State v. Gassenberger

378 So.3d 820

23-148 (La.App. 5 Cir. 12/20/23)

STATE of Louisiana

v.Robin GASSENBERGER, Jr.

NO. 23-KA-148

Court of Appeal of Louisiana, Fifth Circuit.

December 20, 2023

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA, NO. 21-212, DIVISION "C", HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Joel T. Chaisson, II, Louis G. Authement, Hahnville

COUNSEL FOR DEFENDANT/APPELLANT, ROBIN GASSENBERGER, JR., Sherry A. Watters, New Orleans

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.

JOHNSON, J.

₁Defendant/Appellant, Robin Gassenberger, Jr., appeals his conviction and sentence for possession of a schedule two controlled dangerous substance (methamphetamine) weighing less than two grams rendered in the 29^th Judicial District Court, Division "C". For the following reasons, we affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On May 18, 2021, the St. Charles Parish District Attorney filed a bill of information charging Defendant with distribution of a schedule two controlled dangerous substance (methamphetamine), in violation of La. R.S. 40:967(A)(1) (count one), and possession with intent to distribute a schedule two controlled dangerous substance (methamphetamine), in violation of La. R.S. 40:967(A)(1) (count two). That same date, Defendant was arraigned and pleaded not guilty.

Various pleadings were filed, including a Motion to Reveal the Deal filed by defense counsel on November 23, 2022.¹ On December 6, 2022, the State nolle prossed count one. Count two was then amended to be designated as count one, and it charged Defendant with possession of a schedule two controlled dangerous substance (methamphetamine) weighing less than two grams, in violation of La. R.S. 40:967(0(1). That same day, Defendant was arraigned on the amended bill and pleaded not guilty.

The trial began on December 6, 2022. At trial, Detective Daniel April, then with the special investigations division in St. Charles Parish, explained that in February 2021, he received information about possible drug activity at 103 Baker Street. He determined that Brandy Savoie and Defen- dant occupied that address. ₂Surveillance of the residence was conducted on several occasions. Det. April observed Defendant’s red truck there numerous times both during the day and at night. The detective saw Defendant drive that red truck and saw Defendant and Ms. Savoie in the truck together. Det. April testified that 103 Baker Street was a rental property, and he did not take any steps to learn who was listed on the lease or who owned it.

After obtaining a search warrant for that address, Det. April executed the warrant on February 17, 2021. Upon arriving, the detective saw Defendant standing in the unfenced front yard. Defendant was approached and detained. Det. April advised Defendant of the search warrant and entered the residence through an unlocked side door. He testified that he saw Ms. Savoie standing in the bedroom² over her purse and that she appeared to be holding a smoking device. Ms. Savoie looked up and dropped the item. Upon Det. April’s request, Ms. Savoie exited the bedroom. The detective and Ms. Savoie were familiar with each other.

After the scene was secured, Ms. Savoie and Defendant were relocated to the kitchen. Det. April explained that Ms. Savoie then brought up the possibility of cooperating with the narcotics bureau in order to avoid being arrested. Defendant was present at the time, and the discussion involved both him and Ms. Savoie. Det. April testified that Ms. Savoie agreed to cooperate with law enforcement and to provide information. Defendant also agreed to cooperate.

At some point, Ms. Savoie told Det. April that she resided there with Defendant. Ms. Savoie advised the detective that there were narcotics in the bedroom and on the kitchen table. A search was then conducted. Det. April stated that he went into the bedroom, which appeared to be shared by Defendant and Ms. ₃Savoie.³ Methamphetamine was found where Ms. Savoie specified it would be. The methamphetamine found in the dresser drawer in the bedroom was in a small plastic container. A purse on the bed contained a loose crystal-like substance, a cut straw, and a smoking device. The detective explained that smoking devices, at least three digital weight scales, and small clear plastic "baggies"⁴ were found in the bedroom. The detectives also found lighters and small cut straws, which Det. April described as "another paraphernalia." Det. April explained that, on the kitchen table, there was a zippered pouch that contained cut straws, a pipe, and a crystal-like substance. Next to that pouch, there was a digital scale in plain view.

Detective April stated that the suspected methamphetamine and drug paraphernalia were photographed by Detective Harold Kingsmill. The detective reviewed and discussed those photographs. He identified hand-made artwork on the kitchen table that read "Brandy S" and "Rob G" with a heart between the names. Det. April collected the suspected methamphetamine and drug paraphernalia. The suspected methamphetamine had a collective total weight of about 1.1 grams.

Det. April testified that Ms. Savoie and Defendant were not arrested on February 17, 2021 because they expressed an interest in providing information and assisting law enforcement with future investigations. They were advised to contact law enforcement in a day or two. Shortly thereafter, Ms. Savoie and Defendant went to the law enforcement office together, met with detectives, completed paperwork, and provided information. Det. April testified that Defendant provided information that led to one arrest. He explained that Defendant did not fulfill the requirements of working with the narcotics officers, and Defendant and Ms. Savoie ₄were arrested on April 20, 2021, at the home of Defendant’s family member. Det. April attempted to locate Defendant at 103 Baker Street, but it appeared no one was living there.

Det. Kingsmill, with the special investigations division of the St. Charles Parish Sheriff’s Office, participated in an investigation at 103 Baker Street in February of 2021. Specifically, he assisted with surveilling the residence prior to February 17, 2021, and taking photographs after the residence was searched. In surveilling the house with Det. April, he monitored any traffic coming and going from the residence. He observed a red track there and agreed that it was a constant or nearconstant at the residence. He did not "observe any individuals." Det. Kingsmill testified that the track was functioning and would leave but always returned to the residence.⁵

After Detective April secured a search warrant for 103 Baker Street on February 17, 2021, Detectives April and Kingsmill went to the residence to conduct the search.⁶ Detective Kingsmill explained that upon arriving, he saw Defendant in the front yard. He did not recall whether there was a fence. Det. Kingsmill explained that he did not see Defendant discard any narcotics, and he did not recover any narcotics from Defendant.

Once the residence was deemed safe, the detective and Defendant entered. Det. Kingsmill was unaware of Ms. Savoie’s location when officers first entered. The detective testified that Defendant expressed an interest in assisting the special investigations division with further investigations and indicated he would work with the narcotics detectives to avoid going to jail. Ms. Savoie was present at that ₅time and expressed a similar interest. Neither Defendant nor Ms. Savoie were arrested that day. After agreeing to cooperate, Ms. Savoie provided various locations in the house where methamphetamine was located. Other drug paraphernalia was also located. Det. Kingsmill testified that Defendant never claimed that the drugs were Ms. Savoie’s.

Det. Kingsmill assisted with photographing the residence and the suspected methamphetamine. He identified photographs of the bedroom in the residence that Ms. Savoie advised she shared with Defendant. He photographed a glass jar containing methamphetamine in the top dresser drawer. A Ziplock bag inside of a purse in the bedroom contained a cut straw.⁷ In the bedroom, he also photographed a glass smoking device with a bulb on one end. Det. Kingsmill explained that there was a box in the bedroom that contained "a mirror with a credit card and methamphetamine, sort of, residue on the glass." Several plastic baggies and a digital scale were also photographed. On the kitchen table, there was a digital scale and a zippered pouch containing a glass container of methamphetamine, a methamphetamine smoking device, and two cut straws. Det. Kingsmill testified that "Brandy S," a heart, and "Rob G" were written on the kitchen table.

On February 18, 2021, Det. Kingsmill saw Defendant in Det. April’s office. Det. Kingsmill was present when Defendant agreed to cooperate. Defendant signed paperwork to become a documented confidential informant. Det. Kingsmill testified that Defendant and Ms. Savoie provided information of "potential drug dealers, per se, in St. Charles Parish." Ultimately, Defendant did not abide by all of the terms of the agreement.

Det. April identified a clear plastic bag containing two or three small pieces of crystallized substance. Next, he identified a small plastic container that he believed was recovered from the dresser in the bedroom. The detective also ₆identified a small vial from the pouch found on the kitchen table. Det. April believed that all three items of suspected methamphetamine were sent to a lab and tested positive. The detective identified several other items that were collected, which included four digital scales from the bedroom, additional scales, and two smoking devices. Det. April testified that he elected not to test for any fingerprints or DNA. He further explained that no bills were collected at the residence.

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