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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 36 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 20th day of May, 2003, are as follows: BY JOHNSON, J.: 2002-K- 1589 STATE OF LOUISIANA v. MICHAEL L. HARRIS (Parish of Orleans) (Attempted Possession of a Controlled Dangerous substance with Intent to Distribute) For the foregoing reasons, we reverse the court of appeal's decision. The defendant's conviction and sentence are hereby reinstated.

5/20/03

SUPREME COURT OF LOUISIANA
02-K-1589 STATE OF LOUISIANA VERSUS MICHAEL L. HARRIS ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS JOHNSON, Justice. We granted the state's writ application to consider the court of appeal's reversal of defendant's conviction and sentence for attempted possession of a controlled dangerous substance with intent to distribute on grounds that there was insufficient evidence to support the conviction. State v. Harris, 01-1661 (La. App. 4 Cir. 5/8/02), 817 So.2d 1205. After considering the facts and applicable law, we find that the court of appeal erred in reversing the trial court's decision. FACTS AND PROCEDURAL HISTORY Relying on information received from a confidential informant regarding narcotics activities in the 1200 block of South Dorgenois Street, New Orleans Police Detective Terri Wilson conducted a controlled purchase of crack cocaine from a man named "Rooney," later identified as defendant, Michael Harris. Detective Wilson then obtained a search warrant for 1240 South Dorgenois Street. Before executing the warrant, Detective Wilson conducted additional surveillance in the area of 1240 South Dorgenois. At this time, he observed the man whom he knew as "Rooney," later identified as defendant, loitering around the area with another man, later identified as James Cooper. A few minutes into the surveillance, an individual walked up to defendant. The two men exchanged words; defendant accepted money from the other person and nodded to Mr. Cooper
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who walked from the car to some nearby shrubbery, got a brown paper bag and removed a small object. Mr. Cooper then replaced the bag and walked over to defendant and the other person, handed the item to defendant, then defendant handed the object to the individual who gave him the money. Approximately 15 minutes after this encounter, Sergeant Wilson observed the same kind of transaction with a different individual. Two other similar transactions followed. Based on these observations, Detective Wilson executed the search warrant. Detectives Michael Harrison and Wayne Jacques secured defendant and Mr. Cooper, then Detective Harrison retrieved the brown paper bag from the shrubbery, which Detective Wilson stated contained about three ounces of crack cocaine. Sergeant Wilson identified the brown paper bag during trial. Detective Michael Harrison also found over $500 in cash while searching defendant, in small denominations recognized by experts as those carried by narcotics dealers. Defendant, Michael Harris, and co-defendant, James Cooper, were arrested on August 2, 1999, and charged with possession of cocaine, more than 28 grams and less than 200 grams, in violation of R.S. 14:967(F)(1). Defendant entered a plea of not guilty. The trial court denied defendant's motion to suppress the evidence and found probable cause to arrest. Defendant's bill of information was amended on the first day of trial, February 7, 2001, to possession of cocaine with the intent to distribute. At trial, the state did not offer scientific evidence to establish that the contents of the brown paper bag were in fact cocaine. However, Lieutenant Reginald Jacques, an 11-year veteran of the major case narcotics division of the New Orleans Police Department, testified as an expert in the area of packaging and retail distribution of controlled dangerous substances. Upon examining the crack
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cocaine entered into evidence, Lieutenant Jacques identified some of the pieces as "slabs," or pieces of crack cocaine that are sold on the streets for up to $100 each and some of the smaller pieces known as "twenties" which are sold for $20 each. He also examined the denominations of the currency found during the search of defendant and testified that the denominations present were consistent with those typically found on the person of a crack cocaine dealer. There were several defense witnesses who testified at trial. Kewel Short, the resident of 1240 South Dorgenois, testified that she did not know defendant and that she came home on the date of defendant's arrest to find her home ransacked. Ms. Short's neighbor, Velma Witey, testified that she knew defendant and that she never saw him selling drugs. She testified further that she had never seen anyone selling drugs in her hallway. Defendant testified at trial that on August 2, 1999, before the police arrived, he was outside talking to Antoinnette Dewey, Corinthia Francois, and Janine Sutton. Defendant stated that he does not distribute drugs and did not know anything about a brown paper bag filled with crack cocaine before the officers asked him about it. He also testified that he did not know his co-defendant, Mr. Cooper, before their arrest. In explaining the cash on his person, defendant testified that $300 came from his uncle as payment for defendant's helping him with some contracting work and that the other $200 were personal. The jury found the defendant guilty of attempted possession of cocaine with the intent to distribute. The trial court denied defendant's motion for post-judgment acquittal and sentenced defendant to five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. After the state filed an habitual offender bill, the trial court vacated this sentence on July 26, 2001, and sentenced defendant as a second time offender to seven and one-half years at hard
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labor without benefit of parole, probation, or suspension of sentence. Defendant made a timely appeal to the Fourth Circuit and claimed that the state provided insufficient evidence to support his conviction because it failed to prove that the substance he was found guilty of attempting to possess with the intent to distribute was actually crack cocaine, as the state failed to introduce evidence of any chemical testing on the substance. The court of appeal agreed with defendant's contention and reversed the trial court's decision based on the fact that the state failed to "establish the substance in the brown paper bag was cocaine." State v. Harris, 817 So.2d at 1210. DISCUSSION In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676 (La. 1984). Further, an appellate court will not reverse a jury's return of a responsive verdict, whether or not supported by the evidence, as long as the evidence is sufficient to support a conviction for the charged offense. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La. 1982). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the factfinder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Mussall, 523 So.2d 1305, 1310 (La. 1988). In its only assignment of error, the state argues that the court of appeal erred in finding that the state did not submit sufficient evidence of attempted cocaine possession to support the jury's verdict. The state argues that even though it
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inadvertently failed to introduce into evidence the crime lab report that indicated that the substance that defendant sold was cocaine, there was sufficient evidence presented to prove that defendant is guilty of the attempted possession with the intent to distribute cocaine. We agree with the state's contention. There is ample jurisprudence to support the state's position. In one such case, cited by the state, State in the Interest of J.W., 597 So.2d 1056 (La. App. 2 Cir. 1992), defendant, J.W., was convicted of possession of cocaine with the specific intent to distribute in violation of La. R.S. 40:967. The state was required to prove the identity of the drug as cocaine, an essential element of the charged offense. State in the Interest of J.W., 597 So.2d at 1058 (citing State v. James, 517 So.2d 291 (La. App. 1 Cir. 1987); State v. Guillory, 447 So.2d 1214 (La. App. 5 Cir. 1984)). The state failed to produce a laboratory report or the results of a chemical test which would have proved the exact nature of the suspected contraband. The second circuit concluded that the evidence was thus insufficient to support an adjudication of delinquency on the basis that the defendant had committed the charged offense. Nevertheless, the court in J.W. went on to consider whether the evidence was sufficient to support a finding of attempted possession in the absence of scientific proof that a controlled dangerous substance was actually involved, i.e. without a chemical analysis of the substance. The court found that the evidence clearly showed that J.W. subjectively believed that the substance in his possession was cocaine, that the substance was packaged like cocaine, and that his statements following his arrest were evidence that he intended to distribute the substance. State in the Interest of J.W., 597 So.2d at 1059. The court concluded: . . .regardless of whether the substance was cocaine or not, the evidence was sufficient to show J.W. had specific intent to commit the offense of possession of cocaine with the intent to distribute and he
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took actions tending directly toward the accomplishment of that objective. Accordingly, the state proved the essential element of the offense of attempted possession of cocaine with the intent to distribute. The court in J.W. based its decision on federal jurisprudence interpreting analogous federal drug statutes, 21 USC

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