State Of Louisiana VS Richard Holifield
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 11111MY11011 STATE OF LOUISIANA VERSUS RICHARD HOLIFIELD Judgment Rendered June 11 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 467351 Honorable Allison H Penzato Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge LA Lieu T Vo Clark Counsel for Defendant Appellant Appellate Attorney Slidell LA Richard Holifield BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES I The defendant Richard Holifield was charged by bill of information with possession of a firearm or carrying concealed weapon by a person convicted of certain felonies a violation of LSAR 14 The defendant entered a plea of S 95 1 not guilty After a trial by jury the defendant was found guilty as charged The trial court denied the defendant smotion for post verdict judgment of acquittal and motion for new trial The defendant was sentenced to ten years imprisonment at hard labor without probation parole or suspension of sentence The trial court also imposed a fine of 2 The trial court denied the defendant motion to 00 500 s reconsider sentence The defendant now appeals assigning error to the sufficiency of the evidence For the following reasons we affirm the conviction and sentence STATEMENT OF THE FACTS On or about January 9 2009 in Slidell Louisiana Agents Mike Halprin Latisha Moore Steve Everly and Dustin Munlin of the Louisiana Division of Probation and Parole conducted a residence check at the home of the defendant who was placed on probation on May 4 2005 After the defendant answered the door Agent Halprin informed him of the purpose of the visit and advised the defendant of his Miranda rights During the residence check the agents recovered a Remington 22 rifle a 20 gauge shotgun a 30 30 rifle and 30 caliber and 20 gauge shotgun ammunition The defendant was taken into custody ASSIGNMENTS OF ERROR NUMBERS ONE TWO AND THREE In a combined argument for the assignments of error the defendant argues that the trial court erred in denying his motion for new trial and motion for judgment notwithstanding the verdict because the evidence is insufficient to support the verdict The defendant contends that the only evidence presented by 1 The defendant was also charged with possession of alprazolam on count two but that count was severed 2 the State of constructive possession was the mere fact that the weapons were found within the walls of the defendant shome The defendant notes that there was no testimony indicating who owned the weapons or if they were registered to someone The defendant also notes that there was no evidence as to how long the weapons had been in the defendant home or who brought them there s The defendant further notes that there was no testimony as to whose belongings were housed near the location of the weapons Contending that the weapons were hidden in closets the defendant concludes that there was no evidence that he exercised dominion and control over the weapons 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 S Ct 2d Ed L 560 1979 That standard of appellate review adopted by the Legislature in enacting LSA C art 821 is whether the evidence when viewed in the P Cr 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 proved beyond a reasonable doubt State v Brown 2003 0897 p 22 La 4 907 So 1 18 cert 05 12 2d denied 547 U 1022 126 S 1569 164 L305 2006 When analyzing S Ct 2d Ed circumstantial evidence LSA R 15 provides that the trier of fact must be S 438 satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 20021492 p 5 La App 1st Cir 2 845 03 14 2d So 416 420 When 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 2d writ denied 514 So 126 La 1987 2d M 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 Mitchell 993342 p 8 La 10 772 So 78 83 As the trier of fact a 00 17 2d 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 where 2d 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 2d Thus 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 Azema 633 So 723 727 La App 1st Cir 1993 writ 2d denied 940141 La 4 637 So 460 State v Quinn 479 So 592 596 94 29 2d 2d La App 1 st Cir 1985 To prove a violation of LSAR 14 the State must show that the S 95 1 defendant was in possession of a firearm and has been convicted of an enumerated felony The statute 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 Constructive possession satisfies the possessory element of the offense State v Day 410 So 741 743 La 1982 Whether the proof is 2d sufficient to establish possession turns on the facts of each case State v Harris 94 0970 p 4 La 12 647 So 337 33839 per curiam State v Bell 566 94 8 2d 2d So 959 959 60 La 1990 per curiam Constructive possession of a firearm occurs when the firearm is subject to the defendant dominion and control See State v Mose 412 So 584 585 86 s 2d La 1982 gun located in the defendant bedroom sufficient for constructive s possession State v Villarreal 99827 p 7 La App 5th Cir 2 759 00 16 M 2d So 126 131 writ denied 2000 1175 La 3 786 So 745 gun found 01 16 2d in locked room in locked safe in closet found to be in constructive possession of the defendant State v Frank 549 So 401 405 La App 3d Cir 1989 2d constructive possession found where gun was in plain view on front seat of a car the defendant was driving but did not own State v Lewis 535 So 943 950 2d La App 2d Cir 1988 writ denied 538 So 608 La cert denied 493 U 2d S 963 110 S 403 107 L 370 1989 presence of firearms in the Ct 2d Ed s defendant home statement by the defendant that one pistol belonged to his wife and discovery of shoulder holster in the master bedroom indicated the defendant s awareness dominion and control over the firearms Louisiana cases hold that a s defendant dominion and control over a weapon constitute constructive possession even if it is only temporary and even if the control is shared State v Bailey 511 2d So 1248 1250 La App 2d Cir 1987 writ denied 519 So 132 La 1988 2d State v Melbert 546 So 948 950 La App 3d Cir 1989 However the mere 2d presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession State v Walker 369 So 1345 2d 1346 La 1979 Herein the defendant does not contest his conviction of an enumerated felony or the absence of the tenyear statutory period of limitation At the time of the trial it was stipulated that on May 4 2005 the defendant pled guilty to possession with intent to distribute marijuana and received a fiveyear suspended sentence of imprisonment The defendant his wife and their seventeen year old son were present at the time of the residence check The residence was described as having a large den or living room type area that was entered from the front door The kitchen was to the left of the living room area and there was a long hallway to the right The door to the left in the hallway was for the master bedroom Agent Halprin testified that the 5 defendant informed him that he slept in the master bedroom of his home The bedroom on the right directly three or four feet across from the master bedroom was the defendant son bedroom ss The defendant son was in his bedroom s when the officers entered the home and Agent Munlin instructed his removal Agent Moore escorted Mrs Holifield from the master bedroom of the home A bathroom and an office were located further down the right side of the hallway Agent Munlin and Agent Everly searched the defendant sbedroom The master bedroom included a two or three feet deep narrow closet with sliding doors immediately to the right of the bedroom entrance The bed was three or four feet from the closet and a bathroom was located just past the closet Agent Munlin found the 22 caliber rifle on the right side of the closet while Agent Everly found the 3030 rifle on the left side of the closet Agent Everly testified that the guns were located in the corners of the closet Agent Munlin found the 20gauge shotgun and Agent Everly found the shotgun shells in the closet in the defendant s s son bedroom The closet door was open and the shells were in plain view on top of a shelf in the closet The 3030 ammunition was located in the home office in a closed drawer Based on the evidence presented we find that the State presented sufficient evidence to establish that the defendant had constructive possession of the firearms The weapons were not hidden in the closets but were easily located in the corners of the closet and were not covered or buried The defendant had shared if not sole dominion and control over the weapons Viewing the evidence in the light most favorable to the prosecution a rational finder of fact could have found that the evidence sufficiently proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant having been previously convicted of a felony violation of the Uniformed Controlled Dangerous Substance Law knowingly possessed firearms State v Ordodi 2006 I 0207 pp 1415 La 11 946 So 654 662 The assignments of error lack 06 29 2d merit CONVICTION AND SENTENCE AFFIRMED
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