State v. Thomas

Defendant, Reginald Thomas, was convicted by a jury of two counts of simple robbery. After being adjudicated a fourth offender under LSA-R.S. 15:529.1, he was sentenced to life imprisonment at hard labor. On appeal, defendant makes two arguments for reversal of his convictions and sentence.

FACTS

On the night of April 4, 1981, Richard Barber, age eighteen, and his girlfriend, Laurie Dawson, age sixteen, were driving on Pontchartrain Boulevard in New Orleans when a red Monte Carlo behind them began flashing its bright lights. Barber slowed down and defendant Thomas pulled along side, turned on his inside lights, showed a badge, and motioned for Barber to pull over. Believing Thomas to be a police officer, Barber stopped his pickup truck. Defendant, in street clothes, opened the door on the passenger side where Laurie Dawson was seated and told the couple they would be in serious trouble if they had any drugs in the truck. Defendant Thomas ordered Barber to look away while he began rummaging through the truck’s cab and Dawson’s purse. Barber was then instructed to stand behind the truck while Thomas completed his search. Afterward, Barber was told to drive away without looking back and Barber complied.

Dawson discovered $30 was missing from her purse. ' Barber’s money clip, containing $150, was also missing from the dashboard tray. The police were called when Barber reached his home about thirty minutes later. Both Barber and Dawson identified Thomas as the man who had stopped them and searched the truck.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends there is insufficient evidence of “force or intimidation” to justify a verdict of simple robbery. LSA-R.S. 14:65 provides:

“A. Simple 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, but not armed with a dangerous weapon.

“B. Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.”

Reviewing the evidence in the light most favorable to the prosecution, the question is whether a rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The 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 at 441 (La., 1982).

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

The property taken in a robbery must be sufficiently under the victim’s control that, absent violence or intimidation, the victim could have prevented the taking. State v. Mason, supra; State v. Refuge, 300 So.2d 489 (La., 1974); State v. Verret, 174 La. 1059, 142 So. 688 (1932); LaFave & Scott, Criminal Law (Hornbook, ed. 1972), § 94, p. 696. If a defendant has taken advantage of a situation which resulted from the prior use of force or intimidation, most jurisdictions hold that a robbery has occurred. LaFave & Scott, supra, p. 702; State v. Covington, 169 La. 939, 126 So. 431 (1930).

Dawson testified that defendant “grabbed” her arm (Tr. 23) and she was scared. (Tr. 9-10) Barber said that he pulled over because he thought defendant was a police officer and he was “scared, worried ’cause I didn’t know what he was wanting me for.” (Tr. 30) Also, Barber “was worried about my girlfriend on the side of me.” (Tr. 25) Dawson thought Thomas was a police officer “until he searched through everything”. (Tr. 9) When asked why he did not immediately call the police, Barber responded, “I was scared. I didn’t know what to do. And, he told me to get in the truck and just go, don’t look back.” (Tr. 35) Barber said he was afraid all the way home.

Victims Barber and Dawson were clearly intimidated: first, by defendant’s badge; second, by his threat of trouble; and third, by his general demeanor and aura of authority. Thomas took their money under the guise of searching the vehicle for drugs, an action which might be expected of a police officer. The jury reasonably concluded that defendant made the stop, conducted the search, and misappropriated the money by use of intimidation. The face-to-face confrontation involved the increased risk of bodily harm which distinguishes robbery from theft.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

Defendant contends his sentence is excessive.

Defendant was sentenced to life imprisonment with hard labor under the habitual offender statute as a fourth felony offender. LSA-R.S. 15:529.1 A(3)(a) and (b) provide:

“(3) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then,

“(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or

“(b) If the fourth or subsequent felony and two of the prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.”

Defendant’s prior ■ convictions were for crimes other than those enumerated in sub-paragraph (b): (1) theft and receiving stolen things, LSA-R.S. 14:67 and LSA-R.S. 14:69; (2) attempted simple burglary, LSA-R.S. 14:62 and LSA-R.S. 14:27; and (3) theft, LSA-R.S. 14:67. None of these offenses carry a possible sentence in excess of twelve years. Therefore, defendant, as a fourth offender, could have been sentenced from a minimum of twenty years to a maximum of life imprisonment and he received the maximum.

Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. State v. Sepulvado, 367 So.2d 762 (La., 1979). A sentence is unconstitutionally excessive when it is grossly out of proportion to the severity of the offense or inflicts unnecessary'pain and suffering. State v. Reed, 409 So.2d 266 (La., 1982). A sentence within the statutory range may be excessive when considered in light of the individual defendant and the circumstances of his crime. State v. Quebedeaux, 424 So.2d 1009 (La., 1982); State v. Grey, 408 So.2d 1239 (La., 1982); State v. Sepulvado, supra.

At defendant’s third felony sentencing in 1976, the same trial judge presided. The trial court was well acquainted with the defendant. Defendant received a sentence of eight years at hard labor because of his refusal to reform and was warned that a fourth conviction would subject him to life imprisonment. Police suspected defendant of being the offender in the robbery of Barber and Dawson when he was apprehended driving a stolen red Monte Carlo. In sentencing defendant to life imprisonment, the court expressed a desire to protect society from future criminal activity on the part of Thomas, obviously a legitimate concern.

While the guidelines in LSA-C. Cr.P. art. 894.1 must be considered, it is not necessary for every factor in that article to be enumerated. State v. Bradley, 414 So.2d 724 (La., 1982). The trial court is given wide discretion in imposing sentences, which will not be disturbed absent a manifest abuse of discretion. State v. Green, 443 So.2d 531 (La., 1983); State v. Jones, 381 So.2d 416 (La., 1980). There was no manifest abuse of discretion in the sentence imposed. See State v. Siegel, 376 So.2d 492 (La., 1979); State v. Bonanno, 384 So.2d 355 (La., 1980).

These assignments lack merit.

DECREE

For the foregoing reasons, the convictions for simple robbery and the sentence as an habitual offender of defendant, Reginald Thomas, are affirmed.

AFFIRMED.

BLANCHE, J., dissents and assigns reasons.

. Barber had been paid that day.