State of Louisiana Versus Shawn A. Clark

STATE OF LOUISIANA NO. 19-KA-522

VERSUS FIFTH CIRCUIT

SHAWN A. CLARK COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-2759, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

June 24, 2020

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

JUDGMENT OF CONVICTION MODIFIED; SENTENCE VACATED;
MATTER REMANDED FOR RESENTENCING
JGG
SMC
FHW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Rachel L. Africk
Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT,
SHAWN A. CLARK
Cynthia K. Meyer

GRAVOIS, J.

Defendant/appellant, Shawn A. Clark, appeals his conviction and sentence

for possession of marijuana, second offense, in violation of La. R.S. 40:966(C).

Defendant was found guilty after a bench trial.1 On appeal, defendant argues that

the trial judge erred in denying his motion to recuse on the basis that prior to

becoming a district court judge, the judge had been employed as an assistant

district attorney and had prosecuted defendant on a previous charge that was used

as a predicate offense in the habitual offender bill of information that was filed in

defendant’s companion felony case.

For the following reasons, we find no merit to defendant’s assignment of

error. However, upon our errors patent review, we find that the State failed to

present sufficient evidence to prove that defendant committed possession of

marijuana, second offense. Consequently, we modify defendant’s conviction to

possession of marijuana, first offense, vacate defendant’s sentence, and remand the

matter to the trial court for resentencing.

PROCEDURAL HISTORY

On May 14, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Shawn A. Clark, with possession of marijuana,

second offense, in violation of La. R.S. 40:966(C). On August 13, 2018, defendant

pled not guilty at his arraignment.

Various pretrial motions were filed. A two-day bench trial began on June

24, 2019. On June 25, 2019, the defense made an oral request to recuse the trial

court judge and/or for a mistrial, which the trial court denied. Trial concluded the

1
Defendant’s companion felony charge for possession with intent to distribute methamphetamine
weighing less than twenty-eight grams, in violation of La. R.S. 40:967(A), was heard simultaneously
before a six-person jury. The appeal in that case is currently pending before this Court as companion case
number 19-KA-518.

19-KA-522 1

same day with the judge finding defendant guilty as charged.2 On June 27, 2019,

defendant was sentenced in this case to fifteen days imprisonment in the parish

prison. The trial court further ordered defendant’s misdemeanor sentence to run

concurrently with the sentence imposed that same day on defendant’s felony

conviction.

On July 26, 2019, defendant filed a motion for an appeal regarding his

verdict rendered on June 25, 2019, the sentences imposed on June 27, 2019, and

his habitual offender sentence imposed on July 15, 2019. On July 30, 2019, the

trial court granted the appeal.

Defendant now appeals, challenging the trial court’s denial of his motion to

recuse.

JURISDICTIONAL NOTE

This Court’s appellate jurisdiction extends only to cases that are triable by a

jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287

(citing La. Const. of 1974, art. 5 § 10; La. C.Cr.P. art. 912.1). Unless the

punishment that may be imposed exceeds six months imprisonment, a

misdemeanor is not triable by a jury. Chess, supra (citing La. Const. of 1974, art.

1 § 17; La. C.Cr.P. art. 779;3 State v. Robinson, 94-864 (La. App. 5 Cir. 3/15/95),

653 So.2d 669, 670).

In the present case, defendant was charged with possession of marijuana,

second offense, in violation of La. R.S. 40:966(C), a misdemeanor carrying a fine

of not more than one thousand dollars and/or imprisonment in the parish jail for

not more than six months. See La. R.S. 40:966. Defendant’s misdemeanor offense

2
On the same day, defendant was also simultaneously found guilty by jury trial of possession
with intent to distribute methamphetamine weighing less than twenty-eight grams, a felony, under district
court case number 18-2756.
3
La. C.Cr.P. art. 779(A) provides: “A defendant charged with a misdemeanor in which the
punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand
dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must
concur to render a verdict.”

19-KA-522 2

was thus not triable by a jury. Defendant’s misdemeanor offense was tried by

bench trial simultaneously with defendant’s felony offense which was filed in a

separate bill of information. The proper procedure for seeking review of a

misdemeanor conviction is an application for a writ of review directed to this Court

to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1); State v.

Trepagnier, 07-749 c/w 07-750 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ

denied, 08-784 (La. 10/24/08), 992 So.2d 1033.

However, this Court has previously, in similar cases, reviewed misdemeanor

convictions and sentences on appeal when the companion misdemeanor and felony

convictions are so intertwined that the interest of justice and judicial economy

dictated that the matters be considered together. See State v. Blackwell, 18-118

(La. App. 5 Cir. 12/27/18), 263 So.3d 1234, 1239; State v. Carroll, 16-599 (La.

App. 5 Cir. 2/8/17), 213 So.3d 486, 488; State v. Jones, 12-640, 12-641 (La. App.

5 Cir. 10/30/13), 128 So.3d 436, 440-43; State v. Christophe, 12-82, 12-83 (La.

App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied, 12-2432 (La. 4/19/13), 111

So.3d 1029.

In the present case, defendant’s misdemeanor and felony offenses arose out

of the same facts, were ultimately charged in separate bills of information, and

were tried simultaneously by a jury trial and a bench trial. Upon review, because

the facts and arguments presented on appeal in defendant’s misdemeanor case are

the same as the facts and arguments presented on appeal in one of the assignments

of error in defendant’s felony case, we find that defendant’s misdemeanor and

felony convictions are so intertwined that the interest of justice and judicial

economy dictate that we consider these matters together on appeal. State v.

Blackwell, supra. We, however, render separate opinions on defendant’s

misdemeanor conviction and sentence and his felony conviction and sentence.

19-KA-522 3

FACTS

Detectives Blaine Howard and Daniel Lassus, then with the Project STAR

division of the Jefferson Parish Sheriff’s Office, were investigating information

received from a confidential informant regarding narcotics distribution by Tony

Ford.4 They surveilled Mr. Ford and his residence in an unmarked police car on

several different dates. Until January 20, 2018, the detectives saw nothing

significant.

Both detectives testified that on January 20, 2018, shortly after arriving at

Mr. Ford’s home, they observed a blue Lexus vehicle arrive and park in front of

Mr. Ford’s home around 7:00 p.m. The driver of the Lexus was later identified as

defendant Shawn Clark. Defendant parked a short distance from the detectives on

the opposite side of the street, facing their vehicle. Defendant remained in his

vehicle; Mr. Ford exited his residence and entered the front passenger door of the

vehicle. Both detectives testified that Mr. Ford was in the vehicle for less than one

minute and that a visit of this short duration was consistent with a drug transaction.

The detectives testified that Mr. Ford re-entered his home and the blue

Lexus drove away. The detectives followed the vehicle.5 While following the

vehicle, the detectives observed that defendant failed to signal several lane

changes, the license plate illuminator bulb was out, and there was a cover over the

license plate. They conducted a traffic stop of defendant by activating the lights

and siren on their vehicle.

Detective Howard testified that after exiting their vehicle, both detectives

approached defendant’s vehicle from the rear with illuminated flashlights in their

4
Detectives later obtained a search warrant for Mr. Ford’s residence and found cocaine and
marijuana. Detectives did not locate any money in Mr. Ford’s residence. Mr. Ford was charged with
possession of cocaine in the same felony bill of information that charged defendant.
5
Detective Howard testified that they followed defendant’s vehicle for a short distance as
opposed to immediately stopping him so as to not alert Mr. Ford of their investigation. Detective Lassus
testified to similar reasons for the delay.

19-KA-522 4

hands. Detective Howard stated that he observed defendant move towards the

center console of the vehicle and throw a white pill bottle on the back passenger

floorboard. Detective Lassus similarly testified that he saw defendant’s hands

moving around the center console and then saw him drop a white item behind the

rear passenger seat. Detectives Howard and Lassus testified that Detective Lassus

approached the open driver’s window of defendant’s vehicle and told Detective

Howard that he smelled marijuana. Detective Lassus ordered defendant out of the

vehicle; defendant complied. Defendant was Mirandized 6 and placed in

handcuffs.

Detective Howard testified that he asked defendant for his driver’s license,

which was suspended, and asked to search defendant’s vehicle, to which defendant

consented. Detective Lassus searched the vehicle and located a white pill bottle on

the rear passenger floorboard containing marijuana and forty-six multi-colored

pills. After locating the pill bottle and its contents, defendant was placed under

arrest for possession with intent to distribute based on the quantity of the pills.7

While searching defendant, Detective Howard discovered one hundred twenty-two

dollars on defendant’s person.

Pamela Williams-Cyprian, a forensic scientist at the Jefferson Parish

Sheriff’s Office Crime Laboratory, testified as to her work analyzing and

identifying controlled dangerous substances. She tested the vegetable matter,

which tested positive for marijuana and weighed approximately one gram.

Defendant testified at trial that the blue Lexus belonged to his girlfriend and

that he was driving it on the day in question to take the car to get the license plate

light and window mechanics fixed. On his way to the mechanic, defendant passed

6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
7
Defendant was also issued a traffic citation at that time. Defendant testified at trial that he did
not learn of the citation until it was presented at trial.

19-KA-522 5

Mr. Ford’s house and saw him arguing outside with his girlfriend. Defendant

testified that he stopped to prevent Mr. Ford from getting into trouble. Defendant

admitted that Mr. Ford got into his vehicle. He testified that they had a short

conversation during which defendant warned Mr. Ford to stop fighting with his

girlfriend to avoid getting himself into trouble, and then Mr. Ford exited the

vehicle.

Defendant testified that he left Mr. Ford’s house and was pulled over two to

three miles later.8 Defendant stated that he made no movements towards the center

console or the glove box. Defendant denied that his window was down, and said

that he had no knowledge that the pill bottle was in the car.9 Defendant testified

that he was not read his Miranda rights and did not consent to a search of the

vehicle. Defendant also testified as to his prior convictions, and acknowledged

that he was on parole due to an earlier conviction at the time of his arrest.

ASSIGNMENT OF ERROR

Motion to recuse

Herein, defendant argues that the trial judge erred in denying his motion to

recuse when the record indicates that the trial judge prosecuted defendant in one of

the predicate offenses used to adjudicate defendant as a third felony offender.

Defendant argues that the trial judge was made aware that he prosecuted

defendant on a prior offense before trial started. Defendant asserts that defense

counsel informed the trial judge that if defendant was convicted, the State intended

to use that prior conviction as a predicate offense when filing a habitual offender

bill of information. Defendant further asserts that he requested that the judge

recuse himself at that point, but that the request was denied.

8
Defendant testified that another police officer dressed in army camouflage driving a truck pulled
up next to his vehicle, but was dismissed by the officers who initiated the stop.
9
The State played for the jury a portion of a phone call made by defendant from jail to his
girlfriend the day after his arrest. During that phone call, defendant stated that the marijuana was a
misdemeanor and that the pills were “not real.”

19-KA-522 6

On appeal, defendant argues that contrary to the trial judge’s assertion, the

judge could not be fair and impartial. Defendant asserts that the State and the

judge attempted to pressure defendant into pleading guilty. Defendant contends

that the judge’s repeated reference to the State’s plea offer gives the appearance

that the judge thought defendant was guilty before trial. Defendant argues that the

trial judge ordered the bailiff to remove Amos St. Cyr, whom he wished to have

assist his defense counsel, from the courtroom. Defendant also alleges that the trial

judge treated him harshly regarding his failure to return to court after a recess

during a previous motions hearing.10 Defendant concludes that despite the trial

judge’s denial that he remembered prosecuting defendant, the trial judge should

have recused himself, and thus, defendant’s conviction and sentence should be

vacated.

The State asserts that the trial judge acted appropriately in his denial of the

motion to recuse. The State argues that La. C.Cr.P. art. 674 requires a written

motion by a party seeking to recuse a judge, and that because defendant failed to

file a written motion, there is nothing to review on appeal. The State asserts that

even if this Court does look at the merits of the motion to recuse, relief is still not

warranted. The State contends that a trial judge is presumed to be impartial and

the burden is on the party seeking recusal to prove otherwise. The State argues

that if the motion contains valid grounds for recusal, the trial judge must recuse

himself or refer the motion to another judge. The State contends that otherwise,

the trial judge can overrule the motion.

The State asserts that the situation at hand does not qualify as a reason for

recusal under the exhaustive list contained in La. C.Cr.P. art. 671(A). The State

contends that previous prosecution on a prior unrelated case does not require

10
Defendant was found in contempt of court for failing to return to court following a recess
during a motions hearing.

19-KA-522 7

recusal. The State asserts that recusal for bias, prejudice, and personal interest is

also unwarranted. The State rebuts defendant’s claim that the trial judge treated

defendant harshly. The State asserts that the trial judge’s refusal to allow

defendant to have Mr. St. Cyr act as special counsel for the defense was legally

proper because Mr. St. Cyr was neither counsel of record, nor a licensed Louisiana

attorney. The State also argues that neither the State nor the trial judge attempted

to pressure defendant into accepting the plea offer, but instead made efforts to

ensure that defendant had time to consider the offer. The State contends that the

circumstances of defendant’s contempt do not support recusal. The State points

out that defendant’s examples of “harsh treatment” occurred before the judge was

even made aware that he previously prosecuted defendant. The trial judge stated

that he did not recognize defendant, and defendant does not allege that the judge

had any prosecutorial role regarding his current case. The State argues that

defendant does not point to any specific ruling indicating bias and that the verdict

was returned by a jury. The State further asserts that defendant’s habitual offender

status was conclusively established by a fingerprint expert and by exhibits. The

State contends that defendant did not dispute his prior convictions.

According to the June 25, 2019 minute entry and transcript, defendant orally

requested that the trial judge recuse himself and/or grant a mistrial. Defendant

stated that during investigations relating to a possible habitual bill proceeding,

defendant discovered that the trial judge prosecuted him on one of his predicate

offenses from 2007. Defendant acknowledged that there was no indication that he

and the trial judge recognized each other. Defendant argued that in his experience,

trial judges have recused themselves upon discovering that they are presiding over

someone they previously prosecuted. The trial judge reiterated that he and

defendant did not recognize each other and stated that he could be fair and

19-KA-522 8

impartial. The trial judge denied the requests, and defendant objected. No written

motion to recuse was filed.

A party desiring to recuse a trial judge shall file a written motion assigning

the ground for recusal. State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d

532, 537, writ denied, 09-248 (La. 10/30/09), 21 So.3d 272; State v. Page, 02-689

(La. App. 5 Cir. 1/28/03), 837 So.2d 165, 181, writ denied, 03-951 (La. 11/7/03),

857 So.2d 517 (citing La. C.Cr.P. art. 674).11 In State v. Crothers, 278 So.2d 12,

14 (La. 1973), cert. denied, 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973),

the Louisiana Supreme Court found that the defendant’s motion to recuse was not

in writing as required by La. C.Cr.P. art. 674, and therefore, the denial of the oral

motion for recusal presented nothing for it to review. (See also: Neely, supra;

State v. Lewis, 97-1244 (La. App. 3 Cir. 3/6/98), 728 So.2d 1, 9, writ denied, 98-

977 (La. 9/18/98), 724 So.2d 752; State v. Williams, 96-1587 (La. App. 4 Cir.

4/16/97), 693 So.2d 249, 252-53, writ denied, 97-2513 (La. 4/9/98), 717 So.2d

1138; and State v. Davis, 485 So.2d 981, 982-83 (La. App. 4 Cir. 1986), writ

denied, 488 So.2d 1019 (La. 1986); where these appellate courts recognized that

there was nothing to review when the defendants orally moved to recuse the trial

judges.)

Because defendant failed to file a written motion assigning the ground for

recusal, there is nothing for this Court to review. Accordingly, this assignment of

error is without merit.

11
La. C.Cr.P. art. 674 sets forth the procedure for recusation of a trial judge:
A party desiring to recuse a trial judge shall file a written motion therefor assigning the
ground for recusation. The motion shall be filed prior to commencement of the trial
unless the party discovers the facts constituting the ground for recusation thereafter, in
which event it shall be filed immediately after the facts are discovered, but prior to
verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge
shall either recuse himself, or refer the motion for hearing to another judge or to a judge
ad hoc, as provided in Article 675. (Emphasis added.)

19-KA-522 9

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

Generally, an errors patent review is not conducted on misdemeanor

convictions. Nevertheless, this Court has in the past considered a misdemeanor

appeal as an application for supervisory review of the case and has conducted an

errors patent review. See Blackwell, 263 So.3d at 1240.12

Upon review, though it was not affirmatively raised as an assignment of

error by defendant, we find that the State failed to properly prove by sufficient

evidence that defendant had a prior conviction of possession of marijuana.

The Louisiana Supreme Court and this Court have recognized insufficiency

of the evidence to support a conviction where the defendant fails to raise the issue

on appeal. State v. Raymo, 419 So.2d 858, 861 (La. 1982); State v. Jackson, 99-

1256 (La. App. 5 Cir. 7/25/00), 767 So.2d 848, 852, writ denied, 00-2528 (La.

10/5/01), 798 So.2d 960. The standard for appellate review of the sufficiency of

the evidence 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. State v. Brown, 03-581 (La. App. 5 Cir.

11/12/03), 861 So.2d 644, 650-51, writs denied, 03-3407 (La. 4/2/04), 869 So.2d

875, and 04-49 (La. 4/2/04), 869 So.2d 877. In order to support a conviction of

possession of marijuana, second offense, the State must prove that the defendant

was in possession of marijuana, that the defendant knowingly possessed it, and that

12
See also State v. Vaughn, 18-51 (La. App. 5 Cir. 5/16/18), 248 So.3d 578, 588; State v.
Kruebbe, 17-584 (La. App. 5 Cir. 4/11/18), 244 So.3d 867, 874, writ denied, 18-804 (La. 11/20/18), 256
So.3d 987; State v. Morris, 16-712 (La. App. 5 Cir. 12/29/16), 209 So.3d 420, 426; State v. Sayles, 16-
334 (La. App. 5 Cir. 12/7/16), 206 So.3d 1243, 1245 n. 4; State v. Jones, 12-640, 12-641 (La. App. 5 Cir.
10/30/13), 128 So.3d 436, 443 n. 4; State v. Lyons, 13-180 (La. App. 5 Cir. 10/9/13), 128 So.3d 407, 417;
State v. Carruth, 94-147 (La. App. 5 Cir. 9/27/94), 643 So.2d 1319, 1322; State v. Lewis, 473 So.2d 357,
358 (La. App. 5th Cir. 1985).

19-KA-522 10

he had a prior conviction for possession of marijuana. State v. Jones, 08-20 (La.

App. 5 Cir. 4/15/08), 985 So.2d 234, 241; State v. Proctor, 04-1114 (La. App. 5

Cir. 3/29/05), 901 So.2d 477, 482.

Louisiana Courts have reviewed various methods of establishing the

defendant’s prior conviction. In State v. Lathers, 03-941 (La. App. 5 Cir. 2/23/04),

868 So.2d 881, 883, the State and the defense stipulated to the defendant’s prior

convictions for possession of marijuana and admitted certified copies of the prior

convictions as evidence. Further, on appeal in Lathers, the defendant did not

dispute that he had two prior convictions for possession of marijuana and pointed

out that he had stipulated to those prior convictions and admitted to them during

his testimony. In State v. Van Winkle, 07-1303 (La. App. 3 Cir. 5/7/08), 2008 WL

1961153, the defendant testified at her 2006 sentencing hearing that her first

conviction for possession of marijuana was in 1999. While the defendant in State

v. Daniels, 15-147 (La. App. 3 Cir. 5/8/15), 215 So.3d 759, 760, on reh’g

(11/12/15), entered into a plea agreement, the State admitted into evidence an

excerpt from the minutes showing the defendant’s prior plea to possession of

marijuana, first offense.13 In State v. Young, 39,546 (La. App. 2 Cir. 3/2/05), 895

So.2d 753, 757, the State called a criminal minute clerk to the stand to identify a

certified copy of the minutes of the prior conviction, which showed a plea of guilty

to possession of marijuana on September 28, 1998. The clerk testified that there

were fingerprint impressions on the back of the bill of information. The State then

called an officer qualified and accepted by the court as an expert in fingerprint

identification, who testified that the prints on the back of the bill of information

were identical to an inked impression of prints taken from the defendant in the

13
Similarly, in State v. Smith, 05-375 (La. App. 4 Cir. 7/20/05), 913 So.2d 836, 842, writ denied,
07-811 (La. 1/11/08), 972 So.2d 1159, to establish that the defendant had a conviction for possession of
marijuana, second offense, to adjudicate the defendant as a habitual offender, the State filed the bill of
information, the docket master, the arrest register, the screening action form, the waiver of rights form,
and the minute entry of the guilty plea.

19-KA-522 11

courtroom. Therefore, the court found that the State sufficiently established that

the defendant was the same person who had previously pled guilty to possession of

marijuana on September 28, 1998.

In State v. Turner, 05-60 (La. App. 5 Cir. 5/31/05), 904 So.2d 825, 829, this

Court reviewed the record for errors patent and concluded that the finding that this

was a third offense of possession of marijuana for the defendant was not supported

by the record. The State introduced two minute entries, dated October 19, 1998

and January 23, 2002, showing a “Latour Turner,” born July 10, 1978, pled guilty

to possession of marijuana, and a third minute entry, also dated January 23, 2002,

showing that the defendant pled guilty to second offense possession of marijuana.

The State called the defendant’s parole officer to testify; he stated that based on his

records, he believed the defendant had three convictions for possession of

marijuana. This Court found a lack of direct evidence presented to the jury to link

the defendant with the defendant in the records presented by the State and pointed

out that the parole officer identified the defendant as the individual he was

supervising for a prior possession of marijuana conviction. This Court concluded

that the evidence presented at trial was sufficient to prove that the defendant was

guilty of a possession of marijuana, second offense, and modified the conviction to

show that the defendant was guilty of possession of marijuana, second offense.

This Court vacated the sentence and remanded the matter for resentencing. Id. at

830.

In the present case, the State attempted to establish defendant’s prior

convictions through defendant’s testimony alone. The State did not enter minute

entries as exhibits, nor were defendant’s fingerprints compared to any others. The

record does not reflect any stipulation that defendant had a prior conviction for

possession of marijuana. Instead, defendant’s testimony was the sole evidence of

defendant’s prior conviction. Defendant also testified as to his other prior

19-KA-522 12

convictions and his parole status at the time of his arrest. When asked by his

attorney if he had prior misdemeanor convictions, defendant confirmed that he did.

The defense attorney then asked if he “ever had a marijuana,” and defendant

replied that he did. Defendant stated he thought he only had the one and that he

did not remember serving any time on it. However, when the State asked

defendant specifically about his 2003 conviction for possession of marijuana,

defendant stated that he did not recall being convicted or pleading guilty in that

case. He was then asked if he did not have a conviction for possession of

marijuana, to which defendant stated that he did not know of such a conviction and

then stated that he did have a “marijuana conviction.” When asked again,

defendant testified that he “may” have such a conviction.

Upon review, we find that the State failed to prove, by defendant’s equivocal

testimony alone, each element of the offense beyond a reasonable doubt. If a

rational trier of fact, viewing evidence in accordance with Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the

prosecution, could not reasonably conclude that all of the offense’s essential

elements have been proved beyond a reasonable doubt, the appropriate relief in this

case is for the defendant to receive a reduction of the conviction to a judgment of

guilty of a lesser and included offense. State v. Hearold, 603 So.2d 731, 734 n. 1

(La. 1992) (citing La. C.Cr.P. art. 821; State v. Byrd, 385 So.2d 248 (La. 1980));

Turner, supra.

La. C.Cr.P. art 821(E) provides:

If the appellate court finds that the evidence, viewed in a light most
favorable to the state, supports only a conviction of a lesser included
responsive offense, the court, in lieu of granting a post verdict
judgment of acquittal, may modify the verdict and render a judgment
of conviction on the lesser included responsive offense.

Considering the above, we find that the evidence presented at trial was

insufficient to prove that defendant is guilty of possession of marijuana, second

19-KA-522 13

offense, but was sufficient to prove that defendant is guilty of possession of

marijuana, first offense, a violation of La. R.S. 40:966(C)(2)(a). Accordingly, we

modify defendant’s conviction from possession of marijuana, second offense, to

possession of marijuana, first offense, vacate defendant’s sentence, and remand the

matter to the trial court for resentencing.

CONCLUSION

For the foregoing reasons, defendant’s conviction is modified from

possession of marijuana, second offense, to possession of marijuana, first offense,

defendant’s sentence is vacated, and the matter is remanded to the trial court for

resentencing.14

JUDGMENT OF CONVICTION MODIFIED;
SENTENCE VACATED; MATTER
REMANDED FOR RESENTENCING

14
It is noted that defendant’s current sentence of fifteen days imprisonment is a legal sentence for
possession of marijuana, first offense. See La. R.S. 40:966(C)(2)(a).
It is further noted that the transcript reflects that the trial judge did not advise defendant of the
provisions of La. C.Cr.P. art. 930.8 at the time of sentencing. However, this deficiency is moot, given
that this Court has vacated defendant’s sentence and has remanded the matter for resentencing.

19-KA-522 14

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
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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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 24, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-522
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
RACHEL L. AFRICK (APPELLEE)
LYNN SCHIFFMAN (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053