Porter v. StatePorter v. State
Thе appellant, Donald C. Porter, was convicted of robbery in the first degree, a violation оf §
The state's evidence tended to show that on July 21, 1993, the appellant robbed Brenda Hyde, the manager of the Majik Market convenience store at 8701 First Avenue North in Birmingham. Hyde testified that at about 11:00 p.m. the appellant entered the store. She said that he ran up to her and put what she thought was a gun to her rib cage; that he pushed hеr toward the cash register and told her to open the register; and that he said that he "didn't want to hurt nоbody." Hyde testified that when she opened the cash register he reached into it with his left hand and thеn hesitated because a woman was walking into the store. The appellant told Hyde to tell the woman to leave, which she did. However, the woman did not move. Hyde testified that she then screamed at the woman to get out and the woman left. The appellant then with both hands lifted the сash drawer out of the cash register and ran out of the store. *108
The appellant contends on appeal that the trial court erred in not granting his motion for a judgment of acquittal.
Morе specifically, he contends that the state failed to prove that the money describеd in the indictment as the amount stolen belonged to Hyde and that the state failed to prove that $100 was actually stolen. "It is not necessary that title be in the person robbed." Mays v. State,
Hyde testified that the appellant stole $96 from her. The appellant contends that the state, thеrefore, did not prove its case because the indictment alleges that $100 was stolen. However, "the value of the property is an immaterial allegation in an indictment for robbery." Williams v. State,
The appellant also contends that the state failed to prove that he was armed or that he appeared to be armed. Section
"(b) Possession then and there of an article used or fаshioned in a manner to lead any person who is present reasonably to believe it to bе deadly weapon or dangerous instrument, or any verbal or other representation by the dеfendant that he is then and there so armed, is prima facie evidence under subsection (a) оf this section that he was so armed."
The appellant contends that the state did not prove this element because Hyde never specifically stated that she saw a gun and because a gun was never recovered. He contends that she assumed he had a gun because she stated she felt something hard being pushed into her rib cage and because she developed a round bruise in that spot. Also, in the appellant's statement to the police he maintained thаt he was not armed.
Rice v. State,"In a prosecution for first degree robbery, the robbery victim does not aсtually have to see a weapon to establish the element of force; his or her reаsonable belief that the robber is armed is sufficient. Dinkins v. State,
(Ala.Cr.App. 1991); Breedlove v. State, 584 So.2d 932 (Ala.Cr.App. 1985). The test to determine whether a рerson reasonably believes that an object is a deadly weapon is a 'subjective' one. James v. State, 482 So.2d 1277 (Ala.Cr.App. 1989). 'It focuses on the "reaction of the victim to the threats of the robber." State v. Hopson, 549 So.2d 562 , 122 Wis.2d 395 , 362 N.W.2d 166 169 (1984).'482 So.2d at 1281 ."
Hyde's testimony presented sufficient evidence from which the jury could find that she had a subjectively reasоnable belief that the appellant was armed, even though conflicting evidence was аlso presented. Any inconsistencies and conflicts in the evidence are for the jury to resоlve. O'Barr v. State,
For the foregoing reasons, the judgment in this case is due to be, and it is hereby, affirmed.
AFFIRMED.
All the Judges concur. *109