Ingram v. StateIngram v. State
- Reporters:
- ,
- Before:
- Shaw, McMillan, Cobb, Baschab, Wise
SHAW, Judge.
The appellant, Kirby Leon Ingram, was convicted of robbery in the third degree, a violation of
On appeal, Ingram contends that the evidence was insufficient to sustain his conviction because, he says, the State failed to prove a prima facie case of third-degree robbery.
“‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.‘” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff‘d, 471 So.2d 493 (Ala.1985). “‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.‘” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O‘Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court‘s decision.‘” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“When reviewing a trial court‘s denial of a motion for a judgment of acquittal, this court must determine ‘whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty.‘” McCart v. State, 765 So.2d 21, 27 (Ala.Crim.App.1999), quoting Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993). See also Ex parte Fitkin, 781 So.2d 182, 183 (Ala.2000)(“The trial court‘s denial of a motion for a judgment of acquittal must be reviewed by determining whether there was legal evidence before the court at the time the motion was made from which, by fair inference, the defendant could be found guilty.“). Ingram moved for a judgment of acquittal at the close of the State‘s case; however, he did not renew the motion at the close of all the evidence or include this claim in his motion for a new trial. Therefore, we consider only the State‘s evidence in reviewing this claim.
Chris Gray, a member of the loss-prevention staff at a Wal-Mart discount department store in Prattville, testified that on February 14, 2000, he saw an individual, who was later identified as Ingram, pushing a shopping cart piled with clothes around the store. Gray testified that he
Both Gray and Seamon testified that they then escorted Ingram back into the store, and that as they approached the doors leading to the back area of the store, Ingram tried to flee.1 Both Gray and Seamon testified that they grabbed Ingram to stop him from fleeing, and that Ingram fought them, attempting to escape. Gray testified that he and Seamon were still struggling with Ingram and trying to subdue him when Daniel Fells, an officer with the Prattville Police Department at that time, arrived at the scene. Officer Fells testified that when he arrived, he saw Wal-Mart loss-prevention personnel struggling with Ingram, and he attempted to handcuff Ingram. Ingram kept struggling. After Ingram was finally subdued and handcuffed, Officer Fells conducted a pat-down search and discovered watches and a knife that were the property of Wal-Mart in Ingram‘s pants pockets.
Citing Ex parte Sapp, 497 So.2d 550 (Ala.1986), Ingram argues that he could not be convicted of robbery in the third degree because, he says, the theft was completed when he left the store without purchasing the watches and the knife. According to Ingram, because the only force he used was after the theft was completed, when he was being escorted to the rear of the store, “he neither used nor threatened any force against the Wal-Mart employees ‘with intent to compel acquiescence to the taking of or escaping with the property’ that he had stolen or had attempted to steal.” (Ingram‘s appellate brief at p. 12.)
Section
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance.”
“‘In the course of committing a theft’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”
“There should be no distinction between cases in which force is used to gain possession of another‘s property and cases in which possession is gained and
then force is used to retain possession.... In either situation the conduct is dangerous to human life. The expansion [by statute of the definition of common-law robbery], of course, is limited to threats and assaults to effect an immediate escape. A successful theft followed by use of force to resist apprehension later would not constitute robbery.”
In Ex parte Sapp, the appellant stole a jacket from a Wal-Mart discount department store and left the store. He returned to the store approximately 5 to 10 minutes later wearing the jacket. When he attempted to leave the store a second time, a security officer stopped him. After examining the jacket and determining that it belonged to Wal-Mart, the security officer informed the appellant that he would need to stay in the store until the police arrived. At that point, the appellant became hostile, grabbed the jacket, and attempted to leave the store. A struggle ensued, and the appellant eventually fled the scene. The Alabama Supreme Court held that the acts of the appellant did not constitute robbery, stating:
“The armed force ... was not used ‘in the course of committing’ the theft or ‘in immediate flight after the ... commission,’ but took place after the theft itself clearly had ceased. In short, the statutes applicable here have not transposed theft into robbery.”
Similarly, in Casher v. State, 469 So.2d 679 (Ala.Crim.App.1985), the appellant had stolen a carton of cigarettes from a convenience store, and was approached by the manager after he left the store. He voluntarily went back inside the store and the manager retrieved the carton of cigarettes from the appellant‘s person. When the manager told a store employee to telephone the police, the appellant pulled out a knife, cut the manager on the face, and fled. This Court held that the appellant‘s actions did not constitute robbery because the force used against the manager was not used “’ “with intent to compel acquiescence to the taking of or escaping with the property” that he had stolen or had attempted to steal’ ” but, rather, was used only after the stolen property had been returned to its owner. Casher, 469 So.2d at 680, quoting Harris v. State, 451 So.2d 406, 410 (Ala.Crim.App.1984).
However, in Buchannon v. State, 652 So.2d 799 (Ala.Crim.App.1994), this Court stated:
“We hold that as long as the flight, pursuit, and eventual apprehension of the accused are part of a continuous series of events directly precipitated by the accused‘s theft, then the accused‘s acts occur in ‘immediate flight after the ... commission’ of the theft. Compare Ex parte Campbell, 574 So.2d 713 (Ala.1990)(when no evidence established time of collision or time of burglary, the court held that prosecution produced insufficient evidence that accused was in ‘immediate flight’ from scene of burglary when he was involved in fatal automobile collision).”
652 So.2d at 801. In Gordon v. State, 552 So.2d 901 (Ala.Crim.App.1989), this Court found that the use of a pistol in a parking lot in an effort to elude capture by store personnel was in the course of committing the theft. In addition, in Fuqua v. State, 706 So.2d 817 (Ala.Crim.App.1997), this Court held that where the appellant fled a clothing store in a mall with stolen merchandise, eluded store personnel in the mall for approximately eight minutes until she was located in another store by mall security, pushed the security personnel and ran toward the exit of the mall where a further struggle took place, the appellant had committed a robbery because the
The present case is more akin to Buchannon, Gordon, and Fuqua, than it is to Ex parte Sapp and Casher. Viewed in a light most favorable to the State, the evidence showed that Ingram was approached immediately upon leaving the store; that, although he voluntarily reentered the store with Gray and Seamon, when they got near the back of the store, Ingram attempted to flee, and a struggle resulted; and that Ingram was still in possession of the stolen merchandise at the time of the struggle. Ingram‘s attempted flight, the struggle, and his eventual apprehension were all part of a continuous chain of events directly precipitated by Ingram‘s theft of the watches and knife. Thus, accepting as true all evidence introduced by the State, viewing that evidence in a light most favorable to the State, and affording the State all legitimate inferences therefrom, we find that the State presented sufficient evidence from which the jury could have reasonably concluded that Ingram‘s use of force, unlike in Ex parte Sapp and Casher, was used in an attempt to flee with the stolen merchandise and thus, was used with intent to compel acquiescence to the taking of or escaping with the stolen property.
Therefore, the trial court did not err in denying Ingram‘s motion for a judgment of acquittal at the close of the State‘s case.
Although we affirm Ingram‘s conviction, we must remand this case for resentencing because we find that Ingram‘s sentence was illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).
Ingram was convicted of third-degree robbery, a Class C felony, and was sentenced to imprisonment for a term of one year and one day. At trial, on direct examination, Ingram admitted that he was currently in prison for a third-degree-burglary conviction. In addition, on cross-examination, the following occurred:
“[Prosecutor]: You told [defense counsel on direct examination] that you‘re wearing white because you‘re in prison; is that correct?
“[Ingram]: That‘s right.
“[Prosecutor]: Do you have a couple of burglary thirds out of Talladega in 1983?
“[Ingram]: Yes I do.
“[Prosecutor]: Do you have a burglary second out of Talladega in [19]93?
“[Ingram]: Yes, sir.
“[Prosecutor]: A burglary third?
“[Ingram]: Yes, sir.
“[Prosecutor]: And you have a theft second out of Montgomery in May of 2001?
“[Ingram]: Yes, sir.”
(R. 60-61.) Thus, Ingram admitted at trial to at least five prior felony convictions.
Before trial, the State filed notice of its intent to invoke the Habitual Felony Offender Act,
“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
“(1) On conviction of a Class C felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”
(Emphasis added.) The Habitual Felony Offender Act is mandatory. See Gholston v. State, 620 So.2d 719, 724 (Ala.1993)(“The Habitual Felony Offender Act is mandatory and must be applied whenever a repeat offender with a prior felony conviction is convicted of another felony.“). See also Spooney v. State, 844 So.2d 615 (Ala.Crim.App.2001), and Wilson v. State, 727 So.2d 869 (Ala.Crim.App.1998)(both remanding for resentencing with proper application of the Habitual Felony Offender Act).
With five prior felony convictions, the minimum sentence Ingram could receive under
AFFIRMED AS TO CONVICTION; REMANDED FOR RESENTENCING.
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.
On Return to Remand
SHAW, Judge.
In an opinion issued on February 28, 2003, this Court affirmed Kirby Leon Ingram‘s conviction for third-degree robbery. However, we noticed that Ingram‘s sentence — imprisonment for a term of one year and one day — was invalid under
On April 4, 2003, the trial court conducted another sentencing hearing and resentenced Ingram to 15 years’ imprisonment;1 the trial court split that sentence pursuant to
Section
“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
“(1) On conviction of a Class C felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”
Thus, the 15-year sentence imposed by the trial court on return to remand is within the statutory range. Additionally, nothing
However,
“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best.”
(Emphasis added.) In Madden v. State, 864 So.2d 395 (Ala.Crim.App.2002), this Court stated:
“The plain language of [
§ 15-18-8 ] indicates that a trial court can split a sentence only if the defendant is placed on probation for a definite period following the confinement portion of the split sentence. Indeed, this Court has recognized that ‘[a]pplication of§ 15-18-8 necessitates suspension of that portion of the split sentence that is not actual confinement and placement of the convicted defendant on probation....’ Hughes v. State, 518 So.2d 890, 891 (Ala.Crim.App.1987). In addition, ‘in view of the history and text of Amendment 38 [of the Alabama Constitution of 1901, from which a trial court‘s power to suspend a sentence stems,] the power to suspend a sentence ... can only be exercised when coupled with an order for probation.’ Holman v. State, 43 Ala.App. 509, 513, 193 So.2d 770, 773 (1966)(emphasis added [in Madden]).”
864 So.2d at 398. The trial court did not order Ingram to serve a definite period of probation following the confinement portion of his sentence. Therefore, although the 15-year sentence is valid, the execution of that sentence, i.e., split to serve one year and one day in prison with no probationary term, is illegal.
Accordingly, we remand this case for the trial court to conduct another sentencing hearing and to reconsider the execution of Ingram‘s 15-year sentence. As we have previously stated, pursuant to
Based on the foregoing, we remand this case to the trial court for resentencing. Due return shall be filed with this Court no later than 42 days from the date of this opinion and shall include a transcript of the proceedings conducted on remand.
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.