State v. Martinez
| Decision Date | 03 September 1999 |
| Docket Number | No. 24910.,24910. |
| Citation | 988 P.2d 710,133 Idaho 484 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Martin Arturo MARTINEZ, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Alan E. Trimming, Ada County Public Defender; Michael R. DeAngelo, Deputy Public Defender, Boise, for appellant. Michael R. DeAngelo argued.
Hon. Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent. L. LaMont Anderson argued.
A jury found Martin Arturo Martinez guilty of robbery, I.C. § 18-6501. On appeal, Martinez argues that his conviction should be reversed on the ground that the evidence was insufficient to sustain a conviction for robbery where his use of a weapon to threaten store employees occurred after he had committed theft. Martinez also argues that the trial court abused its discretion by imposing a unified twenty-year sentence with five years fixed. For the reasons set forth below, we affirm.
At approximately 9:00 p.m., Martinez and a companion, Juan Lopez, were in the electronics department of the ShopKo store on Broadway Avenue in Boise. Martinez picked up a Sony Playstation machine and peeled the Electronic Article Surveillance (EAS) tag from the box. Martinez placed the Sony Playstation in a shopping cart pushed by Lopez. Martinez also picked up a pair of headphones, removed the EAS tag and placed them in the cart. Edward Fritz, the store's loss prevention officer, observed Martinez's activities through the store's video surveillance system. Fritz watched as the two left the electronics department through the store's EAS detector. The detector did not sound as the cart was pushed through, indicating to Fritz that the EAS labels had been removed. Fritz followed the shopping cart on the surveillance system as Lopez pushed it through the store and out the pharmacy entrance to the parking lot outside. Neither Martinez nor Lopez paid for the merchandise before leaving the store.
Before Martinez and Lopez left the store, Fritz called the store manager, Steve Seibold, and requested help in intercepting the two outside the store. Seibold called two other store employees to assist him. Seibold met Martinez and Lopez just off the sidewalk in front of the pharmacy entrance. Seibold identified himself as ShopKo security and asked the two to step back inside the store. When Fritz and another employee arrived on the scene, Seibold and two other employees were standing about five feet from Martinez and Lopez, blocking their way. Fritz, identifying himself as ShopKo security, asked Martinez and Lopez to accompany him back to the store. When Fritz then grabbed Lopez's shoulder to escort him into the store, Lopez released the cart and offered no resistance.
At this point, Martinez, who was not restrained, pulled out a revolver. Holding the gun at waist level, he pointed it at the five ShopKo employees surrounding him and told Lopez to run. Fritz released Lopez and began backing away with the other employees towards the store. Lopez ran while Martinez grabbed the Sony Playstation from the cart and followed.
A copy of the surveillance system videotape showing Martinez and Lopez shoplifting was aired on the local news. Within two days of the broadcast, Lopez turned himself in to the police. Lopez admitted to stealing the Sony Playstation with Martinez and talked about Martinez's use of the gun.
Martinez was charged with and subsequently arrested for robbery, I.C. §§ 18-6501, -6502, enhanced by possession of a deadly weapon during the commission of a felony, I.C. § 19-2520. At the jury trial, Fritz, Seibold, another ShopKo employee, and Lopez all testified on behalf of the State. The sentence enhancement for possession of a deadly weapon during the commission of a felony was dismissed.1 The jury returned a verdict finding Martinez guilty of robbery, and he was thereafter sentenced to a unified term of twenty years with five years fixed.
Appellate review of the sufficiency of the evidence is limited in scope. Findings of fact supported by substantial and competent evidence will not be set aside on appeal. State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App.1985). We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App.1991); Decker, 108 Idaho at 684,701 P.2d at 304. Moreover, we will consider the evidence in the light most favorable to the prevailing party. Knutson, 121 Idaho at 104,822 P.2d at 1001; Decker, 108 Idaho at 684,701 P.2d at 304.
Martinez asserts that use of force or fear constitutes robbery only if it is used prior to or concurrently with the physical act of taking the property and that use of such as a means to facilitate escape or to retain possession of the property does not support a charge of robbery. Martinez relies upon the fact that he and Lopez had already taken the Playstation and left the store before ShopKo employees confronted them in the parking lot. Thus, Martinez argues that no robbery could have taken place, as a matter of law, because he did not use force or fear in initially obtaining physical possession of the Playstation and that the taking was not from the immediate presence or person of anyone.2 We reject this contention within the factual context outlined below.
At trial, Lopez testified as to what took place in the ShopKo parking lot:
(Emphasis added.).
Williams, a clerk whom Fritz had asked to assist him, testified that Martinez and Lopez had been detained with the shopping cart containing the Playstation. Martinez then pulled a gun from his pants and pointed it at the ShopKo employees. As Williams and the other employees backed away, Martinez picked up the Playstation and ran after Lopez. Seibold offered similar testimony.
Given the above testimony, a reasonable jury could have concluded that Martinez committed robbery when he used his gun to regain possession of the Playstation after Lopez had been detained and surrendered control of the shopping cart to Fritz.3 If one who is in the process of stealing property uses force or fear in removing that property from the owner's immediate presence, the crime of robbery has been committed. People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366, 369 (1966).4 It is generally accepted that "a thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." People v. Hayes, 52 Cal.3d 577, 276 Cal.Rptr. 874, 802 P.2d 376, 406-07 (1990),quoting Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517 (1920); see also, W. LAFAVE AND A. SCOTT, SUBSTANTIVE CRIMINAL LAW, § 8.11(c) (1986). Here, a reasonable finder of fact could easily conclude that the property in question, i.e., the Playstation, was not so distant as to be beyond the control and protection of the victim, Fritz, at the time force or intimidation was used, such that Fritz could have retained possession of the item and prevented its taking were it not for the actions of Martinez. Thus, when Martinez used a gun to force Fritz and the other ShopKo...
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