1,A jury fоund Mazen Hamdan guilty of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. He appeals his conviction.
We have reviewed his insufficiency of evidence claim under the well-known Jackson v. Virginia standard, which requires us to consider all the evidence considered by the jury, whether or not that evidence wаs properly admitted at trial.
We, therefore, affirm Mr. Hamdaris conviction as a convicted felon in possession of a firearm.
I
We begin our explanation with a brief review of the evidence followed by a discussion of the applicable standard of review. We conclude with an analysis of the evidence under that standard.
At the outset, however, we highlight that Mr. Hamdan’s complaint is that the prosecution failed to prove that the firearm, which he is alleged to have possessed, satisfied the statutory requirement that it was a pistol or revolver that is “designed to fire or is capable of firing fixed cartridge ammunitiоn or from which a shot or projectile is discharged by an explosive.” La. R.S. 14:95.1 D. Because the firearm Uhe allegedly possessed was not “fired” during Mr. Hamdaris confrontation with the Kellers, and it was never recovered during the investigation, Mr. Hamdan asserts that the prosecution necessarily failed in its burden of proof on this essential element.
A
Richard Keller testified that he and his wife were stopped at a red traffic signal at North Claiborne and Desire Streets in New Orleans on July 29, 2010, when they observed someone running up and down the street looking irate. At first he and his wife did not pay attention to the individual. When the light changed to green, he proceeded forward, and Mr. Hamdan stepped off the sidewalk screaming, hollering and acting irate. Mr. Keller said that Mr. Hamdan then reached down into his pants and pulled out a chrome gun after he blew his car’s horn at the defendant. After pulling the gun out, Mr. Hamdan asked Mr. Keller: ‘What the ‘f-’ are you going to dо now?”
Mr. Keller moved his car to the left, and Mr. Hamdan then feinted to the left. Mr. Keller said that he then drove around the defendant. He said that from the time Mr. Hamdan pulled the gun until the time he drove away took less than fifteen seconds. Mr. Keller then drove to the next corner. Mrs. Keller called 911, but the operator hung up on her. Mr. Keller then called 911, and spoke with an operator. Mr. Keller told the 911 operator that a
Mr. Keller also testified as to the circumstances of his out-of-court identification of Mr. Hamdan оn the night in question. He said that when they were at the police station, an officer asked them to step outside because the police had “the young man” inside the car. Mr. Keller said he looked down and identified him. He said there was no doubt in his mind that the individual in the police car was the person. In court during the trial, Mr. Keller again identified Mr. Hamdan, the defendant, as the person that he had described to both the 911 operator and to the police outside the police station on the night of the confrontation.
Mr. Keller described the gun as a large chrome gun, but he did not notice whether it was a revolver or a semiautomatic. Asked if he could say whether the gun was real or not, Mr. Keller replied: “I don’t know.” But he went on to tellingly testify: “It was real enough to make me move.”
Clarissa Keller corroborated the details of her husband’s testimony in all respects. She too identified Mr. Hamdan as he sat in a police car as the individual who had pointed the gun earlier that evening. Mrs. Keller also identified Mr. Hamdan in court, saying that she had no doubt that she had the right person.
Mrs. Keller described the gun as a long, shiny, chrome gun. She did not know whether it was a revolver or a semiautomatic. She said the gun looked real |6to her. When quizzed by defense counsel as to whether she could tell him whether the gun was real or not, Mrs. Keller rejoined: “I didn’t get out the truck, sir.”
Officer Brittany Marigny, an officer with the New Orleans Pоlice Department, responded to the call at Desire Street and North Claiborne Avenue on July 29, 2010, and arrested Mr. Hamdan at that time. She said defendant approached her police unit and said he had an altercation with some people and they drove off. Mr. Hamdan reported that the people had parked in front of his residence, and he had told them to “get the ‘F’ out of there, or something like that ...”
Officer Marigny requested that the dispatcher locate the Kellers and ask them to return to the scene, but she was advised that they were at the Fifth District police station. After speaking with Mr. Hamdan, she Mimndized him and transported him to the police station, where he was identified by the Kellers, each one viewing him separately.
Officer Marigny testified that Mr. Ham-dan did not have any weapons on his person. She likewise stated that the police did not recover any weapons. Because she did nоt recover a weapon, Officer Marigny could not say whether the weapon Mr. Hamdan was alleged to have had was real. She did not enter his home, and to her knowledge none of the other officers who had responded with her did either. Officer Marigny charged Mr. Hamdan with aggravated assault under the name of Ba-zel Hamdan, which is the name with which he identified himself, and he was booked under that name. Subsequent fingerprinting of Mr. Hamdan resulted in his | ^correct identificаtion as Mazen Hamdan, who was on supervised probation for a conviction for possession of methadone.
Inmate: “Somebody seen me put the gun in my pocket.”
Recipient: “Where’s the gun at?”
Inmate: “Uh, what’s his name, I told him to hide it.”
Recipient: “Who?”
Inmate: “What’s his name?”
Recipient: “David?”
Inmate: “Yeah.”
Recipient: “It’s gone if you gave it to David ... You waive the f-gun on people!”
Inmate: “I ain’t waive it at nobody.”
17Recipient: “The f-people called. You got an aggravated assault on sоmeone. Two people ...”
Inmate: “All I did was pulling [sic] it in my pants. It was falling out my pants ... I ain’t point it at nobody or nothing
Recipient: You didn’t show nobody the gun, huh?”
Inmate: “No, man. The f-s — . I was in front [sic] Desire, you know, that s — was falling outta my pants.”
Recipient: “Now I gotta call the f-cops, and go get my gun from David, right?”
Inmate: “David got it?”
Recipient: “David sold it, you fool, he sold it. He sold it ...”
Inmate: “He put it in the house.”
Recipient: “It’s gone you fool. He sold it for crack. He thinks it’s a hot gun. He don’t know if it’s my f-gun, [sic] got papers on it. Now I gotta call the cops, bring ’em over there, and get my gun bаck. And he’s gonna go to jail.”
Inmate: “Baz, you can’t do that.”
Recipient: “How I’m a [sic] get my gun back?!”
Inmate: “I don’t know right now ... Get me out first.”
Recipient: “Get you out! How?! You’re under my name, you fool!”
Inmate: “Yeah, but this is nothing, this charge.”
|8Recipient: “How?! They’re gonna find out. I’m not gonna have no f-assault on my record, you fool!”
Inmate: “You didn’t do nothing, you fool.”
Recipient: “Well, you shouldn’t have used my name. Why would you use my name?!”
Inmate: “Whatta you gonna to do?”
Recipient: “I don’t know. Nothing. I don’t know what the f-to do. I ain’t got no f-money. I’ll tell you that now. Don’t have no money. Then you want to use my name, to top everything off. Then my gun’s missing. Then you say wait ’til you get out to get my gun. I’m a [sic] have to bring the cоps over by David right now.”
Inmate: “Yeah, but if you tell ’em your name and s — .”
Recipient: “Huh?”
At that point the timed jailhouse call automatically terminated.
B
In order to convict a person of violating La. R.S. 14:95.1, the prosecution must prove beyond a reasonable doubt that the defendant: (1) possessed the firearm; (2) had a prior conviction for an enumerated felony; (3) possessed the firearm within ten years of the prior conviction; and (4) had the general intent to commit the offense.
Under the well-known Jackson v. Virginia standard of review, there arе tried and true principles of review. First, we consider all of the evidence that the jury considered. See Jackson v. Virginia,
And, second, all of the evidence is viewed in the light most favorable to the prosecution. See State v. Fields, 12-0674, p. 6 (La.App. 4 Cir. 6/19/13),
In similar fashion, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according 11flto reason and common experience. See State v. Shapiro,
And, third, in evaluating a defendant’s challenge to the sufficiency of evidence, we are restricted to those theories of defense actually put forward to the trier of fact. See State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99),
C
By applying these principles of review for sufficiency of evidence, we find that a rational trier of fact could find beyond a reasonable doubt that the gun possessed by Mr. Hamdan was a firearm which was “designed to fire or is cаpable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive” as required by La. R.S. 14:95.1 D.
lnClearly, Mr. Hamdan used the gun to threaten and frighten the Kellers. He did not use it as if it was a toy or imitation gun. The Kellers’ natural reaction to the gun and the manner in which Mr. Hamdan was using it was one of fright such that they contacted the police about the danger. The chrome gun looked real enough that the Kellers were not going to get out of their car in order to be certain that the gun was “real.” The jury could determine for itself whether to draw a negative inference from defendant’s conduct with the object in his hand. See State in the Interest of T.E., 12-0517, p. 6 (La.6/29/12),
In light of the circumstances that Mr. Hamdan, a convicted felon, gave the gun to a drug addict to dispose of, and then, upon arrest, gave the name Bazel Hamdan, who was the registerеd owner of the gun, a rational trier of fact could surely find beyond a reasonable doubt that the gun was a firearm within the statute’s prohibition. Common sense and ordinary experience would suggest to a rational trier of fact that owners do not register their toy guns or their fake guns.
Moreover, based upon the telephone conversation between Bazel Hamdan and the defendant, Mr. Hamdan’s argument that the gun was a toy or an imitation is implausible. It is not plausible that Bazel Hamdan would tell the defendant that he would expose the defendant’s true identity and turn in the drug addict, David, if his “gun” was only a toy or an imitation of a gun and not a gun capable of being fired. Thus, viewing the content and nature of the recorded jailhouse conversation between defendant and the real Bazel, as well as all the other evidence, in a light 112most favorable to the prosecution, it would be irrational to conclude that the “gun” the two men were referring to — the “gun” admittedly in defendant’s possession at the time of the incident in question— was anything other than a pistol, revolver, or black powder weapon designed to fire or capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive, as defined by La. R.S. 14:95.1 D.
Viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant possessed a firearm after having been previously convicted of a felony.
Before we turn to consider Mr. Ham-dan’s other assignments of error, we acknowledge that Mr. Hamdan in his pro se brief argues that his conviction cannot stand on his uncorroborated inculpatory
II
Mr. Hamdan in his pro se brief also claims that his constitutional right under the Sixth Amendment
Instead, Mr. Hamdan seems to argue that Officer Desalvo’s preliminary hearing testimony differed in some particulars with Officer Marigny’s trial testimony. He points out that while Officer Desalvo testified that he futilely searched Mr. Ham-dan’s house looking for the gun, Officer Marigny testified at trial that neither she nor any other officer, to her knowledge, searched the defendant’s residence. He also points out that the officers’ respective testimoniеs differ with regard to who authored the police report and who escorted the Kellers from inside the police station to identify Mr. Hamdan in the back of the police car.
And, Mr. Hamdan seems to further argue that he did not have the opportunity to bring out such contradictions — as he describes them — before the jury because of the absence of Officer Desalvo from the trial. Of course, nothing precluded Mr. Hamdan from exercising his Sixth Amendment right to compel the testimony of Officer Desalvo, and thereby impeach Officer Marigny’s testimony, if Mr. Hamdan believed that Officer Marigny was testifying untruthfully on these points. But, for whatever reason, Mr. Hamdan chose not to compel Officer Desalvo’s trial testimony.
Consequently, we cannot discern how there could be Sixth Amendment violation of the confrontation and cross-examination protections where Officer Desalvo did not testify during the trial, the prosecution did
Ill
We now turn to consider Mr. Hamdan’s final argument that the trial judge erroneously admitted the evidence of the Kellers’ previоusly suppressed out-of-_Jcourt15 identifications of Mr. Hamdan. During the trial Mr. Hamdan objected to the admission of the suppressed evidence and called the trial judge’s attention to his earlier ruling. The trial judge reviewed the minute entry which recorded that the motion to suppress the identification had been denied. Relying on the accuracy of the minute entry, the trial judge allowed the prosecution to introduce the evidence.
The transcript of the supрression hearing, however, clearly records the trial judge as granting the motion: “I’m going to suppress the I.D.” In cases where there is a discrepancy between a minute entry and the transcript, the transcript prevails. See State v. Randall, 10-1027, p. 3 (La.App. 4 Cir. 6/22/11),
“A ruling prior to the trial on the merits, upon a motion to suppress, is binding at the trial.” La.C.Cr.P. art. 703 F (emphasis added). Thus, the trial judge committed error in allowing the evidence.
But we must nevertheless determine whether this error requires reversal or whether we are convinced beyond a reasonable doubt that the error did not contribute to the jury’s verdict. We are without authority to reverse a ruling “which does not affect substantial rights of the accused.” La.C.Cr.P. art. 921. But “[w]e have both the power and the obligation to review the record de novo to determine an error’s harmlessness.” State v. Smith,
In reviewing the record, however, we do not make credibility determinations or findings of fact; we are limited to determining whether the state has met its burden of demonstrating that the erroneous ruling did not contribute to the defendant’s conviction. See State v. Ellis, 94-599, p. 25 (La.App. 5 Cir. 5/30/95),
After examining the record, we can declare beyond a reasonable doubt that the jury’s verdict was surely unattributable to the erroneous ruling. Mr. Hamdan denied possession of a firearm. He admitted to the police, however, that he was the individual involved in the encounter with the Kellers near his home on Desire Street. His admission occurred before the Kellers’ suppressed out-of-court | ^identification. Moreover, the defendant self-identified in the telephone conversation with Bazel Hamdan, and by falsely identifying himself as Bazel Hamdan at the time of his arrest. The Kellers, moreover, positively identified Mr. Hamdan during the trial. There simply was no question that Mr. Hamdan was the individual involved.
Because the evidence of the Kellers’ out-of-court identifications of Mr. Hamdan was cumulative with respect to the establishment of his identity, yet inconsequential insofar as his identity was hardly an issue at trial, we find beyond a reasonable doubt that the jury’s verdict was surely unattributable to the erroneous ruling. We will not reverse Mr. Hamdan’s conviction on account of a harmless error.
DECREE
The conviction of Mazen Hamdan for violating La. R.S. 14:95.1 is affirmed.
CONVICTION AFFIRMED.
Notes
. Mr. Hamdan has filed a separate appeal of the sentence imposed upon him as a habitual felony offender following the Louisiana Supreme Court decision in his case which reversed both the trial judge and this Court’s holding that a prior federal conviction could not serve as a predicate offense under La. R.S. 15:529.1. See State v. Hamdan, 12-1986 (La.3/19/13),
. We have, as we always do, examined the record for errors patent and have detected none which pertain to his conviction. See La.C.Cr.P. art. 920(2).
. Mr. Hamdan does not challenge the sufficiency of the proof of his predicate convic
. As we have indicated, Mr. Hamdan challenges the sufficiency of the evidence only with respect to the "firearm” element.
. We note that defense counsel made no hearsay objection concerning the jailhouse telephone call(s). See State v. Allen, 03-2418, p. 25 (La.6/29/05),
. See State v. Martin, 93-0285, p. 7 (La.10/17/94),
. The Sixth Amendment to the U.S. Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
. Mr. Hamdan also did not seek at the trial to demonstrate Officer Desalvo's unavailability as a witness and introduce his testimony at the preliminary hearing. See La. C.E. art. 804.