Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana Docket No.
03-17-0923 Honorable Trudy M. White, Judge Presiding
C. Moore, III District Attorney Dylan C. Alge Assistant
District Attorney Baton Rouge, Louisiana
Horne Ray Baton Rouge, Louisiana Attorneys for Appellee,
State of Louisiana Attorney for Defendant/Appellant, Porter
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
defendant, Porter Major, Jr., was charged by bill of
information with possession of a firearm or carrying a
concealed weapon by a person convicted of certain
felonies (count one), a violation of La. R.S.
14:95.1, and aggravated assault with a firearm (count two), a
violation of La. R.S. 14:37.4. He pled not guilty. The
defendant waived a trial by jury and was found guilty as
charged on both counts after a bench trial. The trial court
denied a motion for new trial filed by the defendant. On both
counts, the trial court imposed five years imprisonment at
hard labor, to be served concurrently. The defendant now
appeals, arguing in two assignments of error that his
constitutional right of confrontation was violated and that
the evidence to support the convictions is insufficient. For
the following reasons, we affirm the convictions and
February 7, 2017, Lamonica Booker and her thirteen-year-old
son, D.T., encountered the defendant and Edward
Rogers after entering Vince's Liquor Store in Baton
Rouge. According to Booker's trial testimony, the
defendant made offensive comments directed towards her as she
was paying for her items. Booker further testified that D.T.
asked the defendant to please stop disrespecting his mother.
After they exited the store, the defendant pulled a gun out
of his right pocket. The defendant pointed the gun at Booker
and D.T. as they were getting into Booker's vehicle.
Concerned for the safety of D.T. and the other children who
were in her car at the time, Booker drove around the block
and circled back to photograph the license plate of the
vehicle occupied by the defendant. Booker then drove to the
Baton Rouge Police Department and reported the incident.
OF THE EVIDENCE
assignment of error number two, the defendant argues that the
State failed to meet its burden of proof beyond a reasonable
doubt that the defendant possessed a firearm as required for
a conviction on both counts. The defendant argues that there
was no evidence or testimony presented at trial that the
instrument entered into evidence was in fact a firearm as
defined by statute. The defendant notes that the two officers
who testified at trial admitted that they did not examine the
instrument. Thus, the defendant argues that the State did not
prove that a firearm was involved in this case.
issues are raised on appeal both as to the sufficiency of the
evidence and as to one or more trial errors, the reviewing
court should first determine the sufficiency of the evidence.
The sufficiency claim is reviewed first because 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 La. Code Crim. P. art. 821 and 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 elements of the
offense have been proven beyond a reasonable doubt. When the
entirety of the evidence, including inadmissible evidence
that was erroneously admitted, 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. On the 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. State v. Hearold, 603 So.2d 731, 734 (La.
1992). 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; State v. Martin, 2017-1100 (La.App.
1st Cir. 2/27/18), 243 So.3d 56, 60, writ denied,
2018-0568 (La. 3/6/19), 266 So.3d 901.
analyzing circumstantial evidence, La. R.S. 15:438 provides
that the trier of fact must be satisfied that the overall
evidence excludes every reasonable hypothesis of innocence.
State v. Graham, 2002-1492 (La.App. 1st Cir.
2/14/03), 845 So.2d 416, 420. When a case involves
circumstantial evidence and the trier of fact reasonably
rejects the hypothesis of innocence presented by the defense,
that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt.
State v. Golden, 2016-1659 (La.App. 1st Cir.
6/2/17), 223 So.3d 4, 10-11.
elements of possession of a firearm by a convicted felon are:
(1) possession of a firearm; (2) a previous conviction of an
enumerated felony; (3) absence of the ten-year statutory
period of limitation; and (4) general intent to commit the
offense. La. R.S. 14:95.1(A); State v. Bias,
2014-1588 (La.App. 1st Cir. 4/24/15), 167 So.3d 1012, 1019,
writ denied, 2015-1051 (La. 5/13/16), 191 So.3d
1053; State v. Morris, 99-3075 (La.App. 1st Cir.
11/3/00), 770 So.2d 908, 918, writ denied, 2000-3293
(La. 10/12/01), 799 So.2d 496, cert, denied, 535
U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220
(2002). According to La. R.S. 14:95.1(D),
"firearm" means any pistol, revolver, rifle,
shotgun, machine gun, submachine gun, black powder weapon, or
assault rifle which is designed to fire or is capable of
firing fixed cartridge ammunition or from which a shot or
projectile is discharged by an explosive.
Revised Statutes 14:37.4 provides that aggravated assault
with a firearm is an assault committed with a firearm.
According to La. R.S. 14:37.4(B), "firearm" is
defined as an instrument used in the propulsion of shot,
shell, or bullets by the action of gunpowder exploded within
it. Further, an assault is defined as "an attempt to
commit a battery, or the intentional placing of another in
reasonable apprehension of receiving a battery." La.
R.S. 14:36. A battery is, in part, the intentional use of
force or violence upon the person of another. La. R.S. 14:33.
A conviction of assault requires proof beyond a reasonable
doubt of: (1) the intent-to-scare mental element (general
intent); (2) conduct by defendant of the sort to arouse a