State of Louisiana v. Jerol L. Ewell

• Court: Louisiana Court of Appeal
• Decided: February 28, 2024
• Docket: 55,569-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. 55,569-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JEROL L. EWELL Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 383,515

Honorable Ramona L. Emanuel, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: G. Paul Marx

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

REBECCA ARMAND EDWARDS SENAE DENEAL HALL Assistant District Attorneys

Before ROBINSON, HUNTER, and MARCOTTE, JJ.

HUNTER, J., dissents with written reasons. ROBINSON, J.

Jerol L. Ewell (“Ewell”) was charged with La. R.S. 14:64, armed

robbery, and La. R.S. 14:95.1, felon in possession of a firearm, in connection

with a robbery that took place on December 24, 2019, at a gas station in

downtown Shreveport. Ewell was convicted of the responsive verdict of

first degree robbery, and was found not guilty of felon in possession of a

firearm, after a jury trial on July 12, 2022. Motions for acquittal and new

trial were denied. Ewell was originally sentenced to 15 years at hard labor

without benefits on September 28, 2022, and was subsequently adjudicated a

third felony habitual offender on November 7, 2022. On December 1, 2022,

the trial court set aside the original sentence and sentenced Ewell to 27 years

at hard labor without benefits and with credit for time served. Ewell now

appeals the conviction.

For the reasons set forth below, we AFFIRM the convictions.

FACTS AND PROCEDURAL HISTORY

On December 24, 2019, at approximately 9:15 p.m., Sadi Awawdah

(“Awawdah”) was working behind the register at the Shell gas station

located at 4749 North Market Street in Shreveport, when a masked man

armed with a gun entered the store and demanded money. The robber took

$400 from the register, as well as Awawdah’s iPhone and $96 from

Awawdah. Awawdah described the robber as a black male armed with a

handgun and wearing a grey jacket, blue shirt, and black jeans, shoes,

gloves, and ski mask. Another employee present during the robbery

corroborated Awawdah’s description. According to testimony of the Shreveport Police Department (“SPD”) officer investigating the scene,1

surveillance video footage of the robbery showed the described person come

from the south side of the business from behind a dumpster and enter the

store after a customer left, point a handgun, take money from the register

and Awawdah, take Awawdah’s cell phone, then exit and run north on North

Market. SPD Corporal Stephen Desselle and a canine officer went to the

area where a Find My iPhone app showed Awawdah’s iPhone “pinging” and

located it in a field north of the gas station. Following the discovery of the

phone, a canine area search resulted in the discovery of a ski mask in the

same area. The phone was processed for fingerprinting, but no latent prints

were found. The mask was submitted to the crime lab for DNA analysis.

Dr. Jennifer Esparza (“Dr. Esparza”), the DNA Technical Leader at

the North Louisiana Criminalistics Laboratory, was accepted as an expert in

forensic DNA analysis. Dr. Esparza tested the single-layer fleece mask by

using a cutting from the nose area where it would have been breathed on and

more likely to have rubbed against the wearer. From that cutting, a mixture

of three individuals’ DNA was obtained, including one major contributor

and at least two minor contributors. The major contributor was more

prevalent and allowed for development of a profile, whereas the DNA of the

minor contributors was of such low concentration as to preclude

development of a valid profile. Dr. Esparza explained that mixtures of DNA

are more likely to be found on items of clothing, including masks, and that

DNA is often transferred by washing clothing together. She testified that the

major contributor profile led to an investigative lead from CODIS, the FBI’s

1 The surveillance video was not presented at trial because SPD Detective Belanger had purged it from his files prior to Ewell’s identification in CODIS from the ski mask DNA. 2 Combined DNA Index System, which showed the profile to be consistent

with Ewell’s. Dr. Esparza tested the profile developed from the mask

cutting to Ewell’s reference samples and determined that the profiles were

consistent.

Based on the DNA results, Ewell was arrested on June 11, 2021. A

bill of information was filed on July 28, 2021, charging Ewell with armed

robbery, La. R.S. 14:64. The bill was later amended to add a charge of felon

in possession of a firearm, La. R.S. 14:95.1. Ewell waived formal

arraignment and entered a plea of not guilty on September 27, 2021. A

unanimous jury found Ewell guilty of the responsive verdict of first degree

robbery, La. R.S. 14:64.1, and not guilty of felon in possession of a firearm,

La. R.S. 14:95.1, on July 12, 2022. Motions for acquittal and new trial were

denied and Ewell was sentenced to 15 years at hard labor without benefits on

September 28, 2022. On November 7, 2022, the trial court adjudicated

Ewell a third felony offender, and on December 1, 2022, after setting aside

the original sentence, ordered Ewell to serve a sentence of 27 years at hard

labor without benefits and with credit for time served. Ewell appeals the

conviction.

DISCUSSION

Ewell argues that the State failed to meet its burden of proof that

Ewell committed an armed robbery of the convenience store on December

24, 2019, and only proved that DNA that is consistent with Ewell was one of

three profiles present on a ski mask allegedly worn by the perpetrator. He

claims that the evidence introduced at trial was insufficient to prove beyond

a reasonable doubt that Ewell committed the robbery, when viewed under

the Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 3 (1979), standard. He asserts that the case is solely based on DNA evidence

that made no link to the time and place of the robbery, noting that there had

been no other evidence on the case for approximately five months following

the robbery. Ewell emphasizes Dr. Esparza’s testimony that the fact that

Ewell was the major contributor of DNA did not prove that he was wearing

the mask at the time of the crime.

Ewell cites United States v. Beverly, 750 F.2d 34 (6 Cir. 1984), in

support of the argument that solely DNA at a crime scene is insufficient to

prove identity at a certain time and place. In Beverly, the U.S. Sixth Circuit

Court found that fingerprints on a gun in mere proximity of two men near a

trash can was insufficient to prove that the defendant had constructive

possession of the gun, when two subjects were standing on either side of a

trash can. Ewell urges that the DNA evidence in this case only proves that

at some point a person shed DNA on an item, and cannot prove that a ski

mask found in a field after a robbery was worn by a person at that time and

place; therefore, the evidence was insufficient in this case to prove identity,

a necessary element of the crimes charged.

The State argues that Ewell’s identity as the robber was proved by his

DNA on the ski mask that was discarded along with Awawdah’s iPhone in a

field in close proximity to where the robbery took place, both of which were

found immediately after the robbery. The DNA testing was from the mask’s

nose area where the robber would have most likely left detectable DNA.

Although the DNA found was a combination of a major contributor and at

least two minor contributors, the minor contributor DNA was of such low

concentration that no valid profile could be obtained. The major contributor

DNA from the mask was matched to Ewell through CODIS and confirmed 4 through subsequent testing against his reference samples. The State

recognizes that Dr. Esparza could not say that Ewell wore the mask at the

time of the robbery, but notes that the issue was for the jury to determine.

The State asserts that the jury made a rational decision to convict

Ewell after weighing the evidence available. The jury reasonably inferred

that the DNA of the major contributor would be that of the robber who last

wore the mask and was likely breathing heavily onto it as he fled the

robbery. It rejected as a reasonable hypothesis of innocence the theory that

some unknown, minor contributor, whose DNA was not of sufficient

concentration to develop a profile, may have worn the mask at the time of

the robbery. The State notes its applicable burden of the proof is beyond

reasonable doubt, not beyond all doubt, and the evidence satisfies the

burden. It also urges that sufficiency of the evidence review does not permit

the reviewing court to reweigh the evidence to second-guess the jury’s

determination.

The standard by which appellate courts are to review the sufficiency

of evidence in criminal prosecutions is provided in Jackson, supra, as

follows:

A conviction must be based on proof sufficient for any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

In conducting a Jackson review, the reviewing court may not substitute its

own appreciation of the evidence for that of the trier of fact, assess the

credibility of witnesses, or reweigh the evidence. State v. Pigford, 05-0477

(La. 2/22/06), 922 So. 2d 517; State v. Smith, 94-3116 (La. 10/16/95), 661

So. 2d 442; State v. Nelson, 44,762 (La. App. 2 Cir. 10/28/09), 25 So. 3d

5 905. A jury’s decision to accept or reject the testimony of a witness in

whole or in part is entitled to great deference. State v. Eason, 43,788 (La.

App. 2 Cir. 2/25/09), 3 So. 3d 685, writ denied, 09-0725 (La. 12/11/09), 23

So. 3d. 913, cert. denied, 561 U.S. 1013, 130 S. Ct. 3472 (2010). The fact-

finder weighs the respective credibility of the witnesses, and appellate courts

will generally not second-guess those determinations. State v. Dabney, 02-

0934 (La. 4/9/03), 842 So. 2d 326; State ex rel. Graffagnino v. King, 436 So.

2d 559 (La. 1983). On appellate review, the court does not determine

whether another possible hypothesis suggested by a defendant could afford

an exculpatory explanation of events, but instead must evaluate the evidence

in a light most favorable to the State and determine whether the possible

hypothesis is sufficiently reasonable that a rational juror could not have

found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342,

(La. 10/17/00), 772 So. 2d 78.

The Jackson standard applies in cases involving both direct and

circumstantial evidence. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Prude, 53,193 (La. App. 2 Cir. 3/4/20), 293 So. 3d 183; State v. Hill, 47,568

(La. App. 2 Cir. 9/26/12), 106 So. 3d 617; State v. Henry, 47,323 (La. App.

2 Cir. 7/25/12), 103 So. 3d 424, writ denied, 2012-1917 (La. 3/8/13), 109

So. 3d 356; State v. Williams, 33,881 (La. App. 2 Cir. 9/27/00), 768 So. 2d

728, writ denied, 00-3099 (La. 10/5/01), 798 So. 2d 963. The facts

established by the direct evidence and inferred from the circumstances

established by that evidence must be sufficient for a rational trier of fact to

find beyond a reasonable doubt that the defendant was guilty of every

essential element of the crime. Sutton, supra; State v. Taylor, 28,736 (La.

App. 2 Cir. 10/30/96), 682 So. 2d 827. If a case rests essentially upon 6 circumstantial evidence, that evidence must exclude every reasonable

hypothesis of innocence. La. R.S. 15:438; State v. Young, 20-1041 (La.

5/13/21), 320 So. 3d 356; State v. Alexander, 53,440 (La. App. 2 Cir.

11/18/20), 306 So. 3d 594, writ denied, 20-01449 (La. 6/22/22), 339 So. 3d

642. The circumstantial evidence rule is neither separate from nor stricter

than the Jackson standard of review. Taylor, supra. When the key issue is

the defendant’s identity as the perpetrator, rather than whether the crime was

committed, the State is required to negate any reasonable probability of

misidentification. State v. Hughes, 05-0992 (La. 11/29/06), 943 So. 2d

1047; State v. White, 17-308 (La. App. 1 Cir. 9/15/17), 228 So. 3d 213; State

v. Jefferson, 47,009 (La. App. 2 Cir. 3/7/12), 91 So. 3d 1007, writ denied,

12-0751 (La. 11/2/12), 99 So. 3d 661.

Here, the key issue is Ewell’s identity as the perpetrator rather than

whether the crime was committed, and the State is required to negate any

reasonable probability of misidentification. The State offered several pieces

of evidence that identified Ewell as the robber. He fits the general

description provided by the victim. His DNA is a match to the sole, “major

contributor” DNA found on the ski mask that was previously described by

the victim and seen on the surveillance footage. The ski mask was found

just north of the gas station, the direction in which the perpetrator fled,

immediately following the robbery. The ski mask was also in the same field

as Awawdah’s phone that had just been stolen during the robbery, and was

located by a tracking canine during an area search after the canine officer

had picked up a scent from the phone. The totality of such evidence

excludes every reasonable hypothesis of innocence and negates any

7 reasonable probability of misidentification, proving Ewell as the perpetrator

of the December 24, 2019, robbery.

The jury acted in a rational decision-making process, excluding every

reasonable hypothesis of innocence to find Ewell guilty of the responsive

verdict of first degree robbery. In reviewing the evidence in the light most

favorable to the prosecution, this Court finds that any rational trier of fact

could have found proof beyond a reasonable doubt of each of the essential

elements of the crime of first degree robbery.

CONCLUSION

For the foregoing reasons, this Court AFFIRMS Ewell’s conviction of

first degree robbery.

AFFIRMED.

8 HUNTER, J., dissenting.

I dissent from the majority’s conclusion the evidence was sufficient to

support defendant’s conviction for first degree robbery.

Witnesses reported a “black male” wearing a “ski mask” robbed a

convenience store and discarded the employee’s cellphone in a nearby field.

A ski mask was also discovered in the same area. A mixture of DNA from

three contributors (one major contributor, and two minor contributors) was

found on the ski mask. The sole evidence linking defendant to the crime

was the presence of his DNA on the mask found in the field.

Although defendant’s DNA was discovered on the mask found in the

field, I do not believe the physical evidence was sufficient to tie defendant to

the crime because the State failed to prove the mask found in the field was

the same mask worn by the robber. Additionally, Dr. Jessica Esparza

testified there were “at least three” contributors of DNA on the mask, and

defendant was the “most prevalent individual.” During cross-examination,

Dr. Esparza testified she was unable to determine whether the DNA from the

other contributors was from a male or female because “there [are] so many

contributors.” She also admitted there was no way to determine who wore

the mask on the day of the robbery.

The store clerk provided a vague description of the robber, i.e., “black

male” and a description of the person’s clothing, without providing any

specific details, such as height or weight. Further, there was no

corroborating audio or video evidence from the store or elsewhere, and

investigating officers made no attempt to examine the convenience clerk’s

cell phone for fingerprint or DNA evidence. The sole piece of evidence used to convict defendant was the DNA found on the ski mask, and during

its oral argument before this Court, the State admitted as much.

While the trier of fact in a criminal case is afforded deference in

making credibility determinations regarding witness testimony, this

deference is limited by the bounds of rationality. State v. Hoffman, 20-00137

(La. 10/19/21), 326 So. 3d 232. While “the court is not to substitute its

judgment of what the verdict should be for that of the jury, . . . at the same

time the jury cannot be permitted to speculate if the evidence is such that

reasonable jurors must have a reasonable doubt.” State v. Mussall, 523 So.

2d 1305, 1311 (La. 1988).

While any jury could conclude DNA on a mask found in a field serves

as one of the factors in a criminal conviction, in this instance, it fails to meet

any minimal threshold as the sole basis for a conviction. Viewing this

evidence in the light most favorable to the prosecution fails to garner and

meet the minimum requirements for “beyond a reasonable doubt.” Nor do I

believe the evidence even meets the threshold for clear and convincing or

preponderance of evidence. Accordingly, in the interests of access to court

and judicial efficiency, I would vacate defendant’s conviction and sentence,

immediately remand the accused defendant to the local jail/prison to engage

with counsel, and order the lower court to prepare a timeline for prosecution

with all parties.