State v. Dotie

• Decision Date: 14 January 2009
• Docket Number: No. 43,819-KA.,43,819-KA.
• Parties: STATE of Louisiana, Appellee, v. Marcus Lamont DOTIE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

1 So.3d 833

STATE of Louisiana, Appellee, v. Marcus Lamont DOTIE, Appellant.

No. 43,819-KA.

Court of Appeal of Louisiana, Second Circuit.

January 14, 2009.

Louisiana Appellate Project by Annette Roach, for Appellant.

Paul J. Carmouche, District Attorney, Jason T. Brown, Catherine M. Estopinal, Karelia A. Stewart, Assistant District Attorneys, for Appellee.

Before WILLIAMS, PEATROSS and MOORE, JJ.

MOORE, J.

Marcus Lamont Dotie appeals his conviction for possession of a firearm by a convicted felon, his adjudication as a second felony offender and his sentence of 20 years at hard labor without benefits. For the reasons expressed, we affirm the conviction and multiple offender adjudication. On error patent review, we correct the sentence to delete the imposition of a fine, but otherwise affirm the sentence.

Factual Background

Around 2:00 am on June 7, 2007, Shreveport Police K-9 Officer Clint Cain was investigating an incident in the Allendale neighborhood when he saw an older model gold-colored Mitsubishi Galant make a left turn without a signal. He stopped the Galant in the 1800 block of Patzman Street and asked Dotie, its driver and sole occupant, to get out. Dotie had no driver's license, only a state-issued ID card, he smelled of alcohol and burnt marijuana, had a teardrop tattoo under his right eye and "proned out" before even being asked; all of this led Ofcr. Cain to call for backup. K-9 Officer Hai Phan arrived at 2:12 with his Belgian Malinois "Jack," who immediately gave indications of drugs in the front seat area of the Galant. Opening the front seat console, Ofcr. Cain found remnants of marijuana and a fully-loaded Haskell .45-caliber semiautomatic handgun. He also recovered a baseball bat and a club in the trunk.

Running the standard checks, Ofcr. Cain found that the .45 was not stolen but that Dotie had prior felony convictions for attempted murder and accessory after the fact to second degree murder. Ofcr. Cain arrested him for being a convicted felon in possession of a firearm. Further investigation showed that the Galant was registered to a Ms. Randall, the mother of Dotie's child.

Procedural History and Trial Testimony

The state subsequently charged Dotie by bill of information with being a convicted felon in possession of a firearm, La. R.S. 14:95.1. The original bill recited that Dotie had been previously convicted of accessory to second degree murder on June 8, 2004. In the course of pretrial discovery, the state furnished Dotie a copy of his rap sheet showing yet another prior felony conviction, a guilty plea to attempted second degree murder on August 12, 1994, for which he drew a six-year sentence.

At trial in December 2007, after the jury was selected and sworn but before opening statements, the state offered an amended bill of information reciting that Dotie's predicate felony was the 1994 attempted second degree murder conviction. Over a defense objection, the court allowed the amended bill on grounds that Dotie had notice of the prior felony by pretrial discovery and the amendment caused him no prejudice. The court also noted that Dotie had declined an offer to plead guilty to attempted possession of a firearm by a convicted felon with an agreed cap of six years and no multiple offender bill.

For the state, Officers Cain and Phan testified as outlined above. In addition, Ofcr. Cain's police car was equipped with an automatic digital camera that recorded the search of the Galant. The DVD, which was played for the jury, showed that Dotie ultimately consented to the search and that Ofcr. Cain recovered the revolver from the front seat console shortly after he actually entered the car. Ofcr. Cain testified that although the lid of the console was down, the gun was positioned with the handle up for quick access. Both officers added that during questioning, Dotie's demeanor was evasive and he appeared to be looking for a way to run. Ofcr. Danny Duddy of the CSI unit testified that he was unable to lift any fingerprints off the revolver, but this was typical of handguns.

For the defense, Dotie's mother Vergie Stewart testified that she was aware that Dotie was not allowed to possess a gun. She admitted owning two handguns, a 9-mm and the .45-caliber, and she had placed the .45 in the Galant when she borrowed the car to move some belongings from her deceased boyfriend's house; she brought the .45 because the boyfriend's children had threatened her; she inadvertently left the gun in the console when she returned the car; and she never thought about it again until Dotie called to tell her he had been arrested. On cross-examination, she stated that the Galant was the car Dotie drove most often, about 90% of the time, and that the gun was in the car even when she was driving her grandchild in a baby seat. Dotie's cousin Sholanda Dotie testified that she was with Ms. Stewart when she placed the .45 in the center console; this was earlier in the day before Dotie was arrested.

After deliberating slightly over an hour, the jury found Dotie guilty as charged by a vote of 12-0. Dotie filed motions for new trial and post verdict judgment of acquittal.

The state then filed a second felony habitual offender bill of information, reciting that his first felony was the 2004 guilty plea to accessory after the fact to second degree murder. At a hearing in January 2008, the court denied Dotie's post trial motions and found him to be a second felony offender. At sentencing in February 2008, the court noted Dotie's age, the refused plea bargain, the marijuana found in the car along with the .45 revolver, and the fact that his rap sheet showed yet another prior felony conviction. The court sentenced him to 20 years at hard labor and a fine of $1,000. Dotie filed a timely motion to reconsider, asserting only that the sentence was excessive and unconstitutional. The court denied it, and this appeal followed.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Dotie urges the evidence was insufficient to convict him of either the charged offense or any responsive verdict. He argues that mere presence in an area where a firearm is found does not necessarily establish possession. State v. Lamothe, 97-1113 (La.App. 5 Cir. 6/30/98), 715 So.2d 708, writ granted in part, 98-2056 (La.11/25/98), 722 So.2d 987. He submits he was not in constructive possession of the .45 because (1) Ofcr. Cain never saw him with his arm on the center console, (2) the car belonged not to him, but to his child's mother, (3) Ofcr. Phan stated that his suspicious conduct during the stop could have resulted from a lack of knowledge that any contraband was in the car, (4) Dotie's mother testified that she put the gun in the car, and (5) his fingerprints were not found on the weapon.

The state responds that the evidence easily proved Dotie's dominion and control over the .45. State v. Brokenberry, 41,481 (La.App. 2 Cir. 11/3/06), 942 So.2d 1209, and citations therein. The state also asserts that Dotie's mother was not a credible witness.

The standard of appellate review 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 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. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. 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. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

To support a conviction under R.S. 14:95.1 A, the state must prove (1) the possession of a firearm, (2) a previous conviction of an enumerated felony, (3) absence of the 10-year statutory cleansing period, and (4) general intent to commit the crime. State v. Husband, 437 So.2d 269 (La.1983); State v. Ray, 42,096 (La. App. 2 Cir. 6/27/07), 961 So.2d 607. In closing argument, defense counsel conceded that Dotie was a convicted felon. Thus the state sought to show that he had the requisite intent to possess a firearm either through actual or constructive possession. State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995.

Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control. State v. Johnson, supra; State v. Kennedy, 42,258 (La.App. 2 Cir. 8/15/07), 963 So.2d 521. A defendant's dominion and control constitute constructive possession even if only temporary and even if control is shared; moreover, constructive possession entails an element of awareness or knowledge that the firearm is there and general intent to possess. Id. The mere presence of a defendant in the area where the weapon was seized does not alone prove that he exercised dominion and control over it and thus had it in his constructive possession. State v. Johnson, supra; State v. Brokenberry, supra.

Admittedly, some of the evidence would support Dotie's hypothesis of innocence: the car did not belong to him; Ofcr. Cain never saw him put his hand on the gun or on the closed console; his fingerprints were not on the weapon; his nervousness at the scene could be ascribed to factors other than guilty knowledge; and Ms. Stewart testified that she had put the gun in the car less than 24 hours earlier.

By contrast, Ofcr. Cain verified that the Galant belonged to Dotie's baby's mama, and the defense witnesses agreed that Dotie drove it 90% of the...