State v lewis case brief PDF

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State v. Lewis, 892 So. 2d 702, 2005 La. App. LEXIS 42, 39,263 (La.App. 2 Cir. 01/26/05) Procedural History: Defendant was convicted by jury trial of three counts of armed robbery, and she was sentenced to three concurrent 20-year terms at hard labor, without benefits. Defendant appealed. Louisiana Court of Appeals affirmed. Question Presented: Was LSA-R.S. 14:2(3), 14:64 properly applied so this case, in so that the BB pistol used by the defendant was a dangerous weapon, as required by convictions for armed robbery? Was LSA-R.S. 14:64, subd. B. properly applied, in so that the sentences of three concurrent terms of 20 years at hard labor, without benefits, for three counts of armed robbery was not constitutionally excessive, nor was it granted in vindictive nature for failing to accept any plea offers made by the state. Facts: On August 6, 2003 two masked armed robbers, one of which was determined to be the defendant, entered the Farmerville Highway branch of Community Trust Bank yelling for everyone to get down and open their registers. Defendant pointed the BB gun that she was holding at the victim and demanded that she open both of her teller drawers and filled a Wal-mart bag full of money. The defendant and witness tried to access the vault but were unable and left. The defendant fled by vehicle and was apprehended by police shortly thereafter. Rules: Armed robbery is defined, under La. R.S. 14:64, as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. A dangerous weapon is defined, under La. R.S. 14:2(3) as any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. Court referred to State v. Woods, 494 So.2d 1258 (La.App. 2d Cir.1986) holding that a BB or pellet gun can be considered a dangerous weapon. State v Woods considered perceived threat and highly charged atmospheres that could invite rescue and self-help. Holding: The court affirmed the trial court’s judgment.

Reasoning: The BB guns appeared to be real and functioning firearms. The defendant walked into the bank during business hours holding the BB gun, screaming, threatening, cursing and waving the gun creating the highly charged atmosphere that was included in the jury instructions that the defendant did not object to. Futhermore, this was an armed robbery of a bank which, by its very nature, created a “highly charged” atmosphere regardless of whether the pistols were loaded or workable because the danger created invited rescue and self-help. Using the Jackson standard, the court proved every element of the armed robbery charge beyond a reasonable doubt. The defendant took something belonging/in immediate control of another by use of force or intimidation. Defendant failed to timely file a motion to reconsider her sentence, and, therefore, is relegated to a claim that the sentence is constitutionally excessive. The State argues that the trial court particularized the sentence to Defendant and that it was not constitutionally excessive. The State also contends that Defendant’s argument that the trial court was vindictive in its sentencing is misplaced and baseless. Defendant could not properly compare her sentence to that of a co-defendant because the co-defendant cooperated with the state in prosecution of the defendant. The defendant also rejected the plea agreement after being advised of a potential sentence of up to 99 years. There is no evidence in the record, and the Defendant does not claim, that he was not free to accept or reject the State’s plea offers. The Defendant simply chose not to accept them, thereby taking the risk of a greater penalty upon conviction by a jury. Additionally, the trial judge heard more details of the Defendant’s actions during trial. His sentence was not, therefore, vindictive. Concurrences/Dissents: None. Main Takeaway: An object does not have to be loaded or functioning in order to be perceived as a deadly weapon. The court gives get weight to whether the victim perceived there to be dangerous or life-threatening. The key is whether the event created a “highly-charged” atmosphere because the danger created invited rescue and self-help....