FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 530-889,
SECTION "D" Honorable Paul A. Bonin, Judge
Cannizzaro District Attorney Donna Andrieu Assistant District
Attorney Chief of Appeals Irena Zajickova Assistant District
Attorney ORLEANS PARISH COUNSEL FOR APPELLEE, STATE OF
K. Kriksciun ATTORNEY AT LAW AND Rickey Nelson Jones LAW
OFFICES OF REVEREND RICKEY NELSON JONES, ESQ. COUNSEL FOR
DEFENDANT/APPELLANT, REGINALD JONES
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Paula A. Brown
F. LOVE JUDGE
was charged with aggravated assault with a firearm,
possession of a firearm by a convicted felon, and obstruction
of justice after allegedly threatening to kill his neighbor
with a gun. A jury found defendant guilty as charged.
Following a multiple bill hearing, the trial court adjudged
the defendant a third and fourth habitual offender and
sentenced him to twenty years.
appeals contending that the trial court erred by denying his
motion for post-verdict judgment of acquittal, as there was
insufficient evidence to support his convictions. Defendant
also asserts that his Fifth Amendment rights were violated by
mention of his prior criminal history and ordering him to
submit to fingerprinting at the multiple bill hearing.
Defendant lastly contests his guilt as a habitual offender,
maintaining that the evidence submitted was insufficient.
that the trial court did not err by denying defendant's
motion for post-verdict judgment of acquittal, as sufficient
evidence was presented to support his convictions. Defendant
failed to show that mentioning his previous criminal history
constituted a violation of rights. As to the multiple bill
hearing, defendant did not admit to being a habitual
offender. Therefore, the trial court's alleged failure to
advise him of the right to remain silent was harmless error.
Fingerprints are a non-testimonial form of identification and
ordering defendant to submit them was not error. The
fingerprint testimony and evidence was sufficient to support
the habitual offender adjudication. Accordingly, the
convictions and sentence of defendant are affirmed.
BACKGROUND AND PROCEDURAL HISTORY
Jones ("Mr. Jones"), the victim, was confronted by
the defendant, a neighbor, Reginald Jones
("Defendant") on September 12, 2016. Defendant
allegedly brandished a firearm and threatened to kill Mr.
result of the confrontation, Defendant was charged by bill of
information with aggravated assault with a firearm and
possession of a firearm by a convicted felon, in violation of
La. R.S. 14:37.4 and La. R.S. 14:95.1, respectively.
Defendant appeared for arraignment and pled not guilty to the
charges. The trial court found insufficient probable cause to
substantiate the charges at the preliminary hearing.
Defendant withdrew his not guilty plea and pled guilty to
aggravated assault with a firearm and was sentenced to five
years at hard labor. The State also entered a nolle
prosequi as to the possession of the firearm charge. The
same date, the State filed a multiple offender bill and
Defendant pled guilty thereto. The trial court then vacated
the five-year sentence and set a date for sentencing.
Defendant moved to withdraw his guilty plea. The State joined
the defense's motion and the trial court ordered that
Defendant's guilty plea be withdrawn. The State
thereafter filed an amended bill of information charging
Defendant with aggravated assault with a firearm, possession
of a firearm by a convicted felon, as well as obstruction of
justice, in violation of La. R.S. 14:130.1. Defendant pled
not guilty to the amended bill.
found Defendant guilty as charged as to all counts. Defendant
filed a motion for post-verdict judgment of acquittal, which
the trial court denied. The trial court sentenced Defendant
to ten years at hard labor on the convictions for obstruction
of justice and aggravated assault with a firearm. The trial
court also sentenced Defendant to ten years at hard labor
without the benefit of probation, parole, or suspension of
sentence, as to the felon in possession of a firearm charge.
However, the trial court waived any fees and costs as to all
three counts. All sentences were ordered to run concurrently,
with credit for time served.
sentencing, the State filed a multiple offender bill of
information. The trial court adjudicated Defendant a
quadruple offender as to his convictions for aggravated
assault with a firearm (count one) and obstruction of justice
(count three) and a triple offender as to the conviction for
felon in possession of a firearm (count two). The trial court
then vacated the previous sentences and resentenced Defendant
to twenty years for each count, to run concurrently, without
the benefit of probation, parole, or suspension of sentence
as to the felon in possession of a firearm charge.
Defendant's appeal followed.
Jones was living with his ex-wife, Brenda Jones, with whom he
had an on-again off-again relationship, at 2542 Elder Street.
Defendant lived two houses down from Mr. Jones and Brenda.
Mr. Jones testified that at approximately 9:00 a.m.,
Defendant approached him on the street as he was walking home
from purchasing cigarettes at a gas station on Franklin
Avenue. Mr. Jones stated that Defendant appeared to be
retrieving the garbage can and stopped him "like he
wanted to fight," said "something about [how] I
disrespected him and … he's going to do this and
that to me." Defendant stated that Mr. Jones
disrespected him when Mr. Jones was arguing with Brenda
outside their home one night. Mr. Jones testified that he had
"said something" during his argument with his
ex-wife and Defendant "took it like [he] was speaking
about him [Defendant]." Mr. Jones said that during this
encounter, Defendant moved towards him as if he was going to
hit him, but Mr. Jones moved out of the way and continued
home. Mr. Jones denied telling Defendant he was "going
to go after him," but conceded that they continued to
argue as he walked away.
returning home, Mr. Jones began watching television, but then
observed Defendant on his surveillance video standing in his
driveway. When Mr. Jones exited his house, he noticed
Defendant had "something in his hand" resembling a
"pistol." He was ten to twenty feet away from
Defendant when he observed the gun. Defendant then said he was
"going to blow [Mr. Jones'] head off." Mr.
Jones stated he was terrified, but maintained his composure.
He then overheard someone call Defendant back and said to
"leave the old man alone." Mr. Jones went back
inside his home and resumed watching television. Mr. Jones
did not call the police to report the incident, but when
Brenda returned from work at approximately 2:00 p.m., he
advised that her that the "neighbor down the
street" was "act[ing] a fool." Mr. Jones
showed her the surveillance video, and Brenda called
Mr. Jones informed the police that Defendant pulled a gun on
him and made him nervous. Mr. Jones stated that he had no
previous altercations with Defendant. Mr. Jones identified
the surveillance tapes and himself on the officer's body-cam
Jones was also shown an affidavit that was provided to the
prosecution by defense counsel the morning of
trial. He testified that he did not write the
statements listed on the affidavit, but acknowledged his
signature thereon. Mr. Jones said Defendant brought the
document to his home and drove them both to a "fax
store" to have it signed before a notary. He stated that
Defendant indicated that if he signed the affidavit it would
help Defendant resolve the matter. Mr. Jones explained:
"I've been with this mess for so long, I just wanted
to end it, and he told me this would end it, you know, so I
was just trying to end it." He stated that some of the
content on the affidavit was correct, but that several
statements were false, including the fifth statement that
Defendant only tried to scare him with a "water
pistol;" the ninth statement that "no firearms were
involved and no crimes were committed;" and the eleventh
statement that he "informed the State Prosecutor to end
this over-reaction, to close this unnecessary prosecution
because [he] will not testify for the
cross-examination, Mr. Jones testified that when Defendant
was in the front of his driveway he did not initially observe
a gun, but that he saw the pistol when Defendant moved closer
towards him. When questioned whether he was sure the gun was
an actual pistol or a water gun, Mr. Jones responded he was
"no expert on guns." He admitted the only time he
observed Defendant with a gun was the day of the incident.
Mr. Jones acknowledged he did not "cower or duck"
when Defendant pointed the gun at him, stating: "I know
the Lord above, and if it was my point in time to go, it
would have been my time to go." He said he was terrified
though he "didn't show it." Mr. Jones also
testified that Defendant had apologized to him and that he
had accepted the apology. He testified that he signed the
affidavit even though some of the attestations were untrue
because he wanted "everything to be over with…
[and] didn't want to see the young man go to
testified that when she returned from work, Mr. Jones advised
her that Defendant had approached him outside their home with
a gun. She stated upon viewing the surveillance video, she
"kn[e]w it was a gun" that Defendant brandished at
Mr. Jones. Brenda called the police. Brenda testified that at
no point did Mr. Jones advise her that the incident did not
happen or instruct her not to call the police. On
cross-examination, Brenda conceded that the gun Defendant was
holding "could have been" a toy gun and she could
not tell from the surveillance tape "whether it's a
toy gun or a real gun." On redirect, however, Brenda
noted that Mr. Jones had informed her the day of the incident
that Defendant was holding a gun.
Sean LeBoeuf responded to the 911 call. At the time of the
incident, he was employed as a patrolman by the New Orleans
Police Department. Trooper LeBoeuf testified that when he
arrived on the scene, Mr. Jones advised him that he and his
neighbor had an argument and it escalated to a point during
which the neighbor went to Mr. Jones' house with a gun.
Trooper LeBoeuf identified the body camera video, depicting
his conversation with Mr. Jones. Trooper LeBoeuf viewed and
collected the video surveillance footage from Mr. Jones'
residence. He then went to Defendant's house on the
corner of Elder Street and Franklin Avenue, where a woman
advised him that Defendant was not home, but that she would
contact him. Trooper LeBoeuf eventually spoke with Defendant
later that day. Trooper LeBoeuf identified the body-cam video
of his interaction with Defendant. Trooper LeBoeuf testified
that he never recovered a pistol.
LeBoeuf admitted, on cross-examination, that he did not
obtain a warrant to search Defendant's truck or house for
a firearm. He also testified that he did not recover bullets
or shell casings from Defendant's person. Trooper LeBoeuf
testified that Defendant insisted during his interview that
he had a water gun, not a real gun, and because Defendant was
a felon and it "would be dumb for him to carry a
gun." Defendant also advised Trooper LeBoeuf that he had
thrown the gun in the Peoples Avenue Canal. Trooper LeBoeuf
stated that the police did not search the canal for the
disposed water gun. The canal was not searched because of
woody overgrowth and because there was a shortage of
manpower. He believed the surveillance video and Mr. Jones
and Brenda's description of the incident was sufficient
evidence to close the case.
review of the record reveals a patent error with regard to
Defendant's sentence. After the trial court adjudicated
Defendant a fourth felony offender as to his convictions for
aggravated assault with a firearm (count one) and obstruction
of justice (count 3) and a third felony offender as to the
conviction for felon in possession of a firearm (count two),
the trial court imposed the following sentences:
And so as to Count 1, I sentence you to serve 20 years in the
custody of the Department of Corrections, credit for time
As to Count 2, I sentence you to serve 20 years in the
custody of the Department of Corrections, credit for time
As to Count 3, I sentence you to serve 20 years in the
custody of the Department of Corrections, credit for time
served. All sentences are to run concurrent one with the
One second. Hold on. Come back, Mr. Jones. As to Count 2,
I'm going to have to revise that sentence.
As to Count 2, vacate what I said earlier. I'm sentencing
him -- under the law, it's 20 years without benefit of
probation, parole, or suspension of sentence on that count.
And all counts are to run concurrent.
trial court failed to specify that Defendant's
twenty-year sentences regarding his fourth felony offender
convictions for counts one and three were to be served
"without benefit of probation or suspension of
sentence" as required per La. R.S. 15:529.1(G).
Nevertheless, La. R.S. 15:301.1(A) self-activates, providing
that the sentence is deemed to contain the provisions
relating to the service of the sentence without the benefit
of parole, probation, and/or suspension of sentence.
State v. James, 07-1578, p. 6 (La.App. 4 Cir.
6/25/08), 988 So.2d 807, 811. Thus, we need not vacate and
remand for correction.
JUDGMENT OF ACQUITTAL
contends that the trial court erred in denying his motion for
post-verdict judgment of acquittal.
post-verdict judgment of acquittal "shall be granted
only if the court finds that the evidence, viewed in a light
most favorable to the state, does not reasonably permit a
finding of guilty." La. C.Cr.P. art. 821(B). This
is similar to the standard for appellate review of the
sufficiency of evidence to support a defendant's
conviction that the court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.
State v. Williams, 04-1377, pp. 7-8 (La.App. 4 Cir.
12/1/04), 891 So.2d 26, 30. Thus, "[a] motion for
post-verdict judgment of acquittal raises the question of
sufficiency of the evidence." State v. Simmons,
07-0741, p. 15 (La.App. 4 Cir. 4/16/08), 983 So.2d 200, 208.
well-settled standard for reviewing convictions for
sufficiency of the evidence was outlined by this Court in
State v. Haynes, 13-0323, pp. 7-8 (La.App. 4 Cir.
5/7/14), 144 So.3d 1083, 1087-88:
In evaluating whether evidence is constitutionally sufficient
to support a conviction, an appellate court must determine
whether, viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Green, 588 So.2d 757 (La.App. 4
Cir. 1991). However, the reviewing court may not disregard
this duty simply because the record contains evidence that
tends to support each fact necessary to constitute the crime.
State v. Mussall, 523 So.2d 1305 (La. 1988). The
reviewing court is not permitted to consider just the
evidence most favorable to the prosecution but must consider
the record as a whole since that is what a rational trier of
fact would do. If rational triers of fact could disagree as
to the interpretation of the evidence, the rational
trier's view of all the evidence most favorable to the
prosecution must be adopted. The fact finder's discretion
will be impinged upon only to the extent necessary to
guarantee the fundamental protection of due process of law.
Mussall, 523 So.2d at 1310. "[A] reviewing
court is not called upon to decide whether it believes the
witnesses or whether the conviction is contrary to the weight
of the evidence." State v. Smith, 600 So.2d
1319, 1324 (La. 1992).
In addition, when circumstantial evidence forms the basis of
the conviction, such evidence must consist of proof of
collateral facts and circumstances from which the existence
of the main fact may be inferred according to reason and
common experience. State v. Shapiro, 431 So.2d 372
(La. 1982). The elements must be proven such that every
reasonable hypothesis of innocence is excluded. La. R.S.
15:438. This is not a separate test from Jackson v.
Virginia, but rather is an evidentiary guideline to
facilitate appellate review of whether a rational juror could
have found a defendant guilty beyond a reasonable doubt.
State v. Wright, 445 So.2d 1198 (La. 1984). All
evidence, direct and circumstantial, must meet the Jackson
reasonable doubt standard. State v. Jacobs, 504
So.2d 817 (La. 1987). If a rational trier of fact ...