                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of October, 2015, are as follows:



PER CURIAMS:


2014-K -1511      STATE OF LOUISIANA v. MICHAEL D. ELLIS (Parish of Caddo)
                  (Possession of Cocaine with Intent to Distribute)

                  Accordingly, the court of appeal’s decision is reversed and the
                  matter is remanded to the court of appeal for consideration of
                  the remaining assignments of error.

                  JOHNSON, C.J., dissents and assigns reasons.
                  HUGHES, J., dissents with reasons.
10/14/15

                         SUPREME COURT OF LOUISIANA

                                  NO. 2014-K-1511

                             STATE OF LOUISIANA

                                      VERSUS

                               MICHAEL D. ELLIS


           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                  SECOND CIRCUIT, PARISH OF CADDO


PER CURIAM:

      Writ granted; reversed and remanded. Defendant was found guilty as

charged by a jury of possession of cocaine with intent to distribute. By

agreement with the state, defendant admitted the allegations in the habitual

offender bill of information and was sentenced under La.R.S. 15:529.1(A)(1)

as a second felony offender to 22 years imprisonment at hard labor with the

first two years to be served without parole eligibility.

      The court of appeal reversed the conviction because it found the state

presented insufficient evidence to prove defendant intended to distribute the

cocaine. State v. Ellis, 49,078 (La. App. 2 Cir. 6/25/14), 144 So.3d 1152.

The court of appeal noted that a guest in defendant’s home, rather than

defendant, was found in possession of two small rocks of crack cocaine. The

court of appeal acknowledged that defendant admitted to police that he sold

cocaine in small quantities but nonetheless determined that a jury could not

reasonably infer defendant’s intent to sell those particular rocks from the

evidence presented by the state. See Ellis, 49,078 at 8, 144 So.3d at 1160

(“There is no question that this defendant is an admitted drug dealer. We

find, however, that this record does not contain enough evidence for a
reasonable jury to conclude beyond a reasonable doubt that he possessed

these rocks with the specific intent to distribute. It is quite possible that the

drugs belonged to Elzie or were for personal usage.”). The court of appeal

erred.

         The standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), governs review of claims of insufficient evidence.

Under that standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The Jackson

court further stated:

                This familiar standard gives full play to the responsibility
         of the trier of fact fairly to resolve conflicts in the testimony, to
         weigh the evidence, and to draw reasonable inferences from
         basic facts to ultimate facts. Once a defendant has been found
         guilty of the crime charged, the factfinder’s role as weigher of
         the evidence is preserved through a legal conclusion that upon
         judicial review all of the evidence is to be considered in the
         light most favorable to the prosecution. The criterion thus
         impinges upon “jury” discretion only to the extent necessary to
         guarantee the fundamental protection of due process of law.

Id. (footnotes omitted). This Court, in effectuating the Jackson standard, has

found that “[w]hen a case involves circumstantial evidence, and the jury

reasonably rejects the hypothesis of innocence presented by [defendant], that

hypothesis falls, and the defendant is guilty unless there is another

hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d

676, 680 (1984). This Court further stated “[a]n evaluation of the

reasonableness of other hypotheses of innocence provides a helpful

methodology for determining the existence of a reasonable doubt.” Id.




                                              2
      In the present case, the court of appeal found the jury could not

reasonably reject the hypothesis that the two small crack rocks were

intended for personal use. However, no paraphernalia to facilitate personal

use, such as a crack pipe or syringe, was found in the home. Furthermore,

while the amount of drugs may be relevant in evaluating whether the

defendant engaged in possession with the intent to distribute, it is not the

determinative factor statutorily. Ultimately, it is the intent to distribute that

must be proved regardless of the amount of drugs possessed. The court of

appeal also found the jury could not reasonably reject the hypothesis that the

drugs were possessed by a guest in the home rather than by defendant.

However, the guest testified at trial that the drugs belonged to defendant.

The Jackson standard “does not require the reviewing court to determine

whether it believes the witnesses or whether it believes the evidence

establishes guilt beyond a reasonable doubt.” State v. Major, 03-3522, pp. 6–

7 (La. 12/1/04), 888 So.2d 798, 802. “Rather, the fact finder is given much

discretion in determinations of credibility and evidence, and the reviewing

court will only impinge on this discretion to the extent necessary to

guarantee the fundamental protection of due process of law.” Id. In

accepting hypotheses of innocence that were not unreasonably rejected by

the jury, the court of appeal impinged on the fact finder’s discretion.

      Although a jury may not speculate “if the evidence is such that

reasonable jurors must have a reasonable doubt,” State v. Lubrano, 563

So.2d 847, 850 (La. 1990) (internal quotation marks and citations omitted),

the state presented ample evidence here from which the jury could

reasonably infer defendant’s intent to distribute the cocaine. First and

foremost, defendant admitted he sold crack cocaine in small quantities (like

                                           3
the crack rocks found in his residence). Defendant’s contention that the

grammar of his admission should be finely parsed, and that he admitted only

to a completed action in the past rather than an ongoing course of conduct

ignores the reality of spoken communication. Furthermore, defendant, who

told police he was unemployed, had $705 in his pocket and an additional

$580 was found in a bedroom. In addition, an expert testified that the

following are indicia of drug distribution that were found in the residence:

the presence of small plastic bags of a characteristic brand, an empty box for

a small digital scale, a substantial amount of money in small denomination

bills that were crumpled and wadded, and two small crack rocks that were

cut for resale from a larger quantity. The expert was accepted as such

without objection and his testimony was unrebutted.

      It is true that in the present case some of the evidence is susceptible of

innocent explanation, particularly when viewed in isolation. However, under

the Jackson standard, if rational triers of fact could disagree as to the

interpretation of evidence, the rational fact finder’s view of all of the

evidence most favorable to the prosecution must be adopted. See Major, 03-

3522 at p. 11, 888 So.2d at 804 (citing State v. Mussall, 523 So.2d 1305,

1310–11 (La. 1988)). Based on the evidence presented at trial as a whole,

reasonable fact finders could infer that the defendant possessed the cocaine

with the intent to distribute, thus rejecting the hypothesis of innocence that

the drugs were intended for personal use. Accordingly, the court of appeal’s

decision is reversed and the matter is remanded to the court of appeal for

consideration of the remaining assignments of error.




                                          4
10/14/15

                      SUPREME COURT OF LOUISIANA

                                   No. 14-K-1511

                             STATE OF LOUISIANA

                                      VERSUS

                               MICHAEL D. ELLIS

  ON WRIT OF CERTIORARI TO THE SECOND CIRCUIT COURT OF
                         APPEAL

JOHNSON, Chief Justice, dissents and assigns reasons.

      I find the Court of Appeal properly reversed the defendant’s conviction and

habitual offender sentence for possession of cocaine with intent to distribute,

entering a verdict of guilty of simple possession of cocaine, and remanding for

resentencing. To convict a defendant for possession of a controlled dangerous

substance with intent to distribute, the state must prove beyond a reasonable doubt

that the defendant knowingly or intentionally possessed the contraband, and that he

did so with the specific intent to distribute it. La. R.S. 40:967; State v. Williams,

47, 574 (La. App. 2 Cir. 11/14/12), 107 So.3d 763, writ denied, 2013-0079 (La.

6/14/13), 118 So.3d 1080. Based on the record, the evidence in this case is

insufficient to conclude beyond a reasonable doubt that the defendant possessed

the small amount of cocaine with the intent to distribute it.

      Here, the officers seized from defendant’s home only two small rocks of

crack cocaine, valued at a combined total of $10 to $20, and the drugs were not

packaged for any type of distribution. These facts support the Court of Appeal’s

finding that the drugs were intended solely for personal use. See State v. Hearold,

603 So.2d 731, 736 (La. 1992) (one-eighth ounce or 17 to 18 hits of

methamphetamine not inconsistent with personal use; circumstances did not

indicate intent to distribute when "drug was found in one package rather than in a


                                          1
number of smaller packages measured out in single doses.") see also State v.

Fisher, 628 So.2d 1136, 1142 (La. App. 1 Cir. 1993) (possession of 20 rocks of

cocaine not sufficient to support intent to distribute), writ denied, 94-0226 (La.

5/20/94), 637 So.2d 474; but see State v. White, 98-0091 (La. App. 5 Cir. 6/30/98),

715 So.2d 714 (13 rocks sufficient to prove intent to distribute) writ denied 98-

2043 (La. 11/25/98), 729 So.2d 577; State v. Stelly, 96-1296 (La. App. 3 Cir.

4/30/97), 693 So.2d 305 (15 rocks sufficient to prove intent to distribute).

      Further, the defendant and his guest Seidah Elzie were both in his

Shreveport residence when officers executed the search warrant. Moreover, Seidah

Elzie was found in possession of the cocaine and pled guilty to possession of

cocaine, and was placed on probation. Reasonable jurors could conclude from this

evidence that the drugs belonged to Elzie or were for personal usage.




                                          2
10/14/15



                    SUPREME COURT OF LOUISIANA

                               NO. 2014-K-1511

                           STATE OF LOUISIANA
                                   VERSUS
                             MICHEAL D. ELLIS


HUGHES, J., dissenting.

     Respectfully, I dissent and would affirm the opinion of the court of appeal.
