State Of Louisiana VS Daniel James Moore
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0017 STATE OF LOUISIANA VERSUS DANIEL JAMES MOORE Judgment Rendered May 7 2010 Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No 504062 The Honorable Timothy C Ellender Judge Presiding Joseph L Waitz Jr Counsel for Appellee District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma Louisiana Bertha M Hillman Counsel for DefendantAppellant Thibodaux Louisiana Daniel James Moore Daniel Moore Appellant Defendant In Proper Person Cottonport Louisiana BEFORE DOWNING GAIDRY AND McCLENDON JJ GAIDRY J Defendant Daniel James Moore was charged by bill of information with one count of first degree robbery Count One a violation of La R S 1 64 14 and one count of attempted first degree robbery Count Two a violation of La R 14 and 64 Defendant pled not guilty to both S 27 1 counts and proceeded to trial before a jury The jury determined defendant was guilty as charged on Count One and guilty of the responsive verdict of attempted simple robbery on Count Two The trial court sentenced defendant to serve twentytwo years at hard labor without benefit of probation parole or suspension of sentence on Count One and three years at hard labor on Count Two The trial court ordered the sentences to be served concurrently Defendant appeals citing the following as his sole assignment of error There was insufficient evidence to support the conviction of first degree robbery of Whitney National Bank None of the victims had a reasonable belief that the defendant was armed with a dangerous weapon We affirm defendant convictions and sentences s FACTS On January 23 2008 at approximately 9 a Brittany Solet was 30 m working as a teller at the drivethrough window of the Whitney National Bank located on St Charles Street in Houma Louisiana Crystal Gros another teller was assisting a customer at a lobby window While Gros was attending to that customer defendant entered the lobby Solet moved to the lobby window next to Gros and offered to assist defendant Defendant Count One involved the January 23 2008 robbery at Whitney National Bank and Count Two involved the January 21 2008 attempted armed robbery at Cato both in Houma s 2 Because defendant assignment of error only involves Count One the facts regarding s Count Two will be omitted from this opinion 2 responded by stating This is a robbery Solet noticed defendant had his hands in his pockets She asked if he had a bag because she was going to have to walk away from the counter to access her money drawer Defendant then looked at Gros and stated Well give me her money At that point Solet and defendant walked to Gros window The previous customer had s left and Solet whispered to Gros that a robbery was occurring Gros was confused so defendant stated This is a robbery just give me your money Gros testified she began giving defendant the loose bills in denominations of 1 5 10 and 20 bills but defendant then demanded Give me your large bills and no one gets hurt Gros then turned over larger denominations from another drawer and gave them to defendant Defendant stuffed the money under his jacket and walked out Neither Solet nor Gros ever saw a weapon After defendant left Solet activated the silent alarm Approximately five minutes later the police arrived The law enforcement officers from the Houma Police Department obtained still photographs of defendant from the s bank video surveillance system These photographs were used by officers in canvassing the businesses in the vicinity of the bank to determine s defendant whereabouts Around 1 p the police were contacted by the desk clerk at the 00 m Red Carpet Inn in close proximity to the bank The clerk reported that a person matching the description of the suspect was at the hotel in Room 262 Several officers of the Houma Police Department arrived at the Red Carpet Inn and made contact with defendant Defendant was arrested and transported to the police station In the meantime the police obtained and executed a search warrant for Room 262 K After executing the search warrant the police recovered 3 from underneath a pillow in Room 00 794 262 At the police station defendant waived his rights and admitted he robbed the bank Defendant also stated that he gave some of the money to a friend Santonio Bennelli to hold for him The police contacted Bennelli advised him of the situation and Bennelli reported to the police station with the money The police recovered sixteen 100 bills from Bennelli and more cash from defendant wallet Out of the 5the bank determined was s 00 745 stolen by defendant the police were able to recover and return 5 00 514 Defendant did not testify at trial SUFFICIENCY OF THE EVIDENCE In defendant sole assignment of error he contends the evidence is s insufficient to support his conviction of first degree robbery because none of the victims had a reasonable belief that defendant was armed with a dangerous weapon The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 See also La Crim P art 821 State v Mussall 523 So Code B 2d 1305 1308 09 La 1988 When analyzing circumstantial evidence La S 438 R 15 provides assuming every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard Ultimately all evidence both direct and circumstantial must be sufficient under Jackson to 0 satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Shanks 97 1885 pp 3 4 La App 1st Cir 6 715 98 29 2d So 157 159 Louisiana Revised Statutes 14 provides A 1 64 First degree robbery is 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 when the offender leads the victim to reasonably believe he is armed with a dangerous weapon Defendant asserts that the subjective belief enunciated by the statute excludes unreasonable panic reactions by the victim See State v Caples 2005 2517 p 5 La App 1st Cir 6 938 So 147 151 writ denied 06 9 2d 20062466 La 4 955 So 684 In support ofhis argument that the 07 27 2d State failed to prove the victims possessed a reasonable belief defendant was armed he points to the testimony by Gros which reflects she never indicated defendant was armed nor that defendant ever stated he was armed Rather defendant points out that Gros testified she merely assumed she might get hurt in interacting with defendant during the robbery Defendant also points to the discrepancies between Solet trial s testimony and prior statements to the police At trial Solet testified that defendant told her he was armed although on cross examination she acknowledged that her initial statement to Officer Brad Cadiere only stated that defendant demanded he be given money and nobody gets hurt Defendant argues that although Solet typed statement that she provided to s the police during the investigation reflected defendant indicated he was armed to both her and Gros at trial Solet could not recall if at any point during the incident defendant told Gros he was armed Nevertheless Solet s testimony was clear that defendant told her that he was armed On cross examination she stated I know he told me he was armed for sure 5 It is not necessary that a defendant actually be armed with a dangerous weapon to be convicted of first degree robbery Rather direct testimony by the victim that she believed the defendant was armed or circumstantial inferences arising from the victim immediate surrender of her personal s possessions in response to the defendant threats may support a conviction s for first degree robbery See State v Gaines 633 So 293 300 La App 2d 1st Cir 1993 writ denied 93 3164 La 3 634 So 839 94 11 2d Considering the evidence in the light most favorable to the prosecution we cannot say the State failed to satisfy this element of its burden of proof Although neither Gros nor Solet observed defendant with a dangerous weapon they both heard him make a reference to the prospect of someone getting hurt if his demands were not met Further the evidence reflects both Solet and Gros took immediate action in complying with s defendant demands This court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder determination s The testimony of the victim alone is sufficient to prove the elements of the offense The trier of fact may accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency State v Lofton 96 1429 p 5 La App 1st Cir 3 691 So 1365 1368 writ denied 971124 La 10 97 27 2d 97 17 701 So 1331 Although the jury was aware ofthe discrepancies in Solet 2d s statements regarding whether defendant indicated he was armed the jury s conclusion that Solet belief that defendant was armed based on her actions s was reasonable under the circumstances of this case This assignment of error is without merit 2 DECREE sconvictions and sentences are affirmed Defendant AFFIRMED
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