State v. Hutchinson
| Docket Number | 2022 KA 1283 |
| Decision Date | 23 June 2023 |
| Parties | STATE OF LOUISIANA v. JUSTIN HUTCHINSON |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 4164-F-2020, Div. E, The Honorable William H. Burris, Judge Presiding
Warren L. Montgomery District Attorney, J. Bryant Clark, Jr. Assistant District Attorney, Covington, Louisiana, Counsel for Appellee State of Louisiana.
Holli Herrle-Castillo Marrero, Louisiana, Counsel for Defendant/Appellant Justin Hutchinson.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
The defendant, Justin Hutchinson, was charged by bill of information with possession of a firearm by a convicted felon (count 1), a violation of La. R.S. 14:95.1; and aggravated assault upon a peace officer (count 2), a violation of La. R.S. 14:37.2. He pled not guilty and, following a jury trial was found guilty on count 1 of the responsive offense of attempted possession of a firearm by a convicted felon. See La. R.S. 14:27. He was found not guilty on count 2. The defendant filed a motion for postverdict judgment of acquittal or alternative motion for new trial, which was denied. The trial court sentenced the defendant to seven-and-one-half years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and imposed a $500 fine. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.
On the night of August 17, 2020, Deputy Chris Galloway, with the St Tammany Parish Sheriffs Office, was on patrol when he observed the a vehicle driven by the defendant swerving on the road in Sun, Louisiana. Deputy Galloway also saw the defendant moving back and forth in the vehicle, and because of the defendant's actions, made a traffic stop. During the stop, the defendant backed up and hit the front of Deputy Galloway's police unit, then drove forward about twenty feet and stopped. Deputy Galloway ordered the defendant out of the car. The defendant got out, walked to the front of his vehicle, then walked back to the driver's side of his vehicle and leaned in. Deputy Galloway ordered the defendant to get away from the vehicle. At this point, backup for Deputy Galloway arrived. Upon approaching, Deputy Galloway smelled marijuana on the defendant and in the vehicle he was driving. Because of the defendant's swerving as he drove, and because of the smell of marijuana in the vehicle and on the defendant's person, Deputy Galloway suspected the defendant was intoxicated. Due to the suspected intoxication, the defendant was placed in a police unit. Deputy Galloway shined his flashlight through the window of the defendant's car and observed a mini Draco AK-47, loaded with a thirty-round magazine, on the rear floorboard of the passenger side. The backup officer, Deputy Seth Cunningham, recognized the defendant as a former jail inmate. Deputy Galloway ran a name check on the defendant and learned of a prior felony conviction. Deputy Galloway then seized the firearm and arrested the defendant. The defendant did not testify at trial.
In his first assignment of error, the defendant argues the evidence was insufficient to support the conviction. Specifically, the defendant contends the State failed to prove he had knowledge the gun was in the car.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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, 573 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 20012585 (La.App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Pursuant to La. R.S. 14:95.1, it is unlawful for any person who has been convicted of certain felonies to possess a firearm. To prove a violation of La. R.S. 14:95.1, the State must prove: (1) the defendant's status as a convicted felon; and (2) that the defendant was in possession of a firearm. The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction. La. R.S. 14:95.1(C). State v. St. Cyre, 2019-0034 (La.App. 1st Cir. 12/19/19), 292 So.3d 88, 113, writ denied, 2020-00142 (La. 5/26/20), 296 So.3d 1063.
The defendant notes that to prove an attempt, the State must show he had the specific intent to commit the offense. La. R.S. 14:27(A). Possession of a firearm by a convicted felon is a general intent crime, whereas the attempt to commit that offense is a specific intent crime. State v. Hills, 2010-1521 (La.App. 1st Cir. 3/25/11), 2011 WL 1103455, *7 (unpublished), writ denied, 2011-1120 (La. 11/14/11), 75 So.3d 940. Even if the evidence is insufficient to support the conviction for attempted possession of a firearm by a felon because it failed to establish specific intent, the defendant's conviction would not be subject to reversal on this basis. The jurisprudence provides that, if a jury is instructed on a responsive verdict, without objection by the defendant, then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.[1] Id. See La. R.S. 14:27(C); State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La. 1982), cert, denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).
The defendant does not dispute he has a prior qualifying conviction or that the gun was found on the back-seat floor of the car he was driving. He disputes, however, that he had any knowledge of the gun's existence and, as such, did not possess it or attempt to possess it. The defendant notes that the car he was driving was not registered to him. He further points out that he never had actual possession of the gun, and there was no physical evidence such as fingerprints or DNA linking him to the gun.
Under La. R.S, 14:95.1, actual possession is not a necessary element of the offense, and there is no requirement that the defendant have the firearm on his person to be in violation. Constructive possession satisfies the possessory element of the offense. State v. Day, 410 So.2d 741, 743 (La. 1982). Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control. See State v. Frank, 549 So.2d 401, 405 (La.App. 3rd Cir. 1989) (). St. Cyre, 292 So.3d at 113.
Dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. Further, the jurisprudence has added an aspect of awareness to the offense of La. R.S. 14:95.1. Therefore, the State must also prove that the offender was aware that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon. St. Cyre, 292 So.3d at 113. Mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. State v. Johnson, 2003-1228 (La. 4/14/04), 870 So.2d 995, 999. Whether the proof is sufficient to establish possession turns on the facts of each case. See State v. Harris, 94-0970 (La. 12/8/94), 647 So.2d 337, 338-39 (per curiam). Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Johnson, 870 So.2d at 998; St. Cyre, 292 So.3d at 113.
Herein when Deputy Galloway first attempted the traffic stop, the defendant drove for about another half mile before pulling over. Deputy Galloway observed the defendant moving back and forth in the vehicle and leaning over to the passenger side. The defendant then backed up into the deputy's unit and drove forward approximately twenty feet before stopping. The defendant then got out of the vehicle, walked to the front of the vehicle, then went back to the driver's side of the vehicle and leaned his head and both hands inside the vehicle. The jury could have found that all of these actions by the defendant, as a whole, strongly suggest the defendant had something in the car that he sought to conceal. The defendant in brief suggests that this furtive movement and leaning inside the vehicle could have been his trying to dispose or hide any marijuana located inside the vehicle. The record does not reflect, however, that the police officers found marijuana in the vehicle or on the defendant's person. Regardless, after the defendant was arrested and placed in a jail holding cell the following day, he spoke to a male on the phone. During this...
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