State of Louisiana v. Berry Ceasar

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1406

STATE OF LOUISIANA

VERSUS

BERRY CEASAR

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 13768-08
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE,

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J. DAVID PAINTER
JUDGE

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Court composed of, Sylvia R. Cooks, J. David Painter, and James T.
Genovese, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Beth Fontenot
Louisiana Appellate Project
P.O. Box 3183
Lake Charles, LA 70602
Counsel for Defendant-Appellant:
Berry Ceasar

Jonathan Blake
Assistant District Attorney
1020 Ryan St.
Lake Charles, LA 70601
Counsel for Appellee:
State of Louisiana

PAINTER, Judge

Defendant, Berry Ceasar, appeals his conviction for possession of a

firearm by a convicted felon. For the following reasons, we affirm and

remand with instructions.

FACTS

Defendant, who has three prior felony convictions, pawned a shotgun

at Lake City Pawn Shop. He was charged by bill of information with

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

He was tried by a jury on January 12, 2011. The jury returned a guilty

verdict. On April 27, 2011, Defendant was sentenced to ten years at hard

labor, to be served concurrently with whatever sentence he was serving at

the time. Defendant appeals.

DISCUSSION

Sufficiency of the Evidence

Defendant contends that the State failed to prove beyond a reasonable

doubt that he was the one who pawned the firearm and that he had the

requisite general intent to possess the firearm.

The analysis for a claim of insufficient evidence 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. 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. 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.

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State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,

1371 (citations omitted).

The elements of the charge, possession of a firearm by a convicted

felon, are set out in La.R.S. 14:95.1(A) (footnote omitted), 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, 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.

Defendant does not dispute that he has prior felony convictions or that

the ten-year cleansing period required by the provisions of La.R.S.

14:95.1(C) has not run.

Evidence presented at trial showed that following a conviction for

armed robbery in October 1981, Defendant was adjudicated a habitual

offender and sentenced to seventy-five years imprisonment. Defendant was

paroled in December 2001.

On October 11, 2004, Kevin Kirkum, a sergeant-detective with the

Lake Charles Police Department, was advised that Defendant pawned a New

Haven .410 bolt action shotgun at Lake City Pawn Shop, in Lake Charles,

LA. Sergeant Kirkum explained that at the time, he was involved with an

alcohol, tobacco, and firearms task force project which reviewed pawned

guns. After ascertaining that Defendant had prior felony convictions, he

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contacted the pawn shop and seized the shotgun. Testing proved the shotgun

to be operational.

Angela Bellard, an employee of Lake City Pawn Shop, testified that

she received the shotgun on October 11, 2004. She stated that when a gun is

received for pawn, the person pawning the weapon must show either a

driver’s license or a state identification card. The identification is recorded

on the receipt along with the person’s address. Defendant’s driver’s license

number, address, and signature were on the receipt. A copy of the receipt

was submitted as evidence at trial. In both a photographic lineup and at trial,

Ms. Bellard identified Defendant as the man who brought the shotgun to the

pawn shop.

Defendant argues in brief that Ms. Bellard could not testify for certain

that the shotgun belonged to Defendant, nor could she absolutely state that it

was Defendant who pawned the shotgun since it had been so many years

since the transaction. When asked if anyone was with Defendant when the

transaction took place, Ms. Bellard could not remember

Defendant also argues that Ms. Bellard, the only eyewitness, could not

testify as to whether Defendant possessed the requisite general intent to

possess a firearm. Finally, Defendant argues that nowhere in his conditions

for parole was it stated that he could not possess a firearm.

On redirect examination, Ms. Bellard testified that it was Defendant

who came into the shop with the shotgun in his possession. When asked if it

was possible that someone else could have come in the store with Defendant

and “that you could have gotten the weapon from another person, and he

[Defendant] was the party that gave his ID?” the witness explained that

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whoever pawns a gun has to put up their own ID for it and that signing the

receipt is an acknowledgment of ownership of the gun.

The State argues that even if there was another person involved in the

transaction, under Defendant’s proposed scenario, the weapon was

constructively possessed by him. The State points out that two of the

elements necessary to sustain a conviction under La.R.S. 14:95.1 are

possession of a firearm and the general intent to commit the crime.

Actual possession of a firearm is not necessary to satisfy the
possession element of the statute; it is sufficient that the subject
had constructive possession. A person is in constructive
possession of a thing if it is subject to his dominion and control.
A person’s dominion over a weapon constitutes constructive
possession even if it is only temporary in nature and even if
control is shared. The jurisprudence additionally requires proof
that the offender was aware that a firearm was in his presence,
and that he had the general criminal intent to possess the
weapon.

State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593,

writ denied, 03-535 (La. 10/17/03), 855 So.2d 755 (footnotes omitted).

As for the element of general intent to possess the weapon, intent is a

fact question which “may be inferred from the circumstances of a

transaction.” State v. Johnson, 09-862, p. 3 (La.App. 3 Cir. 2/3/10), 28 So.3d

1263, 1267. Whether there was a person accompanying Defendant when he

signed the pawn ticket is of no importance to the fact that he represented

himself as the shotgun’s owner. This in itself is general intent to possess a

firearm.

Finally, Defendant’s argument that he was unaware of the prohibition

from possessing a firearm because it was not listed as a condition of his

parole has no merit. It is a crime for a convicted felon to possess a firearm.

Ignorance of the law in this case is no excuse.

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Therefore, we find that the evidence presented by the State was

sufficient to allow the jury to find Defendant guilty of the charge of

possession of a firearm by a convicted felon beyond a reasonable doubt.

Post-Conviction Relief

Defendant argues that the trial court erred by failing to inform him of

the prescriptive period for filing post-conviction relief.

A review of the record indicates that Defendant is correct. Louisiana

Code of Criminal Procedure Article 930.8 requires the trial court to advise a

defendant that he has two years from the date the conviction and sentence

become final in which to file an application for post-conviction relief. The

remedy for failure to do so to direct the trial court to inform Defendant of the

provisions of Article 930.8 by sending appropriate written notice to

Defendant within ten days of the rendition of this opinion and to file written

proof in the record that Defendant has received the notice. See State v. Roe,

05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.

2/10/06), 924 So.2d 163.

Jury Request

Defendant has reserved the right to file an assignment of error

regarding the trial court’s response to the jury’s request for the definition of

“possession” once he received the pertinent transcript. However, appellate

counsel indicates that she will not argue this assertion. Accordingly, the

error is abandoned.

CONCLUSION

Defendant’s conviction for possession of a firearm by a convicted

felon is affirmed. Additionally, the trial court is instructed to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending
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appropriate written notice to Defendant within ten days of the rendition of

this opinion and to file written proof in the record that Defendant has

received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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