30,108 La.App. 2 Cir. 12/10/97, State v. Washington

• Decision Date: 10 December 1997
• Parties: 30,108 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 254

705 So.2d 254

30,108 La.App. 2 Cir. 12/10/97

STATE of Louisiana, Appellee, v. Daniel R. WASHINGTON, Appellant.

No. 30108-KA.

Court of Appeal of Louisiana,

Second Circuit.

Dec. 10, 1997.

Louisiana Appellate Project by Richard J. Gallot, Jr., Ruston, Indigent Defender Office by Annisha M. Tanzie, for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, D. Bruce Dorris, Assistant District Attorneys, for Appellee.

Before MARVIN, C.J., and STEWART and CARAWAY, JJ.

[30,108 La.App. 2 Cir. 1] STEWART, Judge.

Defendant, Daniel R. Washington, appeals the jury verdict convicting him of possession of firearm by a person convicted of a felony and the sentence imposed by the trial judge. Washington was sentenced to a term of 13 years at hard labor and a $1,000 fine. On appeal, Washington urges five assignments of error. For the following reasons, we affirm the conviction and sentence.

FACTS

Police officers, approximately three blocks from the intersection of Orla and Emery streets in Shreveport, Louisiana, responded to a call reporting gunfire at that location. As the officers arrived on the scene, they observed three black males carrying weapons. The suspects immediately fled and were pursued by the police officers. Two of the suspects were apprehended, and one was identified as the defendant. The weapon the defendant carried was recovered from the defendant's parent's home.

The defendant testified during the trial.

DISCUSSION

Assignment of error # 1: The verdict is contrary to the law and evidence and the evidence is insufficient to sustain the conviction of possession of a firearm by a convicted felon.

Assignment of error # 2: The honorable trial court erred by denying defendant's motion for post verdict judgment of acquittal.

The defendant combines these assignments of error for the purpose of argument. The defendant contends the state presented insufficient physical evidence to convict the defendant of the charged offense. Additionally, the defendant alleges the state presented no motive for the defendant to have committed the crime, and the testimony of the police officers was contradictory and confusing.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of evidence claim [30,108 La.App. 2 Cir. 2] 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. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (1992).

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); State v. Bosley, 29,253 (La.App.2d Cir 4/2/97), 691 So.2d 347.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Carey, et al, 628 So.2d 27 (La.App. 2d Cir.1993); State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992); State v. Emerick, 499 So.2d 195 (La.App. 2d Cir.1986); State v. Garlepied, 454 So.2d 1147 (La.App. 4th Cir.1984), writ denied, 462 So.2d 189 (La.1984).

La.C.Cr.P. art. 821 provides that a motion for post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.), writ denied, 604 So.2d 973 (La.1992).

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 [30,108 La.App. 2 Cir. 3] 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.

La.R.S. 14:95.1 requires only general criminal intent, which means that the circumstances indicate that the accused "in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." La.R.S. 14:10(2); State v. Godeaux, 378 So.2d 941 (La.1979), rehearing denied Jan. 28, 1980. Although the existence of intent is a question of fact, it need not be proven as such, but may be inferred from the circumstances of a transaction. La.R.S. 15:445.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

At trial, the state presented the testimony of Johnny Young. Mr. Young testified that, at the time of the incident, he lived at 3812 Velva with his mother and two younger brothers. Mr. Young had known the defendant for about eight and one half years. On a Saturday in September, Mr. Young testified he was involved in a shootout near his home. After hearing a shot and seeing an unidentified individual with a gun behind a house, Mr. Young attempted to get the [30,108 La.App. 2 Cir. 4] children playing in the area into his house. A second shot was fired in Mr. Young's direction, and he began firing back at the unidentified individual.

Shots were fired from another direction, and Mr. Young saw the defendant shooting an SKS assault rifle from his backyard about 50 feet away. Mr. Young claimed he did not fire back at the defendant because, "His mama and his daddy ain't never did nothing to me, and there's a lot of little kids stay next door to him, so I wouldn't fire my gun towards the kids' house." Mr. Young ran towards his house and lost sight of the defendant. A short period of time later, Mr. Young saw the defendant come around a corner with the rifle in his hand. The police officers who had arrived on the scene went after the defendant. The officers later returned with the defendant to have Mr. Young identify him as one of the shooters. At trial, Mr. Young identified the rifle which was introduced into evidence as the weapon that defendant used to fire shots at him.

Thelma Barnes testified she was outside of her residence with relatives when the shooting started. Approximately five minutes before the shooting started, Ms. Barnes saw the defendant and three other young men walk past her home. After hearing a gunshot, Ms. Barnes called 911. Though she was initially unable to determine who was actually shooting, Ms. Barnes did see the defendant come around a corner with a gun in his hand. Ms. Barnes stated she saw the defendant with "a long big old gun" in his hand. She identified state's exhibit 1 as looking exactly like the weapon she saw the defendant holding. On cross examination, Ms. Barnes admitted she did not tell the police on the scene that she had seen the defendant with a gun because the police did not ask her.

Officer Ronald Jeter of the Shreveport Police Department testified he was assigned to the gun unit on the day the shooting occurred. Officer Jeter and his partner were on routine patrol when they received a call of shots being fired at the [30,108 La.App. 2 Cir. 5] intersection of Orla and Emery. The officers were approximately three blocks from the location of the shooting at the intersection of Velva and Emery. As the officers turned the corner in the patrol car, Officer Jeter was able to see three black males at the end of the street and all were carrying guns.

As the officers arrived on the scene, the three individuals with the guns began running and the officers pursued. Two of the males ran behind a building to a fence. Officer Jeter "bailed out" of his car and saw the defendant transfer the rifle he was carrying over the fence to the other male. The defendant attempted to hide near a tree as Officer Jeter approached him. The defendant was immediately handcuffed. The defendant was taken back to the scene of the shooting where witnesses identified him as being one of the shooters. Officer Jeter was able to identify the rifle introduced into evidence as the gun he saw the defendant carrying and transfer across the fence.

Detective Scott Porter testified he was Officer Jeter's partner on the day of the shooting. When the officers received a call regarding shots being fired, they were approximately three blocks from the area. As they arrived on the scene, Detective Porter saw three black males standing near the corner. Detective Porter saw the defendant with a rifle in his hand. As the defendant ran off, the officers pursued and apprehended him.

Detective Porter went to the front side of the house to secure it until additional patrol units arrived. As he walked to the front of the house, Detective Porter saw another black male standing near the side of the house. This individual was detained for questioning. Detective Porter obtained permission to enter the...