State Of Louisiana VS Nelson Jackson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 1930 STATE OF LOUISIANA VERSUS NELSON JACKSON On Appeal from the 21st Judicial District Court Parish of Livingston Louisiana Docket No 21695 Division G Honorable Ernest G Drake Judge Presiding Scott M Perrillouz Attorneys for District Attorney State of Louisiana Patricia Parker Assistant District Attorney Amite LA Rhett P Spano Attorney for Baton Rouge LA Defendant Appellant Nelson Jackson BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered May 7 2010 PARRO J The defendant Nelson Jackson was charged by bill of information with possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies a violation of LSAR 14 The defendant entered a plea of not S 95 1 guilty After a trial by jury the defendant was found guilty as charged The trial court denied the defendant motion for postverdict judgment of acquittal and motion for s new trial The defendant was sentenced to fifteen years of imprisonment at hard labor without benefit of probation parole or suspension of sentence The trial court denied the defendant smotion to reconsider sentence The defendant now appeals assigning error to the sufficiency of the evidence the effectiveness of counsel and the constitutionality of the sentence imposed For the following reasons we affirm the conviction and sentence STATEMENT OF FACTS On or about October 21 2006 during nighttime hours Detective Jimmy Spire a narcotics agent for the Livingston Parish sheriff office observed a vehicle being s operated by the defendant as it travelled southbound on Drake Road in Albany The detective conducted an investigatory stop of the vehicle at the defendant sresidence During a search of the vehicle Detective Spire recovered a loaded 38 caliber handgun The handgun was concealed inside the glove compartment After his criminal status was established the defendant was placed under arrest and advised of his Miranda rights ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant contends that the state failed to prove beyond a reasonable doubt that he committed the offense of possession of a firearm by a convicted felon The defendant notes that the firearm was not located on his person and that the state sought to prove that he had constructive possession of the firearm The defendant notes that the firearm was located in an unlocked closed The facts concerning the basis of the investigatory stop were not developed during the trial as the defendant stipulated that the stop was valid because the detective had reasonable cause to believe that the defendant committed was committing or was about to commit a crime and that the ensuing search that revealed the gun was constitutionally valid and legal 2 glove compartment and could not be seen from the driver area s The defendant further notes that the weapon was not processed for fingerprints Moreover the defendant notes that the bullets that were allegedly seized were lost before the trial The defendant argues that there was no evidence that he was aware that the gun was in the glove compartment or that he had any intent to possess it The defendant further contends that he presented uncontradicted testimony that the gun belonged to another person who did not tell the defendant that it was in the glove compartment The defendant argues that his mere presence in the vehicle where the firearm was stored in a closed glove compartment is insufficient to establish constructive possession In reviewing the sufficiency of the evidence to support a conviction a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v Virginia 443 U 307 99 S 2781 61 L 560 1979 S Ct 2d Ed That standard of appellate review adopted by the Louisiana legislature in enacting LSA P Cr C art 821 is whether the evidence when viewed in the light most favorable to the prosecution was sufficient to convince any rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt State v Brown 03 0897 La 4 907 So 1 18 cert denied 547 U 1022 126 S 1569 05 12 2d S Ct 164 L 305 2006 2d Ed When analyzing circumstantial evidence LSAR 15 S 438 provides that in order to convict the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 02 1492 La App 1st Cir 2 845 03 14 When 2d So 416 420 a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1st Cir writ denied 514 So 126 La 1987 2d 2d An appellate court is constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases that determination rests solely on the sound discretion of the trier of fact State v Azema 633 So 723 727 2d La App 1st Cir 1993 writ denied 940141 La 4 637 So 460 94 29 2d 3 As the trier of fact a jury is free to accept or reject in whole or in part the testimony of any witness State v Richardson 459 So 31 38 La App 1st Cir 1984 Moreover 2d where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency Richardson 459 So at 38 Thus 2d the fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App 1st Cir 1985 2d Louisiana Revised Statute 14 makes it unlawful for any person who has 1 95 been convicted of certain felonies to possess a firearm To prove a violation of LSA S 95 R 14 1the state must prove 1 the defendant status as a convicted felon and s 2 that the defendant was in possession of a firearm See State v Mose 412 So 2d 584 585 La 1982 The state must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction LSAR S C 1 95 14 The first element of the offense was established through a stipulation reflecting that the defendant was previously convicted of a felony listed under LSAR 14 S 95 1 and that the conviction fell within the tenyear statutory limitation period On appeal the defendant does not challenge his status as a convicted felon or the absence of the tenyear statutory limitation period The specific issue raised by the defendant is whether the state proved that he possessed the requisite intent to possess the firearm through constructive possession Louisiana Revised Statute 14 1 95 does not make actual possession a necessary element of the offense or specifically require that the defendant have the firearm on his person to be in violation possessory element of the offense Constructive possession satisfies the State v Day 410 So 741 743 La 1982 2d Constructive possession of a firearm occurs when the firearm is subject to the s defendant dominion and control State v Plain 99 1112 La App 1st Cir 2 00 18 752 So 337 34041 constructive possession found where the defendant admitted to 2d having the weapon underneath the mattress in his bedroom the defendant then led 4 officers to his bed and pointed out the location of the weapon and the police recovered a weapon from the area the defendant had pointed out Mose 412 So at 585 86 2d gun located in the defendant bedroom sufficient for constructive possession State s v Frank 549 So 401 405 La App 3rd Cir 1989 constructive possession found 2d where the gun was in plain view on the front seat of a car the defendant was driving but did not own State v Lewis 535 So 943 950 La App 2nd Cir 1988 writ 2d denied 538 So 608 La 1989 cert denied 493 U 963 110 S 403 107 2d S Ct 2d Ed L 370 1989 presence of firearms in the defendant home statement by the s defendant that one gun belonged to his wife and discovery of shoulder holster in the master bedroom indicated the defendant sawareness dominion and control over the firearms Louisiana cases hold that a defendant sdominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared Plain 752 So at 340 State v Melbert 546 So 948 950 La App 3rd 2d 2d Cir 1989 State v Bailey 511 So 1248 1250 La App 2nd Cir 1987 writ 2d denied 519 So 132 La 1988 In addition jurisprudence has added an aspect of 2d awareness to the offense of LSAR 14 Therefore the state must also prove S 95 1 that the offender was aware that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon State v Larnothe 971113 La App 5th Cir 6 715 So 708 712 writ granted in part on other grounds 98 30 2d 98 2056 La 11 722 So 987 per curiam 98 25 2d Mere presence alone of a defendant in the area of the contraband or other evidence seized does not prove that he exercised dominion and control constructive possession over the evidence and therefore had it in his State v Johnson 03 1228 La 4 870 So 995 04 14 2d 999 finding the evidence sufficient to support the defendant conviction of possession s of a firearm by a convicted felon Cf State v Walker 369 So 1345 1346 La 2d 1979 Whether the proof is sufficient to establish possession turns on the facts of each case See State v Harris 940970 La 12 647 So 337 33839 per 94 8 2d curiam State v Bell 566 So 959 95960 La 1990 per curiam Further guilty 2d 5 knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence Johnson 870 So at 998 2d In State v Fisher 942255 La App 1st Cir 12 669 So 460 writ 95 15 2d denied 960958 La 9 679 So 432 this court held that the evidence was 96 20 2d insufficient to prove the defendant had the general intent to possess a gun found in his s sister purse after a search of the vehicle the defendant was driving Although the clip was found in the defendant pocket the sister purse was located on the front s s s passenger seat floorboard and the sister produced proof that she was the registered owner of the gun This court concluded that the evidence disclosed no intent to possess the gun but only a mere acquiescence to the fact that the defendant ssister owned a gun and had it in her purse Fisher 669 So at 462 63 2d In State v Lamothe 97 1113 La App 5th Cir 6 738 So 55 a 99 1 2d statement by the codefendant placed the gun in the car with the defendant However the evidence failed to indicate that the defendant was aware the gun was in the car and failed to prove the defendant intent to possess the gun s The defendant denied knowledge of the gun in a statement to the police The deputy who recovered the gun testified that he found it on the ground near the car The defendant mother testified s that the car and the gun belonged to her and that she had left the gun under the seat of the car The court found that the evidence did not support the conviction for possession of a firearm by a convicted felon Lamothe 738 So at 57 2d In State v Smith 98 0366 La App 4th Cir 5 744 So 73 the 99 12 2d defendant was pulled over for speeding A weapon was found under the driver seat s of the vehicle and was not in plain view The owner of the vehicle the defendant s mother testified that she did not own the gun and had never seen it further testified that she had allowed several The owner people to use the vehicle The s defendant passenger testified that she did not become aware of the gun until it was produced during the search person The defendant did not have any ammunition on his The court found that the evidence did not support a conviction of being a convicted felon in possession of a firearm Smith 744 So at 77 2d 0 In State v Morris 43 La App 2nd Cir 9 996 So 306 the 522 08 17 2d court heard evidence that the defendant owned the vehicle he was driving when he was stopped The defendant did not stop his car immediately after an agent activated his emergency lights instead the defendant kept driving while he and his passenger visibly moved about in the vehicle Upon a search of the defendant svehicle the agent found the weapon in a semi hidden location inside the passenger compartment a location that must have been known to the defendant despite his testimony to the contrary Unlike the other items found under the seat the weapon was clean suggesting that it had recently been placed there Further the weapon was in a position within reach of either of the occupants of the car although it was closer to the defendant than to his passenger despite the defendant sprotest to the contrary The court found that all of this evidence together when viewed most favorably to the state proved beyond a reasonable doubt that the defendant had control of the weapon even if that control was only temporary and shared with his passenger Morris 996 So at 312 2d Detective Spire testified that on the night he made the stop of defendant s vehicle and arrested compartment him he recovered the handgun from its unlocked glove He also found a box of 38 caliber bullets in the center console of the vehicle The box was not full and the handgun was fully loaded The handgun was placed into evidence and later introduced at trial however the bullets were not Detective Spire testified that he did not know the whereabouts of the bullets at the time of the trial stating I didn evidently put them in as evidence because the evidence t custodian cannot find them Detective Spire added that the bullets were 38 caliber and fit the 38 caliber handgun in evidence Detective Spire later testified that he did seize the bullets but was unaware of their whereabouts Officer Paul Brignac of the Livingston Parish sheriffs office was present at the time and observed the search of the vehicle Officer Brignac saw the gun that was recovered and the box of ammunition and also noted that the box was not full The search was ongoing as Officer Brignac approached the vehicle and Detective Spire had already retrieved the evidence Officer Brignac saw the handgun on the seat and the bullets that were in the center console The defendant stipulated to his registered ownership of the vehicle as the state presented evidence of such from the Office of Motor Vehicles Perlina Jackson the defendant smother testified that the defendant lived with her along with her other son She further testified that the defendant was the only occupant of her residence who owned a vehicle and everyone shared it that the gun in question belonged to her deceased husband She stated According to her testimony she placed the gun in the glove compartment and locked it on a Sunday that the defendant dropped her off at church The gun was in her purse but she removed it because it was too heavy She stated that the defendant was not in the vehicle at the time and that he was across the yard talking to someone The defendant did not pick her up from church that day She was in bed when the search and arrest took place and did not go outside She stated that her older son told Detective Spire that the gun belonged to her She further testified that she had bullets for the gun and that they were in a cabinet in her closet when the defendant was arrested She stated that the defendant never saw those bullets The defendant smother testified she normally kept the gun loaded and in her purse and only took it out to go to church She stated that the gun hadn been in t there the glove compartment of the defendant svehicle about a day or two days before they arrested him She did not tell the defendant that the gun was in his glove compartment and did not want him to find it in there When asked how she locked the glove compartment she stated that she just pushed it and it snapped and that she did not use a key Detective Spire was recalled to the stand and testified that he did not recall speaking to anyone regarding the gun belonging to the defendant mother or s father or anyone other than the defendant Based on the evidence before us we conclude there was sufficient evidence for the jury to determine that the defendant had constructive possession and dominion and control of the handgun The defendant was the registered owner of the vehicle the driver and the sole occupant at the time of the offense Two officers testified that ammunition was openly stored in the center console of the vehicle at the time of the stop The glove compartment where the gun was located was unlocked 8 The jury reasonably rejected the defendant hypothesis of innocence s A rational juror could have concluded that all of this evidence together viewed most favorably to the state proved beyond a reasonable doubt that the defendant had constructive possession of the gun State v Ordodi 06 0207 La 11 946 So 654 661 06 29 2d This assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant argues that his trial counsel was ineffective The defendant notes that a motion to suppress was filed in this case but that the defense counsel stipulated at trial that the investigatory stop was valid and that the search was constitutional Although the facts were not developed at trial the defendant notes that Detective Spire observed what he believed to be contraband being thrown from the defendant vehicle and the stop and arrest were based on this s observation The defendant argues that the search of the vehicle exceeded the permissible scope noting that he was not in reach of the passenger glove compartment and that there was no reason for him to know that a handgun was in the vehicle The defendant contends that the stipulation resulted in a waiver of his right to contest the validity of the automobile search a hearing on the motion to suppress and an appeal on any adverse ruling on the motion As a general rule a claim of ineffective assistance of counsel is more properly raised in an application for post conviction relief in the trial court than by appeal This is because postconviction relief creates the opportunity for a full evidentiary hearing under LSA C art 930 State v Lockhart 629 So 1195 1207 La App 1st P Cr 2d Cir 1993 writ denied 94 0050 La 4 635 So 1132 94 7 2d However when the record is sufficient this court may resolve this issue on direct appeal in the interest of judicial economy State v Ratcliff 416 So 528 530 La 1982 Effective counsel 2d has been defined to mean not errorless counsel and not counsel judged ineffective by hindsight but counsel reasonably likely to render and rendering reasonably effective assistance United States v Fruge 495 F 557 558 5th Cir 1974 per curiam 2d Z The defendant would have to satisfy the requirements of LSAC art 924 et seq in order to P Cr receive such a hearing 0 quoting Herring v Estelle 491 F 125 127 5th Cir 1974 see also United 2d States v Johnson 615 F 1125 1127 5th Cir 1980 per curiam In Strickland 2d v Washington 466 U 668 687 104 S 2052 2064 80 L 674 1984 the S Ct 2d Ed United States Supreme Court established a twopart test for review of a convicted sclaim that his counsel defendant sassistance was so defective as to require reversal of a conviction First the defendant must show that counsel performance is deficient s Second the defendant must show that this deficient performance prejudiced the defense A failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v Robinson 471 So 2d 1035 1038 39 La App 1st Cir writ denied 476 So 350 La 1985 2d In this case the defendant is relying on facts that were not borne out in the trial to support his claim of ineffective assistance of counsel The state in response has also referenced facts regarding the investigatory stop that were not developed during the trial According to the transcript the defense objected to the introduction of the evidence regarding the stop as prejudicial and the trial court agreed and proposed the stipulation that was agreed upon Since the appeal record is insufficient to address the merits of the defendant sineffective assistance claims the defendant should raise those claims in an application for post conviction relief in the trial court ASSIGNMENT OF ERROR NUMBER THREE In the final assignment of error the defendant contends that the trial court imposed an unconstitutionally excessive sentence The defendant contends that the trial court relied exclusively on his prior criminal history without any consideration of his age effect of incarceration upon his family or the seriousness of the offense The defendant reiterates his argument that the gun belonged to his mother The defendant argues that the imposed sentence is nothing more than the needless imposition of pain and suffering and should be vacated Article I section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against excessive punishment and is subject to s appellate review Generally a sentence is considered excessive if it is grossly 10 disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense of justice s A trial judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion State v Hurst 99 2868 La App 1st Cir 10 797 So 75 83 writ 00 3 2d denied 003053 La 10 798 So 962 01 5 2d Louisiana Code of Criminal Procedure article 894 sets forth items that must be 1 considered by the trial court before imposing sentence The trial court need not recite the entire checklist of Article 894 but the record must reflect that it adequately 1 considered the criteria State v Leblanc 041032 La App 1st Cir 12 897 04 17 2d So 736 743 writ denied 05 0150 La 4 901 So 1063 cert denied 546 05 29 2d S U 905 126 S 254 163 L 231 2005 State v Faul 03 1423 La App 1st Ct 2d Ed Cir 2 873 So 690 692 04 23 2d Failure to comply with Article 894 does not 1 necessitate the invalidation of a sentence or warrant a remand for resentencing if the record clearly illumines and supports the sentencing choice 2d So 31 46 La 1983 State v Smith 430 Maximum sentences may be imposed only for the most serious offenses and the worst offenders or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality State v Miller 96 2040 La App 1st Cir 11 703 So 698 701 writ denied 98 0039 La 97 7 2d 98 15 5 719 So 459 2d A trial court is entitled to consider the defendant sentire criminal history in determining the appropriate sentence to be imposed State v Ballett 98 2568 La App 4th Cir 3 756 So 587 602 writ denied 001490 00 15 2d La 2 785 So 31 Thus arrests can be considered 01 9 2d The defendant was convicted of possession of a firearm by a convicted felon and faced a sentencing range of ten to fifteen years at hard labor without the benefit of parole probation or suspension of sentence and a fine between 1 and 5 000 000 LSAR 14 The defendant received the maximum term of fifteen years of S 95 6 1 imprisonment but not the mandatory fine Before sentence was imposed a presentence investigation was conducted The trial court noted the defendant extensive criminal history dating back to 1986 s including convictions for DWI simple burglary attempted possession of cocaine distribution of crack cocaine possession of stolen property possession of crack cocaine and drug paraphernalia possession with intent to distribute cocaine and simple criminal damage to property as well as several arrests The trial court counted up to nine felony convictions Based on our review of the record we do not find that the trial court abused its wide discretion in imposing the fifteenyear sentence on the defendant This assignment of error lacks merit SENTENCING ERROR In conducting our review of the record as required by LSAC art 920 we P Cr 2 note the existence of a sentencing error The penalty provision for possession of a firearm or carrying a concealed weapon by a convicted felon includes a mandatory fine of not less than one thousand and not more than five thousand dollars B 1 95 14 The record reflects the trial court failed to impose a fine LSA R S Under the general provisions of LSAC art 882 an illegal sentence may be corrected at P Cr A any time by an appellate court on review Because the trial court failure to impose s the fine was not raised by the state in either the trial court or on appeal and the defendant is not prejudiced by the trial court failure to impose the mandatory fine we s decline to amend the sentence imposed by the trial court See State v Price 052514 La App 1st Cir 12 952 So 112 12425 en banc writ denied 070130 06 28 2d La 2 976 So 1277 08 22 2d CONVICTION AND SENTENCE AFFIRMED 12
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