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Judgment rendered December 9, 2009. Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P.

No. 44,878-KA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA *****

STATE OF LOUISIANA versus ALLEN D. COX

Appellee

Appellant

***** Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 05F0790 Honorable Marcus R. Clark, Judge ***** ALLEN DALE COX G. PAUL MARX Louisiana Appellate Project JERRY L. JONES District Attorney SHIRLEY M. WILSON DAVIS Assistant District Attorney Pro Se Counsel for Appellant Counsel for Appellee

*****

Before BROWN, PEATROSS and LOLLEY, JJ.

LOLLEY, J. Defendant, Allen Dale Cox, appeals a judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, where a jury found Cox guilty as charged of distribution of cocaine, a violation of La. R.S. 40:967, and conspiracy to distribute cocaine, violations of La. R.S. 40:979 and 40:967. Thereafter, Cox was sentenced to 24 years' of imprisonment at hard labor for the distribution charge, with credit for time served and the first two years to be served without benefit of probation, parole, or suspension of sentence. Cox was also sentenced to 15 years of imprisonment at hard labor for the conspiracy to distribute cocaine to run concurrently. Cox was recommended for the Blue Walters Substance Abuse Program while serving his sentence. A timely motion for reconsideration of sentence was denied. After various delays and filings, Cox was granted this out-of-time appeal. For the following reasons, Cox's convictions and sentences are affirmed. FACTS Working a "buy-bust" operation with the Metro Narcotics Unit, a multi-parish narcotics task force, a confidential informant ("C.I.") arranged to contact a person whom she knew as "A.D." to meet her at the Motel 6 located on Highway 165 in Monroe, Louisiana. The C.I. called A.D., later identified as Cox, and asked to purchase $100.00 worth of crack cocaine. Cox told the C.I. that he would meet her at the Motel 6 in approximately 20-25 minutes. The C.I. waited in a room that had been equipped with video surveillance and audio monitors which was in the middle of three adjoining

rooms. The arrest teams were waiting in the outer rooms while other officers set up surveillance in the parking lot of the motel. Cox arrived at the motel as a passenger in a vehicle. Cox got out of the car and went directly to the C.I.'s room. Once inside the room, Cox told the C.I. that the individual who was driving the vehicle, later identified as Antonio Brown, did not know her and was not willing to come up to the room to give her the drugs. Cox told the C.I. that he would take her money to Brown and return with the drugs, to which the C.I. agreed. The officers posted outside saw Cox walk out to the balcony and drop something down to Brown. Brown then threw something back up to Cox. Cox went back inside the C.I.'s room and gave her crack cocaine. As Cox left the room, officers from the arrest teams immediately took him into custody. During the search incident to arrest, officers found a rock of cocaine in Cox's pocket as well as a small bit of newspaper with handwritten notations of the C.I.'s hotel room number and telephone number. After a trial by jury, Cox was found guilty as charged for distribution of cocaine and conspiracy to distribute cocaine. This appeal ensued. LAW AND DISCUSSION Sufficiency of the Evidence In his first assignment of error, Cox alleges that there was insufficient evidence presented to convict him under a statute directed at punishing drug dealers. Cox argues that the laws are not intended to punish an addict who is used as a conduit, with minimal contact with the contraband, between a drug dealer and an informant.

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The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Tate, 2001-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Carter, 42,894 (La. App. 2d Cir. 01/09/08), 974 So. 2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So. 2d 1086. 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, 2005-0477 (La. 02/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La. App. 2d Cir. 01/14/09), 1 So. 3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App. 2d Cir. 02/25/09), 3 So. 3d 685; State v. Hill, 42,025 (La. App. 2d Cir. 05/09/07), 956 So. 2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So. 2d 529. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App. 2d Cir. 02/13/08), 975 So. 2d 753; State v. Burd, 40,480 (La. App. 2d Cir. 01/27/06), 921 So. 2d 219, writ denied, 2006-1083 (La.

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11/09/06), 941 So. 2d 35. This is equally applicable to the testimony of undercover drug agents. State v. Anderson, 30,306 (La. App. 2d Cir. 01/21/98), 706 So. 2d 598. An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The state must show: (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Kelley, 36,602 (La. App. 2d Cir. 01/29/03), 836 So. 2d 1243; State v. Manning, 30,809 (La. App. 2d Cir. 06/24/98), 715 So. 2d 668. To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended recipient. State v. Alexander, 43,796 (La. App. 2d Cir. 01/14/09), 2 So. 3d 1168. In the instant case, the state called as its first witness Agent Curtis Dewey of the Ouachita Parish Sheriff's Office and a member of the Unit. Agent Dewey testified he and other members of the Unit arranged for the C.I. to make a drug purchase during a buy-bust operation conducted at the Motel 6 on February 3, 2005. Agent Dewey was the lead agent. In preparation for the operation, Agent Dewey testified that the three adjoining motel rooms were secured, and the C.I. was placed in the middle room and given five marked twenty-dollar bills totaling $100.00 to purchase crack cocaine. Video and audio surveillance devices were placed in the C.I.'s room to monitor the transaction. According to Agent Dewey, officers

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stationed in the adjoining rooms were monitoring the surveillance equipment and the C.I. and the room was searched for drugs prior to the beginning. Agent Dewey further testified that arrest teams were stationed in the adjoining rooms and additional officers were stationed in the parking lot of the motel for surveillance. At approximately 7:06 p.m, Cox arrived in a vehicle with Brown. Once the C.I. agreed, Cox took the money and walked out of the room. He returned to the room a few moments later, and after the transaction was completed Cox was immediately arrested outside the C.I.'s room. Agent Dewey collected and transferred the cocaine delivered to the C.I. to the crime lab for analysis. Agent Dewey testified that Brown was also arrested in connection with the case. At the time of his arrest, Brown had the "buy money" in his possession. Susan Rutledge, a forensic chemist employed by the North Louisiana Crime Lab, was qualified by the court as an expert in forensic chemistry and controlled dangerous substances. After discussing the protocols used in receiving the evidence, Rutledge testified that based on her testing, she determined that the substances submitted for analysis contained cocaine. Officer John Philly, a warrant officer for the Ouachita Parish Sheriff's Office, testified he assisted the Unit on the night of this buy-bust operation. Officer Philly explained that he was in a van stationed in the well-lit parking lot of the motel. Officer Philly observed a vehicle occupied by two black males arrive at the motel. The passenger, Cox, exited the vehicle and proceeded to the C.I.'s room. According to Off. Philly, he saw Cox step on

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to the balcony and drop something down to the driver of the vehicle, Brown. Brown then threw something back up to Cox. Soon after, Off. Philly observed the other officers arresting Cox. Officer Taylor Trish Passman of the Monroe Police Department was assigned to the Unit and also assisted with the buy-bust operation. Officer Passman stated he searched the C.I., her personal belongings, and the room and found no drugs prior to the purchase. During the operation, Officer Passman was monitoring the video surveillance equipment and was able to observe the transaction. Cox was captured on video as he walked inside of the C.I.'s room. Cox left the room with the buy money and was out of view of the monitoring equipment; however, he returned shortly thereafter and gave the C.I. the crack cocaine. Once the transaction was complete, Officer Passman gave the signal for other officers to arrest Cox. Officer Passman went to the C.I.'s room and collected the cocaine received from Cox. Officer Passman identified the photograph of the individual he observed sell cocaine to the C.I. The video of the transaction was played for the jury. Officer Passman also identified the buy money supplied to the C.I. prior to the transaction and testified that the money was found in Brown's possession when he was arrested. Randall Pittman, a detective with the Unit, testified he was a part of an arrest team on the day of the operation. Detective Pittman observed the transaction via the monitoring equipment and was able to identify Cox in court. Detective Pittman searched Cox after he was taken into custody.

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Inside Cox's pants pocket was a piece of newspaper with the C.I.'s room and telephone number written on it and a rock of cocaine. After a thorough review of the record we find that the state was able to prove delivery or physical transfer, Cox's guilty knowledge of the controlled dangerous substance at the time of transfer, and the exact identity of the controlled dangerous substance. Of notable interest, in his brief, Cox admits that "technically, because the broadest definition of `distribution' could include handing a rock of crack from one person to another, [he] is guilty." Despite Cox's protestations to the contrary, the state presented sufficient evidence to convict Cox of distribution of cocaine. Through the testimony of its witnesses, the state was able to prove that Cox was contacted by the C.I. and asked to deliver $100.00 of crack cocaine. Cox arrived on the scene and after taking money from the C.I., Cox returned with a substance. The substance was later tested and proven to contain cocaine. Based on the record, it was reasonable for the jury to conclude that Cox was guilty as charged. Therefore, this assignment of error is without merit. Excessive Sentence In his second assignment of error, Cox argues that his sentence is excessive based on his limited involvement in the drug transaction and that trial court failed to properly consider his impairment for drug addiction. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial

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judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Lathan, 41,855 (La. App. 2d Cir. 02/28/07), 953 So. 2d 890, writ denied, 2007-0805 (La. 03/28/08), 978 So. 2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App. 2d Cir. 08/13/08), 989 So. 2d 267, writ denied, 2008-2697 (La. 09/18/09), 17 So. 2d 388. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Ates, 43,327 (La. App. 2d Cir. 08/13/08), 989 So. 2d 259, writ denied, 2008-2341 (La. 05/15/09), 8 So. 3d 581. Second, a sentence violates La. Const. art. 1,

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