State v. Dixon

732 So. 2d 1250, 98 La.App. 3 Cir. 1868, 1999 La. App. LEXIS 1340, 1999 WL 274789
CourtLouisiana Court of Appeal
DecidedMay 5, 1999
DocketNo. 98-1868
StatusPublished

This text of 732 So. 2d 1250 (State v. Dixon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dixon, 732 So. 2d 1250, 98 La.App. 3 Cir. 1868, 1999 La. App. LEXIS 1340, 1999 WL 274789 (La. Ct. App. 1999).

Opinion

LAMY, Judge.

The defendant was convicted of assault by drive-by shooting, a violation of La.R.S. 14:37.1. She was subsequently sentenced to five years at hard labor. On appeal, the defendant contends that the evidence presented at trial was insufficient to support her conviction and that the sentence imposed is excessive. We affirm.

Factual and Procedural Background

This appeal stems from a December 28, 1996 drive-by shooting in Alexandria, Louisiana. The incident occurred at the corner of 16 th and Levin Streets where several people were gathered. According to the trial testimony of Kenneth Piper, the defendant, Deneice Dixon, had been in the area earlier in the day, had a discussion with an individual referred to as Freddie Boo, and left the area in her vehicle. Piper stated that the defendant later returned to the area in her vehicle and was accompanied by three men with bandanas over their faces. He testified that the car arrived at the area, left momentarily, and then returned. On the second approach, the car stopped and several shots were fired from the car. The record indicates that Marcus HPennywell sustained a gunshot wound to the leg and was taken to a nearby hospital.

Dixon was charged by bill of information, as a principal, with assault by drive-by shooting, a violation of La.R.S. 14:37.1. See also La.R.S. 14:24. On July 25, 1997, the defendant waived formal arraignment and entered a plea of not guilty. Following a September 24, 1998 jury trial, the defendant was found guilty. The trial court sentenced Dixon to serve five years at hard labor. This sentence was imposed with credit for time served. A subsequently filed motion to reconsider sentence was denied.

Dixon appeals assigning the following as error:

1. The evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to sustain a verdict of guilty as charged.
2. The sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, ■§ 20 of the Louisiana Constitution of 1974.

Discussion

Sufficiency of the Evidence

In this first assignment of error, the defendant contends that the witness testimony identifying her as the driver of the car, namely that of Marcus Pennywell and Kenneth Piper, is not credible. Dixon maintains that inconsistencies in their testimony and their criminal records render them unreliable witnesses. Furthermore, the remaining witness testified only that she saw Dixon’s car driving from the scene and that she did not see the driver. The defendant contends that, without corroborating evidence, this witness testimony is insufficient to support her conviction.

EThe elements of assault by drive-by shooting are set forth in La.R.S. 14:37.1 as follows:

A. Assault by drive-by shooting is an assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault.
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C. As used in this Section and in R.S. 14:30(A)(1) apd 30.1(A)(2), the term “drive-by shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to Mil, cause harm to, or frighten another person.

Furthermore, La.R.S. 14:24 provides the following definition of “principal”:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit [1252]*1252the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

As explained by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), when sufficiency of the evidence is at issue on appeal, an appellate court must view the evidence in a light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. “The rational factfinder standard of Jackson v. Virginia ... allows an appellate court to impinge on ‘the actual factfinder’s discretion ... only to the extent necessary to guarantee the fundamental protection of due process of law.’ ” State v. Juluke, 98-0341, p. 4 (La. 1/8/99); 725 So.2d 1291, 1293. Furthermore, the Louisiana Supreme Court has explained that, since the Jackson standard has a limited purpose, it does not permit a reviewing court to second guess the rational credibility determinations of the factfinder. Id. citing State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983).

LOfficer MacArthur Stevenson of the Alexandria Police Department testified that, on the night of incident, he was dispatched to the hospital in reference to a possible assault. He stated that he was directed to Marcus Pennywell as the victim of the shooting and that, although he didn’t extensively question him, Pennywell described the car as “a big white older model vehicle.” The matter was turned over to a detective.

Detective Rodney Howard, an investigator with the Alexandria Police Department, stated that he was assigned to the case the following day and that he initially began to look for a beige or white vehicle. He stated that he interviewed Pennywell and two other witnesses, Kenneth Piper and Derrick Ross, as part of his investigation. Detective Howard testified that, although his investigation did not reveal the identity of the shooter, he obtained a warrant for Dixon’s arrest due to information received from the witnesses.

The State also presented the testimony of Kenneth Piper, a witness in the area of 16th Street and Levin Street at the time Marcus Pennywell was shot. He testified that, prior to the shooting, he saw the defendant and a man referred to as Freddie Boo having a discussion. Piper stated that the defendant left the area upset and that he heard her say that she would be back. He also stated that Dixon said that she was “going to get her brother to handle that or something. She’ll be back.”

Piper testified that he saw Dixon later in her car and that she was accompanied by three men whose faces were covered with blue bandanas. Piper described the car as beige in color, but that it could appear white at night. He testified that he had previously seen Dixon in the car and that he had gone to school with her. Piper stated | Bthat upon returning, the car pulled up to the area and stopped. He said that Dixon was driving the vehicle and that there was no doubt in his mind at all as to her identity. He said that the car left, went around the block, and that upon returning, four or five shots were fired. Piper stated that, before the shots were fired, he could see that the defendant was the driver. After the shots were fired, the car left the .area at a high rate of speed. Piper stated that Pennywell “came limping from around the house saying he was shot....” Piper then took Pennywell to the hospital.

Further, Marcus Pennywell testified that on the night he was struck by the bullet, he was standing on the sidewalk with Piper, Ross, and several others. He said that there were eight or nine shots fired and that there were no other cars in the area.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Captville
448 So. 2d 676 (Supreme Court of Louisiana, 1984)
State v. Hogan
480 So. 2d 288 (Supreme Court of Louisiana, 1985)
State v. Bonanno
384 So. 2d 355 (Supreme Court of Louisiana, 1980)
State v. Juluke
725 So. 2d 1291 (Supreme Court of Louisiana, 1999)
State Ex Rel. Graffagnino v. King
436 So. 2d 559 (Supreme Court of Louisiana, 1983)
State v. Lambert
720 So. 2d 724 (Louisiana Court of Appeal, 1998)
State v. Square
433 So. 2d 104 (Supreme Court of Louisiana, 1983)
State v. Smith
433 So. 2d 688 (Supreme Court of Louisiana, 1983)
Fotopoulos v. State
608 So. 2d 784 (Supreme Court of Florida, 1992)
State v. Rachal
703 So. 2d 678 (Louisiana Court of Appeal, 1997)

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Bluebook (online)
732 So. 2d 1250, 98 La.App. 3 Cir. 1868, 1999 La. App. LEXIS 1340, 1999 WL 274789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dixon-lactapp-1999.