5D00-2260 Romero v. State

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2001 » 5D00-2260 Romero v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2260 Romero

Case Date: 05/28/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

AVIMAEL ANTONIO ROMERO, Appellant, v. Case No. 5D00-2260 STATE OF FLORIDA, Appellee. / Opinion filed June 1, 2001 Appeal from the Circuit Court for Orange County, Donald E. Grincewicz, Judge. James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. COBB, J. Romero appeals from his conviction for robbery, raising as his sole point the state's purported failure to prove an essential element of the crime charged. Romero was charged by amended information as follows: ROMERO, on the 27th day of June, 1999, . . . , did, in violation of Florida Statute 812.13(2)(a), by force, violence, assault or putting in fear, take away from the person or custody of MARK PROFITT or a Subway employee, certain property, to-wit: United States money current or a video cassette recorder, the property of MARK PROFITT or a Subway employee, as owner or custodian with the intent to temporarily or permanently deprive MARK PROFITT or a Subway

employee of a right to the property or a benefit therefrom or to appropriate the property to the defendant's own use or the use of any person not entitled thereto, and in the course of committing said robbery, AVIMAEL ANTONIO ROMERO did carry a deadly weapon, to-wit: a BB or pellet gun. At trial Jason Stahlin testified that he and Romero robbed the Subway sandwich shop. Romero knew about a security video camera and told Stahlin that they could remove the tape from the machine and take it with them. Romero and Stahlin obtained a BB/pellet gun, gloves and a different set of clothes. Stahlin picked up Romero and drove to the Subway. Romero told Stahlin that the money would be in the cash register. As they entered through the front door, Romero pointed the BB/pellet gun at the two men standing behind the counter. One of the men wore a Subway shirt, the other did not. The two men behind the counter seemed very scared. The man who was not wearing the Subway shirt had been counting money on the counter. The money had been in a bag and consisted of paper money, loose coins and rolled coins. Romero took the money and then pulled the video camera off the wall. Stahlin and Romero left taking the money and video camera with them. As they drove off the two robbers began changing their clothes and pulled off the roadway to dispose of the incriminating evidence. Romero, however, pulled the car into a ditch where it became stuck. Stahlin threw the clothing and gloves over a tall wooden fence and the two walked to find a pay phone to call a tow truck. Romero carried the cash taken during the robbery. As they were walking away from their disabled vehicle the police approached, ordered the two men to the ground and subsequently arrested them. Stahlin told the police what he and Romero had done and showed them the location of where they had disposed of the items used during the robbery. A wad of cash was retrieved from a bag which Romero had been carrying. A 2

palm print taken from the sandwich shop was identified as that of Romero. The only testimony concerning Mark Profitt was that of a police investigator who testified she spoke with the two men who had been in the Subway. No further testimony was presented relative to these two men. The defense moved for a judgment of acquittal asserting that the evidence was circumstantial and did not allow the exclusion of every reasonable hypothesis of innocence. The defense added there was no proof that either of the men in the sandwich shop was an employee of Subway, that either was the custodian of the money taken, or that the money belonged to Subway. The court denied the motion. The jury found the defendant guilty of the lesser offense of robbery. The issue on appeal is whether the state presented sufficient evidence that property was taken by Romero from Mark Profitt or a Subway employee as owner or custodian of that property. 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, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Download 5D00-2260 Romero v. State.pdf