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State v. Major

Court of Appeals of Louisiana, First Circuit

November 15, 2019


          On 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

          Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana

          Gail Horne Ray Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana Attorney for Defendant/Appellant, Porter Major, Jr.


          PENZATO, J.

         The 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[1] (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 sentences.


         On February 7, 2017, Lamonica Booker and her thirteen-year-old son, D.T.[2], 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.[3] 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.


         In 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.

         When 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.

         When 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.

         The 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).[4] 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.

         Louisiana 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 ...

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