State v. Sippio

133 So. 3d 294, 2013 La.App. 4 Cir. 0206, 2014 WL 535745, 2014 La. App. LEXIS 225
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2014
DocketNo. 2013-KA-0206
StatusPublished
Cited by2 cases

This text of 133 So. 3d 294 (State v. Sippio) 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. Sippio, 133 So. 3d 294, 2013 La.App. 4 Cir. 0206, 2014 WL 535745, 2014 La. App. LEXIS 225 (La. Ct. App. 2014).

Opinion

EDWIN A. LOMBARD, Judge.

hThe defendant, Nathaniel Sippio, appeals his conviction for armed robbery, a violation of La.Rev.Stat. 14:64, raising two assignments of error: (1) the evidence is insufficient to support the conviction; and (2) he was denied a fair trial due to the State’s improper comments during its rebuttal argument. The State also appeals, arguing that the trial court erred in refusing to impose a greater sentence based on the use of a firearm in the armed robbery. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On July 25, 2011, Dwayne Russ was robbed in his apartment at 1716 South Saratoga Street in New Orleans, Louisiana. Mr. Russ, who was confined to a wheel chair at the time of the robbery, immediately called 911 and reported the robbery.

On November 2, 2011, by bill of information, the defendant was charged with one count of armed robbery using a firearm, a violation of La.Rev.Stat. 14:64.3. He was arraigned, pleaded not guilty, and at the subsequent conclusion of his two-day trial on July 24, 2012, was found guilty of the lesser offense of armed | ¡.robbery by a twelve-person jury. On August 15, 2012, the trial judge sentenced him to serve twelve years at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant’s Assignment of Error 1

In challenging the sufficiency of the evidence, the defendant does not dispute that an armed robbery occurred; he argues only that the State failed to show beyond a reasonable doubt that he was one of the perpetrators.

Applicable Law

In reviewing a sufficiency of the evidence claim, we must determine whether, 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 [296]*296So.2d 676, 678 (La.1984); see also La.Code Crim. Proc. art. 821 (“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty”).

Pursuant to La.Rev.Stat. 14:64, an “[ajrmed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, while armed with a dangerous weapon.” When, as in this case, the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Dorsey, 2010-0216, p. 43 (La.9/7/2011), 74 So.3d 603, 633 (citation omitted). Notably, a positive identification by a single witness is sufficient to support a conviction and, accordingly, the testimony of a victim or witness alone is usually sufficient to | ..¡support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. Id., 74 So.3d at 633. Therefore, “[i]n the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact-finder, is sufficient support for a requisite factual conclusion.” Id., pp. 43-44, 74 So.3d at 634 (citation omitted).

Relevant Facts

The following evidence was adduced at the defendant’s trial.

Detective Jonathan Bulliung of the New Orleans Police Department (NOPD) testi-fled that he arrived at Mr. Russ’s apartment shortly after the robbery. He met with Mr. Russ (who was confined to a wheelchair), Charles Berry (Mr. Russ’s brother and neighbor), as well as the officers who initially responded to the 911 call reporting the robbery. He saw a rifle and sweatshirt on the couch in Mr. Russ’s living room that Mr. Berry stated was abandoned by the gunman in the robbery.

Mr. Russ related to Detective Billiung that three men had broken into his apartment; one of them brandished a gun, the second man demanded his property, and the third simply watched. According to Mr. Russ, the first man held a gun to his head while the second rifled through his pockets. The three men left the apartment with Mr. Russ’s cell phone, approximately $80.00, some Xanax pills, and a pack of cigarettes. Mr. Russ did not specifically identify the robbers by name but stated that he had previously seen them in his neighborhood. Mr. Russ described the robber who searched him and did all the talking (subsequently identified as the defendant in this case) as a slim African-American male, twenty to twenty-three years old, with dreadlocks. He described the gunman as a fat | ¿African-American male in the same age range with short hair. Based on these descriptions and other unspecified information, Detective Bulli-ung concluded that the defendant (Sippio) was the likely perpetrator who physically searched Mr. Russ while Davonte Thirsty1 was the likely gunman. Accordingly, he subsequently compiled a photographic lineup including the defendant’s photograph and showed it separately to Mr. Russ and Mr. Berry separately at the Sixth District police station. Mr. Russ did not identify anyone in the lineup (although according [297]*297to Detective Billiung his “eyes widened” when he saw the defendant’s photograph), but Mr. Berry identified the defendant as one of the men he saw running from his brother’s house after the robbery.

Based on Mr. Berry’s identification, an arrest warrant was issued for the defendant. Two days later, he was arrested during an unrelated traffic stop and taken to the Sixth District police station where he was questioned by Detective Billiung. After being advised of his Miranda rights, the defendant first denied any knowledge of the robbery, insisting that he was with his girlfriend on the Westbank at the time it occurred. His girlfriend failed to confirm this alibi, denying to Detective Bulli-ung that she was with the defendant at the time of the robbery. Subsequently, the defendant admitted under further questioning by Detective Bulliung that he was in the area of the robbery during the pertinent time period but insisted he was not one of the perpetrators and had only heard of the incident when some men tried to sell him Xanax pills taken in the robbery. Detective Bulliung stated that no one had informed the defendant that Xa-nax pills had been stolen during the robbery.

|sThe defendant was then transported to Central Lockup and made a statement to the transporting officer that, when relayed to Detective Billiung, resulted in a compilation of a second photographic lineup’ that included Mr. Thirsty. Mr. Russ did not identify Mr. Thirsty but Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Hawkins
219 So. 3d 1133 (Louisiana Court of Appeal, 2017)
State v. Cushenberry
146 So. 3d 777 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
133 So. 3d 294, 2013 La.App. 4 Cir. 0206, 2014 WL 535745, 2014 La. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sippio-lactapp-2014.