State v. Rogers
| Decision Date | 24 September 1986 |
| Docket Number | No. 17827-KA,17827-KA |
| Citation | 494 So.2d 1251 |
| Parties | STATE of Louisiana, Appellee, v. George ROGERS, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Samuel Thomas, Tallulah, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., Tallulah, George F. Fox, Jr., Asst. Dist. Atty., Lake Providence, for appellee.
Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
George Rogers, a convicted felon, appeals his conviction by a jury of the crime of possession of firearms (LRS 14:95.1), arguing two assignments of error. One assignment complains of the State's failure to include in the bill of information a description of what was illegally possessed and when and where the possession(s) occurred. The other assignment questions the sufficiency of the evidence to convict.
We find no merit in either contention and affirm the conviction. We note that the sentence did not include the imposition of the fine which the statute requires, but we do not correct the sentence because the State did not seek supervisory review. 1 Compare State v. Fraser, 484 So.2d 122 (La.1986); State v. Booth, 347 So.2d 241 (La.1977); State v. Viera, 449 So.2d 644 (La.App. 4th Cir.1984), writ denied; State v. Samuels, 471 So.2d 883 (La.App. 2d Cir.1985).
In 1974, Rogers was sentenced to 18 years after pleading guilty to robbery in Arkansas. Arkansas transferred the supervision of his parole to Louisiana in 1979 to allow Rogers to return to his home in Lake Providence. Rogers would have remained a parolee until 1992.
The Arkansas conviction arose from defendant's use of a pistol in demanding and taking money from an Arkansas liquor store attendant. This conduct falls within Louisiana's definition of armed robbery, a felony. LRS 14:64.
Rogers was charged with having "possessed firearms ... on or about the --- day" of January, 1984, in violation of LRS 14:95.1.
A deputy sheriff of Chicot County, Arkansas, in 1974, testified that defendant was the same George Rogers who pleaded guilty to the Arkansas liquor store robbery charge in 1974 and who received the sentence of 18 years.
Two firearms were introduced into evidence. The first was a sawed-off shotgun with a silver plate bearing the initial "C." The second was a .38 caliber Winchester rifle with an octagonal barrel. Testimony about defendant's possession of these guns in 1984 came from several witnesses.
Troy Jackson testified that he saw Rogers possess the shotgun in January 1984. Jackson accompanied Rogers to the home of Demise Jones where Rogers obtained the shotgun to return to the site where Rogers had had a verbal altercation with another individual. When Rogers, Jones, and Jackson drove to the site where Rogers had argued, Rogers held the gun out of the truck in which they were riding and later returned it inside the truck. Jackson later agreed to keep the gun at his house for Rogers. Rogers then learned that Jackson had pawned the shotgun. After Jackson and Rogers redeemed the shotgun, Rogers pointed the gun at Jackson and threatened to kill him for " 'selling' his stuff."
William Wright testified that he saw Rogers in possession of the shotgun in January 1984 at Jackson's house when Rogers was attempting to sell the shotgun.
Carl Coleman testified that he saw Rogers possessing the Winchester rifle in 1984 when Rogers offered to sell it to Coleman. In later April 1984, Coleman swapped Rogers some weight lifting equipment for the rifle. Coleman gave the rifle to the sheriff in July 1984 when he was asked whether he had anything that belonged to Rogers. The sheriff, whose testimony corroborated Coleman in this respect, kept the rifle until it was introduced into evidence.
On cross-examination, Coleman opined that the rifle was an antique, about 80 years old. Coleman did not know whether the rifle "worked" because he had never fired it. Coleman added that the "action" on the rifle, the hammer or whatever falls, was in working order and that he would not want someone to load it, cock it, and aim it at him.
This crime has four essential elements: (1) status of defendant as a convicted felon; (2) possession by the defendant; (3) possession of an instrumentality which was a firearm; and (4) possession within a period of less than ten years from the date of completion of sentence, probation, parole or suspension of sentence for the felony conviction. State v. Mose, 412 So.2d 584 (La.1982); State v. Donald Williams, 366 So.2d 1369 (La.1978).
The date or time and the place of commission of the offense need not be alleged in the bill of information unless they are essential elements of the offense. CCrP Arts. 468, 469. When the date is not essential to an offense, the bill of information will not be held insufficient if it does not state a proper date. The State is not restricted in its evidence to the date recited in the bill of information. State v. Glover, 304 So.2d 348 (La.1974).
In State v. Donald Williams, supra, the time of defendant's possession of a firearm was considered an essential element of the offense because the State must prove that the possession was within the period of time proscribed by the statute. Here, the State proved that the offense was committed before the expiration of ten years from Rogers' completion of sentence in Arkansas.
Moreover, Rogers did not object to the absence of this allegation before or during trial. An irregularity or error cannot be availed of after the verdict unless it was objected to at the time of occurrence. CCrP Art. 841. Rogers' attack on the sufficiency of the bill, on appeal when the State cannot correct the technical insufficiency, additionally must fail because he has not shown surprise or specific prejudice. State v. Malmay, 315 So.2d 286 (La.1975); State v. Murray, 357 So.2d 1121 (La.1978).
The bill sufficiently notified defendant of the crime charged. Defendant did not file a motion to quash the bill or a motion for a bill of particulars to obtain additional information before trial. The State's opening statement gave notice of the evidence the State intended to present to prove the essential elements of the offense and defendant did not object to the sufficiency of the bill until this appeal. State v. James, 305 So.2d 514 (La.1974).
Rogers contends the State failed to prove that defendant possessed any "firearm" because the testimony of witnesses about the shotgun was not credible and because the rifle was not proved to have been an "operable" firearm.
Our authority to review questions of fact in a criminal case is limited. La. Const. 1974, Art. 5, § 10(B); State v. Richardson, 425 So.2d 1228 (La.1983). The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. McDowell, 427 So.2d 1346 (La.App. 2d Cir.1983). Our factual review does not extend to credibility determinations made by the trier of fact, but only to the sufficiency-of-evidence evaluation under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)....
To continue reading
Request your trial
-
State v. Brown
...755 (La.App. 2 Cir. 1984). The jury's decision to accept or reject a witness's testimony is given great deference. State v. Rogers , 494 So.2d 1251, 1254 (La.App. 2 Cir. 1986), writ denied, 499 So.2d 83 (La. 1987). In this case, the jury determined the testimony of the state's witnesses was......
-
State v. Griffin
...accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 In the absence of internal contradiction or irreconcilable conflict with physical evidence, one w......
-
State v. Coleman
...to a jury's decision to accept or reject the testimony of witnesses in whole or in part. State v. Bosley, supra; State v. Rogers, 494 So.2d 1251 (La.App.2d Cir.1986), writ denied, 499 So.2d 83 In the absence of internal contradiction or irreconcilable conflict with physical evidence, one wi......
-
State v. Robinson
...a jury's decision to accept or reject the testimony of witnesses in whole or in part. State v. Bosley, 691 So.2d 347; State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir. 1986), writ denied, 499 So.2d 83 (La.1987). In the absence of internal contradiction or irreconcilable conflict with physica......