State of Louisiana v. Ladarrius Hodge

Judgment rendered December 18, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,044-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

LADARRIUS HODGE Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 382,125

Honorable Ramona L. Emanuel, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Chad Ikerd

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

REBECCA ARMAND EDWARDS
FERNANDO BERNARD GRIDER, JR.
CHRISTOPHER BOWMAN
Assistant District Attorneys

*****

Before STONE, ROBINSON, and MARCOTTE, JJ.

ROBINSON, J.

Ladarrius Hodge (“Hodge”) was charged with one count of possession

of a firearm or carrying a concealed weapon by a convicted felon and found

guilty following a jury trial. Hodge only appeared for the first day of jury

selection, failing to appear for the second and final day of jury selection and

trial on the merits.

Hodge appeared at the sentencing hearing and his counsel filed

motions for a new trial and post-judgment verdict of acquittal, which were

denied. The trial court proceeded with sentencing immediately following

denial of the motions instead of waiting the requisite 24-hour waiting period

or obtaining a waiver of the delay. Hodge was sentenced to 18 years at hard

labor without the benefit of probation, parole, or suspension of sentence.

Hodge filed a pro se motion to reconsider sentence shortly after

sentencing, but it was not immediately ruled upon. Hodge’s counsel filed a

motion to appeal the conviction two months after sentencing, but before the

pro se motion to reconsider sentence was ruled upon. The court signed the

motion to appeal and appointed appellate counsel, although the motion to

reconsider was not heard and denied until several months later.

For the following reasons, Hodge’s conviction is affirmed, and his

sentence is vacated and remanded to the trial court for sentencing.

FACTS AND PROCEDURAL HISTORY

On April 3, 2021, Sonique Kennon (“Kennon”) was driving in

Shreveport with Hodge, her sister, her child, and her sister’s two children in

the vehicle, when she was pulled over by Shreveport Police Department

(“SPD”) Officers Monica Davis and Maria Gardner for driving with high

beam headlights. Once the vehicle was stopped, Officer Davis saw a plastic

cover obscuring the license plate. Upon approaching the vehicle, Officer

Davis smelled the odor of burnt marijuana emanating from the vehicle.

Kennon did not have a license and two of the three children in the backseat

were unrestrained. Kennon was instructed to exit the vehicle since she did

not have identification and was questioned about possible marijuana in the

vehicle. Kennon stated that she did not have any marijuana but did not

know about any other adults in the vehicle. She was then placed in the

patrol vehicle. Officer Davis approached Hodge in the passenger seat and

instructed him to exit the vehicle. Hodge was also questioned about the

marijuana and admitted that it was in a cup in the vehicle. Officer Davis

then arrested Hodge and placed him in a different patrol car.

Both Officers Davis and Gardner testified that they observed a black

backpack between Hodge’s feet during the stop. Officer Davis searched the

backpack and discovered a loaded 9-millimeter HiPoint firearm with an

extended magazine. Kennon told Officer Davis upon discovery of the

firearm that it belonged to her. A check on the firearm was run and it was

discovered that the firearm had been reported as stolen. Kennon then told

Officer Gardner that she reported the firearm as stolen shortly after she

purchased it and had given the firearm to Hodge.

Hodge was charged on May 3, 2021, with one count of possession of

a Schedule I CDS and one count of possession of a firearm or carrying a

concealed weapon by a convicted felon. Hodge’s prior felony was for

unauthorized entry of an inhabited dwelling, to which he pled guilty on

December 3, 2019, and was sentenced to pay a fine of $250 and court costs,

or in default thereof, to serve 90 days in jail, and was placed on supervised

probation for a period of 18 months. An amended bill was filed on April 20,
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2023, to charge Hodge with only one count of possession of a firearm or

carrying a concealed weapon by a convicted felon.

Hodge’s jury trial began on April 24, 2023, with the commencement

of jury selection. Hodge appeared the first day but failed to appear for the

next two days of trial. The State moved to proceed with the trial, to which

Hodge’s counsel objected. The court overruled the objection and proceeded

with the trial in Hodge’s absence. After jury selection was completed,

defense counsel presented a motion to suppress based on an unlawful stop.

The State objected to the motion as untimely. The court ruled the motion

could at least be “filed,” but still denied the motion as untimely. The filed

motion to suppress was not originally in the appellate record but was later

included following this Court’s granting of Hodge’s motion to supplement

the record.

Kennon was the sole witness for the defense. She testified that the

backpack was already in the car when she picked up Hodge from work, but

she referred to the backpack as “Ladarrius’ backpack” during later

questioning. She explained that Hodge had purchased the backpack and it

belonged to him, but that she had been using it and had put it in the car. She

stated that Hodge was unaware of the contents of the backpack. Kennon

also testified that the gun found in the backpack belonged to her, and that

she had placed it in the backpack, and the backpack in the car, without

Hodge’s knowledge. After a MVS recording excerpt was played for her

recollection, Kennon was asked why she had referred to the gun as “his”

during the police interview, and she replied that she had gotten the gun from

her brother. Kennon was also questioned regarding the gun being reported

stolen and she testified that she did not report it stolen, but that her brother
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did. However, another excerpt from the MVS recording was played where

Kennon admitted that she had told the police that she reported the gun stolen

and had given it to Hodge. She stated that she had lied to police to avoid

being arrested. Kennon continued to deny the gun was in Hodge’s

possession because she was the one using the backpack. Kennon further

testified that she had told Hodge’s lawyer, the DA, and Hodge’s

grandmother that the gun belonged to her.

Hodge was unanimously found guilty by a Caddo Parish jury of one

count of possession of a firearm or carrying a concealed weapon by a

convicted felon. Hodge appeared for the September 7, 2023, sentencing

hearing, at which time the court denied Hodge’s motions for a new trial and

post-judgment verdict of acquittal. The trial court proceeded with

sentencing without a waiver of the 24-hour waiting period. Hodge was

sentenced to 18 years at hard labor without the benefit of probation, parole,

or suspension of sentence.

Motions for a new trial and post-verdict judgment of acquittal were

filed the same day as the sentencing hearing on September 7, 2023, both of

which were immediately denied. Hodge also filed a pro se motion to

reconsider sentence on September 29, 2023, approximately three weeks after

the sentencing hearing. The motion was not immediately ruled upon.

Hodge’s counsel filed a motion to appeal the conviction two months after

sentencing, but before the pro se motion to reconsider sentence was ruled

upon. The court signed the motion to appeal and appointed appellate

counsel, although the motion to reconsider was not heard and denied until

several months later.

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DISCUSSION

Sufficiency of Evidence

Hodge argues that the evidence introduced at trial, when viewed under

the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781.

61 L. Ed. 2d 560 (1979), was insufficient to prove beyond a reasonable

doubt that he was guilty of possession of a firearm or carrying a concealed

weapon by a convicted felon. He refers to the rule regarding circumstantial

evidence provided by La. R.S. 15:438, which states that, “assuming every

fact to be proved that the evidence tends to prove, in order to convict, every

reasonable hypothesis of innocence must be excluded.”

Hodge refers to the felon in possession of a firearm statute, La. R.S.

14:95.1A(1), which states, in pertinent part, “it is unlawful for any person

who has been convicted of . . . unauthorized entry of an inhabited dwelling

… to possess a firearm or carry a concealed weapon.” The essential

elements of the offense are: 1) the defendant possessed the firearm, 2) the

defendant had a prior conviction for an enumerated felony, 3) the defendant

possessed the firearm within ten years of the prior conviction, and 4) the

defendant had the general intent to commit the offense. State v. Husband,

437 So. 2d 269 (La. 1983).

Hodge argues that there was no direct evidence of his actual

possession of the gun because there was no witness testimony that he was

seen with the gun, no video evidence of him possessing a gun, no

confession, the gun was not in plain view but concealed in a bag, no DNA,

and there was no forensic evidence showing that he possessed the gun at any

time. Hodge points out that Kennon testified the gun belonged to her, she

had been using Hodge’s backpack, and she placed the bag in the car. She
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testified that Hodge was never told about the gun being in the bag when she

picked him up. Hodge further claims that there was simply a

miscommunication when Kennon responded affirmatively to police

questioning whether it was “his” gun, because she meant the gun belonged

to her brother, not Hodge.

Hodge also claims that the jury did not receive proper instructions as

to the charge because “possession” was not defined to include both actual

and constructive possession and did not distinguish between the two types.

As such, the jury was only allowed a finding of guilt based on a finding of

“possession,” when constructive possession should have been defined to

include elements such as “dominion and control,” “intent,” and

“knowledge.” Hodge nonetheless argues that, even if the jury had been

properly instructed as to the definition of possession, the State failed to

prove constructive possession because there was no direct evidence of his

intent to possess the weapon or knowledge of its presence. He asserts that

the State only showed that he was physically near the backpack that

happened to contain a gun because it was on the floorboard of the passenger

seat near where he was sitting. He claims that the State never proved he had

knowledge of the contents of the bag or that he intended to possess the gun,

and his proximity did not equate to dominion and control.

Hodge refers to the Louisiana Supreme Court’s ruling in State v.

Haddad, 99-1272 (La. 2/29/00), 767 So. 2d 682, cert. denied, 531 U.S.

1070, 121 S. Ct. 757 (2001), that the State must prove the offender exercised

dominion and control over the firearm. When the perpetrator has not carried

the firearm on his person, the State must show that the defendant’s intent

amounted to an intent to possess rather than a mere acquiescence to the fact
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that there was a firearm in his presence. Id. The 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, 03-1228

(La. 4/14/04), 870 So. 2d 995; State v. Walker, 369 So. 2d 1345 (La. 1979).

The State argues that it proved beyond a reasonable doubt that Hodge

had dominion and control of the firearm and possessed it in violation of La.

R.S. 14:95.1. The jury heard testimony from Officers Davis and Gardner

that the backpack was between Hodge’s feet, directly within his reach and

control. After removing Kennon and Hodge from the vehicle, Officer Davis

opened the backpack and found the loaded 9-millimeter HiPoint firearm

with extended magazine inside. Kennon told Officer Gardner that she

purchased the firearm, reported it stolen, and then gave it to Hodge because

she did not want it tied back to her. The State points out the contradictions

in Kennon’s testimony regarding who owned the backpack and gun,

claiming that she was driven by her desire to protect Hodge, the father of her

children. Kennon ultimately admitted that she got the gun from her brother,

gave it to Hodge, and had told the police that she knew Hodge had the gun.

This admission corresponded with Officer Gardner’s testimony that Kennon

told her she reported the gun stolen and then gave it to Hodge.

The State claims that the jury’s verdict shows that it did not find

credible Kennon’s story about using Hodge’s backpack and placing it in the

vehicle without Hodge having any knowledge of it or the firearm within.

Further, the jury accepted what Kennon told Officer Gardner during the stop

and finally admitted, at the close of cross-examination, that she had given

the gun to Hodge and that she knew he had it. The State urges that, from
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Kennon’s admissions and the circumstances of the case, the jury could find

beyond a reasonable doubt that Hodge had awareness of his gun’s presence

in his backpack at his feet and the general intent to possess the gun.

The State also addressed Hodge’s argument that the jury could not

find him guilty as charged because he was not in actual possession and the

court did not instruct the jury on constructive possession. It claims that

Hodge’s argument is not a sufficiency of the evidence issue since it does not

go to whether the evidence presented at trial was sufficient for the jury to

find the element of possession of the firearm proved beyond a reasonable

doubt, and only errors patent and properly designated assignments of error

are reviewable on appeal. La. C. Cr. P. art. 920; State v. Daigle, 344 So. 2d

1380 (La. 1977); State v. Gene, 587 So. 2d 18 (La. App. 2 Cir. 1991), writ

denied, 604 So. 2d 993 (La. 1992). Erroneous jury instructions are not error

patent, and a defendant may not complain on appeal about the jury charge

absent a contemporaneous objection. State ex rel. Ross v. Blackburn, 403

So. 2d 719 (La. 1981); State v. Caston, 561 So. 2d 941 (La. App. 2 Cir.

1990). La. C. Cr. P. art. 801(C), states, in relevant part, “A party may not

assign as error the giving or failure to give a jury charge or any portion

thereof unless an objection thereto is made before the jury retires or within

such time as the court may reasonably cure the alleged error.” The State

asserts that since Hodge did not preserve the error for review through

objection, where he did not assign it as error, and where there is no error

patent, the jury instruction issue included as part of the sufficiency of the

evidence assignment of error is not properly before the court for review and

should not be considered.

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Nevertheless, the State argues that, even if Hodge’s sufficiency of the

evidence argument is considered, the instructions were proper, because La.

C. Cr. P. art. 802(A) provides only that the court shall charge the jury as to

the law applicable to the case. The State asserts that the jury instruction

sufficiently tracked the elements of the offense as set forth in La. R.S.

14:95.1, which simply prohibits a defendant previously convicted of an

enumerated felony from possessing a firearm within ten years of the date of

completion of his sentence, probation, parole, or suspension of sentence.

The statute does not define the term “possess” and does not create separate

offenses based on whether such possession is actual or constructive. The

Louisiana Supreme Court has recognized that “possess,” which encompasses

both actual and constructive possession, is not a term that need be statutorily

defined because its meaning is “well known and commonly understood.”

State v. Sandifer, 95-2226 (La. 9/5/96), 679 So. 2d 1324; State v. Blanchard,

99-3439 (La. 1/18/01), 776 So. 2d 1165. The principles that govern what

constitutes constructive possession are jurisprudential, not statutory elements

of the offense that must be proved to convict.

The State argues that, applying their common sense and knowledge to

the evidence presented, the jury found that the State proved beyond a

reasonable doubt that Hodge possessed the firearm. On sufficiency of the

evidence review, the court applies the jurisprudential principles pertaining to

constructive possession to determine whether the evidence was

constitutionally sufficient to support the jury’s verdict. The absence of

instruction on constructive possession does not preclude the jury from

finding Hodge guilty of the charged offense and does not provide the

reviewing court grounds to find the evidence insufficient.
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The standard by which appellate courts are to review the sufficiency

of evidence in criminal prosecutions is provided in Jackson, supra, as

follows:

A conviction must be based on proof sufficient for any rational
trier of fact, when viewing the evidence in the light most
favorable to the prosecution, to find the essential elements of the
crime beyond a reasonable doubt.

In conducting a Jackson review, the reviewing court may not

substitute its own appreciation of the evidence for that of the trier of fact,

assess the credibility of witnesses, or reweigh the evidence. State v. Pigford,

05-0477 (La. 2/22/06), 922 So. 2d 517; State v. Smith, 94-3116 (La.

10/16/95), 661 So. 2d 442; State v. Nelson, 44,762 (La. App. 2 Cir.

10/28/09), 25 So. 3d 905; State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1

So. 3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So. 3d 297. Credibility

determinations are made by the trier of fact, who may, within the bounds of

rationality, accept or reject in whole or part, the testimony of any witness.

Johnson, supra; State v. Carr, 55,692 (La. App. 2 Cir. 5/22/24), 387 So. 3d

886. A jury’s decision to accept or reject the testimony of a witness in

whole or in part is entitled to great deference. State v. Eason, 43,788 (La.

App. 2 Cir. 2/25/09), 3 So. 3d 685, writ denied, 09-0725 (La. 12/11/09), 23

So. 3d. 913. The fact-finder weighs the respective credibility of the

witnesses, and appellate courts will generally not second-guess those

determinations. State v. Dabney, 02-0934 (La. 4/9/03), 842 So. 2d 326;

State ex rel. Graffagnino v. King, 436 So. 2d 559 (La. 1983). On appellate

review, the court does not determine whether another possible hypothesis

suggested by a defendant could afford an exculpatory explanation of events,

but instead must evaluate the evidence in a light most favorable to the State

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and determine whether the possible hypothesis is sufficiently reasonable that

a rational juror could not have found proof of guilt beyond a reasonable

doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So. 2d 78.

The Jackson standard applies in cases involving both direct and

circumstantial evidence. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Prude, 53,193 (La. App. 2 Cir. 3/4/20), 293 So. 3d 183; State v. Hill, 47,568

(La. App. 2 Cir. 9/26/12), 106 So. 3d 617; State v. Henry, 47,323 (La. App.

2 Cir. 7/25/12), 103 So. 3d 424, writ denied, 12-1917 (La. 3/8/13), 109 So.

3d 356; State v. Williams, 33,881 (La. App. 2 Cir. 9/27/00), 768 So. 2d 728,

writ denied, 00-3099 (La. 10/5/01), 798 So. 2d 963. The facts established by

the direct evidence and inferred from the circumstances established by that

evidence must be sufficient for a rational trier of fact to find beyond a

reasonable doubt that the defendant was guilty of every essential element of

the crime. Sutton, supra; State v. Taylor, 28,736 (La. App. 2 Cir. 10/30/96),

682 So. 2d 827. If a case rests essentially upon circumstantial evidence, that

evidence must exclude every reasonable hypothesis of innocence. La. R.S.

15:438; State v. Young, 20-1041 (La. 5/13/21), 320 So. 3d 356; State v.

Alexander, 53,449 (La. App. 2 Cir. 11/18/20), 306 So. 3d 594, writ denied,

20-01449 (La. 6/22/22), 339 So. 3d 642. The circumstantial evidence rule is

neither separate from nor stricter than the Jackson standard of review.

Taylor, supra.

First, regardless of whether Hodge’s argument regarding improper

jury instructions due to failure to define constructive possession were

preserved for appeal, we agree with the State that the instructions were

proper. The jury instruction sufficiently tracked the elements of the offense

as set forth in La. R.S. 14:95.1. The term “possess” is not defined in the
11

statute because it has a commonly understood meaning. Further, there is no

distinction in the offense based on whether possession is actual or

constructive.

It is uncontradicted that a firearm was found in a backpack that was

owned by Hodge, which was located on the passenger side floorboard where

Hodge was seated when the vehicle was stopped by police. There is no

question that the gun was reported stolen by Kennon and that she told police

while in the patrol vehicle after the stop that the gun did not belong to her.

Kennon, Hodge’s girlfriend and mother to his children, was the only witness

for the defense. She initially testified that the firearm belonged to her, she

was using Hodge’s backpack from which the firearm had been found, and

Hodge had no knowledge that the firearm was in the backpack. However,

following cross-examination, Kennon admitted that she had told police the

gun belonged to her, but she had given it to Hodge, though she continued to

claim he had no knowledge that the gun was in the backpack at the time of

the stop. Kennon’s credibility was clearly called into question. The jury’s

decision to reject her testimony is entitled to great deference. Further,

although a finding of possession – the only element in question in this case –

was based mostly upon circumstantial evidence, the evidence was sufficient

for a rational trier of fact to find beyond a reasonable doubt that Hodge was

guilty of the crime of felon in possession of a firearm.

Sentencing Delay

Hodge challenged the sentences. He points out that the trial court

sentenced him directly after ruling on the motions for a new trial and post-

verdict judgment of acquittal and did not honor the statutory time delay of

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24 hours or obtain an express waiver of the waiting period. He refers to the

provisions of La. C. Cr. P. art. 873, as follows:

If a defendant is convicted of a felony, at least three days shall
elapse between conviction and sentence. If a motion for a new
trial, or in arrest of judgment, is filed, sentence shall not be
imposed until at least 24 hours after the motion is overruled. If
the defendant expressly waives a delay provided for in this article
or pleads guilty, sentence may be imposed immediately.

The State acquiesces that the record does not reflect any waiver of the

sentencing delay by Hodge following the denial of the post-trial motions. It

notes that because Hodge has raised the issue as an assignment of error and

challenges his sentence on appeal, which is neither a mandatory nor

minimum sentence, his argument that the failure to observe the 24-hour

sentencing delay required by La. C. Cr. P. art. 873 appears to require that his

sentence be vacated and the matter remanded for resentencing.

When a sentence is challenged as excessive, regardless of a showing

of prejudice, the trial court’s failure to honor the statutory delays is error

patent and requires a reversal of the sentence and remand for resentencing.

State v. Augustine, 555 So. 2d 1331 (La. 1990); State v. White, 483 So. 2d

1005 (La. 1986). In State v. Francis, 18-0227 (La. 4/29/19), 268 So. 3d 289,

citing State v. Augustine, 555 So. 2d 1331 (La. 1990), the Louisiana

Supreme Court granted a writ in part to vacate the sentence and remand for

resentencing where the defendant did not waive the delay and where he

challenged his sentence, holding that the error in failing to waive the delay

was not harmless. Therefore, because there was no express waiver of the

statutory delay between a ruling on the motions for a new trial and

sentencing, and Hodge challenges the sentence as excessive, the sentence

should be vacated and the matter remanded for resentencing in compliance

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with La. C. Cr. P. art. 873. As such, we pretermit consideration of the issue

of excessive sentence.

CONCLUSION

For the reasons stated hereinabove, Hodge’s conviction is affirmed;

however, his sentence is vacated and remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING

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