State v. Harrison

598 So. 2d 1211, 1992 La. App. LEXIS 1278, 1992 WL 86213
CourtLouisiana Court of Appeal
DecidedApril 30, 1992
DocketNo. 90-KA-1493
StatusPublished
Cited by1 cases

This text of 598 So. 2d 1211 (State v. Harrison) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harrison, 598 So. 2d 1211, 1992 La. App. LEXIS 1278, 1992 WL 86213 (La. Ct. App. 1992).

Opinion

ARMSTRONG, Judge.

The defendant, Tyronne Harrison, was charged by bill of information with simple robbery, a violation of R.S. 14:65. After a [1212]*1212trial, a six person jury found him guilty of attempted simple robbery, a violation of R.S. 14:27, 14:65. He was sentenced to serve three and one-half years at hard labor, court costs waived. It is from this conviction and sentence that the defendant has filed this appeal.

Testimony at the trial revealed the following. On April 24, 1990, at approximately 6:30 p.m. the defendant was seen riding a small bicycle down Port street. He approached the victim, twelve year old Joseph Martin, Jr., who was standing on the corner with his ten speed bicycle. The defendant kicked the victim and told him to “get off the M.F.ing bike.” The defendant got onto the victim’s ten speed bicycle and rode the victim’s bicycle down the street while carrying the other, smaller, bicycle that the defendant was riding when he approached the victim.

The victim’s father, Joseph Martin, Sr. had come out onto the porch of his residence in time to see the defendant kick his son off of the bicycle. Mr. Martin caught up with the defendant approximately one block away. Mr. Martin told the defendant that the bicycle he was riding was not his. The defendant got off of the victim’s bicycle and threw the smaller bicycle at Mr. Martin. Mr. Martin threw the bicycle back at the defendant. Mr. Martin retrieved his son’s ten speed and returned to his son. The defendant then went into his own home, released his Doberman Pinscher, and returned with a plastic bag wrapped around a plunger. The defendant was pretending that he had a gun. Mr. Martin then returned to his residence.

At this time, the police were seen standing on the corner of Almonaster and Dor-genois streets. Mr. Martin approached the two police officers with his son’s bicycle in hand, and said that he wished to press charges against the defendant. At this time the defendant approached the officers and Mr. Martin and wanted to fight Mr. Martin. The officers told the defendant that he was under arrest, at which time the defendant fled into a nearby enclosed rear yard. The police captured the defendant and returned him to the rear seat of the police car. At this time the defendant began beating his face on the rear window of the police car. The defendant threatened the lives of the police officers as well as that of Mr. Martin. The defendant was taken to Charity hospital for treatment to a cut on the mouth, and was then transported to Central Lock-Up.

A review of the record for errors patent reveals none.

In his first assignment of error, the defendant claims that the trial court erred in imposing court costs of $159.00 or thirty days in jail in default of payment. The defendant correctly points out that the docket master and the sentencing transcript are in conflict. The docket master reflects that the trial court ordered the defendant to pay the court costs of $159.00 or serve thirty days in default of payment. The transcript, however, reveals that the court costs were waived since the defendant received the maximum sentence.

When the transcript and the minute entry are conflicting, the transcript is controlling. State v. Jones, 557 So.2d 352, 354 (La.App. 4th Cir.1990). In this case, the transcript reveals that the court costs were waived since the defendant received the maximum sentence. Defendant, therefore, is entitled to have the conflicting language removed from the docket master.

Accordingly, the trial court is ordered to correct the minute entry and docket master to reflect the sentence as revealed in the transcript.

In his second assignment of error, the defendant contends that the sentence of three and one half years is excessive because the trial court did not properly consider C.Cr.P. 894.1 when sentencing the defendant. The defendant argues that the trial judge was incorrect when he used the verbiage that “the defendant’s criminal conduct did cause or threaten serious harm to the victim,” because no serious harm was done or threatened to the victim. The defendant gives a long description of the word “serious” and contends that since the victim was only “kicked at on his leg,” [1213]*1213the trial judge erred by imposing the maximum sentence.

The sentencing transcript documents that the trial court addressed both the aggravating and mitigating factors set forth in C.Cr.P. art. 894.1 and, therefore, complied with sentencing requirements. This assignment is meritless.

In his third assignment of error, the defendant claims that the State failed to establish that the defendant used force or intimidation, which is a necessary element of simple robbery. R.S. 14:65 defines simple robbery as follows:

The taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by the use of force or intimidation, but not armed with a dangerous weapon.
Whoever commits the crime of simple robbery shall be fined no more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.

The defendant argues that “the only use of force in connection with the relevant criminal conduct was a kick on the leg ...” and that the statute and case law require a greater use of force. The defendant cites State v. LeBlanc, 506 So.2d 1197 (La.1987), for the proposition that “the extra requirement of an element of force ‘above and beyond that force or effort necessary to commit the lewd act upon the person’ was necessary.” The defendant is apparently arguing that a greater force than a minimum force is necessary here.

In LeBlanc, the Supreme Court dealt with the issue of force as used in R.S. 14:81.2, which defines the crime of molestation of a juvenile. In that case, the defendant had been convicted of attempted molestation of a juvenile because he thrust his hand down the pants of a juvenile and grabbed the juvenile’s genitals. LeBlanc at 1198. The Court reduced the conviction to attempted indecent behavior with a juvenile. LeBlanc at 1201. The Court reasoned that the grabbing was the crime of indecent behavior with a juvenile, and that additional force was necessary to turn the crime of indecent behavior with a juvenile into the more serious crime of molestation of a juvenile. LeBlanc at 1200. The requisite force necessary to upgrade the offense, such as holding the juvenile by the arm in order to effect the act, was simply not present. Id. at 1200. The Court went further in its analysis of the use of force by comparing molestation to simple robbery:

The ‘use of force’ requirement in the crime of molestation of a juvenile is much more comparable to the ‘use of force’ requirement in simple robbery, as defined in La.R.S. 14:65, than to the element of the crime of battery defined in La.R.S. 14:33. The ‘use of force’ in La.R.S. 14:33 contemplates the minimum force or violence upon the person necessary to commit the crime of battery and distinguishes the crime from an accidental or incidental touching. Moreover, the force constitutes the criminal act itself, rather than the means of overcoming the victim’s will.

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State v. Shaw
702 So. 2d 5 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
598 So. 2d 1211, 1992 La. App. LEXIS 1278, 1992 WL 86213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrison-lactapp-1992.