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Lapitre v. State (6/18/2010) ap-2269

Lapitre v. State (6/18/2010) ap-2269


     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9973
Appellant, ) Trial Court No. 3AN-05-4175 CR
v. )
) O P I N I O N
Appellee. )
) No. 2269 June 18, 2010
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, John Suddock, Judge.

          Appearances:  Rex Lamont Butler,  Rex  Lamont
          Butler & Associates, Inc., Anchorage, for the
          Appellant.   Diane  L.  Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Daniel S. Sullivan, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          Steve   Claudy   Lapitre  appeals  his  conviction   of
misconduct   involving  weapons,  contending   that   there   was
insufficient evidence that he knowingly possessed  a  concealable
firearm.   We  conclude  that  the  jury  could  have  reasonably
concluded  that Lapitre knew that the handgun was in the  vehicle
he was driving, and that he was trying to conceal it.
          Lapitre   also   argues  that  the  felon-in-possession
statute  is unconstitutional, although he did not raise any  such
objection  in the trial court.  Lapitre cannot show  plain  error
because  there are numerous cases upholding the Alaska  felon-in-
possession    statute   and   similar   statutes   against    the
constitutional challenges he now raises.

          Anchorage  Police Sergeant Christopher Sims observed  a
vehicle  driving  erratically and  broadcast  an  alert.   Police
Captain  William Miller pulled the vehicle over,   asked  Lapitre
for  his license and registration, and then handed over the  stop
to  the control of Officer Arthur Anderson.  Upon a search of the
vehicle,  Anderson found a loaded nine-millimeter  Glock  handgun
under some papers on the floor of the front passenger seat.
          Lapitre   was   charged   with   third-degree   weapons
misconduct  for  being  a felon in possession  of  a  concealable
firearm.1  At the close of the States case, Lapitre moved  for  a
judgment  of  acquittal  contending that there  was  insufficient
evidence that he had possessed the handgun.  Superior Court Judge
John  Suddock  denied  the  motion, and  Lapitre  was  convicted.
Lapitre  now  appeals,  arguing that the  trial  court  erred  in
denying his motion for acquittal and that the felon-in-possession
statute violates the Alaska and federal constitutions.

     Sufficiency of the Evidence
          Lapitre   first  argues  that  there  was  insufficient
evidence that he possessed the handgun, as opposed to having only
momentary   or   fleeting  possession.    When   evaluating   the
sufficiency  of the evidence, this court consider[s]  only  those
facts  in  the record most favorable to the prosecution and  such
reasonable  inferences as a jury may have drawn from  them.2   We
will  uphold  a  verdict  when any reasonable  juror  could  have
concluded  that  the  defendant was guilty  beyond  a  reasonable
          Possess  is  defined by AS 11.81.900(b)(48)  as  having
physical  possession or the exercise of dominion or control  over
property.   At Lapitres request, Judge Suddock gave the  jury  an
instruction stating that momentary possession of a handgun  would
be insufficient to satisfy this definition:
          A  person possesses an object if he knowingly
          procured or received the item or was aware of
          his  control thereof for a sufficient  period
          to   have   been   able  to   terminate   his
          possession.  More is required than  momentary
          or  fleeting  possession of the object;  some
          sort of dominion or control of the object  is
          required.  Evidence of any attempt to conceal
          the  object may be considered by you  on  the
          issue  of  whether  the  defendant  exercised
          dominion and control over it.
This  instruction  was apparently based on Alaska  cases  holding
that  momentary possession is insufficient to establish  criminal
possession of a controlled substance.4
          We have never decided whether this momentary possession
doctrine  applies  to  the  criminal possession  of  a  firearm.5
Assuming  that  the  doctrine applies to this  case,  the  record
contains sufficient evidence to support Lapitres conviction.
          First, there is evidence to support the inference  that
Lapitre  knew the handgun was in the car.  Lapitres mother,  Lucy
John-Baptiste, testified that the handgun had been in the car for
five  to six months.  John-Baptiste had found the handgun in  her
car,  and she did not know who it belonged to, so she put  it  in
the  glove compartment.  She testified that Lapitre used her  car
on  the weekends, up to six or eight times a month, and that  the
handgun  was  usually on the floor (where it would  be  in  plain
          Second,  there is evidence that Lapitre exerted control
over  the  handgun  and  did not merely possess  the  handgun  to
dispose  of it.  Lapitre testified that when he pulled  over,  he
opened the glove compartment to retrieve the vehicle registration
and was surprised to see the handgun.  The handgun was on top  of
the registration papers, so he removed the handgun and put it  on
the  floor.   He  then grabbed the registration, and  some  other
papers from the glove box fell out.
          Officer Anderson testified that Lapitre first told  him
that there were no firearms in the vehicle.  He testified that he
found  the handgun on the right front passenger area of  the  car
under  a  number  of  pieces  of  paperwork.   The  officer  also
testified that Lapitre later told him that the handgun  had  been
in  the  glove box and that he had placed the handgun  under  the
paperwork so that the officers would not freak out.
          Consequently,  the  jury  could  have  concluded   that
Lapitre  knew about the handgun for several months.  Or the  jury
could  have  concluded  that Lapitre  exerted  control  over  the
handgun by trying to hide it and telling the officers that  there
were  no  weapons in the car.  Thus, there was adequate  evidence
supporting  the jurys decision that Lapitre exercised  sufficient
control over the handgun to support his conviction.

     The Constitutionality of the Felon-In-Possession Statute
          Lapitre   was  convicted  of  third-degree   misconduct
involving a weapon for being a felon in possession of a  handgun.
He now argues that this statute is unconstitutional under several
provisions  of  the federal and Alaska constitutions  because  it
prohibits  all  felons  from possessing  handguns  and  does  not
distinguish those likely to reoffend.  But Lapitre did not assert
these  constitutional claims in the trial court, so he  must  now
show  plain error.  Lapitre cannot show plain error because there
are  numerous cases holding that the Alaska statute  and  similar
felon-in-possession statutes are constitutional.6
          Following  Lapitres 2007 conviction, the United  States
Supreme  Court  held  that  the  Second  Amendment  protects   an
individuals  right  to  bear arms.7  But the  Court  specifically
limited  the  application of its holding as applied to  convicted
felons,  noting: nothing in our opinion should be taken  to  cast
doubt  on longstanding prohibitions on the possession of firearms
by felons.8
          Based   on   this  limitation,  the  federal   circuits
considering  the  issue  have  held  that  the  federal   statute
prohibiting a felon from possessing a firearm is consistent  with
the constitutional right to bear arms.9  These cases suggest that
even  if the Second Amendment restricts inconsistent state  laws,
it  does  not invalidate the Alaska felon-in-possession  statute.
Three  nineteenth-century cases hold that  the  Second  Amendment
does  not  apply to the states,10 but this question is  currently
under review by the Supreme Court.11
          An  individuals right to bear arms is also protected by
a  1994 amendment to the Alaska Constitution.12  But in Wilson v.
State, we held that the felon-in-possession statute is consistent
with this individual right to bear arms.13
            Lapitre  also  argues  that  the  felon-in-possession
statute  violates the equal  protection guarantees of the  Alaska
and   the   United  States  Constitutions.   Under   the   Alaska
Constitution, we apply a flexible three-part test that focuses on
the  nature of the individual right involved, the nature  of  the
governments   interest,   and  the   relationship   between   the
governments interest and the operation of the statute.14
          We  have  previously  held that the felon-in-possession
statute passes this test, noting that the state has a substantial
interest in controlling access to concealable firearms by persons
previously convicted of a felony, and that [t]he legislature  has
considerable  discretion  in  creating  classifications  denoting
which former felons can possess a firearm.15
          Similarly,  several federal courts have  sustained  the
federal  felon-in-possession  statute  against  equal  protection
challenges,  generally determining that prohibiting  felons  from
possessing  firearms is substantially related  to  the  important
governmental   objective  of  public  safety  and  is   therefore
          Lapitre   also   argues  that  the  felon-in-possession
statute  violates  his right to substantive  due  process.   This
claim  involves  a less demanding test than the claims   outlined
above:  if there is any legitimate public policy for the statute,
then the opponent must disprove the factual basis for the policy.17
Several state courts have sustained gun control legislation under
similar  tests.18   And  one federal court  recently  rejected  a
similar  challenge  to  the federal felon-in-possession  statute,
noting  that  there is an obvious and substantial  nexus  between
violent  crime and the possession of firearms by felons and  that
this government objective is particularly compelling.19
          Moreover,  it  is not at all obvious that  Lapitre  may
challenge  the statute as applied to nonviolent felons.   Lapitre
has  a  lengthy history of gun violence.  At this point,  Lapitre
cannot  reasonably argue that he should be allowed to  possess  a
          handgun: he is a violent felony offender who is likely to commit
further violent offenses.
          In  conclusion, Lapitre cannot show that  the  superior
court committed plain error by not recognizing his constitutional
claims because, at best, those claims are merely arguable.

          There  was  sufficient evidence to convict  Lapitre  of
more than momentary possession of a handgun, and Lapitre has  not
shown  that  the felon-in-possession statute is unconstitutional.
We therefore AFFIRM the superior courts judgment.
  1 AS 11.61.200(a)(1).

  2  Dorman  v. State, 622 P.2d 448, 453 (Alaska 1981) (citations

  3 Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990).

  4  See Moreau v. State, 588 P.2d 275, 286 (Alaska 1978); Jordan
v. State, 819 P.2d 39, 43 (Alaska App. 1991); Adams v. State, 706
P.2d 1183, 1186 (Alaska App. 1985).

  5  See  Baker v. State, 781 P.2d 1368, 1369 (Alaska App. 1989);
see  also  Coleman v. State, Memorandum Opinion and Judgment  No.
3723 (Alaska App., Dec. 17, 1997), 1997 WL 775567, *12.

  6  See,  e.g.,  Wilson v. State, 207 P.3d 565,  567-68  (Alaska
App. 2009).

  7  Dist. of Columbia v. Heller, 554 U.S. ____, 128 S. Ct. 2783,
171 L. Ed. 2d 637 (2008).

  8 Id., 554 U.S. at ___, 128 S. Ct. at 2816-17.

  9   United  States  v. McCane, 573 F.3d 1037, 1047  (10th  Cir.
2009);  United  States v. Anderson, 559 F.3d 348, 352  (5th  Cir.
2009);  United  States v. Khami, No. 08-2437,  unpublished,  (6th
Cir.,  Jan.  26, 2010), 2010 WL 273134; United States v.  Battle,
347  Fed. Appx 478 (11th Cir. 2009); United States v. Smith,  329
Fed.  Appx 109 (9th Cir. 2009); United States v. Irish, 285  Fed.
Appx 326 (8th Cir. 2008).

  10 United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588
(1875);  Presser v. Illinois, 116 U.S. 252, 265, 6  S.  Ct.  580,
584, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14
S. Ct. 874, 875, 38 L. Ed. 812 (1894).

  11  Natl Rifle Assn of Am., Inc. v. City of Chicago, Ill.,  567
F.3d  856, 858-60 (7th Cir. 2009) cert. granted, McDonald v. City
of Chicago, Ill., 130 S. Ct. 48, 174 L. Ed. 2d 632 (2009).

  12 See Gibson v. State, 930 P.2d 1300, 1301 (Alaska App. 1997).

  13 207 P.3d at 567-68.

  14  Williams  v.  State, 151 P.3d 460, 464 (Alaska  App.  2006)
(citing Alaska Pacific Assur. Co. v. Brown, 687 P.2d 264,  269-70
(Alaska 1984)).

  15 McCracken v. State, 743 P.2d 382, 384 (Alaska App. 1987).

  16 United States v. Jones, 673 F. Supp. 2d 1347, 1355 (N.D. Ga.
2009);   see   United  States  v.  Schultz,  No.   1:08-CR-75-TS,
unpublished, (N.D. Ind., Jan. 5, 2009), 2009 WL 35225, *5; United
States  v.  Bledsoe,  No. SA-08-CR-13(2)-XR,  unpublished,  (W.D.
Tex.,  Aug. 8, 2008), 2008 WL 3538717, *4; see also United States
v.  Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (concluding that
the  felon-in-possession statute was valid under  rational  basis

  17  See  Concerned Citizens of South Kenai Peninsula  v.  Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974).

  18 See Wilson, 207 P.3d at 568 n.31 (citing State v. Brown, 571
A.2d  816 (Me. 1990); State v. Cole, 665 N.W.2d 328 (Wis.  2003);
People v. Swint, 572 N.W.2d 666 (Mich. App. 1997)).

  19 United States v. Miller, 604 F. Supp. 2d 1162, 1171-72 (W.D.
Tenn. 2009).

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