State v. Moton

• Decision Date: 21 September 2011
• Docket Number: No. 46,607–KA.,46,607–KA.
• Citation: 73 So.3d 503
• Parties: STATE of Louisiana, Appellee v. Henry MOTON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

73 So.3d 503

STATE of Louisiana, Appellee
v.
Henry MOTON, Appellant.

No. 46,607–KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 21, 2011.

[73 So.3d 505]

Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.

Charles R. Scott, II, District Attorney, Lea R. Hall, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.

Before BROWN, CARAWAY and LOLLEY, JJ.

CARAWAY, J.

[2 Cir. 1] Henry Moton was convicted of illegal use of weapons during a crime of violence, in violation of La. R.S. 14:94(F), and of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. After Moton admitted that he was a second felony habitual offender as to the illegal use of weapons charge, the court imposed consecutive sentences of 40 years' hard labor without benefits for the illegal use of a weapon conviction and 10 years' hard labor without benefits for the firearm charge. Moton appeals, urging four assignments of error. We affirm.

[73 So.3d 506]

Facts

Sometime in the summer of 2008, Jeremy Rainey borrowed a .40 caliber handgun from an acquaintance he knew only as Marcus. Subsequently, Rainey's grandmother's car was broken into by a man who Rainey's brother identified as Marcus. When Rainey learned of that incident, he refused to return the gun to Marcus.

On July 20, 2008, Rainey and two of his friends were at the home of Rainey's girlfriend, Jessica Chambers, on Clover Street in Shreveport when Marcus and Moton went to that house looking for Rainey. They were driving a white Mazda. Rainey told Chambers to tell the men he was not there. She did so, but Moton told her “if he didn't get the gun, he was going to shoot the house up or something like that.” When Moton left, Rainey and his friends snuck out of the house.

As Rainey walked and turned onto Dowdell Street, he was cut off by a white car. Testimony indicated that Marcus was driving, and Moton was [2 Cir. 2] in the passenger seat. Rainey saw one of the doors open on the white car. Fearing trouble, Rainey pulled his .40 caliber handgun and fired it once and then turned and ran away. As he ran, Rainey heard multiple gunshots coming from the direction of the car, but he did not see if both men were shooting at him. Rainey escaped from the scene and was uninjured.

Police responded to the scene and discovered that a young man who was just a bystander to the shooting had been struck and wounded by one of the rounds. The 16–year–old was later treated at the hospital and released.

A search of the area revealed numerous groupings of spent shell casings on the ground. One group of approximately 13 spent .380 caliber shell casings was found near the corner of Clover and Dowdell. Police also found numerous .40 caliber shell casings. About one block to the north of the intersection near Summer Street, police recovered one spent 12–gauge shotgun shell.

Police located a witness to the shooting, James Dennis, who lived on Summer Street. The witness saw a white car he described as a Toyota stopped in the street, and saw two men with guns firing south on Dowdell. One of the fired rounds put a hole in Dennis' pickup truck and another hit his house. Dennis saw the driver firing a handgun and the passenger was firing a shotgun. After the shooting, Dennis heard one of the shooters say, “get the shells, the shotgun shells,” and then Dennis saw the driver stop and pick up various cartridge cases. Dennis could not identify either of the men he saw doing the shooting.

[2 Cir. 3] A few days after the initial shooting, Rainey was walking down Clover Street near his girlfriend's house when his girlfriend told him that “they [were] all down there on the corner of the street.” Rainey did not see Moton at that time, but when he went into his girlfriend's yard and looked down the street, Rainey saw “Moton creeping with the gun, walking out the yard.” Rainey described Moton's gun only as a “big gun.”

Rainey ran out of the yard and down Clover Street, and his pursuers began shooting at him. On this day, Rainey was sure that Moton was one of the men shooting at him and Chambers was also sure that Moton was among the group of assailants.

Another witness, Aquila Robinson, testified that she was present at the second shooting. She overheard one of the assailants identify Rainey, and then she saw Moton cross the street with a gun going toward Rainey. Robinson then heard gunshots, but did not know who shot at whom.

[73 So.3d 507]

At trial in 2010, Robinson initially testified that she did not see the first shooting. However, in a recorded statement made to police shortly after the second shooting, she reported that she did see the first shooting, and that she saw Marcus and Moton firing down the street. Robinson did not know who shot first. She described Moton's gun in the second shooting as a big gun “like a chopper” but recalled that he had a handgun in the first shooting. After the prosecutor played the recording of that interview to the jury, Robinson agreed that the recording had refreshed her memory of the events which had occurred two years before trial.

[2 Cir. 4] When Chambers and Robinson identified Moton in a photo lineup prepared by police, Moton was arrested in August 2008. While Moton was in jail, his phone calls were recorded.¹ A disc containing these phone calls was introduced into evidence, and the jury overheard portions of some of the several conversations on the disc. The record shows that the jury heard Moton explaining his situation to a woman. During this conversation, the woman asked him “where that gun at, though,” at which point Moton reminds her that he is in jail. In a conversation with his brother about the witnesses to the event and why they were getting involved, Moton says, “It ain't nothing for me to get on that phone and call homey and (unintelligible) and have a n* * * *a's ass f* * * * * over.”

The jury convicted Moton on both charges. They voted unanimously on the possession of a firearm by a convicted felon charge and 10–2 on the illegal use of a weapon charge.

After a subsequent adjudication as a second felony offender, Moton was sentenced. At the sentencing hearing, the court recited the sentence ranges for Moton's crimes and then, relying on the previously considered factors, imposed consecutive sentences of 40 years at hard labor, for illegal use of a weapon (the maximum sentence for a second-felony habitual offender), and 10 years at hard labor (the minimum sentence, without the required minimum fine) for possession of a firearm by a convicted felon. Moton filed a motion to reconsider the sentences, urging that the court should not have considered the evidence of Moton's arrest for murder in the [2 Cir. 5] sentencing decision and should have imposed the sentences concurrently. When the district court denied that motion, Moton appealed.

Discussion I.

Moton argues that the state presented insufficient evidence to prove that he violated La. R.S. 14:94(F), illegal use of weapons while committing a crime of violence. He claims the state presented no evidence to prove that he had a gun during the encounter with Rainey on July 20, 2008.

In 2008, La. R.S. 14:94(A) and (F) read as follows:

A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.

* * * * * *

F. Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing, attempting to commit,

[73 So.3d 508]

conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence or violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less then ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence. If the firearm used in violation of this Subsection is a machine gun or is equipped with a firearm silencer or muffler, as defined by R.S. 40:1751 and R.S. 40:1781, respectively, the offender shall be sentenced to imprisonment for not less than twenty years nor more than thirty years, without benefit of parole, probation, or suspension of sentence. Upon a second or subsequent conviction, under this Subsection, such offender shall be sentenced to imprisonment for not less than twenty years. If the violation of this Subsection, upon second or subsequent conviction, involves the use of a machine gun or a firearm equipped with a firearm silencer or muffler, such offender shall be sentenced to imprisonment for life without benefit of parole, probation, or suspension of sentence.

Aggravated assault, aggravated battery and attempted second degree murder are listed as crimes of violence under La. R.S. 14:2.

[2 Cir. 6] When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97–1203 (La.10/17/97), 701 So.2d 1333.

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...