State of Louisiana v. Solomon Burke Guillory, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-353

STATE OF LOUISIANA

VERSUS

SOLOMON BURKE GUILLORY, JR.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 114551-F
HONORABLE CHUCK RANDALL WEST, DISTRICT JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

AFFIRMED IN PART; VACATED IN PART;
REMANDED FOR RESENTENCING.

Trent Brignac
District Attorney, Thirteenth Judicial District
Julhelene E. Jackson
Assistant District Attorney
Post Office Box 780
Ville Platte, Louisiana 70586
(337) 363-3438
Counsel for Appellee:
State of Louisiana

Dayal Reddy
2901 Ridgelake Drive, Suite 105
Metairie, Louisiana 70002
(504) 383-3606
Counsel for Defendant/Appellant:
Solomon Burke Guillory Jr.

FITZGERALD, Judge.

In this appeal, Solomon Burke Guillory Jr. (Defendant) appeals his convictions

and sentences for possession with intent to distribute crack cocaine, possession with

intent to distribute marijuana, and possession of tramadol.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

On January 29, 2019, Defendant was driving a vehicle when he was stopped by

police. The police subsequently found several controlled dangerous substances in and

around the vehicle.

On February 26, 2019, Defendant was charged by bill of information with the

following: (1) possession with intent to distribute methamphetamine, a violation of

La.R.S. 40:967; (2) possession with intent to distribute promethazine, a violation of

La.R.S. 40:969; (3) possession of less than two grams of marijuana, a violation of

La.R.S. 40:966; (4) possession of promethazine, a violation of La.R.S. 40:970; (5)

possession of drug paraphernalia, a violation of La.R.S. 40:1023; (6) improper display

of a temporary plate, a violation of La.R.S. 47:521; and (7) violating Uniform

Controlled Dangerous Substances Law while on property located within a drug free

zone, a violation of La.R.S. 40:981.3.

On December 2, 2019, the State filed an amended bill of information which the

trial court granted. Counts one through three were amended to (1) possession with

intent to distribute crack cocaine, a violation of La.R.S. 40:967; (2) possession with

intent to distribute tramadol, a violation of La.R.S. 40:969; and (3) possession with

intent to distribute marijuana, a violation of La.R.S. 40:966. The trial court severed

counts five and six. Count seven was dismissed.

That same day, on December 2, 2019, a jury trial began on amended counts one

through three. On December 4, 2019, Defendant was found guilty of possession with

intent to distribute crack cocaine and possession with intent to distribute marijuana.

Defendant was also found guilty of the responsive verdict of possession of tramadol.

On February 3, 2020, the trial court sentenced Defendant as follows: (a) for

possession with intent to distribute crack cocaine, Defendant was sentenced to serve ten

years at hard labor with a fine of $10,000; (b) for possession of tramadol, Defendant

was sentenced to serve five years at hard labor with a fine of $2500, and this sentence

was ordered to run consecutively with the sentence imposed for possession with intent

to distribute crack cocaine; and (c) for possession with intent to distribute marijuana,

Defendant was sentenced to serve ten years at hard labor with a fine of $10,000, and

this sentence was ordered to run concurrently with the other sentences imposed.

Defendant filed a Motion to Reconsider Sentence. The trial court denied the motion,

and this appeal followed.

On appeal, Defendant requests a review for errors patent and asserts the

following assignments of error:

1. The State of Louisiana did not establish the proper jurisdiction at
trial.

2. The State of Louisiana did not establish reasonable suspicion for the
traffic stop.

3. The testimony regarding a scale allegedly seized is irrelevant and
prejudicial.

4. The trier of fact erred in finding him guilty.

5. The sentence is excessive.

LAW AND ANALYSIS

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, we review appeals for errors patent

on the face of the record. After reviewing the record, we find no errors patent.

II. Assignment of Error No. 4

When a defendant raises issues on appeal as to the sufficiency of the evidence

and as to one or more trial errors, the reviewing court must first resolve the sufficiency

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issue. State v. Hearold, 603 So.2d 731 (La.1992). Therefore, we will first address

Defendant’s sufficiency arguments.

In his fourth assignment of error, Defendant asserts that the evidence at trial was

insufficient to prove his guilt beyond a reasonable doubt.

A sufficiency of the evidence claim is reviewed on appeal under the standard set

forth by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “[T]he relevant

question is whether, after viewing the evidence in the light most favorable to the

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

crime beyond a reasonable doubt.” Id. at 319. “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 fact-finder.” State v.

Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521. The appellate court’s function

is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith,

94-3116 (La. 10/16/95), 661 So.2d 442.

The reviewing court must afford great deference to a jury’s decision to accept or

reject the testimony. State v. Sizemore, 13-529, 13-530 (La.App. 3 Cir. 12/18/13), 129

So.3d 860, writ denied, 14-167 (La. 8/25/14), 147 So.3d 699. “‘Where there is

conflicting testimony about factual matters, the resolution of which depends upon a

determination of the credibility of the witnesses, the matter is one of the weight of the

evidence, not its sufficiency.’” State v. Thomas, 17-959, pp. 13-14 (La.App. 3 Cir.

9/26/18), 255 So.3d 1189, 1199, writ denied, 18-1757 (La. 4/22/19), 268 So.3d 294

(quoting State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622).

Summary of the Evidence Adduced at Trial

Officer David Charlie, of the Mamou Police Department, testified that on January

29, 2019, he initiated a traffic stop after observing a vehicle with an illegible temporary

tag. The driver threw “white objects” out of his window as the vehicle was coming to

a stop. Officer Charlie smelled what he believed was marijuana as he walked towards

3

the vehicle. When the driver stepped out of the vehicle, Officer Charlie saw a rolled-

up cigar on the “driver’s side seat.” At that point, he handcuffed the driver and placed

him inside the back of the patrol car. Officer Charlie returned to the vehicle and picked

up the cigar, which he said smelled like marijuana and contained a green leafy

substance. Officer Charlie identified Defendant as the driver. Officer Charlie

acknowledged there was also a passenger in the vehicle but could not remember his

name.

Officer Charlie testified that Mamou Chief of Police Brent Zachery arrived at the

scene and assisted him. In addition to the cigar, Officer Charlie explained that he and

Chief Zachery found the white objects that were thrown from the driver’s window.

They also found various other suspicious items inside the vehicle. Officer Charlie was

then presented with photographs of the seized items. He testified that the photographs

accurately depicted a clear plastic bag containing 3.5 grams of a green leafy substance

and a cigar; a jar containing a clear plastic bag with a white substance inside; a clear

plastic bag containing a white substance and a razor blade; a jar containing a white

substance and a green leafy substance; and a scale that measured in grams. He then

identified a bottle of promethazine that was also found inside the vehicle.

When asked about the passenger, Officer Charlie responded that he was

cooperative and was not detained. Officer Charlie was unable to recall whether he

asked the passenger if the drugs belonged to him. His police report did not reflect any

questions being asked of the passenger. Officer Charlie admitted that the cigar was

within arm’s reach of the passenger. He explained that the police department’s standard

operating procedure permits handcuffing a driver during routine traffic stops and

detaining the passenger when warranted by the circumstances. He admitted that he did

not determine ownership of the vehicle, and he agreed it was possible that Defendant

borrowed the vehicle and was unaware of the drugs.

4

Chief Zachery testified that he arrived at the scene as Officer Charlie was about

to search the vehicle. Chief Zachery observed the search of the vehicle. He then

assisted in the search for the items that were thrown out of the vehicle. According to

Chief Zachery, Officer Charlie located small white pieces of what appeared to be crystal

methamphetamine or crack cocaine in the grass and rocks approximately three feet from

the driver’s door. The items were placed in an evidence bag. Chief Zachery identified

Defendant as the person detained. Chief Zachery confirmed that normal operating

procedure involved removing and handcuffing a driver when an officer smells

marijuana.

Chief Zachery explained that when he arrived, he dealt with the passenger who

was out of the vehicle. Chief Zachery spoke to the passenger but did not handcuff him.

According to Chief Zachery, Officer Charlie did not violate procedure by removing and

handcuffing the driver but not the passenger. According to Chief Zachery, the

passenger exclaimed that “the dope wasn’t his.” Chief Zachery acknowledged that this

information was not included in Officer Charlie’s report. Chief Zachery noted that

standard operating procedure includes asking for a driver’s license, vehicle registration,

and proof of insurance. He then explained it was not unusual that the vehicle’s

registration was not asked for by Officer Charlie because this incident involved an

irregular traffic stop—the driver was throwing things out of the window, and the vehicle

smelled of marijuana.

Officer Christopher Fruge, also with the Mamou Police Department, testified that

he secured the evidence collected by Officer Charlie. Officer Fruge recalled that the

police recovered a crystal-like substance believed to be methamphetamine; medication

bottles containing green liquid believed to be codeine; a cigar; a green leafy substance

believed to be marijuana; a scale; a clear glass jar containing narcotics; and a razor

blade. He acknowledged that ten white pills believed to be tramadol were among the

items recovered.

5

When questioned about how he would have handled the traffic stop, Officer

Fruge responded that he would have placed Defendant in handcuffs because he threw

something out of the vehicle and a cigar with green leafy material was in plain sight.

Officer Fruge did not hear Chief Zachery or Officer Charlie have a conversation with

the passenger. Officer Fruge completed a log sheet and the evidence he received was

sent to the Acadiana Crime Lab.

The following exhibits were admitted in evidence by stipulation: the report from

the Acadiana Crime Lab; a plastic bag containing one prescription bottle of

promethazine; an envelope containing one partially burnt rolled cigar; one plastic bag

containing 3.5 grams of marijuana, a Schedule I drug; an envelope containing ten round

tablets classified as tramadol, a Schedule IV drug; an envelope containing thirteen rocks

or 2.6 grams of crack cocaine, a Schedule II drug; a digital scale, razor blade, piece of

plastic bag, empty prescription bottle, and two glass jars; one white oval tablet which

was not a controlled substance; and one piece of plastic containing three tablets of

loratadine, a noncontrolled substance.

Dominque Lazard also testified at trial. Lazard noted that he is related to

Defendant. Lazard admitted that he was the passenger in the vehicle being driven by

Defendant at the time of the traffic stop. When asked about the incident, Lazard

testified that he was walking to the store to buy cigars when Defendant picked him up.

Defendant drove him to the store, and then during the drive home, they were stopped

by police. Lazard testified that Officer Charlie approached the driver’s side of the

vehicle and “got Defendant out.” Lazard admitted having on his person the cigars that

he had purchased and “a piece of a bud.”

Lazard denied owning the vehicle, denied owning the recovered drugs, denied

seeing the drugs before the traffic stop, and denied being picked up to buy or sell drugs.

He stated that the police never asked him if the drugs were his, but then testified as

follows:

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Q. [Y]ou’re absolutely certain that the Chief didn’t speak to you about
whether the drugs were yours or not?

A. . . . . I’m not certain . . . I don’t remember him coming speak to me
about that.

Lazard also testified that he did not see Defendant throw anything out of the

window. However, he later acknowledged that he said just the opposite in his written

statement to police.

De’Andrus Jason, who is Defendant’s cousin, provided testimony about the ten

tablets of tramadol. Jason explained that on January 29, 2019 (which is the date of the

traffic stop), he washed and detailed a Buick vehicle for Defendant. Jason noted that

he had a bottle of medically prescribed tramadol in his pocket when he was cleaning

the vehicle. He produced a prescription bottle in court dated September 24, 2019. He

acknowledged that it was an old bottle. He then explained that the tramadol at issue

belonged to him, not Defendant. As Jason put it, he guessed a couple or some of the

pills, which were round and white, fell out of his pocket while he was detailing the car.

Jason denied carrying loose tramadol in his pocket. So, as he explained, he probably

took some pills out of the bottle to ingest them while he was washing the car. He felt

that he took two pills from the bottle and then forgot to completely tighten the bottle’s

safety cap. He denied selling any of these pills to Defendant.

Later in his testimony, Jason was unable to remember the date he detailed

Defendant’s vehicle, although he acknowledged it was probably before September

2019. When asked if it was possible that he detailed the vehicle on a day that was not

January 29, 2019, Jason replied, “I don’t remember.”

Possession of Tramadol—Sufficiency of the Evidence

Defendant challenges the sufficiency of evidence to convict him of possession of

tramadol.

The State was required to prove beyond a reasonable doubt that Defendant

possessed tramadol “knowingly or intentionally.” La.R.S. 40:969. Possession is

7

determined by physical possession or constructive possession. State v. Trahan, 425

So.2d 1222 (La.1983). Whether there is “possession” sufficient to support a conviction

depends on the facts of each case. Id. “Actual physical possessing is, of course,

sufficient and various cases hold that there may be ‘constructive possession,’ when the

material is not in the physical possession of the person but is under his dominion or

control.” Id. at 1266. By comparison, mere presence in an area where drugs are found

or associating with a person who possesses drugs is not considered constructive

possession. State v. Major, 03-3522 (La. 12/1/04), 888 So.2d 798.

The following factors are utilized when determining whether a defendant

exercised sufficient control and dominion over drugs to establish constructive

possession: “(1) his knowledge that drugs were in the area; (2) his relationship with the

person, if any, found to be in actual possession; (3) his access to the area where the

drugs were found; (4) evidence of recent drug consumption; and (5) his physical

proximity to drugs.” Major, 888 So.2d at 802.

The State must also prove guilty knowledge, which means that the defendant has

knowledge of the illegal drugs in his possession. State v. Davis, 05-543 (La.App. 3 Cir.

12/30/05), 918 So.2d 1186, writ denied, 06-587 (La. 10/13/06), 939 So.2d 372. “[S]ince

knowledge is a state of mind, it need not be proven as fact, but rather may be inferred

from the circumstances.” Major, 888 So.2d at 803.

Thus, for this court to affirm Defendant’s possession of tramadol conviction, we

must determine whether, in viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have concluded beyond a reasonable doubt

that Defendant knowingly or intentionally was in possession of tramadol.

8

Defendant initially argues that the State failed to establish that he threw anything

out of the vehicle.1 The State disagrees, pointing to the testimony of Officer Charlie

and passenger Lazard.

Officer Charlie made the initial stop. He testified that he witnessed the driver

throw something white out of the driver’s window. Officer Charlie identified

Defendant as the driver of the vehicle. In addition, Lazard testified that he was riding

as passenger with Defendant when the traffic stop occurred. Lazard testified that he did

not see Defendant throw anything out of the window, but later acknowledged that he

said just the opposite in his written statement to police.

Defendant next argues that the jury should have found reasonable doubt as to

constructive possession and actual knowledge of the tramadol. In support of his

argument, he points to Jason’s testimony, specifically that the tramadol belonged to him

(Jason). The State disagrees, focusing on the credibility of Jason’s testimony.

At the outset, there is nothing in the record that identifies the make and model of

the vehicle that was pulled over by Officer Charlie on January 29, 2019. Jason

originally testified that he detailed a Buick for Defendant earlier that day. He later

admitted that he could not be sure of the exact date, but it was probably before

September 2019.

Also, according to the testimony of Officer Fruge, the narcotics found inside the

vehicle—including the ten tramadol tablets—were in plastic bags located inside the

center console. Yet Jason’s testimony was that ten of his prescribed tramadol tablets

must have fallen out of the prescription bottle, which was in his pocket, because he did

not properly replace the childproof cap after he opened the bottle to take two pills. But

even such a story does not explain how the tramadol tablets ended up in plastic bags

located in the vehicle’s center console.

1
Even though this argument relates to possession of crack cocaine, we will address it
in this section of the opinion.
9

In Major, 888 So.2d 798, the Louisiana Supreme Court held that the evidence

supported a finding of constructive possession based on the driver’s dominion and

control over cocaine found under the dashboard and above the glove box. The court

explained: “As driver and ostensible renter of the vehicle, the defendant had complete

and authorized access to the glove box and dashboard area where the drugs were found.

Furthermore, the location of the drugs was within the reach and accessible to the

defendant as the driver.” Id. at 803.

Likewise, Defendant here had complete and authorized access to the center

console where the drugs were found. The location of the tramadol was within the reach

and accessible to Defendant as driver. The testimony that the vehicle smelled like

marijuana, along with a suspicious looking cigar on the driver’s seat, provides

additional proof of Defendant’s knowledge of drugs in the vehicle. Thus, the jury could

have found that Defendant had knowledge of, and dominion and control over, the ten

tablets of tramadol.

Based on the foregoing, we conclude that a rational trier of fact could have found

proof beyond a reasonable doubt that Defendant was guilty of the crime of possession

of tramadol. It was the jury’s prerogative to assess the credibility of the witnesses and

to accept or reject their testimony. We will not second guess the jury’s credibility

determinations nor will we impinge on its role as factfinder. Accordingly, Defendant’s

possession of tramadol conviction is affirmed.

Possession with Intent to Distribute Crack Cocaine and Marijuana—
Sufficiency of the Evidence

Defendant was also convicted of possession with intent to distribute both crack

cocaine and marijuana. Our previous discussion as to the sufficiency of evidence for

the possession of tramadol conviction also applies to the “possession” element for these

two offenses. Therefore, our discussion will be limited to the “intent to distribute”

element of the offenses.

10

“The offense of possession with intent to distribute a controlled dangerous

substance is comprised of two elements: (1) a knowing and intentional possession of

the substance (2) with a specific intent to distribute it.” State v. Taylor, 16-1124, 16-

1183, p. 16 (La. 12/1/16), 217 So.3d 283, 295. “Intent is a condition of mind which is

usually proved by evidence of circumstances from which intent may be inferred.”

Hearold, 603 So.2d at 735.

For this court to affirm Defendant’s convictions of possession with intent to

distribute, we must determine whether, in viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have concluded beyond a

reasonable doubt that Defendant knowingly and intentionally was in possession of the

controlled substances with a specific intent to distribute them.

Defendant contends there was no evidence that he distributed or attempted to

distribute the drugs. The State disagrees, pointing out that the police seized 3.5 grams

of marijuana, 2.6 grams of crack cocaine, ten tramadol tablets, a scale, and a razor blade.

Under the factors noted in Hearold, 603 So.2d 731, the State argues that the evidence

is sufficient to prove Defendant’s intent. We note that Defendant does not challenge

the finding that he was in possession of marijuana and crack cocaine. Rather, he

challenges the State’s proof of his intent to distribute both. Accordingly, we will now

apply the Hearold factors to determine whether the State met its burden of proving

intent to distribute a controlled dangerous substance. These factors are useful in

determining whether circumstantial evidence is sufficient to prove this element of the

crime.

The first factor is “whether the defendant ever distributed or attempted to

distribute the drug.” Hearold, 603 So.2d at 735. On review, there was no evidence

presented to the jury suggesting that Defendant had ever distributed or attempted to

distribute the marijuana or crack cocaine. Those drugs were found following a traffic

stop. The marijuana was found inside the center console of the vehicle. The thirteen

11

rocks identified as crack cocaine were found scattered about on the ground a few feet

from the roadway. Also, despite Lazard’s testimony that he may have possessed a bud,

he denied being picked up by Defendant to engage in a drug deal.

The second factor is “whether the drug was in a form usually associated with

possession for distribution.” Hearold, 603 So.2d at 735. In this case, the State did not

present testimony explaining how marijuana and crack cocaine are packaged for

distribution. The marijuana found in the vehicle was contained in a single bag. The

crack cocaine was scattered about on the ground in close proximity to the vehicle.

The third factor is “whether the amount of drug created an inference of an intent

to distribute.” Hearold, 603 So.2d at 735. “In 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.

In this case, Defendant was in possession of 3.5 grams of marijuana. We find

that amount does not create an inference of specific intent to distribute marijuana based

on the jurisprudence. In State v. Howard, 49,965 (La.App. 2 Cir. 6/24/15), 169 So.3d

777, eighteen grams of marijuana was not large enough to create an inference of intent

to distribute. Although the second circuit ultimately affirmed the conviction for intent

to distribute marijuana, its holding was based on other factors. In State v. Gilbert, 02-

922 (La.App. 5 Cir. 1/28/03), 839 So.2d 250, three grams of marijuana was not enough

to support an inference of intent to distribute. And in State v. Jack, 97-351 (La.App. 3

Cir. 10/8/97), 700 So.2d 1177, writ denied, 97-2726 (La. 2/13/98), 706 So.2d 993, a

panel of this court held that an amount of marijuana sufficient to roll approximately

thirty to forty hand-rolled cigarettes was not enough to create an inference of intent to

distribute.

Defendant was also in possession of 2.6 grams, or thirteen rocks, of crack

cocaine. In State v. Stelly, 96-1296 (La.App. 3 Cir. 4/30/97), 693 So.2d 305, this court

12

determined that fifteen rocks of crack cocaine was sufficient to create an inference of

intent to distribute. The expert in Stelly testified that “a pure user does not normally

possess fifteen (15) rocks of crack cocaine, weighing 2.37 grams.” Id. at 311. He stated

that “a pure user typically possesses one or two rocks because the users usually have

the rock only long enough to consume it.” Id. Likewise, in State v. White, 98–91

(La.App. 5 Cir. 6/30/98), 715 So.2d 714, writ denied, 98–2043 (La.11/25/98), 729

So.2d 577, the court concluded that thirteen rocks of cocaine was sufficient to support

the finding of intent to distribute. The expert in that case testified that “a typical cocaine

user buys no more than two rocks of cocaine at a time, smokes his purchase, then returns

to the dealer for more.” Id. at 717.

By contrast, the prosecution in the case before us failed to present any testimony

concerning the consumption habits of a typical user of crack cocaine. Without this

foundational evidence, there is no basis to support an inference of Defendant’s intent to

distribute crack cocaine.

The fourth factor is “whether expert or other testimony established that the

amount of drug found in the defendant’s possession is inconsistent with personal use

only.” Hearold, 603 So.2d at 735. There was no testimony, expert or otherwise, that

addressed this factor.

The fifth factor is “whether there was any paraphernalia, such as baggies or

scales, evidencing an intent to distribute.” Hearold, 603 So.2d at 735. The officers

found, along with the crack cocaine and marijuana, a razor blade, jars, a medicine bottle,

a piece of plastic bag, and a scale inside the vehicle. However, no testimony was

adduced as to how any of these items could be utilized to distribute drugs.

In Gilbert, 839 So.2d 250, there was testimony that several zip-lock baggies

labeled with an eight-ball symbol were found with the marijuana. A police officer

testified the bags were nickel bags that would hold five dollars’ worth of marijuana and

were used for packaging and reselling. The fifth circuit determined that the evidence

13

was insufficient to convict the defendant for attempted possession of marijuana with

intent to distribute. The court explained there was no evidence that Mr. Gilbert had

ever distributed or attempted to distribute drugs in the past, the total amount of

marijuana was approximately three grams, and no expert evidence was produced to

show that the amount of marijuana was inconsistent with personal use only.

In Decuir, 599 So.2d 358, there was testimony that the drug paraphernalia found

was used by those who distribute or prepare to distribute cocaine. The paraphernalia

included plastic bags, a scale, isotope powder used as a cutting agent for cocaine, an

item used to purify cocaine, a large mirror, razor blades, a calculator, and Vitamin B.

This court concluded that the evidence was insufficient to convict Mr. Decuir for

possession of cocaine with intent to distribute. This conclusion was based, in part, on

the lack of evidence that Mr. Decuir had ever distributed or attempted to distribute

cocaine in past, the lack of records indicating drug transactions, and the lack of

testimony that the amount of cocaine found was inconsistent with personal use only.

In State v. McIntyre, 544 So.2d 86 (La.App. 3 Cir. 1989), the defendant was

found to be in the possession of 7.75 grams of crack cocaine, and the only drug

paraphernalia was a scale. This court held there was not enough evidence to prove the

“intent to distribute” element even though the cocaine found on the defendant was

packaged in plastic bags.

We conclude that a rational trier of fact could not have concluded beyond a

reasonable doubt, solely on the evidence in the record, that Defendant was guilty of the

“intent to distribute” element of the two crimes. Rather, we hold that the evidence,

viewed in a light most favorable to the State, supports a conviction of a lesser included

responsive offense. La.Code Crim.P. art. 821(E).

The responsive verdicts for both possession with intent to distribute marijuana

and possession with intent to distribute crack cocaine include guilty of possession of

controlled dangerous substances. Louisiana Code of Criminal Procedure Article

14

814(B)(2) specifically states: “[F]or any offense arising under the Uniform Controlled

Dangerous Substances Law that is graded according to the weight of the substance, the

responsive verdicts shall include grades of the offense that are based on lesser weights

than the weight of the substance that is charged in the indictment.”

Possession of marijuana is governed by La.R.S. 40:966, which states:

C. Possession. It is unlawful for any person knowingly or intentionally to
possess a controlled dangerous substance classified in Schedule I unless
such substance was obtained directly, or pursuant to a valid prescription or
order, from a practitioner or as provided in R.S. 40:978, while acting in the
course of his professional practice, or except as otherwise authorized by
this Part. Any person who violates this Subsection with respect to:

....

(2) A substance classified in Schedule I that is marijuana . . . shall be
punished as follows:

(a) On a first conviction, wherein the offender possesses fourteen grams or
less, the offender shall be fined not more than three hundred dollars,
imprisoned in the parish jail for not more than fifteen days, or both.

....

(c) Any person who has been sentenced under the provisions of
Subparagraph (a) or (b) of this Paragraph and who has not been convicted
of any other violation of a statute or ordinance prohibiting the possession
of marijuana for a period of two years from the date of completion of
sentence, probation, parole, or suspension of sentence shall not have the
conviction used as a predicate conviction for enhancement purposes. The
provisions of this Paragraph shall occur only once with respect to any
person.

The verdict of guilty of possession with intent to distribute marijuana explicitly

reflects the finding that Defendant knowingly or intentionally possessed marijuana, and

Defendant has not challenged that finding. See State v. Fobb, 11-1434 (La.App. 3 Cir.

6/6/12), 91 So.3d 1235. Thus, we enter a verdict of guilty of possession of marijuana

and remand for sentencing thereon.

The responsive verdicts for possession of marijuana with intent to distribute

provided to the jury did not list the grades of the offense for possession of marijuana by

weight, and its weight was not listed in the amended bill of information. The record

15

evidence indicates that Defendant possessed 3.5 grams of marijuana, which is clearly

less than fourteen grams. Accordingly, no issue as to the applicable sentencing

provision is raised by the entry of a verdict of possession of marijuana.

As to crack cocaine, possession of this drug is governed by La.R.S. 40:967, which

states:

C. Possession. It is unlawful for any person knowingly or intentionally to
possess a controlled dangerous substance as classified in Schedule II
unless such substance was obtained directly or pursuant to a valid
prescription or order from a practitioner, as provided in R.S. 40:978 while
acting in the course of his professional practice, or except as otherwise
authorized by this Part. Any person who violates this Subsection with
respect to:

(1) An aggregate weight of less than two grams, shall be imprisoned, with
or without hard labor, for not more than two years and, in addition, may
be sentenced to pay a fine of not more than five thousand dollars.

(2) An aggregate weight of two grams or more but less than twenty-eight
grams shall be imprisoned, with or without hard labor, for not less than
one year nor more than five years and, in addition, may be sentenced to
pay a fine of not more than five thousand dollars.

The verdict of guilty of possession with intent to distribute crack cocaine

explicitly reflects the finding that Defendant possessed crack cocaine, and Defendant

has not challenged that finding. See Fobb, 91 So.3d 1235. Thus, we enter a verdict of

guilty of possession of crack cocaine and remand for sentencing thereon.

Sentencing for possession of crack cocaine is based on aggregate weight. The

amended bill of information did not set forth the amount of crack cocaine Defendant

allegedly possessed, and the verdict form did not call for the jury to make such a

determination. The report from the Acadiana Crime Lab states that the crack cocaine

seized by police weighed 2.6 grams. However, the decisions of the United States

Supreme Court make clear that the trial court cannot rely on a lab report when imposing

Defendant’s sentence for possession of crack cocaine.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme

Court held that any fact other than a prior conviction that increases the penalty for a

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crime beyond the prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt. In subsequent cases, the Supreme Court has applied the

principle set out in Apprendi in other contexts, including capital sentencing regimes,

state and federal sentencing guidelines, and criminal fines. See, e.g., Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005); and Southern

Union Co. v. United States, 567 U.S. 343, 132 S.Ct. 2344 (2012).

In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151 (2013), the Supreme

Court concluded that any fact that increases the minimum penalty for a crime is an

element that must be submitted to the jury and found beyond a reasonable doubt.

In United States v. Sheppard, 219 F.3d 766 (8th Cir. 2000), cert. denied, 51 U.S.

1200, 121 S.Ct. 1208 (2001), the Eighth Circuit held that under Apprendi, quantity in

federal drug offenses must be treated as an element if the quantity increases the

maximum sentence for the offense. The court found the any failure to treat the drug

type and quantity as an element of the crime and to submit it to the jury was harmless

because the indictment charged the defendant with conspiring to distribute more than

500 grams, and the jury made a special finding of that quantity.

Our case is distinguishable because the quantity of crack cocaine was not set forth

in the amended bill of information, and the jury did not make a specific finding as to

quantity. Because the jury did not determine the quantity of crack cocaine possessed

by Defendant, and because the quantity determines the sentencing range for the offense,

we hold that Defendant must be sentenced under La.R.S. 40:967(C)(1). Accordingly,

we remand the matter to the trial court for sentencing under La.R.S. 40:967(C)(1).

III. Assignment of Error No. 1

In his first assignment of error, Defendant asserts that the State did not establish

the proper jurisdiction at trial. He argues that establishing the parish of jurisdiction is

an essential element that the State must prove. We disagree.

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This argument was made in State v. Ford, 17-471 (La.App. 1 Cir. 9/27/17), 232

So.3d 576, 584, writ denied, 17-1901 (La. 4/22/19), 268 So.3d 295, wherein the first

circuit explained as follows:

Venue is not an essential element of the offense; rather, it is a
jurisdictional matter. See La. Code Crim. P. arts. 611(A) & 615.
Objections to venue must be raised by a motion to quash to be ruled on by
the court in advance of the trial. State v. Roblow, 623 So.2d 51, 55 (La.
App. 1st Cir. 1993). The defendant did not file a pretrial motion to quash,
objecting to venue. Accordingly, this issue is not properly before this
court. See State v. Rideout, 42,689 (La. App. 2nd Cir. 10/31/07), 968 So.2d
1210, 1212-13, writ denied, 2008-2745 (La. 9/25/09), 18 So.3d 87; State
v. Matthews, 632 So.2d 294, 296 (La. App. 1st Cir. 1993).

In State v. Thompson, 12-1097 (La.App. 3 Cir. 4/10/13), 111 So.3d 580, writ

denied, 13-1067 (La. 11/15/13), 125 So.3d 1102, cert. denied, 572 U.S. 1091, 134 S.Ct.

1942 (2014), the defendant claimed the trial court erred when it instructed the jury that

jurisdiction was not an issue for its consideration. This court disagreed, explaining that

neither venue nor jurisdiction were elements of the charged offense. Because Mr.

Thompson failed to file a motion to quash, he failed to preserve the issue of jurisdiction

and venue for review on appeal.

The record in the case before us does not contain a motion to quash, and

Defendant did not otherwise challenge venue or jurisdiction in the trial court.

Therefore, this assignment of error was not properly preserved for review.

IV. Assignment of Error No. 2

In his second assignment of error, Defendant asserts that the State did not

establish reasonable suspicion for the traffic stop. He argues that the sole reason for the

traffic stop was the inability of Officer Charlie to read the temporary license plate.

Defendant insists that Officer Charlie had no objective basis for reasonable suspicion.

The State disagrees.

The Fourth Amendment to the United States Constitution and Section 5 of Article

1 of the Louisiana Constitution protect against unreasonable searches and seizures.

“The authority and limits of the [Fourth] Amendment apply to investigative stops of

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vehicles[.]” United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568 (1985). The

remedy for a Fourth Amendment violation is generally the exclusion of the unlawfully

obtained evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963).

In State v. Quimby, 419 So.2d 951, 959 (La.1982), the supreme court declared:

When tangible objects are sought to be excluded from evidence on
the basis of an unconstitutional search or seizure, a defendant must timely
file a motion to suppress such evidence. Otherwise, he is deemed to have
waived any objection to its admission based on an infirmity in the search
and seizure. Since no motion to suppress was timely filed in the instant
case defendant cannot now complain on appeal that the objects were seized
pursuant to an unconstitutional search. State v. Williams, 362 So.2d 530
(La.1978); State v. Johnson, 333 So.2d 286 (La.App.1976).

In State v. Williams, 08-801 (La.App. 4 Cir. 12/3/08), 1 So.3d 615, which

Defendant cites in his brief, the fourth circuit addressed the defendant’s claim that

evidence seized as the result of a traffic stop should have been suppressed. In its

analysis, the court noted:

Counsel did not file a motion to suppress the evidence, but argued
at the hearing that Officer Sentino had no legal basis to stop the Jaguar.
Accordingly, there was no express ruling on a motion to suppress.
However, defendant argues, the district court implicitly denied
suppression of the evidence when the court ruled that there was probable
cause to hold defendant for trial on all three counts.

Id. at 617 n.2.

The record in this case does not contain a motion to suppress, and Defendant

makes no mention of, or argument regarding, a ruling as to probable cause or any

implicit denial of suppression of the evidence. Accordingly, this assignment of error

was not properly preserved for review.

V. Assignment of Error No. 3

In his third assignment of error, Defendant contends that “[t]he testimony

regarding a scale allegedly seized is irrelevant and prejudicial.” In support, Defendant

asserts that the scale was not admitted in evidence, and its mention by the State is

prejudicial. We disagree.

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Contrary to Defendant’s assertion, the scale was admitted into evidence as State

Exhibit 5.5. As such, this assignment lacks merit.

VI. Assignment of Error No. 5

In his fifth assignment of error, Defendant contends his sentence is excessive.

Because Defendant’s convictions for possession with intent to distribute crack cocaine

and possession with intent to distribute marijuana are vacated, we will address only the

excessiveness of the sentence imposed for possession of tramadol.

Sentences within the statutory sentencing range can be reviewed for

constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). Louisiana

Constitution Article 1, § 20 provides that “[n]o law shall subject any person to . . . cruel,

excessive, or unusual punishment.” A sentence is excessive when the reviewing court

finds “the penalty so grossly disproportionate to the severity of the crime as to shock

our sense of justice or 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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. The trial court has

great discretion in imposing a sentence, which will not be set aside as excessive absent

a manifest abuse of discretion. Id.

Louisiana Code of Criminal Procedure Article 894.1 enumerates aggravating and

mitigating factors to be considered by the trial court in imposing sentence and requires

that the trial court “shall state for the record the considerations taken into account and

the factual basis therefor in imposing sentence.” La.Code Crim.P. art. 894.1(C). “While

the trial judge need not articulate every aggravating and mitigating circumstance

outlined in [La.Code Crim.P.] art. 894.1, the record must reflect that he adequately

considered these guidelines in particularizing the sentence to the defendant.” State v.

Smith, 433 So.2d 688, 698 (La.1983).

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When reviewing a defendant’s sentence, an appellate court considers the nature

of the crime, the nature and background of the offender, sentences imposed for similar

crimes, and the legislative purpose behind the punishment. State v. Smith, 99-606 (La.

7/6/00), 766 So.2d 501. While comparing sentences imposed for similar crimes

provides insight, sentences must be individualized to the particular offender and to the

particular offense committed. State v. Marshall, 94-461 (La. 9/5/95), 660 So.2d 819.

“A trial judge has broad sentencing discretion because he or she remains in the best

position to assess the aggravating and mitigating circumstances presented by each

case.” State v. Cook, 95-2784, p. 2 (La. 5/31/96), 674 So.2d 957, 958, cert. denied, 519

U.S. 1043, 117 S.Ct. 615 (1996). “The mere fact that the sentence is the maximum

statutory penalty is not dispositive that the sentence is cruel or unusual.” State v. Clark,

19-136, p. 5 (La.App. 3 Cir. 10/2/19), 280 So.3d 673, 678.

Possession of tramadol is punishable by imprisonment with or without hard labor

for not less than one year nor more than five years and a possible fine of not more than

five thousand dollars. La.R.S. 40:969(C)(2). While the trial court imposed the

maximum term of five years at hard labor, the fine of two thousand five hundred dollars

was one-half of what could have been imposed.

At the sentencing hearing, the trial court noted that it had ordered and considered

the presentence investigation report (PSI). The court then addressed Defendant’s prior

convictions, beginning in 2003, when Defendant was arrested in Evangeline Parish and

pled guilty to possession of a Schedule I controlled dangerous substance (CDS); he was

sentenced to six months in jail. In 2006, Defendant was arrested in Mamou and pled

guilty to possession of a Schedule II CDS and resisting an officer; he was sentenced to

five years at hard labor with three years suspended and five years of active supervised

probation. In 2009, Defendant was arrested in Texas and pled guilty to possession of

marijuana; he was sentenced to two years in jail. In 2010, Defendant was again arrested

in Texas and pled guilty to unlawful possession of dangerous drugs; he was sentenced

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to ten days in jail. In 2011, Defendant was arrested in Evangeline Parish and pled guilty

to possession of marijuana, second offense; he was sentenced to four years at hard labor.

In 2012, he was again arrested in Evangeline Parish and pled guilty to possession with

intent to distribute marijuana; he was sentenced to three years at hard labor. In 2013,

he was arrested in St. Landry Parish and pled guilty to possession of marijuana; he was

sentenced to six months in jail. The trial court also noted that numerous charges were

pending at the time of sentencing, including carjacking, carrying a concealed weapon

by a convicted felon, and other drug charges in Evangeline Parish; possession of a CDS

in Texas; and manufactured distribution or possession of a Schedule I CDS in Calcasieu

Parish. The PSI reflected that possession of tramadol was Defendant’s fourth felony

offense.

At the sentencing hearing, Defense counsel asserted that Defendant was thirty-

four years old; that Defendant had graduated high school and received vocational

training in heating, ventilation, and air conditioning (HVAC); that Defendant had

family support; that Defendant was a father to three children with another child on the

way; and that Defendant had financially supported his family. Defense counsel claimed

that the amounts of crack cocaine and marijuana were not significant, and the tramadol

tablets belonged to someone else. As to the pending charges, Defense counsel noted

that these charges were merely allegations, and Defendant was presumptively innocent.

In imposing sentence, the trial court stated that Defendant was a repeat offender.

The trial court then explained that Defendant’s prior offenses portray a history of his

failure to respond to correctional treatment. The trial court noted that Defendant’s

previous crimes endangered the public, and that he would likely commit future crimes

without correctional treatment in an institution. The trial court sentenced Defendant for

possession of a Schedule II CDS (tramadol), in violation of La.R.S. 40:969, to five years

at hard labor with a fine of two thousand five hundred dollars. The sentence was

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ordered to run consecutively with the sentence for possession with intent to distribute a

Schedule II CDS (crack cocaine).

On appeal, Defendant argues that the PSI was not made a part of the record for

review, and his attorney was not provided with a copy of the PSI for consideration in

writing his brief. He also asks this court to consider the facts of his prior convictions.

He suggests that a review of the prior convictions will reflect “grossly ineffective

assistance of counsel that led to unwise plea agreements which are being held against

[him] today.”

In response, we first address the PSI. The PSI is generally not included in the

appellate record, and this court does not provide appellate counsel with a copy of the

PSI for preparation of briefs. In State v. Stogner, 03-1272 (La.App. 3 Cir. 2/18/04), 866

So.2d 397, this court held that a defendant does not have an absolute right to review the

PSI. However, under certain circumstances, a defendant is entitled to at least know the

information contained therein, but the sentencing court is in the best position to

determine what information from the PSI, if any, should be made available to appellate

counsel for preparation of briefs. Id.

Even though defense counsel did not object at the time sentence was imposed, a

Motion to Reconsider Sentence was filed thereafter on Defendant’s behalf. In the

motion, counsel simply states that Defendant’s sentence is excessive. Because

Defendant’s specific complaint regarding his prior guilty pleas was not raised in his

motion, he is precluded from now raising this complaint on appeal. La.Code Crim.P.

art. 881.1(E); Clark, 280 So.3d 673.

Defendant possessed ten tramadol tablets along with marijuana and crack

cocaine. The PSI classifies Defendant as a fourth offender, which clearly indicates his

inability to respond to correctional treatment. Several of his prior convictions involve

narcotics. “Past records of drug offenses should weigh heavily in the decision to uphold

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the imposition of maximum sentences.” State v. Jones, 33,111, p. 4 (La.App. 2 Cir.

3/1/00), 754 So.2d 392, 394, writ denied, 00-1467 (La. 2/2/01), 783 So.2d 385.

Our review of the sentencing transcript reveals that the trial court considered the

factors found in La.Code Crim.P. art. 894.1 in particularizing the sentence now in

question. Accordingly, we conclude that the trial court did not abuse its wide discretion

in sentencing Defendant to the maximum term of five years at hard labor with a fine of

$2500. Defendant’s sentence is affirmed.

DISPOSITION

For the reasons assigned above, Defendant’s conviction and sentence for

possession of tramadol is affirmed. However, Defendant’s convictions and sentences

for possession with intent to distribute marijuana and possession with intent to distribute

crack cocaine are vacated, verdicts of possession of marijuana and possession of crack

cocaine are entered, and the matter is remanded for sentencing thereon.

AFFIRMED IN PART; VACATED IN PART;
REMANDED FOR RESENTENCING.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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