Judgment rendered May 20, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,453-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JACK D. NOBLES Appellant
Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. CR 44442
Honorable Jacque D. Derr, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd
R. CHRISTOPHER NEVILS Counsel for Appellee District Attorney
RICHARD CHRISTOPHER STEVEN D. CREWS COLE B. SMITH Assistant District Attorneys
Before PITMAN, STEPHENS, and STONE, JJ. PITMAN, J.
Defendant Jack D. Nobles was found guilty as charged of possession
of contraband in a penal institution. He was adjudicated as a third felony
habitual offender and sentenced to six years at hard labor. He now appeals
his conviction and sentence. For the following reasons, we affirm his
conviction, vacate and set aside the habitual offender adjudication and
sentence, and remand to the trial court for further proceedings.
FACTS
On July 5, 2018, the state filed a bill of information charging
Defendant with possession or introduction of contraband into a penal
institution, in violation of La. R.S. 14:402(E). The state alleged that on or
about June 5, 2018, Defendant possessed or introduced contraband, i.e., a
cellular phone, into a penal institution.
A jury trial was held on September 24, 2018. Deputy Johnny Shively
of the Winn Parish Sheriff’s Department testified that on June 5, 2018, he
went to the Winn Parish Jail to conduct a “shakedown” in a jail cell that
housed six men, including Defendant. The warden ordered the occupants to
line up facing a wall, put their hands on the wall and not to move.
Dep. Shively then searched the bunk beds, table, shower and toilet in the jail
cell. He found a cellular phone under the bedcovers of the bed assigned to
Defendant. After the search was finished, he advised Defendant of his rights
and then asked Defendant about the phone. Defendant told him that he had
been using the phone, but that it did not belong to him. Defendant denied
knowing the phone’s passcode.
On cross-examination, Dep. Shively testified that he did not determine
how the phone came to be in the jail, did not know how long Defendant had been at the jail and did not question the other five men housed in the jail cell
about the phone.
Deputy Wayne Hagen of the Winn Parish Sheriff’s Office testified
that he received the cellular phone from Dep. Shively and then obtained a
search warrant for the phone. His search was unsuccessful because he was
not able to obtain the phone’s passcode from Defendant.
The state rested, and the defense did not present any witnesses. The
jury found Defendant to be guilty as charged.
On November 26, 2018, Defendant filed a motion for new trial. He
argued that the verdict is contrary to the law and evidence presented at trial
because the state failed to prove that the contraband belonged to him. The
trial court denied this motion.
A sentencing hearing was held on November 26, 2018, whereupon the
trial court stated that the presentence investigation report revealed that
Defendant had seven prior felony convictions. It found that, in light of
Defendant’s criminal history, the maximum sentence was appropriate and
sentenced him to five years at hard labor with credit for time served.
On November 29, 2018, Defendant filed a motion to reconsider
sentence. He argued that the trial court was aware of the sentence that
would have been imposed had he pled guilty, that the court was penalizing
him for exercising his right to a jury trial and that the sentence imposed was
excessive and not commensurate with the crime for which he was convicted.
The trial court denied this motion.
On December 17, 2018, the state filed a habitual offender bill of
information. At a hearing on March 19, 2019, a plea agreement was read
into the record that in exchange for Defendant’s guilty plea to the habitual 2 offender charge, the state would agree to a six-year sentence and the
dismissal of a pending charge of felony theft. Defendant confirmed that he
understood the terms of the plea agreement and that he wanted to plead
guilty. Defendant admitted to the two prior felony convictions contained in
the habitual offender bill of information. The trial court found that the
admissions were satisfactory and that the instant conviction would constitute
a third felony. Defense counsel waived the sentencing delay. The trial court
vacated Defendant’s prior sentence and resentenced him to six years at hard
labor with credit for time served.
Defendant appeals.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Defendant argues that the state failed
to sufficiently prove that he was guilty of possessing contraband in a penal
institution. He contends that the state did not prove beyond a reasonable
doubt that his admitted use of the cellular phone constituted possession of
contraband, as required by La. R.S. 14:402. Defendant argues that the state
did not prove he had actual or constructive possession of the phone because
there was no testimony that anyone saw him possessing the phone; that there
was no evidence he knew the phone was in his bed; and that, with five
cellmates, Defendant did not have sole control of his bed.
The state argues that Defendant’s conviction is sufficiently supported
by the evidence that he used, and therefore possessed, the phone discovered
in his bed at the Winn Parish Jail.
The standard of review for a sufficiency of the evidence claim is
whether, after viewing the evidence in the light most favorable to the 3 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,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold, 603 So. 2d 731
(La. 1992); State v. Smith, 47,983 (La. App. 2d Cir. 5/15/13), 116 So. 3d
884. See also La. C. Cr. P. art. 821. This standard does not provide an
appellate court with a vehicle for substituting its appreciation of the evidence
for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06),
922 So. 2d 517. The trier of fact makes credibility determinations and may
accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.
1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L.
Ed. 2d 62 (2000). The appellate court does not assess credibility or reweigh
the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02),
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Judgment rendered May 20, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,453-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JACK D. NOBLES Appellant
Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. CR 44442
Honorable Jacque D. Derr, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd
R. CHRISTOPHER NEVILS Counsel for Appellee District Attorney
RICHARD CHRISTOPHER STEVEN D. CREWS COLE B. SMITH Assistant District Attorneys
Before PITMAN, STEPHENS, and STONE, JJ. PITMAN, J.
Defendant Jack D. Nobles was found guilty as charged of possession
of contraband in a penal institution. He was adjudicated as a third felony
habitual offender and sentenced to six years at hard labor. He now appeals
his conviction and sentence. For the following reasons, we affirm his
conviction, vacate and set aside the habitual offender adjudication and
sentence, and remand to the trial court for further proceedings.
FACTS
On July 5, 2018, the state filed a bill of information charging
Defendant with possession or introduction of contraband into a penal
institution, in violation of La. R.S. 14:402(E). The state alleged that on or
about June 5, 2018, Defendant possessed or introduced contraband, i.e., a
cellular phone, into a penal institution.
A jury trial was held on September 24, 2018. Deputy Johnny Shively
of the Winn Parish Sheriff’s Department testified that on June 5, 2018, he
went to the Winn Parish Jail to conduct a “shakedown” in a jail cell that
housed six men, including Defendant. The warden ordered the occupants to
line up facing a wall, put their hands on the wall and not to move.
Dep. Shively then searched the bunk beds, table, shower and toilet in the jail
cell. He found a cellular phone under the bedcovers of the bed assigned to
Defendant. After the search was finished, he advised Defendant of his rights
and then asked Defendant about the phone. Defendant told him that he had
been using the phone, but that it did not belong to him. Defendant denied
knowing the phone’s passcode.
On cross-examination, Dep. Shively testified that he did not determine
how the phone came to be in the jail, did not know how long Defendant had been at the jail and did not question the other five men housed in the jail cell
about the phone.
Deputy Wayne Hagen of the Winn Parish Sheriff’s Office testified
that he received the cellular phone from Dep. Shively and then obtained a
search warrant for the phone. His search was unsuccessful because he was
not able to obtain the phone’s passcode from Defendant.
The state rested, and the defense did not present any witnesses. The
jury found Defendant to be guilty as charged.
On November 26, 2018, Defendant filed a motion for new trial. He
argued that the verdict is contrary to the law and evidence presented at trial
because the state failed to prove that the contraband belonged to him. The
trial court denied this motion.
A sentencing hearing was held on November 26, 2018, whereupon the
trial court stated that the presentence investigation report revealed that
Defendant had seven prior felony convictions. It found that, in light of
Defendant’s criminal history, the maximum sentence was appropriate and
sentenced him to five years at hard labor with credit for time served.
On November 29, 2018, Defendant filed a motion to reconsider
sentence. He argued that the trial court was aware of the sentence that
would have been imposed had he pled guilty, that the court was penalizing
him for exercising his right to a jury trial and that the sentence imposed was
excessive and not commensurate with the crime for which he was convicted.
The trial court denied this motion.
On December 17, 2018, the state filed a habitual offender bill of
information. At a hearing on March 19, 2019, a plea agreement was read
into the record that in exchange for Defendant’s guilty plea to the habitual 2 offender charge, the state would agree to a six-year sentence and the
dismissal of a pending charge of felony theft. Defendant confirmed that he
understood the terms of the plea agreement and that he wanted to plead
guilty. Defendant admitted to the two prior felony convictions contained in
the habitual offender bill of information. The trial court found that the
admissions were satisfactory and that the instant conviction would constitute
a third felony. Defense counsel waived the sentencing delay. The trial court
vacated Defendant’s prior sentence and resentenced him to six years at hard
labor with credit for time served.
Defendant appeals.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Defendant argues that the state failed
to sufficiently prove that he was guilty of possessing contraband in a penal
institution. He contends that the state did not prove beyond a reasonable
doubt that his admitted use of the cellular phone constituted possession of
contraband, as required by La. R.S. 14:402. Defendant argues that the state
did not prove he had actual or constructive possession of the phone because
there was no testimony that anyone saw him possessing the phone; that there
was no evidence he knew the phone was in his bed; and that, with five
cellmates, Defendant did not have sole control of his bed.
The state argues that Defendant’s conviction is sufficiently supported
by the evidence that he used, and therefore possessed, the phone discovered
in his bed at the Winn Parish Jail.
The standard of review for a sufficiency of the evidence claim is
whether, after viewing the evidence in the light most favorable to the 3 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,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold, 603 So. 2d 731
(La. 1992); State v. Smith, 47,983 (La. App. 2d Cir. 5/15/13), 116 So. 3d
884. See also La. C. Cr. P. art. 821. This standard does not provide an
appellate court with a vehicle for substituting its appreciation of the evidence
for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06),
922 So. 2d 517. The trier of fact makes credibility determinations and may
accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.
1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L.
Ed. 2d 62 (2000). The appellate court does not assess credibility or reweigh
the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02),
828 So. 2d 622, writs denied, 02-2595 (La. 3/28/03), 840 So. 2d 566, and
02-2997 (La. 6/27/03), 847 So. 2d 1255, and cert. denied, 540 U.S. 1185,
124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004). An appellate court reviewing the
sufficiency of the evidence in such cases must resolve any conflict in
the direct evidence by viewing that evidence in a light most favorable to the
prosecution. Id. When the direct evidence is thus viewed, the facts
established by that evidence must be sufficient for a rational trier of fact to
conclude beyond a reasonable doubt that the defendant was guilty of every
essential element of the crime. Id.
Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Broome, 49,004 (La. 4 App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15),
157 So. 3d 1127. If a case rests essentially upon circumstantial evidence,
that evidence must exclude every reasonable hypothesis of innocence. La.
R.S. 15:438; State v. Broome, supra.
At the time of the June 5, 2018 offense, La. R.S. 14:402(E) stated in
pertinent part:
It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit: *** (7) Any telecommunications equipment or component hardware, including but not limited to cellular phones, beepers, global positioning satellite system equipment, subscriber identity module (SIM) cards, portable memory chips, batteries, and chargers, whether or not such equipment may be intended for use in planning or aiding an escape or attempt to escape from any institution.
The possession of contraband is analogous to the possession of a
controlled dangerous substance and the possession of stolen things. The
state need not prove actual possession in order to obtain a conviction;
constructive possession is sufficient to support a conviction. State v. Toups,
01-1875 (La. 10/15/02), 833 So. 2d 910; State v. Webster, 51,865 (La. App.
2 Cir. 4/11/18), 246 So. 3d 779; State v. Holden, 45,038 (La. App. 2 Cir.
1/27/10), 30 So. 3d 1053, writ denied, 10-0491 (La. 9/24/10), 45 So. 3d
1072. Constructive possession exists when the item is within the
defendant’s dominion or control. State v. Toups, supra; State v. Webster,
supra; State v. Holden, supra. In some cases, possession may be established
by shared control. State v. Toups, supra; State v. Webster, supra.
5 In the case sub judice, the evidence presented by the state established
that Defendant possessed contraband, i.e., a cellular phone, upon the
premises of the Winn Parish Jail. The state proved that Defendant had
constructive possession of the phone through his admission that he used the
phone, and the phone was found in his assigned bed in the jail cell. Viewing
the evidence in the light most favorable to the prosecution, a rational trier of
fact could conclude beyond a reasonable doubt that Defendant was guilty of
every essential element of the crime of possession of contraband in a penal
institution. Further, the evidence presented at trial excludes every
reasonable hypothesis of innocence.
Accordingly, this assignment of error lacks merit.
Habitual Offender Plea Colloquy
In his second assignment of error, Defendant argues that the trial court
erred in the habitual offender plea colloquy by failing to inform him of his
right to remain silent. He acknowledges that he waived his right to a formal
habitual offender hearing and accepted the state’s plea offer. However, he
contends that the guilty plea colloquy violated his constitutional rights
because the trial court failed to advise him of his right to remain silent and
failed to determine that he freely and voluntarily pled guilty. He also
contends that the state failed to present sufficient evidence of his prior
convictions.
The state argues that the trial court’s failure to advise Defendant that
he had a right to remain silent is harmless error. It suggests that if
Defendant’s habitual offender adjudication and sentence are vacated, the
plea agreement is no longer available to Defendant, and he would be
exposed to a lengthier sentence. 6 Before accepting a defendant’s admission that he is a multiple
offender, the trial court must specifically advise the defendant of his right to
a formal hearing, his right to require the state to prove his identity as a
multiple offender and his right to remain silent. La. R.S. 15:529.1(D); State
v. Grimble, 51,446 (La. App. 2 Cir. 7/5/17), 224 So. 3d 498; State v. Odom,
34,054 (La. App. 2 Cir. 11/1/00), 772 So. 2d 281. A trial court’s failure to
properly advise a defendant of his rights under the habitual offender statutes
constitutes patent error on the face of the record and requires that the
habitual offender’s adjudication and sentence be vacated. State v. Grimble,
supra; State v. Odom, supra.
In State v. Mason, 37,486 (La. App. 2 Cir. 12/10/03), 862 So. 2d
1077, this court stated that failure to inform a defendant of his rights during
the habitual offender proceedings is error patent, but that under certain
circumstances the error may be harmless. Quoting State v. Bell, 03-217 (La.
App. 5 Cir. 5/28/03), 848 So. 2d 87, this court explained:
La. R.S. 15:529.1(D)(1)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the Defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the Defendant of his right to a hearing and his right to remain silent is not considered reversible error where the Defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the Defendant. However, when the guilt of the Defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error.
See also State v. Delaney, 42,990 (La. App. 2 Cir. 2/13/08), 975 So. 2d 789.
7 In the case sub judice, the following colloquy occurred at the habitual
offender hearing:
BY THE COURT: So, uh, but that’s the deal. If you agree that you have committed at least two prior felony’s (sic), plus the one you were convicted of in this matter, I’ll vacate the, uh, five year sentence, and give you a six year sentence, and, uh, the other . . . charge will be dismissed. Okay. Do you understand that?
BY THE DEFENDANT: Yes, Sir.
BY THE COURT: Is that what you want to do?
BY THE COURT: Okay. I believe he understands. . . . You understand you’re giving up your right to a hearing and just like a trial . . . all of this stuff when you do this.
BY THE COURT: You also won’t be able to appeal this.
BY THE COURT: You understand that?
BY THE COURT: Okay. So, is this what you—you want to do?
The state then read the factual bases for the prior two felony convictions,
and Defendant stated that he admitted to the convictions. The trial court
stated that Defendant’s admissions were satisfactory and sentenced him as a
third felony habitual offender to the agreed-upon sentence.
During this colloquy, the trial court failed to properly advise
Defendant of his right to remain silent, which constitutes an error on the face
of the record. According to State v. Mason, supra, this failure could be
harmless error if Defendant’s guilt was established by competent evidence
8 offered by the state at a hearing. However, the transcript of the habitual
offender hearing and the appellate record reveal that the state did not present
any evidence, e.g., bills of information for the previous convictions, to
support the habitual offender charges. The evidence in this appellate record
is insufficient to support the habitual offender adjudication, and the state
failed to meet its burden of proof that Defendant is a third felony habitual
offender.
Accordingly, this assignment of error has merit. We vacate and set
aside Defendant’s habitual offender adjudication and sentence and remand to
the trial court for further proceedings.
ERROR PATENT
At the time of the offense, La. R.S. 14:402(G) provided that whoever
violated the statute shall be fined for not less than $250 and not more than
$2,000 and shall be imprisoned, with or without hard labor, for not more
than five years. As a third felony habitual offender, Defendant faced a
penalty of two and one-half years to ten years at hard labor without benefit
of probation or suspension of sentence. La. R.S. 15:529.1(A)(3)(a) and (G).
The errors in the habitual offender adjudication notwithstanding, the
trial court imposed a statutorily and constitutionally compliant habitual
offender sentence, save for its failure to state that the sentence was imposed
without benefit of probation or suspension of sentence. As we reverse the
habitual offender adjudication and sentence, this issue is moot.
CONCLUSION
For the foregoing reasons, we affirm the conviction of Defendant Jack
D. Nobles. We vacate and set aside his habitual offender adjudication and
sentence, and we remand to the trial court for further proceedings. 9 CONVICTION AFFIRMED; HABITUAL OFFENDER
ADJUDICATION AND SENTENCE VACATED; REMANDED.