2019, defendant filed a motion to appeal and for
appointment of the Louisiana Appellate Project, which the trial court granted on
the same date.
3
A sentence that commits a prisoner to the Department of Corrections is necessarily at hard labor. See
State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 621 n.2.
4
According to the multiple bill, on April 30, 2002, defendant pled guilty to possession of cocaine in
violation of La. R.S. 40:967(C) in 24th Judicial District Court case number 01-5874, and on September
20, 2002, defendant pled guilty to possession with intent to distribute cocaine in violation of La. R.S.
40:967(A) and possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) in 24th
Judicial District Court case number 02-3536.
20-KA-137 4
JURISDICTIONAL NOTE
Defendant’s motion for appeal was untimely filed, in that Defendant filed
his motion for appeal on December 23, 2019, more than thirty days after the initial
sentencing on August 21, 2019, more than thirty days after sentencing on the
multiple bill on November 14, 2019, and more than thirty days after the denial of
his oral request to reconsider his sentence (also November 14, 2019).5 However,
the trial court granted the motion for appeal on December 23, 2019, and the record
does not reflect that the State objected to the untimeliness of the motion for appeal.
Therefore, in the interest of judicial economy and the avoidance of useless
delay, we will consider the merits of this appeal. See State v. Jones, 15-157 (La.
App. 5 Cir. 9/23/15), 176 So.3d 713, 716 (although the defendant’s motion to
reconsider his sentence and motion for appeal were untimely, this Court addressed
the merits of the appeal in the interest of judicial economy); State v. Fair, 15-434
(La. App. 5 Cir. 12/23/15), 182 So.3d 1238, 1240 n.1, writ denied, 16-185 (La.
2/3/17), 215 So.3d 688 (where this Court addressed the merits of the defendant’s
appeal, even though the motion for appeal was untimely, to avoid further useless
delay); see also State v. Babineaux, 08-705 (La. App. 5 Cir. 1/13/09), 8 So.3d 621,
623 (citing State v. S.J.I., 06-2649 (La. 6/22/07), 959 So.2d 486); State v. Shay, 07-
624 (La. 10/26/07), 966 So.2d 562).
FACTS6
Sergeant Nicki Garnier testified that he was involved in a narcotics
investigation on April 12, 2018, in which he received information that defendant,
Charles Ray Lane Jr., was distributing narcotics on the east bank of Jefferson
5
Louisiana Code of Criminal Procedure art. 914 provides that a motion for an appeal in a criminal matter
must be made no later than “[t]hirty days after the rendition of the judgment or ruling from which the
appeal is taken” or “[t]hirty days from the ruling on a motion to reconsider sentence filed pursuant to
Article 881.1, should such a motion be filed.” According to Code of Criminal Procedure art. 881.1, a
defendant in felony cases has thirty days following the imposition of sentence to make or file a motion to
reconsider sentence, unless the court sets a longer period at sentencing.
6
The following factual account is derived from the testimony at trial.
20-KA-137 5
Parish. Sergeant Garnier set up a controlled purchase between the confidential
informant (“CI”) and defendant by having the CI contact defendant from Sergeant
Garnier’s vehicle utilizing the speaker function on the CI’s cell phone. Through
this process, Sergeant Garnier testified that he received information that defendant
would be delivering seven grams of cocaine to the Super 8 Motel and that he
would be driving a dark-colored SUV.7
Captain Shane Klein testified that, on April 12, 2018, he was directed to a
Super 8 Motel in Metairie, Louisiana. He relocated to the motel to get into a
surveillance position and was looking for a dark-colored Tahoe driven by an
individual who was thought to be delivering a quantity of drugs to the motel at
approximately 1:00 a.m. He indicated that around that time, officers observed a
Tahoe fitting the description arriving at the motel.
Sergeant Garnier and the CI were waiting in Garnier’s unmarked police car
when the defendant arrived at the Super 8 Motel at approximately 1:00 a.m.
According to Sergeant Garnier, they received a phone call from defendant, which
the CI answered using the speaker function, and the defendant said, “I’m here.
Where you at?” Sergeant Garnier also observed “a dark-colored SUV traveling in
a circle around the parking lot,” and he advised other investigators in the area.
Captain Klein and Detective Allan Doubleday attempted to conduct an
investigatory stop. According to the testimony of the two officers, Detective
Doubleday approached from the front of the vehicle, and Captain Klein
approached from the rear in an attempt to “box the vehicle in.” Both officers were
in unmarked F-150s with their lights activated.8 Detective Doubleday testified that
he exited his vehicle with a badge on his neck and his service weapon drawn.
Although he was in plain clothes, Detective Doubleday announced himself as a
7
Some officers testified that they were told to look for an older model blue Tahoe.
8
Captain Klein testified that the lights and sirens on both vehicles were activated.
20-KA-137 6
police officer and stated something to the effect of “Police. Stop. Don’t move.”
Detective Doubleday stated that defendant “looked around, looked through his
rearview mirror, put his vehicle in reverse” and backed up into Captain Klein’s
vehicle; 9 defendant was then able to maneuver from between the officers’ vehicles
and make an escape. Defendant fled the scene, and a vehicle pursuit took place
with multiple marked and unmarked vehicles.
Sergeant Garnier testified that the call remained on speakerphone as officers
attempted to stop defendant. Through the phone, which was still on speaker, he
could hear the officers saying, “Police, Police. Don’t move.” Sergeant Garnier saw
defendant flee from the police, but he was not involved in the pursuit.
Joshua Collins was employed by the JPSO from 2007 until August 2018.
Prior to leaving the JPSO, he was a sergeant in the narcotics division. Mr. Collins
did not observe the stop of defendant at the Super 8 on April 12, 2018. He testified
that his vehicle was a police interceptor, which is “not marked, but it looks very
much like a police car;” therefore, he had to stay outside of the parking lot.
However, Mr. Collins knew, via radio communications, that officers were moving
in to conduct a stop. As he came around to assist, he saw that defendant “had
broken out of the box and was fleeing towards West Napoleon.”
Mr. Collins testified that during the pursuit, defendant headed eastbound on
West Napoleon, running a red light at Cleary Avenue and traveling at speeds in
excess of seventy-five miles per hour. Defendant turned right onto North
Causeway heading southbound and proceeded over the Airline Drive overpass.
When he came down the overpass, defendant turned right on Andover and headed
north on the “Causeway service road.” Defendant then made a U-turn under the
9
Captain Klein indicated that he did not think defendant knew he was behind him because defendant put
his vehicle in reverse and struck Captain Klein’s vehicle as soon as he saw the police presence. Captain
Klein stated his vehicle sustained “minor bump damage,” and he did not know if his vehicle had been
repaired.
20-KA-137 7
Airline overpass and began traveling south on the “Causeway service road,”
eventually turning left onto Burns Street.
Detective Benjamin Jones testified that he was positioned at the I-10 Service
Road and Zenith looking for a Tahoe matching the CI’s description on the way to
the Super 8. He testified that he was involved in the pursuit, mainly on West
Napoleon to Causeway, then he fell behind “quite a few marked units and quite a
few unmarked police units” also in pursuit.
Deputy John Walsdorf testified that he also became involved in the pursuit.
He was in a fully marked JPSO unit and observed the vehicle coming at a high rate
of speed from West Napoleon onto Causeway. The vehicle left the roadway and
hit the median while trying to turn onto Causeway. Deputy Walsdorf indicated
that the detectives involved in the chase had their lights activated and that he also
turned on his lights and sirens in the pursuit. Deputy Walsdorf caught up to
defendant’s vehicle and paced it from approximately five car lengths at a speed of
approximately seventy-five miles per hour in a thirty-five mile per hour zone. He
testified that there were other marked units behind him in the pursuit.
Mr. Collins testified that the lead vehicle in the pursuit changed multiple
times until Defendant made the U-turn at Andover, when Mr. Collins became the
lead vehicle and remained the lead vehicle until defendant arrived at his destination
on Burns Street. According to Mr. Collins’s testimony, five to ten marked units
with lights and sirens assisted in the pursuit.
When Mr. Collins turned onto Burns Street, he testified that, while he did
not witness the impact, it appeared as if defendant had hit an Impala on the side of
the road and was stopped a car length past 2921 Burns Street. Mr. Collins
approached defendant from the rear to “box him in.” As he did so, Mr. Collins
testified that defendant put his vehicle in reverse and hit the gas. The two vehicles
impacted, causing Mr. Collins’s airbags to deploy. Mr. Collins testified that
20-KA-137 8
“Later, due to the impact, something in the engine compartment caught on fire,”
which eventually led to Mr. Collins’s entire vehicle being on fire. Although the
fire department was called, Mr. Collins testified that, because his vehicle was a
SWAT vehicle containing volatile munitions, “the Fire Department wouldn't put
out the fire until all of my ammunition was finished cooking off.” Mr. Collins
indicated that a “Department Vehicle Insurance Form” was completed and that his
vehicle’s estimated value was $20,950.
Because of the Tahoe’s position next to the Impala following the impact
with Mr. Collins, defendant’s driver-side door would not open, and defendant was
extracted from his vehicle via the passenger side and ultimately arrested. As
defendant was being removed from the vehicle, an irate gentleman approached,
yelling at officers to “[g]et off of him.” Mr. Collins testified, and Detective
Doubleday confirmed, that the gentleman ignored multiple commands to stop, after
which Mr. Collins attempted to place him under arrest. When the gentleman
resisted, Detective Doubleday testified that he assisted in trying to detain him.10
During the struggle, Detective Doubleday was punched in the chest, and the
gentleman was placed on the ground and handcuffed. Mr. Collins later learned the
gentleman was defendant’s relative, Mr. Henry Lane.
Detective Christopher Cade testified that he observed the attempted stop of
defendant by officers at the Super 8 Motel. Detective Cade’s vehicle could not
keep up with the pursuit, but he relocated to 2921 Burns Street, where he observed
that a collision had occurred between Sergeant Collins’s and defendant’s vehicles.
He observed officers attempting to apprehend defendant and saw multiple people
coming out of the apartment complex. He also testified that a small engine fire had
10
He also said that Sergeant Garnier helped, which is somewhat in conflict with Sergeant Garnier’s
testimony that he arrived after the defendant had been apprehended and the police unit was already
engulfed in flames.
20-KA-137 9
started inside the vehicle Sergeant Collins was driving, which could not be
extinguished. Detective Cade took photographs of the scene.
When Detective Jones arrived at 2921 Burns Street, defendant and a second
individual were being handcuffed. Detective Jones conducted a search incident to
arrest of defendant and located a clear plastic bag of white powder in defendant’s
front right pants pocket. While on the scene, Detective Jones conducted a field test
on the powder, which returned a preliminary positive result for cocaine. Detective
Jones also conducted a search of defendant’s vehicle, where he located defendant’s
driver’s license on the driver’s-seat floorboard.11
Sergeant Garnier testified that he relocated to 2921 Burns Street once the
pursuit had ended and he had parted ways with the CI. When he arrived, Sergeant
Josh Collins’s vehicle was engulfed in flames, defendant had been detained, and
several subjects were standing on the front porch of the residence. He, along with
Sergeant Collins, secured the residence prior to obtaining a search warrant.
Sergeant Garnier spoke with two individuals who advised him that defendant
resided in one of the rooms in the residence. According to Sergeant Garnier, at
that time, the residence was not searched nor were photographs of the residence
taken.
After officers learned that defendant lived at 2921 Burns Street, Mr. Collins
realized they needed to search the residence.12 Mr. Collins testified that, in his
experience, narcotics dealers keep excess supply in their homes. He directed
Detective Nathaniel Obiol to author a search warrant based on the information Mr.
Collins provided to him, and Officers conducted a security sweep. During the
security sweep, officers made sure the rooms were clear of people; Mr. Collins
testified they did not search for any objects.
11
Detective Jones did not photograph the field test, or NIK kit, and he did not submit it into evidence.
12
Defendant’s mother told Mr. Collins that defendant resided at that residence.
20-KA-137 10
Detective Cade testified that everyone, including detectives, exited the
residence after the security sweep and waited outside until the search warrant was
authorized. After a commissioner signed the search warrant, Detective Cade
entered the residence and took photographs before the residence was searched.
Captain Klein explained that before any search began, Detective Christopher Cade
would photograph the outside of a residence and then photograph the structure
from the inside. During the search, as evidence was located, Detective Cade would
take photographs of the evidence to show where seized evidence was located. A
placard preceding Detective Cade’s photographs of the residence and seized
evidence was marked with a time of 1:09 a.m. He testified that the photograph of
his placard showed the date and time of his arrival on scene, not the time he began
taking pictures.
Mr. Collins testified when the search warrant was signed at 2:34 a.m.,
officers had authorization to begin a search for the items notated in the warrant. He
indicated that the time on the search warrant return—2:35 a.m.—was the time the
search warrant began.
Mr. Collins participated in the search of the residence. According to Mr.
Collins, he searched the room that defendant’s mother told him belonged to
defendant. Mr. Collins testified that the room contained multiple photographs and
defendant’s high school diploma, as well as several pieces of mail addressed to
defendant. On a nightstand, he located 4.5 dosage units of a substance that was
later determined to be methamphetamine. In the left pocket of a jacket hanging in
the closet, Mr. Collins located a clear plastic bag containing approximately 30
grams of a white rock-like substance that was later determined to be crack cocaine.
20-KA-137 11
Mr. Collins also testified that he located paraphernalia, specifically razor blades
and plastic bags, in the bathroom accessible solely through defendant’s bedroom.13
Brian Schultz, a forensic chemist at the JPSO crime lab, performed an
analysis on evidence seized in the instant case. Mr. Shultz concluded that the 4.5
units of ghost-shaped pills of various colors located on the night-stand contained
methamphetamine and that the white rock-like object, which weighed
approximately 28 grams, contained cocaine. However, Mr. Schultz testified that
no controlled dangerous substances were detected in the white powder substance
seized when officers searched defendant’s person. Although he could not
determine the nature of the substance, he opined that it was likely baking soda. He
indicated that an on-scene field-test can return a false positive if too much acid is
present in the substance.
Detective John Wiebelt testified as an expert in the field of distribution,
quantity, and packing of valued narcotics. Detective Wiebelt reviewed the police
reports and the scientific analysis report pertaining to this case, and he stated that
“the weight alone in this case, I believe, is possession with the intent do [sic]
distribute and solely possession with intent to distribute.”14 He testified that, in his
experience, he has never seen a user possess 28 grams of crack cocaine.
Concerning crack cocaine users, Detective Weibelt testified that a user will buy
enough product to get a fix from the dealer and then immediately go somewhere to
use it. The type of paraphernalia typically associated with a user is a small glass or
metal pipe and a piece of Brillo pad or some other type of filter. A dealer,
however, would typically purchase an ounce quantity, which the dealer then breaks
13
Photographs of the crime scene, including photographs of vehicle damage, the interior of the residence
at 2921 Burns Street, the recovered evidence, and items bearing defendant’s name, were introduced and
admitted into evidence with no objection from defense counsel.
14
This testimony did not prompt an objection by the defense.
20-KA-137 12
up (using a fingernail, razor blades, or a knife) into rock increments of
approximately one-tenth of a gram to sell.
Detective Weibelt testified that an ounce of cocaine or crack cocaine would
cost between “eight-hundred and fifty dollars to fourteen hundred.” According to
his testimony, a dealer will take that ounce and “break it down into rock
increments which are about one-tenth of a gram,” giving him 280 crack rocks from
the 28 gram ounce that are each worth “from ten dollars to fifty dollars, depending
on the size.” He estimated the profit margin for the dealer would be “right under
three-thousand to above twelve-thousand dollars.” Detective Wiebelt also testified
that the type of paraphernalia associated with a dealer includes baggies and
razorblades.
Detective Wiebelt also testified that he listened to jail calls placed by
defendant.15 The jail calls were played during Detective Wiebelt’s testimony at
trial. He testified that during an April 13, 2018 call, defendant and a female talked
about the identity of the “R-A-T,” which Weibelt took to mean the CI who “set up”
defendant. Detective Weibelt testified to parts of an April 14, 2018 phone call that
he claimed were indicative of drug distribution. He explained that, in his
experience, people in the defendant’s position speak in code when referring to
drugs. During the April 14, 2018 phone call, a female spoke about cleaning up and
washing clothes. Detective Wiebelt stated that “[t]hings like this are used to talk
about cleaning up things that the police may not have found out about her [sic]
drugs or paraphernalia or firearms or anything like that.” During an April 15, 2018
call, Detective Wiebelt testified, defendant referred to drugs as “yams.”
15
Detective Sheri Theriot, the custodian of records for jail calls from the Jefferson Parish Correctional
Center, testified that all calls from the correctional center are recorded and kept on an internet-based
system. She generated copies of defendant’s recorded phone calls.
20-KA-137 13
During the April 14, 2018 phone call, Detective Wiebelt also testified that
defendant was asked how to turn the light off in his closet, and his description of
the closet and the location of the light switch matched the crime scene photographs
of the closet where officers located the crack cocaine. While listening to a call
placed on April 23, 2018, Detective Weibelt testified that defendant admitted that
he was involved in a high-speed pursuit, that he was charged with drug and flight
charges, and that “[t]hey got [him] with a nice little bit.” At the conclusion of his
testimony, Detective Weibelt stated, “My expert opinion, based on all of the facts
and circumstances in this case, is that Mr. Lane was possessing the cocaine with
the sole intent to distribute it.”
Detective Lieutenant Jason Renton testified that he assisted in a crack
cocaine investigation involving defendant on May 31, 2002. According to
Lieutenant Renton, officers had a CI purchase cocaine from defendant, and based
on that purchase, they obtained a search warrant for defendant’s residence at 2924
Burns Street.16 A search of the residence returned seventeen grams of crack
cocaine and 17.8 grams of marijuana located inside a closet. Officers also seized
paraphernalia—specifically, a box of Glad clear bags and several plastic bags with
the corner cut off. Lieutenant Renton testified that a picture of defendant was
located in the hall outside of the bedroom where the narcotics were seized and that
men’s clothing was located in the closet. According to Lieutenant Renton,
defendant told an officer the room was not his but later recanted and stated the
drugs were his. He testified that he learned from JeffNet that defendant pled guilty
to the charges stemming from the May 31, 2002 arrest. A certified record of
16
Lieutenant Renton was not responsible for “running” the CI during the 2002 investigation, and he did
not recall if he was present during surveillance of the purchase.
20-KA-137 14
defendant’s Boykin17 and the minute entry for his guilty plea were introduced and
admitted into the record.18
The defense called Kira Lennix, the girlfriend of defendant’s cousin Henry
Lane. She testified that at 1:00 a.m. on April 12, 2018, Mr. Lane received a phone
call and placed the call on speakerphone. During the call, defendant stated the
police were following him, so Ms. Lennix went outside to make sure nothing
happened to him.19 As she waited on the front steps, Ms. Lennix heard sirens in
the distance and saw defendant driving underneath the Causeway bridge. Ms.
Lennix testified that defendant was driving her truck. According to her testimony,
defendant parked the vehicle and turned everything off, “and then about maybe
five, not quite five minutes, but then comes the police; and then he rams into the
back of my car.” She denied that defendant put the vehicle in reverse.
After the collision, Ms. Lennix testified, the police pulled defendant from
the vehicle through the passenger side and “proceeded to throw him on the
ground.” According to Ms. Lennix, Mr. Lane asked the officers, “[d]o y’all really
have to do that to him?” She indicated that two officers responded by grabbing
Mr. Lane and pulling him down the stairs, where they tried to throw him against
the car, and then put him down on the ground and kicked him in the face. Ms.
Lennix testified that the front of the Mr. Collins’s truck was only smoking when
the fire department arrived. She stated, “They acted like they couldn’t do anything
or put it out until [the fire] completely engulfed the whole truck.” She indicated
that the fire also damaged the back of her truck, as well as the Impala.
According to Ms. Lennix, within twenty to thirty minutes, officers entered
the house and went upstairs. She testified that officers asked who lived there, and
17
Boykin v. Alabama, 395 U.S 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).
18
Defense counsel stated he had no objection to the exhibit.
19
Also present in the apartment with Ms. Lennix were Torial Bannister (defendant’s sister), and her two
young children, “Brianna,” and Mr. Lane. Kira did not know Brianna’s last name.
20-KA-137 15
someone indicated that defendant’s sister lived there. Ms. Lennix then stated that
officers threatened to take defendant’s sister’s children if she did not tell them
where defendant’s room was. She testified that officers got everyone out of the
house, but Ms. Lennix went back inside the house to get socks and pants for the
young children, and she was saw officers rummaging around defendant’s room
before the officers exited the house and everyone sat on the porch waiting for a
warrant. She stated that officers went back into the house for no more than five
minutes after the warrant was signed.
SUFFICIENCY OF EVIDENCE 20
Defendant argues the evidence was insufficient on the following three
counts: count one, possession with intent to distribute cocaine in violation of La.
R.S. 40:967(A); count two, possession of a controlled dangerous substance, to wit:
methamphetamine weighing less than two grams in violation of La. R.S.
40:967(C); and count three, aggravated criminal damage to property in violation of
La. R.S. 14:55.
As to count one, defendant asserts that thirty grams of cocaine could have
been for personal use, arguing that there were no items such as scales, baggies, or
small denominations of cash found in conjunction with the cocaine to illustrate that
defendant was dealing drugs. Defendant further argues that the State failed to
prove beyond a reasonable doubt that defendant possessed the cocaine, stating that
the cocaine was found in a jacket in a bedroom that officers allege belonged to
20
When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such
as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the
evidence by considering all of the evidence, including evidence the trial court may have erroneously
admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La. App. 5 Cir.
6/28/94), 639 So.2d 828, 834. If the appellate court determines that the evidence was insufficient, then
the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. However, if
the appellate court finds that the totality of the evidence was sufficient to support the defendant’s
conviction, it must then determine whether the trial court erred in admitting the questioned evidence and,
if so, whether the trial court’s error requires a reversal of the conviction or was harmless. State v. Alexis,
98-1145 (La. App. 5 Cir. 6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La. 10/13/00), 770 So.2d 339.
20-KA-137 16
defendant and suggesting that “anyone with access could have put these narcotics
in the jacket.”
Similarly, as to count two, defendant asserts that the methamphetamine was
found in the room allegedly belonging to defendant, but the State failed to prove
that he possessed the narcotics. Defendant argues that the narcotics could have
been placed on the nightstand by anyone who had access to the room. Defendant
points out this was a “small amount of methamphetamine” and that defendant was
charged with possession of methamphetamine rather than possession with intent to
distribute methamphetamine. He suggests that “it makes logical sense that
[defendant] was either selling both narcotics, or neither, and that all of the cocaine
and methamphetamine was for personal use.”
As to count three, defendant asserts that he did not have the intent to damage
police vehicles because he did not know them to be police vehicles when the stop
was initiated.
The standard of review for sufficiency of the evidence challenges is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Under the Jackson standard, a review of a criminal conviction record
for sufficiency of evidence does not require the court to ask whether it believes that
the evidence at trial established guilt beyond a reasonable doubt. Rather, the
reviewing court is required to consider the whole record and determine whether
any rational trier of fact could have found the defendant guilty beyond a reasonable
doubt. State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 19, writ
denied, 13-1115 (La. 10/25/13), 124 So.3d 1096 (citing State v. Jones, 08-20 (La.
App. 5 Cir. 4/15/08), 985 So.2d 234, 240).
20-KA-137 17
The rule as to circumstantial evidence is: 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. Paul, 15-501 (La. App. 5 Cir. 1/27/16), 185
So.3d 188, 198 (citing State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83
(quotation omitted)).
It is the role of the fact-finder to weigh the credibility of the witnesses, and a
reviewing court will not second-guess the credibility determinations of the trier of
fact beyond the sufficiency evaluation under the Jackson standard of review. Id. at
199-200 (citing State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949,
955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S.
981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005)). It is not the function of the appellate
court to assess the credibility of witnesses or re-weigh the evidence. Id. at 200
(citing State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50, 56).
Counts One and Two
Count one, possession with intent to distribute cocaine in violation of La.
R.S. 40:967(A) and count two, possession of methamphetamine weighing less than
two grams in violation of La. R.S. 40:967(C) have a common statutory element.
To prove the offense of possession with intent to distribute cocaine, in violation of
La. R.S. 40:967(A), the State was required to show defendant knowingly and
intentionally possessed cocaine and that he did so with the specific intent to
distribute it. Id. at 199 (citing State v. Haynes, 09-109 (La. App. 5 Cir. 2/9/10), 34
So.3d 325, 337, writ denied, 10-493 (La. 9/24/10), 45 So.3d 1073). To prove the
20-KA-137 18
offense of possession of methamphetamine, the State was required to show that
defendant knowingly and intentionally possessed methamphetamine. See La. R.S.
40:967(C).
Possession of a controlled dangerous substance can be established by actual
physical possession or constructive possession, and the determination of whether
sufficient possession exists to convict is dependent upon the facts of each case.
Paul, 185 So.3d at 198 (citing State v. Major, 03-3522 (La. 12/1/04), 888 So.2d
798, 802). In order to prove constructive possession, the evidence must show
control or dominion over, as well as guilty knowledge of, the contraband. Factors
that may establish control or dominion for purposes of constructive possession
include knowledge that the drugs were in the area, relationship with the person
found to have possession, access to the area where the drugs were found, evidence
of recent drug use, and physical proximity to the contraband. Id. at 200 (citing
State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910, 913; State v. Lewis, 04-
1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, 299, writ denied, 05-2382 (La.
3/31/06), 925 So.2d 1257).
The evidence presented at trial supports the conclusion that defendant had
constructive possession of methamphetamine and cocaine. The State presented
evidence that the bedroom and the closet where the narcotics were discovered
belonged to defendant. Sergeant Garnier testified that two individuals on the scene
advised him that defendant resided in one of the rooms of the residence, and Mr.
Collins testified that defendant’s mother told him which room belonged to
defendant. Mr. Collins also testified that photographs of defendant and items
bearing defendant’s name, such as a high school diploma and multiple pieces of
mail addressed to defendant, were located in the room along with the drugs.
Defendant’s own witness, Ms. Lennix, testified that she saw officers rummaging
around “[i]n Charles’ room.” In addition, the State presented audio of a phone call
20-KA-137 19
between defendant and a female, during which she asked how to turn off the light
in his closet. During the call, defendant described the setup of his closet, which
Detective Wiebelt testified matched the crime scene photos of the closet that
housed the jacket containing cocaine. Therefore, the jury could have found beyond
a reasonable doubt that defendant resided at 2912 Burns Street and had access and
control over the bedroom and closet that contained the seized narcotics.
As to the element of intent to distribute, intent is a condition of mind which
is usually proven by evidence of circumstances from which intent may be inferred.
Id. (citing State v. Hearold, 603 So.2d 731, 735 (La. 1992)). Multiple factors are
to be considered in determining intent: 1) previous attempts to distribute; 2)
whether the drug was in a form consistent with distribution to others; 3) the
amount of the drug; 4) expert or other testimony showing the amount found in the
defendant’s possession to be inconsistent with personal use only; and 5)
paraphernalia evidencing an intent to distribute. Id. This Court has held that these
factors are useful and that the evidence need not fall squarely within them for the
jury to find sufficient evidence of the intent to distribute. Id. (citing State v.
Mosley, 08-1318 (La. App. 5 Cir. 5/12/09), 13 So.3d 705, 711, writ denied, 09-
1316 (La. 03/05/10) 28 So.3d 1002). In the absence of these circumstances from
which an intent to distribute may be inferred, the mere possession of drugs does
not evidence intent to distribute, unless the quantity is so large that no other
inference is possible. State v. Smith, 12-247 (La. App. 5 Cir. 12/11/12), 106 So.3d
1048, 1056.
In this case, the State presented sufficient evidence to support the conclusion
that defendant possessed cocaine with the intent to distribute. The white rock-like
substance seized from the jacket in defendant’s closet, which tested positive for
cocaine, had a net weight of 28 grams. Detective Wiebelt gave expert testimony
28 grams, or one ounce, of crack cocaine was consistent with distribution and
20-KA-137 20
inconsistent with personal use, possibly yielding a profit somewhere between three
thousand dollars and twelve thousand dollars. Detective Wiebelt also indicated
that he had never seen a user possess twenty-eight grams of crack cocaine, and he
stated that his opinion was that “the weight alone in this case . . . is possession
with the intent do [sic] distribute and solely possession with intent to distribute.”
Detective Weibelt also indicated that the plastic baggies and razor blades
located in the bathroom, which could only be accessed through defendant’s
bedroom, were the type of paraphernalia commonly associated with distribution.
He indicated that a dealer would use a knife, fingernail, or razor blade to cut up the
one-ounce quantity of crack cocaine, and he testified that a dealer will have
baggies. Considering the whole record, we find that any rational trier of fact could
have found the defendant guilty of possession with intent to distribute cocaine and
possession of methamphetamine beyond a reasonable doubt.
The State also presented evidence that defendant pled guilty to possession
with intent to distribute cocaine and possession with intent to distribute marijuana
in 2002. The facts and circumstances of the 2002 arrest were similar to the instant
matter. Lieutenant Renton testified that in the previous investigation, 17 grams of
crack cocaine and 17.8 grams of marijuana were found in a closet containing
men’s clothing during a search of defendant’s residence at 2924 Burns Street. In
addition, officers seized paraphernalia consisting of a box of Glad clear bags and
several plastic bags with the corner cut off. The Louisiana Supreme Court opined
in Hearold, that the amount of drugs seized from the defendant was insufficient, on
its own, to convict the defendant of possession with intent to distribute, but when
combined with evidence of prior drug distribution, “could provide a basis for a
rational trier of fact to conclude beyond a reasonable doubt that defendant intended
to distribute.” 603 So.2d at 736.
20-KA-137 21
In this case, the evidence was sufficient for the jury to find that the
defendant knowingly possessed both the cocaine that was found in a jacket in his
closet and the methamphetamine that was located on the nightstand in his
bedroom. Furthermore, the jury accepted Detective Wiebelt’s testimony that the
quantity of crack cocaine seized, was consistent with possession with intent to
distribute. It is not the function of the appellate court to assess the credibility of
witnesses or re-weigh the evidence. Kenner, 106 So.3d at 1088. Additionally, the
presence of plastic bags and razorblades in the adjoining bathroom, which
Detective Wiebelt testified was indicative of distribution, and the evidence of
defendant’s prior convictions for possession with intent to distribute cocaine and
possession with intent to distribute marijuana, lead to the conclusion that the
evidence was sufficient for the jury to find that defendant possessed the one-ounce
quantity of crack cocaine with the specific intent to distribute it.
Count Three
As to count three, aggravated criminal damage to property in violation of La.
R.S. 14:55, defendant challenges the sufficiency of the evidence for an offense for
which he was not convicted. While both defendant and the State present
arguments relative to the sufficiency of the evidence for a conviction of aggravated
criminal damage to property, and the State incorrectly asserted in its brief that
defendant was found guilty as charged as to each count charged in the bill of
information, Defendant was actually convicted of simple criminal damage to
property where the damage amounted to $1,000 but less than $50,000.21
21
Pursuant to Louisiana Code of Criminal Procedure art. 814(42), a verdict of guilty of simple criminal
damage to property where the damage amounted to $1,000 or more, but less than $50,000 is responsive to
aggravated criminal damage to property if the words “belonging to another and with damage amounting
to ___ dollars are included in the indictment.” Thus, because the amended bill of information in this case
asserted that defendant committed aggravated criminal damage to property “belonging to the JPSO where
the damage amounted to $1,000 or more but less than $50,000,” the verdict returned by the jury was a
responsive verdict pursuant to Code of Criminal Procedure art. 814.
20-KA-137 22
However, because the double jeopardy clause of the Fifth Amendment
requires an acquittal in the event that a reviewing court finds no evidence of the
crime charged or an essential element thereof, when sufficiency of the evidence is
raised, reviewing courts will consider the merits of those claims. See State v.
Peoples, 383 So.2d 1006, 1008 (La. 1980) (citing State v. Bowen, 376 So.2d 147(La.1979)); State v. Raymo, 419 So.2d 858, 861 (La. 1982). The record does not
indicate that either party objected to the responsive verdict of simple criminal
damage to property where the damage amounted to $1,000 but less than $50,000.
If the defendant does not enter an objection (at a time when the trial judge can
correct the error), and the jury returns a statutorily responsive verdict to the offense
charged, the reviewing court will uphold the verdict, even if the evidence presented
is insufficient to prove the responsive offense, as long as the evidence is sufficient
for a conviction of the offense charged. See State ex rel. Elaire v. Blackburn, 424
So.2d 246, 252 (La. 1982), cert. denied, 461 U.S. 959, 10 S.Ct. 2432, 77 L.Ed.2d
1318 (1983); State v. Taylor, 2014-0432, (La. 3/17/15), 166 So.3d 988, 996.
Likewise, when the evidence, viewed in a light most favorable to the State, does
not support a conviction for the charged offense, but does support a conviction for
a lesser included responsive offense, the reviewing court may render a judgment of
conviction on the lesser included responsive offense, rather than granting an
acquittal. La. C.Cr.P. art. 821(E); State v. Harveston, 389 So.2d 63, 64-65 (La.
1980). Therefore, defendant’s conviction in this case will stand as long as the
evidence is sufficient to support either the charged offense or the lessor-included
responsive verdict returned by the jury.
Louisiana Revised Statutes 14:55 defines aggravated criminal damage to
property as “the intentional damaging of any structure, watercraft, or movable,
wherein it is foreseeable that human life might be endangered, by any means other
than fire or explosion.” A conviction for aggravated criminal damage to property
20-KA-137 23
does not require a showing of specific intent; rather, the State must only show
general intent, that is, that the defendant “voluntarily did the act.” State v.
Bradstreet, 16-80 (La. App. 5 Cir. 6/30/16), 196 So.3d 876, 887, writ denied, 16-
1567 (La. 6/5/17), 220 So.3d 752 (citing State v. Brumfield, 329 So.2d 181, 190
(La. 1976)). Simple criminal damage to property is the intentional damaging of
any property of another, without the consent of the owner, and except as provided
in R.S. 14:55, by any means other than fire or explosion.” La. R.S. 14:56. To
support a conviction for simple criminal damage to property, the state must prove
an intentional damaging of another's property. State v. Barnes, 496 So.2d 1056(La. App. 4th Cir.1986). An essential element of the crime of simple criminal
damage to property is that the damage was done without the consent of the owner.
State v. Shaw, 37,168 (La. App. 2 Cir. 6/25/03), 850 So.2d 868, 875 (citing State v.
Perry, 408 So.2d 1358 (La. 1982)).
In State v. Shaw, intentionally causing a vehicle collision constituted
aggravated criminal damage to property when the danger to human life was
apparent. 939 So.2d at 524; See State v. Bates, 37,282 (La. App. 2 Cir. 10/16/03),
859 So.2d 841, 849 writ denied, 04-0141 (La. 5/21/04), 874 So.2d 173. In State v.
Apodaca, when the defendant fired a shotgun into the driver's sides of two
occupied police units, the Louisiana Second Circuit found, "The endangerment of
the lives of the officers was foreseeable, regardless of the low caliber of weapon
used by Apodaca." 50,113 (La. App. 2 Cir. 9/30/15); 180 So.3d 465, 471–72.
In State v. Dawson, 18-257 (La. App. 1 Cir. 9/21/18), 2018 WL 4520104,
the trial court granted defendant’s motion for post-verdict judgment of acquittal,
finding that the evidence was insufficient to support the conviction of aggravated
criminal damage to property because there was a lack of evidence that it was
foreseeable that human life might be endangered. In that case, the defendant
admitted to officers that she chased the victim’s car and ran into it. The victim
20-KA-137 24
testified that the defendant’s vehicle came at her head-on as she drove at a speed of
about ten miles per hour in reverse. Then the victim slowed down or stopped and
the defendant “slowed down just a bit before the contact,” but the victim testified
that it appeared that the defendant intentionally hit her. The trial court suggested
that the victim stopped suddenly, and the defendant skidded into the victim’s car
after hitting her brakes, adding that it could almost be argued that it was
negligence. Id. at *4. On appeal, however, the First Circuit could not say the
jury’s determination was irrational under the facts and circumstances presented to
them. The court found that the trial court erred by substituting its appreciation of
the evidence and credibility of witnesses for that of the trier of fact and overturning
a verdict on the basis of an exculpatory hypothesis of innocence presented to, and
rationally rejected by, the jury. Id.
Likewise, in State v. Williamson, 09-1299 (La. App. 1 Cir. 12/23/09), 2009
WL 4981333, at *3, the First Circuit found that the evidence was sufficient to
support a conviction of aggravated criminal damage to property because the “State
had to prove only that it was foreseeable that human life might be endangered,”
and the jury could rationally conclude that the victim’s life was endangered when
the defendant intentionally rammed his truck into her driver’s side, knowing that
she was sitting in the driver’s seat. (emphasis in original).
In the instant case, Mr. Collins testified that while driving a SWAT vehicle,
he approached defendant’s stopped vehicle from the rear. According to Mr.
Collins, defendant put his vehicle in reverse, hit the gas, and impacted the vehicle
driven by Mr. Collins. Mr. Collins testified that the impact caused his airbags to
deploy and that due to the impact, the engine compartment of his vehicle caught on
fire. Due to the fact that the fire department deemed it unsafe to put out the fire
until ammunition in the vehicle “finished cooking off,” the vehicle was completely
burned and was a total loss. According to Mr. Collins and documentation
20-KA-137 25
introduced into evidence, the value of the vehicle was estimated to be $20,950.
Ms. Lennix provided a contradictory account of the incident. She testified that
defendant did not put his vehicle in reverse, and she maintained that the police
rammed into the back of defendant’s parked vehicle.
In this matter, the jury accepted Mr. Collins’s testimony and rejected the
testimony of Ms. Lennix. The jury also found the State presented sufficient
evidence that defendant intentionally damaged the vehicle driven by Mr. Collins
and that it was foreseeable that human life might be endangered. It is not this
Court’s function to assess the witnesses’ credibility or re-weigh the evidence. See
State v. Contreras, 17-0735 (La. App. 4 Cir. 5/30/18), 247 So.3d 858, 866, writ
denied, 18-1172 (La. 12/17/18), 259 So.3d 341 (If there is more than one
reasonable interpretation of the evidence, the rational view of all the evidence most
favorable to the prosecution must be adopted.); Taylor, 166 So.3d at 993 (citing
State v. Captville, 448 So.2d 676, 680 (La. 1984)(In cases involving circumstantial
evidence, when “the jury reasonably rejects the hypothesis of innocence presented
by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is
another hypothesis which raises a reasonable doubt.”).
In light of the evidence that defendant reversed his vehicle into the unit
driven by Mr. Collins with enough force to deploy airbags and cause an engine
fire,22 we find that any rational trier of fact could have found the defendant guilty
of aggravated criminal damage to property beyond a reasonable doubt.
Furthermore, we find the evidence was sufficient to support defendant’s
conviction of the lesser included offense of simple criminal damage to property
where the damage amounted to $1,000 but less than $50,000, as there was no
evidence that JPSO consented to the damage, and the lack of consent is easily
22
There was testimony of damage to the front end of Mr. Collins’ vehicle separate and apart from the fire,
and the damage in this case was caused “by means other than fire or explosives,” namely, a car crash.
20-KA-137 26
inferred from the circumstances of this case. See State v. Perry, 408 So.2d 1358,
1363 (La. 1982) (“lack of consent of an owner to malicious vandalism of an
owner's property can often be inferred circumstantially from the evidence
presented”); See Taylor, 166 So.3d at 996 (since the evidence was sufficient to
support a verdict for the charged offense, the evidence was sufficient to support a
verdict for the lesser-included offense).
As the record contains sufficient evidence to support defendant’s convictions
of possession with intent to distribute cocaine, possession of methamphetamine,
and simple criminal damage to property where the damage amounted to $1,000 but
less than $50,000, we now consider defendant’s assignments of trial error. See id.(citing State v. Hearold, 603 So.2d 731, 734 (La.1992)).
Assignment of Error Number One
The Trial Court Erred When it Denied Defendant’s Motion for New Trial Because
it Allowed Testimony That Under Louisiana Law Called for a Mistrial or
Admonishment of The Jury, Yet the Trial Court Did Neither.
Defendant alleges that the State’s expert witness, Detective Wiebelt, gave an
opinion on guilt or innocence of the accused in violation of Louisiana Code of
Evidence art. 704, when Detective Wiebelt responded to questioning by the State,
“that in his expert opinion, [defendant] was possessing the cocaine with the sole
intent to distribute it.” Defendant asserts that Code of Criminal Procedure art. 771
gives the trial court the options of either admonishing the jury or declaring a
mistrial but contends that “[a]fter contemporaneous objection and request for
mistrial, the trial court did neither.” Defendant asserts that Detective Wiebelt’s
testimony was prejudicial to defendant and violated defendant’s rights to a fair trial
and to due process.
Louisiana Code of Evidence art. 704 provides that “... in a criminal case, an
expert witness shall not express an opinion as to the guilt or innocence of the
accused.” This prohibition applies even if the opinion is solicited through the
20-KA-137 27
presentation of a hypothetical situation. State v. Johnson, 10-209 (La. App. 5 Cir.
10/12/10), 52 So.3d 110, 124 (citing State v. Deal, 00-434 (La. 11/28/01), 802
So.2d 1254, 1261, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42(2002)). When a witness makes an irrelevant remark that might prejudice the
defendant, Code of Criminal Procedure art. 771 gives the trial court the option to
either admonish the jury or, if an admonition does not appear to be sufficient, to
declare a mistrial. Id. at 124 (citing State v. Ducre, 01-2778 (La. 9/13/02), 827
So.2d 1120 (per curiam)). Mistrial is a drastic remedy, which should be used only
upon a clear showing of prejudice by the defendant; a mere possibility of prejudice
is not sufficient. Id. A trial judge has broad discretion in determining whether
conduct is so prejudicial as to deprive an accused of a fair trial. Id.The State contends that defendant’s general objection at trial was
insufficient to preserve this issue on appeal because he failed to provide grounds
for the objection. Defendant acknowledges that the grounds for defense counsel’s
objection and motion for mistrial were “not clear from the transcript due to the
objection discussion being held at the bench,” but he asserts that it is clear from the
defense’s motion for new trial and the court minutes. During trial, when Detective
Wiebelt offered his opinion that defendant was possessing cocaine with the sole
intent to distribute it, defense counsel stated, “Objection, Your Honor. May we
approach?” A bench conference was held off the record, and when the trial court
went back on record, the State immediately tendered the witness. The discussion
regarding the grounds for the objection was not placed on the record; the trial
minutes simply indicate that the bench conference was held “pursuant to expert
witness making a statement of the case.” However, the minute entry reflects that
defense counsel moved for a mistrial, which was denied.
Louisiana Code of Criminal Procedure art. 841(A) provides that an error
cannot be availed of after a verdict unless it was objected to at the time of the
20-KA-137 28
occurrence. In order to seek appellate review of an alleged trial error, a party must
make a contemporaneous objection at trial, and he must state the grounds for the
objection. La. C.Cr.P. art. 841; see also State v. Harris, 17-303 (La. App. 5 Cir.
12/20/17), 235 So.3d 1354, 1372, writ denied, 18-160 (La. 6/15/18), 257 So.3d 675(citing State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12, 103 So.3d 608, 613-14,
writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030). A defendant is limited on
appeal to matters to which an objection was made but also to the grounds for his
objection articulated at trial. State v. McGowan, 16-130 (La. App. 5 Cir. 8/10/16),
199 So.3d 1156, 1161 (citing State v. Jackson, 450 So.2d 621 (La. 1984); State v.
Baker, 582 So.2d 1320 (La. App. 4th Cir. 1991), writ denied, 590 So.2d 1197 (La.
1992), cert. denied, 506 U.S. 818, 113 S.Ct. 62, 121 L.Ed.2d 30 (1992)). An
objection made after the evidence is before the jury is too late. State v. Snyder, 12-
896 (La. App. 5 Cir. 10/9/13), 128 So.3d 370, 376, writ denied, 13-2647 (La.
4/25/14), 138 So.3d 643. The contemporaneous objection rule is also applied to
motions for mistrials. Id. (citing State v. Smith, 11-638 (La. App. 5 Cir. 3/13/12),
90 So.3d 1114, 1123).
The lack of recording of arguments heard at the bench, alone, is not error.23
Rather, it is the court’s ability to review and the demonstration of prejudice that are
at issue. State v. Vincent, 07-239 (La. App. 5 Cir. 12/27/07), 978 So.2d 967, 974.
In State v. Bennett, 591 So.2d 783 (La. App. 4th Cir. 1991), the defendant argued
that the trial court erred in denying his motion for mistrial, which was made when
the State referred to the defendant’s post-arrest silence. The record indicated that
defense counsel asked to approach the bench, and a bench conference was held.
Cross-examination of the defendant resumed without reference to what transpired
23
Neither Code of Criminal Procedure art. 843 nor Article I, §19 of the Louisiana Constitution requires
recordation of bench conferences, and the Louisiana Supreme Court has not articulated such rule. State v.
Vincent, 07-239 (La. App. 5 Cir. 12/27/07), 978 So.2d 967, 974.
20-KA-137 29
during the bench conference, and no further questions were posed regarding the
defendant’s post-arrest silence. The minute entry stated that “out of the presence
of the jury, all objections as noted by defense.” Id. at 786. The Fourth Circuit
Court held that because the record did not include a motion for mistrial, a request
for admonishment, or a specific objection to the question regarding the defendant’s
post-arrest silence, the defendant waived his right to raise the issue on appeal. Id.
at 787-88.
The Bennett court relied in part on State v. Grant, 531 So.2d 1121 (La. App.
4th Cir. 1988), writ denied, 567 So.2d 1117 (La. 1990). In that case, the defense
objected to a question by the prosecutor and a motion was made inside the judge’s
chambers. Upon returning from her chambers, the trial judge admonished the jury
to disregard the last question. There was no indication that the defense requested
and was denied a mistrial. The Fourth Circuit stated, “When a defendant objects to
improper remarks and the objection is overruled, the defendant is not required to
move for an admonition or a mistrial to preserve his rights on appeal.” Id. at 1123
(citing State v. Baylis, 388 So.2d 713 (La.1980)). However, “When a defendant's
objection is sustained . . . there is no reason defendant should not be required to
request an admonition or mistrial, if he wants one.” Id. The court found that the
defendant could not complain of any alleged error on appeal where the record was
“deficient in revealing the grounds for objection, whether any request for relief was
made, and the court’s ruling concerning defense counsel’s objection.” Id. The
court further stated that the appellate record apparently showed that the trial court
sustained the defense’s objection and granted his request for admonition. Id.Unlike the record in either Grant or Bennett, the minute entry in this case,
stating that the topic of the bench conference following defendant’s objection was
the “expert witness making a statement of the case” provides some insight into the
basis of the objection. Further, although the motion for mistrial was apparently
20-KA-137 30
made at the bench as well, the fact that it was made and denied is recorded in the
minutes. Nevertheless, even assuming that defendant properly preserved the issue
for appeal, we find that defendant is not entitled to relief.
In Johnson, this Court found that the prosecutor’s hypothetical, tracking the
specific facts of the case, caused the expert witness to come “too close to
commenting on the ultimate issue of guilt,” in violation of Code of Evidence art.
704. 52 So.3d at 125. In the instant case, Detective Wiebelt offered a direct
opinion on the ultimate issue of defendant’s guilt by stating, “My expert opinion,
based on all of the facts and circumstances in this case, is that Mr. Lane was
possessing the cocaine with the sole intent to distribute it.” The fact that the expert
did not specifically use the word “guilty” or “innocent” does not prevent the
finding that the opinion usurped the jury’s function as the ultimate fact finder.
However, the finding of error does not terminate the discussion.
Admonishment or mistrial are the appropriate remedies for irrelevant remarks such
as these that may prejudice the defendant. Id. Defendant assigns error to the fact
that the trial court failed to issue an admonition to the jury and also failed to grant
defense’s motion for mistrial. However, the record does not reflect that an
admonition was requested, as required by Code of Criminal Procedure art. 771.
The trial judge’s failure to admonish the jury to disregard a prejudicial comment,
absent a request, was not, in itself, reversible error. See State v. Tribbet, 415 So.2d
182, 185 (La. 1982).
The defendant did move for a mistrial and was denied. The Louisiana
Supreme Court has held that error resulting from the improper admission of an
expert’s opinion concerning the ultimate issue of a defendant’s guilt is subject to a
harmless error analysis. See State v. Code, 627 So.2d 1373, 1384 (La. 1993), cert.
denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). The proper
analysis for determining harmless error is “not whether, in a trial that occurred
20-KA-137 31
without the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable to the
error.” Johnson, 52 So.3d at 125 n.7.
In Johnson, despite the finding that the expert came too close to opining on
the ultimate issue of guilt, this Court found that the trial court did not abuse its
discretion in refusing to grant a mistrial because it was unclear how the expert
witness’s testimony prejudiced the defendant. This Court considered the fact that
prior to deliberations, the trial judge instructed the jury on the law regarding expert
witnesses and the jurors’ role as the “sole judges of the law and the facts on the
question of guilt or innocence.” This Court indicated that the trial judge’s
instructions were sufficient to counteract any influence caused by the officer’s
testimony. Id. at 125, 127. Further, despite the officer’s testimony, this Court
found that the corroborated tip, the amount of cocaine found on the defendant and
at his home, and the manner in which it was packaged provided substantial
evidence of the defendant’s guilt. Thus, this Court concluded that the officer’s
comments were not so prejudicial as to warrant a mistrial. Id. at 27. See also State
v. Gross, 14-110 (La. App. 5 Cir. 6/24/14), 145 So.3d 521, writ denied, 14-1516
(La. 2/27/15), 159 So.3d 1065).
Despite Detective Wiebelt’s testimony that defendant possessed the cocaine
with the sole intent to distribute it, the State provided substantial evidence of
defendant’s guilt. According to the testimony of State’s witnesses, a CI provided
information that defendant was distributing narcotics and that defendant would
arrive at a Super 8 Motel in a dark-colored Tahoe at approximately 1:00 a.m. on
April 12, 2018, to deliver seven grams of cocaine. Defendant arrived at the motel
at the expected time and in the described vehicle whereupon officers attempted an
investigatory stop, causing defendant to flee the scene, leading officers on a high-
speed pursuit. Although cocaine was not found on defendant’s person or located in
20-KA-137 32
his vehicle at the time of his arrest, twenty-eight grams of crack cocaine, along
with razor blades and plastic bags, were seized from within defendant’s residence
pursuant to a search warrant. Mr. Collins and Detective Wiebelt provided
testimony that razor blades and plastic bags are drug paraphernalia commonly
associated with drug distribution as opposed to merely possession. The State also
presented Detective Wiebelt’s expert testimony regarding the increments in which
crack cocaine is broken down for sale, the sale value per one-tenth of a gram, and
the profit margin on twenty-eight grams of crack cocaine. Prior to opining on the
ultimate issue, Detective Wiebelt had testified, without objection from defense
counsel, that “the weight alone in this case, I believe is possession with the intent
do [sic] distribute and solely possession with intent to distribute.” Finally, the
State presented evidence that defendant had previously pled guilty to possession
with intent to distribute cocaine and possession with intent to distribute marijuana.
See Hearold, 603 So.2d at 736 (La. 1992) (The combination of prior drug
distribution and the amount of drugs found in the bag can be sufficient to convict a
defendant of possession with intent to distribute.).
Based on the foregoing evidence provided by the State, we find that the trial
court did not err in denying defendant’s motion for mistrial, as any error in
admitting Detective Wiebelt’s testimony relative to the issue of guilt was harmless.
Assignment of Error Number Two
The Trial Court Violated Appellant’s Constitutional Rights and Due Process
Rights by Allowing the Admission of Inadmissible and Prejudicial Evidence.
Defendant’s final assignment of error consists of two parts. First, Defendant
alleges that the trial court erred in admitting 404(B) evidence of his prior
conviction for possession with intent to distribute cocaine, arguing that the
remoteness in time of the conviction, over 16 years ago, rendered its probative
value extremely limited and that the probative value was substantially outweighed
20-KA-137 33
by the danger of unfair prejudice. Defendant suggests the use of this evidence
allowed the State to effectively lower the burden of proof on count one.
At trial, defendant failed to properly preserve this issue for appeal. A
defendant is limited to matters on appeal to which an objection was made and also
to the grounds articulated at trial. McGowan, 199 So.3d at 1161. When a
defendant unsuccessfully seeks to exclude certain evidence at a pre-trial motion,
but at trial agrees to its introduction, he waives his prior objection and loses the
right to present the issue on appeal. State v. Patin, 13-618 (La. App. 5 Cir.
9/24/14), 150 So.3d 435, 443, writ denied, 14-2227 (La. 4/22/16), 191 So.3d 1043(citing State v. Gaal, 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 951, writ
denied, 02-2335 (La. 10/3/03), 855 So.2d 294).
In Patin, this Court found that the defendant waived the issue of “other
crimes evidence,” and did not preserve it for appeal, when the defendant objected
to the pre-trial ruling granting the State’s motion to admit 404(B) evidence but
failed to object at trial to the witnesses’ testimony, cross-examined the witness
regarding the facts and circumstances of the other crimes, and responded “no
objection” to the majority of the evidence admitted and published to the jury
regarding the other crimes. Id.Likewise, in this case, the defendant unsuccessfully sought to exclude
evidence of a prior act through a pre-trial motion, and lodged no objection to
Lieutenant Renton testifying at trial. During cross-examination, the defense asked
Lieutenant Renton questions regarding his involvement with the CI during the
2002 investigation, whether he was present during surveillance of the CI’s
purchase in that investigation, and whether he was able to corroborate the
information submitted to get the search warrant. Furthermore, when the trial court
asked defense counsel whether he had any objection to the State’s introduction of
defendant’s Boykin and minute entry from his prior guilty pleas to possession with
20-KA-137 34
intent to distribute cocaine and possession with intent to distribute marijuana,
defense counsel stated, “No objection, Your Honor.” Defense counsel also voiced
no objection when the State sought to publish the exhibit to the jury. As in Patin,
the defense consented to the admission of evidence of defendant’s prior
convictions.
Defendant’s next argument regarding inadmissible evidence related to the
evidence collected incident to the search of defendant’s home. Defendant
acknowledges that this Court previously considered the admissibility of this
evidence via supervisory writ, State v. Lane, 18-733 (La. App. 5 Cir. 1/22/19)
(unpublished writ disposition), but suggests that additional facts came to light at
trial, which should alter our previous opinion. Specifically, defendant asserts that
Detective Jones testified at trial that NIK testing of the white powder substance
found during his search of defendant yielded a positive result for cocaine; however,
the State’s crime lab witness testified that the substance was not cocaine.
Defendant contends that, absent this substance, the search warrant contained
inaccurate information, the police lacked authority to search the house, and all
evidence seized from that search should have been inadmissible as fruit of the
poisonous tree.
Defendant also requests that this Court reconsider his previously lodged
arguments in light of this new information. Defendant argued that the search of the
house took place before officers obtained the warrant, and therefore, all evidence
seized during the search was inadmissible. In support of his argument, Defendant
pointed to the crime scene photographs of the inside of the house, which were
preceded by a placard with a hand-written time stamp of 1:09 a.m., over an hour
before the warrant was signed by a judge at 2:34 a.m. Further, he pointed out that
the police made a return on the warrant at 2:35 a.m., suggesting that for the officers
20-KA-137 35
to have found the narcotics within one minute of being authorized to search, they
must have known exactly where to look.
On October 11, 2018, after hearing testimony and arguments from counsel,
the trial court denied the motion to suppress evidence without providing reasons.
On January 22, 2019, this Court denied defendant’s writ application and found the
trial court did not abuse its discretion in denying defendant’s motion to suppress
evidence. This Court determined that it appeared that the trial court accepted Mr.
Collins’s testimony that officers did not conduct the search or seize evidence until
after the warrant was authorized. To the extent defendant challenged the officers’
entry into the residence before they obtained the search warrant to perform a
protective sweep, the disposition noted that this Court and the Louisiana Supreme
Court have held that officers may temporarily secure a dwelling to prevent the
removal or destruction of evidence to preserve the status quo while obtaining a
search warrant. State v. Lane, 18-733 (La. App. 5 Cir. 1/22/19 (unpublished writ
disposition).
An appellate court will generally refuse to reconsider its own rulings of law
on a subsequent appeal in the same case. State v. Falcon, 13-849 (La. App. 5 Cir.
3/12/14), 138 So.3d 79, 87-88, writ denied, 14-769 (La. 11/14/14), 152 So.3d 877(citing State v. Pettus, 11-862 (La. App. 5 Cir. 5/22/12), 96 So.3d 1240). The law
of the case doctrine is discretionary. Reconsideration of a prior ruling is warranted
when, in light of a subsequent trial record, it is apparent that the determination was
patently erroneous and produced unjust results. Id. Defendant’s arguments on
appeal are similar to those set forth in his prior writ application, and defendant’s
brief does not allege any new facts or additional jurisprudence that would suggest
that this Court’s previous determination was patently erroneous or created an
unjust result. See State v. Massey, 11-358 (La. App. 5 Cir. 3/27/12), 97 So.3d 13,
15, writ denied, 12-993 (La. 9/21/12), 98 So.3d 332 where this Court applied the
20-KA-137 36
law of the case doctrine to its previous ruling finding that the trial court correctly
denied the defendant’s motion to suppress where the defendant failed to cite any
new facts adduced at trial or additional jurisprudence.
In asserting that additional facts came to light at trial, Defendant specifically
refers to the facts that Detective Jones testified that the white powder located when
he searched defendant, which yielded a positive result for cocaine with a NIK test,
was also tested by the State’s crime lab and did not contain any controlled
dangerous substances. Although the testimony regarding the false positive NIK
test and the crime lab results was first elicited at trial, the suppression hearing
transcript shows that defense counsel was aware of the crime lab results at the time
of the suppression hearing and argued this fact in support of the motion to suppress
stating, “We also have another issue where the suspected cocaine that was
allegedly found on my client tested negative by the Crime Lab, which means he
had BC Powder at best. He had no drugs on him.”24
Since no new evidence or jurisprudence was presented that would alter this
Court’s previous determination, the law of the case doctrine is applicable and we
decline to revisit the suppression issue on appeal.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to Louisiana Code of
Criminal Procedire art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State
v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). We find no errors that require
corrective action.
24
The same transcript was available to this Court attached to the previous writ application. See Uniform
Rules, Court of Appeal – Rule 2-1.14 which states, “[a]ny record lodged in this court may, with leave of
court, be used without necessity of duplication, in any other case on appeal or on writ.”
20-KA-137 37
DECREE
For the aforementioned reasons, we find that the evidence was sufficient to
support Defendant’s convictions on all counts. Finding that all other errors were
either unpreserved or harmless, we affirm Defendant’s convictions and sentences.
AFFIRMED
20-KA-137 38
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
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DECEMBER 23, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-137
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) DAVID F. GREMILLION (APPELLANT)
MAILED
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ATTORNEY AT LAW (APPELLEE)
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