Porter v. StatePorter v. State
Thе appellant, Donald C. Porter, was convicted of robbery in the first degree, a violatiоn of
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 tо hurt nobody." Hyde testified that when she opened the cash register he reached into it with his left hаnd and then 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 thеn with both hands lifted the cash 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 а judgment of acquittal.
More specifically, he contends that the state failed to prоve that the money described 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 frоm her. The appellant contends that the state, therefore, did not prove its case because the indictment alleges that $100 was stolen. However, "the value of the proрerty 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.
"(b) Possession then and there of an article used or fashioned in a mаnner to lead any person who is present reasonably to believe it to be deadly wеapon or dangerous instrument, or any verbal or other representation by the defendаnt that he is then and there so armed, is prima facie evidence under subsection (a) of 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 develоped a round bruise in that spot. Also, in the appellant's statement to the police hе maintained that he was not armed.
Rice v. State,"In a prosecution for first degree robbery, the robbery viсtim does not actually have to see a weapon to establish the element of fоrce; his or her reasonable 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 person 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 tо 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 cоuld find that she had a subjectively reasonable belief that the appellant was armed, еven though conflicting evidence was also presented. Any inconsistencies and confliсts in the evidence are for the jury to resolve. 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