State v. Shutt

ORDER

This matter came before the Supreme Court on March 17, 1995, pursuant to an order directing the defendant to show cause why his appeal should not be summarily decided. In this case the defendant has appealed from a Superior Court’s finding that he violated his probation and ordering him to serve out two previously-imposed suspended sentences concurrently.

After reviewing the memoranda submitted by the parties and after hearing their counsel in oral argument, this court concludes that cause has not been shown. The appeal will be decided on the merits at this time.

In this ease testimony was presented establishing that defendant stole $181 from Pizza King Restaurant, committed assault and battery, and attempted to obstruct the police in his apprehension. There was testimony from several witnesses that defendant reached over the counter at the restaurant, to the register to accomplish the theft. The witness said he saw defendant’s face for about five seconds, and immediately notified another worker at the restaurant. The defendant ran out of the restaurant. The owner went to the back door of the restaurant and saw defendant running around a corner near a gas station. The Warwick police pursued and apprehended defendant. The witness saw defendant half an hour later with the police holding him. There is testimony from other occupants and workers in the restaurant. The defendant resisted arrest, yelled at the police and had to be physically placed in the police car. The defendant appeared to be intoxicated. The defendant testified in his own defense as to the amount of liquor he had consumed shortly before the robbery and testified that he had blacked out. He said that was the first time in two and a half years that he had gotten drunk and did not recall the theft of the money.

After hearing, the trial justice said that he did not believe defendant, especially defendant’s claim that he was so drunk that he did not recall the robbery and subsequent events. The judge found that the defendant violated his probation and was convinced the assault took place.

In light of the evidence presented and the inconsistencies.in the defendant’s testimony this court is of the opinion that the trial justice’s findings were not arbitrary nor capricious and that defendant had violated his probation.

For these reasons the defendant’s appeal is denied and dismissed, the violation appealed from his affirmed, and the papers of the case are remanded to the Superior Court.