State v. Brokenberry

• Decision Date: 03 November 2006
• Docket Number: No. 41,481-KA.,41,481-KA.
• Citation: 942 So.2d 1209
• Parties: STATE of Louisiana, Appellee, v. Deandre Laroy BROKENBERRY, Appellant.
• Court: Court of Appeal of Louisiana — District of US

942 So.2d 1209

STATE of Louisiana, Appellee, v. Deandre Laroy BROKENBERRY, Appellant.

No. 41,481-KA.

Court of Appeal of Louisiana, Second Circuit.

November 3, 2006.

William C. Monroe, for Appellant.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady D. O'Callaghan, Assistant District Attorney, for Appellee.

Before WILLIAMS, STEWART and CARAWAY, JJ.

WILLIAMS, J.

The defendant, Deandre Laroy Brokenberry, was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. Following a bench trial, he was convicted as charged. He was sentenced to serve a prison term of 10 years at hard labor without benefit of parole, probation or suspension of sentence and was ordered to pay a fine of $1,000. The defendant now appeals. For the following reasons, we affirm the conviction and sentence.

FACTS

On July 8, 2005, Corporal Robert Robinson, III of the Shreveport Police Department was patrolling the Fairfield Avenue — East 76th Street area of Shreveport. At approximately 12:00 a.m., Cpl. Robinson observed a white Chevrolet Caprice traveling in the wrong lane at a high rate of speed. When Cpl. Robinson approached the vehicle and activated his siren and lights, the driver continued for approximately two more blocks and then stopped. There were four male occupants of the vehicle: the defendant was the driver, and Tavarus Hines, Ryan Petteway and Demetrius Brokenberry ("Demetrius"), were passengers.

Corporal Jeff Nelson arrived on the scene in a separate police unit to assist with the stop. The occupants of the vehicle were ordered to place their hands in plain view, and the defendant was ordered to exit the vehicle. Cpl. Robinson handcuffed the defendant and advised him of his rights pursuant to Miranda v. Arizona.¹ Cpl. Robinson asked the defendant whether there were any weapons in the vehicle, and the defendant responded affirmatively. Cpl. Robinson secured the defendant in the backseat of a police unit, ordered the other occupants to exit the vehicle, handcuffed them and secured them in marked police vehicles. None of the occupants had weapons on their persons.

Cpl. Robinson looked into the vehicle and observed a "MAC 90" assault rifle, with its barrel propped between the front seats and the stock on the backseat floorboard. A 75-round drum magazine was observed on the floorboard next to the rifle. A "Glock 40" handgun was observed on the front passenger floorboard. The handgun was loaded with a 15-round magazine, and a holster containing an additional magazine and magazine holder was also found in the vehicle. Cpl. Robinson testified that the front floorboard of the vehicle was "flush," so both weapons were in plain view and within reach of the defendant. Cpl. Nelson corroborated the location of the firearms in the vehicle and testified that both weapons were within the defendant's reach.

Cpl. Robinson testified that the defendant informed the officers that he did not own the firearms and that the weapons had been purchased by his brother and father. The defendant admitted that he knew the weapons were in the vehicle and added that he was not supposed to be around firearms due to his previous felony conviction. According to Cpl. Robinson, after the defendant was confronted with the fact that he was, in fact, near the weapons, the defendant retorted, "Man, these streets are dangerous; you can't blame me for carrying these."

Cpl. Robinson requested police headquarters to run a background check on the defendant and proceeded to question the other occupants of the vehicle. Demetrius, the defendant's brother, informed Cpl. Robinson that he had purchased the firearms. Cpl. Robinson secured and seized the firearms and ammunition.

The defendant's criminal background check revealed that he had previously been convicted of possession of cocaine, a schedule II narcotic, and his sentence for that conviction had ended on September 29, 1999. The defendant was placed under arrest for possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1.

The defendant waived his right to a trial by jury. During the bench trial, Cpl. Robinson and Cpl. Nelson testified with regard to the above related facts and circumstances.

Demetrius testified that the firearms were in the vehicle because he was moving them from his grandmother's house to his father's house. According to Demetrius, both guns were in the backseat on the floorboard, beyond the reach of the defendant. Demetrius asserted that, during the course of the traffic stop, he informed the officers that the weapons belonged to him. He stated that he had purchased them at a gun show under his father's name. Demetrius explained that he was sitting in the backseat on the passenger's side, and he placed the Glock on the back floorboard. He maintained that the gun must have shifted to the front floorboard during the stop. Demetrius also denied the officers' claim that the rifle was observed between the front seats of the vehicle. Demetrius stated that when he entered the vehicle, he placed the rifle on the floor of the backseat.

The defendant testified in his own defense. He admitted that he knew Demetrius had entered the vehicle with guns in his possession. However, the defendant denied telling Cpl. Robinson that the streets were dangerous and he could not be blamed for carrying the firearms. He also denied ever having either possession of or easy access to the weapons. The defendant stated that the rifle could not have been situated between the front seats because the vehicle had a bench seat with an armrest. The defendant further testified that when he was ordered to exit the vehicle, the handgun was in the possession of Demetrius, who was seated in the backseat, and Demetrius must have placed it on the floorboard thereafter.

The defendant was found guilty as charged of possession of a firearm by a convicted felon. He was sentenced to serve a prison term of 10 years at hard labor without benefit of parole, probation or suspension of sentence, and he was ordered to pay a fine of $1,000. This appeal followed.

DISCUSSION

In his sole assignment of error, the defendant contends the evidence was insufficient to support a conviction of possession of a firearm by a convicted felon. Specifically, the defendant maintains the state failed to prove that he had actual or constructive possession of either firearm and that he possessed the requisite intent to possess the weapons.

The standard of appellate review for a sufficiency of the evidence claim 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442.

To prove a violation of LSA-R.S. 14:95.1, the state must establish beyond a reasonable doubt: (1) the defendant possessed a firearm; (2) a previous conviction of an enumerated felony; (3) the absence of the 10-year period of limitation; and (4) general intent to commit the offense. LSA-R.S. 14:95.1;² State v. Husband, 437 So.2d 269 (La.1983); State v. Qualls, 40,630 (La.App.2d Cir.1/27/06), 921 So.2d 226; State v. Morvan, 31,511 (La.App.2d Cir.12/9/98), 725 So.2d 515, writ denied, 1999-0186 (La.5/28/99), 743 So.2d 659; State v. Tatum, 27,301 (La.App.2d Cir.9/27/95), 661 So.2d 657.

In the instant case, the defendant's prior conviction and the absence of the 10-year period of limitation are not in dispute.³ The controverted issue herein is whether the defendant had the requisite intent to possess the weapon, either through actual possession or through constructive possession. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995; State v. Harris, 1994-0970 (La.12/8/94), 647 So.2d 337. Further, guilty knowledge may be inferred from the circumstances of the transaction and proven by direct or circumstantial evidence. State v. Johnson, supra; State v. Hearold, 603 So.2d 731 (La.1992); State v. Trahan, 425 So.2d 1222 (La.1983).

Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control. State v. Johnson, supra; State v. Mose, 412 So.2d 584 (La.1982); State v. Lewis, 535 So.2d 943 (La.App. 2d Cir.1988). A defendant's dominion and control over a weapon constitutes constructive possession, even if it is only temporary and even if the control is shared. State v. Johnson, supra; State v. Lane, 33,059 (La.App.2d Cir.3/3/00), 755 So.2d 368, writ denied, 2000-1380 (La.4/20/01), 790 So.2d 15. Constructive possession contains an element of awareness or knowledge that the firearm is there and a general intent to possess it. State v. Shrader, 38,327 (La. App.2d Cir.8/18/04), 881 So.2d 147; State v. Lane, supra; State v. Evans, 29,675 (La.App.2d Cir.9/24/97), 700 So.2d 1039, writ denied, 1997-2942 (La.1/9/98), 705 So.2d 1121. General intent exists when the circumstances indicate that the offender, 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. LSA-R.S. 14:10. Although the existence of intent is a question of fact, it may be inferred from the circumstances of the...