State v. Major

604 So. 2d 137, 1992 WL 143549
Louisiana Court of Appeal·Decided June 24, 1992·No. 23,843-KA·Published·Cited by 9 cases

Opinion

604 So.2d 137 (1992)

STATE of Louisiana, Appellee,
v.
John H. MAJOR, Appellant.

No. 23,843-KA.

Court of Appeal of Louisiana, Second Circuit.

June 24, 1992.

*138 Indigent Defender Office, by John M. Lawrence, Chief Counsel, Shreveport, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Mark A. Perkins, Asst. Dist. Atty., Shreveport, for appellee.

Before HIGHTOWER, VICTORY and BROWN, JJ.

VICTORY, Judge.

Defendant, John H. Major, was convicted by a jury of two counts of possession of a *139 firearm by a convicted felon, in violation of LSA-R.S. 14:95.1. He was sentenced to serve six and one-half years at hard labor on each of the two counts, the sentences to run concurrently. On appeal, defendant argues (1) that the trial court erroneously denied a defense motion for new trial contending that the evidence was insufficient to support the convictions, and (2) that the sentence imposed is unconstitutionally excessive. For the following reasons, the convictions and sentence are affirmed.

FACTS

On May 21, 1990, a Shreveport policeman located a stolen car, which had been purchased for scrap from the defendant, at Pipes Auto Shredder. In the process of investigating defendant's criminal record, the officer also checked the pawn system, discovering an April 12, 1990 transaction in which the defendant pawned a Rossi .38 caliber Interarms revolver (Rossi) and a November 22, 1989 transaction in which defendant pawned a Marlin .22 caliber rifle (Marlin). The Rossi was pawned at Max's Pawn Shop in Shreveport and the Marlin at Brittain's in Shreveport. The Marlin was apparently redeemed from Brittain's and again pawned by the defendant to Max's on February 19, 1990. The arresting officer secured the original pawn tickets for each transaction and a photocopy of the defendant's driver's license. Comparing the pawn tickets and license, the officer concluded that the signatures matched.

The defendant was arrested on June 7, 1990 and charged with illegal possession of stolen things and with two counts of possession firearms as a convicted felon, based on a February 1987 conviction of simple burglary. Count I represented the February 19, 1990 pawn of the Rossi revolver and Count II represented the April 12, 1990 pawn of the Marlin rifle. At the time of the arrest, defendant admitted he pawned the weapons, but that he did so as favors to friends and that he did not personally handle the weapons.

On April 3, 1991, defendant was convicted by a jury on both counts of possession of a firearm by a convicted felon, and later sentenced to six and one-half years at hard labor on each conviction, the sentences to run concurrently.

SUFFICIENCY OF THE EVIDENCE

The defendant argues the trial judge erroneously denied his motion for new trial filed on grounds that the verdict was contrary to the law and the evidence. LSA-C.Cr.P. Art. 851(1). Defendant complains that the state failed to produce sufficient evidence to establish defendant's possession of the firearms as required by LSA-R.S. 14:95.1. This article provides that it is unlawful for one convicted of enumerated felony crimes, including simple burglary, to possess a firearm for ten years after completion of the sentence.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La. 1984); State v. Doby, 540 So.2d 1008 (La. App. 2d Cir. 1989), writ denied, 544 So.2d 398 (La.1989).

An appellate court reviewing the sufficiency of the evidence 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 inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Lott, 535 So.2d 963 (La. App. 2d Cir.1988). The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So.2d 1305 (La.1988).

*140 In this case, the element of possession was proven by circumstantial evidence. Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Austin, 399 So.2d 158 (La.1981).

In all cases where an essential element of the crime, such as possession in this case, is not proven by direct evidence, LSA-R.S. 15:438 applies. As an evidentiary rule, it restrains the fact-finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove, and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Hammontree, 363 So.2d 1364 (La.1978).

The circumstantial evidence rule of LSA-R.S. 15:438 does not establish a stricter standard of review than the more general Jackson v. Virginia formula, but a hypothesis of innocence that is sufficiently reasonable and sufficiently strong must necessarily lead a rational fact finder to entertain a reasonable doubt about guilt. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988). If a rational trier of fact reasonably rejects the defendant's hypothesis of innocence, that hypothesis fails; and unless another one creates reasonable doubt, the defendant is guilty. State v. Young, 596 So.2d 403 (La.App. 4th Cir.1992); State v. Captville, 448 So.2d 676 (La.1984).

Officer Prokoff of the Shreveport Police Department testified that local pawn shops are required to turn in transaction records every 24 hours. He testified that he secured an inventory list of items pawned by the defendant, which included a Rossi .38 caliber revolver.

Officer Henderson of the Shreveport Police Department testified that he checked the pawn records and discovered that defendant pawned a Marlin .22 caliber rifle to Brittain's in Shreveport on November 22, 1989, and later redeemed the rifle from Brittain's and again pawned it to Max's on February 19, 1990. Henderson also confirmed that defendant pawned a Rossi .38 caliber revolver at Max's in Shreveport on April 11, 1990, and Henderson had an officer in the pawn division check Max's for the Rossi, but it was ultimately discovered in the police property room; it was recovered as a stolen weapon. A photocopy of defendant's driver's license was secured and compared to his original license in court. Henderson also produced the original pawn tickets which the defend

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