STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-657
STATE OF LOUISIANA
VERSUS
REUBEN S. WILLIAMSON
**********
APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. CR-2021-158 HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE
D. KENT SAVOIE JUDGE
Court composed of D. Kent Savoie, Candyce G. Perret, and Ledricka J. Thierry, Judges.
CONVICTION OF ARMED ROBBERY VACATED; CONVICTION OF SIMPLE ROBBERY ENTERED; SENTENCES VACATED; AND REMANDED WITH INSTRUCTIONS. Sherry Watters Louisiana Appellate Project P. O. Box 58769 New Orleans, LA 70158-8769 (504) 723-0284 COUNSEL FOR DEFENDANT/APPELLANT: Reuben S. Williamson
James R. Lestage District Attorney, 36th Judicial District/Beauregard Parish Richard A. Morton Adam M. Bone Assistant District Attorneys, 36th Judicial District/Beauregard Parish 124 South Stewart Street DeRidder, LA 70634 (337) 463-5578 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana SAVOIE, Judge.
On January 28, 2021, Defendant Reuben Williamson (“Defendant”) illegally
entered the home of Ms. Sarah Lewis (“Ms. Lewis”) while pretending to be a law
enforcement officer conducting a criminal investigation. Defendant ultimately
took Ms. Lewis’s purse and cash and searched the rest of Ms. Lewis’s home while
Ms. Lewis remained in her bedroom. After Defendant’s departure, Ms. Lewis and
her children discovered that five firearms were missing from Ms. Lewis’s gun
cabinet in the spare bedroom.
As a result, Defendant was charged in April of 2021 with one count of
aggravated burglary, in violation of La.R.S. 14:60; one count of unauthorized entry
of an inhabited dwelling, in violation of La.R.S. 14:62.3; five counts of theft of a
firearm, in violation of La.R.S. 14:67.15; one count of possession of a firearm by a
convicted felon, in violation of La.R.S. 14:95.1; one count of armed robbery, in
violation of La.R.S. 14:64; and one count of false personation of a peace officer, in
violation of La.R.S. 14:112.1.
Defendant proceeded to trial on February 22, 2022. On February 24, 2022, a
unanimous jury found Defendant guilty as charged on all ten counts. Defendant
filed a Motion for a New Trial on March 15, 2022, contending that “the
prosecution failed to prove beyond a reasonable doubt that the defendant
committed the crime of Armed Robbery.” On March 25, 2022, the State filed a
habitual offender bill of information. On April 4, 2022, the trial court heard and
denied Defendant’s Motion for a New Trial and accepted Defendant’s denial of the
allegations of the habitual offender bill. On April 25, 2022, the trial court found Defendant to be a fourth or
subsequent felony offender for counts one through seven, nine, and ten, and it
sentenced Defendant on April 28, 2022, as follows with respect to each count:
1. Aggravated burglary as a habitual offender – seventy-five years at hard labor without benefit of probation, parole, or suspension of sentence;
2. Unauthorized entry as a habitual offender – twenty years at hard labor without benefit of probation or suspension of sentence;
3. Theft of a firearm as a habitual offender – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
4. Theft of a firearm as a habitual offender – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
5. Theft of a firearm as a habitual offender – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
6. Theft of a firearm as a habitual offender – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
7. Theft of a firearm as a habitual offender – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
8. Possession of a firearm by a convicted felon – twenty years at hard labor without benefit of probation, parole, or suspension of sentence;
9. Armed robbery as a habitual offender – ninety-nine years at hard labor without benefit of probation, parole, or suspension of sentence;
10. False personation of a police officer as a habitual offender – twenty years at hard labor without benefit of probation or suspension of sentence.
All sentences were ordered to be served concurrently.
Defense counsel objected to the sentences as excessive, and the trial court
allowed him to raise an oral motion to reconsider the sentences. Defense counsel
argued that the trial court’s determination that terrorism was an aggravating factor
due to Ms. Lewis feeling terror was inappropriate and not what the legislature
2 intended when it wrote La.Code Crim.P. art. 894.1(B)(17). Defendant also argued
that his sentences were disproportionate to his crimes, contending he is “not the
worst of the worst.”
The trial court denied the motion to reconsider sentences. It specifically
indicated that it did not apply an aggravating factor of terrorism, but rather simply
noted that Ms. Lewis was terrorized by Defendant’s actions. Additionally, the trial
court dismissed Defendant’s disproportionality argument based upon Defendant’s
numerous arrests and convictions during the twenty-seven years after he became a
legal adult.
On June 6, 2022, the trial court heard a State-filed motion to reconsider
sentence wherein the State sought an order of restitution for damages suffered by
Ms. Lewis—namely, property damage and the value of the guns that were stolen
but never recovered. The trial court found Defendant responsible for $3,252.00 in
damages but ordered that $1,594.00 recovered from Defendant at the time of his
arrest be given to Ms. Lewis as partial payment. It then rendered a restitution order
against Defendant for the remaining amount of $1,658.00.
Defendant now appeals his convictions and sentences, assigning the
following assignments of error: (1) the State failed to sufficiently prove Defendant
was guilty of armed robbery, aggravated burglary, and/or possession of a firearm
by a convicted felon; (2) Defendant’s conviction for aggravated burglary as well as
the underlying felonies violated the constitutional prohibition against double
jeopardy; and (3) the district court imposed excessive sentences in refusing to
deviate below the mandatory sentence on most of the convictions, and the seventy-
five year sentence for aggravated burglary impermissibly exceeds statutory
authority.
3 FACTS
Ms. Lewis’s son, Kenneth Lewis (“Mr. Lewis”), testified that Ms. Lewis
called him around 3:45 a.m. on January 28, 2021, and told him that she had been
robbed. According to Mr. Lewis, his mother said “she was made to sit on the bed
and he took her purse, her money and her guns, laptop and her iPad. And
immediately she said he said that he was going to kill her if she called the police.”
Mr. Lewis described his mother’s gun cabinet as a wooden upright cabinet
with glass paneled doors that could hold roughly six guns. He noted the door
frame and glass had been broken even though the key to the lock was on top of the
cabinet. He testified that prior to January 28, 2021, the cabinet contained “a 22
automatic, there was a 22 single shot, a 410 pump, a 12-gauge single shotgun and a
12-gauge pump shotgun.”
The State’s second witness, Mrs. Chaery Lewis Townsley (“Mrs.
Townsley”), is Ms. Lewis’s daughter. According to Mrs. Townsley, her mother
told her that Defendant had threatened to rape and kill her if she called the police
or left the bed in her bedroom where he had told her to stay. She noted that it was
clear the spare bedroom had been ransacked and there was glass in the utility room
where Defendant had broken into the home. She also noted that the glass had been
broken in the gun cabinet. Mrs. Townsley testified that although her mother told
her Defendant took the guns from the gun cabinet, her mother never said that she
saw Defendant with a gun.
The State then called Ms. Lewis, the victim in this matter. Ms. Lewis
testified that on January 28, 2021, she heard a loud noise around 2:30 a.m. that she
thought was a large branch hitting her roof. She explained that she was asleep in
her bed at that point, and that she was subsequently woken up with a flashlight
4 being pointed into her face. According to Ms. Lewis, she asked the man who he
was and why he was in her house while he was standing in the doorway. She
testified that he told her he was with the Sheriff’s Office looking for an escapee.
Ms. Lewis stated that the man told her someone had broken into her house through
both doors, and that he showed her that the door in the utility room was wide open.
Ms. Lewis testified “[h]e was very nice right at first. You wouldn’t have thought
he wasn’t with the Police Department.” She testified he showed her that the
exterior door in the family room was also wide open. Ms. Lewis explained that
after the man declined her offer of refreshments, it dawned on her that law
enforcement would not be looking for an escapee without any kind of weapon.
Ms. Lewis testified that she went to her bedside telephone to call the
Sherriff’s Office to confirm that the man in her house was with them, but the man
snatched the phone out of her hand, began using profane language, and told her she
had to sit on the bed and not move. She testified that he told her if she got off the
bed “he would rape or kill” her. According to Ms. Lewis, the man returned to the
doorway of her room multiple times while he was ransacking the house, and he
threatened to kill her if she moved. Ms. Lewis testified that the man took her
wallet, which had been on her bed with her, as well as her purse that was in the
spare bedroom, after she told him where it was. She stated she was afraid of the
man because he was very angry, and she did not want to antagonize him. Ms.
Lewis also testified that she told the man where her large water jug full of change
was located, and he immediately took it from under her bedroom dressing table.
Ms. Lewis testified that when the man left, she was missing five long guns,
her iPad, her large jug full of coins, six dollars in cash, her purse, and her wallet.
5 She noted that she pleaded with the man not to take her wallet because all of her
medical cards were in it.
Although Ms. Lewis testified that she did not see the man take the guns out
of her gun cabinet, she noted they were locked in the gun cabinet prior to January
28, 2021, and that her common sense told her he had taken them along with her
iPad and other items. Ms. Lewis testified that the gun cabinet in the spare bedroom
had been there almost as long as she had lived in the home and that she had lived
in the home since the early 1960s. She testified that there was a 410, a single shot
22, and a semi-automatic 22 rifle that belonged to her, as well as a “big shotgun”
that belonged to her husband’s family, and another that belonged to her husband,
and that the guns were in the cabinet prior to January 28, 2021.
Ms. Lewis testified that she guessed the incident took around forty-five
minutes and that before he left, the man threatened to “come back and rape and
kill” her if she called the Sheriff’s Department; therefore, she called her son. She
also explained that she found the man’s phone at the end of her bed and tried using
chairs to prevent the man from returning because she knew the locks were broken.
Ms. Lewis recounted that the man returned for his phone, and claimed that
he was even angrier than before, cursed at her, and that he nearly hit her with the
door after breaking the glass to get inside. She testified that the man had cut the
phone line on her kitchen phone, and she noted that the headsets for both phones
were gone when the man left.
Ms. Lewis described the man as Caucasian and wearing a grey hooded
sweatshirt and baggy jeans, gloves, and short-trimmed black facial hair on the day
of the incident. Based upon Defendant’s voice and height, Ms. Lewis positively
6 identified Defendant during trial as the man who was in her house in the early
morning hours of January 28, 2021.
On cross-examination, Ms. Lewis confirmed that she never actually saw
Defendant holding a gun and that Defendant did not threaten her with a gun;
however, she stated that she knew there were five guns in her spare bedroom
before he broke in and all of the guns were gone when he left. She re-affirmed that
the only items she saw him take from her room were her jug of coins and her
wallet. She also stated that she believed Defendant’s threats that he would kill her.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we conclude
that the sentences should be vacated as indeterminate and that the case should be
remanded for resentencing.
The sentences imposed are indeterminate because the trial court ordered the
payment of restitution “to the victim in this matter” without specifying to what
count or counts the restitution order applied. When the trial court ordered
Defendant to pay restitution, it stated:
All right. Well, the Court will find that based upon the itemization of actual damages there is a specific loss to the victim in this matter in the amount of $3,252.00 and I’ll order restitution to the victim in this matter in that same amount.
Counts one, two, nine, and ten in the bill of information name the same
victim, while the remaining counts do not name a victim. Thus, it is not possible to
discern a specific count to which the trial court intended the restitution order to
apply.
7 In State v. Pope, 19-670, (La.App. 3 Cir. 6/10/20), 299 So.3d 161, writ
denied, 20-852 (La. 10/6/20), 302 So.3d 532, this court found the trial court
imposed indeterminate sentences when it failed to specify on which count or
counts it imposed several terms of the sentence, including restitution. See also
State v. Duhon, 20-513 (La.App. 3 Cir. 5/26/21), 322 So.3d 326, where this court
found the defendant’s sentences were indeterminate because the trial judge failed
to state on which count or counts restitution was imposed.
We further note that in State v. Brown, 19-771 (La. 10/14/20), 302 So.3d
1109, the supreme court announced a new rule concerning indeterminate
sentences. The indeterminate sentence in Brown involved the trial court’s failure
to specify whether the concurrent, sixty-year terms of imprisonment for three
counts of armed robbery with a firearm included the mandatory five-year sentence
enhancement required by La.R.S. 14:64.3(A). The court of appeal vacated the
sentences and remanded for resentencing; however, the supreme court found error
by the court of appeal and stated the following regarding the purpose of La.Code
Crim.P. art. 879’s requirement that determinate sentences be imposed:
The court of appeal erred in finding the sentences were indeterminate as an error patent. The 1926 indeterminate sentence law provided that, except as to certain enumerated offenses, the sentence imposed should include both a minimum and maximum term. See 2916 La. Acts 222. Under this law, after serving the minimum term of his sentence a prisoner was eligible for parole. To remedy confusion over the correct interpretation and application of this law, Article 529 of the Code of Criminal Procedure was amended in 1942 to require determinate sentences of fixed terms of imprisonment. See 1942 La. Acts 46.
At present, La.C.Cr.P. art. 879 continues to require that a term of imprisonment be a fixed number of years by providing that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” This article is routinely misapplied by the intermediate appellate courts to find determinate, fixed term sentences to be indeterminate when a
8 district court has not specified that five years of a fixed sentence result from the firearms enhancement provision of La.R.S. 14:64.3(A). The intermediate appellate courts vacate such sentences in errors patent review. See, e.g., State v. Billingsley, 11-1425 (La. App. 3 Cir. 3/14/12, 86 So.3d 872; State v. Long, 11-0313 (La. App. 5 Cir. 12/13/11), 81 So.3d 875; State v. Adams, 10-1140 (La. App. 4 Cir. 6/1/11), 68 So.3d 1165; State v. Weaver, 38,322 (La. App. 2 Cir. 5/12/04), 873 So.2d 909.
As a rule of thumb, however, if it is possible to calculate a parole eligibility or full-term release date, then the sentence is not indeterminate. While it is possible that defendant’s sentences did not include the firearms enhancement and were therefore illegally lenient, they were not indeterminate. Furthermore, the State did not complain on appeal that the sentences were illegally lenient. Therefore, the court of appeal erred in finding as an error patent that they were indeterminate and in vacating them, absent any complaint by the State that the district court failed to apply the mandatory firearms enhancement.
Id. at 1110 (alteration in original)(emphasis in original).
Brown, however, does not address the problems that may arise in the present
case if the sentences were allowed to remain as they were imposed. For instance,
the trial court’s failure to specify on which count or counts restitution is imposed
could be problematic in the event one of the counts is vacated. Depending on
which count is vacated, it may be unclear as to whether the restitution order is
vacated as well. Additionally, in Duhon, 322 So.3d 326, this court found the
sentences were indeterminate despite counsel’s argument that the trial court’s
intent could be discerned from the record.
As this court did in Pope and Duhon, we hereby vacate the sentences
imposed, remand for the imposition of determinate sentences, and specifically
instruct the trial court to specify on which count or counts the restitution order
applies.
9 ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error, Defendant contends that the evidence
presented at trial was insufficient to support his convictions for armed robbery,
aggravated burglary, and possession of a firearm by a convicted felon. Defendant
argues that because Ms. Lewis testified she never saw Defendant with a weapon,
the State failed to prove he was armed as required to prove armed robbery and
aggravated burglary and also failed to prove he possessed a firearm as required to
prove possession of a firearm by a convicted felon.
The analysis for insufficient-evidence claims is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Regarding a conviction for armed robbery, this court has previously set forth
the elements of said offense:
To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189[, pp. 7-8] (La.App.2d Cir. [10/31/01]), 799 So.2d 684[, 690].
10 State v. McGinnis, 07-1419, p. 11 (La.App. 3 Cir. 4/30/08), 981 So.2d 881, 890
(quoting State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ
denied, 07-2190 (La. 4/4/08), 978 So.2d 325).
Defendant contends the State also failed to prove anything was taken from
Ms. Lewis’s “person or immediate control.” However, we find no merit to this
contention. Ms. Lewis testified that Defendant stole her wallet that was on the bed
next to her, and that she begged him not to take the wallet because it contained her
identification and medical cards. Viewing the evidence in the light most favorable
to the prosecution, the State clearly proved something of value was taken from Ms.
Lewis’s “immediate control.”
Defendant also contests the State’s evidence regarding the final element for
armed robbery, namely that he was armed with a dangerous weapon at the time of
the taking. Even though Defendant was clearly in possession of firearms at some
point during the incident, given that he conceded at trial to thefts of firearms,
Defendant argues that he was not “armed” during the robbery, and that his actions,
at most, constituted simple robbery, which is a lesser included offense.
We agree with Defendant’s argument that the State failed to prove that he
took anything from Ms. Lewis or in her immediate control “while armed with a
dangerous weapon.” Although it is clear Defendant was in possession of multiple
firearms at some point during the incident, La.R.S. 14:64 requires a defendant to be
armed with a dangerous weapon at the time of the taking at issue. Ms. Lewis
testified she never saw Defendant with a gun. In addition, although she testified
that she believed Defendant’s threats that he would rape or kill her, there is no
11 indication he ever threatened to shoot her or otherwise use a dangerous weapon in
carrying out those threats.
Given the State’s failure to prove that Defendant used or threatened the use
of a weapon during the incident, Defendant’s conviction for armed robbery is not
supported by sufficient evidence and must be vacated.
We next consider whether the State presented evidence sufficient to support
a responsive verdict. Under La.Code Crim.P. art. 814(A)(29), the lesser included
offenses for armed robbery are attempted armed robbery, first degree robbery,
attempted first degree robbery, simple robbery, and attempted simple robbery.
A conviction for first degree robbery or attempted first degree robbery under
La.R.S. 14:64.1(A) would require the offender to lead “the victim to reasonably
believe he is armed with a dangerous weapon.” As previously stated, there is no
evidence Defendant threatened Ms. Lewis with a dangerous weapon or claimed to
be armed with a dangerous weapon, and Ms. Lewis did not testify that she believed
Defendant to be armed with a dangerous weapon. Accordingly, the State’s
evidence was insufficient to support a conviction for either first degree robbery or
attempted first degree robbery.
Simple robbery is relevantly defined as “[t]he taking of anything of value
belonging to another from the person of another or that is in the immediate control
of another, by use of force or intimidation, but not armed with a dangerous
weapon.” La.R.S. 14:65(A)(1). The only difference between armed robbery and
simple robbery is whether the offender is armed during the taking. Given the
discussion above, the State’s evidence was sufficient to justify a conviction for
simple robbery. Accordingly, Defendant’s conviction for armed robbery is hereby
12 vacated, a conviction for simple robbery is entered, and the case is remanded for
Defendant to be sentenced in accordance therewith.
Defendant also contends his conviction for aggravated burglary is based
upon insufficient evidence. According to La.R.S. 14:60:
A. Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon.
(2) If, after entering, the offender arms himself with a dangerous weapon.
(3) If the offender commits a battery upon any person while in such place, or in entering or leaving such place.
Defendant argues that because Ms. Lewis never saw him with a gun, the
State failed to prove any of the aggravating conditions. However, at trial,
Defendant conceded his guilt regarding the thefts of five firearms, which logically
indicates that, at some point after entering Ms. Lewis’s home, he took possession
of the five firearms during the incident.
This case is similar to State v. Lazaro, 12-134 (La.App. 3 Cir. 11/7/12), 125
So.3d 1134, where the defendant argued that carrying a handgun in his backpack
after his theft of the handgun gun from a residence did not constitute arming
himself under the aggravated burglary statute. This court disagreed and stated:
As relevant to the facts of this case, La.R.S. 14:60(2) requires that “[a]fter entering [the accused] arms himself with a dangerous weapon.” The defendant contends that there is no evidence that he had already stolen a handgun while Mr. Wade was present in the house. However, as previously discussed, Mr. Wade’s presence in the house was not necessary for the completion of the crime. The defendant simply had to arm himself with a dangerous weapon at some point after entering in order to meet the requirements of La.R.S. 14:60(2). There is sufficient evidence in the record to support a conclusion that the defendant did so. Mr. Wade testified that all three of his handguns
13 were missing, including two revolvers and a semi-automatic. In his statement, the defendant admitted taking a handgun and placing into a backpack. Further, Detective Fontenot testified that he recovered two backpacks from the road which contained, among other items, a semi- automatic pistol and a revolver.
Additionally, the defendant argues that he did not “arm himself until the stolen gun was removed from the backpack.” However, we find no merit in this contention. The defendant admitted that he stole at least one handgun while inside the Wades’ residence and placed it into a backpack, where it was readily available.
Id. 125 So.3d at 1138 (alterations in original).
Similarly, in the instant case, Defendant’s admitted theft of the firearms is
sufficient evidence under the circumstances, when viewed in the light most
favorable to the prosecution, to support Defendant’s conviction for aggravated
burglary. Therefore, this conviction is affirmed.
Finally, Defendant contends the State failed to prove that he ever possessed
a firearm, which is a necessary element of his conviction for possession of a
firearm by a convicted felon. Defendant acknowledges that the State proved the
other elements of the offense but contends that, because Ms. Lewis did not see
Defendant with the guns and the State failed to recover them, the State failed to
prove he possessed the weapons.
We find no merit to this argument. Defendant conceded that he was guilty
of the thefts of the firearms. There is no evidence of anyone, other than Defendant,
being in Ms. Lewis’s home to have been able to physically remove the guns from
the gun cabinet. It is impossible for Defendant to have stolen five long guns, while
acting alone, without possessing them at least enough to move them. Accordingly,
the State’s evidence was sufficient to support Defendant’s conviction for
possession of a firearm by a convicted felon.
14 ASSIGNMENT OF ERROR NO. 2:
In his second assignment of error, Defendant argues that his right against
double jeopardy was violated when he was convicted of aggravated burglary, as
well as armed robbery, five counts of theft of a firearm, and possession of a firearm
by a convicted felon.
The right against double jeopardy, which is guaranteed by both the federal
and state constitutions, is set forth in La.Code Crim.P. art. 591:
No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.
Although Louisiana courts once evaluated double jeopardy claims under a
“same evidence” standard, the supreme court did away with that test in State v.
Frank, 16-1160 (La. 10/18/17), 234 So.3d 27. In Frank, the supreme court held
that in evaluating double jeopardy issues, Louisiana courts are to use the following
test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932).
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’
Id. 284 U.S. at 304.
Defendant’s conviction of aggravated burglary, as well as the conviction of
simple robbery that we are hereby entering in this case, are not the same offenses,
15 or otherwise violate double jeopardy considerations. By statutory definition,
aggravated battery requires an unauthorized entry of an inhabited dwelling or any
structure, water craft or movable where a person is present, an intention to commit
a felony or theft, and the existence of at least one enumerated aggravated factors
including the defendant be armed, or arming himself with a dangerous weapon
after entering. See La.R.S. 14:60. Simple robbery, on the other hand, requires
“[t]he taking of anything of value belonging to another from the person of another
or that is in the immediate control of another, by use of force or intimidation, but
not armed with a dangerous weapon.” La.R.S. 14:65(A)(1). Thus, each crime, by
definition, requires proof that the other does not.
Similarly, there are elements necessary for a conviction of aggravated
burglary that are not required for a conviction of theft of a firearm, and vice versa.
Again, an aggravated burglary requires an unauthorized entry with an intent to
commit a felony or theft, as well as an aggravating factor. However, aggravated
burglary, unlike theft of a firearm under La.R.S. 14:67.15, does not require
evidence that the defendant actually took, or misappropriated, a firearm from
another person, or evidence that the defendant intended to permanently deprive
another of the firearm. In addition, theft of a firearm under La.R.S 14:67.15,
unlike aggravated burglary under La.R.S. 14:60, does not require evidence of an
unauthorized entry, or an aggravating factor. The two crimes in question are not
the same offenses according to their statutory definitions, and Defendant’s
convictions of both aggravated burglary and theft of a firearm in this matter do not
violate double jeopardy considerations.
16 Further, Defendant’s convictions of possession of a firearm by a convicted
felon under La.R.S. 14:95.1, together with his convictions of aggravated burglary
and/or thefts of firearms do not violate double jeopardy.
To convict a person of being a felon in possession of a firearm under La.R.S. 14:95.1, the State must prove beyond a reasonable doubt (1) that Defendant has been convicted of a felony enumerated in this statute; (2) that subsequent to that conviction, Defendant possessed a firearm; (3) that a period of less than ten years has elapsed since Defendant’s completion of his sentence, parole, or probation for the prior conviction; and (4) that Defendant had the general intent to commit the offense.
State v. Bryant, 21-240, p. 12 (La.App. 3 Cir. 12/22/21), 333 So.3d 495, 502.
Unlike possession of firearm by a convicted felon under La.R.S. 14:95.1,
neither aggravated burglary, nor theft of a firearm, require proof that a defendant
has a prior conviction of a felony. Further, aggravated burglary requires an
unauthorized entry, an intent to commit a felony or theft, and an aggravating
factor, whereas possession of a firearm by a convicted felon does not. In addition,
unlike the crime of possession of a firearm by a convicted felon, the crime of theft
of a firearm requires a misappropriation of a firearm from another with an intent to
permanently deprive the other of the firearm.
Defendant’s convictions of aggravated burglary, simple robbery, thefts of a
firearm, and possession of a firearm by a convicted felon, do not violate double
jeopardy considerations, and, therefore, we find no merit to Defendant’s second
assignment of error.
ASSIGNMENT OF ERROR NO. 3:
In his third and final assignment of error, Defendant contends his sentences
are excessive. However, in light of our decision above to vacate Defendant’s
17 sentences because they are impermissibly indeterminate, Defendant’s third
assignment of error is rendered moot.
DECREE
Defendant’s conviction of armed robbery is hereby vacated, and a conviction
of simple robbery is entered. Defendant’s remaining convictions are affirmed. In
addition, Defendant’s sentences are hereby vacated, and the case is remanded with
instructions to the trial court to sentence Defendant in accordance with the simple
robbery conviction entered herein, and to impose determinate sentences that
specify to which count or counts the restitution order applies.
CONVICTION OF ARMED ROBBERY VACATED; CONVICTION OF SIMPLE ROBBERY ENTERED; SENTENCES VACATED; AND REMANDED WITH INSTRUCTIONS.