State of Louisiana v. Ernest D. Cain

• Court: Louisiana Court of Appeal
• Decided: November 4, 2009
• Docket: KA-0009-0390
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-390

STATE OF LOUISIANA

VERSUS

ERNEST D. CAIN

********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 290,950 HONORABLE THOMAS MARTIN YEAGER, PRESIDING **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

REVERSED.

Sheryl Laing, ADA P.O. Box 1472 Alexandria, LA 71301 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana

Thomas Davenport The Davenport Firm 1628 Metro Drive Alexandria, LA 71301 (318) 445-9696 COUNSEL FOR DEFENDANT-APPELLANT: Ernest D. Cain COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On February 17, 2008, Deputy Scotty Paul of the Rapides Parish Sheriff’s

Department drove out to the home of Wilton Friday to investigate Mr. Friday’s

complaint involving Defendant, Ernest D. Cain, his half brother. Mr. Friday reported

that Defendant fired a gun earlier that day and the bullet grazed the trees near Mr.

Friday’s residence. On that date, Defendant resided in a tent located on the back five

acres of the property, about eight hundred yards from Mr. Friday’s residence.

When Deputy Paul drove up to Defendant’s campsite to investigate Mr.

Friday’s complaint, Defendant stepped out from beside his truck and fired a shot in

the air. Deputy Paul then arrested Defendant without incident.

Defendant was charged by bill of information with illegal use of a weapon, first

offense, a violation of La.R.S. 14:94, for the shot fired in the air when Deputy Paul

arrived. Following a jury trial, Defendant was found guilty as charged. Defendant

was subsequently sentenced to serve two years at hard labor, suspended, and ordered

to pay a fine of $500.00 and $241.50 in court costs by December 1, 2008. The default

sentence for failure to pay the fine and costs by that date was six months in the parish

jail. The trial court also ordered two years of supervised probation.

As a condition of probation, Defendant was not to be in possession of a firearm

or ammunition during the two-year probation period. A monthly supervision fee of

$60.00 was ordered and Defendant was ordered to submit to random drug testing, to

abide by a curfew of 10:00 p.m. until 6:00 a.m., refrain from consuming alcoholic

beverages and controlled dangerous substances, refrain from entering a bar, lounge

or casino, reimburse the Public Defender $250.00 and attend and successfully

-1- complete substance abuse treatment. Lastly, the trial court ordered the forfeiture and

destruction of the weapon seized from Defendant.

Defendant did not make or file a motion to reconsider sentence. He is now

before this court on appeal, asserting four assignments of error which challenge both

his conviction and sentence. For the following reasons, we find Defendant’s

conviction and sentence should be reversed.

ANALYSIS

Defendant argues the evidence is not sufficient to support his conviction. We

will address this assignment of error first in the event the Defendant is entitled to an

acquittal. State v. Hearold, 603 So.2d 731 (La.1992). “When the entirety of the

evidence, including inadmissible evidence which was erroneously admitted, is

insufficient to support the conviction, the accused must be discharged as to that

crime, and any discussion by the court of the trial error issues as to that crime would

be pure dicta since those issues are moot.” Id. at 734.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

-2- The illegal use of a weapon is defined in La.R.S. 14:94 as the intentional or

criminally negligent discharge of a firearm where it is foreseeable that it may result

in death or great bodily harm to a human being. In the instant case, Defendant argues

it was not foreseeable that the warning shot would or could result in death or great

bodily harm to a human being. Further, Defendant maintains the uncontradicted

evidence shows there was no death or great bodily harm and there was no showing

made that firing in the air could have had such consequences. Lastly, Defendant

contends the act of firing in the air, in itself, negates the inference or conclusion that

he had no regard for consequences giving rise to general intent.

At trial, Wilton Dean Friday, testified Defendant, who was his half-brother,

was living in a tent on the back five acres of property that the two men had inherited.

Defendant’s tent was located about eight hundred yards from Mr. Friday’s house

which was located on the front part of the property. On February 17, 2008, Mr.

Friday called the Rapides Parish Sheriff’s Department to investigate an alleged

gunshot he heard shortly after he and his wife arrived home from the hospital.

Deputy Scotty Paul was dispatched to the scene. Mr. Friday asked Deputy Paul to

speak to Defendant, as he believed this was where the gunshot came from. Soon

thereafter, Mr. Friday heard a shot and Deputy Paul returned with news that he had

arrested Defendant.

On cross-examination, Mr. Friday maintained he was clear about what he heard

that night although he was taking pain medication when he was released from the

hospital. He was not sure, however, of the last time he had taken pain medication

before he was discharged that day. Mr. Friday denied having a conversation with the

Defendant on the morning of February 17, 2008, wherein he told Defendant he was

-3- heavily medicated because of his surgery. On redirect, Mr. Friday testified that he did

not take his pain medication on a regular basis and only took it as needed.

Deputy Paul testified that he investigated a report of gunshots on February 17,

2008. Mr. Friday advised him that Defendant was camped out in the pasture and he

believed Defendant had fired a shot earlier. Deputy Paul then drove out to where

Defendant’s tent was set-up and as he approached the tent, Defendant stepped out

from beside his truck with a black pistol in his hand, a Glock 9 millimeter, automatic,

and fired one shot in the air. Deputy Paul exited his vehicle, drew his weapon and

ordered the Defendant to put down the gun and lay down on the ground. Defendant

immediately cooperated with Deputy Paul’s order, was then handcuffed, patted down

for weapons and placed in the unit.

According to Deputy Paul, Defendant appeared intoxicated. When he asked

the Defendant if he had anything to drink, the Defendant stated that he was “drunk.”

Defendant had no explanation as to why he fired the shot and there was no one else

around.

On cross-examination, Deputy Paul testified Defendant was facing toward Mr.

Friday’s house when he fired straight up into the air. Deputy Paul did not know

where the bullet went from there. He was still in his unit when he saw the flash and

did not hear the bullet hit anywhere. The bullet impact did not cause Deputy Paul to

flinch or take cover.

Defendant testified that on February 17, 2008, he saw Mr. Friday at 10:00 a.m.

with his arm in a sling. Defendant asked Mr. Friday what had happened and Mr.

Friday reported that he had surgery. According to Defendant, Mr. Friday appeared

heavily medicated. At about 8:00 p.m., Defendant was listening to the radio when a

vehicle came through the gate that was supposed to be closed. He immediately

-4- became alarmed when the vehicle proceeded through the gate without stopping to

open the gate. When the vehicle was ten to fifteen feet from his truck, the Defendant

noticed that it was a police car. Defendant initially stated that a shot was not fired at

that time.

Defendant did admit to firing a shot at about 6:00 p.m. when his other half

brother, Truman Friday, had approached the area. Defendant explained that Mr.

Friday had asked him to help watch his property because people were stealing from

him and shooting at his house, and at that time, he was not home. According to the

Defendant, Truman pulled up to the gate, stopped his vehicle and sat there for about

five minutes. Defendant was not aware that it was Truman, so when Truman did not

get out of the vehicle or blow his horn, Defendant fired a warning shot in the air.

Defendant maintained the shot did not impact Mr. Friday’s house.

Defendant admitted he had been drinking alcoholic beverages that day and

testified he was celebrating his graduation from a three-week, high plane-training

course put on by the International Contractor’s Association. Defendant stated he

consumed a half-liter bottle of wine over approximately four to five hours.

On cross-examination, Defendant testified prior to firing the shot at 6:00 p.m.,

he was concerned that Mr. Friday was in the house and was unable to come to the

door because he was “knocked out” by pain medication. Defendant reiterated that

Mr. Friday had complained about people stealing from him and had asked Defendant

several times to watch the place for vehicles and people. According to Defendant, he

fired a shot to warn the intruder and to possibly wake up Mr. Friday. Defendant

testified it was dark and there were no streetlights. The only illumination was from

the front windows on Mr. Friday’s porch, just enough light to see that a white vehicle

had pulled up.

-5- With regard to Deputy Paul’s testimony that Defendant fired a shot upon his

arrival, Defendant maintained that Deputy Paul was fabricating the truth or lying.

Defendant asserted Mr. Friday and Deputy Paul were lifelong acquaintances and

alleged the lie was a favor to Mr. Friday. Defendant also testified Mr. Friday

fabricated the fact that Defendant fired a shot when he drove up.

Defendant also testified he was scared for his life because he did not know that

it was a police car. Defendant maintained if Deputy Paul would have turned on the

lights or PA system, he would have believed it was a police car. Defendant assumed

someone had come to harm him considering it was private property with a history of

trouble with drug dealers, informants and hunters. Although Defendant was afraid,

he did not fire a shot, “[b]ecause you don’t fire shots at people, and I had already fired

one shot already as a warning.”

On appeal, Defendant no longer denies he fired the weapon in the presence of

Deputy Paul which was heard by Mr. Friday. Instead, Defendant challenges the

foreseeability of his actions. Defendant contends it was not foreseeable that firing a

shot in the air would or could result in death or great bodily harm to a person because

there was no evidence that death or great bodily harm could result from his actions

or that firing in the air could have resulted in death or great bodily harm. Lastly,

Defendant contends the act of firing in the air, in itself, negates the inference or

conclusion that he had no regard for consequences giving rise to general intent.

In State v. Powell, 95-424 (La.App. 3 Cir. 11/2/95), 664 So.2d 608, this court

was faced with a similar situation. The defendant was charged under La.R.S.

14:94(E), which amongst other elements, the State had to prove that considering the

time and place, it was foreseeable that death or great bodily harm might occur to

another person. In Powell, the defendant drove by a residence and fired three to four

-6- shots from a .25 semi-automatic pistol. At the time the pistol was fired, four adults

and a few children were in and around the front yard of the residence. The shots,

however, were aimed in a direction opposite that of the residence, and, thus, the court

concluded that it was not foreseeable that death or great bodily harm might occur.

In State v. Ordner, 06-1054 (La.App. 3 Cir. 2/14/07), 951 So.2d 508, writ

denied, 07-587 (La. 10/26/07), 966 So.2d 572, however, this court held it was

foreseeable that discharge of a weapon, including shooting in the air, could result in

death or great bodily harm. The defendant in Ordner was charged with illegal use of

weapons and aggravated battery. On the evening in question, the defendant went to

a party on a river where at least twenty-five to fifty young people were in attendance.

The defendant had been drinking and brought a loaded gun to the party. Not long

after his arrival, the defendant was approached by four men. In an attempt to stop a

physical altercation, the defendant fired a shot in the air and the men took off running.

The defendant, however, fired his gun two more times, even though the threat was

over, striking and injuring a man who was trying to convince the defendant to put his

weapon away and was never shown to have been a threat to the defendant. The court

also observed that the State was required to show criminal negligence, not intent, for

the illegal use of a weapon, and found the defendant was criminally negligent in

firing the gun, regardless of his intention.

Like the defendant in Ordner, the Defendant was intoxicated, by his own

admission, when he fired his weapon. However, unlike in Ordner, where the

defendant there brought a loaded weapon to a party, Defendant in this case was on his

own property, alone. Further, Defendant fired his gun only once and immediately

cooperated with Deputy Paul after ascertaining he was a police officer. Ordner, after

initially firing his gun once to stop an altercation, continued to fire his gun several

-7- more times after the threat was over. Therefore, the Ordner case is factually

distinguishable from the facts presented here.

Further, the record is void of evidence that one could foresee Defendant’s

actions could result in death or great bodily harm. According to Deputy Paul, there

was no one else around. Defendant was facing toward Mr. Friday’s house, but fired

straight up into the air, not in the direction of Mr. Friday’s home or in the direction

of Deputy Paul’s person or vehicle. There is no evidence Defendant pointed the

weapon at anyone or anything when he fired it in Deputy Paul’s presence. Deputy

Paul was still in his vehicle and testified he did not hear or see where the bullet came

down and the bullet impact did not cause him to flinch or take cover.

Additionally, Defendant and Mr. Friday lived on land composed of many acres,

with Defendant living on the back five acres of the jointly owned property. The

record indicates there were trees on the property and Defendant and Mr. Friday and

his wife were the only residents on the property. As such, the likelihood that the

bullet Defendant fired in the air would hit anyone was negligible and unlikely to

cause bodily harm or death.

Therefore, we find the State did not meet the burden of proving it was

foreseeable that Defendant’s shot fired into the air could have resulted in death or

great bodily harm as required by La.R.S. 14:94. Accordingly, the evidence was

insufficient and the Defendant’s conviction and sentence are reversed. Discussion

of the remaining assignments of error is pretermitted.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence for illegal use

of a weapon is reversed.

-8-