STATE of Louisiana v. Johnny NELSON
No. KA-0782
Court of Appeal of Louisiana, Fourth Circuit
April 6, 1984
449 So.2d 161
Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for appellant.
Before LOBRANO, CIACCIO and WARD, JJ.
LOBRANO, Judge.
Appellant, Johnny R. Nelson, was charged by bill of information with the April 9, 1982, armed robbery1 of Raphael and Juan Suarez in violation of
FACTS:
On April 9, 1982, two men entered the auto parts store of Raphael and Juan Suarez, Uptown Auto Parts, Inc., located at the corner of Washington Avenue and Magazine Street. One of the men drew a gun, pointed it at the head of Juan Suarez, and demanded money. They were given $37.00 from the cash register (twenty-two one dollar bills, a five and a ten dollar bill) as well as approximately $1,300.00 in a bank bag that had been prepared for deposit. The men then threatened to shoot the victims if they followed them. They then fled the store with both brothers giving chase. Appellant turned and shot at Juan Suarez. Police Officers joined in the chase, sealed off the block and began searching the yards, one by one. During their search, the police heard a noise in the alleyway between 2705 and 2707 Chippewa St. They entered the alley, which was cluttered with garbage and abandoned appliances, and observed appellant hiding in a corner in the rear of the alleyway. He attempted to break away and climb a fence but the officers subdued him. He was led out of the alley and was identified by Raphael Suarez as the man who held the gun and robbed the store. The subsequent search for the gun proved to be fruitless. A search of appellant yielded $37.00 from his pocket, consisting of twenty-two ones, one five and a ten dollar bill all facing the same direction. Neither the bank bag with the $1,300.00 nor the other assailant were ever found.
SUFFICIENCY OF EVIDENCE
Although appellant does not allege as an assignment of error the sufficiency of the evidence to support his conviction, such will be reviewed in accordance with State v. Raymo, 419 So.2d 858 (La.1982).
In cases where direct evidence is used to prove the defendant‘s guilt, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state had proven every element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).
In order to support appellant‘s conviction for armed robbery, the state had to prove that he committed (1) a theft;3 (2) of anything of value; (3) from the person of or in the immediate control of another; (4) by use of force or intimidation; (5) while armed with a dangerous weapon.
In the instant case, $37.00 was taken from the cash register of the victims and $1,300.00 in a bank bag. The robbers used a gun during the robbery to force and intimidate the victims to hand over the money. Appellant was identified by the victims as the man who held the gun during the robbery and who shot at Juan Suarez during the ensuing chase. When apprehended, moments later, appellant was found with $37.00 in his pocket, consisting of the exact number and denominations of the cash taken from the register. Further the victims identified the cash because all the bills were facing the same way exactly as they were placed in the register previously.
Therefore, viewing the evidence in the light most favorable to the prosecution, the jury could have found that the State proved all the elements of armed robbery beyond a reasonable doubt. State v. Boelyn, 432 So.2d 260 (La.1983); State v. Bruins, 407 So.2d 685 (La.1981); State v. Tucker, 405 So.2d 506 (La.1981).
For the foregoing reasons, appellant‘s conviction is affirmed.
Appellant asserts one assignment of error:
The trial court erred in imposing an excessive sentence.
Appellant was sentenced to ninety-nine (99) years at hard labor without benefit of parole, probation, or suspension of sentence.
Appellant argues that in respect to the circumstances of his offense, the sentence imposed is excessive.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-prong. First, the record must show that the trial court took cognizance of the criteria set forth in
Article 894.1 sets forth eleven criteria to be used by the trial court in determining its sentence. It is not necessary that there be a full recitation by the trial court of the factors listed in
In the instant case, the trial court judge noted the crime for which appellant was convicted and the fact that appellant fired his gun at one of the victims and threatened to shoot both victims. He noted that at the time of this robbery, appellant was on probation from a Florida conviction for “assault to commit robbery“.
The judge determined that none of the mitigating factors listed in
Thus, while the trial judge did not enumerate every factor listed in
Having determined that the trial judge complied with
For the reasons assigned herein, appellant‘s conviction and sentence are affirmed.
AFFIRMED.