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Ward v. State (09/09/2005) ap-2008
Ward v. State (09/09/2005) ap-2008
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAWRENCE DEWAYNE WARD,
)
) Court of
Appeals No. A-8666
Appellant,
)
Trial Court No. 3AN-02-6219 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2008 September 9, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Security personnel at the Anchorage J.C. Penney store
saw Lawrence DeWayne Ward conceal merchandise and leave the store
without paying. The personnel contacted Ward in a stairwell of
the Penneys parking garage that is connected to the store. While
attempting to retain the merchandise and flee, Ward struggled
with the Penneys security personnel, inflicting injury. For this
misconduct, Ward was convicted of second-degree robbery, second-
degree theft, and fourth-degree assault.1
In the superior court, Ward argued that his indictment
and conviction for second-degree robbery are flawed because his
conduct does not establish that crime. We reject Wards claim
that he did not take the merchandise from the presence and
control of the victim. We accept Wards claim that the superior
court improperly relied on a statutory aggravating factor.
Therefore, the superior court must reconsider Wards sentence
without relying on that factor.
Background facts and proceedings
Donald Roberts and Juanetta Ellis, loss prevention
officers at the J.C. Penney store in downtown Anchorage, saw Ward
pick up three items of clothing and conceal them on his person
while they watched him on a security camera. Ward left the main
portion of the store and crossed the skybridge that passes over
Sixth Avenue and connects with the stores parking garage.
Roberts left the security camera station to intercept Ward.
Roberts found Ward in the stairwell of the parking
garage. Roberts contacted Ward, identified himself, and
confronted Ward about the merchandise. Roberts told Ward to come
with him. Ward refused and pushed Roberts in order to get past
him. Roberts grabbed Ward and would not let him go. Ward shoved
Roberts, and Roberts fell down the stairs, backwards and head-
first, while still holding onto Ward, who was on top. Roberts
sustained injuries to his left knee and hip, both arms, right
hand, and his head.
Ellis arrived with another loss prevention officer,
Quinton Ellington. Ellis pulled Ward off Roberts, injuring her
shoulder in the process. Ward was handcuffed and the police
arrested him when they arrived.
The grand jury indicted Ward on one count of second-
degree robbery, one count of second-degree theft, and one count
of second-degree assault2 based on the injuries Roberts received
while struggling with Ward. The State filed an information
charging one count of fourth-degree assault3 based on the injury
Ellis received while pulling Ward off Roberts.
Ward moved to dismiss the robbery count, arguing that
the State presented insufficient evidence to the grand jury that
Ward had taken property from the immediate presence and control
of another because no one was present when Ward concealed the
stolen items, or when he left the store, and that Penneys
personnel saw Ward concealing items only on camera. Superior
Court Judge Larry D. Card denied Wards motion to dismiss. Ward
moved the court to reconsider, arguing that because Roberts was
not present or in control of the merchandise when Ward took it,
Ward did not take the merchandise from Roberts immediate presence
and control. Judge Card denied Wards motion to reconsider.
At the close of the States case, Ward moved for a
judgment of acquittal on the robbery charge and on the second-
degree assault charge. On the robbery charge, Ward repeated his
argument that he did not take the merchandise from the immediate
presence or control of another person. Judge Card denied Wards
motion for a judgment of acquittal.
The jury convicted Ward of second-degree robbery,
second-degree theft, and fourth-degree assault, a lesser included
offense of second-degree assault. The jury acquitted Ward of the
fourth-degree assault on Ellis.
At sentencing, Judge Card found three statutory
aggravating factors. Judge Card sentenced Ward to 10 years with
4 years suspended on the robbery conviction. On the theft
conviction, Judge Card sentenced Ward to a 3-year presumptive
term, to be served concurrently with the robbery. And on the
assault conviction, Judge Card sentenced Ward to 1 year, also to
be served concurrently.
Ward was properly charged and convicted of robbery
Ward argues that Judge Card erred in denying his motion
to dismiss and his motion for a judgment of acquittal because he
did not take property from the immediate presence and control of
a person, even though Penney employees Roberts and Ellis saw Ward
take the merchandise while watching Ward on the security camera.
Under AS 11.41.510(a)(1), a person commits second-degree robbery
if,
in the course of taking or attempting to take
property from the immediate presence and
control of another, the person uses or
threatens the immediate use of force upon any
person with intent to prevent or overcome
resistance to the taking of property or the
retention of the property after taking.
Essentially, Ward admits that he committed theft and
assault (but not robbery) because, when he took the merchandise,
no one from J.C. Penney was immediately present. Thus, Wards
case requires this court to decide whether his taking of property
was from the immediate presence and control of a store employee,
when the employee was out of Wards sight, but observing Ward via
security camera, and when Ward did not use force against an
employee until after Ward was contacted in the stairwell of the
garage.
Ward urges us to rely on Royal v. State,4 a case in
which the Florida Supreme Court ruled that in order to commit
robbery, a person must have used force prior to or while taking
property.5 The Royal court reversed the defendants conviction
because force was not used to retain stolen merchandise until
after the defendants had left the store from which they stole the
merchandise.6 The court emphasized that the taking was complete
once the thieves left the store.7 However, as the State points
out, the Florida Legislature amended Floridas robbery statute to
repeal the rule in Royal.8 The legislature repealed this rule by
replacing by force, violence, assault, or putting in fear with
the phrase when in the course of taking there is the use of
force, violence, assault, or putting in fear. The legislature
then defined the phrase in the course of the taking to include an
act that occurs either prior to, contemporaneous with, or
subsequent to the taking of the property and if it and the act of
taking constitute a continuous series of acts or events.9 Thus,
the amended robbery statute reads much like the Alaska robbery
statute. Royal is not persuasive authority for interpreting
Floridas current robbery statute, much less our robbery statute.
The question we must answer is whether the requirement
of immediate presence and control in our robbery statute
encompasses Wards misconduct. In the commentary to AS 11.41.510,
the legislature declared that the phrase immediate presence and
control was intended to be broad enough to cover takings directly
from the person as well as takings which, though not from the
person, pose identical dangers i.e., the taking of a pocketbook
placed on a park bench accomplished by threatening the owner who
is sitting on the bench.10 This declaration reflects the
legislatures policy decision to emphasize the physical danger
created by a robbery over its theft aspects.11 It is also clear
from the commentary that the legislature did not require that the
property be in physical contact with the victim.
This commentary reflects the prevailing construction of
the phrase in other jurisdictions. Courts generally hold that
property is in a victims immediate presence or control if the
property is close enough to the victim and sufficiently under his
control that, had the [victim] not been subjected to violence or
intimidation by the robber, he could have prevented the taking.12
Furthermore, even under the more restrictive
requirements of common-law robbery, property did not have to be
in physical contact with a victim. [W]hen a mans attention is
directed to the need of safeguarding certain property which
belongs to him and is so situated at the time that he could guard
it if not prevented by violence or deterred by fear[, such]
property is regarded as being under his personal protection and
the wrongful taking of it by violence or intimidation is robbery.13
We conclude from these authorities that Wards conduct
supported a charge and conviction for second-degree robbery.
Roberts, while monitoring Wards actions in the store on the
security camera, saw Ward conceal merchandise. Roberts
intercepted Ward in the stairwell of the J.C.Penney parking
garage where Ward used force with an intent to prevent or
overcome resistance to his retention of the merchandise. We
conclude that Judge Card properly denied the motion to dismiss
the indictment. We also conclude that sufficient evidence
supported the robbery conviction.14
Why we vacate Wards probationary sentence
The State alleged that four statutory aggravating
factors from AS 12.55.155 applied to Wards robbery conviction:
(c)(1) (a person, other than an accomplice, sustained physical
injury as a direct result of Wards conduct); (c)(6) (Wards
conduct created a risk of imminent physical injury to three or
more persons, other than accomplices); (c)(8) (Wards prior
criminal history includes conduct involving aggravated or
repeated instances of assaultive behavior); and (c)(9) (Ward knew
that the offense involved more than one victim).
Ward did not dispute aggravator (c)(8). Judge Card
found aggravators (c)(1), (c)(6), and (c)(8), but rejected
aggravator (c)(9). Because second-degree robbery is a class B
felony15 and Ward had two prior felony convictions, Ward was
subject to a presumptive 6-year prison term under the former
sentencing statute.16 Judge Card enhanced the presumptive
sentence by imposing an additional 4 suspended years of
imprisonment, giving greatest weight to aggravator (c)(1), giving
next-greatest weight to aggravator (c)(6), and giving least
weight to aggravator (c)(8). Thus, Judge Card imposed a 10-year
term with 4 years suspended for Wards robbery conviction.
Ward challenges his sentence as violating his Sixth
Amendment right to a jury trial as interpreted by the United
States Supreme Court in Blakely v. Washington.17 The Blakely
Court ruled that, other than a finding of a prior conviction, a
sentencing court cannot increase the statutory maximum sentence
based on facts not found by a jury beyond a reasonable doubt.18
But Ward did not object on this ground in the superior court, so
Ward would have to show plain error.19
We need not address Wards Blakely claim because we
conclude that the superior court mistakenly relied on aggravator
(c)(1) to enhance Wards sentence. Judge Card based his finding
of this aggravator on Wards assault on Roberts. But in Juneby v.
State,20 we held that a sentencing court should not find an
aggravating factor based on conduct for which the defendant is
being separately sentenced.21 Ward was separately convicted and
sentenced for his assault on Roberts. Thus, it was improper for
Judge Card to rely on Wards assault on Roberts to find that the
State had proven aggravator (c)(1). The superior court must
reconsider Wards sentence without reliance on this aggravating
factor.
Because the superior court must reconsider Wards
sentence in light of this error, we need not decide Wards other
claims regarding his sentence. We note that when a defendant is
sentenced for multiple offenses, the judge does not necessarily
individually fashion a sentence for each count but rather may
implement a sentencing plan considering all of the circumstances
and the defendants misconduct. When the superior court
reconsiders Wards sentence, the superior court may impose a
composite sentence appropriate for the totality of Wards conduct.22
Therefore, we vacate that portion of Wards sentence that imposed
suspended imprisonment.
Conclusion
Wards conviction is AFFIRMED. The superior court must
reconsider Wards sentence in light of this opinion. We do not
retain jurisdiction.
_______________________________
1 AS 11.41.510(a)(1), AS 11.46.130(a)(6), and AS
11.41.230(a)(1), respectively.
2 AS 11.41.510(a)(1), AS 11.46.130(a)(6), and AS
11.41.210(a)(2), respectively.
3 AS 11.41.230(a)(1).
4 490 So.2d 44 (Fla. 1986).
5 Id. at 46.
6 Id. at 45-46.
7 Id. at 46.
8 See Fonseca v. State, 547 So.2d 1032, 1033 (Fla. App. 1989).
9 Id. (quoting Florida Statutes, Section 812.13(3)(b)).
10 1978 Senate Journal 1399, Vol. 2, Supp. No. 47 (June 12th)
at 27.
11 See Whitescarver v. State, 962 P.2d 192, 195 (Alaska App.
1998).
12 3 Wayne R. LaFave, Substantive Criminal Law 20.3(c) at 179
(2d ed.2003).
13 Rollin M. Perkins & Ronald N. Boyce, Criminal Law at 346 (3d
ed. 1982).
14 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal
v. State, 657 P.2d 404, 405 (Alaska App. 1983).
15 AS 11.41.510(b).
16 AS 12.55.125(d)(2).
17 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
18 Blakely, 542 U.S. at ,124 S.Ct. at 2537.
19 See Haag v. State, P.3d , Alaska App. Op. No.
1966 at 16 (July 22, 2005).
20 641 P.2d 823 (Alaska App. 1982), modified and superseded on
other grounds, Juneby v. State, 665 P.2d 30 (Alaska App. 1983).
21 Juneby, 641 P.2d at 842.
22 See Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
