Opinion
NO. 2016 KA 1527
06-02-2017
STATE OF LOUISIANA v. CLAYTON WILSON
Bruce G. Whittaker New Orleans, Louisiana Counsel for Defendant/Appellant Clayton Wilson Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. 07-15-0442 The Honorable Richard D. Anderson, Judge Presiding Bruce G. Whittaker
New Orleans, Louisiana Counsel for Defendant/Appellant
Clayton Wilson Hillar C. Moore, III
District Attorney
Dylan C. Alge
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
Defendant, Clayton Wilson, was charged by bill of information with carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1 (count 1), and armed robbery, a violation of La. R.S. 14:64 (count 2). He pled not guilty and, following a jury trial, was found guilty as charged on count 1 and not guilty on count 2. Defendant filed a motion for postverdict judgment of acquittal, which the trial court denied. The trial court subsequently sentenced defendant to fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court denied defendant's motion to reconsider this sentence. Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm the conviction and sentence.
FACTS
On May 20, 2015, defendant entered the Winn Dixie grocery store on Siegen Lane in Baton Rouge, approached the liquor section, and retrieved two bottles of tequila. After doing so, defendant lifted his shirt and used it to conceal one of the bottles in his pants. The store's customer service manager, Penny Ireland, had observed defendant's behavior and alerted her store manager, John Boudreaux, who watched defendant via surveillance monitors located in the rear of the store. Ireland began to approach defendant, and defendant walked to the front of the store. He placed the second bottle of tequila onto one of the store's registers, informing Ireland that he no longer had it. Defendant then exited the store.
Ireland followed defendant as he exited the store, and she took a picture of defendant's truck and license plate. Accompanying Ireland out of the store were Boudreaux and two other employees, Jarrett Campbell and Altoris Jordan. All four of the Winn Dixie employees testified at trial. They described that though defendant initially walked away, he eventually turned back toward them and wielded a distinctive, 4-6" wooden-handled knife with a slot in the blade. While some of the employees were unable to state where defendant pulled the knife from, Campbell specifically testified that defendant pulled it from his front right pocket. As defendant waved the knife at the employees, he made a statement to the effect of: "I'm about that life. I'll cut all of you." Defendant eventually fled in a green Chevrolet pickup truck with a tool box and ladder rack in its bed. Boudreaux identified defendant in a photographic lineup with fifty-percent certainty. Ireland was unequivocal about her identification of defendant. Based on these identifications, East Baton Rouge Parish Sheriff's Sergeant Patrick Roberts secured an arrest warrant for armed robbery.
Each witness gave a slightly differing version of defendant's statement.
Around 10:45 p.m. on May 22, 2015, Sergeant Steven Williams was conducting a business check at Pride Library. In doing so, he noticed a green truck parked in the rear of the library with a person sleeping inside. Sergeant Williams asked the occupant to exit the vehicle and for his identification. Sergeant Williams identified the individual as defendant, and he was informed that defendant had an outstanding arrest warrant for armed robbery. Sergeant Williams handcuffed defendant, informed him of his Miranda rights, and asked defendant if he had anything on him. Defendant answered that he had a knife in his front pocket. Sergeant Williams retrieved the knife, which was a folding knife with a brown wood handle and a blade with several holes in it. Some of the Winn Dixie employees testified at trial that the knife retrieved by Sergeant Williams appeared to be the same knife defendant used at the time of the earlier incident.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The state also presented evidence that defendant had a June 13, 2012 conviction for possession of cocaine. Defendant did not testify at trial.
INSUFFICIENT EVIDENCE
In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to support his conviction. While defendant does not controvert the facts of the case, he argues that "a mere folding pocket knife" is not a weapon as a matter of law and that he cannot be said to have been "carrying" the knife.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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 beyond a reasonable doubt. See 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 factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
In pertinent part, La. R.S. 14:95.1(A) makes the carrying of a concealed weapon unlawful for a person who has been convicted of a felony under the Uniform Controlled Dangerous Substances Law. Possession of cocaine is a felony-grade violation of the Uniform Controlled Dangerous Substances Law. See La. R.S. 40:967(C)(2). Defendant does not dispute that he possessed the knife, or even that he concealed it, but argues primarily that the knife could not be classified as a weapon. As a secondary argument, defendant contends that because he was asleep at the time he was discovered by Sergeant Williams, he cannot be said to have been "carrying" the weapon.
As support for his contention that the folding knife was not a weapon, defendant cites State v. Garlepied, 454 So.2d 1147, 1149 (La. App. 4th Cir.), writ denied, 462 So.2d 189 (La. 1984), and State v. Pye, 225 La. 365, 72 So.2d 879 (1954). In Pye, 225 La. at 366, 72 So.2d at 879 (citing State v. Davis, 214 La. 885, 887, 39 So.2d 164, 165 (1949)), the Supreme Court stated that the gravamen of the offense of illegal carrying of a weapon is the concealment on one's person of an instrumentality customarily used as a dangerous weapon, and not the carrying of an instrument which might be so used. Accordingly, the Pye court annulled and set aside the conviction and sentence of the defendant for illegal carrying of a weapon as a result of his carrying of a pocket knife. In Garlepied, 454 So.2d at 1149, the Fourth Circuit cited Pye for the proposition that "the ordinary pocket knife . . . might well be held not a weapon in the ordinary sense." However, that court found the instrumentality at issue in its own case -a switchblade-unquestionably constituted a weapon because it is designed for no other purpose than instant opening for readiness for use in offensive or defensive combat.
Defendant's reliance on Pye is misplaced. Louisiana Revised Statutes 14:95 has been amended since Pye to prohibit the concealment of other instrumentalities "intended for probable use as a dangerous weapon," rather than just those "customarily used" in such a way, casting some doubt on Pye's categorical holding that an ordinary pocket knife cannot be a dangerous weapon. See La. R.S. 14:95(A)(1) (as amended by 1958 La. Acts No. 379, § 1). Therefore, Pye and Garlepied's citations to that provision are unpersuasive.
In the instant case, the knife itself was described by witnesses as a 4-6" folding knife with a wooden handle and holes or slots in the blade. Moreover, as demonstrated by one of the Winn Dixie employees, the knife could be, and was, quickly flicked open to a usable state. Finally, the state presented evidence that defendant actually used the knife to threaten the Winn Dixie employees and facilitate his escape. This court has had an opportunity to examine the knife submitted into evidence, and we find that under the facts of this case, it is unquestionably a weapon. Therefore, the state presented sufficient evidence, which was believed by the jury, to establish that the knife was indeed a weapon.
As a secondary argument, defendant contends that while he may have "possessed" the knife while he was sleeping, he cannot be said to have been "carrying" it. Defendant cites no support for this position, and we find it to be a distinction without a difference. Further, as the state points out, the jury may have concluded that defendant carried and concealed the knife either at the time of the Winn Dixie incident on May 20, at the time of his arrest on May 22, or both. The bill of information alleges this offense to have occurred between May 20 and 22, 2015, so either finding would have been allowable and sufficient.
When a case involves circumstantial evidence and the factfinder reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). We find no such hypothesis exists in the instant case. Further, in reviewing the evidence, we are unable to say that the jury's determination was irrational under the facts and circumstances presented to it. 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 factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the factfinder. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law, See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814, *4 (per curiam).
Viewed in the light most favorable to the state, and to the exclusion of every reasonable hypothesis of innocence, the evidence presented at trial supports the conviction for unlawful carrying of a concealed weapon by a convicted felon.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In his remaining assignment of error, defendant contends that his sentence is unconstitutionally excessive. He argues that the circumstances of his crime warrant a minimum sentence.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it will not be set aside as excessive absent an abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
The goal of La. Code Crim. P. art. 894.1 is to have the sentencing court articulate a factual basis for the sentence, not rigid or mechanical compliance with the article's provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. See State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
Whoever commits the crime of carrying a concealed weapon by a convicted felon shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and fined not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). The trial court imposed a mid-range sentence of fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence.
This sentence is illegally lenient because it fails to include the mandatory fine. However, the absence of this fine is inherently non-prejudicial to defendant, and neither defendant nor the state complain about it on appeal. As a result, we decline to correct this error. 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. --------
Prior to defendant's sentencing, the trial court ordered a presentence investigation report ("PSI"), which it relied upon in crafting the sentence. The PSI detailed defendant's personal history and extensive criminal record, which the trial court first recited and then summed up as follows:
The court has for its consideration a 56 year old ninth felony offender. The defendant is a career criminal. That's putting it mildly. His criminal career began at age 16. He's been arrested more than 50 times as an adult. He's been on supervision nine times. The defendant has only completed parole supervision satisfactorily two times. The defendant repeatedly absconded supervision and reoffended each time he was placed on supervision. The defendant was on parole supervision at the time of the instant arrest and his parole was
revoked. He is currently serving time in D.O.C. and was eligible for diminution of sentence on June 23rd, 2016. The Office of Probation and Parole recommends the maximum sentence allowed by law.In opting not to impose the maximum sentence as recommended in the PSI, the trial judge noted that the weapon at issue was a knife, not a gun, which it found mitigating.
Considering the totality of the circumstances, including those of the instant case, defendant's personal history, and defendant's extensive criminal record, we conclude that the trial court did not err or abuse its discretion in imposing a mid-range term of imprisonment in this case. Defendant's past conduct of repeated criminality indicates that he poses an unusual risk to the public safety and could have warranted a maximum sentence had the trial court chosen to impose such a sentence. See State v. Miller, 96-2040 (La. App. 1st Cir. 11/7/97), 703 So.2d 698, 701-02, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459. The instant sentence is not excessive.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.