State v. Phillips

130 So. 3d 416, 13 La.App. 5 Cir. 154, 2013 WL 6504414, 2013 La. App. LEXIS 2564
CourtLouisiana Court of Appeal
DecidedDecember 12, 2013
DocketNo. 13-KA-154
StatusPublished

This text of 130 So. 3d 416 (State v. Phillips) 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. Phillips, 130 So. 3d 416, 13 La.App. 5 Cir. 154, 2013 WL 6504414, 2013 La. App. LEXIS 2564 (La. Ct. App. 2013).

Opinion

STEPHEN J. WINDHORST, Judge.

| «Defendant, Melvin R. Phillips, was convicted of one count of armed robbery in violation of La. R.S. 14:64, and one count of attempted armed robbery in violation of La. R.S. 14:27:64. Defendant was sentenced to 50 years at hard labor on count one, and 24 years at hard labor on count two, to be served consecutively, without benefit of probation, parole, or suspension of sentence. After adjudication of defendant as a second felony offender, the trial court vacated defendant’s sentences and resentenced him to 75 years at hard labor on count one and 50 years at hard labor on count two, to be served consecutively without benefit of probation, parole or suspension of sentence. This appeal followed.

FACTS

At trial, the following was presented. On September 3, 2011, at approximately [419]*4191:00 a.m., Carlos Sosa was working at the Shell gas station on West Esplanade and Williams Boulevard when a man walked in and demanded money. Upon demanding the money, the man raised his t-shirt and displayed the handle of a gun he had secured in his belt. The man kept his hand on the gun for the duration of the robbery. Mr. Sosa complied with the man’s demands and gave him the money from the register, testifying that he was “nervous” and that he didn’t “play around.” Wanting more money, the man then told Mr. Sosa to open the safe and lift the drawer from the register. Mr. Sosa told him that he could not open the safe Land that there was no more money underneath the register drawer, so the man grabbed the money and left. Before leaving, the man instructed Mr. Sosa to stay inside. When the man left, Mr. Sosa called the police and described the man as wearing an army hat, fatigue jacket, white t-shirt, shorts, and tennis shoes.

The robbery was captured on the store’s surveillance cameras. A few days later, Mr. Sosa identified defendant from a photographic lineup as the man who robbed him.

On the same night, approximately at 4:45 a.m., Kenneth Klein was working at the Exxon gas station located at the corner of David Drive and Airline Highway when a man wearing a white t-shirt and camouflage pants entered the store, took out his wallet, and asked for a pack of cigarettes. After retrieving a pack of Kools cigarettes for the man, the man said to Mr. Klein “I’ll take the Kools and everything in the register, or I’ll blow your f* * *ing head off.” The man then displayed a gun which was underneath his shirt. Mr. Klein testified that the man put his hand on the grip of the gun, and that when he did this, he could see the'grip, the trigger guard, the hammer, and a portion of the barrel.1

Mr. Klein complied with the man’s demand and placed the money from the cash register on the counter. The man also demanded the money that was underneath the drawer of the register, but when Mr. Klein told him there was no more money the man stated “don’t look at me or I’ll blow your f* * *ing head off.” Mr. Klein testified that at this point he was “very concerned” and “scared” because he believed the man would follow through with his threats. Upon noticing that the man had taken his hand off his gun to reach for the money, Mr. Klein took the opportunity to take out the pistol he had in his front pocket and shoot the man |stwice. Mr. Klein testified that after he shot him the first time it looked as if the man was trying to reach for his gun, so he fired a second shot.

The man ran from the store and Mr. Klein followed him outside to obtain his license plate number. When he exited the store, it appeared to Mr. Klein that the man was getting out of his car. Believing that the man may decide to start shooting, Mr. Klein fired one more shot into the man’s car door in an attempt to keep the man inside his car, and to “mark the car so it would be identifiable.” The man drove away and Mr. Klein called the police to report the incident. Mr. Klein identified defendant in open court as the man who robbed him.

Detective David Canas of the Jefferson Parish Sheriffs Department investigated the armed robbery of Mr. Klein. Upon arrival at the scene, Detective Canas processed the wallet that defendant had inad[420]*420vertently left on the store counter. The wallet contained defendant’s social security card, his driver’s license, and other various cards containing his name.

Shortly after the Exxon robbery, Detective Randy Thibodeaux of the Jefferson Parish Sheriffs Office was called to the scene of a one car accident at 819 David Drive. The driver of the vehicle, later identified as defendant, had been shot and was transported from the scene to University Hospital by EMS. A bullet hole was observed on the driver’s side of his vehicle. A BB gun was removed from the front seat of the vehicle. Officers also recovered defendant’s VISA card, cell phone, a hat, and camouflage shorts from inside the vehicle. The clothing and hat recovered from defendant’s vehicle matched the description of the man as seen on the Shell station robbery video.

Detective Canas and Sergeant McGre-gor interviewed defendant after he was released from the hospital. During the interview, defendant stated that he went to the Exxon gas station to buy cigarettes and the clerk “shot him for no reason.” He |fifurther stated that the gun found in his vehicle belonged to his nephew. Defendant also denied being involved in the Shell station robbery.

SUFFICIENCY OF EVIDENCE and JURY INSTRUCTION

In his first counseled assignment of error, defendant alleges that the trial court erred in instructing the jury that a toy gun could be a dangerous weapon, and therefore the evidence was only sufficient to prove first degree robbery. In his third pro se assignment of error, the defendant alleges that the evidence was insufficient to prove armed robbery.

As in this case, when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).

On appeal, defendant only challenges the sufficiency of the evidence as it relates to his conviction for the armed robbery of Mr. Sosa. Specifically, he contends that the State failed to prove he was armed with a dangerous weapon.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cerit. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184. Both the direct and circumstantial evidence 17must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

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Bluebook (online)
130 So. 3d 416, 13 La.App. 5 Cir. 154, 2013 WL 6504414, 2013 La. App. LEXIS 2564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-phillips-lactapp-2013.