Fairchild v. State

600 S.W.2d 16, 269 Ark. 273, 1980 Ark. LEXIS 1514

• Court: Supreme Court of Arkansas
• Decided: June 16, 1980
• Docket: CR 80-53
• Status: Published

Opinions

Richard L. Mays, Justice.

Appellant, Robert Lee Fairchild, was convicted of aggravated robbery by a court sitting without a jury and sentenced to seven years imprisonment. The only question raised by appellant on appeal is whether the evidence was sufficient to sustain his conviction. Although we find sufficient evidence to support a conviction of robbery, we find insufficient evidence to sustain a conviction of aggravated robbery. We, therefore, modify the judgment below by reducing it to the lesser included offense of robbery and impose a sentence of three years imprisonment, that being the minimum prison sentence prescribed by law for a conviction of robbery.

The evidence indicates that on July 27, 1979, between 11:00 p.m. and midnight, appellant saw Mrs. Frances Calva, the prosecuting witness, near a double-door back entrance of the Checkmate Club in North Little Rock, rushed over and jerked the outer door open which she was holding and, with his right hand under his shirt, said, “Give me your money!” When Mrs. Calva denied that she had any money, appellant grabbed her dress lightly and insisted that she was lying. As she turned and tried to go in the inner back door, displaying only car keys in her hands, appellant retreated. He was later apprehended outside the club and taken to the police station for interrogation where he volunteered to a police officer that he had tried to induce Mrs. Calva to believe that he had a gun by holding his hand under his shirt.

A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Stat. Ann. § 41-2103 (Repl. 1977). Physical force means any bodily impact, restraint, or confinement or the threat thereof. Ark. Stat. Ann. § 41-2101 (Repl. 1977). A person commits aggravated robbery if he commits robbery armed with a deadly weapon, or represents by word or conduct that he is so armed. Ark. Stat. Ann. § 41-2102 (Repl. 1977).

In reviewing the record of appellant’s conviction, we are obliged to view the evidence in the light most favorable to the state. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976). Although appellant first contends that there was insufficient evidence to show that he employed physical force against Mrs. Calva, we find that jerking the door from her, cornering her in the back hallway and grabbing her dress is sufficient restraint and bodily impact to constitute physical force. Appellant’s next argument, however, that the evidence fails to establish that he represented by word or conduct that he was armed with a deadly weapon has merit. We are not persuaded that appellant’s hand under his shirt, even with the admitted intention of conveying to the victim that he was armed, is sufficient representation to satisfy the requirements of aggravated robbery in the absence of the victim’s appreciation that he was armed. It is clear from Mrs. Calvas testimony that she did not attach any special significance to this conduct and certainly did not perceive it to be in any way threatening. In fact, she did not even mention this particular conduct during her testimony until the prosecutor specially raised it by a leading question. Since the appellant’s subjective intent does not control what is objectively conveyed to another, a hand under a shirt has no meaning in the context of the aggravated robbery statute unless the victim at least perceives it to be menacing.

Affirmed as modified.

Fogleman, C.J., and Stroud, J., dissent.