State v. Pasek

• Decision Date: 22 December 2004
• Docket Number: No. 23096.,23096.
• Citation: 2004 SD 132,691 N.W.2d 301
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James PASEK, Defendant and Appellant.
• Court: South Dakota Supreme Court

691 N.W.2d 301

2004 SD 132

STATE of South Dakota, Plaintiff and Appellee, v. James PASEK, Defendant and Appellant.

No. 23096.

Supreme Court of South Dakota.

Considered on Briefs October 4, 2004.

Decided December 22, 2004.

Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Joseph M. Kosel, Lawrence County Public Defender's Office, Deadwood, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] James Pasek escaped from jail in Bozeman, Montana, stole a vehicle, and drove to Gillette, Wyoming where he met his friend, Christina Starr. While with Starr, he told her that he was going to rob another bank. Despite being counseled against the idea, Pasek robbed the First Western Bank in Spearfish, South Dakota. Pasek then stole another vehicle in Spearfish, and was ultimately arrested in Bloomington, Indiana. Pasek was convicted of robbery in the first degree, grand theft (cash from the bank), grand theft (the second vehicle), and grand theft by possession of stolen property (the first vehicle). Pasek appeals contesting (1) the sufficiency of the evidence, (2) the denial of his motion for mistrial, (3) the finding that he had committed three prior felonies, and (4) his sentence of life imprisonment without parole.

Facts and Procedural History

[¶ 2.] On June 29, 2003, Pasek escaped from jail in Bozeman, Montana, where he was being held on charges relating to a prior bank robbery. After escaping, he stole a Lincoln Mark VIII in Bozeman and drove to South Dakota. On June 30, 2003, Pasek walked into the First Western Bank in Spearfish and handed the teller, Tara Hicks, a note. The note stated: "This is a robbery, hand over all the hundreds, fifties, twenties, and tens, and do it quietly." The bottom of the note said "no funnys — t."

[¶ 3.] Being "in fear of [her] life," Hicks gave Pasek the money. She put the money in a silver cosmetic bag that Pasek had placed on her teller station. Hicks did not notice a weapon on Pasek. However, she was not sure if he had a weapon. Hicks stated that she responded calmly because she had been trained to react in that manner, regardless of the circumstances of the robbery. The money given Pasek included "bait money"; i.e., marked money that activated an alarm at the police station. Pasek left the bank in a stolen GMC Envoy, and Hicks dialed 911.

[¶ 4.] After the robbery, Pasek drove to Gillette and picked up his friend, Christina Starr, whose stepmother lived in Bloomington, Indiana. Pasek was later taken into custody in Bloomington in possession of the GMC Envoy and a "wad of money," including one bill that matched the serial number of the bait money taken in the Spearfish robbery.

[¶ 5.] A jury found Pasek guilty of the offenses, and his motions for judgment of acquittal and judgment notwithstanding the verdict were denied. A Part II information alleged that Pasek was a habitual criminal. A court trial was held on that information, and the court found that Pasek had three prior felonies, including one crime of violence. Consequently, Pasek was sentenced as an habitual offender to life in prison without parole on the first degree robbery conviction. He was sentenced to fifteen years on each of the other three counts. All four sentences were to run concurrently. Pasek now appeals.

Analysis and Decision

Sufficiency of the Evidence

[¶ 6.] Pasek asserts that there was insufficient evidence, as a matter of law, to find that he committed first degree robbery. He contends that the evidence was insufficient because he did not use any force or brandish a weapon. Therefore, Pasek argues that the requisite element of force or fear was absent.

[¶ 7.] "The standard of review for denial of a motion for judgment of acquittal is whether the `evidence was sufficient to sustain the convictions."' State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (citing State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17). The standard of review for determining the sufficiency of the evidence is well settled.

"In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt." In making that determination, "we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict." Moreover, "the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence." Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Laplante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310 (internal citations omitted). Thus, "[a] guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt." State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted).

[¶ 8.] "Robbery is the intentional taking of personal property ... in the possession of another from his person or immediate presence, and against his will, accomplished by means of force or fear...." SDCL 22-30-1.¹ Robbery in the first degree must be "accomplished by the use of force or by putting the person robbed in fear of some immediate injury to his person...." SDCL 22-30-6.² That fear, necessary for robbery in the first degree, may be either:

(1) The fear of an injury, immediate or future, to the person or property of the person robbed, or of any relative of his or member of his family; or

(2) The fear of an immediate injury to the person or property of anyone in the company of the person robbed at the time of the robbery.

SDCL 22-30-3.

[¶ 9.] Pasek argues that because Hicks had been trained to react calmly during a robbery, she was not sufficiently fearful to satisfy the "fear" requirement of these statutes. Pasek emphasizes that he had no weapon during the robbery and he made no overt threat of a present or future injury. He finally asserts that "the note given to the teller was as benign as any unauthorized request for money could be composed." These arguments fail on both the facts and the law applicable to this case.

[¶ 10.] Factually, there was sufficient evidence from which the jury could have reasonably inferred that Hicks was in fear during this robbery. Hicks testified that because of the "language of the note," she took it very seriously, she was emotionally upset, and she was "very fearful. [She] was in fear of [her] life as well as [her] other co-workers and any customers that were in the bank." Hicks also testified that just because Pasek did not show her a weapon that did not mean he did not have a weapon. She stated "maybe if I didn't cooperate, maybe he did have [a weapon]. I didn't know." She explained, "I was trained to give him the money because you never know if they have a weapon, just because they didn't show you. I didn't want to take the chance." Finally, Hicks' supervisor testified that she was visibly shaken immediately after the robbery, and a detective with the Spearfish Police Department confirmed that Hicks was shaking and very upset approximately ten minutes after the robbery. Clearly, this evidence was sufficient to establish the requisite element of fear in this robbery.

[¶ 11.] We also note that legally, the fear necessary for robbery is not measured by the subjective feelings of the victim. "As in the analogous crime of assault, the word `fear' in connection with robbery does not so much mean `fright' as it means `apprehension'; one too brave to be frightened may yet be apprehensive of bodily harm." LaFave, Wayne R., Substantive Criminal Law § 20.3(d) (2d ed.2003). Thus, as the Eighth Circuit Court of Appeals has explained, an objective standard is used for the analogous "intimidation" element in the federal law³ on robbery. United States v. Yockel, 320 F.3d 818, 824 (8thCir.2003). The Eighth Circuit noted: "[t]he intimidation element is satisfied if an ordinary person in the position of a victim teller or bank employee reasonably could have inferred a threat of bodily harm from the robber's actions." United States v. Gipson, 383 F.3d 689, 699 (8thCir.2004) (citing Yockel, 320 F.3d at 824). See also, United States v. Brown, 412 F.2d 381 (8thCir.1969) (jury could justifiably find that the teller was intimidated when the defendant passed teller a note saying it was a hold up and he would kill her if she said a word, even though the teller dropped the note to attract attention, pulled out marked money from her cash drawer, told defendant "to show me your gun, you little snot, or get out of here," and defendant then left empty handed); United States v. Bingham, 628 F.2d 548, 548 (9thCir.1980) ("Taking by intimidation is the willful taking in such a way as would place an ordinary person in fear of bodily harm").

[¶ 12.] State courts also agree that if the circumstances of a robbery would "ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear...." Magnotti v. State, 842 So.2d 963, 965 (Fla.Dist.Ct.App.2003). "[T]he controlling factor is not necessarily the victim's subjective state of mind, but whether a jury could conclude that a reasonable person,⁴ under like circumstances, would have felt sufficiently threatened to accede to the robber's demands." Id. Or, as stated in Hawthorne v. State:

`The fear `must be of such a nature as in reason and common experience is likely to induce a person to part with his property against his will, and to put him, as it were, under the temporary suspension of the power of exercising his will through the influence of the terror impressed.'

501 P.2d 155, 157 n. 5 (Alaska 1972) (quoting Steward v. People, 224 Ill. 434, 79 N.E. 636, 639 (1906)). We agree with these authorities and further note that if this...