State of Louisiana v. Edward Charles Jackson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-45

STATE OF LOUISIANA

VERSUS

EDWARD CHARLES JACKSON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 282,528
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

AMY, J., concurs in part, dissents in part, and assigns reasons.

CONVICTION AND SENTENCE FOR POSSESSION OF A
FIREARM BY A CONVICTED FELON AFFIRMED.
ARMED ROBBERY CONVICTION IS REVERSED AND
THE HABITUAL OFFENDER ADJUDICATION AND
SENTENCE IMPOSED ARE SET ASIDE;
JUDGMENT OF ACQUITTAL ENTERED ON THE
ARMED ROBBERY CONVICTION.

James C. Downs
District Attorney - 9th Judicial District Court
701 Murray Street
Alexandria, LA 71301
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
Telephone: (318) 572-5693
COUNSEL FOR:
Defendant/Appellant - Edward Charles Jackson

Edward Charles Jackson
Louisiana State Prison
Camp C Jaguar 3/R
Angola, LA 70712

THIBODEAUX, Chief Judge.

The Defendant, Edward Charles Jackson, appeals his bench trial

convictions for armed robbery and possession of a firearm by a convicted felon. He

was initially sentenced to concurrent ten-year terms at hard labor without the benefit

of probation, parole, or suspension of sentence on each conviction. Upon finding the

Defendant a fourth felony offender, the trial court vacated the armed robbery sentence

and imposed a ninety-nine year sentence at hard labor on the armed robbery

conviction.

The Defendant’s motion for a new trial was denied as untimely.

We reverse the Defendant’s armed robbery conviction because the State

failed to prove beyond a reasonable doubt the element of taking. We consequently

set aside and vacate the habitual offender adjudication and sentence imposed on the

armed robbery conviction and enter a judgment of acquittal. We affirm the

Defendant’s conviction and sentence on the possession of a firearm by a convicted

felon charge.

ISSUES

We shall consider whether:

(1) the State presented insufficient evidence to convict
the Defendant of armed robbery and possession of a
firearm by a convicted felon; and,

(2) the trial court erred in denying the Defendant’s
motion for a new trial based upon newly discovered
evidence as untimely.

LAW AND DISCUSSION

Insufficiency of the Evidence

The Defendant asserts insufficient evidence was presented by the State

to prove that he committed armed robbery or possession of a firearm by a convicted

felon.

The analysis for such 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.

The victim, Kenneth Williams, and the Defendant, both from the New

Orleans area, were staying at the Crown Hotel in Alexandria, Louisiana, due to

Hurricane Katrina. The Defendant had given Mr. Williams a haircut, and Mr.

Williams owed the Defendant money for his service. The testimony is undisputed

that on November 18, 2005, the victim went to the Defendant to pay him and the

Defendant took the money.

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Officer Danny Davis and Officer Keith Mouliere of the Alexandria

Police Department were dispatched to the Crown Hotel on November 18, 2005,

regarding an armed robbery. When the officers arrived, another officer was at the

hotel, Officer Stephens. According to Officer Davis, Officer Stephens was talking

to the victim.

After receiving information that the suspect had entered room 511, the

officers proceeded to the room. As they approached the door, the Defendant stepped

out. According to Officer Davis, the Defendant began telling them what happened

and Officer Mouliere stopped him to advise him of his Miranda rights.

Officer Davis testified in pertinent part that: “[h]e advised that the

reason he had taken the money . . . was because the victim had owed him money for

a haircut” and “he advised us that he had taken money from the victim, and the reason

he had taken the money was because the victim owed him money for a haircut and

refused to pay.” Officer Davis testified he asked the Defendant if he could search the

hotel room and the Defendant consented. Inside the room, the officer picked up the

lid of a bar-b-que pit. Under the lid was a box of Smith and Wesson 32 rounds.

According to the officer, once the Defendant saw the ammunition had been found, he

informed him where a handgun was located in the room. The officer found the

handgun in the top left hand dresser drawer. During Officer Davis’s testimony the

following exchange occurred:

Q Did he make any references to whether or not the
gun was used by him or not by him as far as the
offense was concerned?

A He made a statement that that was the gun that he
had used, and told us where it was at.

Q Did he explain to you why he did what he did?

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A He stated that it was because the victim had owed
him money for haircuts and would not pay.

Officer Mouliere testified that when asked what happened the Defendant

replied, “[l]ook, that guy owed me nine dollars . . . . [S]o I took his money.” Officer

Mouliere stated after the gun was located in the Defendant’s room the Defendant

explained, “Well, he gave me nine dollars, and I knew I wasn’t going to get paid, so

I took my money.” During the trial, Officer Mouliere was asked “Did he say with the

gun or not [sic], without the gun?” and he responded, “He said ‘I took my pistol, and

I got my money.’”

At the conclusion of the trial, the trial judge found the Defendant guilty

of both charges and on the armed robbery conviction set forth the following reasons:

The question is armed robbery charge, and my
concern is that the victim in this case, his testimony, well,
it leaves a lot to be desired, I guess you would say. Uh, but
it -- the problem that I have is it corroborates -- the
defendant helps corroborate his testimony. The police
were called to the scene, and the information they get is
that there has been a problem between Mr. Jackson and Mr.
Williams, and the problem involves a debt that is owed
supposedly by Mr. Williams to the defendant, Mr. Jackson.
Uh, Mr. Jackson, uh, confirms that. He said that there was
some money owed. And, uh, the -- Mr. Jackson says that
Mr. -- I’m sorry, Mr. Williams says that Mr. Jackson used
a gun to take $300 from him. Uh, I don't think that Mr.
Williams had $300. He only owed him $8. I don’t
understand why he didn’t pay him, but for some reason he
didn’t. But, uh, he tells the story that Mr. Jackson did rob
him of some money, uh that apparently he owed him. The
police knock on the door of Mr. Jackson and [sic] seems a
little surprised and wants to explain to them, uh, what
happened. He’s kind of surprised because, uh I really
believe he doesn’t think it’s a problem to rob somebody
that owes you some money. Uh, the first thing that he said
to them was that, yeah, I did get, I did use the gun to get
the money the victim owed me. I mean he told the police
because he didn't think anything was wrong with that, I
guess. The second statement was, he would not have done
this had the complainant paid him. Uh, that verifies much
of what the victim said and also what the police said, and
the defendant, um, confirms their testimony. I mean, it’s

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all corroborated by those two statements that he made. I do
not believe that the police officers made that up. I do not
believe that the police officers have forged his name on the
consent to search form. Uh, and so, when you consider
that -- the testimony of the police officers whose testimony
I believe to be credible.

Uh, the limited testimony that I received from Mr.
Williams, most of which was not credible, and when you
consider the testimony of Mr. Jackson, who I’ve
determined is not to be credible. And, he’s not credible
because he said the police officers forged his name, and the
police officers did this and that, which I don’t believe.
That makes his testimony completely incredible, and so,
uh, I just find that if you look at all the things, all the
testimony by each of the witnesses, that the credible
evidence is that there was an armed robbery, and that the
defendant did use the gun, State’s 1, to get the money that
the victim owed him. And, it wouldn’t have happened if he
would have just paid him. So, there is no self-help in
Louisiana. You cannot get a gun to collect a debt. Well,
I should say, in Louisiana, except for New Orleans, you
can’t do that. Um, and, so, I’m going to find the defendant
guilty of not only the armed robbery but also of the being
a convicted felon in possession of a firearm.

Possession of a Firearm by a Convicted Felon

The Defendant argues the police found the gun in his hotel room. The

Defendant asserts the State failed to exclude the reasonable hypothesis that the gun

belonged to someone else living in the hotel room. The Defendant explains there was

no evidence presented that he was the sole occupant of the hotel room. Additionally,

the Defendant states that the police did not see him with the gun and his fingerprints

were not on the gun or ammunition.

In State v. Melbert, 546 So.2d 948, 950 (La.App. 3 Cir. 1989), this court

explained in pertinent part:

The essential elements of the crime of possession of a
firearm by a convicted felon are: (1) status as a convicted
felon; (2) an instrumentality defined as a firearm; and, (3)
physical and/or constructive possession of the firearm by
the defendant. State v. Mose, 412 So.2d 584 (La.1982).

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Constructive possession is sufficient to satisfy the
possessory element of the offense. State v. Day, 410 So.2d
741 (La.1982). Constructive possession is established if
the weapon is subjected to the person’s dominion and
control even if it is only temporary in nature and even if
control is shared. State v. Bailey, 511 So.2d 1248 (La.App.
2d Cir. 1987).

The Defendant does not contest his status as a convicted felon; he

challenges whether or not the State presented sufficient evidence that he was in

possession of the gun.

The testimony at the trial indicated no fingerprints “of value” were lifted

from the gun or the ammunition. Testimony by Officer Stephen Constantino of the

Alexandria Police Department indicated a trace on the gun did not reflect the gun was

stolen and did not indicate the ownership of the gun. Additionally, the Defendant

testified in pertinent part: “I’ve never owned up to no gun. I never admit [sic] to

having no gun.” When asked if there were cartridges in the bar-b-que pit which was

in his room, the Defendant responded “Not to my knowledge.” When asked if the

gun found in the dresser was his gun, the Defendant responded, “No, sir.” No

testimony or evidence was submitted indicating another person occupied the hotel

room with the Defendant.

The undisputed testimony of the officers indicates a handgun was found

in the top left hand dresser drawer in the Defendant’s room. Officer Davis testified

the Defendant pointed out the location of the gun. The State introduced the handgun

into evidence. Additionally, the Defendant testified that on the day of the incident,

there was no one else in his hotel room when he had the encounter with the victim.

Consequently, based upon the fact that the gun was found in the hotel

room, which the Defendant occupied, buttressed with the testimony of Officers Davis

and Mouliere that the Defendant pointed out the location of the handgun and the

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handgun was found in that location, we conclude sufficient evidence was presented

by the State to convict the Defendant of possession of a firearm by a convicted felon.

Armed Robbery

The Defendant argues that the State presented insufficient evidence to

support a conviction of armed robbery. He asserts the victim claimed that $300 was

taken from him. The trial court found this allegation to be false. The Defendant

admits receiving $8 from the victim, but this was payment for a haircut. The

Defendant pulled a gun on the victim after he had possession of the $8.

The State counters even if the victim owed a debt to the Defendant, the

Defendant had no right to “take a gun, point it at the victim, and demand payment.”

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 (La.App. 2d Cir. 11/2/01), 799 So.2d 684.

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, pp. 4-5 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, 144).

In this case, the trial court did not believe $300 was taken, but it believed

some amount was taken. However, reviewing the facts of the case in the light most

favorable to the prosecution, the question arises whether or not the State proved

beyond a reasonable doubt there was a “taking” as contemplated by La.R.S. 14:64.

The victim testified “I went to give him, give him the money. . . .

[I]nstead of him asking me for the money, I went to pull the money out and pay him,

and he told -- pulled a gun out and told me to get the hell on . . . .” When asked did

he “take” anything, the victim responded he took “my money.” However, the victim

acknowledged that he owed the Defendant $8.00. When asked if he paid the

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Defendant the eight dollars, the victim responded, “[H]e didn’t give me a chance to

pay him.” When the victim was asked why he was by the Defendant’s room, he

responded, “I was going to pay him. . . I told you I went to pay him.” When asked by

the State, “Are you sure this is the guy that robbed you with a . . . gun[,]” the victim

responded, “Yes, sir.”

The Defendant testified that the victim came to him and told him “here

go $2.00 on his bill, he owed me $10.00 for a haircut. He told me, here go $2.00 on

his bill, could I get him anything for $6.00,” and “I kept the $8.00.” He denied

threatening the victim to obtain the $8.00.

Officer Davis testified the Defendant told him the reason he “had taken

the money . . . was because that the victim had owed him money for a haircut” and

“refused to pay.” When the State asked the officer, “Did he explain to you why he

did what he did?” the officer responded, “He stated that it was because the victim had

owed him money for haircuts and would not pay.”

Officer Mouliere testified the Defendant told him, “Well, he gave me

nine dollars, and I knew I wasn’t going to get paid, so I took his money.” Officer

Mouliere recalled the Defendant informed him the victim owed him $9.00 and “I took

my money.” Additionally, the officer testified he recalled the Defendant stating, “‘I

took my pistol, and I got my money.’”

In this case, the victim, the Defendant, and the police officers testified

that the Defendant was owed between $8.00 and $10.00 by the victim for a haircut

the Defendant had given him. Additionally, the victim and the Defendant testified

that the victim went to the Defendant to give him the money. Officer Mouliere

acknowledged that the Defendant told him that the victim gave him nine dollars.

Moreover, the Defendant does not dispute that he obtained an amount of money from

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the victim. It is unclear from the record the events that took place between the victim

seeking and finding the Defendant to repay him and the Defendant obtaining

possession of the money. Additionally, the trial court’s reference to the Defendant’s

two statements, on which he relied to support the conviction, “Uh, the first thing that

he said to them was that, yeah, I did get, I did use the gun to get the money the victim

owed me” and “he would not have done this had the complainant paid him,” does not

accurately reflect the testimony of the police officers. Consequently, the State failed

to prove beyond a reasonable doubt the element of taking.

Accordingly, the Defendant’s armed robbery conviction is reversed and

the habitual offender adjudication and sentence imposed on the armed robbery set

aside and a judgment of acquittal entered.

Untimeliness of Motion for a New Trial

The Defendant asserts the trial court erred in denying his motion for new

trial as untimely.

The Defendant filed a motion for new trial on October 10, 2008. The

basis for the Defendant’s motion was newly discovered evidence. The Defendant

attached an affidavit from Mr. Williams which asserted Mr. Williams had falsely

accused the Defendant of robbing him.

In his brief to this court, the Defendant argues in pertinent part:

Instead, it’s [sic] decision to dismiss the motion as
untimely incorrectly interpreted La. C. Cr. P. Art. 853.

La. C. Cr. P. Art. 853 provides that a motion for new
trial must be disposed of before sentence. Although Mr.
Jackson was originally sentenced in 2006, and the motion
was filed in 2008, the trial court overlooked the fact that
there was still a pending habitual offender hearing when
the motion was filed. The motion was timely filed before
the new sentencing. This assertion of law is supported by
the fact that it is error patent to hold a habitual offender

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hearing before resolving a pending motion for new trial.
State v. Randolph, 409 So.2d 554 (La.1991); State v.
Washington, 98-0583 (La. App. 4th Cir. 11/17/99), 747
So.2d 1191.

Likewise, when a motion for new trial is based on
new evidence, the motion may be filed within one year
after verdict or judgment of the trial court. La. C. Cr. P.
Art. 853. Although the motion for new trial was filed more
than one year after conviction, it was filed before any
judgment of sentence as a habitual offender. It was timely
filed. At trial, the trial court had serious concerns about the
alleged victim’s credibility. Mr. Jackson is entitled to
having his timely filed motion heard, showing the alleged
victim’s admission that he had indeed lied during the trial.

The Defendant cites State v. Randolph, 409 So.2d 554 (La.1991) and

State v. Washington, 98-583 (La.App. 4 Cir. 11/17/99), 747 So.2d 1191, writ denied,

00-365 (La. 9/15/00), 768 So.2d 1277, in support of his assertion. These cases,

however, dealt with the trial court’s failure to rule on the motion for new trial prior

to imposition of sentence, not the untimeliness of the motion.

The State counters that the pending habitual offender adjudication had

no bearing on extending the time for the Defendant to file a motion for new trial since

he was sentenced on September 21, 2006.

Louisiana Code of Criminal Procedure Article 853 provides:

A motion for a new trial must be filed and disposed
of before sentence. The court, on motion of the defendant
and for good cause shown, may postpone the imposition of
sentence for a specified period in order to give the
defendant additional time to prepare and file a motion for
a new trial.

When the motion for a new trial is based on ground
(3) of Article 851, the motion may be filed within one year
after verdict or judgment of the trial court, although a
sentence has been imposed or a motion for a new trial has
been previously filed; but if an appeal is pending the court
may hear the motion only on remand of the case.

Louisiana Revised Statutes 14:3 provides:

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The articles of this Code cannot be extended by
analogy so as to create crimes not provided for herein;
however, in order to promote justice and to effect the
objects of the law, all of its provisions shall be given a
genuine construction, according to the fair import of their
words, taken in their usual sense, in connection with the
context, and with reference to the purpose of the provision.

In State v. Broadnax, 45 So.2d 604, 609 (La.1950), the court explained

in pertinent part:

This court has previously pointed out that the
comments to the various articles of the Criminal Code,
printed as footnotes, have legislative sanction, and that it
is appropriate and proper to take into consideration these
comments in endeavoring to interpret and construe the
provisions of the articles found therein. See State v. Davis, 208 La. 954, 977, 23 So.2d 801.

The comments to La.Code Crim.P. art. 853 provide:

(a) This article retains the rule of Art. 505 of the
1928 Code of Criminal Procedure that a motion for a new
trial must be filed and disposed of before sentence. Art.
873 of this Code provides for a mandatory delay of three
days between conviction and sentence in felony cases.
Because sometimes the three-day delay will not afford
sufficient time to prepare the motion for a new trial, Art.
853 above provides for postponement of the imposition of
sentence. This is more liberal than the procedures of the
1928 Code, which permitted imposition of sentence within
twenty-four hours after conviction (Art. 521).

(b) The second paragraph, taken from Sec. 362 of the
A.L.I. Code of Criminal Procedure, gives the defendant a
period of one year in which to file a motion for a new trial
based on the ground of newly discovered evidence. The
longer time allowed for filing on that ground is desirable
because such evidence seldom will be discovered within
the normal period for filing the motion for new trial.

A genuine construction of La.Code Crim.P. art. 853 contemplates filing

of the motion for new trial before imposition of the sentence on the underlying

conviction, not the habitual offender sentence.

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Additionally, in State v. Bolton, 408 So.2d 250, 253 (La.1981), the

“Defendant on September 29, 1981, filed a ‘Motion to Remand Pursuant to Article

854, Louisiana Code of Criminal Procedure,’ attaching a ‘Motion for a New Trial’

which he filed in the District Court, alleging the existence of newly discovered

evidence.” The verdict in this matter was rendered on January 11, 1980, and a

sentence imposed on November 26, 1980. The defendant asserted that the motion

was timely filed under La.Code Crim.P. arts. 851 and 853. The court disagreed and

explained in pertinent part:

Since more than one year has passed from the verdict
date to the filing of the motion for new trial it is obvious
that defendant’s contention, that the motion for new trial
was filed timely, is that it was filed within one year of
sentencing.

As expressed above under La.Code Crim.P. Art. 853
the motion may be filed within one year after verdict or
judgment of the trial court, although a sentence has been
imposed. . . (Emphasis added). In State v. Blue, 64 So.
411, 134 La. 561 (La.1914) this court defined verdict as:

(6) The word “verdict” is derived from
the Latin “veredictum,” meaning a true
declaration. It is the answer of the jury made
upon any cause, civil or criminal, committed
by the court to their examination. Whatever
they sign beyond this is immaterial, and to be
rejected. It is a very important act; it is the
culmination of the trial, and embodies the
conclusion of the jury upon the questions of
fact litigated on the trial. It is the decision of
the jury, and, as such, it must stand if it is
clear, intelligible, and responsive to the
charge.

State v. Jackson, 362 So.2d 766 (La.1978) and State
v. Molinario, 383 So.2d 345 (La.1980) both refer to new
trial motions filed “within one year after verdict” although
they do not deal directly with the issue presented herein.

As used in La.Code Crim.P. Art. 853, the verdict or
judgment of the trial court indicates a finding of guilt or

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innocence and in our opinion does not include sentencing.
Accordingly we deny the motion to remand. . . .

Id. at 254.
In this case, the Defendant filed his motion for new trial based on newly

discovered evidence more than one year after the verdict was rendered and more than

one year after the underlying sentence was imposed. Consequently, the trial court did

not err in denying the motion as untimely.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction and sentence for

possession of a firearm by a convicted felon is affirmed. The Defendant’s armed

robbery conviction is reversed and the habitual offender adjudication and sentence

imposed on the armed robbery set aside and a judgment of acquittal entered.

CONVICTION AND SENTENCE FOR POSSESSION OF A

FIREARM BY A CONVICTED FELON AFFIRMED. ARMED ROBBERY

CONVICTION IS REVERSED AND THE HABITUAL OFFENDER

ADJUDICATION AND SENTENCE IMPOSED ARE SET ASIDE;

JUDGMENT OF ACQUITTAL ENTERED ON THE ARMED

ROBBERY CONVICTION.

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NUMBER 09-45

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

EDWARD CHARLES JACKSON

AMY, J., concurring in part and dissenting in part.

I agree with the majority that the defendant’s conviction for possession of a

firearm by a felon should be affirmed and that the trial court did not err in denying the

defendant’s motion for new trial as untimely.

However, I respectfully dissent from the reversal of the defendant’s conviction

for armed robbery. In my opinion, the officers’ testimony regarding the reporting of

the event coupled with the victim’s testimony supports the conviction under the

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard. The victim

testified that the defendant came to collect money and that he did so while armed with

a gun. Further, according to police, the defendant admitted using a gun to collect the

money. The trial court found this latter testimony regarding the reporting of the event

credible. As I find it inappropriate to reassess this evaluation on appeal, I conclude

that, under the standard of review, the trial court could have found the essential

elements of armed robbery proven beyond a reasonable doubt. Accordingly, I would

also affirm the defendant’s conviction for armed robbery.

As I would affirm both convictions, I concur in part and dissent in part.