28,889 La.App. 2 Cir. 12/11/96, State v. Warren

• Decision Date: 11 December 1996
• Citation: 712 So.2d 500
• Parties: 28,889 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 500

712 So.2d 500

28,889 La.App. 2 Cir. 12/11/96

STATE of Louisiana, Plaintiff-Appellee, v. Earl WARREN, Defendant-Appellant.

Nos. 28889-KA, 28890-KA.

Court of Appeal of Louisiana Second Circuit.

Dec. 11, 1996.

Teat & Avery by Darrell R. Avery, Jonesboro, for Defendant-Appellant.

Richard Ieyoub, Attorney General, Walter E. May, District Attorney, David M. Newell, Assistant District Attorney, for Plaintiff-Appellee.

Before MARVIN, NORRIS and GASKINS, JJ.

[28,889 La.App. 2 Cir. 1] NORRIS, Judge.

Earl Warren was charged by two separate bills of information for a total of four crimes. The first charged him with possession of a firearm by a convicted felon, a violation of R.S. 14:95.1, and possession of cocaine, a violation of R.S. 40:967C. The second bill charged him with two counts of illegal possession of stolen things, a violation of R.S. 14:69. Warren was tried by a 12-member jury and found not guilty on one count of Illegal Possession of Stolen Things but guilty as charged on all other counts. Warren now appeals his convictions and sentences, alleging 27 assignments of error. ¹ For the reasons expressed, we affirm in part and reverse in part.

Procedural and Factual History

On July 24, 1994, two Homer police officers on routine patrol stopped a motorcycle that had just run a stop sign. The driver of the motorcycle walked up to the officers and they recognized him as the defendant, Earl Warren. Sergeant Donald Malray asked Warren for his driver's license and the defendant started walking back toward the motorcycle. Officer Malray observed a black fabric bag attached to the gas tank of the motorcycle. Malray testified that Warren went toward the bag and that he became concerned for his safety when he observed a gun-shaped "bulge" in the bag. He told Warren to step back from the motorcycle, opened the bag, and found a .380 caliber handgun. Because the officers recognized defendant as a convicted felon, he was read his Miranda rights and placed under arrest for possession of a firearm by a convicted felon. As officers were searching him pursuant to arrest, they found several pieces of an off-white rock-like substance in his left front shirt pocket. The substance was later [28,889 La.App. 2 Cir. 2] determined to be crack cocaine. The motorcycle was taken into custody, and later determined to be stolen.

At trial, defense counsel presented evidence that the motorcycle had been purchased by defendant's son, Kirk Warren, and that the handgun belonged to his other son, Chrone Adams. Chrone testified that he left the gun inside the bag on the motorcycle after he finished riding it the day of his father's arrest; the gun and the bag belonged to him. Kirk Warren testified that he owned the bag and the motorcycle, having purchased the bike as salvage in Florida some three weeks prior to July 24, 1994; he denied knowing that it was stolen. Neither son denied that the outline of the gun could be seen from the outside of the black bag or that their father may have known what was in the bag. They did testify that they never told their father about the gun on the motorcycle. Kirk Warren stated that prior to his father's arrest, he was taking his other brother, Earl Warren, Jr. to the bus station. However, before the two left, Earl Warren, Jr. gave the shirt he was wearing to his father, the defendant. The defendant then got on the motorcycle and left to get cigarettes. Kirk Warren also testified that Earl, Jr. was a drug user and could have had cocaine in the shirt he gave his father.

The jury found Warren not guilty of illegal possession of stolen things (pistol) but guilty as charged on all other counts. Warren now appeals the judgment and sentence asserting 27 assignments of error.

DISCUSSION: Sufficiency of the Evidence

By assignments of error Nos. 24 and 25, Warren contests the sufficiency of the evidence of his three convictions. If a court reviewing a criminal conviction finds the evidence insufficient to support a guilty verdict, the constitutional protection against double jeopardy bars retrial of the defendant. Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981); See U.S. Const. amend. V, XIV. All other issues in the case become moot. State v. George, 95-0110 (La.10 [28,889 La.App. 2 Cir. 3] 16/95), 661 So.2d 975; State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, when the defendant challenges both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Huff, 27,212 (La.App.2d Cir. 8/23/95), 660 So.2d 529. The appellate review standard is whether, after viewing the evidence, both admissible and inadmissible, in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Famous, 27,593 (La.App.2d Cir. 1/24/96), 667 So.2d 1209.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const., art. 5, § 5(C); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (1987).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Meyers, 620 So.2d 1160 (La.1993). When circumstantial evidence is used, La.R.S. 15:438 mandates that in order to convict, "assuming every fact to be proved that the evidence tends to prove, it must exclude every reasonable hypothesis of innocence." Facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

[28,889 La.App. 2 Cir. 4] Possession of a firearm by a convicted felon

To convict defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La.R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App.2d Cir. 9/27/95) 661 So.2d 657.

The evidence shows that Warren was convicted of possession of cocaine on October 12, 1987 in docket # 15,857, Caddo Parish; he even conceded this in closing argument. A violation of the Uniform Controlled Dangerous Substances Act, such as possession of cocaine, is an enumerated felony under La.R.S. 14:95.1 and clearly, the statutory limitation period of 10 years has not elapsed.

The State presented testimony from the arresting officers that after defendant was stopped for a traffic violation, a Bersa .380 caliber handgun was found in a black bag attached to the motorcycle he was riding. Officer Malray testified, that after the stop Warren appeared more nervous than normal and alit from the motorcycle in a manner as if to prevent the officers from getting close to it. When asked for his driver's license, Warren then moved toward the motorcycle and reached for the black bag, whereupon Malray observed a bulge in the bag in the shape of a gun and told defendant to stop. Malray then opened the bag and found the gun inside. The defendant later produced his driver's license from his back pocket, not the black bag.

Defendant argues that there was insufficient evidence that he was in possession of the firearm. He cites Officer Morgan's testimony that Warren denied that he owned or knew about the firearm in the bag. He also cites his sons' testimony. Chrone Warren, the defendant's 15-year-old son, testified that he owned the black bag and the gun. Chrone stated he purchased the gun on the [28,889 La.App. 2 Cir. 5] street and did not tell his father either that he had bought it or placed it in the black bag. On the day of the defendant's arrest, Chrone stated he left the pouch and gun on the motorcycle, but if he had known his father would ride the motorcycle he would have removed the bag and gun.

Kirk Douglas Warren, another son of defendant, also testified at trial. He stated that he owned the motorcycle and the black bag and that the gun was in the black bag. Kirk stated it was the defendant's first time riding the motorcycle and he had not told the defendant about the gun in the bag. On cross examination, Kirk stated if Chrone claimed he owned the black bag, he had lied.

This evidence does not negate the State's proof that Warren was in at least constructive possession of a firearm. Constructive possession, as opposed to actual possession, is sufficient to satisfy the possession element of La.R.S. 14:95.1. State v. Day, 410 So.2d 741 (La.1982). Constructive possession is a legal term describing the situation in which a person who is not in actual possession of an object can nevertheless be considered in legal possession of the thing if it is subject to his dominion and control. State v. Cann, 319 So.2d 396 (La.1975); State v. Tatum, supra.

Although there is conflicting testimony as to the actual owner of the motorcycle, the evidence showed beyond a reasonable doubt that Warren had sole dominion and control over it and its contents at the time of his arrest. Further, an arresting officer testified that the weapon found inside the attached bag cast an outline that was visible without opening the bag. The jury observed the bag, the gun's placement inside, as well as the close proximity of the...