State of Louisiana v. Gary D. Howard

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #026
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 3rd day of May, 2017, are as follows:
PER CURIAM(S):
2015-KO-1404 STATE OF LOUISIANA v. GARY D. HOWARD (Parish of Caddo)
Other than defendant's unsupported allegations regarding coercion
and shows of force, there appears to be nothing showing the court
of appeal erred in its determination that Ms. Stewart consented
to the search. Therefore, the court below correctly affirmed the
conviction.
AFFIRMED.
JOHNSON, C.J., dissents and assigns reasons.
Page 1 of 1
05/03/2017
SUPREME COURT OF LOUISIANA
No. 2015-KO-1404
STATE OF LOUISIANA
VERSUS
GARY D. HOWARD
ON WRIT OF CERTIORARI TO COURT OF APPEAL
SECOND CIRCUIT, PARISH OF CADDO
PER CURIAM
In this matter we consider whether the evidence presented at trial, when
viewed in the light most favorable to the state, reasonably permits a finding that
defendant possessed 18 grams of marijuana with the intent to distribute it. We find
that, while the quantity of marijuana is small, its packaging in conjunction with
other indicia of drug trafficking found nearby, when viewed through the due
process lens of the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979) standard, sufficed to exclude the hypothesis of innocence that the
marijuana was intended only for personal use.
On October 30, 2013, defendant Gary D. Howard was arrested in the home
of his girlfriend Melissa Stewart pursuant to an arrest warrant for violating his
probation and parole. Officers had received a tip that defendant could be found at
that location, which included an allegation that he possessed a firearm and was
involved in narcotics distribution. The officers knocked on the door to the
residence and, when Ms. Stewart answered, asked her where he was. According to
her testimony, she responded that he was in the bedroom. According to an officer’s
testimony, when asked if the officers could “go and get him” pursuant to the arrest
warrant, she responded by mutely stepping aside so that the officers could enter.
The officers found defendant in bed. They also found 11 grams of
marijuana, in four separate bags inside a larger bag tied around the waistband of
his boxer shorts (which were on the floor), another bag containing 7 grams of
marijuana inside the bedroom closet, and a box of sandwich bags sitting on a TV
stand in the bedroom. Also inside the closet, the officers found a gun, some 1x1
jeweler bags, and an empty prescription bottle with a small baggie inside
containing marijuana residue. Defendant was arrested and subsequently charged
with possession with intent to distribute marijuana and with illegal possession of a
weapon while in possession of a controlled dangerous substance. After his motion
to suppress the evidence was denied, he proceeded to trial and a jury found him
guilty as charged of possession of marijuana with intent to distribute, but not guilty
on the weapon charge. The state thereafter filed a fourth-felony habitual offender
bill. Defendant pleaded guilty to being a second-felony offender in exchange for a
term of 18 years imprisonment without benefit of parole, probation, or suspension
of sentence.
The court of appeal affirmed defendant’s conviction and sentence. State v.
Howard, 49,965 (La. App. 2 Cir. 6/24/15), 169 So.3d 777. The court of appeal
found that the multiple bags containing marijuana, which an expert testified was
consistent with having been packaged for distribution, as well as the quantity of
similar empty bags and the absence of any smoking paraphernalia sufficed to
support defendant’s conviction for possession with intent to distribute marijuana.
Id., p. 12, 169 So.3d at 786. After reviewing the record and with the benefit of
briefing and argument, we agree.
“In reviewing the sufficiency of the evidence to support a conviction, an
appellate court in Louisiana is controlled by the standard enunciated by the United
States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) . . . . [T]he appellate court must determine that the evidence,
2
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime had been proved beyond a
reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La. 1984).
Factors which give rise to a reasonable inference of an intent to distribute
include: “(1) whether the defendant ever distributed or attempted to distribute the
drug; (2) whether the drug was in a form usually associated with possession for
distribution to others; (3) whether the amount of drug created an inference of an
intent to distribute; (4) whether expert or other testimony established that the
amount of drug found in the defendant's possession is inconsistent with personal
use only; and (5) whether there was any paraphernalia, such as baggies or scales,
evidencing an intent to distribute.” State v. Hearold, 603 So.2d 731, 735 (La. 1992)
(reciting factors provided in State v. House, 325 So.2d 222, 225 (La. 1975)). Mere
possession of a controlled dangerous substance is not evidence of intent to
distribute that substance unless the quantity is so large that no other inference is
reasonable. State v. Greenway, 422 So.2d 1146, 1148 (La. 1982). However, “while
the amount of drugs may be relevant in evaluating whether the defendant engaged
in possession with the intent to distribute, it is not the determinative factor
statutorily. Ultimately, it is the intent to distribute that must be proved regardless of
the amount of drugs possessed.” State v. Ellis, 14-1511, p. 3 (La. 10/14/15), 179
So.3d 586, 588.
This Court addressed the sufficiency of evidence required to convict a
defendant of possession with intent to distribute marijuana most recently in State v.
Tong, 609 So.2d 822 (La. 1992). In Tong, the defendant and his friend were
stopped for a routine traffic stop when the officer noticed a strong smell of
marijuana emanating from the car. After obtaining a search warrant for the
defendant’s car, the officer recovered two plastic bags containing marijuana, three
empty plastic sandwich bags and a dietetic scale. At trial, the state’s expert
3
conceded that the “reeking smell of marijuana from the car indicated that the
occupants ‘were users,’ and that the small quantity in the bags ‘could be
consistent’ with personal use.” The expert also noted that the dietetic scale was too
crude to measure the marijuana in the individual plastic bags. Id. at 824–825. After
the jury found defendant guilty of possession of marijuana with intent to distribute,
this Court reversed and entered a conviction for simple possession. Id. at 826.
The similarities between the present case and Tong begin and end with the
small quantities of marijuana involved. In contrast with Tong, in which there was
substantial evidence in favor of the hypothesis of innocence, i.e. that the marijuana
was for personal use, there were no such indicia in the present case. Officers here
detected no smell of burnt marijuana and no means of using the marijuana was
found. While defendant proposes there might have been smoking paraphernalia
elsewhere in the residence but not found, a jury cannot be permitted to base its
verdict on speculation; otherwise, they might just as easily speculate that a
substantial quantity of cash, drugs, and a scale were present elsewhere but not
found, and a jury cannot speculate as to a defendant’s guilt. 1
When applied to a case involving circumstantial evidence, such as this, the
Jackson standard requires an appellate court to determine whether viewing the
1 For example, in State v. Lubrano, 563 So.2d 847 (La. 1990), this Court found the evidence
insufficient to prove public payroll fraud because it forced the jury to speculate:
The due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own
appreciation of the evidence for that of the jury. State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983). Nevertheless, “‘the jury cannot be permitted to
speculate if the evidence is such that reasonable jurors must have a reasonable
doubt.’” State v. Mussall, 523 So.2d 1305, 1311 (La.1988) [quoting 2 C. Wright,
Federal Practice & Procedure, Criminal 2d § 467 (2d ed. 1982)]. While the state’s
case invited the jury to speculate on defendant’s guilt, we think that a rational,
pro-prosecution trier of fact would necessarily entertain a reasonable doubt as to
the reliability of the movie time cards. With no other independent evidence
indicating that the defendant’s particular time cards were in fact accurate, a
rational fact-finder could not reasonably reject the possibility that the defendant
worked those hours on different days or that he simply took advantage of the
chaotic conditions on the movie set to claim hours that he actually spent walking
his beat in the French Quarter.
Lubrano, 563 So.2d at 850.
4
evidence in the light most favorable to the prosecution, a rational trier of fact
would have concluded beyond a reasonable doubt that every reasonable hypothesis
of innocence had been excluded. State v. Morris, 414 So.2d 320, 321–22 (La.
1983); R.S. 15:438; see also State v. Captville, 448 So.2d 676, 680 (La. 1984)
(when fact finder reasonably rejects hypothesis of innocence offered by the
defendant, that hypothesis fails and the defendant is guilty unless another
hypothesis of innocence is suggested by the record that would cause rational fact
finder to have a reasonable doubt as to the defendant’s guilt).
Defendant offers two hypotheses of innocence. The first can quickly be
dismissed. Defendant claims he divided 11 grams of marijuana into four separate
bags, and then placed those inside one larger bag, which he tied around the waist
band of his boxer shorts, all in an effort to decrease the chance of it being
discovered in a pat-down search. However, the arresting officer testified that
marijuana packaged and concealed in this form would “more than likely” be
detected in a pat-down search, and the officer further opined that whether packaged
as here or simply left in one bag, it would not have affected the outcome of any
search.2 In the absence of any evidence this tactic would stand any chance of
rendering the marijuana less likely to be found in a pat-down, this hypothesis is not
so reasonable “that no rational factfinder, if properly instructed on the principles of
2
Mr. Andes: If those same 11 grams had been all in one bag in my client’s front
pocket, would you have likely discovered them during a pat-down search?”
Corporal Anderson: More than likely.
Mr. Andes: More than likely? Now if those same 11 grams, back to how you
found them in four separate bags like that, would that have made it more difficult
or easier to discover during a pat-down search?
Corporal Anderson: It’s still all packaged together. It would have been the same
way.
Tr., p. 212.
5
circumstantial evidence, could have found proof of guilt beyond a reasonable
doubt.” State v. Davis, 559 So.2d 114 (La.1990) (per curiam).
Defendant’s second, and more reasonable, hypothesis of innocence is that he
purchased the 11 grams of marijuana for personal use just as it was found,
individually packaged in four bags, roughly equal in weight, and contained within
the larger bag. This hypothesis, however, fails to account for the large quantity of
similar plastic bags found in the bedroom with him, 3 or the firearm in the closet of
the bedroom in which defendant was evidently comfortable (and in a residence for
which he had a key), or why the marijuana was concealed in the manner it was
within the boxer shorts, or the absence of any indication of marijuana use such as
smoking paraphernalia, or the testimony of a law enforcement officer who
qualified as an expert and testified that the foregoing was all more consistent with
distribution rather than personal use. A reasonable alternative hypothesis is not one
that merely “could explain the events in an exculpatory fashion,” but one that, after
viewing all of the evidence in a light most favorable to the prosecution, “is
sufficiently reasonable that a rational juror could not ‘have found proof of guilt
beyond a reasonable doubt.’” State v. Captville, 448 S0.2d 676, 680 (quoting
Jackson v. Virginia). Here, defendant’s hypothesis of innocence, that the drugs
were for personal use, when all of the evidence is viewed in the light most
favorable to the prosecution, is not so reasonable that a rational juror could not
3
Corporal Anderson: These are the sandwich bags right here, the ones in the box,
the Family Value ones.
State: Those Family Value bags, were they consistent with the way the marijuana
was wrapped—
Corporal Anderson: Yes, ma’am.
State: —same bags? They were?
Corporal Anderson: Yes ma’am.
Tr., pp. 204–205.
6
have found proof beyond a reasonable doubt that defendant possessed the
marijuana with the intent to distribute it rather than use it.
After finding the evidence sufficient, we also briefly address defendant’s
contention that the district court erred in denying his motion to suppress the
evidence. The court of appeal found that the trial court correctly denied this motion
to suppress, finding that Ms. Stewart consented to the officers’ entry to her home
and the bedroom in which defendant was apprehended, and in which defendant had
no reasonable expectation of privacy. 4 Howard, 49,965, pp. 17–18, 169 So.3d at
789. We agree.
A search warrant must be obtained, absent exigent circumstances or consent,
to enter the house of a third party to search for the subject of an arrest warrant.
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981);
State v. Wolfe, 398 So.2d 1117 (La.1981). However, in State v. Barrett, 408 So.2d
903 (La. 1981), this Court declined to extend the exclusionary rule to evidence
obtained from a warrantless, non-consensual entry into a home of a third party
when exigent circumstances did not exist because, finding under those
circumstances that defendant lacked standing to challenge the legality of the
search. Defendant here asks us to overrule Barrett. 5 However, because the court of
4 It appears that the district court may have granted the motion to suppress on different grounds
than those endorsed by the court of appeal. That is of no moment. This Court has found that,
while “a new basis for an objection may not be urged for the first time on appeal . . . [that] rule
does not, however, preclude the proponent of a ruling on a motion to suppress from offering
additional reasons for sustaining the result on review that do not require going outside of the
record in the trial court.” State v. Butler, 12-2359, p. 4 (La. 5/17/13), 117 So.3d 87, 89; see also
La.C.C.P. art. 2133(B) (“A party who does not seek modification, revision, or reversal of a
judgment in an appellate court, including the supreme court, may assert, in support of the
judgment, any argument supported by the record, although he has not appealed, answered the
appeal, or applied for supervisory writs.”).
5 Under La. Const. art. I, § 5, any person adversely affected by a search or seizure allegedly
conducted in violation of Article I, § 5, has standing to raise that illegality. Thus, there is no
equivalent under Louisiana constitutional law to the federal rule that one may not raise the
violation of a third person’s Fourth Amendment rights. State v. Hamilton, 572 So.2d 269, 272
n.1 (La. App. 1 Cir. 1990), writ denied, 578 So.2d 929 (La. 1991). This court framed the issue in
Barrett as follows:
7
appeal’s determination appears correct that Ms. Stewart consented to the officers’
entry without being coerced into doing so, it is not necessary to reach the issue of
whether defendant has standing to challenge the legality of the search.
The prohibition against warrantless searches does not apply to a search that
is conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S.Ct. 2041, 2043–44, 36 L.Ed.2d 854 (1973).6 To be valid, consent must
However, in [Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d
38 (1981)] and [State v. Wolfe, 398 So.2d 1117 (La.1981)], the constitutional
challenge was asserted by the third party whose house had been entered without a
search warrant and not by the subject of the arrest warrant. Such is not the case
here. Condriff (third party) is not claiming that his constitutional right to be secure
in his house against an unreasonable search has been violated. Rather, defendant,
the subject of the arrest warrant, is claiming that since he was “adversely
affected” by the entry into Condriff’s house in violation of Condriff’s
constitutional rights, he (defendant) has standing to raise its illegality. Defendant
relies on La.Const. art. 1, § 5 (1974) as interpreted by this court.
Therefore, the narrow issue presented for our determination is whether, within the
meaning and purpose of our constitutional provision, the subject of an arrest
warrant in the house of a third person where entry was accomplished without a
search warrant or exigent circumstances or consent, was “adversely affected” so
as to require suppression of evidence seized incidental to his lawful arrest. We
think not.
State v. Barrett, 408 So.2d 903, 905 (La. 1981) (citations omitted). The court then reasoned as
follows:
Had defendant been arrested in his own home, under [Payton v. United States,
445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)], the arrest warrant would
have been adequate to safeguard his constitutional rights. Hence, if we were to
agree with defendant’s contention, the result would be that he would enjoy greater
protection against “unreasonable searches, seizures, or invasions of privacy” in
the house of a third party than in his own home. On the other hand, we recognize
that but for the fact of defendant’s presence in Condriff’s house, he would not
have been arrested and evidence seized from his person. Nonetheless, we are not
prepared to say that, within the meaning and purpose of our constitutional
provision, defendant was “adversely affected” by the illegal entry into Condriff’s
house so as to require suppression of the evidence seized from his person. We do
not consider that the previously issued valid arrest warrant was affected by the
illegal entry into Condriff’s house. Nor did it affect the search of defendant made
as an incident to that arrest within the area of his immediate control. Hence, the
trial judge properly denied defendant’s motion to suppress.
Barrett, 408 So.2d at 905.
6 Schneckloth v. Bustamonte is the landmark case in the area of consent search. In Schneckloth,
the Supreme Court set out the requirements for a “voluntary” consent. The Court applied the
“voluntariness” standard used for purposes of determining the validity of confessions under the
fourteenth amendment. See, e.g., Blackburn v. State of Ala., 361 U.S. 199, 80 S.Ct. 274, 4
L.Ed.2d 242 (1960); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037(1961); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). The
Court decided that whether consent was voluntary or the product of express or implied coercion
must be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 223–24, 93
8
be (1) free and voluntary, in circumstances that indicate the consent was not the
product of coercion, threat, promise, pressure or duress that would negate the
voluntariness; and (2) given by someone with apparent authority to grant consent,
such that the police officer reasonably believes the person has the authority to grant
consent to search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39
L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684(1969).
Although defendant alleges numerous coercive elements, none are borne out
by the record. Instead, the record reflects that the officers asked whether defendant
was present in the residence, Ms. Stewart indicated that he was in the bedroom,
and she stepped back to allow them to enter. 7 Other than defendant’s unsupported
allegations regarding coercion and shows of force, there appears to be nothing
showing the court of appeal erred in its determination that Ms. Stewart consented
to the search.8 Therefore, the court below correctly affirmed the conviction.
S.Ct. at 2045–46. The state need not demonstrate that the individual understood his right to
refuse consent. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047. Knowledge of the right to refuse
consent is but one factor in determining the “voluntariness” of consent, and no single factor is
controlling.
7 For example, Ms. Stewart testified on cross-examination as follows:
State: Did you ever tell the officers that they couldn’t come in your
home?
Ms. Stewart: No I didn’t.
State: Did you ever tell the officers that they could not search your
home?
Ms. Stewart: No, I did not.
...
State: Did you allow them to come in and look for Gary?
Ms. Stewart: Yeah. I told them he was in the bedroom.
Tr., pp. 162, 163.
8Although just two intermediate state circuit courts have previously found that a gesture may be
sufficient to convey valid consent to search, State v. Howard, 37,580, pp. 8–9 (La. App. 2 Cir.
9/24/03), 855 So.2d 881, 887; State v. Brown, 598 So.2d 565, 572–573 (La. App. 4 Cir.), writ
9
AFFIRMED
denied, 605 So.2d 1092 (La. 1992), the federal circuits have generally found that consent to a
search may be in the form of words, gesture, or conduct. See, e.g., United States v. Lopez-
Carillo, 536 Fed.Appx. 762, 769 (10th Cir. 2013); United States v. Carter, 378 F.3d 584, 587
(6th Cir. 2004); United States v. Jones, 254 F.3d 692, 695–696 (8th Cir. 2001); United States v.
Griffin, 530 F.2d 739, 742 (7th Cir. 1976); Robbins v. MacKenzie, 364 F.2d 45, 48-49 (1st Cir.
1966), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966).
10
05/03/2017
SUPREME COURT OF LOUISIANA
No. 2015-KO-1404
STATE OF LOUISIANA
VERSUS
GARY D. HOWARD
ON WRIT OF CERTIORARI TO COURT OF APPEAL
SECOND CIRCUIT, PARISH OF CADDO
JOHNSON, C.J., dissents in part and assigns reasons.
I find it outrageous that defendant’s conviction of possession of marijuana
with intent to distribute, and sentence of 18 years imprisonment without benefit of
parole, probation, or suspension of sentence, resulting from the discovery of a mere
18 grams of marijuana, will be allowed to stand. Considering the rapidly relaxing
social attitudes toward the use of marijuana, the increasing number of states whose
voters have approved the recreational use of marijuana,1 and changing laws (even
in Louisiana)2 providing more lenient penalties relative to marijuana possession,
the result of this case is even more ridiculous. By odd “coincidence,” defendant
was sentenced to 18 years in prison – exactly one year per gram of marijuana – a
fact suggesting defendant’s sentence was arbitrary rather than the result of careful
consideration of the appropriate sentencing factors. As a practical matter, in light
of the inconsequential amount of marijuana found, imprisoning defendant for this
extreme length of time at a cost of about $23,000 per year (costing our state over
1 Twenty-six states and the District of Columbia currently have laws legalizing marijuana in
some form. Recreational use of marijuana has been legalized in California, Massachusetts,
Maine, Nevada, Colorado, Washington, Oregon, Alaska and Washington D.C.
2 In 2015, the legislature amended La. R.S. 40:966 to establish significantly more lenient
penalties for possession of marijuana. Specifically, 2015 La Acts 295, eff. June 29, 2015, allows
more lenient sentencing "when the amount possessed is fourteen grams or more, but less than
two and one-half pounds." Notably, the amount of marijuana possessed by defendant (18 grams)
only slightly exceeds the first possession benchmark (14 grams), which qualifies for the most
lenient sentencing under the new law, and falls far short of the two and one-half pound
benchmark for penalties that are substantially higher.
$400,000 in total) provides little societal value and only serves to further burden
our financially strapped state and its tax payers. 3
Legally, the state proved nothing more than simple possession of marijuana
in this case. As noted by the majority, mere possession of a controlled dangerous
substance is not evidence of intent to distribute that substance unless the quantity is
so large that no other inference is reasonable. State v. Greenway, 422 So. 2d 1146,
1148 (La. 1982). In State v. Tong, 609 So. 2d 822 (La. 1992), this court addressed
the sufficiency of evidence required to convict a defendant of intent to distribute
marijuana and summarized this court’s previous determinations on the amounts of
marijuana needed to reach the “intent to distribute” threshold:
In this case, the state presented no evidence of the number of
cigarettes that defendant’s marijuana could supply and Seller’s
testimony made clear that defendant’s plastic bags contained minimal
amounts of packaged marijuana. Compare State v. Duncan, 420 So.
2d 1105 (La.1982) (8 ounces of marijuana, enough for 1000
cigarettes, in small bags established an intent to distribute); State v.
Sibley, 310 So. 2d 100 (La.1975) (amount of marijuana for 600
cigarettes supported an inference of intent to distribute); State v.
Stewart, 465 So. 2d 206 (La. App. 3rd Cir.1985), writ denied, 468 So.
2d 571 (La.1985) (1½ pounds of marijuana in small bags sufficient to
establish an intent to distribute); see also State v. Green, 524 So. 2d
927 (La. App. 2nd Cir.1988), writ denied, 532 So. 2d 129 (La. 1988)
(possession of 51 marijuana cigarettes not sufficient to raise an
inference of intent to distribute).
Id. at 824.
The state’s expert in this case testified that the amount of marijuana in
defendant’s possession could have been rolled into 18 marijuana cigarettes of one
gram each or 36 cigarettes of one half gram each. This small quantity of marijuana
(18 grams or just four grams over a half-ounce) is more consistent with personal
use than intent to distribute. 4 A jury cannot speculate that the defendant intended to
3 The average per diem cost for housing a state inmate is $55.00 - $65.00.
4 See, e.g., State v. Ramoin, 410 So. 2d 1010, 1014 (La. 1981) (proof of possession of 27
marijuana cigarettes is insufficient to establish beyond a reasonable doubt that defendant
intended to distribute marijuana); State v. House, 325 So. 2d 222, 225 (La. 1975) (possession of
21 marijuana cigarettes and a small plastic bag containing seeds and stems was insufficient to
2
distribute the marijuana; it must base its determination on evidence. Because the
quantity of marijuana is consistent with personal use, the state’s case was thus
dependent on the presence of other evidence suggestive of an intent by defendant
to distribute the marijuana.
In my view, there was a complete lack of evidence presented by the state
that the marijuana was not for personal use. Notably there was no evidence of cash
or scales, or any other pertinent indicia of distribution, found at the house.
Additionally, the state’s expert conceded that the marijuana found could have been
for personal use. The state’s expert also acknowledged it was possible that the
marijuana was purchased in the same form in which police found it (four separate
baggies inside of a larger one). It is apparent to me that the state’s overreaction in
this case was colored by the fact that a firearm was found in the closet of the
bedroom. The majority also appears to find this fact significant. However,
defendant was acquitted of the weapons charge (illegal possession of the firearm
while in possession of a controlled dangerous substance) thereby eliminating any
evidentiary value of the firearm with regard to proving his intent to distribute the
marijuana.
For these reasons, I respectfully dissent from the majority’s finding that the
evidence presented by the state was sufficient to convict defendant of possession
with intent to distribute marijuana. I would vacate the conviction for possession of
marijuana with intent to distribute and enter the responsive verdict of guilty of
simple possession of marijuana, and remand for resentencing thereon.
establish intent to distribute); State v. Taylor, 99-1154 (La. App. 5 Cir. 2/29/00), 757 So. 2d 63,
writ denied, 00-1021 (La. 3/30/01) (74 grams of marijuana held insufficient to establish intent to
distribute); State v. Green, 18,547 (La. App. 2 Cir 6/10/97), 508 So. 2d 602 (1.62 ounces of
marijuana was not a sufficient amount to create a presumption of intent to distribute); State v.
Green, 524 So. 2d 927 (La. App. 2 Cir. 1988) writ denied, 532 So. 2d 129 (La. 1988) (possession
of 51 marijuana cigarettes not sufficient to raise an inference of intent to distribute).
3