State of Louisiana v. Flenory Frazier, III

Judgment rendered January 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,441-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

FLENORY FRAZIER, III Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 383,460

Honorable Erin Leigh Waddell Garrett, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Holli Herrle-Castillo

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

ROSS S. OWEN
JOHN C. PHILLIPS
Assistant District Attorneys

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Before COX, THOMPSON, and MARCOTTE, JJ.

MARCOTTE, J.

This appeal arises from the First Judicial District Court, Parish of

Caddo, the Honorable Erin Leigh Garrett presiding. Defendant, Flenory

Frazier, III, was convicted of one count of possession with intent to

distribute marijuana, one count of possession of a firearm while in

possession of marijuana, and one count of possession of a firearm by a

convicted felon. Frazier was sentenced to 10 years at hard labor for his

possession with intent to distribute marijuana conviction, 10 years at hard

labor without benefits for his illegal carrying of weapons conviction, and 16

years at hard labor without benefits for his possession of a firearm by a

convicted felon conviction. All of these sentences were ordered to run

concurrently. In addition, Frazier was sentenced to 400 days in parish jail in

lieu of a $1,000 fine for the felon with a firearm conviction, which was

ordered to run consecutively.

Defendant now appeals both his convictions and sentences, arguing

that the evidence was insufficient to show he ever had possession of the

marijuana and that the sentences imposed were constitutionally excessive

and illegal. For the following reasons, we affirm defendant’s convictions

and sentences but modify the sentence for the possession of a firearm by a

convicted felon conviction to delete the imposition of jail time in lieu of a

fine.

FACTS

On July 21, 2021, Frazier was charged by bill of indictment with: (1)

Count one: possession with intent to distribute marijuana in an amount less

than 2 ½ pounds, in violation of La. R.S. 40:966(A)(1); (2) Count two:

possession of a firearm while in possession of more than 14 grams of

marijuana, in violation of La. R.S. 14:95(E); and (3) Count three: possession

of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. All three

counts occurred on June 11, 2021.

Following the empaneling of a 12-member jury, a jury trial was held

on November 14-15, 2022. Probation Officer Sherry Cone (“Off. Cone”)

with the Department of Corrections Division of Probation and Parole

testified. Off. Cone testified that on June 11, 2021, she was working in the

field with another probation officer, Anna Winterton (“Off. Winterton”),

when they received an anonymous telephone tip that Frazier was at the

Rocket Car Wash in Shreveport and in possession of a large quantity of

marijuana and a weapon. At the time, Frazier was on probation from a

felony conviction of possession with intent to distribute over two grams of

cocaine that occurred less than two months prior to this incident.

Off. Cone called for backup (four other probation officers), which

arrived at the carwash at approximately the same time as Off. Cone and Off.

Winterton. As Off. Cone and Off. Winterton approached Frazier, he asked

them what was going on and said nothing more after the officers advised

him of the situation. Frazier was handcuffed for the officers’ safety and

placed in the rear of Off. Cone’s vehicle under the supervision of the other

officers at the scene.

Off. Cone said she then went to the back door of the driver’s side of

Frazier’s truck and could smell marijuana as she opened the door. In the

back seat, Off. Cone then found a gray duffel bag containing packages of

marijuana and a smaller purple bag that contained digital scales and

packaging materials.

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Off. Winterton, who also detected a strong smell of marijuana,

testified that she found a bundle of cash in the amount of $1,516 wrapped

with a rubber band on the front floorboard, a firearm, and two more digital

scales in the console of Frazier’s truck. Off. Winterton’s testimony was

unrefuted when she noted that the smell of marijuana was noticeable when

they stood where Frazier had been when they arrived.

Off. Cone testified that the breakdown of the cash recovered at the

scene was four 100-dollar bills, 54 20-dollar bills, one 10-dollar bill, two 5-

dollar bills, and 16 1-dollar bills. Off. Cone also testified that the

denomination breakdown of the recovered cash was consistent with drug

sales. More than 297 grams of marijuana were admitted into evidence

without objection. Also admitted into evidence without objection was the

firearm, a Walther .9 millimeter handgun, which was discovered with a

loaded magazine and one round in the chamber. Although Frazier made no

statements acknowledging ownership or possession of the truck or its

contents, he had the keys to the truck containing the illegal items on him

when he was arrested.

A unanimous jury found Frazier guilty of all three counts on

November 15, 2022. Frazier’s counsel made an oral motion for a bond

hearing to be set and was denied bond after a hearing. Motions for a new

trial and post-verdict judgment of acquittal were filed on November 23,

2022, and subsequently denied.

On February 1, 2023, Frazier was sentenced to 10 years at hard labor

for count one, 10 years at hard labor for count two, and 16 years without

benefits for count three. The trial court ordered the sentences to be run

concurrently. The trial court also ordered Frazier to serve 400 days
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consecutive to the sentences in lieu of paying the mandatory $1,000 fine for

count three. Frazier filed a motion to reconsider sentence which was denied.

Frazier now appeals.

DISCUSSION

Frazier argues that the evidence was insufficient to convict him on all

three counts. Specifically, Frazier claims that the state failed to prove he

knew the gun, marijuana, scales and baggies were in the truck, and further

failed to prove that he intended to possess them. Frazier argues that there

was no evidence presented that he owned the truck or had any connection to

the truck other than that he was vacuuming it at a car wash. Frazier claims

that he was vacuuming someone else’s truck to make money.

Frazier also claims that the sentences imposed by the trial court were

excessive. Frazier points out that he received the maximum sentence of 10

years each for the possession with intent to distribute marijuana conviction

and the possession of a firearm while in possession of marijuana conviction.

Frazier also points out that his sentence of 16 years for his possession of a

firearm by a convicted felon conviction was near the maximum sentence of

20 years. Frazier argues that he should not have received the two maximum

sentences and one three-quarters of the maximum sentence for the third

count, because maximum sentences are reserved for the worst offenders, and

he does not fall into that category. While Frazier acknowledges his lengthy

rap sheet, he claims the trial court failed to consider the number of years

between his convictions and other mitigating factors that should have

reduced his sentences.

Finally, Frazier argues that the trial court imposed an illegal sentence

when it sentenced him to 400 days in parish jail in lieu of paying the
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mandatory fine for his felon in possession of a firearm conviction, to run

consecutively. As an indigent defendant, Frazier asserts that he cannot be

subjected to jail time in lieu of the payment of a fine, costs, or restitution.

The state argues that there was more than enough evidence to support

Frazier’s convictions, especially considering that he was arrested with the

keys to the truck in his possession. The state claims that having the keys to a

vehicle with illicit goods inside gives that possessor of the keys dominion

and control over those goods, and thus constructive possession.

The state also argues that Frazier’s account of being hired to vacuum

the truck is self-serving and not supported by the evidence presented at trial.

The state claims that the jury correctly rejected Frazier’s explanation at trial

as not credible considering it would have meant that a person left the truck

keys, a loaded gun, a wad of cash, and a considerable amount of marijuana

with Frazier, who had the opportunity to steal everything.

The state also argues that the sentences imposed by the trial court

were not excessive. The state claims that the trial court duly considered all

aggravating and mitigating circumstances when sentencing Frazier. The

state notes that the trial court considered such mitigating factors as Frazier’s

mother’s testimony that she needed him at home.

However, the state also notes that the trial court had to consider

Frazier’s entire criminal record, which includes indecent behavior with a

juvenile, simple burglary, aggravated arson, and possession with intent to

distribute a Schedule II. The state claims that regardless of how much time

passed between criminal episodes, Frazier established a clear pattern of

criminal conduct which the trial court had to take into account.

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With regard to Frazier’s claim that the additional 400 days in jail in

lieu of a fine was an illegal sentence, the state agrees that sentencing Frazier

in such a way was an error patent.

Sufficiency of the Evidence

The standard of review for the sufficiency of the evidence to uphold a

conviction is whether, viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Tate,

01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S.

Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Ward, 50,872 (La. App. 2 Cir.

11/16/16), 209 So. 3d 228, writ denied, 17-0164 (La. 9/22/17), 227 So. 3d

827. This standard, now legislatively embodied in La. C. Cr. P. art. 821,

does not provide the appellate court with a vehicle to substitute its own

appreciation of the evidence for that of the factfinder. State v. Ward, supra;

State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied,

09-0310 (La. 11/6/09), 21 So. 3d 297. On appeal, a reviewing court must

view the evidence in the light most favorable to the prosecution and must

presume in support of the judgment the existence of every fact the trier of

fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or

reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442;

State v. Ward, supra. A reviewing court accords great deference to a jury’s

decision to accept or reject the testimony of a witness in whole or in part.

State v. Ward, supra; State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.

3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So. 3d 913. In the absence
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of internal contradiction or irreconcilable conflict with the physical

evidence, the testimony of one witness, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Burd, 40,480

(La. App. 2 Cir. 1/27/06), 921 So. 2d 219, writ denied, 06-1083 (La.

11/9/06), 941 So. 2d 35.

The Jackson, supra, standard is applicable in cases involving both

direct and circumstantial evidence. An appellate court reviewing the

sufficiency of evidence in such cases must resolve any conflict in the direct

evidence by viewing that evidence in the light most favorable to the

prosecution. When the direct evidence is thus viewed, the facts established

by the direct evidence and inferred from the circumstances established by

that evidence must be sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that defendant was guilty of every essential

element of the crime. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Ward, supra; State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So. 3d 582,

writ denied, 09-0372 (La. 11/6/09), 21 So. 3d 299. To convict a defendant

based upon circumstantial evidence, every reasonable hypothesis of

innocence must be excluded. La. R.S. 15:438; State v. Johnston, 53,981 (La.

App. 2 Cir. 9/22/21), 326 So. 3d 970.

In the present case, Frazier was convicted of possession with intent to

distribute less than 2 ½ pounds of a Schedule I controlled dangerous

substance (marijuana), in violation of La. R.S. 40:966(A)(1) and (B)(2)(a).

To support a conviction for possession with intent to distribute marijuana

under La. R.S. 40:966, the state must prove beyond a reasonable doubt that

the defendant knowingly and intentionally possessed the drug and that he or

she did so with the specific intent to distribute it. State v. Cho, 02-274 (La.
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App. 5 Cir. 10/29/02), 831 So. 2d 433, writ denied, 02-2874 (La. 4/4/03),

840 So. 2d 1213. Guilty knowledge is an essential element of the crime of

possession of contraband, and such knowledge may be inferred from the

circumstances. State v. Marshall, 02-1067 (La. App. 5 Cir. 2/25/03), 841

So. 2d 881, writ denied, 03-909 (La.9/26/03), 854 So. 2d 345.

The element of possession may be established by showing that the

defendant exercised either actual or constructive possession of the controlled

dangerous substance. State v. Mitchell, 09-996 (La. App. 5 Cir. 5/25/10), 40

So. 3d 1122, writ denied, 10-1557 (La. 10/21/11), 73 So. 3d 370. A person

may be in constructive possession of a drug even though it is not in his

physical custody, if it is subject to his dominion and control. State v.

Acevedo, 22-124 (La. App. 5 Cir. 12/28/22), 356 So. 3d 1137.

The determination of whether there is sufficient evidence of

constructive possession to support a conviction depends on the specific facts

of each case. State v. Kenner, 12-352 (La. App. 5 Cir. 12/11/12), 106 So. 3d

1084. Factors that may establish control and 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 drugs. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20),

309 So. 3d 886, writ denied, 21-100 (La. 4/27/21), 314 So. 3d 836.

Here, we find that the evidence presented was sufficient to show that

Frazier had constructive possession of the marijuana as well as the intent to

distribute it. Off. Cone and Off. Winterton testified that defendant was in

direct possession of the truck’s keys when he was arrested. Defendant’s

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possession of the keys gave him dominion and control over the contents of

the truck, including the gun, drugs and drug-dealing paraphernalia.

Defendant’s claim that he was simply cleaning the vehicle for hire is

self-serving and readily refuted by the evidence presented at trial. Indeed,

everything that was discovered at the scene was corroborated by the

information which the officers received in the tip.

The jury heard the testimony, saw the evidence, and reasonably

concluded that defendant had full knowledge of the illicit contents of the

truck and the intent to possess them. Accordingly, defendant’s argument as

to sufficiency of the evidence lacks merit and is rejected.

Sentences

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Lathan, 41,855

(La. App. 2 Cir. 2/28/07), 953 So. 2d 890, writ denied, 07-0805 (La.

3/28/08), 978 So. 2d 297.

The articulation of the factual basis for a sentence is the goal of

Article 894.1, not rigid or mechanical compliance with its provisions.

Where the record clearly shows an adequate factual basis for the sentence

imposed, remand is unnecessary even where there has not been full

compliance with the article. State v. Lanclos, 419 So. 2d 475 (La. 1982);

State v. Swayzer, 43,350 (La. App. 2 Cir. 8/13/08), 989 So. 2d 267. The

important elements which should be considered are the defendant’s personal
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history (age, family ties, marital status, health, employment record), prior

criminal record, seriousness of the offense, and the likelihood of

rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Ates,

43,327 (La. App. 2 Cir. 8/13/08), 989 So. 2d 259, writ denied, 08-2341 (La.

5/15/09), 8 So. 3d 581. There is no requirement that specific matters be

given any particular weight at sentencing. State v. Shumaker, 41,547 (La.

App. 2 Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07),

964 So. 2d 351.

Second, the court must determine whether the sentence is

constitutionally excessive. State v. Cooksey, 53,660 (La. App. 2 Cir.

5/26/21), 316 So. 3d 1284, writ denied, 21-00901 (La. 10/12/21), 325 So. 3d

1074. A sentence violates La. Const. art. I, § 20, if it is grossly out of

proportion to the seriousness of the offense or nothing more than a

purposeless infliction of pain and suffering. State v. Dorthey, 623 So. 2d

1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La. 1980). A sentence

is considered grossly disproportionate if, when the crime and punishment are

viewed in light of the harm done to society, it shocks the sense of justice.

State v. Robinson, 49,825 (La. App. 2 Cir. 5/20/15), 166 So. 3d 403. The

defendant must show a manifest abuse of discretion to have a sentence set

aside as excessive. State v. Sharkey, 602 So. 2d 249 (La. App. 2 Cir. 1992).

The sentencing range for possession with intent to distribute

marijuana in an amount less than 2 ½ pounds, pursuant to La. R.S.

40:966(B)(2)(a), is between one and ten years. The sentencing range for

possession of a firearm while in possession of more than 14 grams of

marijuana, pursuant to La. R.S. 14:95(E), is between five and ten years. The

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sentencing range for possession of a firearm by a convicted felon, pursuant

to La. R.S. 14:95.1, is between five and twenty years.

For the possession of marijuana with intent to distribute and the

possession of a firearm while in possession of marijuana convictions,

defendant received the maximum sentence of ten years for each. For the

felon with a firearm conviction, defendant received a sentence of 16 years.

The trial court ordered these sentences to run concurrently.

Prior to imposing the sentence, the trial court duly considered the

Article 894.1 sentencing factors and expressed an understanding of

mitigating factors by acknowledging that defendant’s mother felt she needed

him at home. The trial court further noted defendant’s criminal record,

which includes indecent behavior with a juvenile, simple burglary,

aggravated arson, and, most recently, possession with intent to distribute a

Schedule II controlled dangerous substance.

The record demonstrates that the trial court considered the appropriate

factors in imposing the concurrent sentences, which do not shock our sense

of justice. Although defendant received sentences on the higher end of the

sentencing range, he clearly has not learned from his past mistakes and his

current convictions support a heavier sentence in light of his escalating

criminal behavior. Furthermore, the concurrent nature of the sentences

ameliorates the severity of the punishment.

Based on the circumstances of this case, including defendant’s

significant criminal history, we cannot say that these sentences are

constitutionally excessive. Accordingly, this assignment of error lacks

merit.

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Error Patent

We note one error patent. The trial court sentenced defendant to 400

days in parish jail in lieu of paying the fine on the felon with a firearm

conviction, to run consecutively. An indigent defendant cannot be subjected

to default time in lieu of the payment of a fine, costs or restitution. State v.

Lewis, 48,373 (La. App. 2 Cir. 9/25/13), 125 So. 3d 482. A defendant’s

claim of indigence in such a situation may be discerned from the record.

State v. Arkansas, 47,317 (La. App. 2 Cir. 8/8/12), 104 So. 3d 459, writ

denied, 12-1996 (La. 3/15/13), 109 So. 3d 374.

Defendant’s indigence has been shown by his representation at trial by

the Indigent Defender’s Office, and his current representation on appeal by

the Louisiana Appellate Project. Thus, the imposition of jail time in lieu of

paying a fine was in error. Therefore, this court modifies defendant’s

sentence on the felon with a firearm conviction to delete the imposition of

jail time in lieu of paying a fine.

CONCLUSION

For the above reasons, the convictions of defendant Flenory Frazier,

III are affirmed. We delete the portion of Frazier’s sentence that imposes

jail time in lieu of the fine, and as amended, we affirm.

AFFIRMED.

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