COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-120-CR
KELLIE PARKER SUTTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellant Kellie Parker Sutton appeals her conviction for unlawful possession
of a firearm. In two issues, Sutton argues that the evidence is legally and factually
insufficient to support her conviction and that the trial court erred by denying her
motion for a directed verdict. W e will affirm.
II. B ACKGROUND
At approximately 2:00 a.m. on November 19, 2008, several officers with the
Fort W orth Police Department approached a house in search of a fugitive they
thought was inside of the house. W hen one of the officers stopped next to a truck
parked in front of the house, Sutton shouted from the house, “I have a gun[;] get your
ass away from my truck or I’ll shoot you.” The officers identified themselves and
walked up to the front porch. A short time later, Sutton opened the front door, told
the officers that the house was hers, and gave them permission to search the house.
Sutton sat on a bed located just inside of the front door as the officers conducted
their search.1
Officers arrested Sutton after they discovered that she was wanted for several
outstanding traffic violations. They searched the immediate area where she had
been sitting during the search of the house for the fugitive and located a loaded
pistol directly underneath the mattress where she had been seated.
At trial, Officer Ryan Stepp testified that an officer observed Sutton naked and
without a weapon before she opened the front door to speak to the police officers.
Stephen Minshew testified that he was the only person at the house that was not
arrested on November 19, 2009, that the house belonged to an individual named
“Dennis,” and that five or six people stayed at the house. Minshew recalled that
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The officers located the fugitive hiding in a bathroom.
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Sutton slept in the “living room,” but he also testified that Sutton did not sleep in the
bed next to the front door.
Sutton moved for a directed verdict on the ground that the State “ha[d] not
proven possession,” but the trial court denied the motion. A jury convicted Sutton
of unlawful possession of a firearm, and the trial court sentenced her to four years’
confinement.
III. S TANDARDS OF R EVIEW
A. Legal Sufficiency
A challenge to the trial court’s ruling on a motion for a directed verdict is, in
actuality, a challenge to the legal sufficiency of the evidence to support the
conviction. Williams v. State, 937 S.W .2d 479, 482 (Tex. Crim. App. 1996); Madden
v. State, 799 S.W .2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954
(1991). In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether 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 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007). This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and
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credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon
1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,
129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may
not re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine whether the
necessary inferences are reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App. 2007). W e must presume
that the factfinder resolved any conflicting inferences in favor of the prosecution and
defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W .3d at 778.
B. Factual Sufficiency
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
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S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to overturn [the]
conviction.” Watson, 204 S.W .3d at 417. We cannot conclude that a conviction is
clearly wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in the
evidence. Id. W e may not simply substitute our judgment for the factfinder’s.
Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim. App.
1997). Unless the record clearly reveals that a different result is appropriate, we
must defer to the jury’s determination of the weight to be given contradictory
testimonial evidence because resolution of the conflict “often turns on an evaluation
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of credibility and demeanor, and those jurors were in attendance when the testimony
was delivered.” Johnson, 23 S.W .3d at 8. Our deference in this regard safeguards
the defendant’s right to a trial by jury. Lancon v. State, 253 S.W .3d 699, 704 (Tex.
Crim. App. 2008).
IV. E VIDENTIARY C HALLENGES
In her first issue, Sutton argues that there is legally and factually insufficient
evidence that she possessed the firearm found under the mattress where she sat
during the officers’ search of the house for the fugitive. She argues that “[u]sing the
‘links’ test, the evidence suggests that [she] did not intentionally and knowingly
possess a firearm.” In her second issue, Sutton argues that the trial court erred by
denying her motion for a directed verdict.
A. Unlawful Possession of a Firearm and Links
The State was required to prove beyond a reasonable doubt that Sutton, a
felon, was in unlawful possession of a firearm. See Tex. Penal Code Ann.
§ 46.04(a)(1) (Vernon Supp. 2009). To establish the offense of unlawful possession
of a firearm by a felon, the State must show that the defendant was previously
convicted of a felony offense and possessed a firearm after the conviction and
before the fifth anniversary of the person’s release from confinement. Id. Sutton
does not dispute that she had a prior felony conviction. Instead, she challenges only
the evidence that she possessed a firearm.
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The penal code defines possession as “actual care, custody, control, or
management.” Id. § 1.07(a)(39) (Vernon Supp. 2009). A person commits a
possession offense only if he voluntarily possesses the prohibited item. Id. § 6.01(a)
(Vernon 2003). Possession is voluntary if the possessor knowingly obtains or
receives the thing possessed or is aware of his control of the thing for a sufficient
time to permit him to terminate his control. Id. § 6.01(b).
If the firearm is not found on the defendant’s person or is not seen in the
defendant’s exclusive care, custody, control, or management, as in this case, the
State must offer additional, independent facts and circumstances that link the
defendant to the firearm. Bates v. State, 155 S.W .3d 212, 216–17 (Tex.
App.—Dallas 2004, no pet.); see Villarreal v. State, Nos. 02-07-00329-CR, 02-07-
00330-CR, 2009 W L 671042, at *1 (Tex. App.—Fort W orth Mar. 12, 2009, pet. ref’d)
(mem. op., not designated for publication) (“The . . . links doctrine also applies to the
possession of firearms.”). The purpose of linking the accused to the firearm is to
protect innocent bystanders from conviction solely on their fortuitous proximity to the
firearm. See Poindexter v. State, 153 S.W .3d 402, 406 (Tex. Crim. App. 2005).
Such links may be established by either direct or circumstantial evidence. See
Evans v. State, 202 S.W .3d 158, 161–62 (Tex. Crim. App. 2006). An appellate court
examines factors such as whether the firearm was in plain view, whether the
defendant owned the premises where the firearm was found, whether the defendant
made incriminating statements, whether the defendant was in close proximity to the
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firearm and had ready access to it, whether the defendant attempted to flee, whether
the defendant’s conduct indicated a consciousness of guilt, whether the defendant
had a special connection to the firearm, and whether the firearm was found in an
enclosed space. Smith v. State, 176 S.W .3d 907, 916 (Tex. App.—Dallas 2005, pet.
ref’d); Westbrook v. State, No. 02-07-00455-CR, 2008 W L 5672533, at *4 (Tex.
App.—Fort W orth Feb. 26, 2009, pet. ref’d) (mem. op, not designated for
publication). Significantly, it is the logical force of the factors, not the number of
factors present, that determines whether the elements of the offense have been
established. See Smith, 176 S.W .3d at 916.
B. Legal Sufficiency Review
There are several facts that link Sutton to the firearm found under the
mattress. First and foremost, Sutton made incriminating statements to the officers.
She affirmatively declared, “I have a gun,” and “[G]et your ass away from my truck
or I’ll shoot you.” [Emphases added.] Sutton’s statements that she had a gun and
that she would shoot the person near her truck are highly probative, logically forceful
links that she possessed a firearm for the simple reason that when she announced
to the police, “I have a gun,” she admitted possessing a firearm. Sutton’s
admissions essentially constitute an explicit recognition by her that she exercised
actual care, custody, control, or management over a firearm. See Rhodes v. State,
No. 12-01-00268-CR, 2003 W L 22240365, at *2 (Tex. App.—Tyler Sept. 30, 2003,
no pet.) (mem. op., not designated for publication) (holding evidence legally
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sufficient to support conviction for unlawful possession of a firearm when defendant
testified that he owned, transported, and fired firearm); Moore v. State, No. 07-01-
00477-CR, 2002 W L 31627079, at *1–2 (Tex. App.—Amarillo Nov. 22, 2002, pet.
ref’d) (mem. op., not designated for publication) (concluding appeal was frivolous
and mentioning that appellant admitted possessing firearm).
Another fact that links Sutton to the firearm is her admission of ownership or
responsibility for the house in which the firearm was found. Officer Brian Oglesby
testified in part as follows:
[State]: W hat did she tell you about the house?
[Officer Oglesby]: W e asked her if it was her residence, basically, just
to establish some sort of residency. She said that it was her house and
she didn’t have a problem with us checking. [Emphasis added.]
As the State points out, the jury could have rationally inferred from Sutton’s
statement of ownership or responsibility over the house that she could exercise care,
custody, and control over the house’s contents, including the gun. See Hughes v.
State, 612 S.W .2d 581, 583 (Tex. Crim. App. 1981) (stating that appellant’s
residency is a factor in determining if she exercised care, custody, or management).
Another fact that links Sutton to the firearm is the proximity of the mattress
under which the gun was found to the front door of the house where Sutton yelled
at the officers. Officer Oglesby testified that Sutton was standing at the front
doorway when she yelled at the officers. After Sutton yelled at the officers, she
closed the front door for a brief period before coming back to the door to speak with
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the officers. Officer Stepp testified that the bed where the gun was found was
located only “inches” away from the front door and that it would only take a few
seconds for someone who was at the front door to place the gun underneath the
mattress. According to Officer Oglesby, the grip of the gun was facing towards the
outside edge of the mattress, and the gun was “readily grabbable.” Considering the
proximity of the mattress to the front door, the jury could rationally have inferred that
Sutton exercised actual care, custody, or control over the gun before placing it under
the mattress and after yelling at the officers that she had a gun. See Gipson v.
State, Nos. 05-01-00770-CR, 05-01-00771-CR, 05-01-00772-CR, 05-01-00773-CR,
2003 W L 21053918, at *5 (Tex. App.—Dallas May 12, 2003, no pet.) (not designated
for publication) (holding that evidence was sufficient to support conviction for
unlawful possession of a firearm in part because pistol was conveniently accessible
to appellant, who was seated on couch).
Another link, though less logically forceful than those already addressed, is the
fact that the gun was found “directly beneath” where Sutton was sitting when the
officers searched the house. Officer Oglesby testified that the officers asked Sutton
to have a seat but did not tell her to sit on the bed. Also, Sutton was the only person
at the front of the house—which is where officers found the gun—when the officers
entered the house. The fugitive that the officers were searching for was hiding in a
bathroom at the back of the house, and Minshew testified that he was sleeping in his
bedroom at the back of the house.
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Viewing all of the evidence in the light most favorable to the prosecution,
giving full play to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts, a rational jury could have found beyond a reasonable doubt
that Sutton possessed the gun that officers discovered underneath the mattress that
Sutton sat on during the officers’ search of the house and that was located only
“inches” away from the front door of the house where Sutton yelled to the officers,
“I have a gun[;] get your ass away from my truck or I’ll shoot you.” See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778. Accordingly, we hold
that the evidence is legally sufficient to support Sutton’s conviction. W e overrule the
part of Sutton’s first issue challenging the legal sufficiency of the evidence and her
second issue.
C. Factual Sufficiency
Sutton argues that the evidence is insufficient to show that she possessed the
gun because (1) Minshew testified that “Dennis” owned the house, (2) she followed
the officers’ commands to sit down on furniture that was nearest to the door, (3) the
bed where the gun was found opened into one of the living rooms in the house and
was where another individual was staying, and (4) an officer saw her naked and
without a gun. W e address Sutton’s arguments relating to her being naked and
without a gun first.
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Officer Stepp is the only witness who testified about Sutton being naked and
without a gun. He testified on direct examination as follows:
[State]: How did you get into the house?
[Officer Stepp]: W e were waiting for the person that -- the female that
yelled that comment to come to the door and talk with us. It took a few
minutes and she opened the door.
[State]: Okay. W hen you say it took a few minutes, do you know why
it took a few minutes?
[Officer Stepp]: I assumed she was putting clothes on. W e had
information over our earpieces that there was a female that was
observed naked inside the residence and told us to hold on.
Officer Stepp testified on cross-examination as follows:
[Defense counsel]: Is it Officer Stepp?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Did you ever see my client in possession of that
weapon?
[Officer Stepp]: No, sir.
[Defense counsel]: Okay. That’s a no?
[Officer Stepp]: Yes, correct, sir. No, sir, I did not.
[Defense counsel]: Let me ask you this.
[Defense counsel]: May I approach that board, Your Honor?
THE COURT: Yes, sir.
[Defense counsel]: This bed right here, right here, the bed where the
gun was found?
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[Officer Stepp]: Yes, sir.
[Defense counsel]: How close is that to the front door?
[Officer Stepp]: Inches, inches away from the front door.
[Defense counsel]: If someone was at that front door with a weapon
and then stuck it underneath the mattress, that would only take a
couple of seconds, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: I think it’s your testimony that at some point my
client closed the door while y’all were still outside before y’all entered
the house, right?
[Officer Stepp]: Yes, sir.
[Defense counsel]: She was gone for a couple of minutes I think you
said, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Or I don’t want to put words in your mouth. The
door was closed for a couple of minutes and then she reappeared,
correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Okay. I think you testified that someone said that
my client was naked; is that correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: W as that, I mean, was that one of the other
officers?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Okay. So there was an officer that made a visual
and saw that my client was naked?
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[Officer Stepp]: Saw a female that was naked, yes.
[Defense counsel]: Saw a female that was naked?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Did that officer see a weapon at that point?
[Officer Stepp]: No, sir.
[Defense counsel]: So there was a female. And we know there was
only one female in the house, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Is it safe to assume that that female was my client?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Client at the door naked with no weapon?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Closes the door for a couple of minutes?
[Officer Stepp]: (Moving head up and down).
[Defense counsel]: I need you to answer.
[Officer Stepp]: Yes, sir. Yes, sir.
[Defense counsel]: And then she reappears with clothes on?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Now, is it fair to say that in that amount of time she
went to put clothes on?
[Officer Stepp]: Yes, sir.
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[Defense counsel]: Okay. Certainly if she had a weapon, it would only
take a couple of seconds, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: But we know she didn’t have a weapon because
she was naked?
[Officer Stepp]: No weapon was seen in her hands when she was seen
naked. [Emphases added.]
Sutton makes only two statements in her argument relevant to this evidence.
She first states, “Neither officer could testify that they personally saw [Sutton]
possess a firearm. In fact, Officer Stepp testified that when [Sutton] came to the
door and yelled at the officers she was nude.” The second statement that Sutton
makes regarding her being naked is as follows: “Officer Stepp further testified that
[Sutton] did not have a weapon in her possession when she was undressed.”
Following Sutton’s logic, her argument appears to be that because she did not have
a firearm when she was naked, and she was naked when she was at the front door
and yelled at the officers, then she did not possess a firearm when she was at the
front door and yelled at the officers. Sutton’s argument emphasizes that no one
actually saw her with a firearm in her hands. But whether the officers actually saw
Sutton with a firearm is not conclusive of whether she “possessed” the firearm; that
is, whether she had a firearm in her care, custody, control, or management. Rather,
we must examine the record for additional, independent facts and circumstances
that link Sutton to the firearm. Considering all of the evidence, including Sutton’s
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statements to the officers, her close proximity to where the firearm was ultimately
found, and her admission of ownership or responsibility for the house, the jury was
free to infer and conclude, as it obviously did, that Sutton had possession—that is,
exercised actual care, custody, control, or management—of the firearm even though
none of the officers actually saw her with a firearm in her hands. The evidence that
Sutton said that the house was her residence and that she allowed the police officers
to enter; that she said, “I have a gun”; that she sat down by her own choice on the
mattress under which the gun was found; and that she was within inches of the
mattress where the gun was found when she was at the front door and made the
statement, “I have a gun,” is not rendered factually insufficient as a result of Officer
Stepp’s testimony that no one saw Sutton with a firearm in her hands when she was
seen naked. See Westbrook v. State, No. 02-07-00455-CR, 2008 W L 5672533, at
*5 (Tex. App.—Fort W orth Feb. 26, 2009, pet. ref’d) (mem. op., not designated for
publication) (holding that the evidence was legally and factually sufficient to support
conviction for unlawful possession of a firearm by a felon when officers discovered
a firearm that was wrapped in a denim shirt that appellant was able to directly point
out to the officers in a bedroom); Ramos v. State, Nos. 02-07-00118-CR, 02-07-
00119-CR, 2008 W L 623777, at *7 (Tex. App.—Fort W orth Mar. 6, 2008, pet. ref’d)
(mem. op., not designated for publication) (holding that the evidence was legally and
factually sufficient to support conviction for unlawful possession of a firearm when
shotgun was found in master bedroom closet, which appellant shared with his wife);
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Smith v. State, No. 12-06-00021-CR, 2007 W L 2178541, at *3 (Tex. App.—Tyler
July 31, 2007, no pet) (mem. op, not designated for publication) (holding that the
evidence was legally and factually sufficient to support conviction for unlawful
possession of a firearm when pistol was found in plain view in linen closet next to
bedroom where appellant slept).
Regarding the other bases for Sutton’s factual sufficiency argument, as the
trier of fact, the jury was free to disbelieve or give less weight to Minshew’s testimony
regarding who owned the house and who stayed where in the house. See Lancon,
253 S.W .3d at 706 (reaffirming that “an appellate court must give deference to a
jury’s decision regarding what weight to give contradictory testimonial evidence
because the decision is most likely based on an evaluation of credibility and
demeanor, which the jury is in the better position to judge”). Further, the evidence
that supports the verdict is not rendered insufficient merely because Sutton
presented conflicting evidence. See Anderson v. State, 701 S.W .2d 868, 872 (Tex.
Crim. App. 1985), cert. denied, 479 U.S. 870 (1986); see also Steadman, 280
S.W .3d at 247 (reasoning that evidence is always factually sufficient when it
preponderates in favor of the conviction).
The dissent seems to contend that there is no evidence Sutton exercised
actual care, custody, control, or management over the handgun because no one
actually saw her with a gun in her hand. The dissent demands more than what the
law requires. Contrary to the dissent’s proposition, although it is undisputed that no
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one saw Sutton with a gun in her hands, that does not end the possession inquiry.
See, e.g., James v. State, 264 S.W .3d 215, 219–21 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d) (applying links analysis and holding that the evidence was legally
and factually sufficient to support conviction for unlawful possession of a firearm
even though no one saw appellant handle the gun). As we already explained, if the
firearm is not found on the defendant’s person or is not in the defendant’s exclusive
possession, as in this case, the State must offer additional, independent facts and
circumstances that link the defendant to the firearm to demonstrate actual care,
custody, control, or management of the firearm. See Bates, 155 S.W .3d at 216–17;
see also Evans, 202 S.W .3d at 162 (stating that mere presence is insufficient to
establish possession). The entire analysis above examines the numerous
independent facts and circumstances that link Sutton to the firearm discovered by
the police under the mattress: it is undisputed that Sutton was the only female in the
house; that she was at the front door when she yelled, “I have a gun[;] get your ass
away from my truck or I’ll shoot you”; that the bed and mattress where the readily
accessible gun was found were located only “inches” away from the front door; and
that she was sitting on the mattress underneath which the gun was found.
Viewing all the evidence in a neutral light, favoring neither party, we conclude
that the evidence supporting the conviction is not so weak that the jury’s
determination is clearly wrong and manifestly unjust, nor does the conflicting
evidence so greatly outweigh the evidence supporting the conviction that the jury’s
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determination is manifestly unjust. See Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. Accordingly, we hold that the evidence is factually sufficient
to support Sutton’s conviction. W e overrule the remainder of Sutton’s first issue
challenging the factual sufficiency of the evidence.
V. C ONCLUSION
Having overruled Sutton’s two issues, we affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: August 19, 2010
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-120-CR
KELLIE PARKER SUTTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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DISSENTING OPINION
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I must respectfully dissent because I cannot follow the majority’s analysis of
a very clear record and because I believe that the majority has not addressed the
questions fundamental to the disposition of this case.
Officer Stepp confirmed that another officer saw Appellant Kellie Parker Sutton
“at the door naked with no weapon.”
The majority characterizes the following as illogical: She did not possess a
firearm when she was naked. She was naked when she was at the front door and
yelled at the officers. Therefore, she did not possess a firearm when she was at the
front door and yelled at the officers. Respectfully, the conclusion is logical. If
Appellant was seen naked at the front door, and no weapon was seen in her hands
when she was naked, is the majority suggesting that the gun was someplace on her
body?
The majority works too hard to complicate the record. There is no testimony
that anyone saw Appellant with a firearm on her person. Taking the record as it is
without rewriting it or skewing it, none of the police officers saw a firearm on
Appellant’s person, even when they saw her naked. They did watch her stand in her
doorway and yell, “I have a gun[;] get your ass away from my truck or I’ll shoot you.”
The issues the majority should address based on this uncomplicated record
are:
(1) If Appellant was the person yelling, would her knowledge that another person
in the house had a gun in his bedroom be sufficient evidence that Appellant
exercised care, custody, and control over that gun?
(2) Does a threat to use a gun constitute the exercise of care, custody, and
control over a firearm?
(3) Is the threat evidence that Appellant knew that that specific firearm was
located in a place to which she had access?
(4) Is following police officers’ orders to sit down in someone else’s room by
sitting on a bed where officers later found a firearm evidence that Appellant
exercised care, custody, or control over that firearm or that she knew the
firearm was located under the mattress when the firearm was not visible until
officers searched under the mattress?
Because the majority fails to address the clear issues raised by the record, I
respectfully dissent.
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LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 19, 2010
3