Ingram v. State

• Decision Date: 28 February 2003
• Citation: 878 So.2d 1208
• Parties: Kirby Leon INGRAM v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

878 So.2d 1208

Kirby Leon INGRAM v. STATE of Alabama.

CR-01-2224.

Court of Criminal Appeals of Alabama.

February 28, 2003.

Opinion on Return to Remand August 29, 2003.

Kimberly Griffin Kervin, Prattville (withdrew 7/1/03); Richard D. Lively, Prattville (appointed 7/28/03), for appellant.

William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

SHAW, Judge.

The appellant, Kirby Leon Ingram, was convicted of robbery in the third degree, a violation of § 13A-8-43(a)(1), Ala.Code 1975. He was sentenced to one year and one day in prison.

On appeal, Ingram contends that the evidence was insufficient to sustain his conviction because, he says, the State failed to prove a prima facie case of third-degree robbery.

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

"When reviewing a trial court's denial of a motion for a judgment of acquittal, this court must determine `whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty.'" McCart v. State, 765 So.2d 21, 27 (Ala.Crim.App.1999), quoting Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993). See also Ex parte Fitkin, 781 So.2d 182, 183 (Ala.2000)("The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there was legal evidence before the court at the time the motion was made from which, by fair inference, the defendant could be found guilty."). Ingram moved for a judgment of acquittal at the close of the State's case; however, he did not renew the motion at the close of all the evidence or include this claim in his motion for a new trial. Therefore, we consider only the State's evidence in reviewing this claim.

Chris Gray, a member of the loss-prevention staff at a Wal-Mart discount department store in Prattville, testified that on February 14, 2000, he saw an individual, who was later identified as Ingram, pushing a shopping cart piled with clothes around the store. Gray testified that he saw Ingram place approximately 10 boxes containing watches from the jewelry department in the cart under the pile of clothing and then continue walking around the store. Suspicious, Gray followed Ingram and saw Ingram open the watch boxes and conceal the watches in his pants pockets as he was walking around the store. Gray testified that after Ingram had removed all of the watches from their boxes and placed them in his pockets, he left the store without paying for the merchandise. Gray followed Ingram outside into the parking lot where he and Ed Seamon, the parking lot security guard, approached Ingram. Gray identified himself as a member of the loss-prevention staff for Wal-Mart, and asked Ingram to return to the store to discuss the stolen merchandise. Gray stated that he told Ingram several times that they were going to the office in the back of the store to fill out paperwork and to discuss the items that had been taken.

Both Gray and Seamon testified that they then escorted Ingram back into the store, and that as they approached the doors leading to the back area of the store, Ingram tried to flee.¹ Both Gray and Seamon testified that they grabbed Ingram to stop him from fleeing, and that Ingram fought them, attempting to escape. Gray testified that he and Seamon were still struggling with Ingram and trying to subdue him when Daniel Fells, an officer with the Prattville Police Department at that time, arrived at the scene. Officer Fells testified that when he arrived, he saw Wal-Mart loss-prevention personnel struggling with Ingram, and he attempted to handcuff Ingram. Ingram kept struggling. After Ingram was finally subdued and handcuffed, Officer Fells conducted a pat-down search and discovered watches and a knife that were the property of Wal-Mart in Ingram's pants pockets.

Citing Ex parte Sapp, 497 So.2d 550 (Ala.1986), Ingram argues that he could not be convicted of robbery in the third degree because, he says, the theft was completed when he left the store without purchasing the watches and the knife. According to Ingram, because the only force he used was after the theft was completed, when he was being escorted to the rear of the store, "he neither used nor threatened any force against the Wal-Mart employees `with intent to compel acquiescence to the taking of or escaping with the property' that he had stolen or had attempted to steal." (Ingram's appellate brief at p. 12.)

Section 13A-8-43(a), Ala.Code 1975, provides, in relevant part:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:

"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance."

"`In the course of committing a theft' embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission." § 13A-8-40(b), Ala.Code 1975. The Committee Comments to §§ 13A-8-40 through 13A-8-44, Ala.Code 1975, provide:

"There should be no distinction between cases in which force is used to gain possession of another's property and cases in which possession is gained and then force is used to retain possession.... In either situation the conduct is dangerous to human life. The expansion [by statute of the definition of common-law robbery], of course, is limited to threats and assaults to effect an immediate escape. A successful theft followed by use of force to resist apprehension later would not constitute robbery."

In Ex parte Sapp, the appellant stole a jacket from a Wal-Mart discount department store and left the store. He returned to the store approximately 5 to 10 minutes later wearing the jacket. When he attempted to leave the store a second time, a security officer stopped him. After examining the jacket and determining that it belonged to Wal-Mart, the security officer informed the appellant that he would need to stay in the store until the police arrived. At that point, the appellant became hostile, grabbed the jacket, and attempted to leave the store. A struggle ensued, and the appellant eventually fled the scene. The Alabama Supreme Court held that the acts of the appellant did not constitute robbery, stating:

"The armed force ... was not used `in the course of committing' the theft or `in immediate flight after the ... commission,' but took place after the theft itself clearly had ceased. In short, the statutes applicable here have not transposed theft into robbery."

497 So.2d at 551.

Similarly, in Casher v. State, 469 So.2d 679 (Ala.Crim.App.1985), the appellant had stolen a carton of cigarettes from a convenience store, and was approached by the manager after he left the store. He voluntarily went back inside the store and the manager retrieved the carton of cigarettes from the appellant's person. When the manager told a store employee to telephone the police, the appellant pulled out a knife, cut the manager on the face, and fled. This Court held that the appellant's actions did not constitute robbery because the force used against the manager was not used "`"with intent to compel acquiescence to the taking of or escaping with the property" that he had stolen or had attempted to steal'" but, rather, was used only after the stolen property had been returned to its owner. Casher, 469 So.2d at 680, quoting Harris v. State, 451 So.2d 406, 410 (Ala.Crim.App.1984).

However, in Buchannon v. State, 652 So.2d 799 (Ala.Crim.App.1994), this Court stated:

"We hold that as long as the flight, pursuit, and eventual apprehension of the accused are part of a continuous series of events directly precipitated by the accused's theft, then the accused's acts occur in `immediate flight after the ... commission' of the theft. Compare Ex parte Campbell, 574 So.2d 713 (Ala.1990)(when no evidence established time of collision or time of burglary, the court held that prosecution produced insufficient evidence that accused was in `immediate flight' from scene of burglary when he was involved in fatal automobile collision)."

652 So.2d at 801. In Gordon v. State, 552 So.2d 901 (Ala.Crim.App.1989), this Court found that the use of a pistol in a parking lot in an effort to elude capture by store personnel was in the course of committing the theft. In addition, in Fuqua v. State, 706 So.2d 817 (Ala.Crim.App.1997), this Court held that where the appellant fled a clothing store in a mall with stolen merchandise, eluded store personnel in the mall for approximately eight...