State of Louisiana v. Anthony Strong

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-590

STATE OF LOUISIANA

VERSUS

ANTHONY STRONG

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 333,679
HONORABLE LOWELL C. HAZEL, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and D. Kent Savoie, Judges.

AFFIRMED.

J. Phillip Terrell, Jr.
District Attorney
Catherine L. Davidson
Assistant District Attorney
Post Office Box 7358
Alexandria, Louisiana 71306-7358
(318) 473-6650
Counsel for Appellee:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 991-9757
Counsel for Defendant/Appellant:
Anthony Strong

Jeff Landry
Attorney General
J. Taylor Gray
Assistant Attorney General
Louisiana Department of Justice
Criminal Division
Post Office Box 94005
Baton Rouge, Louisiana 70804
(225) 326-6200
Counsel for Other Respondent:
Attorney General, State of Louisiana

KEATY, Judge.

Defendant, Anthony Strong, was convicted of first degree robbery and was

sentenced, as a habitual offender, to forty years imprisonment at hard labor, without

benefit of probation, parole, or suspension of sentence. He now appeals his

conviction and sentence. For the following reasons, we affirm.

RELEVANT BACKGROUND AND PROCEDURAL HISTORY

On October 24, 2018, Defendant was charged by amended bill of information

with the May 17, 2017 armed robbery of Rupert Taylor. Defendant waived formal

arraignment and entered a plea of not guilty. The matter was set for a jury trial to

commence on May 13, 2019.1 On the morning of trial, Defendant filed a motion to

declare Louisiana’s non-unanimous jury system unconstitutional. The motion was

denied, and trial commenced the next day. On May 15, 2019, eleven of the twelve

jurors returned a verdict of guilty of the lesser included offense of first degree

robbery. The trial court designated Defendant’s crime as one of violence and

sentenced him to serve twelve years at hard labor on June 5, 2019. Later that day,

however, the State filed a habitual offender bill of information charging Defendant

as a twelfth felony offender. Defendant filed a Motion to Reconsider Sentence in

which he argued that his twelve-year sentence was excessive. The trial court denied

the motion, without a hearing, on June 18, 2019. Thereafter, Defendant timely

sought and was granted an appeal of his original sentence.

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This matter had previously proceeded to trial by jury on December 4, 2018, in Division
G, over the objection of Defendant and the State. Defendant sought supervisory review in this
court of the trial court’s denial of his “Objection to Division Transfer and Motion to Transfer to
Correct Division of Court.” On December 5, 2018, this court granted Defendant’s writ application,
finding that the “trial court failed to comply with La.Dist.Ct.R. 14.3 as there was no written consent
of all parties and no good cause shown for the transfer of the case from one division to another.”
State v. Strong, 18-955 (La.App. 3 Cir. 12/5/18). Upon our remand to the trial court, Defendant
filed, and was granted, a Motion for Mistrial, after which this matter was transferred back to
Division B, where it had been originally allotted.

On July 23, 2019, the trial court adjudicated Defendant a “fourth plus” felony

offender. As a result, Defendant’s original sentence was set aside, and he was

ordered to serve forty years at hard labor, without benefit of probation, parole, or

suspension of sentence. Defendant thereafter sought and was granted an appeal of

his habitual offender sentence. He is now before this court, asserting through

appointed appellate counsel, that the evidence is insufficient to support his

conviction, and that Louisiana’s constitutional and statutory provisions allowing a

conviction with a verdict of less than all twelve jurors violates the Equal Protection

Clause of the United States Constitution.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant contends there was insufficient

evidence to prove, beyond a reasonable doubt, that he was guilty of first degree

robbery.

The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A
determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to assure
the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

First degree robbery is the taking of anything of value belonging
to another from the person of another, or that is in the immediate control
of another, by use of force or intimidation, when the offender leads the
victim to reasonably believe he is armed with a dangerous weapon.
LSA-R.S. 14:64.1A. The first degree robbery statute has objective and
subjective components. The State must prove that the offender induced
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a subjective belief in the victim that he was armed with a dangerous
weapon and that the victim’s belief was objectively reasonable under
the circumstances. The statute excludes unreasonable panic reactions
by the victim, but otherwise allows the victim’s subjective beliefs to
determine whether the offender has committed first degree robbery.
Direct testimony by the victim that he believed the defendant was
armed, or circumstantial inferences arising from the victim’s immediate
surrender of his personal possessions in response to the defendant’s
threats, may support a conviction for first degree robbery. State v.
Caples, 05-2517 (La.App. 1 Cir. 6/9/06), 938 So.2d 147, 151, writ
denied, 06-2466 (La. 4/27/07), 955 So.2d 684.

State v. Vaughn, 18-344, pp. 8-9 (La.App. 1 Cir. 9/24/18), 259 So.3d 1048, 1057,

writ granted in part on other grounds, judgment reversed in part, 18-1750 (La.

11/25/19), 283 So.3d 494.

At trial, Detective William Smith, with the Pineville Police Department,

testified that on May 17, 2017, he received a report that Rupert Taylor had given a

ride to Anthony Strong, who was an old friend of Taylor. Taylor told Detective

Smith that he drove Defendant to the Popeyes Restaurant on Highway 28 East in

Pineville, Louisiana. The two went inside, ate, and returned to Taylor’s vehicle,

whereupon Defendant produced a knife from his pocket and demanded Taylor’s

wallet. Taylor stated he handed his wallet to Defendant, who removed the

approximate $225 in cash contained therein, threw the wallet back to him, and

walked away.

Detective Smith testified that he obtained video surveillance from Popeyes.

The footage was played for the jury and narrated by Detective Smith, who identified

Defendant and Taylor. Upon questioning by the State’s attorney, Detective Smith

explained:

Q. And what does this show?

A. . . . The two of them now returning to the vehicle in the parking
lot.

Q. And what does this show?

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A. Uh, just interactions inside the vehicle. Okay, so this is after that
interaction. Mr. Strong returns to the restaurant. He’s gonna [sic] walk
directly to this other door which is behind the camera. He appears to
be holding a wad of cash in his hand and goes out that, that front door
facing Hwy. 28. Um, if you could go back to the initial interaction
inside the vehicle, uh, I can point out some observations. Shortly after,
uh, returning to the vehicle, uh, you’ll see the passenger’s door come
open. Um, it doesn’t appear that Mr. Strong entered the vehicle, but
stood in the doorway. You then see, at this point, you didn’t see where
Mr. Taylor’s hands go up kind of in a defensive posture and he, and he,
uh, retreats back in his seat, uh, like he was startled by something.

Q. And at that time, Pineville Police was [sic] notified.

A. I think it was about twenty or thirty minutes later. Um, [Taylor]
explained to me that he called, uh, a nephew or somebody to, to kind of
-- he didn’t know what to do, and so he called somebody, and then they
came and met him and then they, uh, they instructed him to call us. At
this point, it appears that he’s gonna [sic] return to the restaurant. He’s
-- he said he’s looking for Mr. Strong. He doesn’t find him and returns
to his vehicle.

Detective Smith continued narrating the video, which showed Taylor back out of his

parking space and drive around the parking lot of Popeyes before returning to where

he had originally parked.

Detective Smith testified that he conducted several interviews with Taylor the

day following the incident. He stated that, because of Taylor’s demeanor and the

way Taylor spoke, he believed that Taylor was scared Defendant would hurt him.

Detective Smith noted that Taylor suffered from a physical disability and that during

the interviews regarding the robbery, Taylor’s voice trembled and he appeared to

cry. According to Detective Smith, Taylor’s story was consistent each time the two

spoke, and it was consistent with the video footage. Detective Smith explained that

he did not compile a lineup, as Taylor reported having known Defendant for a long

time.

Detective Smith testified that he spoke to Defendant on the telephone once or

twice, and that Defendant agreed to come and speak to him but failed to do so.

Thereafter, Detective Smith put a warrant out for Defendant’s arrest. After
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Defendant was located, Detective Smith advised him of his rights before

interviewing him. Defendant denied the accusations against him and claimed that

he and Taylor went to Popeyes “to meet somebody there to purchase a vehicle.” At

the conclusion of the interview, Defendant was told he was going to be placed under

arrest. Defendant became very angry, and he told Detective Smith that “Mr. Taylor

was going to be killed and that it would be [Detective Smith’s] fault.”

Taylor also testified at trial. He identified Defendant in open court and he

later identified the man seen in video footage wearing a red shirt as Defendant.

Taylor stated that, on the morning of May 17, 2017, he drove to the bank to withdraw

$300 in cash from an ATM to pay his electric bill. Afterward, he was headed to his

uncle’s house when Defendant flagged him down. Taylor stated that he and

Defendant had gone to school together and had not seen each other in twenty years.

Taylor recalled that he had $5 lying on his dashboard when Defendant got into his

car, and that Defendant said he was hungry. Taylor asked Defendant where he

wanted to eat and Defendant said “Popeyes on 28.” Defendant then asked for the

$5, and Taylor gave it to him.

During the State’s questioning of Taylor, the video from Popeyes was

replayed for the jury. Taylor testified that once at Popeyes, they both ordered food,

and he pulled his wallet out of his back pocket. Thereafter, he and Defendant ate

and talked, as they had not seen each other for a while. They reminisced about

school, and Taylor told Defendant about his having been previously shot. Taylor

testified that, afterward, they returned to his car. Taylor noticed that Defendant

appeared to be “fixing . . . on something in his pocket.” Defendant then pulled a

black “fishing knife” from his pocket and asked Taylor to give him his wallet.

According to Taylor, having Defendant show him a “dagger” left him feeling

“[s]cared” and “less than a man ‘cause [sic] I couldn’t defend myself.” Taylor
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explained that he held his hands up and tossed his wallet to Defendant as demanded.

Defendant took the money out of Taylor’s wallet and threw it back toward him.

Taylor then called his nephew and was told to “make sure [Defendant] was still in

there” and to call the police. Taylor went back inside Popeyes but Defendant was

no longer there.

On cross-examination, Taylor denied looking for a vehicle to purchase,

explaining that he already owned two vehicles. Taylor identified the point in the

Popeyes’ video where he remembered holding his hands up before throwing his

wallet toward Defendant. He admitted, however, that his actions could not be clearly

seen because where he was sitting inside his car appeared “black” and dark on the

video. Defendant’s counsel asked Taylor whether he saw “any blade[,]” to which

Taylor replied, “No, I ain’t gonna lie to you. He didn’t pull a blade on me but, uh,

you know, uh, he showed me the knife. . . .” When asked whether the object “[c]ould

have been something” other than a knife, such as a phone, Taylor emphatically

stated, “No. I know a knife when I see one.” Taylor was further questioned by

defense counsel:

Q. If you were so scared, Mr. Taylor, why didn’t you go back into
Popeyes?

A. ‘Cause I know the person I had called and the police was [sic] on
their way.

On redirect, Taylor repeated that Defendant showed him a knife and

demanded that he take his wallet out of his pocket. Taylor reiterated that he felt

afraid and intimidated by Defendant and that Defendant took his money without his

permission.

Defendant contends that the evidence is insufficient to prove that he is guilty

of committing the offense of first degree robbery beyond a reasonable doubt.

According to Defendant, Taylor’s trial testimony and his behavior at the scene of the
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alleged robbery, as shown on the video, was “inconsistent” and “create[s] reasonable

doubt whether any crime was committed.” Defendant submits that the video does

not clearly show a robbery. Instead, the video reveals that rather than immediately

reporting the robbery, Taylor backed out of the parking space, drove around the

Popeyes parking lot, parked in another space, and then returned to the restaurant.

The State avers it is clear from the video and from Taylor’s testimony that

Defendant robbed Taylor. The State emphasizes that the law requires that it “prove

its case beyond a reasonable doubt, not every possible doubt[.]” Thus, it submits

that the jury, as the trier of fact, weighed the testimony and the evidence presented

and believed that Defendant’s conduct met the definition of first degree robbery.

Given the circumstances, we find it reasonable that Taylor was perhaps more

scared than the average victim and unable to quickly react to having been robbed by

a former acquaintance who exerted force and intimidation upon him after realizing

that his wallet contained a large amount of cash. As previously noted, “[d]irect

testimony by the victim that he believed the defendant was armed, or circumstantial

inferences arising from the victim’s immediate surrender of his personal possessions

in response to the defendant’s threats, may support a conviction for first degree

robbery.” Vaughn, 259 So.3d at 1057. Taylor testified that Defendant had a knife,

demanded his money, and took what money he had from his wallet. Taylor

explained that he was disabled from having been shot in the past. The jury was

shown video footage during the trial, and during its deliberations, requested, and was

allowed to view the footage an additional time. The jury’s verdict indicates it

believed Taylor’s version of the events. That credibility determination cannot be

second-guessed by this court. Thus, we conclude that Defendant’s first assigned

error lacks merit, and we affirm his conviction.

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Non-Unanimous Verdict

In his second assignment of error, Defendant contends that Louisiana’s

constitution and statutory provisions allowing a conviction with a verdict of less than

all twelve jurors violate the Equal Protection Clause of the United States

Constitution and the Sixth Amendment right to a jury trial.

In brief to this court, Defendant alleges that the historical record demonstrates

that Louisiana’s constitutional provision allowing for non-unanimous jury verdicts

violates equal protection because racial discrimination was a substantial or

motivating factor behind the enactment of La.Const. art. 1, § 17 and La.Code Crim.P.

art. 782.

At the time the offense was committed in May 2017, La.Const. art. 1, § 17(A)

provided, in part, “A case in which the punishment is necessarily confinement at

hard labor shall be tried before a jury of twelve persons, ten of whom must concur

to render a verdict.” At the time of Defendant’s May 2019 trial, however, La.Const.

art. 1, § 17(A), as amended by 2018 La. Acts No. 493, § 1, effective January 1, 2019,

read, in part:

A case for an offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, ten of whom must concur to render a
verdict. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, all of whom must concur to
render a verdict.

Louisiana Code of Criminal Procedure Article 782, which was also amended by

2018 Acts No. 493, § 1, effective January 1, 2019, now provides in pertinent part:

A. A case in which punishment may be capital shall be tried by
a jury of twelve jurors, all of whom must concur to render a verdict. A
case for an offense committed prior to January 1, 2019, in which
punishment is necessarily confinement at hard labor shall be tried by a
jury composed of twelve jurors, ten of whom must concur to render a
verdict. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
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be tried before a jury of twelve persons, all of whom must concur to
render a verdict.

Defendant was charged with committing armed robbery, an offense

punishable by imprisonment at hard labor for not less than ten years and for not more

than ninety-nine years. La.R.S. 14:64(B). Thus, Defendant was required to be tried

by a jury of twelve, ten of whom must concur to render a verdict. Defendant was

tried by a jury of twelve, and eleven of those jurors concurred in the verdict.

On appeal, Defendant refers this court to a ruling by Judge Beasley, of the

Eleventh Judicial District Court, in State v. Melvin Maxie, district court docket

number 13-CR-72522, that La.Const. art. 1, § 17 and La.Code Crim.P. art. 782 were

unconstitutional pursuant to the Equal Protection Clause of the Fourteenth

Amendment. While he concedes that it is not controlling authority, Defendant relies

on data introduced in Maxie to establish his claim.

We will explain Maxie in the context of State v. Hodge, 19-568, 19-569 (La.

11/19/19), __ So.3d __, which came before the Louisiana Supreme Court on direct

appeal from an Eleventh Judicial District Court ruling declaring unconstitutional the

jury verdict system found in La. Const. art. 1, § 17 and La. C.Cr.P. art. 782. The

trial court’s ruling in Hodge was based upon its prior ruling in “State v. Melvin

Cartez Maxie, 11th Judicial District Court, No. 13-CR-72522, rendered on October

11, 2018.” Id. at p. 2. “In Maxie, decided by the same judge, the district court ruled

that the nonunanimous jury regime ran afoul of the federal constitution’s Equal

Protection Clause. The state appealed, but before the record was lodged in [the

supreme] court, the state dismissed the appeal[.]” Id. The Hodge court addressed

the unanimous jury issue, stating:

At this concluding juncture, a longstanding rule–reflecting the
primary role of legislation in the justice system–bears repeating:
“Statutes are generally presumed to be constitutional and the party
challenging the validity of the statute bears the burden of proving it is
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unconstitutional.” [State v.] Hatton, 07-2377 at 13 [(La. 7/1/08)], 985
So.2d [709] at 719 (citing State v. Fleury, 01-0871, p. 5 (La. 10/16/01),
799 So.2d 468, 472; State v. Brenner, 486 So.2d 101, 103 (La. 1986);
and State v. Rones, 223 La. 839, 67 So.2d 99, 105 (1953)). Likewise,
“[a] constitutional provision begins as a legislative enactment and,
therefore, also requires enforcement by the district court.” [State v.]
Bazile, 11-2201 at 6 [(La. 1/24/12)], 85 So.3d [1] at 4 (citing La. Const.
art. XIII, § 1(A) and (C)). Measured by these principles, the district
court’s declaration of unconstitutionality in this case represents two
simultaneous errors: (i) creating, sua sponte, a constitutional challenge
to statutory and constitutional provisions and (ii) striking down those
laws as unconstitutional on the basis of an earlier, nonbinding district
court ruling.

Id. at pp. 7-8.

Defendant notes the supreme court’s decision in State v. Bertrand, 08-2215,

08-2311 (La. 3/17/09), 6 So.3d 738, that non-unanimous jury verdicts are

constitutional, is controlling. He claims, however, that the Bertrand decision should

be reconsidered because the Supreme Court’s decision in Apodaca v. Oregon, 406

U.S. 404, 92 S.Ct. 1628 (1972), that the United States Constitution does not mandate

unanimous jury verdicts in state court felony criminal trials, has come into question.

In support of that claim, Defendant cites Timbs v. Indiana, ___ U.S. ___, 139 S.Ct.

682 (2019). Therein, the Supreme Court found the excessive fines clause of the

Eighth Amendment was an incorporated protection, applicable to the States. The

Court also pointed out the sole exception to the incorporation of the Federal Bill of

Rights remained the unanimous jury verdict right of the Sixth Amendment. See Id.

at 687 n.1. Defendant further notes that the Supreme Court granted certiorari in

Ramos v. Louisiana, ___ U.S. ___, 139 S.Ct. 1318 (2019), and will determine

whether the Sixth Amendment’s guarantee of a unanimous jury verdict is

incorporated to the States through the Fourteenth Amendment. He asserts

unanimous juries must be required in all criminal cases.

In Bertrand, 6 So.3d at 742-43, the Louisiana Supreme Court stated:

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This Court has previously discussed and affirmed the
constitutionality of Article 782 on at least three occasions. In State v.
Jones, 381 So.2d 416 (La.1980), we ruled that Article 782 did not
violate the Sixth and Fourteenth Amendments. Later, in State v.
Simmons, 414 So.2d 705 (La.1982), we found that Article 782 did not
violate either the Fifth or Fourteenth Amendments. Finally, in State v.
Edwards, 420 So.2d 663 (La.1982), we again affirmed the statute’s
constitutionality.

....

Due to this Court’s prior determinations that Article 782
withstands constitutional scrutiny, and because we are not
presumptuous enough to suppose, upon mere speculation, that the
United States Supreme Court’s still valid determination that non-
unanimous 12 person jury verdicts are constitutional may someday be
overturned, we find that the trial court erred in ruling that Article 782
violated the Fifth, Sixth, and Fourteenth Amendments. With respect to
that ruling, it should go without saying that a trial judge is not at liberty
to ignore the controlling jurisprudence of superior courts.

This court has followed Bertrand and found non-unanimous jury verdicts are

constitutional. See State v. Frinks, 18-899 (La.App. 3 Cir. 6/12/19), 274 So.3d 635;

State v. Evans, 18-278, p. 34 (La.App. 3 Cir. 5/22/19) (unpublished opinion):

The recent constitutional change requiring unanimous verdicts has no
effect on the current case. As noted earlier, the trial took place in
August of 2017. Although the state constitution has since been
amended to require unanimous verdicts, that amendment explicitly
does not apply to felonies committed prior to January 1, 2019.
La.Const. art. 1, § 17.

See also State v. Jinks, 18-733 (La.App. 3 Cir. 5/1/19) (unpublished opinion); State

v. Barconey, 17-871 (La.App. 3 Cir. 3/7/18), 241 So.3d 1046; State v. Sims, 16-20

(La.App. 3 Cir. 9/28/16) (unpublished opinion), writ denied, 16-2076 (La. 9/6/17),

224 So.3d 984, cert. denied, ___ U.S. ___, 138 S.Ct. 1592 (2018).

Based on the rulings of this court and the supreme court, we find no merit to

Defendant’s second assignment of error.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.
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This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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