State v. Sims

734 So. 2d 813, 1999 WL 216618
CourtLouisiana Court of Appeal
DecidedApril 1, 1999
Docket98 KA 1304
StatusPublished
Cited by2 cases

This text of 734 So. 2d 813 (State v. Sims) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sims, 734 So. 2d 813, 1999 WL 216618 (La. Ct. App. 1999).

Opinion

734 So.2d 813 (1999)

STATE of Louisiana
v.
Clarence Edward SIMS, Jr.

No. 98 KA 1304.

Court of Appeal of Louisiana, First Circuit.

April 1, 1999.

*815 Samuel C. D'Aquilla, Jackson, Attorney for Defendant/Appellant, Clarence Edward Sims, Jr.

Richard Clay Howell, St. Francisville, Attorney for Appellee, State of Louisiana.

Before: CARTER, C.J., SHORTESS and WHIPPLE, JJ.

WHIPPLE, J.

Defendant, Clarence Edward Sims, Jr., was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. Following trial by jury, defendant was found guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for the minimum term of ten years without benefit of parole.[1] Defendant has appealed, urging four assignments of error.

On December 12, 1997, West Feliciana Deputy Sheriff Travis Depew made a traffic stop of a car in West Feliciana Parish, after observing that the vehicle was being operated with an expired temporary license tag. He asked Darren Sullivan, the driver, and defendant, the passenger, if there were any weapons in the vehicle or on their persons. They replied in the negative. Due to the traffic violation, Depew proceeded to have the vehicle towed from the scene. Depew knew Sullivan by sight and defendant by name and knew where they lived. When Depew offered them a ride home, they accepted. However, prior to letting them get inside his police unit, Depew patted down Sullivan and defendant for weapons for his and their safety. The search of Sullivan did not produce any weapon, but during the pat down of defendant, Depew discovered and seized a .380 silver Larcin handgun which was inside a pocket of defendant's windbreaker.

At trial, the state introduced into evidence a certified copy of a bill of information bearing docket number W-94-11-817 filed in the Twentieth Judicial District Court for the Parish of West Feliciana on November 4, 1994, charging Clarence Sims, Jr. with aggravated battery. Other certified court documents corresponding to bill number W-94-11-817 were: (1) the transcript and court minutes of the November 10, 1994 arraignment at which Clarence Sims, Jr. entered a plea of nolo contendere to the aggravated battery; (2) the December 8, 1994, sentencing hearing transcript and corresponding court minutes showing Clarence Sims, Jr. received a suspended sentence and was placed on probation for the offense on that date; and (3) a document specifying the terms of Clarence Sims, Jr's probated sentence.

Don Phares, a probation and parole officer, identified defendant in court and state's exhibit 6(S-6) as the document setting out the conditions of defendant's probation for the aggravated battery. Phares testified that he was in court on December 8, 1994, when defendant was sentenced, and that he signed S-6, as did defendant, who signed the document using the name "Clarence E. Sims, Jr."

*816 W.M. Daniel, the Sheriff of West Feliciana Parish, testified that defendant is the same Clarence Sims who was placed on probation for aggravated battery, that he was present in court for the sentencing for the offense, and that he personally finger-printed defendant.

Darren Sullivan testified that the seized handgun belonged to a third person who had been in the car earlier that day. Sullivan stated that he did not know the gun was in the car until after he exited the car and reentered the car, following the traffic stop. At that point, he found the gun beneath a newspaper on the front seat. Sullivan threw the gun toward defendant, who panicked, picked up the gun, and tried to hide it by putting it in his coat.

Defendant took the witness stand in his own defense at trial. He admitted that S-1, the gun seized by Depew, was found on his person. Defendant stated that he was only a passenger in the car, that Sullivan threw the gun in his lap, that he knew it was a violation for him to possess a gun, and that he panicked and tried to hide the weapon so the officer would not see it.

ASSIGNMENTS OF ERROR NOS. 1 & 4

In assignment number one, defendant contends that the state failed to prove all of the elements of the instant crime by constitutionally sufficient evidence, and the trial court consequently erred by denying defendant's motion for post verdict judgment of acquittal. Specifically, he argues that the state did not prove that the statutory period of ten years from the date of completion of the sentence for the predicate offense had not elapsed. In assignment number four, defendant contends that the trial court erred by not giving the jury a limiting instruction after the state was permitted to introduce other crimes evidence, i.e., proof of defendant's conviction of the predicate offense of aggravated battery.

In reviewing claims challenging the sufficiency of the evidence, this court must consider "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) (emphasis in original). See also LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-1309 (La.1988).

The elements of possession of a firearm by a convicted felon are: (1) possession of a firearm, (2) conviction of an enumerated felony,[2] (3) absence of the ten-year statutory period of limitation, and (4) general intent to commit the offense. LSA-R.S. 14:95.1; State v. Husband, 437 So.2d 269, 271 (La.1983).

Regarding the ten-year prescriptive period, LSA-R.S. 14:95.1(C)(1) provides as follows:

C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section ... shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.

Defendant's assertion that the state failed to establish the absence of the ten-year prescriptive period is obviously a misstatement, since the state's evidence proved defendant was sentenced for the predicate conviction on December 8, 1994, slightly more than three years before defendant was found in possession of the .380 handgun. Clearly, no further proof was *817 required for this element of the crime. See, e.g., State v. President, 97-1593, p. 10 (La.App. 3rd Cir.7/15/98); 715 So.2d 745, 751, writ denied, 98-2115 (La.12/11/98); 729 So.2d 590.

Additionally, notwithstanding defendant's assertions to the contrary, we find that there was no error as a result of the failure of the trial court to give a limiting instruction to the jury concerning the introduction of evidence of the predicate conviction of aggravated battery. As already noted, previous conviction of the defendant for a predicate offense is a requisite element of the crime of possession of a firearm by a convicted felon. Consequently, the requirements, including limiting instructions to the jury, set out in State v. Prieur, 277 So.2d 126 (La.1973), do not apply in the instant situation wherein proof of a prior conviction is a requisite element of the charged crime. See State v. Sanders, 357 So.2d 492, 494 (La.1978); and State v. Batiste, 96-2203, pp. 5-6 (La.App. 4th Cir.10/22/97); 701 So.2d 729, 731-732.

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Bluebook (online)
734 So. 2d 813, 1999 WL 216618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sims-lactapp-1999.