Opinion
NO. 2016 KA 1114
02-17-2017
STATE OF LOUISIANA v. MICHAEL LEBLANC
HON. RICKY L. BABIN DISTRICT ATTORNEY DONALDSONVILLE, LA DONALD D. CANDELL SHAWN BUSH ASSISTANT DISTRICT ATTORNEYS GONZALES, LA ATTORNEYS FOR STATE OF LOUISIANA FREDERICK KROENKE BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLANT MICHAEL LEBLANC
NOT DESIGNATED FOR PUBLICATION Appealed from the 23rd Judicial District Court in and for the Parish of Ascension, Louisiana
Trial Court No. 32,299
Honorable Thomas J. Kliebert, Jr., Judge HON. RICKY L. BABIN
DISTRICT ATTORNEY
DONALDSONVILLE, LA
DONALD D. CANDELL
SHAWN BUSH
ASSISTANT DISTRICT ATTORNEYS
GONZALES, LA ATTORNEYS FOR
STATE OF LOUISIANA FREDERICK KROENKE
BATON ROUGE, LA ATTORNEY FOR
DEFENDANT-APPELLANT
MICHAEL LEBLANC BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY, J. Pro Tem. PETTIGREW, J.
Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
The defendant, Michael Leblanc, was charged by bill of information with possession of a firearm or carrying a concealed weapon by a convicted felon, in violation of La. R.S. 14:95.1, and pled not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced the defendant to eighteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, and a fine of three hundred dollars. The defendant now appeals, assigning error to the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.
As noted in the amended bill of information and stipulated by the parties at the beginning of the trial, the defendant's charge and conviction are based on a 2003 predicate conviction of second degree battery.
STATEMENT OF FACTS
On November 7, 2013, while conducting surveillance in Donaldsonville, as a part of a proactive investigation initiative to improve street crime response, officers of the Louisiana State Police (LSP) observed a hand-to-hand transaction not involving the defendant in the front yard of a trailer home located at 115 First Street. The officers exited their vehicles to approach the individuals involved in the transaction, and escorted one of the individuals, Eddie Smith, into the home to retrieve his identification. While at the scene, the officers made contact with another residential occupant, the defendant. When the defendant asked to sit on a sofa in the living room area of the trailer, the officers searched the sofa for weapons and located a loaded 9 mm handgun under one of the cushions. LSP Trooper Barton secured the weapon while LSP Sergeant Soileau handcuffed the defendant. The officers then conducted a criminal history check, learned that the defendant was a convicted felon, and placed the defendant under arrest.
Smith also identified cocaine in the residence that he admitted belonged to him.
A search incident to the defendant's arrest was conducted and four thousand dollars was located on his person. At the trial, the defendant's sister testified that she had given him half of the money.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the circumstantial evidence was insufficient to prove all of the elements of possession of a firearm by a convicted felon. On appeal, the defendant concedes that he either lived or stayed at the house where the firearm was recovered, but contends that he did not ask to sit on the specific part of the sofa where the firearm was found. The defendant argues that there was no proof that he intended to constructively possess or knew that the gun was under the sofa cushion. The defendant further argues that Trooper Barton's testimony was speculative in indicating that the defendant nodded his head to ask to sit on the sofa (as opposed to other pieces of furniture), and on the particular cushion under which the firearm was found. The defendant also notes that the gun was not tested for fingerprints or DNA.
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, 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 also 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(B), 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 that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Pursuant to La. R.S. 14:95.1(A), in pertinent part, it is unlawful for any person who has been convicted of a crime of violence as defined in La. R.S. 14:2(B) to possess a firearm or carry a concealed weapon. To convict a defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt the possession of a firearm, a previous conviction of an enumerated felony, that ten years have not elapsed since completion of the sentence, and general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269, 271 (La. 1983). The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the firearm or through the constructive possession of the firearm. Thus, constructive possession satisfies the possessory element of the offense. Constructive possession occurs when the firearm is subject to the offender's dominion and control. Dominion and control over a weapon are sufficient to constitute constructive possession even if the control is only temporary in nature and even if the control is shared with another person. See State v. Johnson, 2003-1228 (La. 4/14/04), 870 So.2d 995, 998-99; see also State v. Plain, 99-1112 (La. App. 1st Cir. 2/18/00), 752 So.2d 337, 340-41.
General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10.
As noted, in this case the parties stipulated to the defendant's prior conviction of second degree battery, a crime of violence pursuant to La. R.S. 14:2(B)(6). Thus, the only issue is the sufficiency of the evidence of the defendant's possession of the firearm. Mere presence in an area where a firearm is found, or mere association with an individual found to be in possession of a firearm, does not necessarily establish possession. Whether the proof is sufficient to establish possession under La. R.S. 14:95.1 turns on the facts of each case. Guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Johnson, 870 So.2d at 998.
Sergeant Soileau first saw the defendant as he was exiting the trailer home, after the hand-to-hand exchange took place in the yard. Sergeant Soileau testified that the defendant stated that he resided at the trailer home. Sergeant Soileau conducted a pat down search of the defendant for weapons just before they stepped inside of the trailer home. While Trooper Barton escorted Smith to his bedroom, Sergeant Soileau and Sergeant Tircuit escorted the defendant to his bedroom. The defendant confirmed that it was his bedroom and identified items therein as his belongings, as Sergeant Soileau conducted a safety scan for other occupants. After they exited the defendant's bedroom, the officers escorted him back into the living room area. Sergeant Soileau noted the availability of other seating in the area where the defendant asked to sit, noting that he was standing behind the defendant when Investigator Hamp Guillory lifted the cushion and located the gun. The defendant was standing approximately two to three feet away from the gun at the time. Sergeant Soileau denied that the defendant ever inquired as to how the gun got there or ever indicated that it was not his after it was discovered.
Trooper Barton first saw the defendant in the hallway, when the other officers were escorting him back into the living room. Trooper Barton testified that the defendant asked to sit on the sofa, and motioned his head toward the exact spot where the gun was then recovered. Trooper Barton recalled that other seating in the living room of the "standard small trailer" specifically included a chair and a small loveseat. Trooper Barton denied initially seeing the defendant outside, stating that he first saw the defendant in the hallway of the trailer. Trooper Barton specifically stated, "I heard him [the defendant] say that he was staying -- he lived at that residence." While Louisiana identification cards in their possession at the time listed other locations in Donaldsonville as a place of residence, both the defendant and Smith stated that they resided at the trailer home in question, each claiming one of the two bedrooms.
The defendant's identification card listed 704 Third Street, which was his mother's address, located two streets away from the scene. --------
The defendant's girlfriend, Trenise Davis, had been dating him for approximately two months by the time of the offense and testified that she was present at the scene when the officers approached. The officers searched her wallet and handcuffed the defendant, just before they escorted her back inside of the residence. The defendant was sitting outside on the ground with his hands handcuffed behind his back while the officers took Davis inside and questioned her about drugs. Davis went back outside after telling the officers that she did not know anything about drugs. At that point, the officers were escorting the defendant back into the residence. Davis remained outside and did not see what occurred in the residence after the defendant and the officers went inside. Davis testified that before the offense, she would see the defendant on a daily basis and the day in question was the first time that they ever went to the trailer home in question. Davis stated that the defendant arranged for them to spend the night at the trailer home because they wanted to sleep together and her aunt, with whom she lived, would not allow them to do so. She further stated that she did not know who lived at the residence, and that the defendant was living with his mother at the time.
Sabrina Leblanc, the defendant's sister, was also present at the scene but did not enter the residence while the officers were there. She was only a block away when someone informed her that the officers had handcuffed her brother and proceeded back to the residence. The officers would not allow her to get close to the trailer home, and she observed as the officers individually escorted Davis, Smith, and lastly the defendant into the trailer home. She was still outside in the yard when the officers walked out of the residence with the handgun and took custody of the defendant. Leblanc testified that the defendant lived with their mother on Third Street and that she would pick him up from their mother's home on a regular basis. While explaining that she had given the defendant one-half of the cash that he had on his person at the time of his arrest, Leblanc testified she had been in a car accident and that her lawyer had loaned her money pending the settlement of her lawsuit. Leblanc stated that she gave the defendant several twenty dollar bills and eleven one hundred dollar bills, totaling twenty-two hundred dollars, in order to "help him out." When shown a picture of the four separate stacks of one hundred dollar bills (each stack totaling one thousand dollars) seized from the defendant, Leblanc testified that she had given him two of the stacks and that she routinely kept her money in one-thousand-dollar stacks. On the day of the offense, Leblanc initially came to the scene that morning to bring the defendant the money and, as stated above, returned when she was informed that the officers had arrived.
The defendant testified that he was staying with his mother at the time of the offense and that he and his girlfriend had spent the night at the trailer to engage in sexual intercourse, further explaining, "out of respect for her aunt's house and for my mom's." He testified that his sister had come there that morning to make sure he was up, to give him money, and because they had things to go take care of that day. The defendant testified that the officers initially handcuffed him and told him to sit on the ground before they ultimately took him back into the house, removed his handcuffs, and escorted him into the back room. The officers asked the defendant for consent to search the residence but he informed them that he did not live there and could not give them consent to search. According to the defendant, the officers began to search anyway, looking through dresser drawers, as they told him to go back to the front of the house and have a seat. The defendant denied asking to sit down, reiterating that the officers instructed him to have a seat, though he wanted to stay in the back of the house and watch the officers conduct the search of the back room. Just before the defendant could sit down, one of the officers lifted the cushion from the sofa and located the handgun. The defendant stepped back and informed the officers that the gun did not belong to him. The defendant testified that he had never seen the gun before that moment and that he was surrounded by officers when it was recovered. When asked if there were anywhere else in the room that he could have sat, the defendant indicated that the cushion was directly in front of him and would allow him to still have a view of the back of the house.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where 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. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). 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 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
The defendant testified that he did not live at the residence, did not ask to sit down, and had no knowledge of the location of the gun. However, the verdict returned in this case indicates that the jury rejected that testimony and accepted the testimony of other witnesses. Absent a showing that the defendant was not granted the fundamental due process of law, it is not appropriate for this court to impinge on the fact finder's discretion and reject that credibility determination. See Johnson, 870 So.2d at 1000 (finding the evidence sufficient to support the defendant's conviction of possession of a firearm by a convicted felon although his wife testified that the gun belonged to her).
The Louisiana Supreme Court has found possession to exist despite the prosecution's failure to present evidence that the defendant was holding the gun or that his fingerprints were on it. See Johnson, 870 So.2d at 1000. We find that there was sufficient evidence in this case for the jury to determine that the defendant had constructive possession of the handgun. Although the defendant denied living at the trailer home, he was there along with his girlfriend when the officers arrived. That morning, prior to the officers' arrival, the defendant's sister, Leblanc, also visited him there in order to, according to the defendant and Leblanc, awaken him and bring him a large sum of money. According to the officers, the defendant told them that he lived there and claimed one of the bedrooms. While the defendant denied knowledge of the presence of the handgun, he admitted that he was going to sit in that exact spot before the officers stopped him to search under the cushion. While the defendant notes that he was surrounded by officers at the time, we note that the handgun was within the defendant's reach when it was recovered. It is well-settled that shared control does not negate constructive possession. A jury could have reasonably inferred that the defendant exercised shared, if not sole dominion and control over the handgun and that he was knowingly in constructive possession of it. Thus, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of possession of a firearm by a convicted felon. The assignment of error is without merit.
PATENT ERROR REVIEW
Initially, we note that our review for patent error is pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. Code Crim. P. art. 920(2). Accordingly, we note that while the applicable sentencing provision mandates a fine of not less than one thousand dollars nor more than five thousand dollars, the trial court imposed an illegally lenient fine of three hundred dollars. See La. R.S. 14:95.1(B). Although the failure to impose the minimum mandatory fine is error under La. Code Crim. P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the minimum required fine was not raised by the State in either the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
CONVICTION AND SENTENCE AFFIRMED. McDonald, J., concurring with reasons.
I respectfully concur. Although I think the circumstantial evidence that defendant possessed the gun in this case is weak, we are bound by the Captville rule that precludes this court from substituting its appreciation of the evidence for that found by the jury. See State v. Taylor, 14-0432 (La. 3/17/15), 166 So.3d 988, 993, citing State v. Captville, 448 So.2d 676, 680 (La. 1984).