State v. Wesley

685 So. 2d 1169, 1996 WL 717484
Louisiana Court of Appeal·Decided December 13, 1996·No. 28941-KA·Published·Cited by 27 cases

Opinion

685 So.2d 1169 (1996)

STATE of Louisiana, Appellee,
v.
Abraham WESLEY, Appellant.

No. 28941-KA.

Court of Appeal of Louisiana, Second Circuit.

December 13, 1996.

*1171 Carey J. Ellis, III, Rayville, for Appellant.

Richard Ieyoub, Attorney General, William R. Coenen, District Attorney, Penny Wise-Douciere, Assistant District Attorney, for Appellee.

Before BROWN, CARAWAY and PEATROSS, JJ.

BROWN, Judge.

Defendant, Abraham Wesley, was found guilty of being a convicted felon in possession of a firearm, La. R.S. 14:95.1, and was sentenced to ten years at hard labor without benefit of parole, probation or suspension of sentence. He has appealed. We affirm.

Facts

At the time of the present offense, defendant was on parole for a 1991 cocaine distribution conviction. His parole officer was LeeAnn Thomason. On September 20, 1994, Officer Thomason, working with Danny Fuller, another parole officer, was conducting routine field checks on parolees in the Rayville area. As the officers drove past the residence at 442 Center Street, they saw three parolees in the front yard and defendant standing on the steps. Seeing the officers, defendant went inside and locked the doors. The officers stopped and searched the other parolees in the front yard. Officer Fuller found a crack pipe and a rock of cocaine in parolee William Scott's pocket. Scott told the officers that he had purchased the rock inside the house from defendant, who kept cocaine in a brown pill bottle.

The officers requested backup from the Richland Parish Sheriff's Office and Deputy Terry Watson, who was in the area, responded immediately. The officers approached the house and knocked on the door. Defendant, after three to five minutes, opened the door, rubbed his eyes and stated that he had been taking a nap. The officers searched the house and found an empty brown pill bottle. The bottle was wet and the cap was off. Deputy Perry Fleming of the Richland Parish Sheriff's Office performed a field test on the residue in the bottle; the test was positive for cocaine. The crime lab later confirmed that the residue was in fact cocaine.

During the search, defendant sat on the couch. When Officer Thomason had defendant stand up, she discovered a loaded .25 caliber pistol under the cushion of the couch where defendant had been sitting. Defendant stated that the pistol belonged to his girlfriend, Segonia, who lived in the house. An 18-inch machete was also found under the couch. Defendant stated that the machete was his and that he used it for yard work.

Defendant was arrested and charged with possession of a firearm by a convicted felon. A jury convicted defendant as charged by an 11-1 vote. After reviewing a pre-sentence *1172 investigation report, the trial court sentenced defendant to 10 years at hard labor without benefit of parole, probation or suspension of sentence.

Discussion

Sufficiency of the evidence

In an assignment of error, defendant asserts that there was insufficient evidence to support the jury's verdict. According to defendant, there was no evidence linking ownership of the pistol to him, nor was there proof of his knowledge, dominion or control of the weapon.

The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), found that due process protects a defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime. Jackson further imposed a review obligation on appellate courts to inquire 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. La.C.Cr.P. art. 821; State v. Bellamy, 599 So.2d 326 (La. App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

In this case, defendant did not move for a post-verdict judgment of acquittal in the trial court before sentence pursuant to La.C.Cr.P. art. 821. This court, however, has the obligation, and not merely the option, to review the constitutional sufficiency of the evidence to convict in each case in which a criminal appeal is taken as authorized by the Louisiana Constitution, "regardless of how the error is brought to the attention of the court." State v. Otis, 586 So.2d 595, 604 (La.App. 2d Cir.1991). An assignment of error "designated" by the defendant "shall be reviewed on appeal," whether or not that is the sole assignment or whether the assignment in the appellate court complains of the ruling of the trial court on a postverdict motion for acquittal or on a motion for new trial. La.C.Cr.P. art. 920.

The Jackson v. Virginia standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the evidence by viewing that evidence in the light most favorable to the prosecution. In determining sufficiency, an appellate court must review all the evidence presented at trial, even that which might have been erroneously admitted. When the evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

This court's responsibility when reviewing sufficiency of evidence does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 5(C); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). The critical inquiry is not what a reviewing judge may believe, but instead, whether a rational juror could have found that the evidence proved guilt beyond a reasonable doubt. Jackson, supra. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987).

In order to convict defendant of the charged offense, the state had to prove beyond a reasonable doubt defendant's possession of a firearm, a prior conviction of an enumerated felony within a ten-year statutory period of limitation and general intent to commit the offense. La. R.S. 14:95.1.

Constructive possession, as opposed to actual possession, is sufficient to satisfy the possession element. State v. Day, 410 So.2d 741 (La.1982); State v. Washington, 605 So.2d 720 (La.App. 2d Cir.1992), writ denied, 610 So.2d 817 (La.1993). Constructive possession occurs when a firearm is subject to defendant's dominion and control. State v. Washington, supra. Defendant's dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature and even if the control is *1173 shared. State v. Washington, supra, and cases cited therein.

The state proved by direct evidence that defendant had been convicted of a predicate felony, distribution of cocaine on October 22, 1991. Obviously, this conviction was within the requisite ten-year statutory period.

The state proved that defendant

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