State of La. v. MICKEL

• Decision Date: 11 May 2010
• Docket Number: No. 09-KA-953.,09-KA-953.
• Citation: 41 So.3d 532
• Parties: STATE of Louisiana v. Albert MICKEL.
• Court: Court of Appeal of Louisiana — District of US

41 So.3d 532

STATE of Louisiana
v.
Albert MICKEL.

No. 09-KA-953.

Court of Appeal of Louisiana, Fifth Circuit.

May 11, 2010.

41 So.3d 533

COPYRIGHT MATERIAL OMITTED.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark-Appellate Counsel, Assistant District Attorneys, for Appellee, State of Louisiana.

Walter R. Woodruff, Jr. Attorney at Law Mandeville, LA for Appellant, Albert Mickel.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

On May 7, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Albert Mickel, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. On July 8, 2009, defendant was tried and found guilty as charged by a twelve-person jury. On August 7, 2009, the trial court sentenced defendant to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, to run concurrently with any other sentences.

Facts

At trial, Detective Ricardo Ramos of the Jefferson Parish Sheriffs Office ("JPSO") testified that, on April 1, 2009, while investigating several vehicle burglaries, he obtained a search warrant for a residence located at 1127 23rd Street in Harvey. Detective Ramos obtained a search warrant because JPSO suspected that two juveniles who resided at 1127 23rd Street were committing the vehicle burglaries. The search warrant gave JPSO the authority to look for objects stolen in those burglaries, including, among other things, a Dell laptop computer, a hard drive, a mouse, a power cord, and a connector cable. Detective Ramos testified that he was aware that at least two other people — the juveniles' mother (S.J.)¹ and Albert

41 So.3d 534

Mickel — lived at the residence, which was in a high crime area.

When the detective and other officers went to the residence to execute the search warrant, S.J. answered the door. She was alone in the residence at that time. Detective Ramos informed S.J. why he was there and presented the search warrant to her. The officers then proceeded to search the five-room residence. In one of the bedrooms, the officers noticed school books with one suspect's name, a school identification card and prescription bottle with the other suspect's name, tennis shoes, and clothes. After a more thorough search of that bedroom, the officers found numerous gift cards, cell phone SIMM cards, cell phones, and electronic components. S.J. could not explain how her sons had obtained those items.

Next, the officers searched another bedroom. In a shoe box underneath the bed, the officers found a Cobra .380 semi-automatic handgun. The detective later learned that the gun had been reported as stolen. When the officers questioned S.J., she disavowed any knowledge of the weapon and reported that her boyfriend, Albert Mickel, slept on the side of the bed under which the shoe box was found.

After Detective Ramos completed his investigation, he notified defendant's probation officer. Defendant was arrested a day or two later and transported to the Jefferson Parish Correctional Center ("JPCC"). Thereafter, the defendant was charged with being a convicted felon in possession of a firearm and found guilty as charged by a twelve-person jury.

In his sole assignment of error, the defendant argues that the evidence was insufficient to show that he constructively possessed the handgun found at the residence or that he had the general criminal intent to possess the weapon. The State responds that the evidence was sufficient to establish that defendant had constructive possession of the firearm found underneath the bed in which he customarily slept.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.² In cases involving circumstantial evidence, the trial court must instruct the jury that, "`assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.'"³

The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.⁴

In the instant case, defendant was convicted of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. In order to convict a person of

41 So.3d 535

violating La. R.S. 14:95.1, the State must prove: 1) the defendant possessed the firearm; 2) the defendant had a prior conviction for an enumerated felony; 3) the defendant possessed the firearm within ten years of the prior conviction; and 4) the defendant had the general intent to commit the offense.⁵

At trial, the parties stipulated to defendant's prior felony convictions. Here, defendant does not challenge the evidence regarding his prior convictions or the ten-year cleansing period.

On appeal, defendant disputes the sufficiency of the evidence of possession and intent, i.e., guilty knowledge. Constructive possession is sufficient to satisfy the possessory element of La. R.S. 14:95.1.⁶ The question of whether there is sufficient "possession" to convict is dependent on the facts of each case.⁷ Constructive possession of a firearm exists when a firearm is subject to a person's dominion and control.⁸ Even where a person's dominion over the weapon is only temporary in nature and control is shared, constructive possession exists.⁹ However, the mere presence of a defendant in the area of the seized contraband does not, by itself, prove he exercised dominion and control over the item such that it was in his constructive possession.¹⁰

To establish possession of a firearm by a convicted felon, proof is required that the offender was aware that a firearm was in his presence, and that he intended to possess the weapon.¹¹ Such guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence.¹²

Defendant argues that the State presented no evidence that he actually handled the gun and no circumstantial evidence that he constructively possessed it, knew about it, or was in the presence of the area where the gun was discovered. He further argues that no evidence was introduced that established his knowing and intentional possession of the gun. He contends that the evidence provided a reasonable hypothesis of innocence, in that the gun could have been property stolen and hidden by the juveniles who lived in the house. He contends that he was out of town on April 1, 2009, the date the officers discovered the gun.

At trial, the State presented evidence that showed defendant lived at 1127 23rd...