Sapp v. State

497 So. 2d 546, 1985 Ala. Crim. App. LEXIS 5919
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 12, 1985
Docket5 Div. 993
StatusPublished
Cited by2 cases

This text of 497 So. 2d 546 (Sapp v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sapp v. State, 497 So. 2d 546, 1985 Ala. Crim. App. LEXIS 5919 (Ala. Ct. App. 1985).

Opinion

McMILLAN, Judge.

Appellant was convicted, after a trial by jury, of the offense of robbery in the first degree in violation of § 13A-8-41, Code of Alabama (1975), and sentenced to twenty years in the State penitentiary. From said conviction and sentence, this appeal follows. For the reasons outlined below, the judgment of the trial court is due to be affirmed.

On September 29, 1984, the appellant entered the Wal-Mart Store in Auburn, Alabama, and was observed by several employees acting in a “suspicious” manner. One of the security officers for the store testified that he carefully observed the appellant because he appeared to “be paying more attention to who was looking at him than what he was actually looking at.” The security officer testified that the appellant left the store wearing a black jacket which appeared to belong to Wal-Mart. Approximately five to ten minutes later, the appellant returned (still wearing the jacket), and went to the jewelry department. When the appellant started to leave the store for the second time, the security officer stopped him, identified himself and informed the appellant that he was wearing a jacket which belonged to the Wal-Mart Store.

After the security officer examined the jacket, he determined that it was the property of Wal-Mart and told the appellant that he would need to remain at the store until the police arrived. At this point, the appellant became “very hostile,” grabbed the jacket, and stated that he was going to leave the store. The security officer summoned the manager and another employee and attempted to detain the appellant, who continued to insist that he would not wait at the store until the police arrived. As the manager and another employee approached, the appellant reached into his pocket, and the following then occurred:

“And as he reached into his pocket I grabbed his hand; and he pushed me away. And he reached back into his pocket and I reached forward to catch his hand again. He pulled out a silver looking knife and swung it at me like that (indicating) and cut me on the end of the hand. And then turned it to make a stabbing motion. And said, ‘I’m going to hurt you, David. I’m going to hurt you.’ [547]*547And we backed out and he ran out the front door of the store.”

The security officer testified that he observed the appellant for approximately five or six minutes and described his appearance as follows:

“He had on a burgundy colored hat, kind of a pompadour hat, with yellow feathers in the side. His hair was fairly long, came out from under his hat, and it was greasy looking, kind of processed. He had a little goatee. And he had on a maroon colored sweater, a pullover type. And it had some emblems across the front of it, I believe kind of a diamond pattern. And he had on red, or maroon colored, pants and red shoes. He had on a black jacket that was ours. He had on a ring, a large kind of diamond clustered ring. A big thick, it’s not a rope chain but another type of chain. A real thin gold colored watch, that appeared to be like a lady’s watch; you know, just the style of it. And he had the knife that he had in his hand, when he opened the knife up; which was pewter color.

The appellant ran from the store and through an adjacent field, where the stolen jacket was discovered the next day.

The customer service manager of the Wal-Mart store testified that, on the night in question, he observed the appellant enter the store dressed in red shoes, red hat, and red shirt. Although the appellant was not wearing a black jacket when he entered the store, he was wearing a black jacket over his red outfit when he left the store. The appellant was still wearing the black jacket over his red outfit when he returned to the store a few minutes later.

The manager of the Wal-Mart Store testified that, on the night in question, the security officer summoned him to the back of the store. At that time, the security officer and the appellant were discussing the ownership of the jacket and the appellant was refusing to wait for the police. Although the appellant stated that he had purchased the jacket some four or five months previously, the manager testified that they had just received the jackets within the past two weeks. When the manager informed the appellant that he would need to remain at the store until the police arrived, the appellant started “coming toward us with a knife.” The appellant then fled from the store, with the jacket.

At the close of the State’s evidence, defense counsel moved to exclude the State’s evidence for failure to present a prima facie case. According to defense counsel, the evidence presented by the State did not prove that Wal-Mart was in legal possession of the jacket and also did not prove that force or fear was used to deprive the owner of the jacket. Defense counsel also argued that the evidence would possibly support a charge of theft, but would not be proof of robbery. The trial court denied the motion.

The defense presented its case and called the appellant’s “lover” to the stand. She testified the appellant was with her the entire time the events apparently took place. This witness also stated that she would not lie for the appellant.

The appellant took the stand to testify in his own behalf. He said that on the day in question, he was with his girl friend during the afternoon and then went to shoot some dice. He then returned to his girl friend’s house and spent the entire night with her, he said. The appellant stated that he did not go to the Wal-Mart store in Auburn on September 29, 1984, and, additionally, stated that he had “never seen” the hat and jacket supposedly worn by the suspect on the night in question. Of his own “personal knowledge,” the appellant could not explain how his car came to be parked in front of the Wal-Mart store in the fire zone on the night in question. The appellant also testified that he had been previously arrested for the offense of “fighting” but had not been convicted. On cross-examination, the appellant stated that the “fighting” offense involved the use of knives but explained that they were just “regular” kitchen knives.

After the defense rested, the trial court instructed the jury on the applicable law. After their deliberations, the jury returned [548]*548a verdict finding the appellant guilty of robbery in the first degree, as charged in the indictment. A sentencing hearing was scheduled, at which time the appellant admitted that he had been convicted of the offense of third degree burglary in Syracuse, New York, in 1971. In pronouncing its sentence, the trial court took into consideration the gravity of the crime, as well as the fact that a weapon had been used, and concluded that the appellant should receive a sentence of 20 years in the penitentiary.

On appeal, the appellant raises two issues: (1) whether the robbery conviction was proper, if, as he contends, the violence occurred after a “completed theft and only in response to an accusation of theft”; and, (2) whether the State proved the ownership and theft of the property in question. For the reasons outlined below, both of these issues are decided adversely to the appellant.

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Related

Ex Parte Sapp
497 So. 2d 550 (Supreme Court of Alabama, 1986)

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Bluebook (online)
497 So. 2d 546, 1985 Ala. Crim. App. LEXIS 5919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sapp-v-state-alacrimapp-1985.