Law School Case Brief
State v. Byrd - 385 So. 2d 248 (La. 1980)
The victim's potential reaction to an instrumentality not inherently dangerous can be considered by the jury in determining whether the instrumentality "in the manner used" is likely to produce great bodily harm and is therefore a "dangerous weapon" under La. Rev. Stat. Ann. § 14:2(3).
Defendant Charles Byrd ordered food at a restaurant window. When the employee asked for money, Byrd took a toy pistol from his pocket and held it up in the air, demanding all of the money in the register. When the employee stated there was no money, Byrd grabbed the food and began to walk away. The employee grabbed the food back and closed the window on Byrd, who then left the window. Two policemen who happened to observe the incident arrested defendant. The district court convicted and sentenced Byrd for the crime of attempted armed robbery. Byrd appealed the conviction.
Was the toy pistol a "dangerous weapon" within the contemplation of La. Rev. Stat. Ann. §§ 14:64 and 14:2(3) in the manner used by defendant?
The Supreme Court of Louisiana held that because the victim's reaction to the toy gun could be considered by the jury in determining whether the toy gun, in the manner used, was likely to produce great bodily harm, and because the victim's subjective reaction indicated that he did not perceive any likelihood of great bodily harm, a reasonable trier of fact, by a view of the evidence in the light most favorable to the prosecution, simply could not have concluded that all elements of attempted armed robbery had been proved beyond a reasonable doubt. However, the discharge of Byrd was neither necessary nor proper; the evidence supported a conviction on the lesser and included offense of attempted simple robbery, which was a legislatively authorized responsive verdict. The Court set aside the conviction and sentence for the crime of armed robbery, and the matter was remanded to the trial court with instructions to enter judgment of guilt for the crime of attempted simple robbery, and to sentence defendant accordingly.
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