State of Louisiana v. Glenn Von Ross

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-275

STATE OF LOUISIANA

VERSUS

GLENN VON ROSS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22544-13
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

John Foster DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Fourteenth Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward John Marquet
Louisiana Appellant Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Glenn Von Ross

EZELL, Judge.

On September 12, 2013, the defendant, Glenn Von Ross, was charged by

grand jury indictment with three separate counts: Count one: Possession of CDS

II (crack cocaine) with the intent to distribute, a violation of La.R.S. 40:967(A)(1);

Count two: Possession of CDS II (powder cocaine) with the intent to distribute, a

violation of La.R.S. 40:967(A)(1); and Count three: Possession of CDS I

(methylenedioxymethamphetamine (MDMA)) with the intent to distribute, a

violation of La.R.S. 40:966(A)(1). Thereafter, on November 7, 2013, the

indictment was amended to charge the following: Count one: Possession of CDS

II (cocaine) between 28 to 200 grams, a violation of La.R.S. 40:967(F)(1)(a);

Count two: Possession of CDS II (cocaine) 1 with the intent to distribute, a

violation of La.R.S. 40:967(A)(1); and Count three: Possession of CDS I

(methylmethcathinone (methylone)) 2 with the intent to distribute, a violation of

La.R.S. 40:966(A)(1). The defendant entered pleas of not guilty to the charges.

On the first day of trial, April 23, 2014, the State informed the trial court that

it was dismissing count two, possession of CDS II (cocaine) with the intent to

distribute. Thus, the State proceeded to trial on the charges of possession of CDS

II (cocaine) weighing between 28 and 200 grams and possession of CDS I

(methylone) with the intent to distribute. On April 24, 2014, after a two-day trial,

the defendant was found guilty of both counts by a vote of 10-2. At that time, the

trial court ordered a presentence investigation (PSI) report and the State notified

the court of its intent to file a habitual offender bill.

1
The word ―powder‖ was stricken.
2
The words ―methylenedioxymethamphetamine (MDMA)‖ were stricken.

At a hearing held August 29, 2014, the trial court was made aware that no

presentence investigative report had been received. The trial court ordered the

report returned to the court by December 1, 2014, and sentencing to be reset for

December 5, 2014. The habitual offender hearing was also refixed for December

5, 2014. On December 5, 2014, the State notified the trial court that the habitual

offender bill had been dismissed and that the State agreed not to refile the bill. The

trial court sentenced the defendant on each count to twenty-five years in the

Department of Corrections, to run concurrent with each other. Defense counsel

objected to the sentences imposed.

On January 5, 2015, the defendant filed a motion for appeal and designation

of record, which was signed by the trial court on that same date. Currently before

this court is a brief filed by the defendant, alleging two assignments of error – one

challenges the sufficiency of the evidence and the other asserts the excessiveness

of the sentences imposed. For the following reasons, both assignments lack merit.

FACTS

On July 17, 2013, a vehicle in which the defendant was a passenger was

detained by police in response to a ―shots fired‖ call. The defendant gave consent

for his backpack to be searched. As a result, the police found a pill bottle

containing both full and empty capsules, two of which tested positive for

methylone. The police also found a ―bandaid‖ box containing both powder and

crack cocaine.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed

errors patent on the face of the record. After reviewing the record, we find there

are three errors patent.

2

First, the trial court did not impose a mandatory fine of not less than

$50,000.00 nor more than $150,000.00 for the defendant‘s conviction of

possession of 28 grams or more but less than 200 grams of cocaine as required by

La.R.S. 40:967(F)(1)(a).

Next, at least five years of the defendant‘s sentence for possession with

intent to distribute methylone was not imposed without benefit of parole.

Louisiana Revised Statutes 40:966(B)(2) carries a penalty of not less than five nor

more than thirty years at hard labor, at least five of which shall be served without

benefit of parole, probation, or suspension of sentence. Both of the foregoing

errors resulted in illegally lenient sentences. ―However, this court will not

consider an illegally lenient sentence unless it is a raised error.‖ State v. Celestine,

11-1403, p. 2 (La.App.3 Cir. 5/30/12), 91 So.3d 573.

Finally, the record before this court does not indicate that the trial court

advised the defendant of the prescriptive period for filing post-conviction relief as

required by La.Code Crim.P. art. 930.8. Thus, the trial court should be directed to

inform the defendant of the provisions of Article 930.8 by sending appropriate

written notice to the defendant within ten days of the rendition of the opinion and

to file written proof in the record that the defendant received the notice. State v.

Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.

2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant challenges the sufficiency of the

evidence. Specifically, the defendant alleges that the State failed to prove that he

possessed crack cocaine (count two) with the intent to distribute. We observe that

the possession with the intent to distribute charge for which the defendant was tried

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involved methylone, not crack cocaine. Although the defendant was originally

charged in count two with possession with the intent to distribute cocaine, the State

dismissed that charge on the day of trial. Thus, we will address the sufficiency of

the evidence as to the defendant‘s possession with the intent to distribute

methylone, not crack cocaine.

Additionally, the defendant alleges that the State failed to prove that the

powder cocaine weighed at least 28 grams. We note, however, that the 28-200

grams of cocaine for which the defendant was accused of possessing was not

limited to powder cocaine. Although the defendant was originally charged with

one count of possession with the intent to distribute crack cocaine and one count of

possession with the intent to distribute powder cocaine, the possession with the

intent to distribute crack cocaine was amended to possession of cocaine between

28 to 200 grams, and the possession with the intent to distribute powder cocaine

was amended to delete the word ―powder.‖ Eventually, the possession with the

intent to distribute cocaine was dismissed. Thus, the defendant was tried on

possession of cocaine between 28 to 200 grams, with no limitation as to the type of

cocaine. We will review the sufficiency of the evidence accordingly.

Standard of Review

This court has stated the following regarding the standard for reviewing a

claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is
―whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found proof beyond a
reasonable doubt of each of the essential elements of the crime
charged.‖ State v. Leger, 05–11, p. 91 (La.7/10/06), 936 So.2d 108,
170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100
(2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678
(La.1984)). The Jackson standard of review is now legislatively

4

embodied in La.Code Crim.P. art. 821. It does not allow the appellate
court ―to substitute its own appreciation of the evidence for that of the
fact-finder.‖ State v. Pigford, 05–477, p. 6 (La.2/22/06), 922 So.2d
517, 521 (citing State v. Robertson, 96–1048 (La.10/4/96), 680 So.2d
1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate
court‘s function is not to assess the credibility of witnesses or reweigh
the evidence. State v. Smith, 94–3116 (La.10/16/95), 661 So.2d 442.

The factfinder‘s role is to weigh the credibility of witnesses.
State v. Ryan, 07–504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268.
Thus, other than ensuring the sufficiency evaluation standard of
Jackson, ―the appellate court should not second-guess the credibility
determination of the trier of fact,‖ but rather, it should defer to the
rational credibility and evidentiary determinations of the jury. Id. at
1270 (quoting State v. Lambert, 97–64, pp. 4–5 (La.App. 3 Cir.
9/30/98), 720 So.2d 724, 726–27). Our supreme court has stated:

However, an appellate court may impinge on the
fact finder‘s discretion and its role in determining the
credibility of witnesses ―only to the extent necessary to
guarantee the fundamental due process of law.‖ State v.
Mussall, 523 So.2d 1305, 1310 (La.1988). In determining
the sufficiency of the evidence supporting a conviction,
an appellate court must preserve ― ‗the factfinder‘s role
as weigher of the evidence‘ by reviewing ‗all of the
evidence . . . in the light most favorable to the
prosecution.‘ ‖ McDaniel v. Brown, 558 U.S. [120],
[134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the
evidence presented at trial, ―any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.‖ Jackson, 443 U.S. at 319, 99
S.Ct. at 2789. Applied in cases relying on circumstantial
evidence, . . . this fundamental principle of review means
that when a jury ―reasonably rejects the hypothesis of
innocence presented by the defendant[ ], that hypothesis
falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.‖ State v.
Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09–2357, pp. 10–11 (La.10/22/10), 49 So.3d
372, 378 (alteration in original).

5

State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ

denied, 13-1253 (La. 11/8/13), 125 So.3d 449 (alterations in original). As will be

discussed below, we find that the evidence was sufficient to convict the defendant.

Evidence Introduced at Trial

The first witness to testify for the State was Detective Shaun Touchet, a

police officer with the Lake Charles Police Department. On July 17, 2013,

Detective Touchet responded to a ―shots-fired‖ call involving a silver Honda.

Detective Touchet spotted a silver Honda parked ―just off the roadway, in an

empty lot‖ with three occupants and a black male leaning into the front passenger

window of the vehicle. When the detective made contact with the vehicle, all of

the occupants were asked to get out. All occupants were patted down, and the

driver gave permission to search the vehicle. According to Detective Touchet, the

front passenger (the defendant) was acting nervous. Detective Touchet noticed a

backpack sitting on the center console of the front seat, ―kind of more towards the

passenger seat.‖ Detective Touchet testified that the defendant seemed nervous

about the backpack and acted like he did not want to leave it when he got out of the

vehicle. When asked if the backpack was his, the defendant stated that it was. The

defendant also told Detective Touchet that he did not have a problem with the

detective searching the backpack.

Detective Touchet told the defendant that he was concerned there was a

weapon in the backpack. When the detective obtained the defendant‘s verbal

consent to search the backpack, the detective put the backpack on the hood of the

vehicle and immediately noticed a pill bottle in an open compartment. The pill

bottle had no label and appeared to ―have narcotics inside of it, pills.‖ Detective

Touchet then described the contents of the bottle as capsules:

6

A: They were - - in my opinion, it looked like they were fillable
capsules, which, in my training and experience, I‘ve seen that they
take empty capsules and fill them with different types of narcotics,
typically what we call molly, which is MDMA.

Q: And is there another name - - and can you explain to the Jury a
little bit of what MDMA is, in a sense of why people take it, or
anything like that, or another name maybe it‘s referred to as.

A: There‘s a lot of names for it, and I‘m not sure what you‘re
looking for. There‘s - - they have several different compounds in
MDMA. So, like I said, they call it different names. They have
methylone in ‗em, they have - - sometimes they have methadone in
‗em. They have a whole lot of different compounds inside of them.
So, I‘m not - - I‘m not quite sure which one - - what you‘re looking
for.

Q: Well, MDMA, is it one of the main ingredients in ecstasy as
well?

A: Absolutely.

Detective Touchet testified that the capsules were clear with no label, which is not

typical of a manufactured pill.

When Detective Touchet opened the pill bottle, he clearly saw what

appeared to be ―mollies.‖ In the same area of the backpack, Detective Touchet

saw a ―band aid‖ box that appeared to have a small piece of cellophane sticking out

of it, ―like a baggie of some kind.‖ When Detective Touchet opened the ―band

aid‖ box, he found ―more narcotics, powder cocaine and crack cocaine.‖ When

asked how much cocaine he believed to be in the box, Detective Touchet

responded:

A: Well, the powder cocaine looks like it was about an ounce of
powder, and it was still - - it still had a shape to it, as if it was cut off
the corner of what we refer to as a brick. But a kilo of cocaine is
typically bundled a certain way, and it looked like it had been - - the
corner had been cut off, and that‘s what you could - - you could
actually see it inside the cellophane, that the corner of the kilo was
inside there. And it looked like it was about an ounce of powder
itself. And then I found two other bags. One had broken cookies, like
quarter cookies in it, and then the other bag had actual rocks in it.

7

Detective Touchet then explained what he meant by ―pieces of a cookie:‖

A: Typically, whenever they make crack cocaine, the way they
distribute it or how they make it is into the shape of a cookie. It‘s a
round kind of disc, and it‘s - - we refer to it on the street as a cookie.
Typically, it‘s - - a true cookie is 28 grams. Not everybody has 28-
gram cookies because they make more money if they cut it more. But
typically they will either sell it by the cookie, or they can quarter the
cookie, or cut it in different shapes to sell it that way. And it‘s all by
weight, of course, but they can cut it in different ways. And then
sometimes they cut it all the way down to where it‘s small, and it
looks like rocks. We refer to it as crack rocks.

Detective Touchet stated that the pill bottle contained ―[n]inety something‖

capsules - some empty and some full. The detective estimated that there were

seventy-eight full capsules. When asked if that was a typical amount someone

would possess for personal use, Detective Touchet responded, ―Absolutely not;

that‘s distribution.‖ Then, when asked if the mixture of full and empty capsules

meant anything, Detective Touchet responded:

A: It does. Typically, when - - when you find that amount of full
capsules, or you find empty capsules with - - with full capsules, they
are not necessarily manufacturing it, but they‘re taking the powder
and filling up the capsules. So they‘re manufacturing the complete
product. So they‘re taking the empties and putting the powder in it so
they can distribute it evenly with the capsules. That‘s typically what
they do if you find the empties.

In Detective Touchet‘s opinion, if a person has more than five or six capsules of

mollies, then distribution, not personal use, is intended.

According to Detective Touchet, the defendant made a couple of statements

when he found out what he was being charged with. The defendant told the

detective that ―it was personal use and not distribution.‖ When asked why he

decided to charge the defendant with possession with intent to distribute, Detective

Touchet replied:

A: Considering the circumstances and the amount of narcotics that
were in the bag, I felt like he was trying to distribute that. And the

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area that we were in, the fact that a gentleman was leaning in his
window - -

....

Q: And you had mentioned the area. Specifically, do you - - do
y‘all get called out to that area a lot?

A: We do. It‘s a high-crime area and a high narcotics area.
There‘s - - there is a significant amount of drug sales and prostitution
in that area as well.

....

Q: When you‘re talking about narcotics, are you talking - - we‘re
talking specifically about the cocaine right now?

A: Yes.

Q: Okay.

A: And that‘s why - - with the cocaine - - the crack and the powder
cocaine, that‘s not personal use, so that‘s why I believe that it was - -
his intent was to distribute that cocaine.

As for his reason for charging the defendant with possession with the intent

to distribute the ―suspected MDMA,‖ Detective Touchet testified:

A: Along the same lines. Because there‘s such a large amount, and
that he had empties that he can - - the empty capsules that he can fill
to distribute those as well. That‘s not typically something you see
over just typical use.

Finally, Detective Touchet testified that the defendant was the only person to claim

the backpack and the narcotics.

On cross-examination, Detective Touchet admitted that he did not find any

scales, knives, razors, or cutting boards when he searched the car. The detective

also did not recall finding any empty plastic bags. Although he believed the car

occupants had a standard amount of money on them, Detective Touchet did not

find a large amount of money on the occupants. When asked to explain again why

he felt the narcotics were not for personal use, Detective Touchet answered:

9

A: Based on the amount, and like I said, my training and
experience, and the fact that the amount of narcotics is not something
that someone purchases for personal use.

....

A: Typically, narcotics users don‘t purchase bulk quantity of
narcotics for personal use. Typically, they purchase whatever they
can, and then they use it, and then they go buy more.

Detective Touchet further explained that an ounce of cocaine used over a week‘s

period of time would probably kill a person.

On re-direct, Detective Touchet testified that scales and razors would not be

needed in the present situation:

A: No. Typically, whenever they cut suspected crack rocks, it‘s
not - - they‘re going to sell it by the rock and not necessarily by the
weight at that point. Once they cut it down, they‘re selling it by the
size. You know, if it‘s - - if it‘s a large crack rock, it‘ll sell for a little
more than a smaller crack rock, but it‘s not weighed at that point.

Specifically addressing the MDMA, Detective Touchet opined that there would be

no need for scales or razors since the powder is simply put ―into the capsule

maker.‖

As for the total suspected amount of cocaine, Detective Touchet testified

that there was over 28 grams. As far as the suspected MDMA capsules, Detective

Touchet testified that there were at least seventy-eight full capsules.

The next witness to testify for the State was Detective Jeremy Nunez of the

Calcasieu Parish Sheriff‘s Office, Combined Anti-Drug Task Force. Detective

Nunez was called out to the scene involving the defendant. When Detective Nunez

arrived at the scene, Detective Touchet updated Detective Nunez on the

investigation. When asked what his personal impression was during the

investigation, Detective Nunez stated that he believed the defendant was in the area

―possibly selling narcotics.‖ The detective explained:

10

A: Well, the people that we deal with on a regular basis - - we
make undercover purchases throughout the parish. These people are
purchasing - - whenever they‘re - - if they were to purchase molly,
they would go buy one to three capsules, maybe five, at the tops.

Q: And I guess - - let me just clarify. You talk about a person - -
would it be for personal use?

A: Personal use, that‘s correct.

Q: Okay. Go ahead.

A: One to five capsules on a maximum for personal use. Then you
have people that use crack cocaine. People that use crack cocaine
aren‘t carrying around what he had, they‘re carrying around one to
three rocks, at the most.

Detective Nunez estimated that the total amount of cocaine (powder and crack)

found was over 28 grams. People purchasing powder cocaine for personal use,

Detective Nunez testified, usually purchase ―anywhere from a quarter gram of

powder cocaine up to a 3.30 grams, or an eight ball . . . .‖ The powder cocaine

found in the present case was more than half of an ounce. According to Detective

Nunez, a half of an ounce of powder cocaine is valued at $500. When Detective

Nunez prepared his supplemental report, he learned the powder cocaine was closer

to one ounce, which would be valued at close to $1,000.00.

As for the ―molly capsules,‖ Detective Nunez opined that the defendant was

filling the empty capsules with ―some sort of bag of powder - - of MDMA or

molly[.]‖ The crack cocaine was in one clear plastic bag, broken into larger pieces.

Detective Nunez testified that the crack cocaine was not broken up into ―smaller

pieces like that - - what we see on the street as for distribution.‖ Then, when asked

if the numerous pieces in the bag was consistent with personal use, Detective

Nunez replied, ―No.‖ The detective explained that a person using crack cocaine

for personal use will possess one to three rocks about the size of a pencil eraser.

11

The pieces found in the present case were larger than a pencil eraser. Detective

Nunez testified that there is a market for both powder and crack cocaine and that

powder cocaine is also used in the manufacturing of crack cocaine. Although the

defendant did not want to give a statement, Detective Nunez testified that the

defendant blurted out that the drugs were all for personal use.

On cross-examination, when asked if it was common for people who are

distributing drugs to have scales or baggies, Detective Nunez responded, ―In some

instances, yes, that‘s correct.‖

Tracy Legros, the Director of the Southwest Louisiana Crime Lab, testified

by audio-visual testimony. Ms. Legros identified State‘s Exhibit Number 2

(submission number five) as a sealed brown envelope containing suspected pills.

Ms. Legros stated that there was a plastic amber bottle containing twelve empty

capsules, which were not tested. Seventy-one capsules containing a white powder

were also found, two of which were tested.

State‘s Exhibit Number 4 (submission number two) was identified by Ms.

Legros as a plastic baggie with off-white material weighing 8.3 grams. State‘s

Exhibit Number 5 (submission number three) was next identified by Ms. Legros as

a plastic baggie containing an off-white material weighing 7.6 grams. Finally, Ms.

Legros identified State‘s Exhibit Number 6 (submission number four) as a plastic

baggie containing an off-white material weighing 27.6 grams.

Ida Benoit, the Quality Assurance Manager at the Southwest Louisiana

Crime Lab, also testified by audio visual testimony. Ms. Benoit identified State‘s

Exhibit Numbers 4 and 5 (submission numbers two and three) as an off-white

material containing cocaine base. Ms. Benoit identified State‘s Exhibit Number 6

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(submission number four) as an off-white material containing cocaine. When

asked if the total weight of the cocaine exceeded 28 grams, Ms. Benoit testified:

A: The total weight of cocaine hydrocholoride is 27 grams. And
the total weight of cocaine base is close to 16 grams. If you combine
those two, yes, it is over 28 grams.

On cross-examination, Ms. Benoit explained that cocaine base is commonly known

as crack, and cocaine hydrochloride is commonly known as cocaine. The

difference, Ms. Benoit explained, ―would like be the difference between powdered

milk and milk[,]‖ ―[t]hey‘re the same thing, just one‘s in a different form.‖

Ms. Benoit identified State‘s Exhibit Number 2 (submission number five) as

seventy-one capsules containing an off-white material, two of which were tested to

contain methylone. When asked to explain what methylone is, Ms. Benoit

testified:

A: Methylone is in a group of chemicals commonly known as bath
salts. It is a compound that is related to the cathinone compound.
They just added on some extra pieces.

According to Ms. Benoit, methylone is ―very structurally similar to MDMA.‖ Ms.

Benoit further testified that ―methylone or methyl cathinone‖ is a ―Schedule I‖

stimulant.

Possession with the Intent to Distribute Methylone

The defendant was convicted of possession with the intent to distribute

methylone. In brief, appellate counsel asserts that the evidence was insufficient to

prove possession with the intent to distribute, since the police did not witness any

distribution, there was no testimony that the defendant was attempting to distribute

drugs, and there was no evidence of scales, individually wrapped baggies, or other

paraphernalia evidencing intent to distribute. The State, on the other hand, asserts

that it presented ample evidence to sustain the conviction. We find the evidence

13

was sufficient to prove the defendant possessed methylone with the intent to

distribute.

The State was required to prove that the defendant specifically intended to

distribute the methylone. See State v. Eubanks, 12-896 (La.App. 3 Cir. 4/10/13),

112 So.3d 1064. This court has stated the following regarding factors to consider

in determining whether specific intent to distribute has been proven:

―Intent is a condition of mind which is usually proved by
evidence of circumstances from which intent may be inferred.‖ State
v. Hearold, 603 So.2d 731, 735 (La.1992) (citations omitted). There
are five factors courts consider to determine whether an intent to
distribute can be inferred:

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.

Id.

Id. at 1066 (citing State v. Bivens, 11-156 (La.App. 3 Cir. 10/5/11), 74 So.3d 782,

790, writ denied, 11-2494 (La. 3/30/12), 85 So.3d 115).

As set forth above, Detective Touchet saw someone leaning into the front

passenger window of the vehicle in which the defendant was the front passenger, a

fact the detective considered when deciding to charge the defendant with

possession with the intent to distribute. Detective Touchet also testified that the

area in which the vehicle was spotted was a high-narcotics area. Additionally, the

amount of pills containing methylone in the defendant‘s backpack (seventy-four)

was more than the typical amount associated with personal use. The empty

14

capsules, Detective Touchet testified, could be filled and distributed and were not

typically associated with personal use. Detective Nunez agreed that a user would

typically purchase only three to five ―mollies‖ for his personal use.

Even though no bags, scales, or razors were found in the defendant‘s

possession, the testimony was sufficient for the jury to find the defendant

possessed methylone with the intent to distribute. As Detective Touchet testified,

no scales or razors were necessary for distribution in the present case.

Sufficiency of the Evidence as to Weight of Cocaine

The defendant was also convicted of possessing cocaine weighing 28 to 200

grams. Appellate counsel asserts that the evidence was insufficient to find the

defendant guilty of possession of 28 to 200 grams of cocaine since Ms. Legros

testified that the powder cocaine weighed 27.6 grams. Appellate counsel argues:

Nothing further is needed; 27.6 grams is not 28 grams. There is no
law or precedent that indicates it must be rounded up. The lab
analysts used precise and highly calibrated machines when taking
measurements. Plain and simple, 27.6 is not 28.

As previously explained, the amended charge of possession of cocaine

weighing 28 to 200 grams did not limit the cocaine to either powder or crack.

Thus, the State was not limited to the weight of the powder cocaine. Ms. Benoit,

the Quality Assurance Manager at the Southwest Louisiana Crime Lab, clearly

testified that the total weight of cocaine found in the present case exceeded 28

grams. Thus, the evidence was sufficient to prove the defendant possessed 28 to

200 grams of cocaine.

For the foregoing reasons, this assignment lacks merit.

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ASSIGNMENT OF ERROR NUMBER TWO

The defendant asserts that the trial court erred in imposing an excessive

sentence of twenty-five years at hard labor against a fifty-three-year-old man. The

defendant was convicted of one count of possession of cocaine weighing 28 to 200

grams and one count of possession with the intent to distribute methylone. For the

possession of cocaine weighing 28 to 200 grams, the defendant was exposed to a

term of imprisonment at hard labor for not less than five years, nor more than thirty

years (five years to be served without benefits), and to a fine of not less than

$50,000.00, nor more than $150,000.00. La.R.S. 40:967(F)(1)(a) and (G). For the

crime of possession of methylone with the intent to distribute, the defendant was

exposed to a term of imprisonment at hard labor for not less than five years, nor

more than thirty years, with at least five years of the sentence to be served without

benefit of parole, probation, or suspension of sentence. La.R.S. 40:966(B)(2). The

trial court sentenced the defendant to twenty-five years at hard labor on each count

and ordered the sentences to run concurrently. Thus, on each count, the defendant

was sentenced to five years less than the maximum term of imprisonment.

After the trial court imposed the sentences, defense counsel noted his

objection to the sentences. No other objection or motion to reconsider sentence

was made. Thus, this court‘s review of the defendant‘s sentences is limited to a

―bare bones‖ excessiveness review. See State v. Eubanks, 12-896, p. 9 (La.App. 3

Cir. 4/10/13), 112 So.3d 1064, 1070. The law is well settled concerning the

standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, ―[n]o law
shall subject any person to cruel or unusual punishment.‖
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or

16

that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d
124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067.
The relevant question is whether the trial court abused its
broad sentencing discretion, not whether another
sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied,
519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d
331.

. . . .[E]ven when a sentence falls within the statutory
sentencing range, it still may be unconstitutionally excessive, and in
determining whether a sentence shocks the sense of justice or makes
no meaningful contribution to acceptable penal goals, this court has
suggested that several factors may be considered:

[An] appellate court may consider several factors
including the nature of the offense, the circumstances of -
the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed
for similar crimes. State v. Smith, 99-0606 (La.7/6/00);
766 So.2d 501. While a comparison of sentences
imposed for similar crimes may provide some insight, ―it
is well settled that sentences must be individualized to
the particular offender and to the particular offense
committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the
trial court to particularize the sentence because the trial
judge ―remains in the best position to assess the
aggravating and mitigating circumstances presented by
each case.‖ State v. Cook, 95-2784 (La.5/31/96); 674
So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786,
789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91.

(first and third alterations in original)

17

After the State announced its intent to dismiss the habitual offender bill

against the defendant, defense counsel asked the court to consider the following

when sentencing the defendant:

MR. RICHARD:

Your Honor, in considering your sentence, Mr. Ross has
informed me that a lot of these - - or all of these charges are in his
past, and these current ones were in support of a drug habit. And he
would like to be able to have any kind of treatment options that DOC
could provide while he‘s serving his sentence.

And, Your Honor, he also has no arrests at all for any crimes of
violence or any sex crimes or anything of that nature. Most of his
convictions have been drug-related.

....

MR. WILLIAMS:

Ralph Williams, co-counsel in this matter, Your Honor. We
would like to note that Mr. Ross is 52 years of age at this time. His
last conviction was eight years ago, and I will suggest to the Court in
the request for leniency that most statistics will indicate that an
individual who approaches the age of 50 or who has attained the age
of 50, generally those statistics indicate that that individual ends any -
- or is likely - - more likely than not to end any further acts of a
criminal nature.

So in our request for leniency by the Court, we will ask the
Court or suggest to the Court that statistics will indicate that once Mr.
Ross completes this sentence, he is not likely to return.

The State, however, asked the trial court to consider imposing the maximum

sentences. The State recognized that because the offenses occurred at the same

time, they would likely be ordered to run concurrently. The State argued, however,

that maximum sentences were appropriate considering the defendant‘s criminal

history and the amount of narcotics involved. In its brief on appeal, the State

further asserts that had it not dismissed the habitual offender bill filed against the

18

defendant, the defendant would have faced life imprisonment as a fourth habitual

offender.

The trial court stated the following before imposing sentence:

THE COURT:

All right. I sat through two trials with Mr. Ross. The first trial
Mr. Ross was found not guilty. Although, as I viewed the evidence, I
think it was very - - he was very fortunate just that the camera angles
weren‘t - - weren‘t right on the undercover agent. And his lawyer did
a good job of confusing the issues for the jury, but, you know, it
looked like it was very clear to me that Mr. Ross, you know, was
involved in that.

But, yeah, he was found not guilty, and it is what it is. And I‘m
not going to hold that against him in this - - in his sentence in this
case, but I just - - one of the reasons I bring that up is that when I look
at Mr. Ross‘s criminal history and how extensive it is, back from
1982, unauthorized use of a motor vehicle arrest, vehicle theft,
unlawful possession of a pistol, and then another arrest in ‘85 for
forgery over in Houston, and then ‘86, possession of stolen property
here in Calcasieu Parish. Well,, [sic] that was a misdemeanor.

‘88, burglary of a motor vehicle. He was sentenced to two
years [in the] Texas Department of Corrections. ‘91, had some other
charges. There‘s no disposition found. Also in ‘91, possession of
CDS II with intent to distribute. He was found guilty by a jury on
6/24/93 and was sentenced to five years DOC with credit for time
served.

Looks like he probably went to trial on that burglary. One
thing, Mr. - - Mr. Ross exercises his right to jury trial for sure, and
he‘s had at least three our [sic] four jury trials, and he was able - - he
got found not guilty on this - - on one that I presided over. But
anyway, he was found guilty by the jury in that possession with intent
back in ‘91, sentenced to five years.

And in this particular case - - okay. Then in ‘96, he was
charged with possession of cocaine, possession of marijuana with
intent to distribute, possession of a firearm by a convicted felon,
illegal use of U.S. currency and possession of drug paraphernalia.

He pled guilty to possession of large quantities of cocaine. This
marijuana with intent was dismissed. Pled guilty to the possession of
a firearm by a convicted felon charge. And the other - - the other
charges were dismissed. He received ten years [with the] Department
of Corrections without benefit of probation or parole.

19

In 2009, he had some felony - - produce, production,
manufacture, distribution or possession with intent Schedule II and
distribution of Schedule I. Anyway, those were dismissed in 2011.

He had some other charges from St. Landry Parish. No
disposition was found. From 2011, he was arrested for the
distribution, manufacture and possession with intent CDS II. That‘s
the charge he was found not guilty on by the jury in June of 2013.

Now, the instant case, possession of CDS Schedule II between
28 and 200 grams, the jury found him guilty on that charge and guilty
of the charge of possession of CDS I with intent to distribute.

And the amazing thing is he had been in jail for almost two
years at the time he was found not guilty by the jury. In about five
weeks‘ time, after he was released from jail, after being found not
guilty, he gets arrested for these new charges of possession of CDS II
between 28 and 200 grams, possession of CDS I with intent to
distribute.

So he didn‘t have any sense of - - you know, he went right back
to doing the only thing he‘s ever seemed to do in his adult lifetime
which is to deal drugs. And that‘s all he knows.

And, you know, Mr. Ross, at some point you have to care about
people in this world if you‘re ever going to have - - you know, make
good decisions. But if you‘re only - - if you only use people and, you
know, and you don‘t care about their well-being when you‘re selling
them poison that destroys their lives - - and that‘s how you make a
living is by helping people destroy their lives, and you don‘t care at all
about the people whose lives are being destroyed and their children
that are being affected and all the other family members that are being
affected by the stuff that you‘re - - that you made a lifetime of - - or
that you‘ve done for a lifetime, you know, as your business.

I respect what you said, and I think a lot of - - generally
speaking, I think that‘s true, Mr. Williams. But, you know, some
people - - I‘ve sentenced some 60-something-year-old drug dealers,
70-year-old drug dealers. Some people don‘t ever stop, because
apparently that‘s all they know, like Mr. Ross. That‘s all he knows.

And when you have no respect for human life, for other people,
and you just use them to make money no matter how bad what you‘re
selling to them hurts them or perpetuates the destruction of their lives,
I don‘t know what more you could really want.

You know, you had a chance. You had a golden opportunity to
walk away with a fresh start in your life when that jury found you not

20

guilty, but your arrogance and your lack of concern for anybody else
just led you right back to doing what you do. Within a few weeks you
were arrested again with even more drugs than you had the first time.

So anyway, I think because of all of that - - and let me just say
this. For the record, I have reviewed the pre-sentence report.

....

All right. All right. Well, I have reviewed the pre-sentence
report, and I have - - I presided over the trials, or this trial when he
was convicted, and I have reviewed the history. I have not received
any letters of support or - - either opposing or supporting Mr. Ross,
and I have considered - - reviewed and considered all the aggravating
and mitigating factors set forth in Article 894.1.

And just because of the lifelong history of Mr. Ross and dealing
drugs and helping to destroy people‘s lives the way he has, I‘m going
to - - I‘m going to sentence you, Mr. Ross, to 25 years [with the]
department of corrections - -

....

- - on each count. [A]nd I will run that time - - I will allow that
time to be concurrent with one another.

In response, the defendant told the court that he had never been ―rehabbed,‖

that he used drugs because of a disability, and that he did not sell any drugs. The

trial court told the defendant that a twenty-five year sentence might make the State

feel less inclined to charge the defendant as a habitual offender, a charge that could

expose the defendant to life without benefits. Finally, the trial court recommended

the defendant be allowed to participate in any programs available through the

Department of Corrections.

Considering the defendant‘s criminal history and the reasons given by the

trial court, we find the sentences imposed are not excessive. Furthermore, the

Court notes that similar sentences have been imposed. In State v. Harris, 48,659

(La.App. 2 Cir. 5/28/14), 140 So.3d 1226, writ denied, 13-2771 (La. 7/31/14), 147

So.3d 168, writ denied, 14-1312 (La. 2/5/15), 158 So.3d 810, Harris was sentenced

21

to twenty-five years at hard labor (five without parole) for possession of 28-200

grams of cocaine, five years at hard labor for battery of a police officer, and

twenty-five years at hard labor for possession of marijuana with the intent to

distribute. The sentences were ordered to run concurrently.

In State v. Clark, 05-61 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, writ

denied, 05-2119 (La. 3/17/06), 925 So.2d 538, the defendant was sentenced to

twenty-five years at hard labor for possession with the intent to distribute cocaine.

The State originally charged Clark as a third habitual offender but later withdrew

the bill. The presentence investigation report showed Clark was a fourth felony

offender and admitted to previously abusing marijuana, crack cocaine, and alcohol.

In State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ

denied, 09-755 (La. 12/18/09), 23 So.3d 931, the defendant was sentenced to thirty

years at hard labor, five of which was to be served without benefits, for possession

of cocaine weighing between 28 and 200 grams. The excessiveness of his sentence

was not challenged on appeal.

Finally, we observe the supreme court‘s repeated admonition ―that sentence

review under the Louisiana constitution does not provide an appellate court with a

vehicle for substituting its judgment for that of a trial judge as to what punishment

is more appropriate in a given case.‖ State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93

So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461;

State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957; and State v. Humphrey, 445

So.2d 1155 (La.1984)). Considering the facts of this case, the defendant‘s prior

criminal history, the jurisprudence, and the supreme court‘s admonition, we find

the sentences imposed in the present case are not excessive.

Accordingly, this assignment lacks merit.

22

DECREE

The defendant‘s convictions and sentences are affirmed. The trial court is

ordered to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to the defendant within ten days of the rendition

of the opinion and to file written proof in the record that the defendant received the

notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

23