State v. BallState v. Ball
Ricko C. Ball was charged with possession of a firearm by a convicted felon,
Factual background
Early on the morning of November 4, 1996 Mary Upton was awakened by her son, who noticed that her Plymouth minivan was not in the driveway where she parked it the night before. When they went out to inspect, they discovered that not only was thе minivan missing, but the son‘s Ford pickup had been broken into. Missing from the truck were the son‘s stereo equipment (speakers, amp, EQ and cross over) and Mary‘s shotgun and rifle, which she had loaned to her son. Ms. Upton called 911 to report the incident.
About three hours later, Shreveport Police Corporal Bobby Wilbert spotted a tan minivan matching Ms. Upton‘s description and tags. The driver, after refusing to stop, led police on a high-speed chase down Murphy Street, ran into a ditch, and then fled on foot; Cpl. Wilbert apprehended him by the Interstate wall. The driver was defendant Ricko Ball. In plain view on thе floorboard of the minivan, on the front passenger side, police found the rifle and shotgun that Ms. Upton later identified as her property. Ms. Upton also found that the key in the minivan‘s ignition was a spare that her son stored in the ashtray of his truck.
Police did not obtain latent fingerprints from the guns because the process would have damaged them. However, Sergeant Mark Rogers testified that prints lifted from the Ford truck, from which the guns were taken, matched exemplars given by Ricko Ball in open court. Police also learned that Ball had pled guilty to simple burglary of an inhabited dwelling in Bossier Parish in 1993.
Ball was billеd for possession of a firearm by a convicted felon. He filed a motion in limine to preclude the State from
Discussion: Sufficiency of the evidence
By his third assignment Ball contests the sufficiency of the evidence to convict him of possession of a firearm by a convicted felon. He specifically urges there was no proof that he knеw the guns were in the van. Motion for post verdict judgment of acquittal was filed and denied.
The appellate standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Daniels, 614 So.2d 97 (La.App. 2 Cir.), writ denied 619 So.2d 573 (1993). An appellate court reviewing the evidence in such cases must resolve any conflict in the direct evidence by viewing the evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element оf the crime. State v. Spencer, 29,993 (La.App. 2 Cir. 1/21/98), 707 So.2d 96, and citations therein.
Possession of a firearm by a convicted felon requires proof of: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year period of limitation; and (4) general intent to commit the offense.
The State did not prove by direct evidence that Ball had actual possession of the shotgun and rifle. Ball correctly argues in brief that no one saw him remove them from the truck or carry them to the minivan; they werе not on his person when he was arrested. Because no fingerprints were lifted from the weapons, there was no expert evidence that he had handled them. Ball posits the hypothesis that unbeknownst to him, the guns may have been stowed under the front passenger seat or on the rear floorboard of the minivan, and only slid into plain view when he crashed into the ditch.
The theory is creative but unpersuasive. Ms. Upton testified without contradiction that around midnight before the incident, her guns were inside her son‘s truck. Early the next morning she discovered that the truck had been broken into, and her minivan parked in front of it stolen; the spare key taken from the truck had been used. Ball‘s fingerprints were recovered from the driver‘s side window of the
In short, the direct and circumstantial evidence presented was sufficient to support every essential element of the offense and to exclude any reasonable hypothesis of innocence. This assignment lacks merit.
The Motion in limine
By his first and second assignments Ball urges the District Court erred in denying his motion in limine to preclude the State from referring to the prior conviction, and in allowing the State to argue the nature and facts of that conviction at trial. Ball contends that the court should have accepted his admission of the predicate felony conviction; refusing to do so, and permitting the State to mention it at trial, was unduly prejudicial and confused the jury. The argument is based on the recent Federal Supreme Court opinion of Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
The defendant in Old Chief had a prior conviction for assault causing serious bodily injury; in 1993, he was charged with various federal crimes, including being a felon in possession of a firearm,
The Supreme Court granted the defendant‘s writ and revеrsed the conviction. Without broaching Constitutional issues, the court closely analyzed the statute of conviction, which provides in pertinent part:
It shall be unlawful for any person * * * who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year, * * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (Emphasis added)
The majority held that because this statute refers only to a conviction and the length of sentence, evidence of the name and nature of the offense was not admissible. 519 U.S. 172, 117 S.Ct. at 649.
The majority then accepted Old Chief‘s argument that evidence of a prior conviction could result in “unfair prejudice,” i.e., a tendency to lure the trier of fact into finding guilt on a ground differеnt from proof specific to the offense charged. See
We note at the outset that the majority‘s opinion in Old Chief was premised not on оverarching Constitutional principles that are binding on the states, but rather on specific features of
The Louisiana statute, by contrast, defines the crime by specific mention of the prior offense:
It is unlawful for any person who has been convicted of a crime of violence as defined in
R.S. 14:2(13) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, * * * to possess a firearm or carry a concealed weapon. (Emphasis added)
Under this statute, the Louisiana Supreme Court has held that evidence of the enumerated prior felony convictions is admissible. State v. Sanders, 357 So.2d 492 (La.1978). Even in light of Old Chief, we are not persuaded to re-interpret it in such a way as would “read out” the reference to the prior conviction. It appears to be required. See State v. Garrison, 400 So.2d 874 (La.1981); State v. Hawkins, 97-726 (La.App. 3 Cir. 10/29/97), 702 So.2d 1121.
This conclusion is fortified by the fact that in many reported cases arising under
Finally, we note that the District Court gave the following limiting instruction:
Mr. Rico Ball is alleged to have possessed a fireаrm after having been convicted of a felony, namely, simple burglary of an inhabited dwelling. You are instructed that you may consider evidence regarding the simple burglary of an inhabited dwelling conviction only with respect to whether that element of prior conviction of an enumerated felоny has been proven for purposes of the charge for which the defendant is now on trial. That is to say, you should not infer or conclude any negative impression solely and only because you may believe that the defendant has a prior felony conviction. R.p. 314.
This instruction appeаrs to answer the problems of “unfair prejudice” discussed in Old Chief, supra, and to track the analysis in State v. Batiste, 96-2203 (La.App. 4 Cir. 10/22/97), 701 So.2d 729. We therefore do not find that denial of the motion in limine or the admission of evidence of the prior conviction was erroneous. These assignments lack merit.
Excessive sentence
By his fourth assignment Ball urges the District Court erred in imposing
A sentence within statutory limits may nevertheless violate the defendant‘s right against excessive punishment.
Before passing sentence, the court stated that Ball had committed a number of other, uncharged felonies in the course of this offense—burglary of Ms. Upton‘s truck, theft of guns and stereo equipment, and theft of the minivan. He then led police on a high-speed chase through a residential area, endangering innocent bystanders. He damaged the truck when he drove it into the ditch. The court also noted that Bossier Pаrish officials had dismissed two felony charges when Ball pled to simple burglary of an inhabited dwelling, and that at the time of the instant sentencing, Ball had three outstanding charges of simple burglary, all involving breaking into people‘s trucks. Given Ball‘s propensity to make a life of breaking and entering, the court wаs entitled to find that correctional treatment was needed.
The penalty for possession of a firearm by a felon is a minimum of 10 and a maximum of 15 years at hard labor, all without benefit, and a fine of from $1,000 to $5,000.
By a final assignment Ball urges that he received ineffective assistance of counsel in that his trial counsel failed to move for reconsideration of sentence or to object tо the sentence as excessive. In brief he contends there was no conceivable strategic reason for trial counsel to omit the mandatory motion, and argues that such omission creates a strong inference of ineffective assistance. State v. Hayes, 97-1526 (La.App. 1 Cir. 5/15/98), 712 So.2d 1019.
The normal rule, however, is that clаims of ineffective assistance are more suited to application for post conviction relief in the District Court, where a full evidentiary hearing may be conducted. State v. Prudholm, 446 So.2d 729 (La. 1984); State v. Seay, 521 So.2d 1206 (La. App. 2 Cir.1988). On the instant record we cannot declare that trial counsel was ineffective as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unlike the defendant in Hayes, supra, Ball did not receive a life sentence, or even a maximum sentence, but a midrange sentence. Moreover, the District Court reviewed the PSI in light of the
Conclusion
We have reviewed the entire record in accord with
AFFIRMED.