State Of Louisiana v. Justin Hutchinson ( 2023 )


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  •                   NOT DESIGNATED FOR PUBLICATION
    STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    2022 KA 1283
    STATE OF LOUISIANA
    VERSUS
    JUSTIN HUTCHINSON
    Judgment Rendered:     JUN 2 3 2023
    v
    Appealed from the 22nd Judicial District Court
    In and for the Parish of St. Tammany
    State of Louisiana
    Case No. 4154- F-2020, Div. E
    The Honorahle William H. Burris, Judge Presiding
    Warren L. Montgomery                    Counsel for Appellee
    District Attorney                       State of Louisiana
    J. Bryant Clark, Jr.
    Assistant District Attorney
    Covington, Louisiana
    Holli Herrle- Castillo                  Counsel for Defendant/ Appellant
    Marrero, Louisiana                      Justin Hutchinson
    BEFORE: WELCH, PENZATO, AND LANIER, JJ.
    Tj (   trALcN'a/
    LANIER, J.
    The defendant, Justin Hutchinson, was charged by bill of information with
    possession of a firearm by a convicted felon ( count         1),   a violation of La. R.S.
    14: 95. 1;   and aggravated assault upon a peace officer ( count 2), a violation of La.
    R.S. 14: 37. 2.    He pled not guilty and, following a jury trial, was found guilty on
    count 1 of the responsive offense of attempted possession of a firearm by a
    convicted felon.      See La. R.S. 14: 27.   He was found not guilty on count 2.      The
    defendant filed a motion for postverdict judgment of acquittal or alternative motion
    for new trial, which was denied. The trial court sentenced the defendant to seven -
    and -one- half years imprisonment at hard labor without benefit of parole, probation,
    or suspension of sentence and imposed a $ 500 fine. The defendant now appeals,
    designating three assignments of error.      We affirm the conviction and sentence.
    FACTS
    On the night of August 17, 2020,          Deputy Chris Galloway, with the St.
    Tammany Parish Sheriff' s Office, was on patrol when he observed the a vehicle
    driven by the defendant swerving on the road in Sun, Louisiana. Deputy Galloway
    also saw the defendant moving back and forth in the vehicle, and because of the
    defendant' s actions, made a traffic stop. During the stop, the defendant backed up
    and hit the front of Deputy Galloway' s police unit,          then drove forward about
    twenty feet and stopped. Deputy Galloway ordered the defendant out of the car.
    The defendant got out, walked to the front of his vehicle, then walked back to the
    driver' s side of his vehicle and leaned in.      Deputy Galloway ordered the defendant
    to get away from the vehicle. At this point, backup for Deputy Galloway arrived.
    Upon approaching, Deputy Galloway smelled marijuana on the defendant and in
    the vehicle he was driving. Because of the defendant' s swerving as he drove, and
    because of the smell of marijuana in the vehicle and on the defendant' s person,
    Deputy Galloway suspected the defendant was intoxicated.             Due to the suspected
    2
    intoxication, the defendant was placed in a police unit. Deputy Galloway shined
    his flashlight through the window of the defendant' s car and observed a mini
    Draco AK -47, loaded with a thirty -round magazine, on the rear floorboard of the
    passenger      side.
    The backup officer, Deputy Seth Cunningham,           recognized the
    defendant as a former jail inmate.           Deputy Galloway ran a name check on the
    defendant and learned of a prior felony conviction. Deputy Galloway then seized
    the firearm and arrested the defendant.        The defendant did not testify at trial.
    ASSIGNMENT OF ERROR NO. 1
    In his first assignment of error, the defendant argues the evidence was
    insufficient to support the conviction.         Specifically, the defendant contends the
    State failed to prove he had knowledge the gun was in the car.
    A conviction based on insufficient evidence cannot stand as it violates Due
    Process.      See U. S. Const. amend. XIV; La. Const. art. 1, §        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. 307
    , 319, 
    99 S. Ct. 2781
    , 2789,
    
    61 L.Ed.2d 560
    , 573 ( 1979).        See La. Code Crim. P. art. 821( B); State v. Ordodi,
    2006- 0207 ( La. 11129106), 
    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.             See State v. Patorno, 2001-
    2585 ( La. App. 1 st Cir. 6121102),    
    822 So. 2d 141
    , 144.
    Pursuant to La. R. S. 14: 95. 1,   it is unlawful for any person who has been
    convicted of certain felonies to possess a firearm. To prove a violation of La. R. S.
    3
    14: 95. 1, the State must prove: ( 1) the defendant' s status as a convicted felon; and
    2) that the defendant was in possession of a firearm. The State must also prove
    that ten years have not elapsed since the date of completion of the punishment for
    the prior felony conviction.          La. R.S, 14: 95. 1( C).     State v. St. Cyre, 2019- 0034
    La. App.       1st Cir. 12119119), 
    292 So. 3d 88
    , 113, writ denied, 2020- 00142 ( La.
    5/ 26120), 
    296 So. 3d 1063
    .
    The defendant notes that to prove an attempt, the State must show he had the
    specific intent to commit the offense. La. R. S. 14: 27( A).               Possession of a firearm
    by a convicted felon is a general intent crime, whereas the attempt to commit that
    offense is a specific intent crime.               State v. Hills, 2010- 1521 (   La. App.     1st Cir.
    3125111),     
    2011 WL 1103455
    , *       7(   unpublished),   writ denied, 2011- 1120 ( La.
    11114111),     
    75 So. 3d 940
    .     Even if the evidence is insufficient to support the
    conviction for attempted possession of a firearm by a felon because it failed to
    establish specific intent, the defendant' s conviction would not be subject to
    reversal on this basis.     The jurisprudence provides that, if a jury is instructed on a
    responsive verdict, without objection by the defendant, then the reviewing court
    may affirm the conviction if the evidence would have supported a conviction of the
    greater     offense,   whether   or    not    the    evidence   supports   the   conviction    of the
    legislatively responsive offense returned by the jury.'              
    Id.
     See La. R.S. 14: 27( 0);
    State ex rel. Elaire v. Blackburn, 
    424 So. 2d 246
    , 251- 52 ( La. 1982), cert. denied,
    
    461 U.S. 959
    , 
    103 S. Ct. 2432
    , 
    77 L.Ed.2d 1318
     ( 1983).
    The defendant does not dispute he has a prior qualifying conviction or that
    the gun was found on the back-seat floor of the car he was driving.                   He disputes,
    however, that he had any knowledge of the gun' s existence and, as such, did not
    possess it or attempt to possess it.          The defendant notes that the car he was driving
    The responsive verdict of attempted possession of a firearm by a convicted felon was included
    in the jury instructions without objection.
    4
    was not registered to him.           He further points out that he never had actual
    possession of the gun, and there was no physical evidence such as fingerprints or
    DNA linking him to the gun.
    Under La. R. S. 14: 95. 1,   actual possession is not a necessary element of the
    offense,   and there is no requirement 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. 2d 741
    , 743 (             La. 1982).       Constructive
    possession of a firearm occurs when the firearm is subject to the defendant' s
    dominion and control. See State v. Frank, 
    549 So. 2d 401
    , 405 ( La. App. 3rd Cir.
    1989) (    finding that gun in plain view on the front seat of a car next to an
    unconscious     defendant    who     was   the       sole   occupant   of   the   car    constituted
    constructive possession of the gun, despite defendant' s claims that he did not own
    the car and was unaware of the gun' s presence in the car).              St. Cyre, 292 So. 3d at
    113.
    Dominion and control over a weapon constitutes constructive possession
    even if it is only temporary and even if the control is shared.                         Further, the
    jurisprudence has added an aspect of awareness to the offense of La. R.S. 14: 95. 1.
    Therefore, the State must also prove 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.     St. Cyre, 292 So. 3d at 113. Mere 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. Johnson, 2003- 1228 ( La. 4/ 14/ 04),              
    870 So. 2d 995
    , 999.
    Whether the proof is sufficient to establish possession turns on the facts of each
    case.     See State v. Harris, 94- 0970 ( La. 1218194), 
    647 So. 2d 337
    , 338- 39 (                per
    curiam).    Further, guilty knowledge may be inferred from the circumstances of the
    5
    transaction and proved by direct or circumstantial evidence.      Johnson, 870 So. 2d
    at 998; St. Cyre, 292 So. 3d at 113.
    Herein, when Deputy Galloway first attempted the traffic stop, the defendant
    drove for about another half mile before pulling over. Deputy Galloway observed
    the defendant moving back and forth in the vehicle and leaning over to the
    passenger side.    The defendant then backed up into the deputy' s unit and drove
    forward approximately twenty feet before stopping.       The defendant then got out of
    the vehicle, walked to the front of the vehicle, then went back to the driver' s side
    of the vehicle and leaned his head and both hands inside the vehicle.         The jury
    could have found that all of these actions by the defendant, as a whole, strongly
    suggest the defendant had something in the car that he sought to conceal.          The
    defendant in brief suggests that this furtive movement and leaning inside the
    vehicle could have been his trying to dispose or hide any marijuana located inside
    the vehicle.   The record does not reflect, however, that the police officers found
    marijuana in the vehicle or on the defendant' s person.          Regardless, after the
    defendant was arrested and placed in a jail holding cell the following day, he spoke
    to a male on the phone.       During this recorded conversation, the male asked the
    defendant why he had a gun. The defendant responded, " I        had the gun `` cause me
    and [ Nick] was coming back to the [ city]."
    In State v. Blount, 2001- 844 ( La. App. 5th Cir. 12126101),    806 So -2d 773,
    774, during a traffic stop, as he approached the vehicle, the police officer saw a
    rear passenger make a sudden forward movement. The officer ordered everyone
    out   of the   vehicle,   interviewed the   occupants,   conducted limited pat   down
    searches,   and found a loaded magazine in the defendant' s pocket.        The officer
    searched the vehicle and found a loaded . 380 caliber handgun under the driver' s
    seat toward the rear of the seat.      The Fifth Circuit, in upholding the defendant' s
    conviction for possession of a firearm by a convicted felon, noted that the gun was
    found under the driver' s seat toward the back, was slightly visible,                       and     was
    accessible to the defendant.'       Id. at 776.
    Based on the foregoing facts of this case and the jurisprudence, a juror could
    have reasonably concluded that the defendant was aware of the gun in the car and
    that he constructively possessed it.
    The factfinder can accept or reject the testimony of any witness.                    State v.
    Eby, 2017- 1456 ( La. App. 1st Cir. 4/ 6/ 16),            
    248 So. 3d 420
    , 426, writ denied, 2018-
    0762 ( La. 2/ 11/ 19), 
    263 So. 3d 1153
    .        See State v. Mire, 2014- 2295 ( La. 1/ 27/ 16),
    
    269 So. 3d 698
    , 700- 01 (       per curiam).      The Jackson standard of review does not
    permit a reviewing court to substitute its own appreciation of the evidence for the
    factfinder' s, assess the credibility of witnesses,             or reweigh     evidence.     State v.
    McGhee,        2015- 2140,     2015- 2141 ( La. 6/ 29/ 17),       
    223 So. 3d 1136
    ,    1137 (   per
    curiam);     State v.   Calloway,       2007- 2306 ( La. 1121109),        
    1 So. 3d 417
    , 422 (     per
    curiam).      Thus, in the absence of internal contradiction or irreconcilable conflict
    with the physical evidence, one witness' s testimony, if believed by the factfinder,
    is sufficient to support a factual conclusion.                State v. Higgins, 2003- 1980 ( La.
    4/ 1/ 05),   
    898 So. 2d 1219
    , 1226, cert. denied, 
    546 U.S. 883
    , 
    126 S. Ct. 182
    , 
    163 L.Ed.2d 187
     ( 2005).       An appellate court errs by substituting its appreciation of the
    evidence and credibility of witnesses for that of the factfinder and thereby
    overturning      a   verdict    based     on   an        exculpatory   hypothesis    of    mitigatory
    circumstances presented to, and rationally rejected by, the jury. Eby, 
    248 So. 3d at
    426- 27.
    After a thorough review of the record, we find that the evidence supports the
    jury' s guilty verdict of attempted possession of a firearm by a convicted felon was
    a   proper    responsive   verdict.     See Hills, 
    2011 WL 1103455
     at * 7- 8.                We are
    2 In Blount, 806 So.2d at 775- 76, while the officer stated the defendant admitted ownership of
    the gun, the defendant claimed he had no knowledge of the gun' s presence and denied ever
    admitting ownership of the gun to the police.
    VA
    convinced that viewing the evidence in the light most favorable to the State, any
    rational trier of fact could have found beyond a reasonable doubt, and to the
    exclusion of every reasonable hypothesis of innocence, that the defendant was
    guilty of attempted possession of a firearm by a convicted felon.                This assignment
    of error is without merit.
    ASSIGNMENT OF ERROR NO. 2
    In   his    second     assignment    of    error,     the    defendant     argues   he   was
    impermissibly limited in his voir dire of prospective jurors.
    After more than an hour of questioning by defense counsel, the trial court
    asked him how many more questions he had.                 Defense counsel replied, " A couple
    more hours."     The trial court told him he had only five or ten minutes more for his
    voir dire questions.    Defense counsel objected.             The trial court noted they had
    already been conducting voir dire for three hours ( first              panel) and that it was not
    going to permit defense counsel to "            go on for hours and hours and hours."
    Defense    counsel   stated    he   had   not   been      able    to   discuss   burden   shifting,
    conf rmation bias, feelings about intoxicated drivers, and the right not to testify; he
    then went back to questioning prospective jurors.                Later, the trial court concluded
    voir dire for the first panel and,         following defense counsel lodging another
    objection, the trial court stated the following:
    Certainly. Thank you for that objection. As a brief response,
    and frankly, I don' t feel the need to go delve into it too deeply. The
    defense had way more time on [ voir dire] than the State took. Of
    course, if they would have gone on for too much longer, I would have
    time limited them as well.
    As far as your inability to get to the certain topics, I gave you
    time when I came back.     Certainly I know you wanted to delve into it
    through a whole lot of detail. But some simple questions and answers
    to the entire group, you could have easily gotten through those topics,
    in a general sense enough to inform you as to whether or not they
    would   have been candidates.       And frankly, I think with the
    information you' ve already elicited through the multiple hours of
    voir dire] has been enough.
    I also note that the Supreme Court in 2014 upheld a trial court' s
    decision to limit attorneys to 20 minutes each for [ voir dire].     And I
    gave you way, way, way more than that.             I' m not sure the exact
    amount of time.     But it' s been hours.
    Prior to the second panel being questioned, the trial court stated, in pertinent
    part:
    To give everybody a heads up, I' m not going to impose any type of a
    time limit. But somewhere around the hour and a half mark seems to
    be pretty sufficient. Less would certainly be better. But especially
    considering the simplistic, there' s not too many elements in any of
    these crimes,    around that hour and a half mark, I' m going to start
    looking at it real closely and make sure we are not beating the dead
    horse.  If you want to structure it accordingly, that' s where I' ll be
    looking for.
    With that being said, I' m not going to have a stopwatch.
    Although the accused is entitled to full and complete voir dire as set forth in
    La. Const. Art. I, § 17, the scope of counsel' s examination rests within the sound
    discretion of the trial judge, and voir dire rulings will not be disturbed on appeal
    absent a clear abuse of that discretion. La. Code Crim. P. art. 786; State v. Dyer,
    95- 2368 ( La. App. 1st Cir. 10/ 2/ 96), 
    682 So. 2d 278
    , 280, writ denied, 96- 2570 ( La.
    3121/ 97), 691 So. 2d Sl.    The right to a full voir dire does not afford the defendant
    unlimited inquiry into possible prejudices of prospective jurors,          such   as their
    opinions on evidence or its weight, hypothetical questions, or questions of law that
    call for prejudgment of facts in the case.           State v. Brown, 2018- 01999 ( La.
    9130121), 
    330 So. 3d 199
    , 258, cert. denied,        U.S.____, 
    142 S. Ct. 1702
    , 
    212 L.Ed.2d 596
     ( 2022).
    A trial judge in a criminal case has the discretion to limit voir dire
    examination, as long as the limitation is not so restrictive as to deprive defense
    counsel of a reasonable opportunity to probe to determine a basis for using
    challenges for cause and for the intelligent exercise of peremptory challenges.
    Therefore, when a defendant asserts that he has been deprived of his constitutional
    9
    right to a full and fair noir dire, the reviewing court must examine the entire voir
    dire in order to determine that issue. Brown, 330 So. 3d at 259.
    The defendant alleges in brief he was not permitted to ask more questions
    about intoxication, which resulted in prejudice. The defendant notes he alleged he
    was intoxicated on marijuana at the time of the offense of possession of a firearm
    by a convicted felon. A juror' s feelings, according to the defendant, on this topic
    would have made a difference in how they evaluated the case. The defendant' s
    intoxication, however, had no bearing on whether or not he was in possession of a
    gun.
    The intoxication issue, rather, went to whether he was guilty of aggravated
    assault upon a peace officer; that is, whether he had the intent to strike Deputy
    Galloway with his car.       The defendant was found not guilty of this offense.
    Accordingly,     any   complaint   by   the    defendant   regarding   questions    about
    intoxication was rendered moot.
    We find that the voir dire transcript as a whole does not demonstrate that the
    trial court impermissibly restricted questioning by defense counsel, or show that
    the defense was rendered incapable of adequately assessing the ability of venire
    members to give meaningful consideration to mitigating evidence.                   To   the
    contrary, defense counsel was given ample time to explore many areas of the law
    with the prospective jurors, and no fault can lie with the trial court in ultimately
    limiting voir dire. The trial court' s rulings were consistent with jurisprudence on
    the issue.    See Brown, 330 So. 3d at 264.        This assignment of error is without
    merit.
    10
    ASSIGNMENT OF ERROR NO. 3
    In his third assignment of error, the defendant argues the trial court erred in
    admitting evidence of other crimes.
    Two of the defendant' s calls from jail were played for the jury.                       On the
    second call, the defendant used another inmate' s PIN to make the call.                  Also during
    this recorded call, the defendant said he was using other inmates' PIN codes.
    The defendant asserts herein that this evidence was impermissible pursuant
    to La. Code Evid. art. 404( B)( 1), which provides in pertinent part that other crimes
    evidence is not admissible to prove the character of a person in order to show he
    acted in conformity therewith. Specifically, the defendant contends that allowing
    in evidence that he used someone else' s PIN to make a call prejudiced him because
    it was offered for no other purpose than to show a bad act, or additional criminal
    activity.
    At trial, defense counsel made no objection regarding other crimes evidence.
    Regarding the second call, the only objections lodged were of relevance, and those
    objections    were   overruled.    The      basis    or    ground      for an objection must be
    sufficiently brought to the attention of the trial court to allow it the opportunity to
    make the proper ruling and prevent or cure any error. A defendant is limited on
    appeal to the grounds for the objection articulated at trial.                  State rv. Young, 99-
    1264 ( La. App, 1st Cir. 3/ 31100),    
    764 So. 2d 998
    , 1005.
    An irregularity or error cannot be availed of after the verdict unless it was
    objected to at the time of occurrence.          La. Code Crim. P. art. 841( A). In order to
    preserve     an   issue   for   appellate    review,       a   party    must    state   an   objection.
    contemporaneously with the occurrence of the alleged error, as well as the grounds
    for the objection. State v. Boyette, 52, 411 (            La. App. 2nd Cir. 1/ 16/ 19),      
    264 So. 3d 625
    ,   638- 39.    Accordingly, because the defendant did not make any pretrial
    objections, file any motions to exclude the La. Code Evid. art. 404( B)                  evidence, or
    11
    raise any contemporaneous objections at trial regarding other crimes evidence, he
    has failed to preserve this matter for review on appeal.        See State v. Robinson,
    51, 830 (   La. App. 2nd Cir. 2/ 28/ 18),   
    246 So. 3d 725
    , 734- 35, writ denied, 2018-
    0573 ( La. 2/ 11/ 19),   
    263 So. 3d 897
    , State v. Dilosa, 2001- 0024 ( La. App. 1 st Cir.
    519103), 
    849 So. 2d 657
    , 670- 71, writ denied, 2003- 1601 ( La. 12/ 12/ 03), 
    860 So. 2d 1153
    .   This assignment of error is without merit.
    CONVICTION AND SENTENCE AFFIRMED.
    12
    

Document Info

Docket Number: 2022KA1283

Filed Date: 6/23/2023

Precedential Status: Precedential

Modified Date: 6/25/2023