243 Wis. 57, 9 N.W.2d 68.
On the evening of February 14, 2007, Tony Gray entered a Clarksville Arby's fast-food restaurant and, keeping his right hand in his jacket pocket, ordered employee Stacy Dodge to get behind the counter.1 Dodge saw what looked like could have been a weapon in Gray's jacket and figured it was a gun. Gray took manager Stacey Clark to the back of the restaurant and instructed the other employees to lie down on the floor. Clark saw a black handle in Gray's pocket, was told to stay calm so no one would get hurt, and assumed it was a gun. Gray took over one thousand dollars and fled through a side door.2
Four days later, Gray entered a Clarksville Long John Silver's restaurant, grabbed manager Kathleen Doss by the arm, and told her that he was robbing the restaurant.3 Gray had something in his pocket that Doss thought was a gun, and customer Ella Henley saw something in Gray's pocket which she thought was a gun.4 Gray ordered employees to stand against a wall and told general manager Thomas Jones that he would end up getting himself shot.5 Gray took approximately two thousand six hundred dollars and left through the back door.6
Clarksville police officer Carl Durbin saw Gray running from the Long John Silver's toward the back of a neighboring Firestone Auto Care Center roughly two hundred feet away. Durbin stopped Gray's car within ten to twelve seconds and placed him under arrest. Captain Dale Hennessey inventoried Gray's car and found the money from the restaurant in the front seat but no firearm anywhere on Gray's person, in the automobile, or in the vicinity. An electric shaver was found in Gray's right jacket pocket.78
Gray was convicted by a jury of two counts of armed robbery and three counts of armed criminal confinement as Class B felonies. He was also convicted as a habitual offender and sentenced to an aggregate term of seventy years imprisonment.9 Gray appealed to the Court of Appeals, which affirmed the convictions over Judge Barnes's dissent. Gray petitioned for transfer, which the Supreme Court granted.10
Whether the evidence is sufficient to establish that Gray possessed a gun during the Arby's incident?11
Robbery is a Class B felony if committed while armed with a deadly weapon, requiring the State to prove the defendant actually possessed a gun at the time of the offense.12
Yes. Although no firearm was seen by the Arby's employees, Gray kept his right hand in his jacket pocket throughout the robbery.13 Manager Stacey Clark observed a black handle protruding from the pocket and assumed it was a gun after Gray warned her to stay calm so no one would get hurt.14 The employees' decision to cooperate despite outnumbering Gray four to one further supports the inference that Gray actually possessed a gun, as required to elevate the offense to a Class B felony.15
The evidence is sufficient to sustain the finding that Gray possessed a gun during the Arby's incident.16
Whether the evidence is sufficient to establish that Gray possessed a gun during the Long John Silver's incident?17
Although a defendant's statements and conduct may support an inference that he was armed. Immediate arrest with no opportunity to dispose of a weapon and the failure to recover any gun precludes a finding of actual possession beyond a reasonable doubt.18
No. Gray was stopped by police within ten to twelve seconds after leaving the Long John Silver's only two hundred feet away.19 No firearm was found on his person, in his car, or in the vicinity, but an electric shaver was recovered from his jacket pocket.20 These facts make it impossible to conclude beyond a reasonable doubt that Gray possessed a gun at the time of the Long John Silver's robbery.21
The evidence is insufficient to sustain the finding that Gray possessed a gun during the Long John Silver's incident.22