Lead Opinion
FACTS AND PROCEDURAL HISTORY
liThе facts giving rise to the charged offenses occurred on or about August 25, 2014, at approximately 4:30 a.m. at a Wal-greens location in Chalmette, Louisiana, At the time, three Walgreens employees and one customer were inside the store. Lan Nguyen, a service clerk at the Wal-greens, testified that she was working the overnight shift in the photo department when she heard the front door chime and observed an African American man, later identified as the defendant, Ben Amos, run towards her with a gun. Ms. Nguyen was speaking with customer, Jacob Schiro, when the defendant entered the store. Both Ms. Nguyen and Mr. Schiro testified that the defendant approached the two of them with his gun drawn, and ordered
As the defendant violently directed the victims down an aisle toward the rear of the store, they encountered another Wal-greens service clerk, Todd Robert. The defendant proceeded to point his gun at Mr. Robert and demand he proceed with 12them to the back of the store. At this time, the three victims observed a second gunman approach, point a gun, and echo the defendant’s orders.
The gunmen eventually directed all three victims through the back of the store to the employee break room. Ms. Nguyen and Mr. Robert testified that they were told to lie face down on the floor, at which time they were patted down. Mr. Robert removed a wallet from his pocket, and the gunmen took a cellphone from Ms. Nguyen. The testimony also indicates that the defendant and his accomplice forced Mr. Schiro on the ground and attempted to secure his hands with zip-ties.
While in the break room, the gunmen continuously demanded that the victims open the store’s safe. Ms. Nguyen and Mr. Robert advised the perpetrators that neither of the clerks had the combination to the safe. The gunmen proceeded to repeatedly threaten the lives of the victims if the safe was not opened. At some point during this exchange, a customer loudly broadcasted over the intercom and demanded to be checked out. Startled, upon healing this, the defendant ran out of the room, and never returned.
Moments later, the defendаnt’s accomplice fled through the back exit. Officers waiting outside the back entrance to the store were able to apprehend the defendant’s accomplice immediately. Other Of-fleers positioned in the parking lot witnessed the defendant fleeing from the front of the store and, after setting up a perimeter, were able to apprehend him behind a store located across the street from the Walgreens. Ms. Nguyen estimated that the victims were held captive in the break room for a total of forty-five minutes to an hour.
|sThe police were called by Chris Mum-phrey, the overnight store manager. Upon realizing that his store was being robbed, Mr. Mumphrey exited the store, unnoticed by the gunmen, and called 911. After the incident, Mr. Mumphrey provided the police with surveillance tapes, which were played for the jury.
Deputy Donald Shriver responded to a call from dispatch about an armed robbery in progress at the store. While questioning an individual in the parking lot, Deputy Driver witnessed another individual with dreadlocks run out of the front of the store.
Sergeant Cory Beebe also respоnded to the scene. Upon arrival, Sergeant Beebe entered the store through the front door. While positioned inside the store, he witnessed an individual, with dreadlocks and black clothing, flee through the front door. Sergeant Beebe identified the defendant as the individual he observed fleeing through the front entrance of the store. After
DOn April 8, 2014, the defendant was charged by bill of indictment with three counts, of aggravated kidnapping and three counts of armed robbery with a firearm, in violation of La. R.S. 14:44 and La. R.S. 14:64.8, respectively. The defendant appeared before .the trial court on April 14, 2015, and pled not guilty to the charges. Additionally, the defendant filed several pre-trial motions, including a motion to suppress statement, which was ultimately denied. The matter proceeded to trial on June 2, 2015, and a jury found the defendant guilty on all three counts of aggravated kidnapping, while finding him guilty of armed robbery with a firearm as to one count and guilty of attempted armed robbery with a firearm on the remaining two counts. •
The defendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence ior each count of aggravated kidnapping. Further, the defendant was sentenced to fifty years at hard labor without benefit of probation, parolе, or suspension of sentence for the armed robbery charge; and fifteen years at hard labor without benefit of probation, parole, or suspension of sentence as to the two counts of attempted armed robbery.
ASSIGNMENTS OF ERROR
1. The State failed to prove beyond a reasonable doubt that the defendant was guilty of aggravated kidnapping.
k2. There is- insufficient evidence to support the defendant’s convictions for armed robbery with a firearm and attempted armed robbery with a firearm.
3. The trial court imposed unconstitutionally excessive sentences.
4. The defendant received ineffeсtive ■ assistance, of counsel.
ERRORS PATENT
A review of the record reveals an errors patent with regard to the defendant’s sentences for armed robbery with a firearm and attempted armed robbery with a firearm. In the bill of indictment, the .State invoked the firearm sentence provision of La. R.S. 14:64:3, which provides1 that when a firearm is used in the commission of an armed robbery or attempted armed robbery, the “offender shall be imprisoned for an additional period of five years without benefit of’parole, probation, or suspension of sentence.”
The tidal court sentenced the defendant to fifty years at hard labor without benefit of probation, parole, or suspension of sentence for the one count of armed robbery with a firearm; and fifteen years without benefits for the two counts of attempted armed robbery with a firearm.
DISCUSSION
Standard of-Review
For the defendant’s first two assignments of error, he challenges the sufficiency of the evidence to support his convictions. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,
' A reviewing court, howеver, is not permitted to consider just the evidence most favorable to the prosecution, and must consider the record as. a whole. State v. Haynes, 2013-0323, pp. 7 (La.App. 4 Cir. 5/7/14),
When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which’ the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro,
Assignment of Error 1
As his first assignment of error, the defendant contends that the State failed to prove beyond a reasonable doubt that he was guilty of the three counts of aggravated kidnapping. La. R.S. 14:44, which defines aggravate kidnapping, provides, in pertinent part:
Aggravated kidnapping is the doing of any of the following acts with the intent thereby tо force the victim, or some other person, to give up anything of apparent | «present or prospective-value, •or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or present control:
1. The forcible seizing and carrying of any person from one place to another; or
2. The enticing or persuading of any person to go from one place to another; or
3. The imprisoning or forcible secreting of any person.
First, the defendant argues that there was insufficient evidence to show that he intended to extort anything of value from any of the three victims in order to secure their release. The Louisiana Supreme Court has held that the crucial question in determining whether an aggravated kidnapping has occurred is “whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.” State v. Arnold,
In the instant case, the record shows that the defendant used a gun to compel Ms. Nguyen, Mr. Schiro, and Mr. Robert to the back of the store, and ultimately into the employee break room, where the victims were ordered to lie face down with their hands behind their backs, while the defendant and his accomplice repeatedly threatened to kill them if they did not open the store’s safe. All three victims testified that they feared for their lives during the incident. In fact, the testimony shows that Ms. Nguyen was crying and wondering aloud as to who would take care of her kids if she were killed. Under these circumstances, it was | ¡¡certainly reasonable for the victims to have believed that they would not be safely released unless they complied with the defendant’s demands to open the safe. See State v. Westbrook, 2014-1055,
Secondly, the defendant contends that there is insufficient evidence to convict him of the aggravated kidnapping of Ms. Nguyen, Mr. Schiro, and Mr. Robert because they were never transferred from the Walgreens store to another location. See La. R.S. 14:44(1). For an aggravated kidnapping to have occurred under La. R.S. 14:44, the defendant must have performed only one of the three enumerated acts. Therefore, it is unnecessary for us to decide whether the forced movement of the victims from onе part of the store to another satisfied the first enumerated act under La. R.S. 14:44-that is, the “forcible seizing and carrying of any person from o.ne place to another.” Instead, we look to see whether the defendant’s actions were sufficient to show that, pursuant to La. R.S. 14:44(3), he imprisoned of forcibly secreted the victims inside the Walgreen’s break room.
This Court in State v. Williams, 2002-0260 (La.App. 4th Cir.3/12/03),
Similarly, the record, here, shows that all three victims were forced at gunpoint by the defendant and his accomplice to the back of the Walgreens and confined in the employee break room for a time that was estimated by one victim to be forty-five minutes to an hour. These actions are clearly sufficient to show, pursuant to La. R.S. 14:44(3), that the defendant imprisoned or forcible secreted the victims inside the Walgreen’s break room. See Westbrook, 2014-1055,
Because the defendant confined the victims to a room by gunpoint, sought to obtain money from the safe and threatened to kill the victims if his demands were not met, there is sufficient evidence to convict Defendant on all counts of aggravated kidnapping. Therefore, the defendant’s convictions on these counts are affirmed.
Assignment of Error 2
As his second assignment of error, the defendant contends that there is insufficient evidence to support his convictions for armed robbery with a firearm and attempted armed robbery with a firearm. In order to prove armed robbery with |ua firearm, the. State must prove beyond a reasonable doubt that the defendant (1) took “[something] of value belonging to another from the person of another or that is in the immediate control of another, by fоrce or intimidation, while armed with a dangerous weapon;” and (2) that the “dangerous weapon used in the commission of the crime of armed robbery is a firearm.” See La. R.S. 14:64(A); La. R.S. 14:64.3(A); see also, State v. Butler, 2014-1016, pp. 6-7 (La.App. 4 Cir. 2/11/15),
The defendant argues that there is insufficient evidence to support his convictions because the State cannot show that defendant had the intent to take anything from the victims. Armed robbery is a general intent crime. State v. Smith, 2007-2028, p. 10 (La.10/20/09),
The defendant was convicted of the armed robbery with a firearm of Ms. Nguyen, but contends that the State did not show that he took, or intended to take, anything from the victims within their immediate control. However, the record shows that the defendant and his accom-
With regard to Defendant’s convictions of attempted armed robbery with a firearm of Mr. Robert and Mr. Schiro, the defendant must have had specific intent to commit these crimes.
As. to Mr. Robert, the testimony indicates that after being escorted to. the break room by the gunmen and being forced to lie face down with his hands behind his back, he was patted down, and observed' the gunmen remove Ms. Nguyen’s cell phone from her person. | iaIn response, Mr. Robert removed his wallet and placed it on the floor in front of him. Nothing in the record indicates that the offenders fled the scene with the wallet; nevertheless, considering the circumstances, it was certainly reasonable for a juror to have found that the dеfendant had the intent to take something of value from Mr. Robert. Therefore, we affirm the defendant’s conviction on this count.
On the other hand, Mr. Schiro testified that he was not patted down by the gunmen and nothing was taken from him during the robbery. However, Mr. Schiro, like the other two victims, was herded at gun point into the employee break room, ordered to lie face-down with his hands behind his back, and was victim to the relentless verbal threats made by the gunmen. Additionally, the perpetrators attempted to secure Mr. Schiro’s extremities with zip-ties. ‘Though nothing was physically removed from Mr. Schiro’s person during the incident, Mr. Schiro witnessed the gunmen take Ms. Nguyen’s cell phone, and similarly saw Mr. Robert remove his wallet while prone on the break room floor. Under these circumstances, viewing the evidence in a light most favorable to the prosecution, a rational juror could absolutely conclude that the defendant had the requisite specific intent to take -something of value from Mr. Schiro as required to establish attempted armed robbery. Accordingly, we affirm the conviction as to the attempted armed robbery with a firearm of Mr. Schiro.
As his third assignment of error, the defendant argues that the trial court imposed an ■ unconstitutionally excessive sentence. At the outset, it is important to note that the defendant did not file 'a motion to reconsider following the trial court’s imposition of sentences. La. C.Cr.P. art. 881.1(E) (providing that the failure to make or file a motion to reconsider sеntence shall preclude the defendant from |uraising an objection to the sentence on appeal or review). However, the defendant did object to the sentences at the hearing, and this Court has found that a simple objection lodged after sentencing is sufficient to preserve the claim of constitutional excessiveness. See State v. Landfair, 2010-1693, p. 17 (La.App. 4 Cir. 7/20/11),
That said, this Opinion will not address the exeessiveness of the armed robbery or attempted armed robbery sentences. As discussed above, the sentences on these two charges were indeterminate because the trial court failed to specify if those sentencеs were imposed pursuant to the firearm enhancement provisions of La. R.S. 14:64.3. As a result, the sentences should be vacated and remanded for resen-tencing, and the assignment of error with regard to these sentences is moot. See State v. Burton, 2009-0826, p. 11 (La.App. 4 Cir. 7/14/10),
With regard to the remaining sentences, Article I, § 20 of' the Louisiana Constitution prohibits not only “cruel” and “unusual” punishment, but “excessive” punishment as well.
A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno,
|1fiIn the present case, the defendant argues that his sentences for the three counts of aggravated kidnapping were excessive because the judge did not consider any mitigating factors.
Assignment of Error k
Lastly, the defendant argues that he received ineffective assistance of counsel. In order to prevail on a claim for ineffective assistance of counsel, the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. State v. Brooks, 94-2438, p. 6 (La.10/16/95),
The defendant argues that his defense counsel was ineffective because: (1) counsel failed to raise his “intellectual deficiency]” and coercion defenses at trial; (2) counsel failed to challenge the waiver of his Miranda rights and his subsequent statement to police; (3) counsel failed to develop any mitigating evidence for his lissentencing hearing; and (4) counsel failed to file a motion to reconsider his sentences.
“As a general rule, claims for ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court where a full evidentiary hearing can be conducted if warranted.” State v. Howard, 1998-0064, p. 15 (La.4/23/99),
In claiming ineffective assistance of counsel at his sentencing hearing, the defendant argues that his counsel failed to develop mitigating evidence for sentencing because counsel (1) did not file a motion for consideration of a downward departure of the mandatory life sentence, and (2) failed to request a pre-sentencing report. However, the defendant has failed to demonstrate how, aside from uncorroborated testimony of his father concerning his education and mental limitations, he is entitled to an exception from the mandatory life sentence | ^provided by La. R.S. 14:44.
Lastly, the defendant claims ineffective assistance of counsel as to their failure tQ file a motion to reconsider his sentences and thereby not preserve for review the issue of excessive sentences,' However, as noted above, counsel objected to the sentence at the sentence hearing, thereby sufficiently preserving the issue for review.
Accordingly, we defer the defendant’s claims concerning counsel’s failure to raise certain defense and challenge his Miranda waiver to be reviewed upon application to post-conviction relief, and find no merit in Defendant’s remaining contentions that counsel’s performance was constitutionally deficient.
CONCLUSION
Considering the foregoing reasons, this court affirms the Defendant’s convictions and sentences for the three, counts of aggravated kidnapping. Further, this court affirms the Defendant’s conviction . of armed robbery with a firearm of Ms. Nguyen and attempted armеd robbery -with a firearm of Mr. Robert and Mr. Schiro. As for the sentences the defendant received for the armed robbery with a firearm and attempted armed; robbery with a firearm, this court finds that they are indeterminate, thus, we vacate and remand the case to trial court for resentencing 12nand/or clarification on these counts. Lastly, this court- denies the defendant’s claims for ineffective’assistance of counsel at sentencing and for their failure to file a motion to reconsider, and defers the remaining ineffective assistance claims to be more properly raised in an application for post-conviction relief. • •
AFFIRMED, REMAND FOR RESEN-TENCING
Notes
. All victims identified the defendant as an African American male with dreadlocks who was wearing a bandana on his face. Two of the three victims indicated that he was also wearing all black clothing.
. Prior to sentencing the defendant, the triál court denied motion for new-trial and post-verdict judgment of acquittal..
. The term of imprisonment for the commission of an armed robbery is hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). the term of imprisonment for attempted armed robbery is not more than forty-nine and one-half years at hard labor, without benefit of parole, probation, or suspension of sentence. La, R.S, 14:64(B); La. R.S. 14:27(D)(3).
. The second degree kidnapping element of “imprisoning or forcible secreting of any person” under La. R.S. 14:44.1(B)(3) is identical to the aggravated kidnapping element under La. R.S.14:44(3).
, An attempt occurs when the offender, “having the specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object.” La. R.S. 14:27(a).
. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. This "deliberate inclusion by the redactors of the Constitution of a prohibition against ‘excessive’ as well as cruel arid unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Hamdalla, 2012-1413, p. 14 (La.App. 4 Cir. 10/2/13),
. Pursuant to La. R.S. 14:44, the mandatory statutory punishment for a conviction of aggravated kidnapping is life imprisonment at hаrd labor without the benefit of parole, .probation, or suspension of sentence.
.The defendant argues that this is one of those rare circumstances where a downward departure from a mandatory life sentence is justified. See, State v. Johnson, 97-1906 (La.3/4/98),
. But see, State v. Hill, 40,023, p. 9 (La.App. 2 Cir. 9/21/05),
. The defendant’s father, Ben Smith, testified that Defendant was mentally and intellectually deficient; that the defendant’s uncle-accomplice had a negative influence over him; and that the defendant had four children.
. The Sixth Amendment of the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district where the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted, witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
. See supra, pp. 832-33.
. See supra, p. 831,
Concurrence in Part
concurs in part and dissents in part.
Id concur with the majority opinion in affirming- the defendant’s convictions on three counts of aggravated kidnapping, one count of armed robbery of Ms. Nguyen, and one count of attempted armed robbery of Mr. Robert. I also concur with the majority opinion in affirming the defendant’s sentence for three counts of aggravated kidnapping, and vacating and remanding the case to the trial court for resentencing and/or clarification of the sentences the defendant received for the armed robbery of Ms. Nguyen, and the attempted armed robbery of Mr. Robert.
"I respectfully dissent from the majority opinion with respect to defendant’s conviction for the attempted armed robbery of Mr. Schiro. I do not find that the element of.specific intent was proved beyond a reasonable doubt.
Attempted armed robbery is comprised of the following elements: (1) the specific intent to take something of value; (2) from another pérson; (3) using force or intimidation; (4) armed with a dangerous weapon; and (5) the perpetrator further does or omits an act for the purpose of and tending directly toward robbery. State v. Wix, 02-1493, p. 11 (La.App. 4 Cir. 1/15/03);
^Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to
In order to affirm a conviction, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational fаct-finder to conclude that every element of the crime was proved beyond a reasonable doubt, including specific intent. State v. Maxie, 93-2158, p. 11 (La.4/10/95);
Because intent is a state of mind, it is very unusual to have direct evidence of intent. State v. Campbell, 15-0017, p. 13 (La.App. 4 Cir. 6/24/15);
Here, there ⅛ no direct evidence of any specific intent by the defendant to rob Mr. Schiro. Although the majority opinion refers to “relentless verbal threats made by the gunmen” as proof of specific intent to rob Mr. Schiro, the record reflects that Ms. Nguyen, Mr. Robert, and Mr. Schiro all testified that the gunmen repеatedly ordered them to open the Walgreen’s safe or they would die.
, Circumstantial evidence, consisting of inferential reasoning, can support the element of specific intent beyond a reasonable doubt. State v. Davis, 06-1330, p. 10 (La.App. 4 Cir. 4/25/07);
Mr. Schiro testified that the defendant forced him into the employee break room, ordered him to lie face down on the floor with his hands behind his back, and attempted to secure Mr. Schiro’s extremities with zip ties. Mr. Schiro also testified that he watched the defendant pat down Ms. Nguyen and Mr. Robert, he watched the defendant take Ms. Nguyen’s cell phone, and watched Mr. Robert‘remove his wallet and place it on the floor in front of him. Mr. Schiro testified that the defendant did not pat him down, as he did with Ms. Nguyen and Mr. Robert, and did not take anything from him, as he did with Ms. Nguyen.
The majority opinion concludes that, under these circumstances, viewing the evidence in a light ■ most favorable to the prosecution, a rational'juror could “absolutely” conclude that the defendant" had the necessary intent to take something of value from Mr. Schiro.
I do not think that the trial testimony of Ms. Nguyen, Mr. Robert, and Mr. Schiro constitutes collateral facts and circumstances from which a reasonable jury could infer that the defendant intended to rob Mr. Schiro. The defendant did not demand anything of value from Mr. Schiro himself. The only threat- "made against Mr. Schiro was that' he open" the money safe or he would be-shot. Although'the fact that the defendant took Ms. Nguyen’s cell phone, and that Mr. Robert removed his wallet and placed it on the- floor, is sufficient evidence to support the defendant’s conviction of the armed robbery of Ms. Nguyen, and the attempted armed robbery of Mr. Robert, the mere fact that Mr. Schiro witnessed these acts against
I concur with the majority opinion in all other respects.