STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 04-1588
STATE OF LOUISIANA
VERSUS
KELVIN RUBIN
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 03-K2427D HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and James T. Genovese, Judges.
CONVICTION AND SENTENCE VACATED AND ACQUITTAL ENTERED OF RECORD.
Earl B. Taylor District Attorney, 27th J.D.C. P. O. Drawer 1968 Opelousas, LA 70571-1968 (337) 948-3041 Counsel for Plaintiff Appellee, State of Louisiana
Edward Kelly Bauman La Appellate Project P. O. Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 Counsel for Defendant Appellant, Kelvin Rubin Alisa Ardoin Gothreaux Asst. District Atty. 27th JDC P. O. Drawer 1968 Opelousas, LA 70571-1968 (337) 948-3041 Counsel for Plaintiff Appellee, State of Louisiana
Kelvin Rubin St. Landry Parish Prison P. O. Box 1029 Opelousas, LA 70570 PAINTER, J.
Following trial by jury, Defendant, Kelvin Rubin, was convicted of simple
robbery. He was sentenced to serve two years in the parish jail, to pay a fine of $500
or serve thirty (30) days in jail, and to pay costs of $250.00. Defendant appeals,
raising the following assignments of error: (1) the evidence presented at trial was
insufficient to sustain a conviction of simple robbery; and (2) the sentence imposed
was excessive, or alternatively, Defendant’s trial attorney provided ineffective
assistance of counsel by failing to file a Motion to Reconsider Sentence. Viewing the
evidence in the light most favorable to the State, this court finds the evidence to be
insufficient to uphold the Defendant’s conviction for simple robbery. Therefore, the
conviction and sentence are vacated and an acquittal is entered of record.
FACTUAL AND PROCEDURAL BACKGROUND
In December of 2001, Defendant, Kelvin Rubin, was living with Crystal
Boudreaux. He proposed marriage and gave her a ring. Several months later, that
ring broke and Defendant gave her a second ring. The marriage, however, did not
take place and Defendant and Ms. Boudreaux ended their relationship.
On the morning of June 6, 2003, Defendant allegedly entered Ms. Boudreaux’s
home and forcibly removed the rings from her fingers and left the home. Thereafter,
on December 3, 2003, Defendant was charged by bill of information with simple
robbery, a violation of La.R.S. 14:65; with unauthorized entry of an inhabited
dwelling, a violation of La.R.S. 14:62.3; and with simple battery, a violation of
La.R.S. 14:35. Defendant plead not guilty and the matter proceeded to trial by jury.
On April 19, 2004, the jury convicted Defendant of simple robbery and acquitted him
of unauthorized entry of an inhabited dwelling.1 Defendant was sentenced to serve
1 Defendant was not tried on the charge of simple battery.
1 two years in the parish jail, with credit for time served; to pay a fine of $500.00 or
serve thirty (30) days in the parish jail; and to pay $250.00 for the cost of prosecution.
Defendant now appeals his conviction, alleging that there was insufficient evidence
to sustain a conviction of simple robbery and that his sentence was excessive, or in
the alternative, that his trial attorney provided ineffective assistance of counsel by
failing to file a Motion to Reconsider Sentence.
DISCUSSION
Defendant asserts that the evidence, when viewed in the light most favorable
to the prosecution, was not sufficient to sustain a conviction for simple robbery.
Specifically, Defendant argues that the State failed to prove all of the elements
necessary for the offense of simple robbery. We agree.
In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 09/30/98), 720 So.2d 724
at 726-27, this court held:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
In order to convict, the State must prove all of the elements of the charged
offense beyond a reasonable doubt. La.R.S. 14:65(A) defines simple robbery as “the
taking of anything of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or intimidation, but not armed
with a dangerous weapon.” Under that article, a conviction of simple robbery
requires proof beyond a reasonable doubt that the defendant took something of value,
which belonged to another, from the person of another, by use of force or
intimidation, but without being armed with a dangerous weapon.
2 Here, Defendant argues that the State failed to prove that the rings, the things
of value, belonged to another person. Defendant and Ms. Boudreaux, from whom he
is charged with taking the rings, were engaged to be married. Defendant gave the
first ring to her when he proposed marriage in December of 2001. When the top part
of that ring broke, Defendant gave Ms. Boudreaux the second ring. At the time he
gave her the second ring, they were still contemplating marriage. However,
approximately five to six months after Defendant gave Ms. Boudreaux the second
ring, they ended their relationship.
Louisiana Civil Code Article 1740 provides that “[e]very donation made in
favor of marriage falls, if the marriage does not take place.” Defendant now argues,
as he did at trial, that pursuant to La.Civ.Code art. 1740, the rings belonged to him
at the time he took them from Ms. Boudreaux because the marriage did not take place.
We agree with the fourth circuit’s holding that under La.Civ.Code art. 1740,
the donation of an engagement ring in consideration of marriage is void if that
marriage does not take place. Glass v. Wiltz, 551 So.2d 32 (La.App. 4 Cir.), writ
denied, 552 So.2d 400 (La.1989). The fourth circuit also recognized that even an
initial refusal by the donor to accept the return of an engagement ring does not
convert that ring into a gift when such refusal was based on the donor’s belief that the
engagement had not yet ended. Daigle v. Fournet, 141 So.2d 406 (La.App. 4 Cir.
1962).
In this case, it is not disputed that Defendant and Ms. Boudreaux had been
engaged to be married and that the rings had been given to her in conjunction with
their discussion of marriage. By application of La.Civ.Code art. 1740, the donation
of the rings was void when the engagement ended and, at that point, Defendant was
entitled to return of the rings.
3 Defendant argues that the gift was voided by the break-up of the relationship
and that he was owner of the rings at the time he took them from Ms. Boudreaux. He
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 04-1588
STATE OF LOUISIANA
VERSUS
KELVIN RUBIN
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 03-K2427D HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and James T. Genovese, Judges.
CONVICTION AND SENTENCE VACATED AND ACQUITTAL ENTERED OF RECORD.
Earl B. Taylor District Attorney, 27th J.D.C. P. O. Drawer 1968 Opelousas, LA 70571-1968 (337) 948-3041 Counsel for Plaintiff Appellee, State of Louisiana
Edward Kelly Bauman La Appellate Project P. O. Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 Counsel for Defendant Appellant, Kelvin Rubin Alisa Ardoin Gothreaux Asst. District Atty. 27th JDC P. O. Drawer 1968 Opelousas, LA 70571-1968 (337) 948-3041 Counsel for Plaintiff Appellee, State of Louisiana
Kelvin Rubin St. Landry Parish Prison P. O. Box 1029 Opelousas, LA 70570 PAINTER, J.
Following trial by jury, Defendant, Kelvin Rubin, was convicted of simple
robbery. He was sentenced to serve two years in the parish jail, to pay a fine of $500
or serve thirty (30) days in jail, and to pay costs of $250.00. Defendant appeals,
raising the following assignments of error: (1) the evidence presented at trial was
insufficient to sustain a conviction of simple robbery; and (2) the sentence imposed
was excessive, or alternatively, Defendant’s trial attorney provided ineffective
assistance of counsel by failing to file a Motion to Reconsider Sentence. Viewing the
evidence in the light most favorable to the State, this court finds the evidence to be
insufficient to uphold the Defendant’s conviction for simple robbery. Therefore, the
conviction and sentence are vacated and an acquittal is entered of record.
FACTUAL AND PROCEDURAL BACKGROUND
In December of 2001, Defendant, Kelvin Rubin, was living with Crystal
Boudreaux. He proposed marriage and gave her a ring. Several months later, that
ring broke and Defendant gave her a second ring. The marriage, however, did not
take place and Defendant and Ms. Boudreaux ended their relationship.
On the morning of June 6, 2003, Defendant allegedly entered Ms. Boudreaux’s
home and forcibly removed the rings from her fingers and left the home. Thereafter,
on December 3, 2003, Defendant was charged by bill of information with simple
robbery, a violation of La.R.S. 14:65; with unauthorized entry of an inhabited
dwelling, a violation of La.R.S. 14:62.3; and with simple battery, a violation of
La.R.S. 14:35. Defendant plead not guilty and the matter proceeded to trial by jury.
On April 19, 2004, the jury convicted Defendant of simple robbery and acquitted him
of unauthorized entry of an inhabited dwelling.1 Defendant was sentenced to serve
1 Defendant was not tried on the charge of simple battery.
1 two years in the parish jail, with credit for time served; to pay a fine of $500.00 or
serve thirty (30) days in the parish jail; and to pay $250.00 for the cost of prosecution.
Defendant now appeals his conviction, alleging that there was insufficient evidence
to sustain a conviction of simple robbery and that his sentence was excessive, or in
the alternative, that his trial attorney provided ineffective assistance of counsel by
failing to file a Motion to Reconsider Sentence.
DISCUSSION
Defendant asserts that the evidence, when viewed in the light most favorable
to the prosecution, was not sufficient to sustain a conviction for simple robbery.
Specifically, Defendant argues that the State failed to prove all of the elements
necessary for the offense of simple robbery. We agree.
In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 09/30/98), 720 So.2d 724
at 726-27, this court held:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
In order to convict, the State must prove all of the elements of the charged
offense beyond a reasonable doubt. La.R.S. 14:65(A) defines simple robbery as “the
taking of anything of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or intimidation, but not armed
with a dangerous weapon.” Under that article, a conviction of simple robbery
requires proof beyond a reasonable doubt that the defendant took something of value,
which belonged to another, from the person of another, by use of force or
intimidation, but without being armed with a dangerous weapon.
2 Here, Defendant argues that the State failed to prove that the rings, the things
of value, belonged to another person. Defendant and Ms. Boudreaux, from whom he
is charged with taking the rings, were engaged to be married. Defendant gave the
first ring to her when he proposed marriage in December of 2001. When the top part
of that ring broke, Defendant gave Ms. Boudreaux the second ring. At the time he
gave her the second ring, they were still contemplating marriage. However,
approximately five to six months after Defendant gave Ms. Boudreaux the second
ring, they ended their relationship.
Louisiana Civil Code Article 1740 provides that “[e]very donation made in
favor of marriage falls, if the marriage does not take place.” Defendant now argues,
as he did at trial, that pursuant to La.Civ.Code art. 1740, the rings belonged to him
at the time he took them from Ms. Boudreaux because the marriage did not take place.
We agree with the fourth circuit’s holding that under La.Civ.Code art. 1740,
the donation of an engagement ring in consideration of marriage is void if that
marriage does not take place. Glass v. Wiltz, 551 So.2d 32 (La.App. 4 Cir.), writ
denied, 552 So.2d 400 (La.1989). The fourth circuit also recognized that even an
initial refusal by the donor to accept the return of an engagement ring does not
convert that ring into a gift when such refusal was based on the donor’s belief that the
engagement had not yet ended. Daigle v. Fournet, 141 So.2d 406 (La.App. 4 Cir.
1962).
In this case, it is not disputed that Defendant and Ms. Boudreaux had been
engaged to be married and that the rings had been given to her in conjunction with
their discussion of marriage. By application of La.Civ.Code art. 1740, the donation
of the rings was void when the engagement ended and, at that point, Defendant was
entitled to return of the rings.
3 Defendant argues that the gift was voided by the break-up of the relationship
and that he was owner of the rings at the time he took them from Ms. Boudreaux. He
further argues therefore, that because the gift was void, and the rings belonged to him,
the State failed to prove the element of simple robbery requiring that the things of
value taken belonged to another. We agree.
In State v. Laird, 548 So.2d 373, 376 (La.App. 3 Cir. 1989), wit denied, 556
So.2d 54 (La.1990), a case involving the same issue in an armed robbery context, this
court held:
In prosecutions for armed robbery, it is not essential that the property taken was owned by the victim; it is only essential that the accused was not the owner and the victim had a greater right to possession of the property at the time of the taking than did the accused. State v. McClanahan, 262 La. 138, 262 So.2d 499 (1972); State v. Sanford, 446 So.2d 1381 (La.App. 1 Cir. 1984).
In the instant case, the essential requirement that Defendant was not the owner
of the property was not proven by the State. Rather, Defendant was entitled to the
return of the rings at the time of the alleged offense. The State failed to prove that
Defendant was not the owner and that Ms. Boudreaux had a greater right to
possession of the rings. Thus, this court finds that the evidence, even when viewed
in the light most favorable to the prosecution, does not prove all of the elements
required for a conviction of simple robbery. The evidence was, therefore, insufficient
to sustain the Defendant’s conviction for simple robbery.
Because this court finds that there was insufficient evidence to sustain a
conviction of simple robbery and vacates the conviction and sentence, we need not
consider Defendant’s second assignment of error concerning excessive sentencing.
DECREE
For the foregoing reasons, viewing the evidence in the light most favorable to
the State, we find that the evidence is insufficient to uphold the Defendant’s simple
4 robbery conviction. Accordingly, we vacate the conviction and sentence and order
an acquittal be entered of record.
CONVICTION AND SENTENCE VACATED AND ACQUITTAL ENTERED
OF RECORD.