State of Louisiana v. Steven Mark Marc" Anderson "

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-962

STATE OF LOUISIANA

VERSUS

STEVEN MARK “MARC” ANDERSON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 110556-A
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED AS AMENDED, AND REMANDED.

G. Paul Marx
Post Office Box 82389
Lafayette, Louisiana 70598
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Steven Mark “Marc” Anderson

Edward Marquet
Post Office Box 53733
Lafayette, Louisiana 70505
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Steven Mark “Marc” Anderson

Michael Harson
District Attorney – Fifteenth Judicial District
Michele S. Billeaud
Assistant District Attorney
Post Office Box 3304
Lafayette, Louisiana 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

On June 6, 2006, the Defendant, Steven Mark “Marc” Anderson, was charged

by bill of information as follows: 1) count one – theft of a firearm, a felony in

violation La.R.S. 14:67.15; 2) count two – possession of a firearm by a convicted

felon, a felony in violation of La.R.S. 14:95.1; and 3) count three – possession of

drug paraphernalia, a misdemeanor in violation of La.R.S. 40:1023. A trial by jury

on the felony charges was held on November 26 and 27, 2007, and the jury found the

Defendant guilty as charged on the felonies in counts one and two. The trial court

found the Defendant guilty on the misdemeanor charge in count three.

On March 5, 2008, the Defendant was sentenced to serve thirteen years at hard

labor for possession of a firearm by a convicted felon to be served without benefit of

probation, parole, or suspension of sentence. He was also fined $1,000.00. For theft

of a firearm, the Defendant was sentenced to five years at hard labor without benefit

of probation, parole, or suspension of sentence. Lastly, for possession of drug

paraphernalia, the Defendant was ordered to serve six months in the parish jail. The

Defendant’s sentences were ordered to run concurrently with each other.

Following sentencing, the State gave oral notice of its intent to file a multiple

offender bill, charging the Defendant as a multiple offender; however, said bill is not

found in the record, nor is a hearing or ruling included in the record. The Defendant

did not file a motion to reconsider sentence.

The Defendant appeals, asserting that the evidence is insufficient to support his

convictions and that the trial court should have ordered a mistrial because the

alternate juror participated in deliberations. For the following reasons, we affirm as

amended and remand.

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FACTS

On April 4, 2006, the Defendant’s stepfather, Joseph Boudreaux, reported that

the Defendant had stolen his handgun. When the Defendant was found, he admitted

to taking the gun from his stepfather’s house and stated that he traded it for crack

cocaine. The Defendant was subsequently arrested. After being advised of his rights,

he waived his rights and signed an Interrogation: Advice of Rights Form. Once more,

the Defendant admitted to taking his stepfather’s gun and stated that he gave it to

someone else.

More than two months after the initial report, Mr. Boudreaux reported that the

gun had not been stolen after all and that his wife, Margaret Boudreaux, who is also

the Defendant’s mother, had moved the gun to Mr. Boudreaux’s mother’s house

because the Defendant, a convicted felon, was not allowed to be around the gun.

Mrs. Boudreaux, however, did not contact the district attorney’s office to report that

she had moved the gun, nor did she produce the gun to confirm that the gun was not

stolen. Further, Mr. Boudreaux allegedly sold the gun at a gun show, despite the fact

that charges were pending against the Defendant for theft of the gun.

ERRORS PATENT AND PROCEDURAL ISSUE

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 note that there

are several errors patent, a procedural issue, and the minutes of sentencing are in need

of correction.

In this case, there was a misjoinder of offenses in the bill of information. The

bill of information charged the Defendant with three separate counts: 1) count one –

theft of a firearm, a violation La.R.S. 14:67.15; 2) count two – possession of a firearm

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by a convicted felon, a violation of La.R.S. 14:95.1; and 3) count three – possession

of drug paraphernalia, a violation of La.R.S. 40:1023.

Louisiana Code of Criminal Procedure Article 493 provides for the joinder of

offenses in a single bill of information under limited circumstances if the offenses

joined are triable by the same mode of trial. Louisiana Code of Criminal Procedure

Article 493.2 allows joinder of offenses in which punishment is necessarily

confinement at hard labor to be charged in the same indictment or bill of information

with offenses in which the punishment may be confinement at hard labor under

limited circumstances.

In the present case, count two, which is punishable at hard labor, is triable by

a twelve person jury, ten of whom must concur. See La.Code Crim.P. art. 782. Count

one, in which the punishment is confinement with or without hard labor, is triable by

a jury composed of six jurors, all of whom must concur. See La.Code Crim.P. art.

782 and La.Const. art. 1, § 17. Count three, which is a misdemeanor, is triable by a

judge only. See La.Code Crim.P. art. 779. Therefore, pursuant to La.Code Crim.P.

art. 493.2, counts one and two were properly joined, but count three, the

misdemeanor, was improperly joined.

However, the Defendant did not file a motion to quash the indictment on the

basis of misjoinder of offenses as required by statute. See La.Code Crim.P. art. 495.

Accordingly, this error is deemed waived.

Next, because the misdemeanor charge was not triable by a jury, the proper

mode of appellate review for that offense is an application for writ of review, rather

than an appeal. See La.Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App.

3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084,

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this court severed a misdemeanor conviction from the defendant’s appeal of two

felony convictions. This court ordered the defendant to file a writ of review

regarding the misdemeanor conviction in compliance with the rules of court. Noting

that the defendant did not make any specific arguments regarding the misdemeanor

conviction, this court considered the notice of appeal as a notice to file a writ of

review within thirty days of its opinion, if the defendant desired to seek review of the

misdemeanor conviction.

As in Turner, the Defendant herein has not raised any assignment of error

regarding his misdemeanor conviction. Therefore, as was done in Turner, we sever

Defendant’s misdemeanor conviction from his appeal and order the Defendant to file

a writ of review, should he desire to do so, regarding the misdemeanor conviction in

compliance with the Uniform Rules of Louisiana Courts of Appeal.

Next, the trial court imposed an illegally lenient sentence on the conviction of

theft of a firearm. In addition to imprisonment, the penalty for a conviction of theft

of a firearm also mandates a fine of $1,000.00. See La.R.S. 14:67.15. The trial court

failed to impose a fine, thus rendering the Defendant’s sentence on this charge

illegally lenient. We, therefore, amend Defendant’s illegally lenient sentence by

imposing upon the Defendant the $1,000.00 fine mandated by La.R.S. 14:67.15. We

also instruct the trial court to make a notation in the minutes reflecting the

amendment.

We likewise note the minutes of sentencing are in need of correction. The

minutes state that the trial court ordered the Defendant to pay a $100.00 fine for the

conviction of possession of a firearm by a convicted felon. The transcript, however,

indicates that the trial court ordered the Defendant to pay a $1,000.00 fine for that

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offense. Therefore, we remand the case to the trial court and instruct it to amend the

minutes of sentencing to correctly reflect the $1,000.00 fine imposed on the

conviction of possession of a firearm by a convicted felon.

ASSIGNMENTS OF ERROR

The Defendant is before this court asserting the following three assignments

of error:

1. The participation of an alternate juror in deliberations is a patent
structural error. The conviction must be reversed because the
alternate participated in discussion and asked a specific question
during deliberations. The discovery during jury deliberations was
too late for the Trial Court to seek specific evidence on the
question of violation of the law, and reversal is the only remedy.

2. The jury could not convict the Defendant of being in Possession
of a Firearm where no-one could testify for a fact that he ever had
possession. The conjecture regarding a weapon taken from the
Defendant’s father and what happened to it was insufficient to
prove any crime had occurred, and testimony of the owner of the
gun and his wife that it had been sold at a gun show was
sufficient to create a reasonable doubt on the charges of theft and
felon in possession of a firearm.

3. Without evidence of there being a firearm, the “corpus delecti[,]”
the statements of the Defendant could not be sufficient to
establish proof beyond a reasonable doubt of the crime of being
a Felon in Possession of a Firearm.

ASSIGNMENTS OF ERROR 2 AND 3:

Assignments of error two and three involve claims of insufficient evidence and

are interrelated. As such, these assignments are addressed first and considered

together. The Defendant argues that the evidence was insufficient to convict him of

theft, and, without proof of theft, the evidence was insufficient to convict him of

possession of a firearm by a convicted felon.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the

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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.

Theft of a firearm is defined in La.R.S. 14:67.15(A) as “the misappropriation

or taking of a firearm which belongs to another, either without the consent of the

other to the misappropriation or taking or by means of fraudulent conduct, practices,

or representations.” Also, the defendant must intend to permanently deprive the

owner of the firearm.

At trial, Lieutenant McCullan Gallien, with the Lafayette Police Department,

testified that, on April 4, 2006, he received a complaint that a handgun owned by

Joseph Boudreaux was stolen and that Mr. Boudreaux believed that the Defendant

had taken the gun. Mr. Boudreaux, the Defendant’s stepfather, gave a description of

the Defendant and a location to begin searching for him. When the Defendant was

found, he was advised of his rights and indicated to Lieutenant Gallien that he

understood his rights.

Next, Lieutenant Gallien asked the Defendant about the location of the gun,

and the Defendant offered to help him find it and get it off the street. According to

Lieutenant Gallien, the Defendant admitted taking the gun from inside his stepfather’s

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house. The Defendant did not indicate to Lieutenant Gallien that Mr. Boudreaux had

given him permission to take the gun. Further, the Defendant reported that he put the

gun in his waistband and transported it to an area where he then traded the gun for

crack cocaine.

The Defendant was subsequently arrested by Lafayette City Police and taken

to its Department of Vital Services where he was advised of his rights once more and

signed an Interrogation: Advice of Rights form. When asked if he had used any

illegal narcotics, the Defendant reported that he had used crack cocaine an hour prior

to the interview. The Defendant denied taking any medication. Lieutenant Gallien

testified that the Defendant did not appear sick, dazed, or confused, and appeared to

be coherent and aware of his surroundings and the questions Lieutenant Gallien was

asking. The Defendant did not appear to have any problem comprehending. Based

on his observations of the Defendant, Lieutenant Gallien believed that the Defendant

was able to answer his questions.

After waiving his rights, Lieutenant Gallien asked the Defendant if he could

help him find the gun. The Defendant indicated again that he had the gun in his

waistband when he gave it to someone else. Also, during their conversation, the

Defendant admitted that he had taken the gun and that the gun belonged to his

stepfather. Lieutenant Gallien stated that he had spoken with Mr. Boudreaux prior

to taking the Defendant’s statement and that the Defendant’s statement was consistent

with what Mr. Boudreaux had reported. According to Lieutenant Gallien, the

Defendant did not complain of feeling ill during the interview, but later on reported

that he had swallowed some crack cocaine. During the interview, the Defendant

indicated that he wanted to stop the interview. Accordingly, Lieutenant Gallien

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complied, stopped the video tape recorder, and gave it to the booking officer.

Lieutenant Gallien stated that he began looking for the gun, a Ruger .357

revolver, which had been described by Mr. Boudreaux at the time he made the

complaint. Also, the serial number was entered into the NCIC database used by

officers around the country to check to see if an item has been stolen. Hence, if

someone ran the serial number on Mr. Boudreaux’s gun, the NCIC would report it as

stolen. According to Lieutenant Gallien, the report of the stolen gun had never been

removed from the database, and he had checked the database the morning before

testifying.

Lieutenant Gallien also testified that Mr. Boudreaux completed a written

statement about what had occurred, which was submitted into evidence. According

to Lieutenant Gallien, Mr. Boudreaux’s written statement was consistent with his

prior verbal statement, and he never indicated that he did not want to proceed with

the prosecution. Mr. Boudreaux was also advised to notify the department if he

located the gun so that it could be removed from the NCIC database. Lieutenant

Gallien stated that Mr. Boudreaux never notified him that he had located the gun.

Following the interview, the Defendant was taken to the hospital after reporting

that he had swallowed three grams of crack cocaine. Lieutenant Gallien did not recall

seeing any symptoms, such as sweating, or anything life threatening. He did not

accompany the Defendant to the hospital, and he was not sure how long the

Defendant was at the hospital.

Mr. Boudreaux testified at trial that he had been married to the Defendant’s

mother for seven years and that the Defendant was his wife’s only child. Mr.

Boudreaux maintained that he got along with the Defendant. With regard to the gun,

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Mr. Boudreaux stated that he reported to the police that the gun was taken from his

home by the Defendant. In Mr. Boudreaux’s report to the police, he wrote:

On April 4 I had all kind of dope deliveries coming at my house. So I
went in my Bed Room look under the mattress and my gun was gone.
So I called my wife and she said she hadn’t seen it. So I asked Steven
Anderson about it, he said he picked the lock on the bedroom door and
stole it. He would need 60 dollars to pay the drug dealer so I gave him
the sixty dollars he never came back.

At trial, Mr. Boudreaux testified that he did not know at the time that his wife had

moved the gun to his mother’s house and maintained that his wife had not told him

anything about moving the gun.

After discovering that the gun was missing, Mr. Boudreaux asked the

Defendant if he had taken the gun. According to Mr. Boudreaux, the Defendant did

not admit to taking the gun, but instructed Mr. Boudreaux to give him seventy dollars,

and he would bring the gun back to him. Mr. Boudreaux complied because he

thought the Defendant had taken the gun. The Defendant left, telling Mr. Boudreaux

that he was going to look for the gun, but never came back. At that time, Mr.

Boudreaux went to the police and filled out a report. Next, Mr. Boudreaux stated: “A

couple days later, I guess, you know, after I pressed charges on him, told my wife

about it. She told me, ‘Well, I put the gun at your momma’s house.’ I didn’t know.

So I came back here and I filled out a report.” Mr. Boudreaux indicated that he filled

out a report to drop the charges.

When asked what happened to the gun, Mr. Boudreaux testified that he sold it

at a gun show because he had no use for it and needed money at the time. He also

stated that his wife moved the gun because she knew that the Defendant could not be

around guns. According to Mr. Boudreaux, the Defendant did not know at the time

that there was a gun under the mattress.

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On cross-examination, Mr. Boudreaux admitted reporting that, when he

confronted the Defendant, the Defendant told him that he had picked the lock on his

bedroom door, taken the gun, and traded it for crack cocaine. Mr. Boudreaux

maintained at trial, however, that the Defendant told him this to get the seventy

dollars to go buy crack.

Mr. Boudreaux also testified that he kept his bedroom door locked because he

knew the Defendant was on crack cocaine and that “crack heads” were coming

around his house. He also stated that he should have put a better lock on the bedroom

door and admitted that the lock had actually been picked by the Defendant so he

could purportedly get the gun and his wife’s change.

When asked why his wife did not tell him that she had moved the gun when he

first told her he could not find it, Mr. Boudreaux had no explanation. He just

reiterated his prior testimony that, when his wife learned a few days later that he had

pressed charges against the Defendant, she told him that she had moved the gun.

Mr. Boudreaux was shown a copy of the report indicating that the charges

should be dropped because he had found the gun. He acknowledged his handwriting

on the report and that the report was dated June 12, 2006, more than two months after

the initial report. Mr. Boudreaux could not recall when he sold the gun.

Mr. Boudreaux admitted that he refused to speak with the assistant district

attorney who called and made several attempts to come to his house to speak with

him about the claim that he had found his gun. He also admitted that he would not

answer the door when she came to his house. Mr. Boudreaux acknowledged that the

assistant district attorney left a message on his phone, indicating that she needed to

speak to him and to please answer the door. He was also asked if he thought it would

10

be important to speak with the assistant district attorney prosecuting the case if he had

actually found the gun. Mr. Boudreaux responded, “I don’t know.”

Mr. Boudreaux admitted that he was aware that charges were still pending

against the Defendant regarding the gun, but maintained that there was nothing else

he could do other than filing the affidavit. He stated once more that he sold the gun

at a gun show a couple of years ago and did not remember what he did with the

receipt. Mr. Boudreaux also admitted that the incident had put a strain on his

relationship with his wife since the Defendant was her only child.

The Defendant’s mother, Margaret Boudreaux, testified that, when she returned

from work on the day Mr. Boudreaux reported the gun stolen, he told her what had

happened, and she informed him that she had packed up the gun and taken it to his

mother’s house. She explained that the Defendant was not supposed to be around

weapons because he was a convicted felon. According to Mrs. Boudreaux, she had

told Mr. Boudreaux about moving the gun, and she guessed that he must have

forgotten about it since it had been a long time. Mrs. Boudreaux stated that, since the

late nineties, Mr. Boudreaux has had two strokes, two heart attacks, and had been

taking a lot of medication since that time. As such, Mrs. Boudreaux maintained that

he forgets a lot.

With regard to the initial report, Mrs. Boudreaux testified that Mr. Boudreaux

did not call her about the missing gun as indicated in the report, and she maintained

that she did not speak to him until that evening when she returned from work. At that

time, she told Mr. Boudreaux that the Defendant could not have stolen the gun.

Mrs. Boudreaux also stated that Mr. Boudreaux attends a lot of gun shows, and

she believed that he sold the gun because he said so; however, she was not with him

11

when he sold it. Mrs. Boudreaux testified that she did not force Mr. Boudreaux to

sign the document seeking to drop the charges and that he did so voluntarily.

According to Mrs. Boudreaux, she retrieved Mr. Boudreaux’s gun and gave it back

to him, telling him that the Defendant did not take it.

On cross-examination, Mrs. Boudreaux confirmed that she had seen the

assistant district attorney several times in court and at court hearings and that they had

talked about the case and the Defendant’s future; however, Mrs. Boudreaux had no

explanation as to why she never told the assistant district attorney that she found the

gun or that she moved the gun to her mother-in-law’s house. Instead, Mrs.

Boudreaux responded, “Well, you asked to come see it, so you had to know that I had

it.” When asked why she did not talk to the assistant district attorney about the fact

that the gun was found at her mother-in-law’s house, Mrs. Boudreaux stated that she

was talking to Mr. Amos, counsel for the Defendant, who told her not to talk about

the gun or show the assistant district attorney the gun. According to Mrs. Boudreaux,

Mr. Amos told her that the assistant district attorney wanted to take a picture of the

gun to use it against the Defendant in court. However, Mrs. Boudreaux could not

explain how a gun that was not stolen could be used against the Defendant in court

to prove that he stole it.

Mrs. Boudreaux maintained that she was not lying and that her son was being

charged for a crime for which he was not guilty. However, she could not explain why

she had not tried to help the Defendant until the day of trial, a year and a half later.

When she arrived home from work and learned that her husband had reported the gun

stolen, she did not immediately go to the police at that time and report the mistake,

or report that her husband had made the mistake because he was sick and forgetful.

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Mrs. Boudreaux stated that Mr. Boudreaux was going to take care of the problem and

that she had to work because “[p]eople need their money.”

On appeal, the Defendant asserts that no one testified for a fact that the

Defendant ever possessed the gun and complains that the State introduced out of

court statements to contradict the testimony of Mr. and Mrs. Boudreaux that the gun

was never stolen. Also, the Defendant complains that the credibility of Mr. and Mrs.

Boudreaux was not challenged. Lastly, the Defendant maintains that the testimony

of Mr. Boudreaux and his mother that the gun was sold at a gun show was sufficient

to create a reasonable doubt as to the theft and possession charges.

First, it was the State’s burden to prove that the theft occurred, not to contradict

the defense that the gun was not stolen as stated by the Defendant. Second, it was the

Defendant’s burden to contradict the evidence presented by the State to establish a

reasonable doubt as to the charges. Further, the Defendant’s assertion that the State

did not put on any testimony to prove its case is incorrect.

The record reflects that, in addition to the Defendant’s video recorded

statement and Mr. Boudreaux’s initial report which both indicate that the Defendant

had stolen Mr. Boudreaux’s gun, Lieutenant Gallien also testified that the Defendant

confessed to stealing the gun and trading it for crack cocaine. After receiving Mr.

Boudreaux’s complaint that the gun had been stolen by the Defendant, Mr.

Boudreaux gave Lieutenant Gallien a description of the Defendant and a location to

begin searching for him. When the Defendant was found, he admitted taking the gun

from his stepfather’s house and transporting it in his waistband to an area where he

traded it for crack cocaine. The Defendant even offered to help Lieutenant Gallien

find the gun. Then, in a recorded statement, the Defendant admitted a second time

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that he had taken the gun and that the gun belonged to his stepfather. Also, the

Defendant indicated once more that he had the gun in his waistband when he gave it

to someone else.

In response to these allegations, the defense called on Mr. and Mrs. Boudreaux

to testify that the gun had not been stolen and asserts on appeal that their credibility

was not challenged at trial. We disagree. The record is replete with inconsistencies

in the testimonies of these witnesses. First, Mr. Boudreaux waited more than two

months to recant his allegation of theft, even though he testified that Mrs. Boudreaux

informed him a couple of days later that she had moved the gun. Also, Mrs.

Boudreaux maintained that Mr. Boudreaux did not call her before making the report,

and she indicated that she told Mr. Boudreaux the same evening he reported the theft

that she had moved the gun, not a couple of days later as stated by Mr. Boudreaux.

Even more incredible is the fact that, other than filing an affidavit more than

two months after the charge, Mr. and Mrs. Boudreaux did nothing to clear the

Defendant of the charges, even up to the day of trial. They would not accept calls

from the assistant district attorney to prove that the gun was found, nor would they

allow her to see the gun. Moreover, Mr. Boudreaux allegedly sold the gun, the same

gun which would have exonerated the Defendant, at a gun show.

Simply put, not only did the testimony of these two witnesses conflict with

each other, their credibility from the record alone does not support their claim that the

gun was later found and was not stolen as originally reported. Considering the

evidence and testimony at trial and the lack of credible evidence to cast a reasonable

doubt, we find that the State satisfied its burden of proving the elements of theft of

a firearm beyond a reasonable doubt.

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Possession of a firearm by a convicted felon is defined in La.R.S. 14:95.1(A)

(footnote omitted), which reads as follows:

It is unlawful for any person who has been convicted of a crime
of violence as defined in R.S. 14:2(B) 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, manufacture or possession of
a delayed action incendiary device, manufacture or possession of a
bomb, or any violation of the Uniform Controlled Dangerous Substances
Law which is a felony, or any crime which is defined as a sex offense in
R.S. 15:541(14.1), or any crime defined as an attempt to commit one of
the above-enumerated offenses under the laws of this state, or who has
been convicted under the laws of any other state or of the United States
or of any foreign government or country of a crime which, if committed
in this state, would be one of the above-enumerated crimes, to possess
a firearm or carry a concealed weapon.

The only element that the Defendant challenges is possession of the firearm. The

Defendant contends that the State did not prove that the theft of the firearm had

occurred because he never had possession of the gun; and, therefore, the State did not

prove that he possessed the firearm for the purpose of proving this offense.

As set forth above, we find that the State, in its efforts to prove that the

Defendant committed theft of a firearm, did prove that the Defendant possessed Mr.

Boudreaux’s gun. As such, there is no merit to this claim or the claims that he did not

take Mr. Boudreaux’s gun. Accordingly, the Defendant’s convictions are affirmed.

ASSIGNMENT OF ERROR NO. 1:

In this assignment, the Defendant argues that the participation of an alternate

juror in the jury deliberations is a patent structural error. The Defendant maintains

that, because the alternate juror asked a specific question during jury deliberations,

his convictions must be reversed. Further, the Defendant contends that the discovery

of the alternate juror being involved during deliberations came too late for the trial

court to seek specific evidence as to the violation.

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In support of his argument, the Defendant refers to State v. Barber, 97-2749

(La. 4/24/98), 708 So.2d 1054. From the limited facts of this writ opinion, it appears

that alternate jurors were present during deliberations. As a result thereby, the case

was remanded to the trial court for an evidentiary hearing to determine if the outcome

was affected by the presence of alternate jurors and to what extent the outcome was

affected. In rendering its ruling, the supreme court in Barber relied on La.Code Evid.

art. 606(B), and concluded as follows:

Participation by alternates in deliberations is an extraneous influence on
the jury representing a prima facie case of prejudice requiring reversal.
La.C.E. art. 606(B); State v. Howard, 573 So.2d 481 (La.1991); State
v. Smith, 367 So.2d 857 (La.1979). Louisiana courts are “required to
take evidence upon well-pleaded allegations of prejudicial juror
misconduct. . . .” State v. Graham, 422 So.2d 123, 131-132 (La.1982);
State v. Horne, 679 So.2d 953, 958 (La.App. 2nd Cir. 8/21/96), writ
denied, 688 So.2d 521 (La. 2/21/97); State v. Sanders, 539 So.2d 114,
121 (La.App. 2nd Cir.), writ denied, 546 So.2d 1212 (La.1989); State v.
Duncan, 563 So.2d 1269, 1272 (La.App. 1st Cir.1990). See also State
v. Searile, 643 So.2d 455, 457-458 (La.App. 3rd Cir. 10/5/94). At the
conclusion of the hearing, the trial court shall determine whether a new
trial or other appropriate relief is required, reserving to the parties a right
to seek review of the ruling.

Id. at 1054.

The States contends, on the other hand, that the presumption of prejudice as a

result of an unauthorized communication by a non-juror during trial is not conclusive.

The State, however, has the burden to establish, after notice to the Defendant and a

hearing, that the contact between the non-juror and juror was harmless to the

Defendant. In support of its argument, the State refers to State v. Bibb, 626 So.2d

913, 922 (La.App. 5 Cir. 1993), writ denied, 93-3127 (La. 9/16/94), 642 So.2d 188,

wherein the court addressed the issue as follows:

Initially in any trial, there is a presumption of jury impartiality.
United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert denied, 444
U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). However, any

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unauthorized communication, contact, or tampering directly or
indirectly, made by a non-juror with a juror during a trial about the
matter pending before the jury is deemed presumptively prejudicial, if
not made in accordance with rules of court and the instructions and
directions of the court made during the trial, with full knowledge of all
the parties. The presumption is not conclusive, but the burden rests
heavily upon the state to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to defendant.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed.
654 (1954); State v. Marchand, 362 So.2d at 1092. Prejudice may be
shown by evidence that an extrinsic factual matter tainted the jury’s
deliberations. Thus, an adequate demonstration of extrinsic influence
upon the jury overcomes the presumption of jury impartiality and shifts
the burden to the state to show that the influence demonstrated was not
prejudicial. United States v. O’Keefe, 722 F.2d 1175, 1179 (5th
Cir.1983); United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975);
State v. Sinegal, 393 So.2d 684, 687 (La.1981).

After the trial court’s instructions to the jury in the instant case, the jury retired

to deliberate. During deliberation, the jurors sent out a note asking to review the

Defendant’s videotaped interrogation and Mr. Boudreaux’s two written statements.

After calling the jury back into the courtroom and explaining why their request was

denied, the trial court stated:

I committed an oversight when you retired to deliberate because the
alternate, Ms. Knight, you’re not supposed to be in there. Your duties
are concluded when we reach the end of the trial and we’ve not lost a
regular juror. So you haven’t had to replace anybody.

So you are - - your services are complete. So the twelve (12) regular
jurors will now retire to the deliberation room to continue your
deliberations.

And, Ms. Knight, hang on for one second.

The jury returned to the deliberation room, and Ms. Knight was then sworn in and

questioned by the trial court as follows:

Q Okay. Ms. Knight, let me first assure you that you’ve done
nothing wrong. What went wrong was totally my responsibility, an
oversight by me. You were not supposed to be in the deliberation with
the jury. What I was supposed to do was to release you prior to
deliberations beginning. So what I want to know now is what - - what

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happened in the jury deliberation room while you were in there and
whether your presence there might have affected the deliberations of the
jury. Okay?

A Okay.

Q When you all retired to deliberate, did you participate in the
discussions with the other jurors about the case?

A Yes. Um, - -

Q And I don’t want you to - -

BY THE COURT: Well, let me see counsel just for
a second.

BENCH CONFERENCE

BY THE COURT: Ms. Knight, why don’t you
have a seat in the jury box?

ALTERNATE JUROR COMPLIES WITH REQUEST

BENCH CONFERENCE

THE COURT HAS BEEN ADVISED THAT A VERDICT HAS BEEN
REACHED

BY THE COURT: And let’s bring them on in.

JURY SEATED

At this time, the jury verdict was read, and each juror was polled.

Next, the trial court addressed the jurors as follows:

BY THE COURT: Okay. Ladies and gentlemen, I’m now going
to question you about an error that I made, and that is in sending Ms.
Knight, the alternate juror, into the deliberation room before I realized
my mistake and had her taken out.

I need to know whether her presence in the deliberation room
could have had any possible effect on the ultimate verdict, and in
particular, any one of your particular votes.

Is there anyone that feels that Ms. Knight’s presence and whatever
she might have said during the thirty (30) minutes that she was in there
had any effect or could have had any effect on any of your votes? Does

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anybody feel that way?

ALL JURORS RESPOND NEGATIVELY

BY THE COURT: Can each of you assure me that had you begun
the deliberations without the alternate juror, can each of you assure me
that the verdict and the vote would have been the same whether she was
in there or not? Does anybody feel that it could have been affected in
any way, her presence could have affected the vote in any way? If so,
please raise your hand and tell me.

NO INDICATION MADE BY JURORS

BY THE COURT: Okay. Let the record show that none have
indicated.

And, Ms. Knight, you’re here. I’m going to ask you, ma’am, what
participation did you have in the deliberation room? Let’s go ahead and
make a record of the time. The jury retired to deliberate at, I believe,
five minutes before five o’clock (5:00). And I addressed the question
that the jury had about the exhibits about thirty (30) minutes into your
deliberation. And at that point, I removed Ms. Knight.

Ms. Knight, did you participate in discussions during the thirty
(30) minutes that you were in there, ma’am?

MS. KNIGHT: I did not participate in any discussion. I only
asked a question.

BY THE COURT: And what was it?

MS. KNIGHT: The question I asked was about the picking of the
lock, if anybody knew anything about it, anymore than what was said or
could make any more sense out of it. And that --

BY THE COURT: Okay.

MS. KNIGHT: And that was it.

BY THE COURT: During the thirty (30) minutes that you were
in there, did you express any opinion as to the guilt or innocence of the
defendant?

MS. KNIGHT: No, none.

BY THE COURT: Okay. All right. Is that consistent with the
memory of all of the jurors about the time, the thirty (30) minutes that
Ms. Knight was in there?

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ALL JURORS RESPONDED AFFIRMATIVELY

BY THE COURT: Okay. Counsel, any questions of the jurors?

MS. BILLEAUD: No, Your Honor. I’d just like the record to
reflect that they all nodded.

The Defendant asserts that the above questioning of the jurors was insufficient

to make a determination that the legal presumption of prejudice was rebutted. More

specifically, the Defendant complains that the trial court addressed the group as a

whole as to whether they were affected by Ms. Knight’s presence and did not inquire

of specific jurors. The Defendant maintains that the mode of inquiry was not an

effective way to gather facts from which the court could infer that there was no

influence. The Defendant concludes that the trial court, in effect, was asking the

jurors to reach a conclusion for the court on the ultimate issue of prejudice. Further,

the Defendant asserts that the presumption of prejudice was a matter of law, that the

trial court could not defer the issue to the jury, and that the trial court needed

compelling facts to find that the presumption of prejudice did not apply.

We agree that the presence of the alternate juror and the fact that she asked a

question during jury deliberation triggers the presumption of prejudice; however, we

find that said presumption was adequately rebutted at trial. The trial court addressed

Ms. Knight’s participation in the jury’s discussion and ascertained that she asked only

one question about the existence of additional evidence; however, she did not express

to the jurors an opinion as to the guilt or innocence of the Defendant. Additionally,

the trial court questioned the jurors and confirmed that this was the extent of Ms.

Knight’s participation in jury deliberation. Lastly, the jurors denied that Ms. Knight’s

presence and question during jury deliberation had any effect on how they voted.

Further, the jurors indicated that, had they begun deliberations without Ms. Knight,

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each juror’s vote would have been the same regardless of Ms. Knight’s presence and

question.

Although given the opportunity at trial, the Defendant did not question the

jurors or offer any evidence to dispute the testimony of the jurors. Further, the

Defendant does not point to any statute or jurisprudence, nor are we aware of any

legal basis, to conclude that the collective questioning of the jurors was inadequate

to rebut the presumption of prejudice. Accordingly, we find this alleged error to be

without merit.

CONCLUSION

The Defendant’s convictions for theft of a firearm and possession of a firearm

by a convicted felon are affirmed. The trial court is instructed to amend the minutes

of sentencing to correctly reflect that it imposed a $1,000.00 fine rather than a

$100.00 fine on the Defendant’s conviction of possession of a firearm by a convicted

felon. Additionally, because the Defendant received an illegally lenient sentence, we

amend and correct said illegal sentence and impose upon the Defendant the $1,000.00

fine mandated by La.R.S. 14:67.15. Finally, we sever the Defendant’s misdemeanor

conviction from his appeal and instruct the Defendant that he must file an application

seeking supervisory review with this court within thirty days of this court’s opinion

if he chooses to seek review of his misdemeanor conviction.

AFFIRMED AS AMENDED, AND REMANDED.

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