| Michael Jones was charged by bill of information with one count of aggravated
On the conviction for simple burglary, the trial court sentenced Mr. Jones to serve twelve years at hard labor. On the conviction for possession of a firearm by a convicted felon, the trial court sentenced Mr. Jones to fifteen years at hard labor and assessed a fine of one thousand dollars. The trial court ordered that the sentences run concurrently. Mr. Jones timely filed this appeal of his convictions and sentences.
FACTS
The victim in this case, Keyondra Bridges, and the defendant, Michael Jones, knew each other. They had, at one point in their relationship, been dating 12partners. At Mr. Jones’ trial, Keyondra
After the movie, Keyondra tried to bring Mr. Jones back to his sister’s house in Slidell but he refused to get out of the car. He wanted to go out, so she drove to Bourbon Street to placate him. Shortly after arriving on Bourbon Street, Keyon-dra was ready to leave so she called Mr. Jones’ sister, hoping that his sister would pick him up or would be able to persuade him to go to her house. When that tactic was unsuccessful, Keyondra drove to the Seventh District Police Station in New Orleans Bast hoping to get a police officer to help her get Mr. Jones out of her car. Mr. Jones ultimately got out of the car voluntarily at the police station, and Keyondra drove to her parents’ house.
Soon after she left him, Mr. Jones began calling Keyondra on her cell phone because he wanted her to drive him home. During the phone calls, he threatened to kill her parents, so she left their house and went to her grandmother’s, where she was living at that time, and went to bed.
|.c. Keyondra then heard Mr. Jones knocking on the window and doors of her grandmother’s home, but she did not respond. The front door to the house had a glass outer door and a wooden inner door. Mr. Jones broke the front glass door, but could not get in. He went to the side door and “kicked it in.” He then went to her bedroom, kicked in the bedroom door, and pulled her out of bed. Mr. Jones grabbed her by the neck and dragged her down the hall and out of the house. Keyondra yelled to her grandmother that Mr. Jones was trying to kill her and to call the police.
According to Keyondra, Mr. Jones was not at the house when the police arrived but returned soon after. She saw the police arrest Mr. Jones and heard him yell, “I’m going to be back” or “It’s not over.”
|4Mr. Jones testified on his own behalf. He acknowledged three prior convictions— possession of cocaine in 1999, possession with the intent to distribute cocaine in 2003, and distribution of cocaine in 2004. He testified that he and the victim began dating in 2003 and were dating at the time of the incident. He corroborated Keyon-dra’s testimony that they went to a movie and then to Bourbon Street. He contends that they began arguing so she put him out of the car at the Seventh District Police Station. Mr. Jones was talking to Officer Gabriel Osborne in the parking lot of the Seventh District when Keyondra pulled away. He testified that he asked Officer Osborne to give him a ride to Sli-dell, but she declined. Mr. Jones continued to try to find a ride to Slidell. He found a friend who could not take him to Slidell, but could take him somewhere in the New Orleans East area. So, he had his friend take him to Keyondra’s grandmother’s house. Mr. Jones then started calling Keyondra from his cell phone and she answered a majority of his calls.
Mr. Jones stated that he knocked on the door of the house, but no one answered. He slammed the front glass door, and it shattered. He then went to the side door, hit it with his left shoulder and it came open. Mr. Jones went to Ms. Bridges’ bedroom and used his shoulder to break it open. He stated that Keyondra willingly went outside with him and agreed to take him home. After going back inside to get her keys, Keyondra returned with a gun but did not point it at him. Mr. Jones stated that while he was trying to disarm her, he accidentally punched her in the face while trying to grab the gun, and she fell to the ground. Mr. Jones stated that he knew Keyondra would call the police, so he walked up the street to wait for the police to arrive. He acknowledged that as a convicted felon, he was | Bnot supposed to be in possession of a weapon. He claimed, however, that he took the gun to disarm her, taking the bullets out of the magazine and putting them in his right pocket while keeping the gun in his left pocket. He denied that he shot the weapon, or that it ever went off during the incident.
When the police arrived, Mr. Jones walked back to the house with his hands up and told the officers that that he had a gun, though he stood watching the police for twenty minutes before approaching the
Keyondra’s grandmother, Ms. Emma Bridges, testified that on the night of the incident she was home in bed watching television. She heard her granddaughter come in and, a short time later, heard a loud noise. She thought her granddaughter had dropped something but then heard her granddaughter yelling, “He’s going to kill me” and telling her to call the police. She opened her bedroom door and saw a man taking her granddaughter down the hall, though she never saw his face.
After the police arrived, Ms. Bridges saw an individual being arrested and heard him yelling as he was placed in the police car. She stated that the front glass door of her home was broken and that her side door was kicked in.
New Orleans Police Officer Gabriel Osborne was the first office to arrive at the scene that evening. She participated in the investigation and the subsequent arrest of Mr. Jones. She testified she first saw Mr. Jones in the Seventh District [ (¡parking lot earlier that night where Mr. Jones had asked to use her phone to make a call. She did not let him use it, but directed him to another location for a phone. According to her testimony, Mr. Jones never asked for a ride back to Sli-dell.
When she arrived at Ms. Bridges’ house, Officer Gabriel saw the broken front door. Upon further investigation, she observed that the side door to the residence and the door to Keyondra’s bedroom had been kicked in and noted further damage inside the residence. Officer Osborne observed that Keyondra had a laceration under her left eye, abrasions on her elbow, and scratches on her arms. Because Keyondra told the investigating officers that Mr. Jones shot a weapon, the officers searched the outside of the residence and found one spent casing in the driveway.
Approximately thirty minutes after Officer Gabriel and other officers arrived on the scene, Mr. Jones approached Officer Osborne, admitting that he had Keyon-dra’s gun. He approached Officer Osborne saying, “I’ll take my licks. I have her gun in my pocket.” Officer Osborne detained Mr. Jones and found the gun in his pocket with live rounds in it. When Mr. Jones was processed at Central Lockup, a live round was also discovered in another pocket.
ERRORS PATENT
A review of the record for errors patent reveals that the trial court failed to state that Mr. Jones’ sentences were to be served without the benefit of probation, parole or suspension of sentence. Louisiana Revised Statute 14:95.1 requires that the sentence for anyone convicted of being a felon in possession of a firearm must be served without the benefit of probation, parole or suspension of sentence. Louisiana Revised Statute 14:62.2 states that whoever is convicted of simple burglary of an inhabited dwelling “shall be imprisoned at hard labor for not less |7than one year, without benefit of probation, parole or suspension of sentence, nor more than twelve years.” However, Louisiana Revised Statute 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 2000-1725, p. 10 (La.11/28/01),
1. The trial judge erred in failing to instruct the jury on the law of justification (self-defense) with regard to the offense of possession of a firearm by a convicted felon.
2. The jury, inadequately instructed as to the law, returned a verdict that is not supported by the evidence with regard to the offense of possession of a firearm by a convicted felon.
3. Trial counsel was ineffective in failing to submit to the court a special jury charge with regard to self-defense to the charge of possession of a firearm by a convicted felon and in failing to ask for reconsideration of the maximum sentence, thus precluding the issue from review on appeal.
4. The sentence imposed for the conviction of possession of a firearm by a convicted felon is excessive under the circumstances of this case.
DISCUSSION
FAILURE TO INSTRUCT THE JURY
In his first assignment or error, Mr. Jones contends that the trial court erred in failing to instruct the jury on the law of justification (self-defense) with regard to the offense of possession of a firearm by a convicted felon. For the reasons that follow, we find this assignment of error to be without merit.
Louisiana Code of Criminal Procedure article 807 provides that both the State and the defense have the right to submit proposed special jury charges to the court; that the charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent; and that the Ischarge need not be given if it is included in the general charge or in another special charge.
Thus, a trial judge is required to charge the jury, in response to an otherwise proper request, as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence. State v. Marse,
INSUFFICIENCY OF EVIDENCE
In his second assignment of error, Mr. Jones contends that the evidence was insufficient to prove that he was guilty of possession of a firearm by a convicted felon. He contends that necessitous circumstances existed which required him to take possession of the weapon. Specifically, he claims that he took possession of the gun to prevent Keyondra from using it on him. Thus, he contends, his possession of the weapon was justified.
In reviewing a claim of insufficiency of evidence, courts must apply the standard set forth in Jackson v. Virginia,
Louisiana Revised Statute 14:18 sets forth the general provisions for justification: “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct.”
In State v. Blache,
In State v. Cheatwood,
In Cheatwood, the defendant was convicted of criminal neglect of his family. He and his wife divorced and he was ordered to pay child support. He quickly fell behind in his support payments and was ordered into court pursuant to a civil proceeding to have the amount of past due support determined and made executory. After judgment was rendered against him and he still did not pay in |inaccordance with the judgment, Mr. Cheatwood was charged with criminal neglect of family in accordance with La. R.S. 14:74 and found guilty as charged. At trial and on appeal, Mr. Cheatwood presented evidence that he suffered from a back injury, was disabled and was unable to meet his financial obligation. In discussing this defense, the Supreme Court first noted that except in a few instances, Louisiana statutes do not set forth who has the burden of proof for defenses. The Court differentiated defenses such as intoxication and mistake of fact, which negate an element of the offense, from defenses such as justification, which the court found to be an affirmative defense that does not negate an element of the recognized offense. The Court stated: In this case, “Since justification’ defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.” Cheatwood,
It is logical to conclude that the Legislature intended to require the state to prove beyond a reasonable doubt only the elements of the offense and to require defendant to prove by preponderance of evidence the exculpatory circumstances constituting the “affirmative” defense. See W. Lafave & A. Scott, Criminal Law § 8 (1972). The statutory provisions setting forth the state’s burden of proof refer only to the requirement that the state prove the elements of the crime-not that the state disprove the exculpatory circumstances constituting defenses which defeat criminal culpability despite proof of the presence of all elements of the offense. See La. R.S. 15:271; La.C.Cr.P. art. 804; former La.C.Cr.P. arts. 263 and 387 (1928).
*866 See also State v. Freeman, 427 So.2d
1161 (La.1983), Lemmon, J., concurring. Id. at 910 n. 4. The Court then found that the defendant had met his burden of proving his affirmative defense by a preponderance of the evidence.
In State v. Wischer, 2004-0325, pp. 8-9 (La.App. 4 Cir. 9/22/04),
After Wischer, this court has on numerous occasions discussed this issue and recognized that it is an unsettled area of law. See, State v. Cooks, 2011-0342, pp. 11-12, (La.App. 4 Cir. 12/14/11),
In State v. Grant,
In State v. Jones,
In State v. Jackson,
113In the present case, while the testimony of Mr. Jones and victim differed as to how he obtained possession of the weapon, all the testimony supports the finding that Mr. Jones maintained possession of the weapon after the victim ran back into the house. At that point, even accepting Mr. Jones’ testimony, he was no longer faced with an imminent and apparent threat which necessitated his possession of the weapon. Officer Osborne testified that Mr. Jones did not approach her until she had been on the scene for thirty minutes. Thus, when Mr. Jones was found to be in possession of the weapon, there was no reasonable justification for his possession of the weapon. Mr. Jones could have disposed of the weapon at any time. The evidence presented does not support a finding of justification or self-defense as argued by Mr. Jones. This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In this third assignment of error, Mr. Jones asserts a claim for ineffective assistance of counsel on two grounds: (1) failure to request a special jury charge on self-defense and (2) failure to file a motion to reconsider sentence. A review of the trial record reveals that defense counsel did file a motion to reconsider sentence, which was denied by the trial court. Therefore, we will only address the claim that defense counsel was ineffective for failing to request a special jury charge on self-defense.
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La.9/6/00),
11fiUnder Louisiana Code of Criminal Procedure article 802, a trial court shall charge the jury:
(1) As to the law applicable to the case;
(2)That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
(3) That the jury alone shall determine the weight and credibility of the evidence.
As stated earlier in this opinion, pursuant to Louisiana Code of Criminal Procedure article 807, the State and the defense shall have the right to submit to the court requests for special written charges for the jury.
The Supreme Court, in State v. Miller,
As discussed in the previous assignment of error, there was no evidence to support Mr. Jones’ argument of justification or self-defense. Even accepting the testimony favorable to Mr. Jones, there was no evidence to suggest that Mr. Jones |1fiwas in any imminent harm or danger when Officer Osborne found him in possession of the weapon. More than thirty minutes had elapsed from the time the police arrived at the residence in response to the 911 call to the time that Mr. Jones returned to the scene. As such, the evidence did not support the giving of a jury instruction on the issue of justification or self-defense in response to the charge of being a felon in possession of a weapon. Trial counsel was not ineffective for failing to request such a jury charge.
This assignment of error is without merit.
EXCESSIVENESS OF SENTENCE
Finally, Mr. Jones argues that his sentence for possession of a firearm by a convicted felon was excessive under the circumstances of his case. At time of the offense, the sentencing range provided in Louisiana Revised Statute 14:95.1 was ten to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence and a fine of one thousand
Louisiana Constitution article I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95),
Louisiana Code of Criminal Procedure article 881.4(D) provides that if the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in Louisiana Code of Criminal Procedure article 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99),
In State v. Soraparu, 97-1027, p. 1 (La.10/13/97),
In the present case, the trial court did not specifically state her reasons for the sentences imposed. However, the record supports the conclusion that the trial court considered the factors of article 894.1 in determining the sentences to be imposed. The trial court heard all the evidence adduced at trial, during which Mr. Jones admitted to having prior convictions for possession of cocaine, possession with the intent to distribute cocaine and distribution of cocaine. In fact, the offenses in the present case occurred only a few months after he was released from jail for his conviction for distribution of cocaine. The trial court was aware of the manner in which Mr. Jones took the weapon from the victim and the injuries he inflicted upon her. The trial court also heard evidence of how Mr. Jones attempted to maintain correspondence with the victim even though the victim did not encourage it. Additionally, the trial judge noted that Mr. Jones
In light of Mr. Jones’ prior convictions, the timing of these offenses following his release from jail, the violent nature of these convictions, and his behavior toward the victim at trial, the trial court did not abuse its wide discretion in sentencing Mr. Jones to fifteen years at hard labor on the charge of being a felon in possession of a weapon. This assignment is without merit.
CONCLUSION
For the foregoing reasons, we affirm Mr. Jones’ convictions and sentences.
AFFIRMED
Notes
. The victim is referred to by her first name as her grandmother, Mrs. Emma Bridges, was also a witness in these proceedings.
. Keyondra testified that Mr. Jones did not have a cell phone.
. Stephanie Briscoe is a senior police dispatcher with the New Orleans Police Department. She identified the 911 audio tape and transcript of the call received from Keyondra on November 11, 2009. The 911 tape was played for the jury.
. Ms. Bridges was unable to identify Mr. Jones at trial.
. Article 807 further states that "[a] requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”