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State v. Bush6/26/2002
AFFIRMED.
On August 17, 2001, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Denise Bush, with possession of cocaine over 28 grams in violation of LSA-R.S. 40:967(F) and felon in possession of a firearm in violation of LSA-R.S. 14:95.1. On August 20, 2001, defendant was arraigned and pled not guilty.
Defendant proceeded to trial on November 6, 2001. After the one-day trial, a unanimous 12-person jury found defendant guilty as charged on both counts. Defendant waived sentencing delays and was immediately sentenced to ten years on each count, to run concurrently, without benefit of parole, probation or suspension of sentence.
Facts
On August 1, 2001 at approximately 6:00 p.m., Deputy Antonio Frere received information that someone was selling crack cocaine from an apartment in a complex located at 608 South Upland in Kenner. After watching the complex for about forty minutes, Deputy Frere went into the building, knocked on the door of Apartment 10, and identified himself as a deputy with the Jefferson Parish Sheriff's Office.
A man, later identified as Beverly Stokes, opened the door. Deputy Frere saw Stokes, who was sitting on the bed immediately inside the apartment, holding a ceramic plate on his knee. Deputy Frere also saw defendant sitting on a chair next to the bed facing Stokes with a "crack pipe" in her right hand. The plate on Stokes' knee held a clear plastic bag with numerous off-white rock-like objects. Deputy Frere also observed, on the bed within both subjects' reach, a clear plastic bag containing a white powdery substance, a .38 revolver, plastic baggies, and an electronic scale commonly used in packaging narcotics.
Frere immediately arrested defendant and Stokes. In the search incidental to defendant's arrest, Deputy Elizabeth Cato found a green plastic bag containing one rock-like substance in defendant's purse and a clear plastic bag with three individually-wrapped, rock-like substances in defendant's bra. The rocks tested positive for approximately 1.71 grams of crack cocaine.
Subsequent tests also revealed the plate that Stokes was holding contained 19.53 grams of cocaine and the clear plastic bag on the bed contained 3.09 grams of cocaine. When the apartment was searched later pursuant to a search warrant, the deputies also found a .22 caliber pistol hidden behind the television and a Rubbermaid container under the covers of the bed that contained 37.4 grams of cocaine.
Discussion
In her brief, defendant raises issues regarding the sufficiency of the evidence and erroneous denial of challenges for cause. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La.App. 5 Cir. 6/28/94), 639 So.2d 828, 834. If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Therefore, we will first consider the sufficiency of the evidence.
Defendant argues the evidence does not support her conviction of possession of cocaine over 28 grams or her conviction for felon in possession of a firearm because there was no evidence she exercised dominion or control over the drugs or guns found in the apartment. She contends her mere presence in the apartment where the drugs and guns
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