State Of Louisiana VS Arria S. Loper
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 0582 i STATE OF LOUISIANA inn VERSUS ARRIA S LOPER Judgment Rendered October 29 2010 Appealed from the TwentyFirst Judicial District Court in and for the Parish of Livingston State of Louisiana Trial Court Number 22730 Honorable Ernest G Drake Judge Presiding Scott M Perrilloux Counsel for Appellee Leslie Burns State of Louisiana Livingston LA Patricia Parker Amite LA Thomas J Frierson Livingston LA Counsel for Defendant Appellant Arria S Loper Arria S Loper In Proper Person BEFORE WHIPPLE McDONALD AND McCLENDON JJ WHIPPLE J The defendant Arria S Loper was charged by bill of information with possession of a firearm by a convicted felon a violation of LSAR S 14 The 1 95 defendant pled not guilty and following a jury trial was found guilty as charged The defendant filed a motion for postverdict judgment of acquittal which was denied The defendant was sentenced to thirteen years imprisonment at hard labor without benefit of probation parole or suspension of sentence The defendant now appeals designating one counseled assignment of error and two pro se assignments of error We affirm the defendant conviction and sentence s FACTS On January 11 2008 Detective Ken McMorris with the Livingston Parish Sheriffs Office received information from a confidential informant that the defendant was involved in criminal activity Detective McMorris along with Livingston Parish Sheriffs Office Deputy Lance Landry met the defendant at a prearranged location in Livingston Parish As Detective McMorris approached the defendant he noticed a bulge in the defendant right front pants pocket Detective s McMorris conducted a patdown and retrieved from the defendant pocket a 38 s Special revolver with four live rounds in it The defendant was subsequently arrested COUNSELED ASSIGNMENT OF ERROR In his sole counseled assignment of error the defendant argues that the evidence was insufficient to support the guilty verdict Specifically the defendant contends that the State failed to prove that the gun was capable of firing or that the gun as a weapon was used or designed to be used in destroying defeating or injuring an enemy A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const art I S FA 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not 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 beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S Ct 2781 2789 61 S L Ed 2d 560 1979 See also LSAC art 821 State v Ordodi 2006 P Cr B 0207 p 10 La 11 946 So 2d 654 660 State v Mussall 523 So 2d 1305 06 29 1308 09 La 1988 The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 provides that the factfinder must be satisfied the overall evidence S 438 excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 pp 45 La App 1st Cir 6 822 So 2d 141 144 02 21 The trier of fact determination of the weight to be given evidence is not s subject to appellate review An appellate court will not reweigh the evidence to overturn a factfinder determination of guilt State v Taylor 972261 pp 5 6 s La App 1st Cir 9 721 So 2d 929 932 98 25 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 101700 772 So 2d 78 83 In his brief the defendant refers to Black Law Dictionary definitions of s firearm and weapon and asserts the evidence was insufficient because his gun was never shown to be capable of the propulsion of shot the Black Law s Dictionary definition of firearm and it was not shown that his gun was used or designed to be used in destroying defeating or injuring an enemy the Black s Law Dictionary definition of weapon However to prove a violation of LSAR 14 the State must prove S 95 1 1 the defendant status as a convicted felon and 2 that the defendant was in s 3 possession of a firearm See State v Mose 412 So 2d 584 585 La 1982 The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction LSAR 14 Prior S 95 C 1 to amendment by La Acts 2010 No 942 Following the amendment the cited language is contained in LSAR 14 Thus a violation of LSAR S 95 C 1 S 1 95 14 by the defendant required no more than that he had a prior felony conviction and was in possession of a firearm Through the trial testimony of Detective McMorris Deputy Landry and Craig Meyer a probation and parole officer for the State of Louisiana the State clearly proved the elements of possession of a firearm by a convicted felon Detective McMorris testimony corroborated by Deputy Landry testimony s s established that the defendant was carrying a 38 Special revolver with three or four bullets in his right front pants pocket Meyer testified that he was assigned to the defendant who had been convicted of possession of cocaine xanax and hydrocodone in January 2007 The defendant was placed on parole in March of 2007 and completed parole in August 2007 Detective McMorris testified on cross examination that he had not fired the s defendant gun and did not know whether or not the gun was working Similarly Deputy Landry testified on cross examination that he did not know if the rounds in the gun could be fired or if the gun was operational The 38 revolver the defendant had in his possession was published to the jury members at trial While there is nothing before us to suggest that the gun did not work properly or that it was inoperable the State was not required to prove that the gun was capable of Although proved at trial the element of the tenyear cleansing period is not at issue n firing live ammunition Such a condition is not an element of the crime of possession of a firearm by a convicted felon See State v Jenkins 540 So 2d 1037 103940 La App 2d Cir 1989 State v Rogers 494 So 2d 1251 125455 La App 2d Cir 1986 writ denied 499 So 83 La 1987 See also United 2d States v Perez 897 F 2d 751 754 5th Cir 1990 cert denied 498 U 865 111 S S Ct 177 112 L Ed 2d 141 1990 where in reviewing a federal statute similar to LSAR 14 which prohibited possession of a firearm by a felon the court S 95 1 found irrelevant whether or not the rifle possessed by the defendant was inoperable since a inoperable firearm is nonetheless a firearm n After a thorough review of the record we find that the evidence supports the s jury verdict We are convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of possession of a firearm by a convicted felon See State v Calloway 20072306 pp 1 2 1012 La 1 1 So 3d 09 21 417 418 422 23 per curiam The counseled assignment of error is without merit PRO SE ASSIGNMENT OF ERROR NO 1 In his first pro se assignment of error the defendant argues he had ineffective assistance of counsel because of a conflict of interest with his court appointed counsel Initially we note that when the defendant sought to have defense counsel discharged the attorney sought to withdraw as counsel of record The trial judge Trial 2 testimony in fact suggests the gun was working properly Detective McMorris testified that after retrieving the gun from the defendant he opened the gun and removed the four live rounds to make it safe He also testified he brought the gun to the detective office made it s safe to where it could not be shot and tagged and placed it into evidence He further testified that he had been with the Sheriffs Office for ten andahalf years and that with his law enforcement training in firearms the bullets in the defendant gun looked like they were able to s be fired 61 denied the withdrawal However the trial court allowed the defendant to represent himself but ordered the attorney to sit second chair in an advisory capacity in the defendant case In his pro se brief the defendant asserts without support that s defense counsel was not operating in his best interest Further without support the defendant states The level of competency asserted by restrained sic s counsel performance failed to meet the normal demands called for adequate representation and was not based on informed professional deliberations The defendant also complains that defense counsel failed to file a motion to suppress the evidence However the record indicates that defense counsel did file a motion to suppress a hearing was held on the matter and the trial court denied the motion to suppress Louisiana Constitution article 1 13 provides in pertinent part that a t each stage of the proceedings every person is entitled to assistance of counsel of his choice or appointed by the court if he is indigent and charged with an offense punishable by imprisonment The Sixth Amendment to the United States Constitution likewise carries such a guarantee As a general proposition a person accused in a criminal trial has the right to counsel of his choice If a defendant is indigent he has the right to courtappointed counsel However an indigent defendant does not have the right to have a particular attorney appointed to represent him An indigent right to choose his counsel only extends so far as to s allow the accused to retain the attorney of his choice if he can manage to do so but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice The question of withdrawal of counsel largely rests with the discretion of the trial judge and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion State v Leger 2005 0011 p 43 La 7 936 So 2d 06 10 108 142 cert denied 549 U 1221 127 S Ct 1279 167 L Ed 2d 100 2007 S R In Strickland v Washington 466 U 668 687 104 S Ct 2052 2064 80 S L Ed 2d 674 1984 the United States Supreme Court enunciated the test for evaluating the competence of trial counsel First the defendant must show that counsel performance was s deficient This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment Second the defendant must show that the deficient performance prejudiced the defense This requires showing that counsel errors were so serious as to deprive s the defendant of a fair trial a trial whose result is reliable Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable In evaluating the performance of counsel the inquiry must be whether s counsel assistance was reasonable considering all the circumstances Morgan 472 So 2d 934 937 La App 1st Cir 1985 State v Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v Robinson 471 So 2d 1035 1038 39 La App 1st Cir writ denied 476 So 2d 350 La 1985 A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 960337 p 10 La App 1st Cir 11 684 So 2d 96 8 432 438 In the instant matter the allegations of ineffective assistance of counsel at trial cannot be sufficiently investigated from an inspection of the record alone Decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond what is contained in the instant record 7 could these allegations be sufficiently investigated Accordingly these allegations are not subject to appellate review See State v Albert 961991 p 11 La App 1st Cir 6 697 So 2d 1355 1363 64 See also State v Johnson 2006 1235 97 20 p 15 La App 1 st Cir 12 951 So 2d 294 304 06 28 PRO SE ASSIGNMENT OF ERROR NO 2 In his second pro se assignment of error the defendant argues that his sentence is excessive A thorough review of the record indicates that neither the defendant nor defense counsel made a written or oral motion to reconsider his sentence Under LSA C arts 881 and 881 the failure to make or file a motion to P Cr E 1 1 A 2 reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal including a claim of excessiveness The defendant therefore is procedurally barred from having this assignment of error reviewed See State v Duncan 941563 p 2 La App 1st Cir 12 667 So 2d 1141 1143 en 95 15 banc per curiam See also State v LeBouef 970902 pp 23 La App 1st Cir 98 20 2 708 So 2d 808 80809 writ denied 98 0767 La 7 724 So 2d 98 2 206 This pro se assignment of error also is without merit Under LSAC art 920 we are limited in our review to errors P Cr 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found a sentencing error See State v Price 2005 2514 La App 1st Cir 12 952 06 28 So 2d 112 en banc writ denied 20070130 La 2 976 So 2d 1277 08 22 The 3 defendant would have to satisfy the requirements of LSAC art 924 et seq in P Cr order to receive such a hearing 0 For his conviction of possession of a firearm by a convicted felon the defendant was sentenced to thirteen years at hard labor without benefit of probation parole or suspension of sentence At the time of the instant offense the law provided that whoever is found guilty of violating the possession ofafirearm byaconvicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars LSAR 14 prior S 95 B 1 to amendment by La Acts 2010 No 815 The trial court failed to impose the mandatory fine Accordingly the defendant sentence which did not include the s mandatory fine is illegally lenient However since the sentence is not inherently prejudicial to the defendant and neither the State nor the defendant has raised this sentencing issue on appeal we decline to correct this error See Price 2005 2514 at pp 21 22 952 So 2d at 12425 CONVICTION AND SENTENCE AFFIRMED The minutes also reflect that no fine was imposed 21 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0582 STATE OF LOUISIANA VERSUS ARRIA S LOPER McCLENDON J concurs and assigns reasons While I am concerned about the failure of the trial court to impose the legislatively mandated fine given the state failure to object and in the interest s of judicial economy I concur with the majority opinion
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
