Appeal from the 22nd Judicial District Court In and for the
Parish of St. Tammany State of Louisiana Trial Court Number
571, 999, Honorable Peter J. Garcia, Judge Presiding
L. Montgomery District Attorney Mary Watson Smith Assistant
District Attorney Covington, Louisiana, Attorneys for
Appellee, State of Louisiana.
F. Gremillion Rachel M.Yazbeck New Orleans, Louisiana,
Attorneys for Defendant/Appellant, Brandon Rashad Martin.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
defendant, Brandon R. Martin, was charged by felony bill of
information with three counts of aggravated assault with a
firearm, violations of La. R.S. 14:37.4 (counts one, two, and
three); and possession of a firearm by a person convicted of
certain felonies, a violation of La. R.S. 14:95.1 (prior to
revision by 2017 La. Acts No. 281, § 1) (count
four). He entered a plea of not guilty and,
following a jury trial, was found guilty as charged on counts
one, three, and four, and guilty of attempted aggravated
assault with a firearm on count two. He filed motions for new
trial and postverdict judgment of acquittal, both of which
were denied. The district court sentenced the defendant to
ten years at hard labor on count one, five years at hard
labor on count two, ten years at hard labor on count three,
and ten years at hard labor without the benefit of probation,
parole, or suspension of sentence on count
four. The district court further ordered all of
the sentences to run concurrently. The State subsequently
filed a habitual offender bill of information. After a
hearing, the defendant was adjudicated a second-felony
habitual offender as to count four. The court then sentenced the
defendant to forty years at hard labor without the benefit of
probation or suspension of sentence. The defendant now appeals,
alleging four assignments of error. For the following
reasons, we vacate the original sentence imposed on count
four, and we affirm the defendant's convictions, habitual
offender adjudication, and sentences.
January 19, 2016, the defendant drove to his father, James
Martin's, home in Slidell, Louisiana, and confronted his
father and two brothers, Jermaine Singleton and Randy Martin,
the victims. The defendant, who had a gun, threatened to kill
Jermaine. James and Randy tried to protect Jermaine, who was
recovering from surgery, from the defendant. The defendant
ultimately left the scene without firing his weapon.
third assignment of error, the defendant argues that the
evidence presented at trial was insufficient to support his
convictions. Specifically, he contends that the State failed
to prove beyond a reasonable doubt that he was in possession
of a firearm. The defendant notes that a firearm was not
recovered and complains that the State's witnesses gave
inconsistent statements regarding the firearm.
issues are raised on appeal, both as to sufficiency of the
evidence and as to one or more trial errors, the reviewing
court should first determine the sufficiency of the evidence.
State v. Hearold, 603 So.2d 731, 734 (La. 1992). The
reason for reviewing the sufficiency first is that the
accused may be entitled to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30
(1981), if a rational trier of fact, viewing the evidence in
accordance with Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most
favorable to the prosecution, could not reasonably conclude
that all of the essential elements of the offense have been
proved beyond a reasonable doubt. When the entirety of the
evidence is insufficient to support the conviction, the-
accused must be discharged as to that crime, and any
discussion by the court of the trial error issues as to that
crime would be pure dicta since those issues are moot.
Hearold, 603 So.2d at 734.
other hand, when the entirety of the evidence, both
admissible and inadmissible, is sufficient to support the
conviction, the accused is not entitled to an acquittal, and
the reviewing court must then consider the assignments of
trial error to determine whether the accused is entitled to a
new trial. If the reviewing court determines there has been
trial error (which was not harmless) in cases in which the
entirety of the evidence was sufficient to support the
conviction, then the accused must receive a new trial, but is
not entitled to an acquittal even though the admissible
evidence, considered alone, was insufficient.
Hearold, 603 So.2d at 734. Accordingly, we proceed
first to determine whether the entirety of the evidence was
sufficient to support the defendant's convictions.
conviction based on insufficient evidence cannot stand as it
violates Due Process. See U.S. Const, amend. XIV; La. Const,
art. I, § 2. The standard of review for the sufficiency
of the evidence to uphold a conviction is whether or not,
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 beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at
2789; see La. Code Crim. P. art. 821(B); State v.
Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660;
State v. Mussall, 523 So.2d 1305, 1308-09 (La.
1988). The Jackson standard of review, incorporated
in Article 821, is an objective standard for testing the
overall evidence, both direct and circumstantial, for
reasonable doubt. When analyzing circumstantial evidence, La.
R.S. 15:438 provides that the factfinder must be satisfied
the overall evidence excludes every reasonable hypothesis of
innocence. State v. Patorno, 2001-2585 (La.App. 1
Cir. 6/21/02), 822 So.2d 141, 144.
assault with a firearm is an assault committed with a
firearm. La. R.S. 14.-37.4A. Pursuant to La. R.S. 14:95.1A,
"It is unlawful for any person who has been convicted
of. . . any violation of the Uniform Controlled Dangerous
Substances Law which is a felony ... to possess a firearm or
carry a concealed weapon." [Footnote omitted.] The
defendant does not dispute his identity as the perpetrator of
the offenses, and notes that he admitted that he committed
simple assault. However, the defendant contends that because
the State failed to prove he was in possession of a firearm,
he should not have been found guilty of the charged offenses.
to Jermaine Singleton's trial testimony, the dispute
arose because of Jermaine "putting [the defendant]
out" of his house approximately four months prior to the
instant offenses. Jermaine explained that after the defendant
was released from prison for an unrelated offense, he allowed
the defendant to stay at his home and work with him. However,
when the defendant quit working with Jermaine and began
bringing women into the home, Jermaine told him that he had
to move out. The defendant became angry and attempted to
fight with Jermaine, but Jermaine's wife stopped the
dispute. Thereafter, on January 19, 2016, the defendant drove
to their father's house and jumped out of the vehicle
that he was driving. The defendant then walked up to Jermaine
and threatened to beat him up and kill him. James and Randy
attempted to stop the defendant, as Jermaine was recovering
from a surgery. After the defendant pushed Jermaine's
forehead with his finger, James pushed the defendant away
from Jermaine. The defendant walked back toward the vehicle
he arrived in, bent over in the vehicle, and walked back
toward the victims. He stated that he was going to kill
Jermaine. According to Jermaine, James and Randy were
"steady pushing [the defendant] away from" him, and
Jermaine told James to leave the defendant alone, but the
defendant reached into his back pocket and pulled out a gun.
When the defendant pulled out the gun, he pointed it
"directly at [Jermaine's] forehead." The
defendant continually told Jermaine that he was going to kill
him, but did not pull the trigger of the gun, which Jermaine
described as a black .38 revolver with a rubber handle. James
and Randy again pushed the defendant away, and as the
defendant began walking ...