State of Louisiana v. Zoran Johnson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-862

STATE OF LOUISIANA

VERSUS

ZORAN JOHNSON

************

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 13827
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and David E. Chatelain,
Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney
R. Stuart Wright
Assistant District Attorney
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
Counsel for:
State of Louisiana

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, Louisiana 71112
(318) 746-7467
Counsel for Defendant/Appellant:
Zoran Johnson

CHATELAIN, Judge Pro Tempore.

The defendant, Zoran Johnson, appeals his convictions and sentences for illegal

possession of a stolen firearm, a violation of La.R.S. 14:69.1, and possession of a

firearm by a convicted felon, a violation of La.R.S. 14:95.1. We affirm.

FACTS

On January 5, 2008, the defendant was an occupant in a vehicle owned and

driven by Cordero Palmer. On that date, Sergeant Travis Johnson of the Natchitoches

Parish Police Department stopped the vehicle because one of its headlights was

inoperative. Upon stopping the vehicle, Sergeant Johnson smelled the odor of burnt

marijuana emanating from the vehicle. When Sergeant Johnson requested consent

to search the vehicle, Mr. Palmer refused. Shortly thereafter, Detective Jessie Taitano

arrived, and he also smelled marijuana at the passenger side of the vehicle. A K-9

dog, however, alerted officers to the passenger side door of the vehicle. Based upon

these observations and the canine alert, the officers subsequently searched the

vehicle. An AK-47 assault rifle was found underneath a jacket on the backseat of the

vehicle. Thereafter, Sergeant Johnson determined that the firearm had been reported

stolen, and both men were arrested.

On February 1, 2008, the defendant was charged by bill of information with

illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1, and with

possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1.

Following a jury trial held January 26, 2009, the defendant was found guilty as

charged. On February 25, 2009, the trial court sentenced the defendant to serve five

years at hard labor for illegal possession of a stolen firearm and to serve ten years at

hard labor without benefit of parole, probation, or suspension of sentence for

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possession of a firearm by a convicted felon. The sentences were ordered to run

concurrently. The defendant did not file a motion to reconsider sentences.

The defendant is now before us, asserting that the evidence was insufficient to

support his convictions and that his sentences are excessive.

SUFFICIENCY OF THE EVIDENCE

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

When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the standard
enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sylvia,
01-1406, p. 2 (La. 4/9/03), 845 So.2d 358, 361; State v. Captville, 448
So.2d 676, 678 (La.1984). Therefore, the appellate court must
determine that the evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of fact that all of
the elements of the crime have been proved beyond a reasonable doubt.
Sylvia, 01-1406 at p. 2-3, 845 So.2d at 361; Captville, 448 So.2d at 678.
The trier of fact makes credibility determinations and may, within the
bounds of rationality, accept or reject the testimony; thus, a reviewing
court may impinge on the “fact finder’s discretion only to the extent
necessary to guarantee the fundamental due process of law.” Sylvia,
01-1406 at p. 2-3, 845 So.2d at 361 (citing State v. Mussall, 523 So.2d
1305, 1310 (La.1988)).

State v. Johnson, 03-1228, pp. 4-5 (La. 4/14/04), 870 So.2d 995, 998.

Possession of a Firearm by Convicted Felon

The elements of the offense, possession of a firearm by a convicted felon, are

found in La.R.S. 14:95.1, which reads, in pertinent part:

A. 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, 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

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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.

....

C. Except as otherwise specifically provided, this Section shall
not apply to the following cases:

(1) The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies 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.

Accordingly, for the defendant to be convicted of possession of a firearm by

a convicted felon: “[T]he State must prove beyond a reasonable doubt: (1) the

possession of a firearm; (2) a previous conviction of an enumerated felony; (3)

absence of the ten-year statutory period of limitation; and, (4) general intent to

commit the offense.” State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704

So.2d 324, 329, writ denied, 97-3187 (La. 5/1/98), 805 So.2d 200. Only general

criminal intent must be proved. La.R.S. 14:95.1. “General criminal intent is present

. . . when the circumstances indicate that the offender, in the ordinary course of

human experience, must have adverted to the prescribed criminal consequences as

reasonably certain to result from his act or failure to act.” La.R.S. 14:10(2).

Although the existence of intent is a question of fact, it need not be proven as such

and may be inferred from the circumstances of a transaction. State v. Brown, 42,188,

42,189, 42,190 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied, 07-2199 (La.

4/18/08), 978 So.2d 347.

The defendant first challenges the element of possession, contending that the

State failed to show he was aware or knew the firearm was in the vehicle and that he

had the general intent to possess it. The defendant’s contentions are threefold: (1)

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there was no testimony about who owned the jacket; (2) there were no fingerprints

on the firearm; and (3) there was no assertion of ownership by himself or Mr. Palmer,

the owner and driver of the car. He adds that there was no evidence that he knew the

firearm was present in the vehicle or that he exercised any dominion or control over

it. Lastly, he states that the firearm was concealed, so that upon entering the car, he

would not have seen it, and that the officers did not discover the weapon until

approximately ten minutes after the stop was initiated.

“[C]onstructive possession of a firearm satisfies the possessory element [of

La.R.S. 14:95.1]. Constructive possession exists when the illegal object is subject to

the defendant’s dominion and control.” State v. Brooks, 99-478, p. 4 (La.App. 3 Cir.

12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La. 5/25/01), 792 So.2d 750

(citations omitted).

At trial, the two officers involved in the stop testified about the search and

seizure. Sergeant Johnson testified that he was traveling eastbound on Texas Street

at 12:51 a.m. when he observed a 1992 Cadillac Seville traveling westbound with a

headlight that was not functioning. After stopping the vehicle, he could smell the

odor of burnt marijuana on the driver’s person. Sergeant Johnson asked if he could

search the vehicle, but the driver refused to consent to the search. Sergeant Johnson,

also a K-9 dog officer, searched the exterior of the vehicle with his K-9 dog, and the

K-9 dog “received a positive odor response on the passenger side door of the

vehicle.” Based on the dog’s positive odor response, the vehicle was subsequently

searched.

Sergeant Johnson stated that he was looking for marijuana when he entered the

car but did not find any. However, when he opened the rear driver’s side door, he

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found an AK-47 assault rifle underneath a jacket. He immediately ran the serial

number on the firearm to see if it was stolen and learned that it was. Sergeant

Johnson then arrested the defendant and Mr. Palmer. A photograph of the firearm

was entered into evidence.

On cross-examination, Sergeant Johnson testified that he did not take any

fingerprints from the weapon and that he did not submit anything to forensics to

determine if the defendant or Mr. Palmer had handled the weapon. He also did not

determine the ownership of the jacket. Lastly, Sergeant Johnson estimated that he

was at the vehicle for about ten minutes before he discovered the weapon.

Detective Taitano, an officer with the Multi-Jurisdictional Drug Task Force of

the Natchitoches Parish Sheriff’s Department, the Natchitoches City Police, and the

Louisiana National Guard, testified that he stopped to assist Sergeant Johnson. When

he approached the passenger side of the vehicle, he could smell a strong odor of

marijuana coming from the vehicle. He was present when Sergeant Johnson searched

the vehicle and seized the firearm.

Detective Taitano stated that he did not handle the weapon and that he was not

involved with the firearm. According to him, he was only a witness to the search and

seizure. On cross-examination, Detective Taitano confirmed that neither the

defendant nor Mr. Palmer admitted ownership of the firearm.

Mr. Palmer, the twenty-two-year-old co-defendant, also testified at trial.

Mr. Palmer admitted that he had been convicted of possession of marijuana and

cocaine when he was seventeen years of age. He also stated that he was the

defendant’s second cousin but explained that he only met the defendant

approximately one and one-half years prior to trial. According to Mr. Palmer, he and

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the defendant were at his house smoking marijuana on the night in question. The

defendant asked to use his car, and when he returned, the defendant showed him the

firearm that was later seized during the stop. Mr. Palmer testified that he and the

defendant then sat in his car, smoking “weed” and talking for a while. The defendant

then asked him to take him home, and while en route to the defendant’s home, the

police stopped him because his headlight was out. Mr. Palmer testified that the

defendant first had the firearm on his lap but then placed the gun on the backseat

when the police officer pulled behind the car. Mr. Palmer stated that he never

touched the gun and that he did not know if it was loaded.

Although the defendant correctly asserts that there was no testimony as to who

owned the jacket or the firearm and that there were no fingerprints taken from the

firearm, Mr. Palmer’s testimony was that the defendant had actual possession of the

firearm, that the defendant knew the firearm was present in the vehicle, and that he

exercised dominion or control over it. Moreover, Mr. Palmer’s testimony further

negates the defendant’s claim that the firearm was concealed and that he could not

have seen it when he entered the car.

The appellate court’s authority to review questions of fact in a criminal case

is limited to the sufficiency evaluation of Jackson, 443 U.S. 307, 99 S.Ct. 2781, and

does not extend to credibility determinations made by the trier of fact. La.Const. art.

5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2 Cir. 1984). Within the

bounds of rationality, the trier of fact may accept or reject, in whole or in part, the

testimony of any witness. State v. Casey, 99-23 (La. 1/26/00), 775 So.2d 1022. In

the absence of internal contradiction or irreconcilable conflict with physical evidence,

one witness’s testimony, if believed by the trier of fact, is sufficient support for a

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requisite factual conclusion. State v. Davis, 35,298 (La.App. 2 Cir. 12/5/01), 803

So.2d 256, writ denied, 02-205 (La. 1/24/03), 836 So.2d 36; State v. White, 28,095

(La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La. 11/15/96), 682

So.2d 760 and 98-282 (La. 6/26/98), 719 So.2d 1048. In the present case, it was the

jury’s prerogative to accept or reject Mr. Palmer’s uncontradicted testimony. We find

no ground to interdict the jury’s acceptance of that testimony.

The defendant next argues that the State did not prove that he had prior felony

convictions for the crimes of simple burglary, a prohibited felony in La.R.S. 14:95.1,

and simple robbery, a specifically listed crime of violence in La.R.S. 14:2(B)(23).

The defendant asserts that the State’s introduction of the court minutes at trial to

establish his prior felony convictions was improper because the minutes were not

certified. Notwithstanding the defendant’s assertion, our examination of the record

shows that the minutes introduced by the State were certified by the Deputy Clerk of

the Tenth Judicial District Court on January 26, 2009. Further, the certified minutes

indicate that on February 26, 2003, the defendant pled guilty to simple robbery and

was sentenced to three years at hard labor, suspended, and two years of supervised

probation. The certified minutes also show that on November 12, 2003, the defendant

pled guilty to two counts of simple burglary. On this latter conviction, the minutes

indicate that the defendant was sentenced to three years at hard labor to run

concurrently with the probation revocation proceedings to which he had agreed

therein and that he was given credit for nine months already served. Finally, these

court minutes reflect that at both these guilty pleas Laura Johnson represented the

defendant as his attorney of record.

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The defendant next attacks the State’s use of Ms. Johnson to identify the

defendant as the same person who committed the prior felonies. He contends that

there was no testimony that Ms. Johnson knew him except for her brief

representations. The defendant asserts that she provided no history of her relationship

or acquaintance with him, other than she had “represented him before.”

As an element of the offense charged, the State bore the burden of proving the

existence of a prior felony conviction as required by La.R.S. 14:95.1. It is well

established that various methods may be used to carry this burden of proof, such as

“testimony of witnesses, by expert opinion as to the fingerprints of the accused when

compared with those in the prison record introduced, or by photographs contained in

a duly authenticated record.” State v. Curtis, 338 So.2d 662, 664 (La.1976).

The record shows Ms. Johnson testified at trial that she represented the

defendant during his prior criminal proceedings in 2003 and identified him as being

the same Zoran Johnson who entered guilty pleas to the offenses as stated in the

minutes for those dates. Accordingly, we find Ms. Johnson identified the defendant

as the same person who committed the offenses, as set forth in the certified minutes

for February 26, 2003, and November 12, 2003, which the State introduced.

Lastly, the defendant argues that the evidence of the prior convictions was

insufficient because it simply showed the date of the pleas and the initial sentences.

He contends that the State had to prove the date of completion of the punishment. We

disagree.

The record reflects that the defendant’s prior convictions were in 2003, a

period that is less than ten years prior to his January 26, 2009 conviction herein.

Therefore, the evidence established that ten years had not lapsed from the date of

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completion of his sentence, probation, parole, or suspension of sentence for his prior

convictions. See State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652

(court can look to record of proceeding for proof that predicate offense fell within

ten-year period).

In summation, we find that the State carried its burden of proving the element

of a prior conviction for the purposes of La.R.S. 14:95.1. The court minutes show the

defendant’s guilty pleas to simple robbery and two counts of simple burglary and

conclusively show the defendant’s prior felony convictions occurred less than ten

years prior to his present conviction. Additionally, Ms. Johnson identified the

defendant as the same person who pled guilty to those offenses in 2003.

Therefore, viewing the evidence in the light most favorable to the prosecution,

we find that the evidence was sufficient to convince a rational trier of fact that the

State proved beyond a reasonable doubt all of the elements needed to convict the

defendant of the crime of possession of a firearm by a convicted felon.

Illegal Possession of Stolen Firearms

Illegal possession of stolen firearms is proscribed by La.R.S. 14:69.1, which

defines the crime as, “the intentional possessing, procuring, receiving, or concealing

of a firearm which has been the subject of any robbery or theft under circumstances

which indicate that the offender knew or should have known that the firearm was

the subject of a robbery or theft.” (Emphasis added). Based on this statutory

provision, the State had to prove that the defendant intentionally possessed a firearm,

that the firearm was the subject of robbery or theft, and that he knew or should have

known the firearm was the subject of a robbery or theft.

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The defendant first contends that the State failed to prove that he possessed the

firearm in question. As discussed previously, Mr. Palmer’s uncontradicted testimony

about the defendant’s handling of the AK-47 in the automobile and his relocation of

the weapon from the front to the backseat of the vehicle allowed the jury to conclude

that the defendant intentionally possessed a firearm. Thus, there is no merit to the

defendant’s contention that he did not possess the firearm.

The defendant next argues that the State did not prove that he had knowledge

the firearm was the subject of a theft. As discussed above, Sergeant Johnson testified

that when he ran the serial number on the weapon through the NCIC database, he

learned that it had been reported stolen from Jeff’s Guns in May of 2007.

Because there is very little jurisprudence involving La.R.S. 14:69.1 and no

reported cases involving an evidence sufficiency review, we have looked to La.R.S.

14:69, illegal possession of stolen things, for guidance in determining whether the

State proved that the defendant knew or should have known the firearm was stolen.

In State v. Chester, 97-1001, pp. 2-3 (La. 12/19/97), 707 So.2d 973, 974, the supreme

court stated:

In Louisiana, the “mere possession of stolen property does not
create a presumption that the person in possession of the property
received it with knowledge that it was stolen by someone else.” State
v. Ennis, 414 So.2d 661, 662 (La.1982); State v. Nguyen, 367 So.2d 342,
344 (La.1979); State v. Walker, 350 So.2d 176, 178 (La.1977). The
state must therefore prove the defendant’s guilty knowledge as it must
every other essential element of the offense. Ennis, 414 So.2d at 662.
Nevertheless, jurors may infer the defendant’s guilty knowledge from
the circumstances of the offense. See Barnes v. United States, 412 U.S.
837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973)[.] (“For centuries
courts have instructed juries that an inference of guilty knowledge may
be drawn from the fact of unexplained possession of stolen goods.”).

In Chester, 707 So.2d at 973, the supreme court prefaced its discussion of

guilty knowledge with the following:

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With the question of defendant’s guilt turning at trial on his
knowledge that the property in his possession had been the subject of a
theft, the court of appeal reversed his conviction and sentence for
possession of stolen property, La.R.S. 14:69, on grounds that “without
additional circumstantial evidence concerning the defendant’s
acquisition of the [stolen property] . . . the state’s proof of the crime is
not constitutionally sufficient in this case.” State v. Chester, 95-1428,
p. 5 (La.App. 1st Cir. 3/27/97), 698 So.2d 1065 (unpublished). We
granted the state’s application for review because the court of appeal’s
decision appears to conflict with the settled principle of appellate review
that “[w]hen a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by the
defendant[ ] . . . that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt.” State v.
Captville, 448 So.2d 676, 680 (La.1984).

Our review of the record shows that Jefferson A. Guilliams, Sr., the owner of

Jeff’s Guns, testified that in May of 2007, an AK-47 assault rifle was stolen from his

business. He explained that he had momentarily left the store in the care of his

granddaughter and upon his return, a young man and an older person were in the store

to buy ammunition for an AK-47. Mr. Guilliams testified that very few people have

a weapon that uses that kind of ammunition. After selling the men a box of the

ammunition, Mr. Guilliams noticed that his AK-47 was gone. He then realized that

someone had taken the gun during his absence from the store. He testified that earlier

three young men had been looking around in his store and during that time, one of the

young men said, “Well, I’m gonna buy that gun, before the week’s over with.”

Mr. Guilliams then left the store to tend to some business. When he returned, he

noticed that the gun was missing.

It cannot be denied there was no direct evidence linking the defendant to the

theft of the firearm or establishing how he came into possession of the stolen gun.

That fact, however, is not fatal to the defendant’s conviction in the present case.

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“[J]urors may infer the defendant’s guilty knowledge from the circumstances

of the offense.” Id. at 973. Moreover, as provided in La.R.S. 14:69.1, the illegal

possession of a firearm may be shown if circumstances indicate “that the offender

knew or should have known that the firearm was the subject of a robbery or theft.”

(Emphasis added). To this extent, the inference of guilty knowledge arising from the

possession of stolen property is generally a much stronger one than the inference the

possessor committed the theft. Cosby v. Jones, 682 F.2d 1373 (11th Cir. 1982).

In the present case, Mr. Guilliams testified that an AK-47 is an assault rifle that

sells for about $600 and that “very few people have a gun that shoots that kind of

ammo.” This evidence, coupled with the proof that the gun was stolen, was sufficient

to allow a rational trier of fact to infer that the defendant knew or should have known

the gun was stolen. Accordingly, the jury’s conclusion that the defendant knew the

firearm was stolen is reasonable and fully supported by the record.

Therefore, viewing the evidence in the light most favorable to the prosecution,

we find the evidence was sufficient to convince a rational trier of fact that the State

proved beyond a reasonable doubt all of the elements needed to convict the defendant

of the crime of the illegal possession of a stolen firearm.

EXCESSIVENESS OF SENTENCE

The defendant argues that his sentences are excessive. Because the defendant

did not file a motion to reconsider his sentences, La.Code Crim.P. art. 881.1. bars his

excessiveness claims. However, in the interest of justice, this court has chosen to

review such an assignment as a bare claim of excessiveness. State v. Hargrave, 05-

1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La. 11/22/06), 942

So.2d 552; State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784.

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This court has set forth the following standard to be used in reviewing

excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. The trial court has wide discretion in
the imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of discretion.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

The defendant received the minimum possible sentence of ten years for

possession of a firearm by a convicted felon. La.R.S. 14:95.1(B). He received the

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maximum possible sentence of five years for illegal possession of a stolen firearm.

La.R.S. 14:69.1(B)(1).

At sentencing, the trial court stated that it had reviewed the defendant’s Pre-

sentence Investigation Report. The trial court noted that the defendant was twenty-

four years of age and that the present offenses were his third and fourth felonies since

2002. The trial court added:

I have reviewed the provisions of Article 894.1 of the Code of Criminal
Procedure. And under mitigating circumstances, I find that he’s a young
man, and that’s a shame . . . that he’s in this situation. But I find the
following aggravating circumstances. . . . his criminal history over a six
(6) year period . . . four (4) felonies in six (6) years is aggravating. The
Legislature is [sic] obviously placed great seriousness on crimes
involving firearms, and in particular, Possession of Firearms by
convicted felons.

As outlined in Smith, the defendant’s circumstances weigh heavily in favor of

the sentencing court’s choice of sentences. The trial court’s review of the defendant’s

criminal history establishes that it did not abuse its discretion by imposing the

minimum sentence for conviction of possession of a firearm by a convicted felon.

Accordingly, the defendant’s sentence for this conviction is affirmed.

As previously noted, the jurisprudence involving illegal possession of a stolen

firearm is limited. In State v. Martin, 40,150 (La.App. 2 Cir. 9/21/05), 911 So.2d

917, the defendant pled guilty to illegal possession of a stolen firearm and was

sentenced to the maximum sentence of five years at hard labor. In that case, the

defendant was found in possession of a stolen gun he had purchased from a man who

told the defendant that it had been stolen. The trial court found that the defendant’s

criminal conduct caused serious harm by facilitating the commission of the burglary

and that the purchase of stolen items created a market for such items. Also, the trial

court found that the defendant did not act under strong provocation, that the victim

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did not induce or facilitate the crime, and that the defendant could not compensate the

victim for the economic and emotional loss he and his family suffered. The sentence

was affirmed.

In State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, writ

denied, 04-2634 (La. 2/18/05), 896 So.2d 30, the defendant was originally charged

with possession of a firearm by a convicted felon, illegal possession of stolen things,

and illegal possession of stolen firearms. After pleading guilty to these charges, he

received the maximum sentence on each charge, a total of twenty-two and one-half

years. The defendant did not challenge his sentences on appeal; therefore, the trial

court’s reasons for sentencing are not known.

The defendant correctly asserts that the trial court relied heavily upon his prior

criminal history in sentencing him. Nonetheless, he received the minimum possible

sentence for possession of a firearm by a convicted felon. Additionally, although he

received the maximum sentence for illegal possession of a stolen firearm, the

sentence is not out of line with the cited jurisprudence. Moreover, the sentence was

ordered to run concurrently with his mandatory sentence for possession of a firearm

by a convicted felon. Accordingly, we find that the defendant’s sentences are not

excessive, and they are affirmed.

Disposition

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

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