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NOTICE
The text of this opinion can be corrected before the
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STEVE CLAUDY LAPITRE, | ) |
| ) Court of Appeals No. A-9973 | |
| Appellant, | ) Trial Court No. 3AN-05-4175 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| 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.
Background
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
doubt.3
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
view).
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
constitutional.16
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.
Conclusion
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
omitted).
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
scrutiny).
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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