State Of Louisiana VS Ellis Paul Dardar
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISTANA GOURT OF APPEAL FIRST CT IT tCI N0 2012 KA 1517 STATE OF LOUISIANA VERSUS ELLIS PAUL DARDAR udgment rendered April 26 2013 Appealed from the 22 udicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 515181 1 Honorable Reginald T Badeaux III Judge i HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA COVINGTON LA AND KATHRYN W LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA CASTILLO HOLLi HERRLE ATTORNEY FOR MARRERO LA APPELLANT DEFENDANT ELLiS PAUL DARDAR BEFORE KUHN PETTIGREW AND McDONALD J PEITIGREW J Defendant Ellis Paul Dardar and a codefendant were charged by bifl of information with one count of attempted first degree robbery a violation of La R S 27 14 and 14 He pled not guilty and after a jury trial was found guilty as 1 64 charged The trial court denied defendant motions for new trial and post verdict s judgment of acquittal and sentenced him to three years at hard labor but it suspended the entirety of that sentence and placed defendant on three years probation with special conditions Defendant now appeals alleging two assignments of error For the following reasons we affirm defendant conviction and sentence s FACTS Shortly before 11 p on November 7 2011 Mutadad Rabee exited the 00 m Quick Check convenience store on Fremaux Avenue in Slidell to have a cigarette As manager of the store Rabee was preparing to close for the evening A coworker remained in the store to serve customers while Rabee took his break As Rabee smoked his cigarette he observed a female exit a Cadillac and walk into the store Soon thereafter he noticed a suspicious man peering in the store s direction from behind a nearby tree The man looked from around the tree at least three times and hid himself each time RabEe noticed that the man was wearing a red and black jacket and had a red ban around his face When Rabee called out to anna the man to ask him what he was doin the man fBed into a nearby wooded area Rabee instructed his eoworker to call khe police and he began to pursue the man Officer Brad Hoopes of the Slidell Police Department was responding to the call of a potential robbery at the Quick Check when he noticed a male walking next to the roadway on Broadmoor Street only a short distance from the stors In close pursuit Rabee identified the man to Officer Hoopes as the person he had seen near his store The codefendant is identified in the record as Marc Adam Kuchler The rewrd also reflects that Kuchler pled guilty as charged to one count of attempted first degree robbery on May 29 2012 He is not a party to the instant appeal 2 Officer Hoopes handcuffed the man identified at trial as defendant and informed him of his Miranda rights before questioraing him Defendant initiaily stated that he was Walic from his friend Mike house but ng s he could not provide Officer Hoopes with ny nPo about this friend including his ation rt phone number address or the n here i ca u physicai l he lived He eventually admitted to Officer Hoopes that he had been attempting to play a prank on the clerk at the convenience store and he admitted to dropping a jacket and bandanna in the nearby woods Defendant also informed Officer Hoopes that he had disposed of a pair of glasses and a BB handgun in the same area After a brief search investigating officers recovered alI of these items Defendant also informed Officer Hoopes that his juvenile sister and her husband were in a green Cadillac and that they were part of the plan to play a prank on the convenience store clerk Defendant his sister and his law in brother were all arrested at the scene ASSIGNMENT OF ERROR 1 In his first assignment of error defendant argues that the evidence presented at trial was insufficient to support his conviction for attempted first degree robbery Specificalfy he contends that the State failed to establish that he made an attempt to commit the robbery or that he was going to attempt to make the convenience store clerk believe that he was armed with a dangerous weapor A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend S XIV La Const art I 2 In reviewing claims challenging the sufFiciency of the evidence this court must consider whether afYer viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt See ackson v Virginia 443 U 3Q7 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 See also La Code Crim P art 821 State v Ordodi 2006 p 10 B 0207 La il 946 So 654 660 State v Mussall 523 So 1305 1308 06 29 2d 2d 1309 Z Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 3 La 1988 The 7ackson standar of review incorporated in Article 821 is an B objective standard for testing the everal evide both irect and circumstantial for ee reasonable doubt When analyzing circ evidence La R 15 provides mstantsai S 438 that the fact finder must be sa the ovEralf evidence excludes every reasonable isfied hypothesis of innocence State v Patorno 2001 p 5 App 1 Cir 6 2585 La 02 21 822 So 141 144 2d 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 La R 14 Any person who having a specific intent to S 64 A 1 commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended it shall me immaterial whether under the circumstances he would actually accomplish his purpose La R 14 Thus in order to prove an attempted first degree robbery S 27 A the State had to prove that defendant 1 had a specific intent to commit the crime of first degree robbery and 2 did an act for the purpose of and tending directly toward the commission of first degree robbery In the instant case the State introduced the testimony of Officer Hoopes who spoke e with defendant after his initial detadnment and a recorded statement ensively taken by Detective Daniel Seuzeneau Defendant detailed how he had come into town to paint a truck for a friend of his brother He became upset when he was paid law in only a fraction of the agreed price so he his brother and his sister upon law in discussed ways to make additional money They eventua9ly decided on a robbery Defendant described to Officer Hoopes and to Detective Seuzeneau how the three of them went to Academy Sports and bought the most realistic BB looking handgun that they could find DefendanYs sister changed into a provocative outfit at her house and they all then headed to the Quick Check DefendanYs sister was to enter the store approach the counter to buy something and send defendant a signal by scratching her head when the cash register drawer opened At that time defendant 4 would enter the store and pull a prank He repeatedly referred to his intended action as a even though he admitted during his taped interview with Detective prank Seuzeneau that he intended to take money from ihe eonvenience store Defendant did not testify at tr but on appeal he argues that he made no ai attempt to commit the robbery and that tne State ailed to prove that he was going to attempt to make the convenienc store clerk befieve that he was armed with a dangerous weapon When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1 Cir writ 2d denied 514 So 126 La 1987 2d In the instant case the jury clearly rejected the hypothesis of innocence presented by the defense Viewed in the light most favorable to the prosecution the evidence establishes that defendant upset by being shortchanged in pay for a legitimate job schemed with his sister and brother to commit a robbery law in To facilitate that robbery these individuals purchased the most realistic BB handgun they could find in order to looking intimidate their target Defendant euen admitted that they chose to target a cashier of Eastern Middle descent because of his thou that such a person would scare more hk easily Defendant and his co then formed a plan in which his sister would conspirators enter the store and signal to defendant when the cash register drawer was open so that he could enter the store at that time This plan advanced to the poir tthat defendant s sister actually did enter the store while defendant concealed himself behind a tree while obscuring his face The plan was only aborted when defendant was approached by Rabee and fled the scene In light of this evidence we cannot say that the jury verdict of guilty of s attempted first degree robbery was irrational under the facts and circumstances presented to it See Ordodi 2006 at 14 946 So at 662 The jury clearly 0207 15 2d believed that defendant had formed the specific intent to commit a first degree robbery and that he performed at least one act in furtherance of and tending toward the 5 commission of that offense A reviewing ourt errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the bas f an exc hypc of snnocence presented s lpatory thesis to and rationally r the jury State v Callovuay 2Q07 pp 1 La jected by 2306 2 09 21 3d 1 1 So 417 418 per curiam We also disagree with defendant contention that the State failed to prove that s he intended to make the convenience store clerk believe that he was armed with a dangerous weapon This contention is premised largely upon the fact that the store clerk never saw the BB handgun The second circuit addressed a similar factual situation in State v Frazier 010 37 La App 2 Cir 4 843 So 562 writ denied 2003 La 11 03 9 2d 1333 03 21 860 So 542 In Frazier the defendant was walking into a convenience store while 2d pulling a ski cap down over his face vhen he was spa by an officer who was also ted walking into the same convenience store Seeing the officer the defendant ran back in the direction from which he came and began to fiee He was eventually apprehended and found to be in possession of a handgun The second circuit affirmed his conviction for attempted armed robbery noting that iis immaterial that Frazier did not know t which cashier he was actually going to rob or that she did not yet see him Frazier 010 37 at 4 843 So at 564 Instead the courk noted that his act of walking toward 2d the store while armed and donning a ski cap were more than mere preparation and tended directly toward the commission of the crime of armed robbery Id Defendant here similar to the defendant in Frazier had already performed several acts in furtherance of and tending toward the commission of the crime of first degree robbery His purchase of a weapon which very nearly resembled an actual handgun was clearly sufficient to allow the jury to conclude circumstantially that he intended to use that item to intimidate the store cEerk into giving him money out of a reasonable fear that he was armed with a dangerous weapon Analogous ko Frazier the fact that the store clerk never actually saw that weapon is immaterial to defendant s guilt of attempted first degree robbery 6 Accordingly the evidence is sufficient tG support defendant conviction for s attempted first degree robbery This assignment of error is without merit ASSIGNMENT OF ERROR 2 In his second assignment of err4r defend a that khe trial caurt erred in nt gves including the language of La R 14 n its jury instru because of his S 27 1 tions contention that an unloaded BB gun is not a dangerous weapon Under La Code Crim P art 807 the State and the defendant shall have the right before argument to submit to the court special written charges for the jury A requested special charge shall be given by the court if it does not require qualification limitation or explanation and if it is wholiy correct and pertinent The language of La R 14 included as a jury instruction over S 27 1 B s defendant objection is as follows Mere preparation to commit a crime shall not be sufficient to constitute an attempt but lying in wait with a dangerous weapon with the intent to commit a crime or searching for the intended victim with a dangerous weapon with the intent to commit a crime shall be sufficient to constitute an attempt to commit the offense intended We note that the trial judge also defined dangerous weapon for the jury in accordance with La R 14 S 2 3 A On appeal defendant argues that thos jury instruction impermissibly lowered the burden of proof for the prosecution bec he was allowed ta be convicted of use attempted fi degree robbery for iying in wait with an unload BB gun which he rst d argues is not a dangerous weapon Ho we recognize that a BB or pellet gun has vever been hefd to be a weapon ian instrumentality which in the manner dangerous e used is calculated or likely to produce death or great bodily harm La R 14 S 2 3 A See State v Watson 397 So 1337 1342 La cert denied 454 U 903 102 2d S Ct S 410 70 LEd 222 1981 State v Hensley 2004 p 7 App 5 Cir 2d 617 La 05 1 3 900 So 1 7 writ denied 2005 La 6117 904 So 683 State 2d 0823 05 2d v Kelly 576 So 111 119 La App 2 Cir writ denied 580 So 666 La 1991 2d 2d We agree with the second circuit statement in State v Woods 494 So s 2d 1258 1261 La App 2 Cir 1986 wherein that court noted that the likelihood of 1262 7 serious harm from such an uniqaded BB gun ca come from the threat perceived by n victims and bystanders The wurt expfained tha t highly atmosphere of a he charged pistol robbery is canducive to violenee regardl of auhether the pistol is loaded or ss workable because the danger created invites rescue and self help Here we find that the trial court did not err or abuse its discretion in providing the jury with the State requested instr s ction If the jury indeed found defendant guilty of attempted first degree robbery on its perception that he lay in wait with a dangerous weapon that conclusion woula be supportable by the jurisprudence holding that even an unloaded BB gun can in certain circumstances be a dangerous weapon This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 8
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