State v. Hupp

514 So. 2d 271
CourtLouisiana Court of Appeal
DecidedOctober 14, 1987
Docket87-KA-214
StatusPublished
Cited by7 cases

This text of 514 So. 2d 271 (State v. Hupp) 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. Hupp, 514 So. 2d 271 (La. Ct. App. 1987).

Opinion

514 So.2d 271 (1987)

STATE of Louisiana
v.
Dwayne HUPP.

No. 87-KA-214.

Court of Appeal of Louisiana, Fifth Circuit.

October 14, 1987.

*272 Martha E. Sassone, Indigent Defender Bd., Gretna, for defendant-appellant.

Louise Korns, of counsel; Dorothy Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for State.

Before BOWES, DUFRESNE and GOTHARD, JJ.

BOWES, Judge.

Defendant, Dwayne Hupp, was charged with armed robbery in violation of LSA R.S. 14:64. At the conclusion of trial, a twelve-person jury unanimously found the defendant guilty as charged. Defendant appeals.

The facts of this case are as follows. On the evening of July 17, 1981, the defendant and an accomplice entered the Fin and Feather Lounge. Returning from the rest room, located at the rear of the building, the defendant pointed a gun at the bartender, Janet Bain, and the sole patron and told them to put their hands in the air. Both were told to face the wall and not look at the defendant's face. However, the defendant required assistance to open the cash register and, when Ms. Bain turned to open the register, she got a very good look at the defendant. All of the money in the register was taken, as well as the wallet of the patron. Janet Bain and the patron were then ordered into the back room and told that if they left the room before five minutes had elapsed they would be shot. When Ms. Bain heard the front door close, she left the room and called the police.

Ms. Bain was shown several photographic lineups which did not contain a photo of the defendant and did not identify anyone as the perpetrator. However, when she was shown the photographic lineup which contained a picture of the defendant, she immediately and positively identified him as the man who robbed her.

The defendant and four members of his immediate family testified that he was in Tennessee on the night of the robbery.

Defendant presents four assignments of error:[1]

1. The evidence presented at trial was not sufficient to justify the verdict. The defendant designates the entire record of this matter.
2. Also assigned as error are any and all errors patent on the face of the record. The defendant designates the entire record of this matter.
3. It was error for the trial court to admit into evidence photographs marked for identification as S2, S3, S4, S5, over the objection of defense counsel. (T.T. *273 pp. 88-112 of the hearing held on December 7, 1982).
4. The trial court erred in sentencing the defendant to a term of forty (40) years at hard labor without benefit of probation, parole, or suspension of sentence. (T.T. pp. 1-7 of the hearing held on April 27, 1983).

Assignment of Error Number 1

Defendant asserts that the evidence presented at trial was not sufficient to justify the verdict.

The standard to be used by the appellate court in evaluating a challenge of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant guilty of each element of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On the date of the commission of the offense, LSA R.S. 14:64 provided in pertinent part that:

"A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon."

Consequently, the elements of armed robbery which the State had to prove were as follows:

1. That the defendant committed the theft of something of value belonging to another; and
2. that the thing of value stolen was in the possession or in the immediate control of the victim when it was stolen; and
3. that the defendant used force or intimidation against the victim in order to accomplish the theft; and
4. that the defendant was armed with a dangerous weapon.

Additionally, since the definition of armed robbery, at the time of the commission of the present offense, described itself as a species of theft, the State was required to prove that the defendant had the specific intent necessary for the offense of theft. State v. Eason, 460 So.2d 1139 (La. App. 2 Cir.1984) writ den. 463 So.2d 1317 (La.1985), citing State v. Bruins, 407 So.2d 685 (La.1981).[2]

LSA R.S. 14:67 defines theft as:

... misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Thus, specific intent to permanently deprive the victim is an essential element of the crime of theft. Although "intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction." LSA R.S. 15:445.

In addition, under the standard of Jackson v. Virginia, supra, the State is required to negate any reasonable probability of an incorrect identification. State v. Knox, 472 So.2d 170 (La.App. 5 Cir.1985); State v. Cockerham, 442 So.2d 1257 (La. App. 5 Cir.1983). See also State v. Brown, 497 So.2d 29 (La.App. 5 Cir.1986).

This court in State v. Boutte, 447 So.2d 1229 (La.App. 5 Cir.1984), stated:

In deciding whether to suppress identification testimony, we must balance the reliability of such identification against the corrupting influence of the suggestive identification itself. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). State v. Stewart, 389 So.2d 1321 (La.1980). There are five factors used to determine the reliability of an identification. These *274 are set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and have been followed by our courts. State v. Guillot, 353 So.2d 1005 (La. 1977); State v. Stewart, supra.

Here, the State produced an eyewitness, Janet Bain, who testified that the defendant and a co-perpetrator entered the bar where she worked on July 17, 1981, pointed a gun at her and a patron, removed the money within her control from the cash register, and then left the bar with the money. Ms. Bain testified that she was positive that the defendant was the person who committed the robbery. The defendant alleges that the evidence is insufficient because he presented several alibi witnesses whose testimony was not challenged at trial, thereby making credibility a key factor.

The conviction in this case obviously turned on credibility of witnesses and such credibility is legally and properly determined by the trier of fact. State v. Arnaud, 412 So.2d 1013 (La.1982). When the testimony is conflicting, the credibility of witnesses is a matter within the sound discretion of the trier of fact, in this case the 12-person jury. Factual determinations will not be disturbed on review unless clearly contrary to the evidence. State v. Richardson,

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Bluebook (online)
514 So. 2d 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hupp-lactapp-1987.