State of Louisiana v. Wayne K. Jones, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-399 c/w 11-400

STATE OF LOUISIANA

VERSUS

WAYNE K. JONES, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22024-08
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and J. David Painter, Judges.

AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND
REMANDED WITH INSTRUCTIONS

Peggy J. Sullivan
P.O. Box 2806
Monroe, LA 71207-2806
COUNSEL FOR DEFENDANT/APPELLANT:
Wayne K. Jones, Jr.

John F. Derosier, District Attorney
David Palay, Assistant District Attorney
Carla S. Sigler, Assistant District Attorney
1-20 Ryan St.
Lake Charles, LA 70601
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge.

Defendant, Wayne K. Jones, Jr., appeals his conviction for attempted second

degree murder. Finding that the evidence was sufficient to support the conviction,

we affirm, vacate the habitual offender sentence, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On October 8, 2010, at about 4:18 p.m., Corporal Dwayne Petroski of the

Lake Charles Police Department was dispatched to 2013 9th Street where he found

Kesiah Melbert in the passenger seat of a vehicle. He discovered that she had been

shot several times.

On January 29, 2010, Wayne K. Jones, Jr., Defendant, was convicted of one

count of attempted second degree murder, in violation of La.R.S. 14:27 and

La.R.S. 14:30.1, and one count of aggravated assault with a firearm, in violation of

La.R.S. 14:37.4.

The testimony at trial established that the victim and Defendant had recently

broken up. Defendant’s sister, Adrienne Jones Johnson, helped him retrieve his

belongings from the apartment he had shared with the victim and taken them to her

house. Among those possessions was the dog the two had shared. On October 8,

the victim, along with her sister, Miesha Melbert, went to Johnson’s house to get

the dog back. Johnson called Defendant, and he told her not to let the victim take

the dog. A short time later, he arrived at the house and blocked the victim’s vehicle

so that she could not drive away. He approached the vehicle carrying a handgun.

Johnson tried to tell him that the victim did not have the dog. Defendant fired the

gun into the back window of the car, moved to the driver’s door and shot again,

walked around the car and fired into the passenger’s side of the windshield, then

moved again and fired into the passenger’s window. The incident took less than a

minute, and then Defendant left. The victim got out of the car and only realized
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she had been shot when her sister told her. Johnson called 911 as Defendant was

driving away.

Corporal Petroski testified that when he arrived on the scene and approached

the women, he noticed that there was a blood spot on Kesiah’s back just below the

lung area. Corporal Petroski raised Kesiah’s shirt and saw a small bullet hole on

the right side of her back. Corporal Petroski asked Kesiah to exit the vehicle and

move to the ground so he could better render aid. Kesiah moved to the ground,

and Corporal Petroski asked Johnson to get some clean rags. When she returned,

Corporal Petroski used the rags to compress the wound. As he was attending to the

first wound, Kesiah mentioned that her lower backside was also hurting

Corporal Petroski said that he looked down and saw another blood spot on

Kesiah’s left buttock. He informed Kesiah that he was going to inspect the area.

When he did, he saw two additional holes in Kesiah’s buttock. Corporal Petroski

could not tell if the wounds were caused by two separate bullets or one bullet’s

entry and exit. Corporal Petroski used another rag to put pressure on those two

wounds. Corporal Petroski spoke with Kesiah while they waited for an ambulance

to arrive. Kesiah told him that Defendant was her ex-boyfriend, that she had

arrived at the house to pick up a dog, that the disagreement over the dog had

started the incident, and that Defendant inflicted the wounds. The ambulance

arrived, and Corporal Petroski backed away and let them attend to Kesiah.

Detective Corporal David Rupf with the Lake Charles Police Department

was assigned to investigate the shooting that occurred at 2013 9th Street on

October 8, 2008. Corporal Rupf testified about the crime scene and the crime scene

photographs. The photographs showed that the victim’s car had bullet holes in the

rear driver’s side window, front driver’s side window, the passenger’s side

windshield, and the front passenger’s side window. The photographs also showed
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an unfired bullet and empty shell casings dispersed around the car. The images also

showed a bullet hole in the dashboard, broken glass inside the car, a brass-colored

bullet jacket on the floorboard of the car, and a dog kennel in the rear passenger’s

seat. The photograph of the rear driver’s side compartment showed a butcher’s

knife on the seat, blood stains on the back seat, and two holes in the back of the

driver’s seat.

Following Defendant’s conviction, the State filed a habitual offender bill

under a separate docket number alleging that Defendant was a third felony

offender. Defendant appeared for his habitual offender hearing on October 6, 2010.

After considering the evidence presented, the sentencing court found Defendant to

be a third felony offender and ordered Defendant to serve life imprisonment

without benefit of probation, parole, or suspension of sentence.

In docket number 11-399, Defendant appeals his conviction. In docket

number 11-400, Defendant appeals his habitual offender sentence. On motion by

Defendant’s counsel, these cases were consolidated for briefing purposes.

Defendant raises one assignment of error in his consolidated brief: “The evidence

adduced at trial was insufficient to support the conviction of attempted second

degree murder.”

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, the court reviews all appeals

for errors patent on the face of the record. After reviewing the records, we find two

errors patent.

The trial court imposed an indeterminate sentence. The State charged

Defendant as a habitual offender and sought to enhance both convictions. At the

habitual offender hearing, the State announced it was ready to proceed with the
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habitual offender bill after Defendant had been convicted of attempted second

degree murder and aggravated assault. At the conclusion of the presentation of

evidence by the State, the trial court found in pertinent part:

I’m satisfied as to the identity of Mr. Jones based on the testimony
and the evidence presented [sic] the identity of Mr. Wayne Kevin
Jones as the person who has been convicted of these prior offenses
and he is the same person who was convicted of the incident [sic]
offense that we’re here for sentencing on.

....

Mr. Jones is a third felony offender for purposes of the habitual
offender law and I will sentence him . . . to serve the remainder of his
natural life in prison.

The court minutes accurately reflect the transcript.

In State v. Bessonette, 574 So.2d 1305, 1306 (La.App. 3 Cir. 1991), the court

explained in pertinent part: “Where a record fails to reflect that a defendant has

been sentenced on all counts against him, the sentence imposed is rendered invalid.

See State v. Brady, 506 So.2d 802 (La.App. 1 Cir. 1987), appeal after remand, 524

So.2d 1356, writ denied, 532 So.2d 175 (La.1988).”

The trial court imposed only one sentence although Defendant was

convicted of two offenses. Additionally, it is unclear whether the trial court

intended to enhance one or both convictions. Regardless, a sentence must be

imposed on each separate conviction. Consequently, the habitual offender sentence

is vacated, and the matter is remanded to the trial court for resentencing. The trial

court is ordered to clarify which count or counts it is enhancing and to impose

separate sentences for each conviction. See State v. Webster, 95-605 (La.App. 3

Cir. 11/2/95), 664 So.2d 624.

Next, the record does not indicate that the trial court advised Defendant of

the prescriptive period for filing post-conviction relief as required by La.Code

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Crim.P. art. 930.8. Therefore, the court is directed to inform Defendant of the

provisions of article 930.8 at resentencing.

Sufficiency of the Evidence

Defendant argues that, “The evidence adduced at trial was insufficient to

support the conviction of attempted second degree murder.” Defendant alleges that

the State failed to prove that he had the requisite specific intent to kill. Defendant

claims that, because they were so close to each other, the victim would have been

dead if he had intended to kill her.

The Louisiana Supreme Court has discussed the standard of review for

evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the
evidence claim 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, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979). A determination of the weight of evidence is
a question of fact, resting solely with the trier of fact who may accept
or reject, in whole or in part, the testimony of any witnesses. A
reviewing court may impinge on the factfinding function of the jury
only to the extent necessary to assure the Jackson standard of review.
It is not the function of an appellate court to assess credibility or re-
weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86 (citations

omitted).

Defendant argues that he did not have the specific intent to kill Kesiah and

that specific intent is a necessary element of attempt:

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

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La.R.S. 14:27(A). “Second degree murder is the killing of a human being: (1)

When the offender has a specific intent to kill or to inflict great bodily harm[.]”

La.R.S. 14:30.1.

The evidence most favorable to the prosecution shows that Defendant

blocked in Kesiah’s car with his own. He then exited his vehicle with a gun in his

hand, approached Kesiah’s vehicle, and began firing through the windows at the

occupants inside. As Kesiah moved around inside the automobile to get away from

the gunfire, Defendant walked around the vehicle to get a clearer shot; each time

Defendant obtained a clearer shot, Defendant fired again. Though Defendant did

not succeed in killing Kesiah, multiple bullets struck her and had to be surgically

removed. At least one of the bullets had to be removed from Kesiah’s chest.

Defendant had threatened to kill Kesiah the night before; he also acted on the

threat by getting a gun and driving back toward Kesiah’s location, although he

stopped when he saw law enforcement at Kesiah’s location.

This court has held that evidence showing that a defendant fired a gun at

someone multiple times is sufficient to support a conviction for attempted second

degree murder:

Specific intent may be established by the circumstances
surrounding an accused’s actions. State v. Anderson, 98-492 (La.App.
3 Cir. 10/28/98), 721 So.2d 1006, writ denied, 98-2976 (La. 3/19/99),
739 So.2d 781. It is well-settled that the act of pointing a gun at a
person and firing the gun is an indication of the intent to kill that
person. State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d
945, writ denied, 03-2042 (La. 1/16/04), 864 So.2d 626; State v.
Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied,
02-1313 (La. 4/25/03), 842 So.2d 391; State v. Clark, 93-1470
(La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.
2/9/95), 649 So.2d 418. Testimony established that each shooter,
Defendant and Fontenot, fired their guns three to four times at the
intended victim.

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State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ

denied, 10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, __U.S. __, __ S.Ct. __

(2011).

By aiming his gun at Kesiah and firing multiple shots at her, Defendant

exhibited the specific intent to kill that is required by La.R.S. 14:27. Therefore,

when the evidence is viewed in the light most favorable to the prosecution, there is

sufficient evidence to support Defendant’s attempted second degree murder

conviction.

Accordingly, this assignment of error is without merit.

CONCLUSION

Defendant’s convictions are affirmed. However, because Defendant’s

habitual offender sentence is indeterminate, the habitual offender sentence is

vacated and remanded to the trial court for resentencing. The trial court is directed

to clarify which count or counts it is enhancing and to impose separate sentences

for each conviction.

Additionally, the trial court is directed to advise Defendant of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8.

AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND
REMANDED WITH INSTRUCTIONS.

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