Ridgeway v. State

128 So. 3d 935, 2013 WL 6818250, 2013 Fla. App. LEXIS 20376
CourtDistrict Court of Appeal of Florida
DecidedDecember 26, 2013
DocketNo. 1D12-3523
StatusPublished
Cited by6 cases

This text of 128 So. 3d 935 (Ridgeway v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ridgeway v. State, 128 So. 3d 935, 2013 WL 6818250, 2013 Fla. App. LEXIS 20376 (Fla. Ct. App. 2013).

Opinions

ROBERTS, J.

The appellant, Darryl Ridgeway, appeals his judgment and sentence for one count of robbery with a deadly weapon, raising two [937]*937issues on appeal, only one of which merits discussion. He argues that the trial court erred in denying his motion for judgment of acquittal. We disagree and find that, in a light most favorable to the State, competent, substantial evidence supported all the elements of the charged offense such that the motion for judgment of acquittal was properly denied.

The appellant entered a gas station in the early morning hours and asked the clerk for cigarettes. The appellant asked the clerk if he was working alone, to which the clerk responded affirmatively. The appellant then demanded all the money in the cash register. After the clerk refused, the appellant took a step back, reached for his pocket, and jumped over the counter. As the appellant jumped over the counter, the clerk pulled out his personal knife. In an attempt to defend himself, the clerk lunged at the appellant twice. On the second lunge, the knife pierced and became lodged in the appellant’s back as he jumped back over the counter. The appellant proceeded toward the exit, but stopped halfway between the door and the counter. Upon stopping, the appellant pulled the knife from his back, turned with the knife in his hand, faced the clerk, and took four steps toward the clerk. Feeling defenseless and unsure of the appellant’s next move, the clerk ran out the back door and called the police. The appellant exited the store with the knife in his hand, entered his vehicle, and drove away with the knife. The appellant was charged and convicted of one count of robbery with a deadly weapon.

On appeal, the appellant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he had the requisite intent to commit robbery of the knife and also failed to prove that there was a taking of the knife.

A motion for judgment of acquittal is reviewed on appeal by the de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The question presented by the motion is whether, in a light most favorable to the State, the evidence is legally adequate to support the charge. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). A motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). If competent, substantial evidence is presented to support the conviction, an appellate court will generally not reverse the denial of a motion for judgment of acquittal. Pagan, 830 So.2d at 803.

First, the appellant did not preserve any issue regarding the taking of the knife because he failed to present the specific legal argument to the trial court below. See Archer v. State, 613 So.2d 446, 448 (Fla.1993). The appellant concedes that his general motion for judgment of acquittal could be considered insufficient, but argues that appellate review is not precluded because the error was fundamental. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (finding an exception to the preservation requirement where the evidence is insufficient to show that a crime was committed at all). We find no support for the appellant’s argument for error, let alone fundamental error.

For the crime of robbery, the State must prove the following elements beyond a reasonable doubt:

(1) The appellant took the knife from the person or custody of the clerk;
(2) force, violence, assault, or putting in fear was used in the course of the taking;
[938]*938(3) the knife had some value1;
(4) the taking was with the intent to permanently or temporarily deprive the clerk of his right to the knife or any benefit from it or appropriate the knife of the clerk to his own use or to the use of any person not entitled to it.

See Fla. Std. Jury Instr. (Crim.) 15.1; § 812.13(1), Fla. Stat. (2011).

To prove the crime of robbery with a deadly weapon, the State must further prove that, in the course of committing the robbery, the appellant carried a deadly weapon. § 812.13(2)(a), Fla. Stat. (2011). An act will be deemed “in the course of committing the robbery” if it “occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2011).

As to the taking, the State presented the clerk’s testimony and evidence in the form of surveillance video footage with multiple camera angles showing that, after being stabbed, the appellant stopped, took the knife from his back, turned around, took four steps toward the clerk with the knife in his hand, and then left the store with the knife. Although the appellant took the knife out of his back rather than the clerk’s hands, property need not be in “the actual physical possession or immediate presence of the person who was robbed” for a taking to occur. Perry v. State, 801 So.2d 78, 86-87 (Fla. 2001) (citing Jones v. State, 652 So.2d 346, 350 (Fla.1995) (citation omitted)). Rather, “property is taken from the person or custody of another if it is sufficiently under the victim’s control so that the victim could have prevented the taking had [he] not been subjected to the violence or intimidation by the robber.” Pen-y, 801 So.2d at 87. Here, the clerk could have prevented the taking had he not been intimidated enough to brandish the knife for protection. As such, the taking occurred when the appellant pulled the knife from his back, turned, and took four steps toward the clerk with the knife in his hand.

The appellant argues that no taking occurred because the clerk gave him the knife, or abandoned the knife, when the clerk stabbed him and subsequently fled the store. We disagree with this argument as giving or abandonment implies that the clerk voluntarily relinquished the knife. See generally Rockmore v. State, 114 So.3d 958, 962 n. 2 (Fla. 5th DCA 2012) (“ ‘Abandonment’ of property typically refers to the voluntary relinquishment of an owner’s right.”), review granted, 116 So.3d 1262 (Fla.2013). We are hard-pressed to find that the clerk voluntarily relinquished his best defense mechanism against the appellant under the circumstances.

As to the next element that force, violence, assault, or putting in fear was used in the course of the taking, the State presented evidence that the clerk felt the need to defend his life when the appellant jumped over the counter. “In the course of a taking” is defined as an act that “occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (2011). Here, the appellant placed the clerk in fear prior to taking the knife. Alternatively, the appellant brandished the knife and took four steps toward the clerk subsequent to taking the knife from his back, which resulted in the clerk running from [939]*939the store. Both instances involve a continuous series of acts between the taking and putting the clerk in fear. See Messina v. State, 728 So.2d 818, 819 (Fla.

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Bluebook (online)
128 So. 3d 935, 2013 WL 6818250, 2013 Fla. App. LEXIS 20376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ridgeway-v-state-fladistctapp-2013.