State v. Russell

607 So. 2d 689, 1992 WL 281424
Louisiana Court of Appeal·Decided October 15, 1992·No. 91-KA-2264·Published·Cited by 3 cases

Opinion

607 So.2d 689 (1992)

STATE of Louisiana
v.
Walter L. RUSSELL and Sherman Sheridan.

No. 91-KA-2264.

Court of Appeal of Louisiana, Fourth Circuit.

October 15, 1992.

Harry Connick, Dist. Atty., Valerie Welz, Asst. Dist. Atty., New Orleans, for appellee.

M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellants.

*690 Before BARRY, PLOTKIN and LANDRIEU, JJ.

LANDRIEU, Judge.

Defendants, Walter L. Russell and Sherman Sheridan, were both charged by bill of information on February 28, 1991, with two counts of simple robbery, a violation of La.Rev.Stat.Ann. § 14:65 (West 1986). At trial on June 17 and 18, 1991, a six member jury found defendant Russell guilty of attempted simple robbery on count one and guilty of simple robbery on count two. Defendant Sheridan was found guilty of attempted simple robbery on both counts. On August 9, 1991, Russell was sentenced to three and one-half years at hard labor on count one and seven years at hard labor on count two, with credit for time served. These sentences are set to run concurrently but consecutively with his parole time. Sheridan was sentenced to three years at hard labor on both counts, with credit for time served; his sentences are to run concurrently.

Pursuant to a multiple bill hearing on October 2, 1991, against defendant Russell, the trial court vacated the original sentence imposed on count two and sentenced said defendant under the provisions of La.Rev. Stat.Ann. § 15:529.1 (West 1992), to serve seven years at hard labor with credit for time served. This sentence is to run concurrently with the sentence previously imposed on count one, but consecutively with defendant's parole obligation. On appeal, defendants raise four assignments of error for reversal of their convictions and sentences. We affirm.

FACTS

On December 28, 1990, at approximately 10:15 p.m., Andrea Dufour and Matthew Dyer together with a few relatives and friends arrived in the area of Carrollton Avenue and Canal Street. They went to a near-by lounge, Andy Capp's, to see a friend who worked there. Upon learning that their friend was not working, Dyer and Dufour walked back to their car to wait for the rest of their party who had walked from Andy Capp's to Canal Villere which is located at the corner of Carrollton Avenue and Canal Street.

While Dyer and Dufour were waiting in their car, which was parked in the Hibernia Bank parking lot across from Canal Villere, they were approached by two men. Identifying themselves as police officers, the two men pulled Dyer and Dufour out of the car.

Defendant Russell asked Matthew Dyer for his driver's license. Putting Dyer's license in his pocket, Russell proceeded to walk Dyer away from the car toward the opposite end of the parking lot. Concomitantly, co-defendant Sheridan frisked Andrea Dufour, sat her down in the front seat of the car, and questioned her about stolen property. Sheridan then took off Dufour's watch and bracelet. Next, Sheridan questioned her about the jewelry on her finger, specifically her senior class ring. This questioning alerted Dufour that something was wrong, and she began screaming. When Dufour began screaming, Dyer came running to her aid. At this time, Sheridan handed Russell the jewelry and both he and Russell started to run from the parking lot. Dyer immediately ran after the two men, catching Russell. As Russell and Dyer began to struggle, Dyer and Dufour's friends were returning from the store and rushed to their friends' aid. Russell managing to break loose, ran across the street throwing the jewelry on the ground. Dyer successfully caught Russell again and together with some other people, brought Russell back to the parking lot and held him there.

Upon leaving Andy Capp's, David Ducote, a patron of the bar, noticed the incident. Seeing Sheridan running away, Ducote, in his own vehicle, pursued Sheridan. Sheridan was located on the corner of Conti and Hennessey Streets, whereupon Ducote was able to get Sheridan into his car and return him to the scene of the incident.

At this point in time, the police had arrived on the scene and detained Russell. A search of the area located Dufour's jewelry and a search of Russell's person resulted in the retrieval of Dyer's driver's license. A description of Sheridan was next broadcast over the police radio.

*691 Within five to ten minutes of the robbery, Ducote returned to the scene with Sheridan. Upon exiting Ducote's vehicle, Sheridan was identified by both Dyer and Dufour as the other perpetrator. Following a full investigation, Russell and Sheridan were arrested for the robbery of Dyer and Dufour.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendants contend that the State did not produce sufficient evidence to sustain the convictions of simple robbery and attempted simple robbery.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La. 1987).

Under § 14:65(A), the essential elements necessary to sustain a conviction of simple robbery are:

(1) the taking of anything of value;
(2) belonging to another from the person of another or that is in the immediate control of another;
(3) by use of force or intimidation, but not armed with a dangerous weapon.

The attempt statute, La.Rev.Stat.Ann. § 14:27 (West 1986), reads in pertinent part as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Defendants argue that the State failed to prove any use of force or intimidation on the part of the defendants. Moreover, they contend that the victims voluntarily gave up their property believing the defendants to be police officers. Defendants suggest the evidence supports that a theft or attempted theft occurred in lieu of simple robbery.

The Louisiana Supreme Court, in State v. Thomas, 447 So.2d 1053, 1055 (La.1984), found that "[t]he offense of theft is a crime against property, whereas robbery is an offense against the person; the latter has a harsher penalty:"

"It is the increased risk of danger to human life caused when a theft is attempted in the face of the victim's opposition that caused the legislature to differentiate between robbery and mere theft." State v. Johnson, 411 So.2d 439, 441 (La.1982).

See also, State v. Mason, 403 So.2d 701 (La.1981).

Furthermore, the court explicitly held that:

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State v. Russell, 607 So. 2d 689, 1992 WL 281424 (La. Ct. App. 1992).

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