State v. Elie
| Decision Date | 05 October 2011 |
| Docket Number | 10-1494 |
| Parties | STATE OF LOUISIANA v. JOSEPH MICHAEL ELIE, III |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 297,861
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
James C. Downs
District Attorney - 9th Judicial District Court
Counsel for Appellee:
State of Louisiana
John T. Giordano
Thomas R. Willson
Assistant District Attorneys - 9th Judicial District Court
Counsel for Appellee:
State of Louisiana
Carey J. Ellis, III
Louisiana Appellate Project
Counsel for Defendant/Appellant:
Joseph Michael Elie, III
Joseph Michael Elie, III
Pro Se
Police found a Taurus 9mm handgun in a room at the home of Defendant's, Joseph Michael Elie, III, mother. The following year, a dog was shot with a .22 rifle at the same home. The State alleged that Defendant, a convicted felon, was in possession of these two firearms in contravention of La.R.S. 14:95.1. He was charged and convicted of two counts of possession of a firearm by a convicted felon.
Defendant was sentenced, on each count, to serve fifteen years at hard labor with the first ten years to be served without benefit of probation, parole, or suspension of sentence. The State then filed a bill of information charging Defendant as a habitual offender, and he was adjudicated as such. The trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence though it is unclear which one of Defendant's two convictions was enhanced.
Defendant is now before this court asserting seven counsel-filed assignments of error and three pro se assignments of error.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find one such error. Although the trial court acknowledged that there were two counts, it appears it enhanced only one of Defendant's sentences at the habitual offender proceeding for possession of a firearm by a convicted felon. For reasons provided below, we remand this matter to the trial court for resentencing, at which time the trial court must specify which of Defendant's two convictions is being enhanced. State v. Clennon, 98-1370(La.App. 5 Cir. 6/30/99), 738 So.2d 161; and State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.
In his first counsel-filed and pro se assignments of error, Defendant contends there was insufficient evidence to support his convictions of possession of a firearm by a convicted felon.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.CT. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, "assuming every fact to be proved that the evidence tends to prove." La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.CT. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 "works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury." Neal, 2000-0674 p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.CT. 537, 169 L.Ed.2d 377 (2007).
Possession of a firearm by a convicted felon is governed by La. R.S. 14:95.1, which provides that it is unlawful for any person who has been convicted of certain enumerated felonies to possess a firearm. However, La. R.S. 14:95.1(C)(1) states that this section "shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence."
In State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200, this court held:
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. 2 Cir. 9/27/95); 661 So.2d 657.
State v. Hanner, 09-1109, pp. 4-5 (La.App. 3 Cir. 4/14/10), 35 So.3d 1178, 1181-82.
Neither possession of a firearm by a convicted felon nor illegal carrying of weapons requires actual physical possession of a firearm upon the person of the accused; constructive possession of a firearm satisfies the possessory element. State v. Armentor, 94-745 (La.App. 3 Cir. 2/1/95); 649 So.2d 1187, writ denied, 95-0557 (La.6/30/95); 657 So.2d 1027, citing State v. Day, 410 So.2d 741 (La.1982). Constructive possession exists when the illegal object is subject to the defendant's dominion and control. State v. Johnson, 463 So.2d 778 (La.App. 4 Cir.1985).
State v. Brooks, 99-478, p. 4 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La. 5/25/01), 792 So.2d 750.
Deputy Javier Molinary testified that he was dispatched to Linda Elie's residence in reference to harassing phone calls. Linda gave a written statement at that time. Her statement read as follows:
Deputy Molinary testified that a Taurus 9mm handgun was found in a dresser drawer in the "suspect's" bedroom. He further testified there was a bed in the room, and the room appeared to be occupied by a male, as it contained men's clothing. He also found a box that contained photos of Defendant. Deputy Molinary did not know if Defendant had been at Linda's home any time prior to her calling the police. Deputy Molinary also saw a .22 rifle in Linda's bedroom, but she said the gun was hers, and she used it for protection. Deputy Molinary testified that Linda indicated she did not want to pursue charges against Defendant.
Linda Elie testified that Defendant was not at her residence on the date in question. He did, however, call her several times. Linda testified that she did not recall Defendant living with her or spending the night at her home the week or month prior to the calls. She thought Defendant was living in Monroe at that time but said he traveled from place to place because he "knew several young ladies." Linda denied any memory of writing a statement for police and failed to recognize the handwriting on the statement as her own.
Defendant admitted that he had been convicted of aggravated battery in 1995, aggravated battery in 1996, manslaughter in 2001, simple battery in 2007, and illegal use of weapons in 2009. Defendant testified that he was not living with his mother in July and August 2008 and last lived with her in June 2002. Defendant stated that in 2002, his mother financed her home, and the mortgage company would not allow convicted felons to live in the home. Because he was on parole, he could not leave Alexandria. Therefore, he had his parole "switched" to his aunt's house on Hargis Street. Defendant further testified that he had lived in Monroe off and on since September 2007. Defendant received a letter dated November 6, 2008, at a Monroe address. In that letter he was informed that if hedid not attend or complete a class, his food stamp benefits would be reduced or cancelled. Defendant also testified that he was not asked his address when he was arrested. We note that the Robinson Bridge Road address was listed when Defendant was arrested on January 22, 2009.
Defendant denied owning the Taurus 9mm handgun found at his mother's home. He testified that it was not in his possession or near him in August 2008. When asked about the men's clothing in his mother's home, Defendant stated it was found in a storage room, and there was no bed in the room. He further stated the clothing could have belonged to his younger brother or his cousins, Ralph and Conrad.
James Marves lived next door to Defendant's mother, Linda Elie. He called the sheriff's office on June 1, 2009 because Defendant shot a dog. Marves made an in-court identification of Defendant. He testified that, as far as he knew, Defendant lived at Linda's residence. When asked what Defendant used to shoot the dog, Marves stated, "I didn't get a visual, close-up visual of the weapon or what caliber but I assume it was a .22 caliber, long barrel, single barrel .22."
In his statement to police, Marves said the events occurred at 5:10 p.m. and "he saw a young man whom I...
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