State v. Simpson

699 So. 2d 477, 1997 La. App. LEXIS 2070, 1997 WL 471973
CourtLouisiana Court of Appeal
DecidedAugust 20, 1997
DocketNo. 29538-KA
StatusPublished
Cited by1 cases

This text of 699 So. 2d 477 (State v. Simpson) 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. Simpson, 699 So. 2d 477, 1997 La. App. LEXIS 2070, 1997 WL 471973 (La. Ct. App. 1997).

Opinion

JiWILLIAMS, Judge.

The defendant, Allen Simpson, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. A jury found the defendant guilty as charged. Subsequently, the defendant filed motions for a post-verdict judgment of acquittal and a new trial, both of which the trial court denied. The trial court sentenced defendant to serve thirty years imprisonment at hard labor and denied his timely motion to reconsider sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

On September 22, 1994, at approximately 11:00 p.m., a group of four persons, one of whom was the defendant, entered the “Patriot C” convenience store in Bossier City. The members of the group purchased several items and left the store, but the defendant returned shortly thereafter. A witness in the parking lot testified that the defendant had a handgun when he went back into the store.

The defendant walked to the counter and asked the clerk, Frank Walker, III, to give him a cigarette. When Walker told the defendant that cigarettes cost fifteen cents each, the defendant gave the cigarette back to Walker. At trial, Walker testified as follows:

[The defendant said] ‘What would you do if you was to be robbed?’ And I told him I wouldn’t be worried about it because everything would be videotaped. And he said ‘Okay, then, well, give me all your money.’ And at the time he pulled the gun out and pointed it at me.

Walker pushed the panic alarm button and then gave the defendant more than $100 in cash from the register. The defendant left the store with the money.

Walker went out the back door of the store and spotted the defendant. When the defendant saw Walker, he pointed his gun at the clerk and said “You come any closer, I’ll shoot you.” Walker jumped behind a nearby dumpster, and the defendant got into his companions’ waiting car and fled.

^Walker flagged a passing Bossier Parish School Board security officer. The security [479]*479officer followed the defendant’s car. After a brief chase, the getaway car stopped and the defendant’s three companions fled the scene. The defendant remained with the vehicle and was arrested shortly thereafter, standing outside the car. The arresting officer found $119 near the car and a derringer under the car in the area where the defendant had been standing.

The defendant, who had prior convictions for simple robbery and simple burglary, admitted that he had gone back into the store after his companions had left the store, but claimed that he was unarmed. He testified that the clerk looked at him “all crazy” and handed him money from the cash register. The defendant was unable to explain why the clerk had given him the money or why he had taken it, although he testified that two of his companions told him that they had joked with the clerk about robbing the store.

Although the store’s video camera was not operational during the robbery, the witnesses positively identified the defendant as the robber. A unanimous jury convicted the defendant as charged.

After his conviction, defendant filed a motion for post-verdict judgment of acquittal, urging that he was unarmed during these events, and a motion for a new trial which challenged the sufficiency of the evidence and the denial of a challenge for cause during voir dire. Both motions were denied. Subsequently, the trial court sentenced, him to serve thirty years imprisonment at hard tabor without benefit of parole, probation or suspension of sentence. The defendant filed a motion to reconsider sentence urging that his punishment was-excessive. This motion was also denied. The defendant appeals his conviction and sentence.

DISCUSSION

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the ^sufficiency of the-evidence. The reason for reviewing sufficiency first is that the accused may be enti-tied to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the.light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992).

Sufficiency of the Evidence (Assignments of Error 2 and 3)

The defendant contends that this court should reduce the verdict of armed robbery to simple robbery because the evidence was insufficient to prove that he was armed during the robbery. In support of his argument, the defendant cites his own testimony asserting that he was unarmed.

Frank Walker testified that the defendant was armed with a gun during the robbery. The prosecutor showed Walker the derringer recovered when the defendant was arrested, and Walker identified the weapon as the one Simpson had pointed at him. Similarly, the witness who saw the defendant enter the store described the kind of gun that Simpson had as “a little bitty .38 or .32.”

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 5(C); State v. Demery, 28,396 (La.App.2d Cir. 08/21/96), 679 So.2d 518, 523. A reviewing court -accords great deference-to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied 499 So.2d 83 (La.1987).

The defendant has failed to show why this court should modify the armed robbery verdict. The only evidence presented at trial to show that the defendant was unarmed during the robbery was the defendant’s own self-serving testimony. LThe jury’s decision to credit the testimony of the victim and another witness over that of the defendant was founded in a credibility determination. We do not find any reason to disturb this ruling on appeal.

[480]*480Viewing the entirety of the evidence in the light most favorable to the prosecution, the jury could have reasonably concluded that the defendant committed the armed robbery with which he was charged. These assignments of error are without merit.

Excessive Sentence (Assignments of Error 1 and 5)

The defendant complains that his sentence of thirty years imprisonment at hard labor without benefit of probation, parole or suspension of sentence is constitutionally excessive.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied 521 So.2d 1143 (La.1988).

An appellate court uses a two-step process in reviewing claims of excessive sentence. First, the record must show adequate consideration of the criteria set forth in LSA-C.Cr.P. Art. 894.1. State v. Smith, 433 So.2d 688 (La.1983).

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State v. Johnson
821 So. 2d 652 (Louisiana Court of Appeal, 2002)

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Bluebook (online)
699 So. 2d 477, 1997 La. App. LEXIS 2070, 1997 WL 471973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simpson-lactapp-1997.