State v. Smith, 105 So. 3d 744

Defendant Mark Lewis Smith and Michael Taylor were charged with three armed robberies on July 29, 2009.
The jury found Smith guilty of armed robbery of Smithpeter and Masters and guilty of attempted armed robbery of Miller; Taylor was previously identified as accomplice.
Three victims testified the assailants demanded items and showed a handgun; all three said nothing was ultimately taken.
The court sentenced Smith to 66 years on each armed-robbery count and 30 years on attempted armed robbery, all concurrent, under the habitual-offender statute.
The state filed a Dorthey motion for downward departure from the statutory minimum, which the court denied.
On appeal, Smith challenges sufficiency of the evidence and the habitual-minimum sentence as excessive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a taking of anything of value for armed robbery?	Smith	Smith	Yes; any taking of value, even minimal, supports armed robbery
Did the evidence support two armed-robbery convictions given no property was taken as to Miller's scene?	State	Smith	Yes; taking may be brief and minimal; convictions upheld
Whether the sentence violated Dorthey/constitutional standards for downward departure from mandatory minimums	State	Smith	No; no exceptional circumstances proven to rebut presumption of constitutionality
Was the habitual-offender adjudication and the resulting minimum sentence constitutional	State	Smith	Yes; the minimum sentences sustain under the habitual-offender framework

State v. Neal, 275 So.2d 765 (La. 1973) (taking in armed robbery can be the slightest asportation of value)
State v. Victor, 368 So.2d 711 (La. 1979) (taking includes dominion-usurping control over property)
State v. Draughn, 950 So.2d 583 (La. 2007) (jury weighs whether anything of value was taken in robbery context)
State v. Carter, 712 So.2d 701 (La. App. 5th Cir. 1998) (arm rob elements; taking of property required)
State v. Johnson, 709 So.2d 672 (La. 1998) (downward departure from mandatory sentence rare; exceptional circumstances)
State v. Dorthey, 623 So.2d 1276 (La. 1993) (standard for correcting disproportionate habitual-minimum sentences)
State v. Baker, 776 So.2d 1212 (La. App. 5th Cir. 2000) (drug addiction not sufficient to rebut presumption of constitutionality)