Sandra Franklin appeals from the trial court’s order revoking four years of her probation on the basis that she committed the new felony offense of robbery. She claims there was insufficient evidence to support a finding that she committed the offense of robbery, and that the State violated her due process rights by failing to collect and preserve exculpatory evidence. 1. The revocation petition charged that, while Franklin was serving the probated portion of a sentence on a prior felony offense, she violated her probation when she committed the new offense of robbery in Clark County on September 17, 2006. At the hearing on the revocation petition, the State produced evidence that, on the date alleged, two police officers were on patrol in Clark County in the City of Athens at about 2:00 a.m. when they saw Franklin standing on a street corner in front of a man who appeared to be unsteady on his feet and extremely intoxicated. Because of prior incidents involving robbery of intoxicated victims, the officers were on the lookout for incidents of that nature. The officers observed that the man was leaning back against a trash container and that Franklin was reaching around the man’s waist and “patting his pockets and running her hands in his pockets.” One officer said that she “saw Franklin’s hand in his back pocket.” When the officers approached and told Franklin to step back, Franklin blurted out, “I was trying to help him. I didn’t rob anybody.” When Franklin stepped back from the man, the officers saw a wallet on the ground near Franklin. The driver’s license and credit cards in the wallet identified it as belonging to the intoxicated man. According to the officers, the man was so intoxicated at the time that, when Franklin moved away from him, he slumped down unconscious and unresponsive. The State presented no evidence that the intoxicated man resisted Franklin or was even aware of Franklin’s presence. The man involved in the incident testified at the revocation hearing that he remembered drinking alcoholic beverages in several bars and becoming “very intoxicated,” but that he had no memory of his encounter with Franklin. He testified that he did not know Franklin and that she did not have permission to remove or take his wallet.
Franklin argued at the hearing that the evidence produced by the State was insufficient to show that she committed the offense of robbery, as alleged in the revocation petition. Franklin contended that, even if there was circumstantial evidence that she took the man’s wallet from his pocket, the evidence did not establish robbery because the man was so intoxicated that he was unaware his wallet had been taken until he was informed of what had occurred at a later time. Franklin also argued that the circumstantial evidence was insufficient to show that she committed the lesser included offense of theft by taking. After considering the evidence and arguments, the trial court found that the evidence showed Franklin committed the felony offense of robbery and revoked four years of her probation.
