State v. Musgrove

774 So. 2d 1155, 2000 WL 1838982
CourtLouisiana Court of Appeal
DecidedDecember 15, 2000
Docket33,977-KA
StatusPublished
Cited by11 cases

This text of 774 So. 2d 1155 (State v. Musgrove) 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. Musgrove, 774 So. 2d 1155, 2000 WL 1838982 (La. Ct. App. 2000).

Opinion

774 So.2d 1155 (2000)

STATE of Louisiana, Appellee,
v.
Ronny MUSGROVE, Appellant.

No. 33,977-KA.

Court of Appeal of Louisiana, Second Circuit.

December 15, 2000.

*1157 Carey J. Ellis, III, Louisiana Appellate Project, Counsel for Appellant.

Ronny Musgrove, Appellant, pro se.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Brian L. King, Tommy J. Johnson, Assistant District Attorneys, Counsel for Appellee.

Before NORRIS, CARAWAY and DREW, JJ.

CARAWAY, J.

Defendant was tried by jury and convicted of attempted armed robbery and attempted first degree murder. Defendant pleaded guilty to a multiple offender bill as a second felony offender. He was sentenced to 99 years imprisonment at hard labor without benefit for the attempted armed robbery conviction, and to 50 years hard labor for attempted second degree murder. The sentences were ordered to run concurrently.

Facts and Procedural Background

Ahmad Powell was working at his audio store in the afternoon of March 5, 1999. According to Powell, the defendant, Ronny Musgrove, entered the store. It was the third time that day that Musgrove had been in the store. Musgrove pulled a small caliber revolver from his back pocket and put it to Powell's head. The defendant ordered Powell to "lay it down," cursed, and ordered him to open his safe, pointing to the cash register with his gun. When Powell reached for a gun behind the counter, Musgrove shot him in the back. As Powell fell to the floor, Musgrove ran out of the store.

In spite of being wounded, Powell made his way out of the store and called for help. The shopkeeper next door responded when he heard Powell and drove him to Louisiana State University Medical Center University Hospital ("LSUMC") in Powell's vehicle. The emergency room physician testified that Powell's gunshot wound *1158 to the left rib cage and abdomen was potentially life-threatening. The bullet ultimately lodged in the sacrum. Surgery to remove a blood clot and repair one of Powell's kidneys had to be performed.

Shreveport Police Department Investigator Anthony Rei ("Rei") responded to the attempted armed robbery call. He first contacted the victim while he was at LSUMC, and then worked the crime scene with other police investigators. A surveillance video tape from the store and other evidence was obtained. Eventually, the police received two tips identifying Musgrove as the perpetrator: the first after the surveillance videotape was broadcast on "Crime Stoppers," and the second from a former next-door-neighbor. The second tip identified Musgrove by his street name, "Sugar Bear."

Based on the police investigation, Rei assembled a six man photographic lineup and showed it to Powell six days after the crime. The victim immediately and positively identified Musgrove from the photographic lineup. Powell testified that he had observed the defendant four times before he identified him in the photographic lineup. He remembered the defendant's distinct eyes and nose and the tattoos on both forearms. Additionally, Powell positively identified the defendant at trial as the person who shot him. The store videotape, which corroborated Powell's testimony, was introduced into evidence and played for the jury.

Antonio Smith also testified at trial, positively identifying Musgrove as one and the same person he had observed in Powell's store earlier on the day the crime occurred. Smith stated that Powell was present at that time, and Smith's description of Musgrove's prior actions browsing in the store corroborated Powell's testimony.

Discussion

Sufficiency of Evidence

Through two assignments of error filed by Musgrove, pro se,[1] he urges that the state failed to prove all of the elements of the crime of attempted armed robbery and attempted second degree murder. Specifically, Musgrove asserts that there was insufficient evidence of his identity as the perpetrator of both crimes. He also contends that the use of a dangerous weapon was not proved because none was introduced into evidence linking him to the crimes. Additionally, the defendant argues that the victim's identification of him as the perpetrator from the photographic lineup was prejudicial. The record reflects that the defendant filed a motion for post-verdict judgment of acquittal which was denied by the trial court.

The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Clower, 30,745 (La.App.2d Cir.06/24/98), 715 So.2d 101. That standard, initially enunciated in Jackson and now legislatively embodied within La. C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La. 1983); State v. Perry, 612 So.2d 986 (La. App. 2d Cir.1993).

It is always the function of the jury to assess the credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993). Where a trier of fact has made a rational determination, an appellate court should not disturb *1159 it. Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Clower, supra; State v. Thomas, supra; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Maxie, 30,877 (La.App.2d Cir.8/19/98), 719 So.2d 104; State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

Under Jackson v. Virginia, supra, the state bears the burden of negating any reasonable probability of misidentification in cases where the defendant asserts he was not the perpetrator or he remains silent. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. However, positive identification by only one witness may be sufficient to support a defendant's conviction. State v. James, 33,262 (La.App.2d Cir.3/10/00), 754 So.2d 429; State v. Davis, 27,961 (La.App.2d Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990).

In order to convict a defendant of attempted armed robbery, the state must prove that the defendant, having the specific intent to commit armed robbery, did or omitted an act for the purpose of and tending directly toward the taking of anything of value belonging to another, from the person of another or in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:27 and 64; State v. Young, 27,237 (La.App.2d Cir.8/23/95), 660 So.2d 548.

Second degree murder is a killing that occurs when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1.

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774 So. 2d 1155, 2000 WL 1838982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-musgrove-lactapp-2000.