LUCAS v. State of Ala.

• Decision Date: 18 December 2009
• Docket Number: CR-08-0575.
• Parties: Adam Dwayne LUCAS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

45 So.3d 380

Adam Dwayne LUCAS

v.STATE of Alabama.

CR-08-0575.

Court of Criminal Appeals of Alabama.

Dec. 18, 2009.

Charles Raymond Waits III, Decatur, for appellant.

Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, Adam Dwayne Lucas, was convicted of two counts of robbery in the first degree, violations of § 13A-8-41, Ala.Code 1975. He was sentenced to concurrent terms of 20 years in prison for each count.

The State's evidence tended to show the following. On January 1, 2007, Daniel DeQuesada, a pizza-delivery driver, was robbed by a black man wearing a hooded jacket and a ski mask. DeQuesada testified that the man pointed a gun at him and ordered him to surrender his money. Diana Horsewood testified that when she was delivering pizzas on January 2, 2007, a black man wearing a hooded jacket and ski mask robbed her. She testified that the robber pointed a gun at her. Neither could identify Lucas as the person who robbed them, although both said that the individual who robbed them was driving a sport-utility vehicle (“SUV”).

David Shutt, a Decatur police officer, testified that on January 3, 2007, Lucas reported that his vehicle, a pewter-colored SUV, had been stolen. The vehicle was later recovered after suspects in a home invasion abandoned the vehicle while being pursued by police. Pieces of a toy gun were recovered from the vehicle.

Investigator Greg Pinkard of the Franklin County Sheriff's Department testified that Lucas admitted that he and his codefendant, Ira Harris, had robbed two pizza-delivery drivers.

The jury convicted Lucas of two counts of robbery in the first degree. At Lucas's sentencing hearing, the circuit court made the following findings of fact:

“I'll make a finding that it's a plastic toy gun. I don't think there's any dispute that [interruption by counsel] that-

“I'll make that finding regardless of what the analysis would or would not show. I'm enough [interruption by counsel] satisfied that that's a plastic toy gun; however, I am convinced that the law is that it could be a loaded gun or an unloaded gun or it could be a facsimile or plastic or toy gun. But the standard is that it is a deadly weapon under the terms of the definition of the statute if it would lead any person present to reasonably believe it to be a deadly weapon or a dangerous instrument.

“I think the testimony there is uncontroverted that regardless whether it was a toy or cocked and loaded pistol, the person believed it to be a deadly weapon or dangerous instrument. They believed it to be a toy-not a toy but a real pistol.”

(R. 358-59.)

The only issue Lucas raises on appeal is whether the circuit court erred when it applied the firearm-enhancement statute, § 13A-5-6(a)(4), Ala.Code 1975, to enhance his sentence for robbery because, he asserts, the gun he used in the robberies was a toy gun and not a “firearm or deadly weapon.” He relies on Sanders v. State, 947 So.2d 432 (Ala.Crim.App.2006), and Snowden v. State, 842 So.2d 24 (Ala.Crim.App.2002), to support his argument.

Section 13A-8-41, Ala.Code 1975, defines robbery in the first degree, and provides:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:

“(1) Is armed with a deadly weapon or dangerous instrument; or

“....

“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

Section 13A-8-43, Ala.Code 1975, provides, in pertinent 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; or

“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

Section 13A-5-6(a)(4), Ala.Code 1975, often referred to as the firearm-enhancement statute, provides:

“For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, or a Class A felony criminal sex offense involving a child as defined in Section 15-20-21(5), [the sentence shall be] not less than 20 years.”

Subsection (a)(4), Ala.Code 1975, was added by an amendment to § 13A-5-6 in 1981. In amending this statute, the legislature wrote that its purpose was “[t]o amend Section 13A-5-6, Code of Alabama 1975, relating to sentences of imprisonment for felonies, so as to set the penalty for using or attempting to use a deadly weapon in the commission of a felony.” Title to Act No. 81-840, Ala. Acts 1981.

Section 13A-5-6, Ala.Code 1975, does not define a firearm or deadly weapon. However, “firearm” is defined in § 13A-8-l(4), Ala.Code 1975, as: “A weapon from which a shot is discharged by gunpowder.” “Deadly weapon” is defined in § 13A-l-2(7), Ala.Code 1975, as:

“A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury. The term includes, but is not limited to, a pistol, rifle, or shotgun; or a switchblade knife, gravity knife, stiletto, sword, or dagger; or any billy, black-jack, bludgeon, or metal knuckles.”

In examining the above statutes, we keep in mind the following principles of statutory construction:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.’ Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991). ‘Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985) (citing Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534 (Ala.1983)).”

Ex parte Soto, 991 So.2d 691, 692 (Ala.2008).

“A basic rule of review is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation. This is especially true in death penalty cases. Ex parte Clements, Ala., 370 So.2d 723 (1979); Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). Penal statutes are to reach no further in meaning than their words. Clements, supra; Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).”

Berard v. State, 402 So.2d 1044, 1050 (Ala.Crim.App.1980).

As stated above, Lucas relies on Sanders and Snowden to support his argument. In Sanders, the defendant was convicted of robbery in the first degree and his sentence was enhanced pursuant to § 13A-5-6(a)(4), Ala.Code 1975. The testimony at trial showed that Sanders entered a Texaco Food Mart, put his hand under his shirt with his finger sticking out so it appeared that he had a gun, and demanded $200. We held that the circuit court incorrectly applied § 13A-5-6(a)(4), Ala.Code 1975. It was undisputed that the victim could clearly see that Sanders was not armed with a gun but was using his finger to mimic a weapon. In Snowden, this Court held that a Rule 32 petitioner's claim that he merely stated that he was armed during the robbery, when in fact he was not, required a remand to the trial court for specific findings of fact. We stated:

“The appellant's argument may be meritorious. The firearm enhancement set forth in § 13A-5-6(a)(4), Ala.Code 1975, applies only in those cases ‘in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony.’ In this case, based on statements it made during the guilty plea proceedings, it appears that the trial court mistakenly believed that the firearm enhancement could be applied even in cases in which the defendant only represented that he was armed with a firearm. However, such an interpretation is contrary to the plain language of § 13A-5-6(a)(4), Ala.Code 1975. During the Rule 32 proceedings, the State did not specifically refute, and the circuit court did not address, the appellant's contention. Therefore, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to the appellant's contention.”

842 So.2d at 25.

Our research revealed few Alabama cases that address the scope of § 13A-5-6(a)(4), Ala.Code 1975. See Ex parte McCree, 554 So.2d 336 (Ala.1988) (firearm enhancement may be applied to only those felonies involving intentional criminal conduct); Sorrells v. State, 667 So.2d 142, 144 (Ala.Crim.App.1994) (firearm enhancement may be applied by the circuit court even in the “absence of a specific jury finding with regard to the use of a firearm”); Hammond v. State, 497 So.2d 558 (Ala.Crim.App.1986) (firearm enhancement may be applied to the sentence of an unarmed codefendant when the other codefendant is armed). Indeed, our research has revealed no case that specifically holds that using a toy gun during a robbery necessitates the application of the firearm-enhancement statute.

In determining whether there is sufficient evidence to support a conviction for robbery in the first degree, we look to the victim's perceptions:

“In a prosecution for first degree robbery, the robbery victim does not actually have to see a weapon to establish the element of force; his or her reasonable belief that the robber is armed is sufficient. Dinkins v. State, 584 So.2d 932 (Ala.Cr.App.1991); Breedlove v. State, 482 So.2d 1277 (Ala.Cr.App.1985). The test to determine whether a person reasonably believes that an object is a deadly weapon is a ‘sub...