Walker v. State, 88-240
| Decision Date | 01 August 1989 |
| Docket Number | No. 88-240,88-240 |
| Citation | 546 So.2d 1165,14 Fla. L. Weekly 1811 |
| Parties | 14 Fla. L. Weekly 1811 Anthony WALKER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Harvey J. Sepler and Robert Kalter, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Joni B. Braunstein, Asst. Atty. Gen., and Angelica D. Zayas, Certified Legal Intern, for appellee.
Before HUBBART, NESBITT and FERGUSON, JJ.
The appellant, Anthony Walker, raises two issues in this appeal from his robbery conviction: 1) The motion to reduce the charge from robbery to grand theft should have been granted; and 2) the bailiff's communication with the jury caused prejudicial harm. On the first point, we agree that the State failed to prove an essential element of the robbery statute and for that reason the charge should have been reduced to theft. On the second point, we hold that the communication between the bailiff and jury, owing to its nature, did not constitute reversible error.
The facts at trial established that the victim, fifteen-year-old Angelica Cordoba, had been riding in a car driven by sixteen-year-old Kenny Kravit at approximately 10:30 p.m. when Kravit made a wrong turn and became lost in a "bad" neighborhood. Kravit's car then collided with another vehicle. After the teenagers exchanged information with the driver of the other car, a black male bystander, later identified as Anthony Walker, approached Kravit with an offer to repair the damage to Kravit's car for $50. Kravit, who was driving his parents' Cadillac and frightened at the prospect of facing his parents with the damaged vehicle, initially accepted Walker's offer. The teenagers, nevertheless, became apprehensive about the deal and informed the defendant that they had decided to have the car repaired elsewhere.
Ms. Cordoba testified that although Walker was friendly, she was upset because she had never been involved in an accident before, and she was afraid of the reputedly tough neighborhood. She stated that she became increasingly nervous as the defendant, a strange black man, moved close to her and held the car door open for her. As the defendant stood next to her, Ms. Cordoba felt his fingers on the back of her neck and then saw him run away. She reached up, touched her neck, and realized that her gold chain had been taken. Police officers subsequently arrested Walker a few blocks away.
At trial the defense counsel moved to reduce the charge from robbery to theft, arguing that until she saw the defendant in flight the victim did not know that her necklace had been taken, therefore, the taking was not accomplished by the use of fear, force, or violence as required by the robbery statute. The motion was denied and the jury returned a verdict of guilty of robbery as charged.
The crime of robbery is defined as "the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear." § 812.13(1), Fla.Stat. (1987). The State argues that in this case the crime was accomplished by Walker's act of putting the victim in fear. We disagree. Ms. Cordoba testified at trial that the defendant never threatened her in any way. Her testimony shows that although she may have been frightened, her fear was more a general apprehension resulting from the accident in a bad neighborhood and the physical nearness of a strange black male than from any words or gestures made by the defendant. There is no evidence that the defendant assaulted or intimidated the victim in order to steal the gold chain.
Neither was "force," within the meaning of the robbery statute, used to accomplish the taking. When the defendant snatched the chain from the victim's neck, he used only the slight degree of force necessary to take possession of the article. The victim was not held or struck. Nor did she resist in any way. In determining the degree of force necessary to convert theft into robbery in purse-snatching cases, this court has stated:
[A] sudden snatching of property from the person of another does not ordinarily constitute sufficient "force [or] violence" to satisfy [the robbery statute]. This is so because the only degree of force usually involved in such cases is the slight amount of force necessary to physically remove the property from the person of another and thus accomplish the asportation element of theft. Plainly, something more in the way of physical force is required for robbery, else all thefts from the person would be robberies.
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