State v. Ray

Decision Date27 June 2007
Docket NumberNo. 42,096-KA.,42,096-KA.
Citation961 So.2d 607
PartiesSTATE of Louisiana, Appellee v. Courtney Dion RAY, Appellant.
CourtCourt of Appeal of Louisiana — District of US

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

Paul J. Carmouche, District Attorney, Scott J. Chafin, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.

Before WILLIAMS, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

Courtney Dion Ray was charged with possession of a firearm by a convicted felon and convicted of attempted possession of a firearm by a convicted felon. He received a sentence of four months at hard labor, without the benefit of parole, probation, or suspension of sentence. Ray appeals his conviction. We affirm.

Facts

On August 4, 2004, Corporal Jeff Peters and Agent Chad Denham of the Shreveport Police Department were called to the La Tierra apartment complex in Shreveport to investigate a narcotics complaint. When they arrived on the scene, they witnessed several males running from the front of the complex. As the officers entered the courtyard in their vehicle, Corporal Peters spotted Ray coming around a corner and observed him lift his shirt and pull out a black handgun. He yelled, "gun" to Agent Denham, and the two officers gave pursuit of the defendant. Ray ran into a breezeway of the apartment building, causing the officers to lose sight of him for approximately five seconds. The officers were eventually able to apprehend Ray at the entrance of the breezeway as he was coming out. After placing the defendant under arrest, Agent Denham conducted a search of the premises and discovered a Glock 17 nine millimeter handgun underneath a doormat in the breezeway.

Ray was charged with possession of a firearm by a convicted felon1 and convicted in a bench trial of attempted possession of a firearm by a convicted felon. He was sentenced to four months at hard labor, without the benefit of parole, probation, or suspension of sentence. After the denial of motions for post verdict judgment of acquittal and new trial, Ray appealed his conviction.

Discussion
I.

On appeal Ray argues that the evidence adduced at trial against him was insufficient to support his conviction for attempted possession of a firearm by a convicted felon because he was simply at the wrong place at the wrong time. He argues that the testimony of one police officer, who only caught a split-second glimpse of him pulling something from his waistband, is insufficient to support his conviction when a second officer seated next to him did not make the same observation. Ray also argues that there was absolutely no evidence linking him to the gun found at the scene which was located in a high-crime area, known for violence, drugs, and weapons. Consequently, he complains that it was impossible to ascertain the length of time that the gun had been in the breezeway and any possession of the gun on his part.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant 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 the evidence is constitutionally insufficient. 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 for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La.C.Cr.P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App. 2d Cir.8/18/99), 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir. 1992), writ denied, 605 So.2d 1089 (La. 1992).

To support a conviction for possession of a firearm by a convicted felon, the state must prove: (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. 2d Cir.9/27/95), 661 So.2d 657.

The charged offense is a general intent crime. Attempt, however, is a responsive verdict to the charged offense. La.C.Cr.P. art. 815; State v. Tatum, supra. To sustain a conviction for attempted possession of a firearm by a convicted felon, the state is required to prove that defendant had the specific intent to possess the weapon(s) and that he committed an overt act towards the completion of that offense. La. R.S. 14:27. (Emphasis added). Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed consequences to follow his act or failure to act. La. R.S. 14:10(1). Because intent is a state of mind, it can be inferred from the circumstances of the transaction and the action or inaction of defendant. State v. Johnson, 584 So.2d 1216 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1057 (La.1991).

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). A compromise verdict is a verdict which does not "fit" the evidence, but which (for whatever reason) the jurors deemed to be fair. Where a defendant fails to interpose a timely objection to a legislatively provided responsive verdict which is not also a lesser and included offense of the crime charged, conviction will not be reversed if such a verdict is returned, whether or not the verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. Id. It would be unfair to permit the defendant to have the advantage of the possibility that a lesser "compromise verdict" will be returned and then to raise the complaint for the first time on appeal. Id.

In this matter, because there was evidence, if believed, that established Ray had possession of a gun and then hid it, the judge's verdict was apparently a compromise decision to find defendant guilty of something less than the charged offense. Ray did not object to the inclusion of the responsive verdict of attempted possession of a firearm by a convicted felon at a time when the judge could have removed it from his consideration. Therefore, our sufficiency review is directed at the charged offense.

Ray stipulated that he was convicted of a felony, specifically possession of a Schedule II controlled dangerous substance, in April of 2001. The sole contested issue in this matter is whether the defendant possessed the firearm.

Corporal Peters testified that he recognized Ray in the apartment courtyard while the defendant was approximately 10 to 15 feet away from his patrol car. Corporal Peters recalled that Ray was wearing tan, light-colored clothing, including shorts. At that time, he placed his vehicle lights on bright to illuminate the defendant's face. According to Peters, Ray lifted his shirt with his left hand and pulled out a black handgun with his right hand. Corporal Peters testified that he alerted Agent Denham about the gun, and drew down his handgun in the defendant's direction. The defendant turned and ran into the breezeway of the apartment complex.

While other suspects also ran into the breezeway, Peters testified that they did not advance farther into the breezeway than the defendant. Peters did not pursue the defendant into the breezeway, and lost sight of him for five seconds. When the defendant made his way out of the breezeway, Peters ordered him down to the ground. No weapon was found on the defendant.

Agent Denham testified that he witnessed the defendant lift his shirt and pull out the "object" that Corporal Peters identified as a gun. Agent Denham also testified that he could not immediately identify the object as a gun at that point. He stated that after placing the defendant under arrest, he conducted a search of the breezeway and discovered a Glock 17 nine millimeter...

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