Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan.
I.
Viewed in the light most favorable to the verdict, the record shows that Lebis and her husband, Tremaine, had been staying in a rented motel room near their home for eight days, but they were asked to vacate the room after failure to pay Lebis cursed at motel staff, who called 911 to report Lebis’s unruly behavior. Shortly thereafter, Officer Waymondo Brown and Officer Callahan arrived to investigate. After talking to motel staff, they proceeded to Lebis’s room, where they discovered Lebis and Tremaine moving items into the motel breezeway Officer Brown asked them to stop what they were doing, and he discovered that the room that they had been staying in was severely soiled and damaged. After inspecting the motel room, Officer Brown walked out and gave a hand signal to Officer Callahan to indicate that they were going to place Lebis and Tremaine under arrest. Officer Brown did not see the fanny pack that Tremaine was wearing at that time, and neither officer knew that Tremaine was carrying a handgun in the fanny pack.
Officer Brown grabbed Tremaine’s right arm and told Tremaine to put his left arm behind his back and keep it there. Lebis became irate, and started yelling very loudly at Officer Brown to leave Tremaine alone. Officer Brown testified that Lebis’s screaming was “not assisting” with the execution of the arrest. Tremaine struggled, was ultimately tasered without full effect, and broke free and ran behind the motel. Officers Brown and Callahan pursued, with Officer Callahan in the lead. During the pursuit, Tremaine pulled his gun, a .357 caliber Glock, from the fanny pack and began shooting, fatally wounding Officer Callahan. Officer Brown returned fire, killing Tremaine. Officer Brown ran to Tremaine, kicked away his gun, and went to assist Officer Callahan, who had fallen over a retaining wall.
Officer Brown tried to move Officer Callahan, but was unable to do so. Instead, he began to administer CPR, which he continued to do for approximately two minutes. At that point, Lebis appeared at the top of the retaining wall and started yelling at Officer Brown, asking him if he killed her husband. At that moment, Officer Brown realized that he had not seсured Tremaine’s weapon, making him vulnerable. Officer Brown pointed his gun at Lebis with one hand while trying to maintain pressure on Officer Callahan’s gunshot wound with the other. Officer Brown yelled at Lebis repeatedly until she showed him her hands so he could see that she was unarmed. Officer Brown then resumed CPR on Officer Callahan.
In response to an emergency alert sent by Officer Brown, Officer Alex Frazier next reported to the scene and found Lebis, who had come back from behind the building, standing next to the patrol cars parked in front of the motel. Officer Frazier pointed his firearm at Lebis and ordered her to show him her hands. At the time, she was talking on a cell phone, with one hand holding the cell phоne and the other down by her pocket area. Lebis did not comply with Officer Frazier’s commands. Instead, she began to move in his direction. Officer Frazier instructed Lebis to get on the ground, but she did not comply and kept advancing. Another officer, who had then arrived at the scene, approached Lebis from behind, took her to the ground, and restrained her. Later, Officer Joshua Waites arrived on the scene. By that time, Lebis was being held in the back of a patrol car. Officer Waites opened the door in an attempt to search Lebis for weapons, and she started kicking him wildly
Numerous dangerous weapons and firearms were recovered from the scene. The weapon that Tremaine used to shoot Officer Callahan was a modified .357 caliber Glock handgun. The following guns and ammunition were removed from the motel room shared by Lebis and Tremaine: a shotgun, a modified 9mm handgun, 20 live rounds of .357 Winchester ammunition, 30 live rounds of 9mm ammunition, and 16 shotgun shells. Additional
With regard to the convictions Lebis does not challenge in this appeal,
II.
Lebis’s challenge to her convictions of all five possession counts and of felony murder are interrelated because the felony murder charge’s predicate felony was the alleged possession of a firearm— the murder weapon—by a convicted felon. Lebis contends that there was insufficient evidence to support her convictions on Counts XII and XIII charging her with possession of dangerous weapons and on Counts XIV, XV, and XVI charging her with possession of firearms by a convicted felon. The possession counts all concerned the various weapons and firearms recovered after the murder, which occurred when Tremaine fled from the motel room he and Lebis shared for eight days. Lebis also argues that the evidence was insufficient to support her conviction, as a party to the crime, of felony murder predicated on possession of the weapon Tremaine pulled from his fanny pack at the time of the killing. We find that the evidence was sufficient to support Lebis’s convictions on all of these counts.
Before turning back to the facts of this case, some background is appropriate. It is true that “[possession of contraband may be joint or exclusive, and actual or constructive.” In the Interest of D. H.,
Constructive possession canbe proven—and very often is proven—by circumstantial evidence. See Holiman,
whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we [should] not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law.
Holiman,
A. Giving appropriate deference to the factfinder’s assessment of the weight and credibility of the evidence, the direct evidence shows that Lebis had been cohabitating with Tremaine in proximity with the five weapons that she was convicted of possessing. But the circumstantial evidence shows far more, and the jury’s evaluation of the totality of the evidence should be respected.
The evidence introduced at trial plainly supports the inference that Lebis and her husband Tremaine were prepared to resist arrest with firearms and other dangerous weapons in the event that they were detected at the motel. The jury heard and saw evidence that the couple, along with their three dogs, occupied a small motel room for eight days prior to the crimes in order to evade the husband’s arrest. Lebis gave a variety of unsupportable answers when asked why she and her husband had stayed in the tiny room rather than in their nearby home. Lebis was the one who procured money—cash only—to pay for their stay at the motel. The room was registered in the name of Lebis’s son, although he never stayed there, and was only listed as having a single occupant. And Lebis herself was the only one who communicated with motel staff; in fact, staff were surprised to find her husband Tremaine in the room when they entered to check its condition. Lebis was clear with police officers investigating the crimes after the fact that Tremaine had told her that he was never going back to prison. The ready inference from these facts is that Lebis did not want anyone to know that her husband was аt the motel because there was a warrant out for his arrest. See Whaley v. State,
The evidence presented regarding the state of the room shared by Lebis and her husband further supports the jury’s finding of constructive possession. The pair’s belongings were intermixed in the room and outside of the room; Lebis herself repeatedly explained to investigators that she and her husband were in the process of getting “our stuff” out of the motel room when police came. Lebis’s references to “our stuff” goes beyond admitting mere control of the premises, and the jury may well have taken her comments as an admission of control of the contraband itself. Cf. Holiman,
The photographs also show that some of the weapons were contained in clear plastic boxes or otherwise highly visible. For example, there was testimony and photographic evidence that the barrel of a shotgun was visible and sticking out from one of the bags. An empty long gun case was pulled out from under the sole bed in the room. Some of the weapons were found on the top of the crate for the dogs that Lebis and her husband owned and kept with them in the small room. See Stacey,
Officers stated that nothing about any of the items in the room indicated that they were in the sole possession of a particular person. Moreover, in spite of the small size of the room, the fact that the couple’s belongings were intermixed, and the fact that many of the weapons were in plain sight in the room, Lebis (rather implausibly) denied that she was aware that they were there. Lebis eventually confessed that she knew about at least one weapon, and the jury watched a video recording of her explaining to an investigator that her husband carried a gun inside his fanny pack that he had modified because he was in the military and “he did all kinds of stuff like that.” She was able to draw a picture of the gun when asked and she described the scope and the “little packs for extra аmmo.” The shifting narrative from Lebis regarding her knowledge of the items in the room, as well as her reasons for living there instead of in her own home could also support an inference by the jury that she exercised dominion over the weapons. Cf. Maddox v. State,
Significant evidence, therefore, connects Lebis to the weapons in the motel room. The State was not required to show that Lebis solely or actually possessed the weapons at any point. Nor was it required to offer direct evidence that she possessed them. Instead, the State had to put forward enough evidence so that a properly-instructed jury could reasonably conclude that Lebis at least jointly and constructively possessed the weapons in her motel room. The State did just that. As in Holiman, the circumstantial evidence in this case shows a connection between Lebis and the weapons in her motel room “beyond mere presence and spatial proximity, or at least a rational trier of fact could find, that it does.”
B. The evidence was also sufficient to support the jury’s verdict that Lebis was guilty of felony murder as a party to her husband’s possession of a firearm as a convicted felon—a criminal act that proximately caused the death of Officer Callahan. See, е.g., Metts v. State,
In order to understand why this is so, we again recount some of the facts of the crime. At the time that Tremaine shot Officer Callahan, the evidence shows that Tremaine, not Lebis, had actual and sole possession of the .357 caliber Glock that he pulled from the fanny pack he wore. It is true that a person who knowingly has direct physical control over a thing at a given time is in actual possession of it. See In the Interest of D. H.,
Can parties to a crime be guilty of illegal possession of a weapon even when they themselves exercise no physical control over the weapon, or even potential access to the weapon? Both the Court of Appeals and this Court have, in the past, reached the right answer on that question, albeit for the wrong reason. The Court of Appeals has held that because the act of one conspirator is the act of all co-conspirators, a defendant may constructively possess a firearm at the time that a co-conspiratоr alone actually possessed and used it in the execution or furtherance of the conspiracy See Davis v. State,
That is because Tremaine’s possession of the firearm as a convicted felon was the proximate cause of Officer Callahan’s shooting— “ ‘(t)hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.’ ” Black’s Law Dictionary 1103 (5th ed. 1979) (cited in State v. Jackson,
It is plain enough that the shooting would not have happened but for Tremaine’s possession of the firearm. And, as noted above, the jury had sufficient evidence before it to conclude that Lebis and Tremaine had together hidden out in the motel room with a stockpile of weapons in order to escape or defend against Tremaine’s arrest. Indeed, when “the crimes ‘involve relatives, slight circumstances can support the inference that the parties colluded.’ ” Teasley v. State,
Although Lebis raised sufficiency of the evidence rather than a “fatal variance” between the language of the indictment, which charged joint possession, and the proof at trial, we also note that any suggestion of such a fatal variance would also fail. “Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.” Roscoe v. State,
As prior cases in this Court and the Court of Appeals show, no fatal variance existed here between the evidence and the indictment. In the factually similar case of Davis v. State,
In sum, because the evidence presented at trial was sufficient to prove that Lebis was guilty of felony murder, we affirm her conviction of this crime.
III.
Lebis was found guilty of four misdemeanor counts of obstructing a police officer, and she challenges the sufficiency of the evidence supporting each of them. “Aperson commits the offense of obstruction of an officer when he knowingly and willfully obstructs
A. At trial, Officer Brown testified that Lebis repeatedly yelled, “Leave him alone,” when he and Officer Callahan were attempting to handcuff Tremaine. When asked about the effect of Lebis’s screaming, Officer Brown testified that it was “not assisting” with the arrest of Tremaine. He did not testify, however, and the evidence did not show, that Lebis intentionally hindered the arrest by her protestations. And there was no evidence that Lebis refused or failed to comply with any directives from either officer at this time.
Under certain circumstances, words alone can constitute obstruction. See Stryker v. State,
The fact that Lebis was “not assisting” with the arrest in this case when she yelled at officers to leave Tremaine alone, without anything more, did not rise to the level of obstruction, and so her convictions for obstruction under Counts V and VI of the indictment must be reversed.
B. Lebis next contends that the evidence was insufficient to support her obstruction conviction for “hinder[ing Officer] Brown . .. by diverting [his] attention from performing life saving efforts on wounded Officer Sean Callahan.”
C. Lebis also maintains that the evidence was insufficient to support her conviction for “obstructing Officer] Alex Frazier ... by refusing to comply with his commands to stop moving and get on the ground, while officers were investigating a police involved shooting.”
IV.
Lebis contends that trial counsel rendered inеffective assistance by failing to (a) request that opening and closing arguments be transcribed and (b) procure an expert to testify that the short time that Lebis distracted Officer Brown from providing life-saving procedures to Officer Callahan did not contribute to his death. We disagree.
To prevail on an ineffective assistance of counsel claim, the defendant must satisfy the familiar standard set out in Strickland v. Washington,
First, Lebis fails to make an adequate showing as to why trial counsel’s decision not to request that opening statements and closing arguments be transcribed may have harmed her. As such, she has made no showing of prejudice at all, and this claim of ineffective assistance necessarily fails. Wright,
Lebis next contends that trial counsel rendered ineffective assistance by failing to procure an expert to testify that Lebis’s obstruction of Officer Brown as he attempted to provide life-sаving procedures to Officer Callahan did not contribute to Officer Callahan’s death. The State was not required, however, to prove that Lebis’s obstruction actually contributed to Officer Callahan’s death, but merely to prove that Lebis hindered Officer Brown’s performance of life-saving efforts. Accordingly, this asserted ground of ineffective assistance is merit-less and fails.
Because we have reversed Lebis’s convictions of two misdemeanor obstruction counts, and affirmed the other convictions, we remand this case to the trial court for resentencing.
Judgment affirmed in part and reversed in part, and case remanded for resentencing.
Notes
On June 19,2013, Lebis was indicted for the felony murder of Officer Callahan predicated on the felony of possession, as a party to the crime, of a firearm by a convicted felon; two counts of disorderly conduct; second degree criminal damage to property; four counts of misdemeanor obstruction of a police officer; one count of felony obstruction of a police officer; one count of simple battery; one count of theft by receiving stolen property; two counts of possession of a dangerous weapon; and three counts of possession of a firearm by a convicted felon. Following a jury trial, Lebis was found guilty of felony murder, criminal trespass to property as a lesser included offense of criminal damage to property, all five counts of obstruction, simple battery, all counts of possession of a dangerous weapon, and all counts of possession of a firearm by a convicted felon. Lebis was acquitted of the remaining counts of the indictment. The trial court sentenced Lebis to life imprisonment for felony murder, twelve months for criminal trespass to run consecutively to felony murder, twelve months to serve for each of the four counts of misdemeanor obstruction consecutive to each other and to criminal trespass, five years for felony obstruction consecutive to the misdemeanor obstruction counts, five years for each possession of a dangerous weapon count to run consecutively to each other and the count of felony obstruction, and five years for each count of possession of a firearm by a convicted felon to run consecutively to each other and to the counts of possession оf a dangerous weapon. The count of simple battery was merged with felony obstruction for purposes of sentencing. On March 4, 2014, Lebis filed a motion for new trial and amended it on January 12, 2016. On May 20, 2016, the trial court denied the motion for new trial. On June 6, 2016, Lebis timely filed a notice of appeal, and her case was assigned to the April 2017 term of this Court. The case was orally argued on August 14, 2017.
These counts include criminal damage to property, felony obstruction of a police officer, and simple battery.
Although useful in demonstrating that Lebis was aware of the nature of the charges against her, it was not necessary for the indictment to charge Lebis with being a party to the crime in order to prove her culpability in that manner. See Butler v. State,
This charge is set forth in Count VII of the indictment.
This charge is set forth in Count VIII of the indictment.