State of Louisiana v. Charlie Blow

• Court: Louisiana Court of Appeal
• Decided: February 28, 2024
• Docket: 55,449-KA
• Status: Published

Opinion

Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,449-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

Versus

CHARLIE BLOW Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 390,266

Honorable Erin Leigh Waddell Garrett, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

ROSS STEWART OWEN ALEX L. PORUBSKY Assistant District Attorneys

Before STONE, COX, and STEPHENS, JJ. STEPHENS, J.

This criminal appeal arises out of the First Judicial District Court,

Parish of Caddo, State of Louisiana, the Honorable Erin Leigh Waddell

Garrett, presiding. Defendant, Charlie Blow, was charged by bill of

information with possession of a Schedule II Controlled Dangerous

Substance (“CDS”), a violation of La. R.S. 40:967(C)(1) (“count one”),

possession of a firearm or carrying a concealed weapon by a convicted felon,

a violation of La. R.S. 14:95.1 (“count two”), and illegal carrying of a

firearm while in possession of a CDS, a violation of La. R.S. 14:95(E)

(“count three”). A unanimous jury convicted defendant of all three counts.

He was subsequently sentenced to 18 months at hard labor on count one, 15

years at hard labor and imposition of a fine of $1,000 on count two, and

seven years at hard labor on count three. The sentences were ordered to be

served concurrently with one another and consecutively to any other

sentence. On appeal, defendant asserts insufficiency of the evidence as to

counts two and three and error in the trial court’s jury instructions.

FACTS/PROCEDURAL BACKGROUND

On July 17, 2022, Shreveport Police Officer Anthony Haines

responded to an armed person call at the Fil-A-Sak at 317 Pierre Avenue,

Shreveport, Louisiana. Ofc. Haines was given “a description of a male that

came into the store threatening an attendant and the clerk” and was told that

he was across the street sitting on a concrete step.

Ofc. Haines and another officer noticed that the individual matching

the description was across the street from the Fil-a-Sak. The officers spoke

to defendant who, according to Ofc. Haines, became “pretty aggressive”

toward them. Defendant walked up and advanced in their direction, although he was told to stop and lie on the ground. Eventually defendant

complied and was placed in handcuffs by the officers.

After defendant was in restraints, Ofc. Haines was able to look where

defendant had been sitting; the officers found an open pack of cigarettes

with a glass pipe in it and a black handgun with blue grips sticking out of a

paper bag. Ofc. Haines testified that the paper bag was “within a foot,

probably, of where [defendant] was sitting.” However, Ofc. Haines never

saw defendant in physical possession of the firearm.

According to Ofc. Haines, after he advised defendant of his Miranda

rights, defendant admitted the crack pipe was his, and he had been “holding”

the firearm for a friend, to whom he intended to give the weapon back the

next day. Ofc. Haines testified that defendant’s prior conviction for

domestic abuse, third offense within the past ten years made it a felony for

him to have that gun, and that it was also a felony for him to have the gun

and drugs.

Ofc. Haines stated that defendant was placed under arrest and taken to

the city jail. As defendant was being booked, officers found another crack

pipe in his jeans and a baggie of narcotics later determined to be

methamphetamine in his sock.

On August 18, 2022, the State filed a bill of information charging

defendant with count one—possession of a Schedule II CDS (less than two

grams), methamphetamine, a violation of La. R.S. 40:967(C)(1); count

two—possession of a firearm or carrying a concealed weapon by a convicted

felon, a violation of La. R.S. 14:95.1, and count three—possession of a

firearm or carrying a concealed weapon by a person convicted of domestic

abuse battery, a violation of La. R.S. 14:95.10. The predicate offense upon 2 which the State relied for count two, the La. R.S. 14:95.1 violation, was a

prior aggravated battery conviction from March 13, 2013 (Caddo Parish

Docket No. 312,262), and the predicate offense for count three, the La. R.S.

14:95.10 violation, was a conviction for domestic abuse battery, third

offense, obtained on February 2, 2016 (Caddo Parish Docket No. 337,353).

An amended bill of information was filed by the State on October 22,

2022, omitting count three, the charge involving La. R.S. 14:95.10, but

adding a new charge for count three, one alleging a violation of La. R.S.

14:95(E), an allegation that defendant illegally carried/possessed a firearm

while in possession of a CDS, specifically, methamphetamine. A second

amended bill of information was filed the morning of defendant’s jury trial

on February 5, 2023, maintaining the same charges from the amended bill

but changing the predicate offense for count two, the offense charging a

violation of La. R.S. 14:95.1, from the 2013 aggravated battery conviction

to the 2016 domestic abuse battery, third offense conviction.

After a two-day trial, a unanimous jury found defendant guilty as

charged of all three counts. Motions for a new trial and a post-verdict

judgment of acquittal filed on February 22, 2023, were denied by the trial

court. On February 28, 2023, defendant was sentenced to 18 months as to

count one, 15 years at hard labor without benefits as to count two, and seven

years at hard labor as to count three. The sentences were ordered to run

concurrently with each other but consecutively with any other sentence. No

motion to reconsider was filed. This appeal ensued.

3 DISCUSSION

Sufficiency of the Evidence-Possession of a Firearm by a Convicted Felon

A conviction for possession of a firearm by a convicted felon under

La. R.S. 14:95.1 requires the State to prove the following elements beyond a

reasonable doubt: (1) the defendant was in possession of the firearm; (2) he

was previously convicted of one of the felonies enumerated in La. R.S.

14:2(B); (3) the ten-year statutory period has not passed; and, (4) he had

general intent to commit the offense. La. R.S. 14:95.1; State v. Husband,

437 So. 2d 269 (La. 1983); State v. Hill, 53,286 (La. App. 2 Cir. 3/4/20), 293

So. 3d 104; State v. Drayton, 46,191 (La. App. 2 Cir. 4/13/11), 63 So. 3d

319, writ denied, 11-2343 (La. 6/1/12), 90 So. 3d 430.

As amended on February 5, 2023, the bill of information charged

defendant with being a felon in possession of a firearm, with the predicate

offense being a 2016 domestic abuse battery, third offense. The State

alleged that defendant’s previous conviction for domestic abuse battery-third

offense made it illegal for him to possess a .38 Smith & Wesson pistol. At

trial, the State introduced evidence that defendant had been convicted of

domestic abuse battery, third offense. The State charged that, under La. R.S.

14:95.1, this conviction prohibited him from possessing a .38 Smith &

Wesson pistol on July 17, 2022.

According to defendant, the offense of domestic abuse battery, third

offense, La. R.S. 14:35.3(E), is not a felony within the intendment of La.

R.S. 14:95.1, although there are specific instances of domestic abuse battery

that are enumerated as “crimes of violence” under La. R.S. 14:2(B)(48)

(specifically, La. R.S. 14:35.3(L), (M)(2), (N), (O), and (P)) . Instead, it is

La. R.S. 14:95.10 which prohibits the possession of a firearm or carrying of 4 a concealed weapon by a person convicted, inter alia, of domestic abuse

battery. Specifically, La. R.S. 14:95.10(A)(1) provides that it is unlawful for

any person who has been convicted of domestic abuse battery, La. R.S.

14:35.3, to possess a firearm or carry a concealed weapon.

Thus, the State failed to prove that defendant was convicted of

committing an enumerated felony under La. R.S. 14:95.1 before July 17,

2022, when he allegedly possessed a .38 Smith & Wesson pistol, and the

evidence is insufficient to support a conviction under La. R.S. 14:95.1.1

When a reversal is based on the failure of the evidence to prove an essential

element of the offense charged, the double jeopardy clause of the Fifth

Amendment bars a second trial of the defendant. Burks v. United States, 437

U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); State v. Fontana, 396 So. 2d

1251 (La. 1981). This Court hereby reverses defendant’s conviction for

possession of a firearm by a convicted felon, vacates his sentence for that

conviction, and enters a judgment of acquittal as to that charge.

Sufficiency of the Evidence-Illegal Carrying of a Firearm While in Possession of a Controlled Dangerous Substance

The State alleged that defendant illegally carried a .38 Smith &

Wesson pistol while in possession of CDS on July 17, 2022. According to

defendant, the State failed to prove that he actually possessed the .38 Smith

& Wesson pistol. Defendant asserts that there was insufficient evidence to

prove that he was guilty beyond a reasonable doubt of illegal carrying of a

firearm while in constructive possession of CDS because the State failed to

1 The State concedes that domestic abuse battery, third offense, is not one of the enumerated felonies that will support a conviction under La. R.S. 14:95.1, and that it therefore failed to establish an essential element of the offense of possession of a firearm by a convicted felon. 5 prove a nexus between the .38 Smith & Wesson pistol and the

methamphetamine.

A nexus may be established by: (1) the type of firearm involved; (2)

the type of controlled dangerous substance involved; (3) the quantity of

drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the

firearm is loaded; and (6) any other relevant evidence. State v. Blanchard,

99-3439, p. 9 (La. 1/18/01), 776 So. 2d 1165, 1173; State v. Lattin, 52,127,

p. 6 (La. App. 2 Cir. 9/26/18), 256 So. 3d 484, 489. Defendant points out

that, in this case, the pistol was found in a paper bag about a foot from where

the officers originally saw defendant, who claimed to be holding the gun for

a friend. Less than two grams of personal-use methamphetamine was found

in defendant’s sock when he was booked into the city jail. According to

defendant, there was no evidence that he had the gun when he came into

possession of the drugs, nor was there any evidence he was protecting the

drugs with the gun. He asks this Court to reverse his conviction for illegal

carrying of a weapon while in possession of CDS.

According to the State, defendant was in constructive possession of

the weapon when Ofc. Haines first made contact with him on the night of

July 17, 2022. As the gun was in defendant’s immediate control at the time

of his arrest and while he had narcotics (methamphetamine) hidden in his

sock, the State was not required to establish a nexus between defendant’s

possession of the firearm, which was merely one foot away from him, and

the drugs recovered from his sock.

To prove a defendant guilty of the illegal carrying of a weapon while

in possession of a CDS pursuant to La. R.S. 14:95(E), the State must prove

beyond a reasonable doubt that: (1) the defendant used, possessed, or had 6 under his immediate control any firearm, or other instrumentality

customarily used or intended for probable use as a dangerous weapon; and

(2) this use, possession, or having under his immediate control occurred

while the defendant was in possession of, or during the unlawful sale or

distribution of a CDS.

In State v. Blanchard, 99-3439, p. 5, supra at 1170, the Louisiana

Supreme Court reaffirmed that “possession” under La. 14:95(E) includes

both “actual” and “constructive” possession. Actual possession means

having an object in one’s possession or on one’s person in such a way as to

have direct physical contact with and control of the object. State v. Hill,

53,286 (La. App. 2 Cir. 3/4/20), 293 So. 3d 104; State v. Ruffins, 41,033 (La.

App. 2 Cir. 9/20/06), 940 So. 2d 45, writ denied, 06-2779 (La. 6/22/07), 959

So. 2d 494. Constructive possession of a firearm occurs when the firearm is

subject to the defendant’s dominion and control. State v. Johnson, 03-1228

(La. 4/14/04), 870 So. 2d 995, 998; State v. Hill, supra; State v. Ruffins,

supra.

At trial, Ofc. Haines testified that defendant was sitting on a concrete

step in a vacant lot across from the Fil-A-Sak store. Ofc. Haines observed a

black handgun with blue grips sticking out of a brown paper bag one foot

from where defendant was seated. The gun contained four live rounds when

it was recovered and, per defendant’s post-Miranda admission, was in his

possession because he was “holding it for a friend.”

According to the State, it doesn’t matter whether defendant was

“holding [the weapon] for a friend and intending to return it the next day—

he was in constructive possession of the gun when Ofc. Haines initially

made contact with him, and the weapon was within defendant’s immediate 7 control. The evidence further shows that defendant was in constructive

possession of the gun at the time he was also in actual possession of the

methamphetamine that was hidden in his sock. Defendant was in the

presence and sight of the police officers from the time of his arrest, which

occurred immediately upon Ofc. Haines finding the firearm just one foot

away from defendant, until the baggie of (what was later confirmed to be)

meth was discovered in his sock during booking at the city jail. The jury

was reasonable in deducing, based on the above evidence, that the drugs

hidden in defendant’s sock were on his person when he was also in

possession of the firearm. The State urges that, viewing the evidence in the

light most favorable to the prosecution, it established that defendant was

guilty of the illegal carrying of a firearm while in the possession of a

Schedule II CDS beyond a reasonable doubt.

The State was not required to establish a nexus between defendant’s

simultaneous possession of the firearm and the drugs hidden in his sock as

the firearm was in defendant’s immediate control when Ofc. Haines first

observed defendant sitting on the concrete steps. As held by the Louisiana

Supreme Court in State v. Blanchard, the prosecution is only required to

show a nexus when the firearm is not within a defendant’s physical

possession or immediate control. Id. at p. 9, 776 So. 2d 1165, 1173. See

also, State v. O’Brien, 17-922, p. 17 (La. App. 3 Cir. 4/4/18), 242 So. 3d

1254, 1267, writ denied, 18-0663 (La. 2/18/19), 265 So. 3d 769. The

defendant in State v. O’Brien, supra, like the defendant in this case, was not

in actual possession of the firearm, but had it within his arm’s reach when he

was apprehended by the police. Id. at p. 2, 242 So. 3d at 1259. An item

may be construed as being in a defendant’s immediate control if it is in the 8 area from within which he might gain possession of a weapon or destructible

evidence or within arm’s reach of the defendant’s person. Id. at p. 17, 242

So. 3d at 1267.

In the instant case, the .38 caliber Smith & Wesson firearm recovered

at the time of defendant’s arrest was within his immediate control as it was a

mere one foot away from him. As noted above, Ofc. Haines observed a

black handgun with blue grips sticking out of a brown paper bag when he

first encountered defendant. The proximity of the firearm to defendant

placed it within defendant’s arm’s reach. Defendant affirmed his awareness

of the firearm and his general intent to possess it when he admitted to the

officer that he was “holding it for a friend.” See, State v. Lattin, supra at 6,

256 So. 3d at 489; State v. Heard, 46,230 (La. App. 2 Cir. 5/18/11), 70 So.

3d 811. Therefore, the State was not required to prove that a nexus existed

between defendant’s simultaneous possession of the weapon and possession

of the drugs. Defendant’s second assignment of error has no merit.

Trial Court’s Failure to Instruct Jury

In his final assignment of error, defendant contends that the trial court

erred in not instructing the jury that the State had to prove a nexus between

the pistol and the drugs recovered from defendant’s sock at the city jail.

However, the facts presented at trial by the State through the testimony of

Ofc. Haines were that the firearm was within the defendant’s immediate

control. Therefore, such an instruction was not warranted. If given, it would

have caused unnecessary confusion to the jury. This assignment of error is

without merit.

9 CONCLUSION

For the reasons set forth above, defendant Charlie Blow’s conviction

for count two—possession of a firearm by a convicted felon is reversed, his

sentence for count two—possession of a firearm by a convicted felon is

vacated, and he is hereby acquitted of that charge. Defendant Charlie

Blow’s convictions and sentences for count one—possession of Schedule II

CDS (less than 2 grams) and count three—illegal carrying of a weapon

while in possession of CDS are affirmed.

REVERSED AND VACATED IN PART; AFFIRMED.