Cleve Stone v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 6, 2013
• Docket: 49A05-1303-CR-102
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), Nov 06 2013, 5:35 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CLEVE STONE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1303-CR-102 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt M. Eisgruber, Judge Cause No. 49G01-1110-FA-69856

November 6, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge Case Summary

Cleve Stone appeals his convictions for Class A felony burglary and Class C felony

robbery. Because the evidence shows that Stone broke and entered a building with the

intent to commit theft and participated in taking another person’s wallet from his presence

with force, we conclude that the evidence is sufficient and therefore affirm.

Facts and Procedural History

On September 30, 2011, Efren Merino Lopez texted Crystal Holloway and asked

her to come to his mobile home and have sex with him in exchange for money. Shortly

thereafter, Crystal arrived at Efren’s mobile home with her friend, Bethany Arthur. Stone

and Josh Doan1 rode with the girls and remained in the car. According to Bethany, the

group planned to rob Efren. Crystal and Bethany went into Efren’s mobile home and

discussed the price for having sex. Crystal then went to the bathroom and called Stone on

her cell phone.

Stone and Doan ran from the car to the mobile home and burst inside demanding

money. Doan was armed with a pistol, and Stone was armed with an assault rifle. Crystal

and Bethany went to the car and waited for Doan and Stone. Doan pointed his gun at Efren.

He then hit Efren with the pistol, causing him to fall to the ground. Once on the ground,

Doan started kicking Efren and demanded money. Efren’s head and face were injured,

requiring stitches. Doan then asked if anyone else was in the house. Efren told Doan that

his brother, Fidel Merino Lopez, and two young children were sleeping in the other room.

1 In a related case, this Court affirmed the convictions of co-defendant Josh Doan and reversed his habitual-offender enhancement. Doan v. State, No. 49A04-1302-CR-90 (Ind. Ct. App. Nov. 6, 2013). 2 Doan went into the bedroom and awakened Fidel and his children. Stone stayed in the

living room, pointing his rifle at Efren.

Doan then ordered Fidel and his children into the living room. Once in the living

room, Doan hit Fidel with his pistol, knocking him to the floor. Stone hit Fidel with his

rifle, injuring Fidel’s head. Doan and Stone demanded money from Fidel.

Meanwhile, Bethany, who was still sitting in the car, became worried and returned

to the mobile home. Once inside, she went into Efren’s bedroom and rummaged through

his belongings, looking for valuables. Bethany then went back into the living room. Doan

grabbed Efren’s wallet and handed it to Bethany. She took the wallet to the car and then

returned to the mobile home.

Shortly thereafter, the police arrived. Doan, Stone, and Bethany escaped through

the back window of the mobile home. The police found Stone and Bethany behind the

mobile home. Stone’s rifle was also found behind the mobile home.

The State charged Stone with Class A felony burglary, two counts of Class B felony

robbery, two counts of Class C felony battery, and two counts of Class B felony criminal

confinement. Appellant’s App. p. 30-33. The State alleged that Stone was a habitual

offender. Id. at 60. Stone waived his right to a jury trial. Id. at 53-54.

A bench trial was conducted in January 2013. The trial court granted Stone’s motion

for a judgment on the evidence for one count of Class B felony robbery. Tr. p. 159-60.

The trial court found Stone guilty of Class A felony burglary, Class B felony robbery, two

counts of Class C felony battery, and two counts of Class B felony criminal confinement.

Id. at 174-76. Stone stipulated to being a habitual offender. Id. at 177.

3 At sentencing, among other things, the trial court reduced the Class B felony robbery

to a Class C felony. Appellant’s App. p. 27; Tr. p. 190-91. The trial court sentenced Stone

to seventy years imprisonment, which included a thirty-year habitual-offender

enhancement. Tr. p. 215-216. The trial court ordered the final four years of Stone’s

sentence to be executed at Community Corrections. Id.

Stone now appeals.

Discussion and Decision

Stone contends that the evidence is insufficient to support his convictions for Class

A felony burglary and Class C felony robbery. He does not challenge his other convictions.

When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor

determine the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

We look solely to the evidence most favorable to the judgment together with all reasonable

inferences to be drawn therefrom. Id. A conviction will be affirmed if the probative

evidence and reasonable inferences to be drawn from the evidence could have allowed a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

Class C felony burglary is the breaking and entering of the building or structure of

another with the intent to commit a specific felony therein. Ind. Code § 35-43-2-1. The

offense is elevated to a Class A felony if it results in bodily injury or serious bodily injury

to any person other than a defendant. Id. § 35-43-2-1(2).

Stone argues that the evidence is insufficient to support his conviction for Class A

felony burglary because he lacked the requisite intent to commit a felony inside Efren’s

house. The “intent to commit a specific felony at the time of the breaking and entering

4 may be inferred from the circumstances.” Baker v. State, 968 N.E.2d 227, 229-30 (Ind.

2012) (internal quotations omitted). The evidence showing the intent to commit a felony

“need not be insurmountable, but there must be a specific fact that provides a solid basis to

support a reasonable inference that the defendant had the specific intent to commit a

felony.” Id. at 230 (internal quotations omitted). The evidentiary inference of intent must

be distinct and separate from the evidentiary inference supporting a breaking and entering.

Id.

The evidence most favorable to the conviction shows that after receiving a call from

Crystal, Stone broke into Efren’s home, struck Fidel with his weapon, and demanded

money. Tr. p. 86-87. This, alone, was sufficient to justify the Class A felony burglary

conviction. Moreover, Bethany stated that, “it was never really gonna be prostitution. It

was a robbery.” Id. at 111. Stone’s argument that he entered the house in order to protect

the women is an attempt to reweigh the evidence, something this Court cannot do.

Class C felony robbery occurs when a person “knowingly or intentionally takes

property from another person or from the presence of another person: (1) by using or

threatening the use of force on any person; or (2) by putting any person in fear . . . .” Ind.

Code § 35-42-5-1.

Stone argues that the evidence is insufficient support his conviction for robbery

because he lacked the intent to commit a robbery. However, when Stone entered Efren’s

home, he brandished his rifle and demand money from Efren. Tr. p. 28-29. Stone held

Efren at gunpoint while Bethany looked through drawers for valuables in Efren’s bedroom.

Moreover, Doan gave Bethany Efren’s wallet, which she carried to the car. When the

5 police arrived, the fact that Stone fled out the back window further suggests he intended to

rob Efren. See Brown v. State, 563 N.E.2d 103, 107 (Ind. 1990) (holding that a defendant’s

flight can be considered circumstantial evidence of consciousness of guilt). The other

arguments Stone raises are merely an invitation to reweigh the evidence, which we cannot

to do. We therefore affirm Stone’s convictions for Class A felony burglary and Class C

felony robbery.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.