Opinion
NUMBER 2016 KA 1249
09-15-2017
STATE OF LOUISIANA v. RODNEY JOE HATCHER
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, LA Counsel for Appellee State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Counsel for Defendant/Appellant Rodney Joe Hatcher
NOT DESIGNATED FOR PUBLICATION
On appeal from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana
Docket Number 15-CR4-129437 Honorable Martin Coady, Judge Presiding Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, LA Counsel for Appellee
State of Louisiana Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA Counsel for Defendant/Appellant
Rodney Joe Hatcher BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. GUIDRY, J.
The defendant, Rodney Joe Hatcher, was charged by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count 1), and possession of heroin, a violation of La. R.S. 40:966(C) (count 2). The defendant pled not guilty and, following a jury trial, was found guilty as charged on both counts. On count 1, the defendant was sentenced to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count 2, the defendant was sentenced to seven years imprisonment at hard labor. The sentences were ordered to run concurrently. The defendant now appeals, designating three assignments of error. We affirm the convictions and sentences.
FACTS
On September 14, 2015, Bogalusa police on patrol received information from the defendant's mother that the defendant was at the Quick Shop grocery store on South Columbia Street. The defendant had active warrants out for his arrest. When the police arrived, the defendant had already left, but the defendant's mother was still at the grocery store. She told the police the defendant had left in a white vehicle heading to McDonald's. The defendant was in a white 2012 Ford Fusion being driven by Wilicia Peters, the owner of the car. Shortly after Wilicia and the defendant left McDonald's, the police spotted her car and effected a traffic stop. After the defendant had been detained, Lieutenant Michael Bracey, with the Bogalusa Police Department, arrived on the scene and found a loaded Smith & Wesson .38 revolver in the back seat of Wilicia's car. The defendant was taken to the Bogalusa Police Department and while being processed, just prior to being placed in a holding cell, a corrections officer found heroin in the defendant's sock. The heroin, a total weight of .36 grams, was in aluminum foil packs, which were inside a cellophane baggie.
Initially in his testimony on direct examination, Lieutenant Bracey twice referenced the back seat as the location of the gun. He stated he saw the gun "in the back seat." Shortly thereafter, however, the following exchange on direct examination took place:
Q. You can hold it up, show the jury, please? Where specifically did you find that weapon?This testimony is not cleared up by any subsequent testimony and, accordingly, while it is not clear as to the precise location of the gun, it is clear the gun was found in the back of Wilicia's car when she and the defendant were pulled over pursuant to a traffic stop.
A. It was in the rear seat of the vehicle that the defendant was in, underneath a bag, I think it was a McDonald's bag.
Q. What side of the vehicle?
A. To the best of my recollection it was on the driver's side, rear floorboard.
The defendant did not testify at trial.
ASSIGNMENTS OF ERROR NOS. 1, 2, and 3
In these related assignments of error, the defendant argues, respectively that: the trial court erred in denying the motion for new trial, the trial court erred in denying the motion for postverdict judgment of acquittal, and the evidence was insufficient to support the conviction for possession of a firearm by a convicted felon. Specifically, the defendant contends the State failed to prove his actual or constructive possession of the handgun found in the vehicle. The defendant does not challenge his conviction for possession of heroin.
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 (1979). See La. C. Cr. P. art. 821(B); State v. Ordodi, 06-0207, p. 10 (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 fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585, p. 5 (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. See State v. Mose, 412 So. 2d 584, 585 (La. 1982). 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).
The only issue raised by the defendant is possession. The defendant asserts in brief that there was no testimonial or forensic evidence that placed him in either actual or constructive possession of the firearm found in Wilicia's car. The defendant points out the State did not have the handgun analyzed for either DNA or fingerprints to tie him to the gun. Further, according to the defendant, Wilicia could not say that the gun belonged to him.
The prior felony conviction was in 2014 for simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2.
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. Plain, 99-1112, pp. 3-4 (La. App. 1st Cir. 2/18/00), 752 So. 2d 337, 340-41 (constructive possession found where the defendant admitted to having the weapon underneath the mattress in his bedroom); State v. Frank, 549 So. 2d 401, 405 (La. App. 3d Cir. 1989) (where a gun was in plain view on the front seat of a car the defendant was driving but did not own, the court found constructive possession).
Dominion and control over a weapon constitute constructive possession even if it is only temporary and even if the control is shared. See Plain, 99-1112 at p. 3, 752 So. 2d at 340; State v. Melbert, 546 So. 2d 948, 950 (La. App. 3d Cir. 1989); State v. Bailey, 511 So. 2d 1248, 1250 (La. App. 2d Cir. 1987), writ denied, 519 So. 2d 132 (La. 1988). 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. State v. LaMothe, 97-1113, p. 8 (La. App. 5th Cir. 6/30/98), 715 So. 2d 708, 712, cert. granted in part on other grounds, 98-2056 (La. 11/25/98), 722 So. 2d 987 (per curiam). See State v. Woods, 94-2650, p. 3 (La. App. 4th Cir. 4/20/95), 654 So. 2d 809, 811, writ denied, 95-1252 (La. 6/30/95), 657 So. 2d 1035. 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, 03-1228, p. 6 (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, p. 4 (La. 12/8/94), 647 So. 2d 337, 338-39 (per curiam); State v. Bell, 566 So. 2d 959, 959-60 (La. 1990) (per curiam). Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Johnson, 03-1228 at p. 5, 870 So. 2d at 998.
The defendant's reliance in brief on State v. Fisher, 94-2255 (La. App. 1st Cir. 12/15/95), 669 So. 2d 460, writ denied, 96-0958 (La. 9/20/96), 679 So. 2d 432 and State v. Smith, 98-0366 (La. App. 4th Cir. 5/12/99), 744 So. 2d 73, is misplaced. Neither of these cases, wherein the court found the defendant did not have the intent to possess a gun found in a vehicle, are similar enough to the facts of the instant matter to lend any support to the defendant's argument. In Fisher, the gun was found in the defendant's sister's purse, and the sister was the registered owner of the gun. See Fisher, 94-2255 at pp. 3-4, 669 So. 2d at 461-62. In Smith, the vehicle's owner, the defendant's mother, had allowed several people to use her vehicle. The mother also testified that she never saw the defendant with the gun that was found, and that despite rolling papers also being found in the vehicle, the defendant smoked only Camel cigarettes. Smith, 98-0366 at pp. 2-3, 744 So. 2d at 74-75.
In the instant matter, Lieutenant Charles McDaniels, with the Bogalusa Police Department, testified at trial that when he spotted Wilicia's vehicle, he turned on his blue lights and got behind her. As he followed Wilicia, Lieutenant McDaniels saw a "bunch of furtive movements going on in the vehicle on the passenger side." The defendant "was moving his hands around and looked like he was going to attempt to run, or got scared." Lieutenant McDaniels further stated: "He started moving a whole lot when I turned on the lights. There was a bunch of movement going on in the passenger seat."
According to Wilicia, she had stopped at McDonald's and gotten some food just shortly before she and the defendant were stopped by the police. Lieutenant Bracey testified at trial that after the defendant was detained, he (the lieutenant) walked past the vehicle and saw, in the back seat, the barrel of a gun protruding from underneath what appeared to be a McDonald's bag. Lieutenant Bracey then seized the gun.
Wilicia testified at trial that she had been dating the defendant's brother off and on for ten years. According to Wilicia, when she was driving and they first heard the police unit sirens, the defendant told her to keep driving. The defendant did not want her to pull over, but she stopped anyway. When Wilicia was asked on direct examination who the gun belonged to, she was non-responsive. She made it clear that she was close to the Hatchers and that she did not want to be there (testifying at trial). What Wilicia did make clear, however, throughout her testimony, was that she drove her own car (the 2012 Ford Fusion that was stopped), and that the only other person who drove her car was her mother. Wilicia did not own a gun, and her mother did not own a gun. Further, and most importantly, before the defendant got in her car, there was no gun in her car; and after the defendant got in and they were stopped by the police, there was a gun in her car. On the direct examination of Wilicia, the following exchange took place:
Q. Was that your gun?
A. No.
Q. Had that gun been in your car before Rodney got in the car?
A. No, sir.
Q. Whose gun was that?
A. It wasn't in the car before.
On the cross-examination of Wilicia, the following relevant exchange took place:
Q. I understand but what I am asking, you said the gun was not in the car earlier, but you didn't look for or look for anything to determine if it was in the car, correct?
A. Yes.
Q. So, it could have been in the car because you did not do a search of the vehicle earlier?
A. No.
Q. Well, if you didn't do a search how do you know it wasn't in the car?
A. I mean it is my car. I don't ride around with a gun.
On the redirect examination of Wilicia, the following relevant exchange took place:
Q. Ms. Peters, is this your firearm?
A. No.
Q. Is this your mother's?
A. No, sir.
Q. Was this gun in your car before Rodney Hatcher got in your car on that evening, September 14, 2015?
A. No, sir.
The jury heard the testimony and viewed the physical evidence presented at trial and found the defendant guilty as charged on count 1. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980, p. 6 (La. 4/1/05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So. 2d 78, 83.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). In finding the defendant guilty, the jury clearly rejected the defense's theory of innocence. See Moten, 510 So. 2d at 61. The jury's guilty verdict reflected the reasonable conclusion that based on the evidence, particularly the testimony of Wilicia and Lieutenants McDaniels and Bracey, the defendant constructively possessed the handgun found in Wilicia's car. The jury clearly chose to believe Wilicia's testimony that neither she nor her mother owned a gun; and that there was no gun in her car before the defendant got in her car, but there was a gun in her car only after the defendant got in her car. As such, any juror could have reasonably concluded that the defendant got into Wilicia's car while in possession of a handgun; that when the police activated their lights, the defendant scrambled to do something with the gun he had (which would explain Lieutenant McDaniels' testimony about all the movement he saw by the front-seat passenger); and finally, in an attempt to hide the gun, the defendant reached behind the driver's seat and placed the gun beneath a McDonald's bag.
Accordingly, the jury had sufficient evidence to conclude that the defendant was aware of the gun and that the gun, easily accessible and within the defendant's reach, was under his dominion and control at the time the car was stopped. Such dominion and control is sufficient to constitute constructive possession. See State v. Storks, 02-754, p. 9 (La. App. 5th Cir. 12/30/02), 836 So. 2d 638, 642-43. See also State v. Allen, 12-0412, p. 4 (La. 10/26/12), 101 So. 3d 41, 43 (per curiam) (defendant's possession of the car gave him dominion and control over the handgun concealed under the backseat); State v. McKinney, 44,269, pp. 8-9 (La. App. 2d Cir. 5/13/09), 12 So. 3d 422, 426.
After a thorough review of the record, we find the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was in actual and/or constructive possession of a firearm as a convicted felon and that he had the general intent to possess the weapon. See State v. Calloway, 07-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam); Storks, 02-754 at p. 9, 836 So .2d at 643.
These assignments of error are without merit.
SENTENCING ERROR
Under La. C. Cr. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found a sentencing error. See State v. Price, 05-2514, p. 18 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277.
Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than twenty years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). The trial court failed to impose the mandatory fine. Accordingly, the defendant's sentence is illegally lenient. Since the sentencing error, however, is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 05-2514 at p. 22, 952 So. 2d at 124-25.
The minutes also reflect no fine was imposed.
CONVICTIONS AND SENTENCES AFFIRMED.
NO. 2016 KA 1249
CRAIN, J., dissenting in part.
The defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 797. In State v. Kondylis, 14-0196 (La. 10/3/14), 149 So.3d 1210, the supreme court implicitly overruled that part of this court's decision in State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277, which allowed this court to let a defendant's illegally lenient sentence stand. Consistent with Kondylis, this court has corrected illegally lenient sentences, which omitted the mandatory fine required by Louisiana Revised Statute 14:95.1, by amending the sentence to include the mandatory minimum fine. See State v. Carter, 16-1078 (La. App. 1 Cir. 12/22/16), 210 So. 3d 306, 309; State v. Robertson, 14-0252, 2014WL4668685 (La. App. 1 Cir. 9/19/14). I would amend the defendant's sentence on count one to include the minimum fine of $1,000. Therefore, I dissent from that part of the opinion.