State of Louisiana v. Carlton G. Monceaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-449

STATE OF LOUISIANA

VERSUS

CARLTON G. MONCEAUX

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-763-02
HONORABLE HERMAN I. STEWART, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and John B. Scofield*, Judges.

AFFIRMED. VACATED IN PART AND REMANDED WITH
INSTRUCTIONS.

Honorable David W. Burton
District Attorney
Richard Frederick Blankenship
Assistant District Attorney
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Charles C. Foti, Jr.
Attorney General
Post Office Box 94005
Baton Rouge, LA 70804
(225) 326-6000
COUNSEL FOR APPELLEE:
State of Louisiana

* John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Carlton G. Monceaux

Carlton G. Monceaux
Calcasieu Correctional Center
5300 Broad Street
Lake Charles, LA 70615

AMY, Judge.

The defendant was convicted of six counts of possession of a controlled

dangerous substance, Schedule II, with the intent to distribute, violations of La.R.S.

40:967 and two counts of possession of a controlled dangerous substance, Schedule

IV, with the intent to distribute, violations of La.R.S. 40:969. The defendant was

sentenced to ten years at hard labor and ordered to pay $1,000 fines and court costs

on each of the convictions for Counts One through Six. On counts Seven and Eight,

the defendant was sentenced to five years at hard labor and ordered to pay fines of

$1,000 plus court costs. The defendant appeals the convictions. For the following

reasons, we affirm the defendant’s convictions and affirm in part and vacate in part,

the sentences imposed. We remand the matter for the limited purpose of resentencing

with orders to impose determinate sentences on Counts Seven and Eight.

Factual and Procedural Background

The drug-related convictions of the defendant, Carlton G. Monceaux, stem

from a burglary at the Rosepine Family Pharmacy in Rosepine, Louisiana. The

burglary was discovered on the morning of October 3, 2002. Although the pharmacy

was closed at the time due to the approach of Hurricane Lili, Pharmacist Matthew

Peterson arrived at the business to fill an emergency prescription. Pharmacist

Peterson explained that an assortment of drugs were taken from various parts of the

pharmacy, including the narcotics cabinet.

According to the record, at approximately the same time of the discovery at the

pharmacy, approximately 9:00 a.m., the defendant and his brother, Charles

Monceaux, were involved in a minor automobile accident in nearby DeRidder.

According to witnesses, the driver of the vehicle, later identified as the defendant’s

brother, Charles Monceaux, fled the scene of the accident on foot, running behind a

nearby building. One of these witnesses, who was working at a nearby office,

explained that the passenger in the vehicle, who was identified as the defendant,

entered the driver’s seat of the vehicle and drove the car behind the building. The

witness’ coworker explained that the vehicle reappeared approximately ten minutes

later, returning to the accident scene.

According to the investigating officer, the defendant initially informed him that

he was driving the vehicle when it struck the other vehicle involved, but then later

admitted that his brother was driving. The officer testified that the defendant

explained that his brother fled the scene due to some previous problems with the

police. The record indicates that the defendant was then arrested for hit and run and

obstruction of justice and taken to the DeRidder Police Department.

A warrant search for the defendant’s brother revealed an outstanding probation

warrant. Following a search of the area, police officers discovered Charles Monceaux

sitting on a curb, close to the scene of the accident, with a briefcase in his lap and two

large trash bags at his side. Testimony indicates that the trash bags were found to be

full of bottled and boxed pharmaceuticals, some of which bore the name of Rosepine

Family Pharmacy. When the briefcase was opened, it also contained a quantity of

pills.

The defendant was charged by amended bill of information with six counts of

possession of a controlled dangerous substance with intent to distribute, Schedule II,

violations of La.R.S. 40:967, and two counts of possession of a controlled dangerous

substance with intent to distribute, Schedule IV, in violation of La.R.S. 40:969.

Following an August 2003 trial, a jury found the defendant guilty as charged on all

counts. The trial court subsequently sentenced the defendant to ten years at hard

labor, and a one thousand-dollar fine, plus court costs, for each of Counts One

through Six. On Counts Seven and Eight, the trial court sentenced the defendant to

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five years at hard labor, and a one thousand-dollar fine, plus court costs. All

sentences were ordered to run concurrently. A motion for reconsideration of the

sentence was denied.

On appeal, the defendant advances the following assignments of error:

I. The Trial Court erred in admitting other crimes evidence at
Appellant’s trial.

II. The Trial Court erred in finding Appellant guilty of possession of
a controlled dangerous substance with the intent to distribute.

III. The Trial Court erred in overruling defense counsel’s objections
to the value of the drugs and the admission of drugs Appellant
was not charged with possessing.

Discussion

Error Patent

As is required by La.Code Crim.P. art. 920, we have reviewed this matter for

errors patent on the face of the record. Our review reveals one such error, namely the

imposition of indeterminate sentences on Counts Seven and Eight. With regard to

these sentences, the trial court stated:

[A]nd serve five years at hard labor with the Department of Corrections
and pay fines of $1,000 plus court costs on Counts 7 and 8. All
sentences are to run concurrent, and you shall receive credit for all time
served prior to the imposition of this sentence.

Although the term “fines” indicates that a separate, $1,000.00 fine was imposed

on both Count Seven and Count Eight, the trial court’s sentence is unclear whether

separate, five-year sentences are imposed for Counts Seven and Eight. We conclude

that the sentence, as phrased, is indeterminate and, therefore, violative of La.Code

Crim.P. art. 879.1 Accordingly, we vacate the sentence(s) on Counts Seven and Eight

and remand this matter for imposition of a determinate sentence on each of these two

1
Article 879 provides: “If a defendant who has been convicted of an offense is sentenced to
imprisonment, the court shall impose a determinate sentence.”

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counts. See La.Code Crim.P. art. 879; State v. Taylor, 01-680 (La.App. 3 Cir.

11/14/01), 801 So.2d 549.

Sufficiency of the Evidence

The defendant argues the State failed to prove beyond a reasonable doubt that

he was in possession of the drugs, whether actual or constructive. The defendant also

contends that the State’s evidence was insufficient to establish that he had the intent

to distribute the drugs.

Defendant was charged with a total of eight counts of possession of a

controlled dangerous substance, Schedules II and IV drugs. See La.R.S. 40:967 and

969. The drugs defendant was charged with being in possession of were methadone,

meperidine, oxycodone, morphine, hydrocodone, codeine, alprazolam, and diazepam

in pill form. According to La.R.S. 40:964, the first six are Schedule II substances,

while the latter two are classified as Schedule IV. A pharmacist’s log indicates the

recovery of many thousands of pills from the bags and briefcase.

The offense of possession with intent to distribute Schedule II substances is

regulated by Louisiana Revised Statutes 40:967 which provides, in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part
or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised
Statutes of 1950, it shall be unlawful for any person knowingly or
intentionally:

(1) To produce, manufacture, distribute, or dispense or possess
with intent to produce, manufacture, distribute, or dispense, a controlled
dangerous substance or controlled substance analogue classified in
Schedule II[.]

With regard to Schedule IV substances, La.R.S. 40:969 provides, in pertinent

part:

A. Manufacture; distribution. Except as authorized by this part,
it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute or dispense or possess

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with intent to produce, manufacture, distribute, or dispense, a controlled
dangerous substance classified in Schedule IV[.]

On appeal, we consider a sufficiency claim under the standard enunciated in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), wherein the United States

Supreme Court explained that the reviewing court must consider whether a rational

trier of fact could have found the elements of the offense proven beyond a reasonable

doubt. In doing so, the reviewing court must consider the evidence in the light most

favorable to the State. Id.

With regard to possession, this court held in State v. Magdaleno, 03-618, p. 4-5

(La.App. 3 Cir. 10/1/03), 856 So.2d 1246, 1249-50, writ denied, 03-3342 (La.

3/26/04), 871 So.2d 347:

[T]he State is not required to prove that the defendant was in
actual possession of the cocaine; instead, the defendant may be found to
have been in constructive possession. State v. Scott, 00-113 (La.App. 3
Cir. 6/7/00), 768 So.2d 112, citing State v. Montgomery, 98-775
(La.App. 3 Cir. 1/27/99), 734 So.2d 650. If the State's case is premised
upon constructive possession, the State must prove that the controlled
dangerous substance was within the defendant's dominion and control
or in his joint possession. Scott, 768 So.2d 112, citing State v. Trahan,
425 So.2d 1222 (La.1983), and State v. President, 97-1593 (La.App. 3
Cir. 7/15/98), 715 So.2d 745, writ denied, 98-2115 (La.12/11/98), 729
So.2d 590. Joint possession is described in State v. Segura, 546 So.2d
1347 (La.App. 3 Cir.1989), as two people willingly and knowingly
sharing a direct right in the thing and an ability to exercise control over
it. Constructive possession is established by reference to the factors set
forth in State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910, in an
examination of the facts at hand: for example, the defendant's
knowledge that illegal drugs are in the area; the defendant's relationship
with the person who has physical possession of the drugs; the
defendant's access to the area where the drugs were found; evidence of
recent drug use by the defendant; and the defendant's physical proximity
to the drugs. A sixth factor given parenthetical reference in Toups is
"evidence that the area was frequented by drug users." Toups, 833
So.2d at 913, citing Bujol v. Cain, 713 F.2d 112 (5th Cir.1983), cert.
denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984). In
addition, the State must prove the defendant's guilty knowledge. Toups,
833 So.2d at 913. However, the mere presence of someone in the area
where the controlled dangerous substance is located or mere association
with the person found to be in possession of the controlled dangerous
substance does not constitute constructive possession. Id.; see also State

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v. Walker, 369 So.2d 1345 (La.1979), State v. Cann, 319 So.2d 396
(La.1975).

In support of its case, the State presented the testimony of several officers of

the DeRidder Police Department who either responded to the accident scene or who

discovered Charles Monceaux along with the drugs at issue. Sergeant Chris Rudy

testified that when he arrived at the scene of the accident, the defendant was waiting

in a nearby parking lot. According to Sergeant Rudy, the defendant initially stated

that he was the owner of the car and that he struck another vehicle as he pulled out

of a side street onto the main road. However, after being confronted with a witness’

statement that another person, who had fled, was in the car, the defendant admitted

his brother, Charles, had been with him. Sergeant Rudy also testified that the

defendant later admitted that his brother had been the driver of the vehicle and

eventually reported that his brother had prior problems with the law, which led him

to leave the scene. The defendant also told Sergeant Rudy that he and his brother had

driven north from Lake Charles the night before, fleeing Hurricane Lili. He stated

that they had a sister in DeRidder, but they could not locate her so they spent the

night in the car.

Tonya Jarrell and Priscilla Dearmon, employees of a business located on the

main road where the accident occurred, testified as to the movements of the men

following the accident. Ms. Jarrell saw the defendant and a man exit the car and hold

a brief conversation on the passenger’s side of the car. According to Ms. Jarrell, the

man who was driving left the scene and ran past her building. Ms. Dearmon went

outside to see where the man had gone and saw him run behind the nearby K-Mart

building. Both testified that, afterward, the man identified as the defendant drove the

vehicle behind the K-Mart building. Ms. Dearmon testified that approximately eight

to ten minutes later, the defendant drove from behind the building and across the

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street where the police had arrived at the scene.

According to Officer Ricky Johnson, Charles Monceaux was discovered sitting

on a curb beside the First Franklin Financial building. Next to him were two large,

black trash bags and on his lap was a briefcase. Officer Johnson testified that it was

apparent that the trash bags were full of bottles and boxes. When asked if he would

open the briefcase, Charles Monceaux told Lieutenant John Gott that he did not know

the combination and that the briefcase belonged to his brother, Carlton.

Lieutenant Gott testified that when the defendant was questioned as to whether

the briefcase was his, he confirmed it was. The lieutenant then asked for the

combination and the defendant told him the combination. When the lieutenant

opened the briefcase, he found drugs, both in the original bottles and in plastic

baggies.

Although the defendant argues in brief that there was nothing presented at trial

to indicate he was aware of the drugs found in his brother’s possession, the facts,

when viewed in a light most favorable to the prosecution as required by the standard

of review, indicates the defendant’s awareness of the contents of the trash bags and

his briefcase.

Ms. Jarrell and Ms. Dearmon testified that after Charles Monceaux ran behind

the K-Mart building, the defendant left the scene of the accident in the car before the

police arrived and drove behind the building. Ms. Dearmon explained that he

reemerged eight to ten minutes later. Given these facts, it would not be unreasonable

for the jury to conclude that the drugs were taken from the vehicle after the car

disappeared behind the K-Mart building and before the defendant returned to talk to

the police. Accordingly, the record supports the finding that the defendant had joint

possession of the drugs or at the least that the defendant exercised dominion and

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control sufficient to constitute constructive possession of the drugs, even though it

was his brother who was discovered in actual possession.

We also find evidence sufficient to support the finding that the defendant

possessed the drugs with the intent to distribute. Intent to distribute can be inferred

from the circumstances surrounding the arrest. State v. Hearold, 603 So.2d 731

(La.1992). In Hearold, the Louisiana Supreme Court explained that: “Intent is a

condition of mind which is usually proved by evidence of circumstances from which

intent may be inferred.” Id. at 735. The court further listed five factors useful in

determining whether circumstances are such that intent to distribute can be inferred:

1) [W]hether 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.

Id.

Under the circumstances of the present case, several of these factors were not

determinable. The burglary had just occurred and the drugs were still in the original

bottles and boxes. Moreover, there was no testimony whether defendant was ever

involved in distribution or attempted distribution of drugs. However, the supreme

court also stated in Hearold that “[i]n the absence of circumstances from which an

intent to distribute may be inferred, mere possession of a drug does not amount to

evidence of intent to distribute, unless the quantity is so large that no other inference

is possible.” Id. at 735-36. The State’s evidence established that the quantity of drugs

discovered was large, with the pill count numbering well into the thousands. Not

only were drugs present for which the defendant was billed, but a number of others

were present as well. Pharmacist Peterson testified that the drugs taken were

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primarily painkillers, tranquilizers, and antidepressants and that, due to the

pharmacy’s shelving system, were taken from “hundreds” of places within the

pharmacy. We conclude that the nature and amount of the drugs established in the

record was sufficient for the jury to conclude that the defendant had the requisite

intent to distribute.

This assignment lacks merit.

Other Crimes Evidence

The defendant also argues that admission of testimony regarding the burglary

of the pharmacy was impermissible other crimes evidence. The defendant argues in

brief that the introduction of testimony regarding burglary of the pharmacy was not

necessarily an integral part of the crimes for which he was charged.

Louisiana Code of Evidence Article 404(B)(1), in pertinent part, provides:

Except as provided in Article 412, evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or
accident. . . . or when it relates to conduct that constitutes an integral
part of the act or transaction that is the subject of the present proceeding.

In State v. Taylor, 01-1638, p. 10-11 (La. 1/14/03), 838 So.2d 729, 741, the

Louisiana Supreme Court explained:

Generally, courts may not admit evidence of other crimes to show
defendant is a man of bad character who has acted in conformity with
his bad character. However, under La. C.E. art. 404(B)(1) evidence of
other crimes, wrongs or acts may be introduced when it relates to
conduct, formerly referred to as res gestae, that "constitutes an integral
part of the act or transaction that is the subject of the present
proceeding." Res gestae events constituting other crimes are deemed
admissible because they are so nearly connected to the charged offense
that the state could not accurately present its case without reference to
them. A close proximity in time and location is required between the
charged offense and the other crimes evidence "to insure that 'the
purpose served by admission of other crimes evidence is not to depict
defendant as a bad man, but rather to complete the story of the crime on
trial by proving its immediate context of happenings near in time and

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place.' " State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074,
1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). . . .
In addition, as this court recently observed, integral act (res gestae)
evidence in Louisiana incorporates a rule of narrative completeness
without which the state's case would lose its "narrative momentum and
cohesiveness, 'with power not only to support conclusions but to sustain
the willingness of jurors to draw the inferences, whatever they may be,
necessary to reach an honest verdict.' " Colomb, 747 So.2d at 1076
(quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136
L.Ed.2d 574 (1997).

On appeal, we review a trial court’s ruling on the admissibility of other crimes

evidence for abuse of discretion. State v. Davenport, 33,961 (La.App. 2 Cir.

11/1/00), 771 So.2d 837, writ denied, 00-3294 (La. 10/26/01), 799 So.2d 1150. See,

e.g., State v. Bailey, 95-78 (La.App. 3 Cir. 11/2/95), 664 So.2d 665, writ denied, 96-

609 (La. 6/21/96), 675 So.2d 1077.

On the morning of trial, defense counsel made an oral motion for a Prieur

hearing, which was granted. In ruling after the hearing, the trial court stated:

The Court finds that the burglary of the pharmacy in this case is
admissible because this was a continuing event and the drugs in question
– subject to the State making proof thereof, that these drugs were
obtained from that pharmacy within hours of the time of the arrest of
Mr. Monceaux. I believe it is an integral part of it. And so I will allow
the evidence.

The trial court, however, would not permit the introduction of the fact that defendant

was charged with the burglary in Vernon Parish.

Evidence regarding the burglary was admitted through the testimony of

Pharmacist Peterson, who testified as to the nature, classification, and quantity of the

drugs at issue. He also identified purchase receipts which were still in the trash bags

containing the drugs, which verified that the drugs originated at the pharmacy. Our

review of the record reveals no abuse of discretion in the trial court’s determination

to permit the introduction of the evidence. The pharmacist’s testimony regarding the

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type and quantity of drugs involved could not only be considered an integral part of

the crime, but was probative on the issue of intent as well.

This assignment lacks merit.

Evidence as to Value of the Drugs

In his final assignment of error, the defendant contends that the trial court erred

when it allowed testimony regarding the value of all the drugs at issue and testimony

regarding drugs which were taken during the robbery but which were not subject of

the charges brought against him.

Article 403 of the Louisiana Code of Evidence provides that: “Although

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, or waste of time.” A trial court’s determination as

to relevancy/undue prejudice will not be reversed on appeal absent an abuse of

discretion. State v. Cosey, 97-2020 (La. 11/28/00), 779 So.2d 675, cert. denied, 533

U.S. 907, 121 S.Ct. 2252 (2001).

Pharmacist Peterson testified that the theft of the drugs cost him a loss of

approximately twenty thousand dollars and testified as to the individual cost of each

of the drugs taken. The defendant objected to the testimony of the value of the drugs,

arguing that the evidence was not relevant and, furthermore, was unduly prejudicial

to his case. The trial court overruled the defendant’s objections stating that: “I

suppose it does affect or is relevant to the question of intent. It does have some

relevance to the intent to distribute, as opposed to personal use. So I will allow it.”

The defendant also objected to testimony regarding the quantity of all the drugs taken

from the store as opposed to only the drugs the defendant was charged with

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possessing. Again, the trial court reasoned that the information regarding all the drugs

taken was relevant as to the intent to distribute.

The recitation of the list of drugs at issue was not unduly prejudicial when

balanced with its probative value of intent to distribute. As stated above, a

determination that the large quantity discovered was relevant to distribution was not

an abuse of discretion. Furthermore, other than an allegation of such, the defendant

fails to show how the quantity and value of the drugs found in his possession was

prejudicial, misleading, or confusing to the jury in his case.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The

sentences imposed on Counts One through Six are also affirmed. The sentence(s)

imposed on Counts Seven and Eight are vacated. This matter is remanded to the trial

court for the limited purpose of imposition of determinate sentences on Counts Seven

and Eight.

AFFIRMED. VACATED IN PART AND REMANDED WITH
INSTRUCTIONS.

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