Opinion
Court of Appeals No. A-10734.
November 16, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge, Trial Court No. 3AN-05-12292 Cr.
David K. Allen, Sechelt, British Columbia, for the Appellant. John Skidmore, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Dwayne Eugene West was convicted of several counts of first-degree robbery and third-degree assault. On appeal, he argues that there was insufficient evidence to support his conviction for one of these counts — the count charging West with first-degree robbery of Richard Blackburn. As we explain here, we conclude that the evidence was sufficient to support the jury's verdict, and we therefore affirm West's conviction.
Underlying facts
When we review a criminal conviction to see if the evidence is legally sufficient to support it, we assess the evidence presented at trial, as well as all reasonable inferences that can be drawn from that evidence, in the light most favorable to upholding the verdict. Accordingly, we now describe the evidence presented at West's trial in that light.
Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009).
In the early morning hours of December 24, 2005, a Christmas party abruptly ended when three men entered and robbed the partygoers at gunpoint. The three men were Dwayne West, Marcus Stone, and Jace Bohn.
West, also known as "Fifty", pulled out a gun and ordered the approximately twenty guests to "get down". West's companion, Stone, was also carrying a gun. The partygoers were told to empty their pockets, and then West and his companions collected the partygoers' purses, wallets, and cell phones in a box.
Kathryn Grediagin, one of the robbed partygoers, testified that West specifically ordered her to "empty your mother fuckin' pockets". West also told her to "get on the floor", and then he pushed her down and walked on her. Grediagin testified that "[West] actually stomped on me so hard that my leather belt broke in half."
Other partygoers were also walked on, or were punched, or were threatened with razor blades. As the three intruders robbed the partygoers, West and Stone waved their guns around and threatened to shoot everyone. After the men left, the partygoers heard gunshots and the sound of glass breaking.
Richard Blackburn, one of the partygoers, did not testify at West's trial. However, partygoer Michael Pastana testified that he came to the party with Blackburn. During the robbery, Blackburn was in the kitchen. Pastana testified that he saw West swinging his gun around in the kitchen. Pastana also witnessed West's companion, Bohn, threaten Blackburn by holding a razor blade to Blackburn's face. Bohn asked Blackburn, "You want me to make you an example?"
Edwin Busby, who left with the three men but claimed not to have participated in the robbery, testified that he and the three robbers drove to another residence, where the robbers divided the stolen property.
Anchorage police officers responded to a report of a robbery with shots fired. In the course of their investigation, they discovered shoe prints in the snow outside the residence. Using a police dog, the police tracked the prints to a nearby residence. West was found in the upstairs bedroom of this residence.
When officers searched the residence, they found identification documents, credit cards, and other personal items belonging to a number of the partygoers. In particular, the police found Richard Blackburn's identification, credit cards, and social security card in West's bedroom. The officers also found ammunition, gun cases, and other gun paraphernalia in the house.
A gold sweat suit was found in West's bedroom. Partygoers described West as wearing a gold sweat suit during the robbery. Why we conclude that this evidence is sufficient to support West's conviction for robbing Blackburn
To support West's conviction for robbing Blackburn, the State needed to prove that, "in the course of taking or attempting to take property from [Blackburn's] immediate presence and control", West or one of his accomplices "threaten[ed] the immediate use of force upon any person with intent to (1) prevent or overcome resistance to the taking of the property or the retention of the property after taking; or (2) [to] compel any person to deliver the property or engage in other conduct which might aid in the taking of the property." AS 11.41.510(a).
(To prove that this robbery constituted a first-degree robbery, the State also needed to prove that West or one of his accomplices was armed with a deadly weapon; see AS 11.41.500(a). However, West concedes that there was sufficient evidence presented at his trial to support the conclusion that he had a gun.)
West argues that the evidence described in the preceding section of this opinion is legally insufficient to establish two of the elements of robbery: (1) that Blackburn's property was taken from his immediate presence or control, or (2) that Blackburn's property was taken by force or the threat of force.
It is true that Blackburn did not testify at West's trial. However, partygoer Michael Pastana testified that Blackburn was at the party, and a number of partygoers testified that West and his companions robbed "everybody" at the party.
Witnesses also testified that this taking was done by force — that West and Stone "point[ed] [their guns] at everyone" and threatened to shoot all the partygoers. Pastana also testified that Blackburn was in the kitchen during the robbery, that West was swinging his gun around in the kitchen, and that West's companion, Bohn, held a razor blade to Blackburn's face and threatened to make "an example" of him.
Other partygoers testified that West and his companions stole property from the people in the kitchen. And we note that Blackburn's identification, credit cards, and social security card were found in West's bedroom.
This evidence is sufficient to support a reasonable inference that West or one of his accomplices forcibly took Blackburn's property from his immediate presence or control.
West suggests that Blackburn's property "could [just] as easily have been in [his] coat", and that Blackburn's coat might have been "deposited with the winter clothing of other guests anywhere in the . . . residence." West further argues that Blackburn's property might not have been taken by force, but rather "by stealth . . . at any earlier point in the evening." But these arguments hinge on viewing the evidence in the light most favorable to West, rather than in the light most favorable to upholding the jury's verdict. Given the nature of the stolen property found in West's bedroom — i.e., Blackburn's credit cards, his personal identification, and his social security card — it was reasonable for the jurors to infer that Blackburn was carrying these items in a wallet on his person.
Conclusion
The judgement of the superior court is AFFIRMED.