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Challenges to armed robbery conviction and sentence rejected, but sentence credit granted

State v. Sean N. Jones, 2018AP948-CR, District 3, 8/20/19 (not recommended for publication); case activity (including briefs)

Jones makes various challenges to his conviction and sentence for being to party to the crime of armed robbery. The court of appeals rejects all of his claims except the last one, involving sentence credit.

Jones first challenges the sufficiency of the evidence to show he knew his accomplice in the robbery was armed, which was required to proved Jones aided and abetted an armed robbery, rather than just a robbery. The victim (“Elena”) testified to seeing the accomplice briefly lift his shirt to reveal what appeared to be a gun, but the gun wasn’t referred to or brandished during the event, and, Jones claims, comparing the surveillance video to the victim’s testimony shows he wasn’t in a position to have seen the weapon during the brief display of it. (¶¶3-6, 18).

The court of appeals isn’t convinced:

¶19      …. At trial, the evidence showed that the robbery had been planned to such a degree that Jones and his accomplice did not need to speak to one another at all during the crime. Surveillance video showed that the two individuals stood together in the parking lot for more than ten minutes before entering the hotel lobby together. Once they entered the lobby, they immediately commenced performing what appear to be their predetermined roles in the robbery. Jones emptied a bag, and he and Elena filled it with money and items from the cash drawer, all while the taller individual stood in front of Elena and issued commands
to her.

¶20      Jones acknowledges this evidence, but he argues that for it to be probative of his knowledge, the State also needed to present direct evidence that their plan included the use, or threat of use, of a firearm. In other words, Jones seeks a general rule that “evidence showing a plan to commit a robbery cannot by itself provide a basis to prove the extra elements necessary to prove aiding and abetting an armed robbery.” We reject such a blanket proposition. When the commission of a robbery involves the use or threat of use of a firearm, the degree of the perpetrators’ planning—as evidenced by their conduct both before and during the robbery or by direct evidence of their plan—may give rise to a reasonable inference that a particular defendant had actual knowledge that his or her accomplice was armed during the robbery.

¶21      The evidence also does not confirm Jones’s assertion that based on his position and the direction he was facing during the incident, it was impossible that he could have seen his accomplice show the gun to Elena. This court has reviewed the surveillance video of the robbery that was presented at trial. Because of the lobby camera’s position, the taller man is obscured from view and it is difficult, if not impossible, to discern when he flashed the weapon, let alone to determine what Jones could see from his position at various times. Based upon the video, we cannot deem the jury to have engaged in unsupported speculation.

¶22      Moreover, because Elena’s testimony described in a general fashion the sequence in which things happened, not precisely when they occurred, combining her testimony with the video does not establish that it was impossible for Jones to see that his accomplice was armed. Elena was specifically asked whether, from her perspective, Jones could have been aware the other individual was carrying a gun. She answered, “I can’t say.” Elena later stated she could not testify as to what Jones may or may not have seen. Contrary to Jones’s assertions, Elena’s testimony does not definitively establish that Jones could not see the firearm. Based upon the totality of the trial evidence, the jury could reasonably infer that Jones had actual knowledge that his accomplice was armed and might use or threaten the use of the weapon

Relatedly, the court rejects Jones’s arguments that the jury should have been instructed on the lesser included offense of robbery and with Wis. J.I.-Criminal 406, regarding whether the armed robbery was a natural and probable consequence of the robbery Jones helped to commit. (¶¶26-32). Nor did the circuit court err in admitting testimony about Jones’s nickname (“Sneak”) or that the police knew him through prior “professional” contacts, as that evidence was relevant to establishing Jones’s identity. (¶¶33-39).

Jones also argues the circuit court erred at sentencing because it didn’t sufficiently explain why the duration of each part of the bifurcated sentence advanced the objectives the court articulated. (¶¶40-45). Not so, says the court of appeals:

¶47     Jones’s argument is not supported by existing sentencing law, which recognizes “that the exercise of discretion does not lend itself to mathematical precision.” [State v.] Gallion, [2004 WI 42,] 270 Wis. 2d 535, ¶49[, 678 N.W.2d 197]. Indeed, our supreme court stated it did not expect circuit courts to explain, for example, the difference between sentences of fifteen and seventeen years. Id. This appears to be precisely the type of explanation Jones seeks here. All that is required is “an explanation for the general range of the sentence imposed,” id., which the circuit court provided….

Jones prevails only on his sentence credit claim. He was on probation for two prior convictions when he was arrested for the robbery, leading to a probation hold, revocation of probation, and sentencing after revocation. The robbery sentence was ordered to run concurrently with the revocation sentences, so Jones sought credit in the robbery case for the 204 days from his arrest to his sentencing after revocation. (¶¶48-50).

The circuit court gave him nothing, and the state says he was entitled to only 74 days, when he signed a signature bond in the robbery case, on the theory that “severed” the factual connection between Jones’s custody and the armed robbery case. (¶¶12, 54). Jones countered the connection wasn’t severed till sentencing after revocation under State v. Beets, 124 Wis. 2d  372, 369 N.W.2d 382 (1985), and State v. Hintz, 2007 WI App 113, 300 Wis. 2d 583, 731 N.W.2d 646. Jones is right, says the court:

¶55     We reject the State’s arguments, principally because they fail to square with Hintz…. In Hintz, we recognized that the imposition of a signature bond does not relieve the defendant of the consequences of an administrative hold based on a subsequent crime. See Hintz, 300 Wis. 2d 583, ¶11. As a result, we agree with Jones that “[n]othing about the signature bond in the armed robbery case altered” the factual basis on which the probation hold was issued, nor did it alter the fact that the sentences imposed in each of the three cases were factually connected with the same course of conduct.

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