STATE OF LOUISIANA v. TERRY LEE JOHNSON JR (2025)

Defendant, Terry Lee Johnson, Jr. (“Defendant”), appeals his convictions for possession with intent to distribute a schedule II controlled dangerous substance, methamphetamine, in violation of La.R.S. 40:967, and illegal carrying of a weapon, in violation of La.R.S. 14:95(E), as well as the sentences imposed with respect to his convictions. For the following reasons, we reverse Defendant's convictions, enter judgments of acquittal, and vacate the sentences he received for those convictions.

PROCEDURAL BACKGROUND

The facts of this case, which will be provided more fully later in this opinion, involve the discovery of Defendant in a hotel room where illegal drugs and weapons were present on June 29, 2022. On October 6, 2022, the State charged Defendant by bill of information with possession of methamphetamine with intent to distribute, a violation of La.R.S. 40:967A(1); and illegal carrying of weapons while in possession of a controlled dangerous substance, alprazolam, a violation of La.R.S. 14:95(E). Defendant entered not guilty pleas to these charges on November 9, 2022.

Trial began on February 27, 2024, and on February 29, 2024, a jury unanimously found Defendant guilty as charged on both counts. On April 17, 2024, Defendant filed a motion for Post-Verdict Judgment of Acquittal, which the trial court heard and denied on May 30, 2024.

On June 17, 2024, the trial court sentenced Defendant to twenty years at hard labor for possession with the intent to distribute methamphetamine with an aggregate weight of greater than twenty-eight grams and ten years without benefits for illegal carrying of weapons. Defendant's counsel objected to the ruling but never filed a motion to reconsider sentence.

Defendant filed a Motion for Appeal, for Designation of Record, and for Appointment of Appellate Counsel. The trial court granted the appeal on June 18, 2024, and appointed the Louisiana Appellate Project, who filed the current appeal. Defendant now seeks review of his convictions and sentences, assigning five errors.

ASSIGNMENTS OF ERROR

I. The evidence admitted at trial, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Terry Lee Johnson, Jr. had knowledge of the presence of methamphetamine or exercised dominion and control over the methamphetamine found in a bag in a hotel room rented by a female acquaintance.

II. The evidence admitted at the trial, when reviewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Terry Lee Johnson, Jr. had knowledge that non-prescribed alprazolam was located in a hotel room rented by a female acquaintance or that he constructively possessed the alprazolam or the weapons located in the room, both of which are elements of the offense of illegal carrying of a weapon under La.R.S. 14:95(E).

III. The trial court violated Terry Lee Johnson's due process rights when it considered as aggravating sentencing factors both unadjudicated offenses and unsubstantiated information without first evaluating and examining the strength of the evidence.

IV. The maximum sentences imposed by the trial court are manifestly cruel and unusual punishment, and, thus, excessive and violations of the Eighth Amendment of the Constitution of the United States and La.Const. Art. I, § 20.

V. Counsel rendered ineffective assistance of counsel for failing to contest or object to the court's consideration of inappropriate aggravating sentencing factors in arriving at the sentences to impose in the case, and in failing to file a motion to reconsider sentence to preserve the sentencing issues for consideration on appeal, in violation of Terry Lee Johnson, Jr.’s due process rights.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find there is one error patent which concerns there being no specification in the bill of information as to the weight of the methamphetamine. This error, however, is rendered moot by our finding that Defendant's convictions must be reversed, and his sentences must be vacated.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

SUFFICIENCY OF EVIDENCE DEFENDANT'S ARGUMENT

In his first two assignments, Defendant challenges the sufficiency of the evidence presented against him at trial to support his convictions for (1) possession of methamphetamine with intent to distribute; and (2) illegal carrying of weapons while in possession of a controlled dangerous substance, alprazolam. Defendant argues the evidence was insufficient to prove beyond a reasonable doubt that he had knowledge of, or had exercised dominion and control over, the illicit drugs or weapons seized by Rapides Parish Sheriff's Office investigators. Thus, Defendant contends his convictions, and resultant sentences, must be vacated.

STATE'S POSITION

The State asserts it submitted to the jury that Defendant and his friend, Lynecee Warfield (“Ms. Warfield”), worked in a joint effort to sell drugs. The State alleges the jury afforded no credibility to Defendant's witness, Ms. Warfield, finding she had a reason to lie—to protect Defendant. It further argues the jury found the State's theory more reasonable based upon Ms. Warfield's relationship to Defendant, Ms. Warfield's lack of credibility, Defendant's statement and involvement, and the recovery of evidence by Rapides Parish Sheriff's Office investigators. Thus, the State contends Defendant's convictions and sentences must be affirmed.

STANDARD OF REVIEW

The analysis for insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371. Additionally, “the testimony of a single witness, absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043.

Regarding appellate review in cases relying on circumstantial evidence, this court has stated the following:

When the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that the state “must exclude every reasonable hypothesis of innocence” in order to convict. State v. Camp, 446 So.2d 1207, 1209 (La.1984). “Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense.” State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror's reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded. State v. Williams, 13-497 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024.

State v. Baumberger, 15-1056, pp. 10–11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 826–27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S. 950, 138 S.Ct. 392 (2017).

In the present case, Defendant was found guilty of possession with the intent to distribute a schedule II controlled dangerous substance, a violation of La.R.S. 40:967(A)(1). Louisiana Revised Statutes 40:967(A) (footnotes omitted) provides, in pertinent part:

Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.[1]

Defendant was also found guilty of illegal carrying of weapons while in the possession of a controlled dangerous substance, in violation of La.R.S. 14:95(E). Louisiana Revised Statutes 14:95(E) makes it illegal to carry a weapon, providing:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while unlawfully in the possession of a controlled dangerous substance except the possession of fourteen grams or less of marijuana, or during the unlawful sale or distribution of a controlled dangerous substance[.]

Lastly, La.R.S. 40:969(A) provides:

Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule IV.

(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule IV.[2]

Regarding constructive possession, in State v. Magdaleno, 03-618, pp. 4–5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1246, 1249–50, writ denied, 03-3342 (La. 3/26/04), 871 So.2d 347, this court said the following:

Regarding the charge of possession, the State is not required to prove that the defendant was in actual possession of the cocaine; instead, the defendant may be found to have been in constructive possession. State v. Scott, 00-113 (La.App. 3 Cir. 6/7/00), 768 So.2d 112, citing State v. Montgomery, 98-775 (La.App. 3 Cir. 1/27/99), 734 So.2d 650. If the State's case is premised upon constructive possession, the State must prove that the controlled dangerous substance was within the defendant's dominion and control or in his joint possession. Scott, 768 So.2d 112, citing State v. Trahan, 425 So.2d 1222 (La.1983), and State v. President, 97-1593 (La.App. 3 Cir. 7/15/98), 715 So.2d 745, writ denied, 98-2115 (La.12/11/98), 729 So.2d 590. Joint possession is described in State v. Segura, 546 So.2d 1347 (La.App. 3 Cir.1989), as two people willingly and knowingly sharing a direct right in the thing and an ability to exercise control over it. Constructive possession is established by reference to the factors set forth in State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910, in an examination of the facts at hand: for example, the defendant's knowledge that illegal drugs are in the area; the defendant's relationship with the person who has physical possession of the drugs; the defendant's access to the area where the drugs were found; evidence of recent drug use by the defendant; and the defendant's physical proximity to the drugs. A sixth factor given parenthetical reference in Toups is “evidence that the area was frequented by drug users.” Toups, 833 So.2d at 913, citing Bujol v. Cain, 713 F.2d 112 (5th Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984). In addition, the State must prove the defendant's guilty knowledge. Toups, 833 So.2d at 913. However, the mere presence of someone in the area where the controlled dangerous substance is located or mere association with the person found to be in possession of the controlled dangerous substance does not constitute constructive possession. Id.; see also State v. Walker, 369 So.2d 1345 (La.1979), State v. Cann, 319 So.2d 396 (La.1975).

Also, in State v. Blanchard, 99-3439, pp. 10–11 (La. 1/18/01), 776 So.2d 1165, 1174, the Louisiana Supreme Court said:

In order to prove a violation of La. R.S. 14:95(E) when a defendant is found to be in constructive possession of a firearm while simultaneously in possession of a controlled dangerous substance, the state must prove that there is a nexus between the firearm and the controlled dangerous substance. Proof of this nexus is not required where the defendant uses or has actual possession of the firearm, or has the firearm within his immediate control. In order to prove that nexus, the state must show some connection between the possession of the firearm and the drug offense. Under this interpretation, the statute is neither overbroad nor an equal protection violation. Because the jury was not properly instructed on this issue, we remand this matter for a new trial.

TRIAL EVIDENCE

In June 2022, Detective Bobby Bell (“Det. Bell”) was investigating a shooting. Since Defendant was believed to have witnessed the incident, Det. Bell had spoken with Defendant several times. During his investigation, however, Det. Bell lost contact with Defendant and had to ping Defendant's cell phone to find him. The ping led police to discover two persons of interest at a Hotel—Defendant in Room 216 and another witness to the shooting staying in Room 110. A search warrant was obtained. Det. Bell, along with other detectives, went to the hotel.

Defendant and his friend, Ms. Warfield, were staying in Room 216 of the Surestay Hotel in Rapides Parish. The room was under Ms. Warfield's name, and according to her, Defendant was in the room only thirty minutes before detectives arrived.

Det. Bell was not the first to arrive at Room 216; it was Lieutenant Will George (“Lt. George”), Detective Hagan (“Det. Hagan”), and other officers. Though Lt. George testified that he believed Det. Hagan was the first to enter the room, he later stated that he and Det. Hagan probably entered the room together. Lt. George could not recall how they gained access to the room but believed they had entered the room using a master key. As Lt. George and the others entered the room, they saw Defendant and Ms. Warfield were undressed. Defendant was sitting on the toilet in the bathroom, while Ms. Warfield was in the main room. As Defendant was getting dressed, a detective found a pistol in plain view on a nightstand. A detective asked him if there were any other weapons in the room, and Defendant stated there was a rifle.

Regarding whether Defendant had been detained when he stated there was a rifle, Lt. George testified that since police were executing a search warrant, Defendant, though not handcuffed, was detained. Lt. George explained that the question about weapons was asked almost instantly. The detectives had not yet physically restrained Defendant because he was still getting dressed. Lt. George believed they had taken Defendant and Ms. Warfield out into the hallway after discovering the weapons in the room. Lt. George recalled seeing the rifle and a bag of narcotics and testified that the detectives were not investigating for narcotics. He further testified that he did not arrest Defendant and did not know whether Ms. Warfield was arrested. Additionally, Lt. George could not recall which officers were present in the room.

As for Det. Hagan, like Lt. George, he was unsure how they entered the room. He did not think the officers had knocked on the door since they had a key. Det. Hagan testified to being the second person to enter the room. Two uniformed patrol deputies were behind him. Upon entering the room, Det. Hagan saw Defendant in the bathroom and Ms. Warfield inside the room.

Det. Bell testified that he entered Room 216 about one-half hour to one hour after Lt. George, Det. Hagan, and the other officers had made their entrance. By that time, the rifle and narcotics were on the TV stand. Ms. Warfield, and possibly other friends of Defendant, were in the hallway. Det. Bell could not say where the detectives originally found the items on the TV stand, nor could he say who had put those items there. Up to ten officers were in the room, according to Det. Bell. All present were detectives. Det. Bell photographed what appeared to be the methamphetamine, a scale, and $1,148 cash.

Additionally, Det. Bell testified that prior to the search of Room 216, he spoke to Defendant two to three times on the phone. He may have told Defendant that he did not have to come to the office for an interview. Other detectives may have spoken with Defendant as well. Det. Bell stated that he believed the hotel had been under surveillance for perhaps two days before entry into Room 216. He testified the room was in Ms. Warfield's name, and when asked how long Defendant had been there, he said Defendant had checked in that same day. Det. Bell testified he did not believe that Ms. Warfield was arrested.

Detective John Nalezinek (“Det. Nalezinek”) collected the evidence from Room 216. He recovered five Xanax pills, two-and-one-half Ecstasy pills, three small bags of suspected marijuana, a small bag of suspected cocaine, a clear container with suspected methamphetamine, a Glock .380 caliber pistol, and an AR-style rifle. Det. Nalezinek recovered the evidence, logged the items, sealed them in evidence bags and delivered the items to the evidence custodian.

In his report, Det. Nalezinek noted that a detective had found the methamphetamine in a red bag. The money and other items were found in a blue bag. Neither bag was with the evidence when Det. Nalezinek arrived in Room 216. Det. Nalezinek saw several bags in the corner but did not seize or photograph any of them. Det. Nalezinek testified he did not interview Ms. Warfield, and the information in the report he prepared came from Lt. George and Det. Bell. He also admitted that the report was incomplete as he did not identify who made the various statements found in the report.

Two crime lab forensic chemists testified at trial. Carly Deselle (“Ms. Deselle”) stated she tested five pills. Two-and-one-half tablets were alprazolam (Xanax), a schedule IV controlled dangerous substance, consisting of 1.299 grams. The other two-and-one-half tablets contained cocaine and methamphetamine, both schedule II controlled dangerous substances, with a total weight of .773 grams. Ms. Deselle also tested the three baggies and determined that they contained marijuana.

Deandria Moss (“Ms. Moss”), the other forensic chemist, testified she tested the white substance contained in the eighteen bags. The substance, weighing a total of 440.31 grams, was methamphetamine, a schedule II controlled dangerous substance. Ms. Moss further testified that she did not test for purity of the methamphetamine. Additionally, Ms. Moss testified there were two other bags, weighing 16.466 grams, that contained fentanyl.

Regarding the weapons and drugs found in Room 216, Ms. Warfield testified that she was the owner and not Defendant. Ms. Warfield testified that she, alone, checked into Room 216 about thirty minutes before the detectives arrived; however, by the time she entered the room, Defendant was with her. Ms. Warfield brought a leopard printed duffle bag. She described Defendant as a friend, said she had invited him to the room, and admitted that the two had been “intimate” on the day of the search. When officers attempted to enter the room using a key, they were unable to because Ms. Warfield had locked the latch. She opened the door after a detective said to let them in. Again, neither she nor Defendant were dressed.

Ms. Warfield testified that the officers took her money out of her purse and that all the items were in her bag, which was zipped closed. Ms. Warfield testified she had methamphetamine, Xanax, and Ecstasy. She did not believe she had marijuana and denied having fentanyl. Ms. Warfield testified that she was taking the Xanax, the methamphetamine she was selling, and she estimated she had nine or ten packages of the drug. She could not remember whether a scale was in her bag. Additionally, Ms. Warfield testified that she had a Glock, which she erroneously believed was a .9 mm, and a machine gun. Ms. Warfield insisted that except for the Glock that was on the nightstand, all the items were in her bag. To explain why she had an AR-style weapon, Ms. Warfield said it belonged to her boyfriend at the time. We note her boyfriend was not Defendant. Ms. Warfield claimed she left her boyfriend's house earlier that day and had taken his machine gun because she was mad at him.

Ms. Warfield testified she tried to hire an attorney for Defendant, saying she could not let Defendant go to jail when she knew the drugs and firearms were hers. She further testified that she had told Det. Bell the day they came to the hotel that the drugs were hers and later talked to a detective named Shannon. Ms. Warfield identified the various items removed from the room as hers, except for an iPhone. She identified the Glock as hers and admitted that she thought it was a .9 mm but that it was apparently a .380 caliber pistol. She admitted having had several guns in the past.

The State called Det. Bell back to the stand to testify. At this time, he stated that he did not remember Ms. Warfield making any statement to him about the ownership of the drugs, and he would have to check his notes. He further stated that the drug portion of the case was turned over to the Rapides Area Drug Enforcement agents and ownership of the drugs was not important for why he was there. Det. Bell admitted that Ms. Warfield may have said something about the drugs, but he just did not recall her doing so.

Detective Shannon Hanks (“Det. Hanks”) testified that she did not recall talking with Ms. Warfield, but it was possible she had told Det. Hanks the drugs were hers.

ANALYSIS

Defendant alleges the State offered no evidence that he was in physical possession of the drugs. In support of that contention, Defendant points to the fact that he was naked when the detectives entered the room. Defendant further argues the State failed to offer evidence concerning the discovery of the substance, like how it was packaged, for example, or who found it. He asserts that none of the detectives who testified at trial indicated that they discovered the substance; thus, Defendant argues his convictions are not supported by the record.

Defendant points out that Detectives Bell, Nalezinek, and Hanks were not in the hotel room at the time any of the illicit items were discovered. Regarding the other two officers who initially entered the hotel room, Lt. George and Det. Hagan, Lt. George was apparently near the bathroom door as Defendant was dressing and left as the rifle was being collected. Lt. George returned later only after the rifle and a bag of narcotics were taken from where they were originally found and displayed out in the open. Det. Hagan, for his part, testified about the entry into the room and the location of Defendant when he entered but was not questioned about any evidence that was later seized.

According to Defendant, the only evidence as to the possible location of the items, other than the Glock which was on the nightstand, was gleaned from Ms. Warfield and Det. Nalezinek. Ms. Warfield testified that all the items were inside her duffle bag, which was zipped up. She denied having the controlled dangerous substance out in plain view at any point before the detectives came into the room and denied that Defendant was aware that she had the items with her. As for Det. Nalezinek, his knowledge was based upon the report he had written which depended on the information other detectives had given to him. Det. Nalezinek testified that he had no personal knowledge as to how or where the evidence was found. Rather, he simply recorded what the detectives told him, which was that the methamphetamine was found in a container inside a red bag and that the other items were in a blue bag. Also, Det. Nalezinek testified that the bags were not with the evidence when he first saw the evidence, and he did not photograph the bags.

Since he was not found in actual possession of the controlled dangerous substance, Defendant notes the State had to prove he was in constructive possession. Defendant says, when analyzing whether a person was in constructive possession, the first consideration is “knowledge that drugs are in the area.” Defendant points out Ms. Warfield testified that the controlled dangerous substances were inside her bag and zipped up and that Defendant had no knowledge about what was inside her bag. Furthermore, the State offered no evidence to contradict the fact that the items were inside a zipped bag the entire time Defendant was in the room. Defendant was in the hotel room for roughly thirty minutes, according to Ms. Warfield, and both he and Ms. Warfield were naked when the detectives entered the room. Defendant notes Lt. George testified that Defendant stated there was a rifle in the room, but he contends this alone does not indicate he had even seen the rifle, much less had possessed it. Defendant notes Ms. Warfield testified she had taken the weapon from her boyfriend out of anger. Ownership of the weapon was not established. No DNA, fingerprints, or other evidence was admitted to establish whether Defendant had touched the weapon. Defendant notes Lt. George testified that Defendant was cooperative and claims this should be considered when determining whether he had knowledge of the controlled dangerous substance.

Defendant then addresses the second factor to consider: “his relationship with the person found to be in actual possession.” Defendant alleges no one was found in actual possession of the controlled dangerous substances, noting that Ms. Warfield admitted that the controlled dangerous substances were hers, that she was in a relationship with Defendant in June 2022, but that each of them also had a relationship with another person. Defendant argues that no testimony or evidence was admitted showing any personal items in Room 216, other than the clothes he was wearing that day, were linked to Defendant.

As for the third factor, “his access to the area where the drugs were found,” Defendant alleges the testimony admitted at trial was very vague as to where the controlled dangerous substances were found. Defendant does not deny that he was inside the room at the time the detectives made entry. However, though arguably he had access to the area where the items were since the hotel room was one single bedroom with a bed, a separate couch area, and a bathroom, no evidence was admitted showing he exercised control over the area or had knowledge of what was in the area. Further, Defendant states Det. Bell testified that the room was in Ms. Warfield's name, not Defendant's name.

The fourth factor is “evidence of recent drug use.” Defendant alleges the State offered no evidence that he was a drug user or had recently used drugs and that the methamphetamine was alleged to have been inside a closed container which was inside a bag.

Lastly, Defendant addresses the factor concerning “his physical proximity to the drugs.” Defendant concedes that he was inside Room 216 at the time the controlled dangerous substance was found in a bag. He contends, however, that “mere proximity to the [controlled dangerous substance (“CDS”)] does not equate to dominion and control, especially if the drugs were not in plain sight and there was no evidence that he knew the drugs were in the room.” Additionally, Defendant notes the cash found in the room was inside Ms. Warfield's purse.

Defendant points out that Ms. Warfield testified she and Defendant had been intimate before the detectives arrived, and argues, “This established a reasonable inference for his presence in the room.” He contends that since both were naked, Ms. Warfield's testimony was substantiated. Defendant also notes Ms. Warfield testified that when the detective was unsuccessful at gaining access to the room with a pass key and requested that she open the door, she did so within seconds.

According to Defendant, the detectives could not recall exactly how they entered the room, who was present in the room, or what was said and done. Several detectives remarked that it had been one-and-a-half years since the search. To refresh their memories of specific details, they needed to reference the notes that they allegedly had made shortly after the search. Even so, Defendant argues the prosecution made a major issue of Ms. Warfield's failure to recall if she had marijuana, fentanyl, or a scale in her bag and her failure to recall the number of bags of methamphetamine she had.

Defendant contends he did not exercise dominion and control over the controlled dangerous substance found within a room he was visiting for a short period of time. Defendant points to State v. Grant, 54,847 (La.App. 2 Cir. 12/14/22), 352 So.3d 179, where the defendant was found to be in constructive possession because the evidence indicated that defendant was the sole occupant of the motel room where drugs were found. There, the court said, “To convict a defendant of possession of CDS, the state must prove that the defendant knowingly possessed an illegal drug. State v. Broome, 49,004 (La.App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-990 (La. 1/16/15), 157 So. 3d 1127.” Grant, 352 So.3d at 186. In brief, Defendant asserts that unlike the defendant in Grant, he was not the sole occupant of the hotel room nor were the drugs in plain sight within the room.

Defendant next focuses on State v. Fisher, 19-1899 (La. 5/13/21), 320 So.3d 400, which he asserts supports his insufficient evidence claims. In Fisher, the defendant was taking a bath at his girlfriend's residence when police officers, accompanied by a parole officer, entered the home to check on two other occupants of the home who were on probation. One of the individuals on probation admitted to having drugs on his person. After obtaining a search warrant for the residence, drugs were found in the defendant's girlfriend's room—a loose prescription promethazine pill was on a cluttered nightstand and a small amount of methamphetamine was inside a medium-sized jacket in the closet. Despite no drugs being found where the defendant was taking a bath, the defendant was found guilty of possession of methamphetamine and possession of a legend drug without a prescription.

Whereas the first circuit upheld the convictions, the supreme court found that “[t]he jury could only speculate that defendant's knowledge of contraband in the common areas somehow alerted him to the presence of contraband in his girlfriend's bedroom.” Id. at 404. In vacating the defendant's convictions, the supreme court explained: “A jury could only make a series of speculative leaps to infer that defendant knew the methamphetamine was there, in part because defendant might have been able to fit into the jacket (as one officer speculated at trial).” Id. The supreme court also noted that “[n]o evidence was presented that defendant owned the jacket, had ever worn the jacket, or could wear the jacket, other than an officer's opinion that it might fit him.” Id. at 405 n.2.

Defendant also points to the decision in Young v. Guste, 849 F.2d. 970 (5 Cir.1988), in which the Fifth Circuit concluded that presence in the area alone is not enough to prove dominion and control over evidence. Therein, the court declared: “Establishing dominion and control requires proof such as the defendant's recent use of the drugs, his ownership of the premises where the drugs are found or his frequent or continuous proximity to the drugs.” Id. at 973 (emphasis added).

In the present case, Defendant alleges the State offered no evidence from which the jury could have reasonably concluded that he knew the drugs were inside the bags in the hotel room, much less that he exercised dominion and control over the drugs. He argues that, unlike Fisher, there was nothing but his presence connecting him to the room. No one offered testimony to suggest he had intended to stay with Ms. Warfield in the room. There was no evidence that items belonging to him were located in close proximity to the drugs. Although the State commented at closing that Defendant's phone was collected, no evidence was admitted confirming that the phone seized from the room belonged to him. The State offered little details about the phone, what was depicted in it, or where it was located within the room at the time the detectives entered the room. Defendant notes again that Ms. Warfield claimed ownership of the drugs—a statement against her interest—and that Defendant had no knowledge of the presence of the drugs.

In conclusion, Defendant argues the evidence established that the controlled dangerous substances were not in plain sight. None of the detectives who testified admitted to finding the drugs. Rather, some unknown officer searched inside one or more bags within the room, removed the contents, and laid them out on the TV stand where they were later recovered by the evidence officer. Defendant asserts, in brief, “As the search warrant was presumably to obtain the location of the two men, it is questionable why any bag was searched” and claims the officers could have secured their safety by removing the two occupants from the room. Regardless, Defendant contends that despite the questionable search, the evidence was insufficient to establish that he had the requisite knowledge to be held criminally responsible.

Defendant contends that if he did not have knowledge of the presence of the controlled dangerous substance, his knowledge of the guns in the room was insufficient to prove the drug element of the illegal carrying of weapons with drugs charge. He further argues:

Even assuming the evidence was sufficient as to knowledge of a weapon, the inquiry does not end with proof of knowledge of the presence of the weapon in the hotel room rented by another. The State had to also establish that [he] exercised some level of dominion and control over the weapon. It failed to do so.

Additionally, Defendant argues the State was also required to prove not only knowledge of the presence of non-prescribed alprazolam but also dominion and control over the drug. Ms. Warfield testified that she used alprazolam, though whether she had a prescription for the drug or was just a regular user remains unclear. Defendant does not dispute that the presence of five tablets of alprazolam in the hotel room was established through the testimony of Det. Nalezinek and Ms. Deselle. However, he contends the jury's verdict did not establish that they found the presence of alprazolam. The bill of information provided the following as to count 2:

IN THAT HE DID ON OR ABOUT THE 29TH DAY OF JUNE, 2022 while in the Possession of a Controlled Dangerous Substance, Schedule IV, to-wit: ALPRAZOLAM, did possess a firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon, in violation of LSA-R.S. 14:95 E.

In the court's oral instructions to the jury, however, it stated in pertinent part:

If you find that the defendant was not in actual possession of firearm at the time he was in constructive possession of Methamphetamines, you must find that -- you must find reasonable doubt that there was a -- you must find reasonable, a reasonable doubt that the connection or nexus between the firearm and the Methamphetamines. In making that determination you may consider any evidence admitted during the trial that you find establishes or fails to establish the connection between the firearm and the Methamphetamine. You may find such a connection or nexus if you find that the defendant had the firearm under his immediate control. You may also consider the following evidence in determining whether or not such nexus or connection was established: 1) is the type of firearm involved; 2) the type of controlled dangerous substance involved; 3) the quantity of drugs involved; 4) the proximity of the firearm to the drugs; 5) whether the firearm is loaded; and 6) any other relevant evidence.

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Count II: Illegal carrying of weapons with drugs. Illegal carrying of weapons is the possession, use or having under one's immediate control of a firearm while committing or attempting to commit possession of a controlled dangerous substance. A firearm is a weapon from which a projectile is fired by gunpowder. Thus, in order to find the defendant guilty of illegal carrying of weapons with drugs, you must find: 1) that the defendant was engaged in the commission or attempted commission of possession of a controlled dangerous substance; and 2) that the defendant possessed or had under his immediate control a firearm while committing such offense. The verdicts to illegal carrying of weapons with drugs. The following are the possible verdicts: guilty of illegal carrying of weapons with drugs; guilty of attempted illegal carrying of weapons with drugs; not guilty. If you are convinced that the defendant is guilty of illegal carrying of weapons with drugs, the form of your verdict should be: “We, the jury, find the defendant guilty of illegal carrying of weapons with drugs.” If you are not convinced that the defendant is guilty of illegal carrying of weapons with drugs, you may find the defendant guilty of the lesser offense of attempted illegal carrying of weapons with drugs, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser offense.

Additionally, Defendant argues that the verdict sheet followed the verdicts noted by the court, and as the court discussed the need to determine the nexus between the methamphetamine and the weapons, it is reasonable to find that the jury did not conclude that he possessed the weapons while in possession of alprazolam.

Furthermore, Defendant contends that if the jury found, in line with the court's instructions, that he had possessed the weapon while in possession of the methamphetamine, it would have amounted to double jeopardy inasmuch as the possession of methamphetamine would have been a necessary element of both offenses. Defendant asserts the analysis is akin to the felony-murder doctrine. Proof of an underlying felony is necessary to establish the murder without the State having to prove the intent element of murder. In his brief, Defendant argues, “In the present case, the possession of methamphetamine found to uphold count one was a necessary element of possession of firearm while in possession of an illegal substance, as instructed by the court. See generally State v. Taylor, 19-620 (La.App. [3 Cir.] 2/5/20), 290 So.3d 1172, 1180–81[, writ denied, 20-391 (La. 11/18/20), 304 So.3d 420].”

Defendant concludes, arguing that although the jury's verdict did not specifically list methamphetamine, the court clearly instructed the jury that finding he possessed methamphetamine was sufficient to satisfy the drug element of the weapon offense. In addition, he contends the State failed to prove either Defendant had knowledge of or dominion over (1) the alprazolam, which according to the Bill of Information was the controlled dangerous substance that he was alleged to possess with the weapon, or (2) the methamphetamine, which the court instructed must be proven in the jury charges. For all of these reasons, Defendant contends his conviction for possession of a weapon while in possession of a controlled dangerous substance was deficient, must be reversed, and an acquittal entered of record.

Analysis: Whether There Was Constructive Possession

Since there is no dispute that Defendant did not have actual possession of either the controlled dangerous substances or the firearms found in Room 216, this assignment of error deals entirely with whether he had constructive possession.

Constructive possession is not constituted by the mere presence of someone in the area where the controlled dangerous substance and/or gun is located or mere association with the person found to be in possession. Thus, other factors must be considered, such as Defendant's knowledge that illegal drugs were in the area; his relationship with the person who was in physical possession of the drugs; his access to the area where the drugs were found; evidence of recent drug use by Defendant; and Defendant's physical proximity to the drugs. See Magdaleno, 856 So.2d 1246.

Considering these factors when reviewing the record, we find the available evidence is inadequate to support the claim that Defendant constructively possessed the drugs and firearms collected at the scene. The following cases illustrate and support our finding.

In State v. Durham, 53,922, pp. 11–13 (La.App. 2 Cir. 6/30/21), 321 So.3d 525, 533–34, the second circuit, finding the defendant had constructive possession, explained:

In the present case, we find that the State sufficiently established that Durham was in constructive possession of the methamphetamine found in the vehicle. Dep. Bryan and Dep. Hughes testified that they initially observed Durham fumbling and pilfering with something to the right of him near the center console and where the drugs were later found. However, when Dep. Bryan approached the driver's side of the vehicle, Durham stopped fumbling and was excessively nervous when speaking.

The deputies further testified that after they spoke to Kelley, who appeared highly intoxicated, both she and Durham consented to a search of the vehicle whereby a wallet was found on the passenger side floor and the cellophane wrapped methamphetamine was discovered near the center console underneath the carpet of the vehicle. Although both parties initially denied ownership of the drugs, Kelley eventually produced a small bag of methamphetamine amongst several ID and medical insurance cards, and other miscellaneous papers, which appeared to belong to Durham, from the front of her pants. Deputies testified that Kelley stated that the items belonged to Durham and that he gave her his wallet and ordered her to get rid of everything in it when they were pulled over.

In contrast, Kelley testified that she lied to the arresting deputies when they questioned her about the ownership of the drugs. Kelley stated that she lied to the deputies because she was afraid she would be arrested. She explained that after she and Durham were pulled over, she grabbed Durham's wallet, hoping that one of them would not be arrested to prevent her car from being towed. Kelley further testified that she purchased the car from Durham a month prior to the offense and had cleaned the car so that the drugs found in the car and on her person belonged to her. Kelley then stated that she regularly used methamphetamine and smoked cigarettes, often leaving the cellophane wrapper on the floor of the car, but kept her drugs in the initial bag in which she purchased it. In contrast, she initially stated Durham did not smoke, yet when questioned why Durham was fumbling near the center console, she stated that Durham was reaching for a cigarette because he occasionally smoked and dipped.

At the outset, we note that while proximity alone is insufficient to establish constructive possession, we find that the circumstances of this case and the testimony presented at trial is sufficient to show that Durham constructively possessed the drugs. First, Durham and Kelley knew each other for almost a year and during this time had a brief, intimate relationship. Moreover, Durham previously owned the car in question before he sold it to Kelley, and it can therefore be reasonably concluded that he was familiar with the car before Kelley asked him to drive her on the night in question. Additionally, guilty knowledge of the presence of the drugs can be inferred because Durham was aware that Kelley was under the influence, which is the very reason she claimed to have asked him to drive her car. Durham's knowledge of and proximity to the drugs, coupled with the deputies’ testimony of Durham fumbling in the area where the drugs were subsequently discovered was sufficient to establish that the drugs were in Durham's dominion and control.

In this case, the jury made a credibility determination and chose to believe the testimony provided by Dep. Bryan and Dep. Hughes, rather than Kelley. As previously stated, a jury's credibility determination is afforded great deference and in the absence of internal contradiction or irreconcilable conflict with the physical evidence, a witness's testimony, if believed by the trier of fact, is sufficient to support a requisite factual conclusion. Considering the evidence in the light most favorable to the prosecution, the evidence was sufficient for the jury to conclude that all elements of the charge of possession of methamphetamine was proven beyond a reasonable doubt. Durham's assignment of error is therefore without merit.

In sum, despite the defendant's girlfriend claiming the drugs were hers, the second circuit found the defendant had constructive possession because of his one-year relationship with the woman, his previous ownership of the property in which the drugs were found, his knowledge of his girlfriend's intoxication, and his direct interaction with the area where the drugs were discovered.

Then, in Grant, 352 So.3d at 187, in which the defendant denied ownership of the discovered drugs, the second circuit said:

Viewing the evidence in the light most favorable to the prosecution, we find that the state presented sufficient evidence at trial for a reasonable jury to convict the defendant of possession with intent to distribute methamphetamine and possession of cocaine. Here, the jury heard Det. Turpin's testimony that the defendant was the only occupant of the motel room when the officers arrived and for the duration of the investigation. The methamphetamine and cocaine were in the defendant's constructive possession because he had dominion and control over the drugs as he was the only person in the room, as previously mentioned. Also, the defendant had knowledge that the drugs were in the room because Detective Turpin testified that when he went to retrieve the keys, he saw in plain view small plastic baggies strewn across the bed that appeared to be methamphetamine and that led to the discovery of cocaine in the room. As previously mentioned, Det. Belanger testified that all the following items were seized from the defendant: a digital scale, small baggies, firearm, and multiple drugs were consistent with intent and are the instruments of distribution. Robillard testified he performed the analysis on all the various dangerous substances that were items brought to the crime lab; he identified the drugs and the weight of the items. All of the state witnesses identified the defendant as the offender. The jury clearly chose to believe the officers and forensic expert testimony over that of the defendant. It is within the discretion of the trier of fact to make such credibility determination, and this court will not disturb this determination on appeal. There is no internal contradiction or conflict with the physical evidence. Thus, the evidence was sufficient to support the defendant's convictions for constructive possession of methamphetamine with intent to distribute and possession of cocaine.

In other words, the defendant had constructive possession because he was the only individual in the motel room, and the drugs were out in the open.

This court found constructive possession in State v. Edwards, 12-891 (La.App. 3 Cir. 2/6/13), 107 So.3d 883, in which there was a conflict between the defendant's testimony and the testimony of the officers. The defendant claimed all of the narcotics and the gun were found inside a residence that did not belong to him. Moreover, substantially all of the evidence was found inside a woman's purse and/or inside a woman's shoe box that contained women's shoes, which did not belong to him. This court stated:

Officers Hardy and White testified the defendant stated the drugs found in the apartment were his. This testimony was sufficient to prove the defendant had constructive possession of the drugs found. The jury clearly chose to believe this testimony over that of the defendant, and this court will not second guess that credibility determination. Accordingly, the evidence is sufficient to support the defendant's convictions for possession of cocaine, marijuana, MDMA, alprazolam, and methamphetamine, when reviewed in a light most favorable to the prosecution in accordance with the Jackson standard.

Id. at 891.

Lastly, in State v. Hill, 53,286, pp. 10–15 (La.App. 2 Cir. 3/4/20), 293 So.3d 104, 112–15 (alteration in original) (footnotes omitted), the second circuit again found constructive possession of weapons and drugs found in his girlfriend's apartment:

Hill contends that the evidence was insufficient to prove beyond a reasonable doubt that he had possession, knowledge, dominion or control of the IMI .40 caliber handgun and the drugs seized from Latasha Jones’ apartment: he did not live in her apartment; no one, including the police, testified that they ever saw him entering or leaving the apartment, and the manager, Ms. Wesley, testified that she had never seen Hill at the complex; he admitted to police only that he owned or possessed the AK-47, not the IMI .40 handgun, the basis of the convictions; his statement to police, “I do drugs,” was no admission that the Tramadol in the apartment belonged to him. He suggests that the .40 caliber handgun and the drugs could very well belong to Ms. Jones.

At trial, Cpl. Ardoin testified that after he arrested Hill outside the complex, he talked to Latasha Jones, advising her of her rights and that she was not being arrested. He asked her if Hill was living with her; she replied that he had been staying with her for about three months, which Ardoin said corresponded with the timeline in which Hill had been absent from his last known address. Ms. Jones said she did not know if there were weapons or drugs in the apartment because she works a lot. She gave Cpl. Ardoin oral and written consent to search the apartment.

After making sure the apartment was clear of any other occupants, Cpl. Ardoin and TFO Kennedy began searching it. Cpl. Ardoin began in the kitchen area, where he noticed a white box similar to a cigar box, on the table. He opened it and observed some pills he recognized as Tramadol based upon his prior experience in drug enforcement. While Cpl. Ardoin was in the kitchen area, TFO Kennedy found an AK-47 rifle with the stock cut off under the living room couch.

After seizing the AK-47 and drugs, Cpl. Ardoin went back outside to the Tahoe and spoke with Hill about what he had found. Cpl. Ardoin testified that he replied, “I told him [I] found an AK-47 and some narcotics,” admitted these were his, and said that there was nothing else in the house. This conversation was not recorded by video or sound, but TFO Kennedy was present.

After this unrecorded conversation, Cpl. Ardoin said he and TFO Kennedy went back into the apartment to search a second time. There was a black duffel bag or suitcase to the right of the front door. In the bag, he found two fully loaded AK-47 magazines and two fully loaded Glock magazines, which he described as a .40 caliber pistol; a box of .40 caliber ammunition and a plastic bag with some loose rounds; a Louisiana official identification card with Hill's name and picture on it; and men's clothing, including shirts, pants, shoes and underwear.

Cpl. Ardoin further testified that during the second search they found a fully loaded IMI .40 caliber pistol wedged between the sideboard and mattress at the right foot of the master bed. The pistol had a loaded 8-round magazine in it and one bullet in the chamber, both of which were identified at trial. The engraved serial number on the handgun had been filed off.

During the search, an SPD police unit arrived to transport Hill. They moved him from the unmarked Tahoe and into a marked SPD unit, which had an operating video tape recorder. Cpl. Ardoin went out and spoke with Hill a second time. He said Hill asked him what he found and what he was being charged with. Cpl. Ardoin told him he found the AK-47, narcotics and a pistol that Hill had not told him about earlier. Ardoin testified that Hill said that the chopper (AK-47) and the pistol were all he had in there; and the drugs were not personal use drugs, though he said he used drugs.

A videotape of the conversation in the SPD unit was played several times. On cross-examination, the defense pointed out that Hill did not actually claim that the two guns were his or in his possession, only that “those two guns are in there and that's it.” However, Cpl. Ardoin testified he understood Hill to mean that he was admitting that he had two guns in there, but no more.

All the items seized, including the guns, bullets, magazines and Ms. Jones's signed consent form, were identified and placed into evidence. TFO Kennedy also testified and corroborated Cpl. Ardoin's testimony regarding Jones's oral and written consent to search her apartment. Kennedy said the apartment appeared to be lived-in with furniture and clothes scattered about. He saw male clothing in the bedroom, the closet, and in the black duffel bag. He said that he found the AK-47 and identified the narcotics and .40 caliber handgun that Cpl. Ardoin found.

TFO Kennedy said he heard Ms. Jones say that Hill did not live there but that he had “stuff” in the apartment. He said he heard Hill say, “That's my chopper. That's my pistol. That's the only two I have.” This led him to believe that Hill was asserting ownership or possession of the AK-47 and handgun.

Officer Cody Hyde testified that he arrived at the scene when Hill was already in custody. He placed Hill in his patrol car, which was equipped with an audio and visual recording system. Hyde heard Hill, who was seated behind him in the vehicle, admit to possibly having Tramadol and Ecstasy pills in the residence. He also said that Hill said there was a “chopper” and .40 caliber handgun inside.

As noted, forensic evidence confirmed that the two pills found in the apartment were Tramadol, a Schedule IV CDS.

Though the .40 caliber handgun and CDS in question were found in an apartment leased only to Ms. Jones, the evidence indicates that Hill was living there, perhaps temporarily, and that he had knowledge of the guns therein. Further, Hill's duffel bag, containing ammunition, his ID card and clothing, was found in the apartment. Other items of a man's clothing were also found in the apartment. Cpl. Ardoin testified that Ms. Jones stated she was considering throwing Hill out of her apartment and had put some of his things in a bag. The handgun in question was found in Ms. Jones's bedroom between the sideboard and mattress, at the foot of the bed. Testimony from Cpl. Ardoin and TFO Kennedy and the recording of Hill established that either Hill admitted that the handgun and drugs belonged to him or that he knew the guns were present in the apartment, since the jury considered and rejected Hill's hypothesis that they belonged to or were possessed by Jones.

Appellate courts do not assess the weight and credibility of evidence. Those assessments are the province of the fact finder, and we give great deference to their conclusions. Our review shows that Hill's statements to the officers demonstrated his knowledge of the handgun and CDS seized in the apartment. However, even absent these admissions, the circumstantial evidence presented to the jury that Hill was living in the apartment and knew the presence of the weapons, is arguably sufficient to prove he had constructive possession of the handgun and narcotics. We therefore conclude that, viewing the evidence and Hill's statements in the light most favorable to the prosecution, evidence was sufficient for the jury to conclude beyond a reasonable doubt that Hill was guilty of possession of a firearm by a convicted felon, possession of or dealing in a firearm with obliterated number or mark, and attempted possession of Tramadol.

Comparing Defendant's case to the cases above, we note the following. First, when the detectives obtained a warrant to search the hotel room, they were looking for Defendant for a reason entirely different from the use or production of drugs. Second, Defendant was undressed when the detectives found him. No drugs were found on his person. Third, the record shows that Defendant was in the hotel room for only thirty minutes prior to the detectives’ arrival. If that was not the case, no evidence was provided to show otherwise. Fourth, no evidence showed whether Defendant had recently used drugs or whether the hotel room had been used for a purpose involving the use or distribution of drugs. Lastly, the State failed to contradict the testimony of Ms. Warfield who claimed ownership of everything. She testified to renting the room in her name, to owning the drugs, the drug paraphernalia, and the weapons, and to keeping these items, other than her Glock, zipped up in her bag, and she said Defendant knew nothing of them. No State witness saw firsthand the finding, gathering, and displaying of the drugs and firearm at issue. None could contradict what Ms. Warfield said. The record does not show where the rifle was originally found, and no photos were taken of the red, blue, or black bags in which the drugs were allegedly found.

Perhaps the jury, considering Lt. George's testimony that Defendant knew Ms. Warfield's rifle was in Room 216, judged that Ms. Warfield was lying. After all, Ms. Warfield and Defendant were in an intimate relationship. If the rifle was in Ms. Warfield's bag as she testified (and nothing in the record suggests the rifle was anywhere other than in Ms. Warfield's bag), it follows that if Defendant knew of the rifle, then he knew it was in the bag; and if the bag also contained the controlled dangerous substances as Ms. Warfield had said, then how likely was it that Defendant knew of them as well?

Whatever the answer, the jury, due to the material evidence at hand, had to base its verdict on circumstantial evidence. The State, therefore, was required to exclude every reasonable hypothesis of innocence. See Camp, 446 So.2d 1207. We find the State failed to do this, as it did not even exclude the hypothesis that Ms. Warfield, as she testified, owned and had concealed everything. It is also possible that Defendant knew of the rifle but not of the drugs, since it remains unclear where the rifle or the drugs were actually found.

Consequently, we find Defendant's conviction for possession of a controlled dangerous substance is vacated, an acquittal entered, and Defendant's sentence vacated. Additionally, regarding Defendant's challenge to his conviction for illegal carrying of weapons while in the possession of a controlled dangerous substance, this conviction is also vacated. An acquittal is entered, and Defendant's sentence is vacated. Though Defendant appears to have had knowledge of the rifle, the evidence available to prove he used, possessed, or had under his immediate control either the rifle or the Glock was just as inadequate. Moreover, finding that Defendant's constructive possession of drugs was not proven beyond a reasonable doubt negates an element of this second charge.

Considering the above, we need not address Defendant's remaining claims relating to his sentence and alleged ineffective assistance of counsel. Having found merit in Defendant's challenges to the sufficiency of the evidence, Defendant's remaining assignments of error are moot.

DECREE

The evidence is insufficient to sustain Defendant's convictions of possession with the intent to distribute a schedule II controlled dangerous substance, methamphetamine, in violation of La.R.S. 40:967A(1), and illegal carrying of weapons while in possession of a controlled dangerous substance, alprazolam, in violation of La.R.S. 14:95(E). Therefore, Defendant's convictions are reversed, judgments of acquittal are entered as to those convictions, and his sentences for those convictions are vacated.

CONVICTIONS REVERSED; JUDGMENTS OF ACQUITTAL ENTERED; SENTENCES VACATED.

FOOTNOTES

1.   Methamphetamine is a classified as a schedule II controlled dangerous substance in La.R.S. 40:964.

2.   Alprazolam is classified as a Schedule IV controlled dangerous substance in La.R.S. 40:964.

JONATHAN W. PERRY JUDGE