State v. Lewis - 39263 ( La. App. 2 Cir 01/26/05), 892 So. 2d 702

Rule:

It is clear that a loaded gun, pointed at a robbery victim, carries the inherent threat that death or great bodily harm is likely to result. However, unworkable or unloaded guns can constitute dangerous weapons when used in a manner likely to produce death or great bodily harm. The likelihood of this serious harm can come from the threat perceived by victims and bystanders. The highly charged atmosphere of a pistol robbery is conducive to violence regardless of whether the pistol is loaded or workable because the danger created invites rescue and self-help. Such a threat may exist even though the gun is not directly pointed at the victim. However, the subjective reaction of the victim is not the sole determinative factor in evaluating whether an instrumentality has been used as a dangerous weapon.

Facts:

Defendant April Shanay Lewis, with a co-perpetrator, robbed the Farmerville Highway branch of Community Trust Bank in Ruston, Louisiana. After a trial on the merits, defendant was found guilty on three counts of armed robbery. She was sentenced to serve three concurrent 20-year hard labor sentences, without benefits. On appeal, defendant contended brandishing a BB gun did not suffice to create the "charged atmosphere" necessary to support a finding that the gun was a dangerous weapon sufficient to support the verdict beyond a reasonable doubt. She also argued that her 20-year sentence was excessive.

Issue:

1. Under the circumstances, should defendant’s conviction be upheld? 
2. Was defendant’s 20-year sentence excessive? 

Answer:

1) Yes. 2) No.

Conclusion:

The appellate court disagreed, finding that defendant perpetrated the crime in a bank, during business hours, creating a strong likelihood that bystanders might have come to the aid of the tellers or attempt to thwart defendant's escape. Furthermore, this was an armed robbery of a bank which, by its very nature, created a "highly charged" atmosphere, regardless of whether the pistols were loaded or workable because the danger created invited rescue and self-help. Although a first-felony offender, the record indicated that defendant willingly and aggressively participated in this armed robbery, and each of her three 20-year sentences was less than one-fourth the maximum possible sentence of 99 years. As such, the appellate court found that defendant's sentences were not constitutionally excessive.