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STATE OF LOUISIANA IN THE INTEREST OF B.L.

NO. 02-KA-923 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 95-JU-379, DIVISION "C" HONORABLE NANCY AMATO KONRAD, JUDGE PRESIDING JANUARY 28, 2003

MARION F. EDWARDS JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., James L. Cannella and Marion F. Edwards

PAUL D. CONNICK, JR. DISTRICT ATTORNEY 24th Judicial District THOMAS J. BUTLER TERRY M. BOUDREAUX LAURENCE P. ALTERMAN ASSISTANT DISTRICT ATTORNEYS Gretna Courthouse Annex Building, 5th Floor Gretna, Louisiana 70053 COUNSEL FOR APPELLEE TIMON WEBRE 1546 Gretna Boulevard Harvey, Louisiana 70058 COUNSEL FOR APPELLANT

CONVICTION REVERSED IN PART AND MODIFIED; SENTENCE VACATED; REMANDED

Juvenile defendant B.L. appeals his conviction of possession of marijuana

with intent to distribute in violation of LSA-R.S. 40:966(A) and resisting an officer

in violation of LSA-R.S. 14:108. Following a petition filed by the Jefferson Parish
District Attorney, an adjudication hearing was held before the juvenile court judge
and B.L. was adjudicated a delinquent on both charges. He was committed to the

Department of Corrections for one year on the possession with intent to distribute marijuana conviction and six months on the resisting an officer conviction.
B.L. appeals only his adjudication as a delinquent for possession with intent

to distribute marijuana. At the hearing, Causeway Bridge Police Department Officer John Jones testified that on July 11, 2002, he stopped a gray 1982 Oldsmobile Cutlass, driven by B.L., on South Clearview near the Huey P. Long Bridge. The stop was made
because the auto had an expired motor vehicle inspection sticker. Officer Jones asked B.L. for identification, vehicle registration and proof of insurance, none of which B.L. was able to produce. B.L. was asked to place his hands on the police

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unit at which time Sergeant Dwain Rullman conducted a pat down search. Sgt. Rullman testified that he felt something in the left pocket of the B.L.'s pants. B.L. resisted the pat down search and turned on the officer. Sgt. Rullman attempted to regain control of the situation and ultimately handcuffed the juvenile. Sgt. Rullman subsequently found nothing in the juvenile's pants, but testified that B.L put whatever was in there into his mouth. After being handcuffed, B.L. spit out one clear plastic baggie with 16 individually wrapped baggies containing green
vegetable matter from his mouth. The substance was later identified as 22.46

grams of marijuana.
B.L. argues the evidence was insufficient to prove that he had the requisite intent to distribute the marijuana in his possession. He contends that mere

possession of marijuana is insufficient to prove "intent to distribute," and maintains there was no evidence suggesting the amount the marijuana was inconsistent with personal use. He points out that no drug paraphernalia or cash
was seized from him and alleges he had never been convicted of distribution of a controlled dangerous substance in the past.

In a juvenile delinquency proceeding, the State's burden of proof is the same
as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition.' The constitutional standard for evaluating the sufficiency of the evidence is the same in a juvenile proceeding

as it is in an adult proceeding, that is, whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State
proved all of the essential elements of the crime beyond a reasonable doubt. 2

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did
LSA-Ch.C. art. 883; State in Interest ofR.T., 00-0205 (La. 2/21/01), 781 So.2d 1239, 1241. 2 State in Interest ofR.T, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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so with the specific intent to distribute it.3 B.L. does not challenge the finding that
he was in possession of marijuana but rather challenges the determination that he

had specific intent to distribute marijuana.
Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-

R.S. 14:10. The intent to distribute may be established by proving circumstances
surrounding the defendant's possession which give rise to reasonable inferences of intent to distribute." Factors which may give rise to a reasonable inference that

defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found
in the defendant's possession to be inconsistent with personal use only, and 5)

paraphernalia evidencing an intent to distribute."
The possession of large sums of cash may also be considered circumstantial evidence of intent as may the possession of weapons. 6 "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." This court has previously determined that there was insufficient evidence to convict a defendant of possession with intent to distribute 74 grams of loose

marijuana, plus 9 grams found in hollowed out cigars." In that case, there was no

3 LSA-R.S. 40:966(A); State v. Kelly, 01-321 (La. App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 01-3266 (La. 11/1/02), 828 So.2d 565. 4 State v. Kelly, 800 So.2d at 982. ' Id. 6 State v. Hearold, 603 So.2d 731, 736 (La.1992); State v. Taylor, 99-1154 (La. App. 5 Cir. 2/29/00), 757 So.2d 63, 72, writ denied, 00-1021 (La. 3/30/01), 788 So.2d 441. 7 State v. Hearold, supra, at 735-736. 6 State v. Taylor, supra.

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evidence that the defendant had ever been convicted of selling or attempting to sell narcotics. While there was testimony relative to common packaging methods, and plastic bags commonly used to package marijuana were found in the home, none of the marijuana was divided into nickel or dime bags. No paraphernalia for

preparing joints was found. We found there was no "large sum" of money such as
to imply that it was necessarily derived from any source other than drug sales, and that none of the officers who testified was qualified as an expert in the packaging and sales of narcotics. In determining the evidence was insufficient to show the

defendant's intent to distribute, this Court focused on the lack of testimony as to whether the amount of marijuana was consistent with personal use. In a comparable case in the Fourth Circuit, the factors indicating intent were
considered and determined to be insufficient:
...However, the ofEcers--the State's only witnesses--provided extremely limited circumstantial evidence of defendant's intent. Turning to the Hearold factors, the ofEcers admitted that they never saw defendant distribute or attempt to distribute the marijuana. Defendant carried only thirteen dollars, limiting his ability to provide change for a sale; and he carried no weapons. OfEcer Quetant did not provide any expert testimony concerning the packaging of marijuana for retail sales, nor did he address the question of whether the amount of marijuana defendant possessed was inconsistent with personal use. OfEcer Walker testified that they arrested defendant for possession with intent to distribute because of the quantity of marijuana and the packages of individual baggies. However, the State did not tender Officer Walker as an expert, and the trial court allowed the testimony only to show the basis for defendant's arrest. Thus, the State did not produce any expert testimony on quantity and/or packaging of marijuana for retail sales. Similarly, it produced no evidence on the consistency of the amount possessed with strictly personal use."

The Second Circuit has similarly found insufficient evidence to support a defendant's conviction for possession with intent to distribute marijuana.'

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