MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2017, 9:13 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Brant Curtis T. Hill, Jr. Brown, DePrez & Johnson, P.A. Attorney General of Indiana Shelbyville, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Danny L. Hersley, Jr., February 17, 2017 Appellant-Defendant, Court of Appeals Case No. 16A05-1602-CR-364 v. Appeal from the Decatur Circuit Court State of Indiana, The Honorable Timothy B. Day, Appellee-Plaintiff Judge Trial Court Cause No. 16C01-1509-F3-633
Mathias, Judge.
[1] Danny L. Hersley, Jr. (“Hersley”) was convicted in Decatur Circuit Court of
Level 3 felony Robbery and was adjudicated a habitual offender. He appeals
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 1 of 8 both his conviction and adjudication, challenging the sufficiency of the
evidence. He also argues that the trial court committed a double jeopardy
violation when it consolidated the guilty verdicts for Level 5 felony robbery and
Class A misdemeanor theft with the Level 3 felony robbery guilty verdict.
[2] We affirm.
Facts and Procedural History
[3] In the early morning hours on September 19, 2015, Uriah Brumley (“Brumley”)
and Hersley were outside Brumley’s cousin’s home on North Carver Street in
Greensburg, Indiana. Hersley was a friend of Brumley’s father, and they had
known each other for several years. Hersley was at the house to purchase drugs.
[4] At some point, Hersley hit Brumley in the back of the head. Brumley fell to the
ground, and Hersley punched the right side of Brumley’s face. Brumley lost
consciousness for several seconds after he fell to the ground. Hersley then stole
approximately $250 and methamphetamine from Brumley’s pockets. Hersley
fled the scene on his mountain bike.
[5] Brumley reported the incident to the police. Officer Matthew Terkhorn of the
Greensburg Police Department interviewed Brumley and took photographs of
Brumley’s injuries. The officer observed that the right side of Brumley’s face
was swollen and scraped. Tr. p. 233. Brumely’s father also observed that
Brumely’s face was red, he had a knot on the back of his head, and he had red
marks on his ribs. Tr. p. 324.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 2 of 8 [6] Hersley was charged with Level 2 felony robbery, Level 3 felony robbery, Level
5 felony robbery and Class A misdemeanor theft. The State also alleged that he
was a habitual offender. A bifurcated jury trial commenced on December 15,
2015.
[7] At trial, Brumley testified that he was a drug user and had previously sold
methamphetamine to Hersley and one of Hersley’s friends. Transcribed
telephone calls between Hersley from jail and various individuals were also
admitted at trial. During the recorded conversations with his friends, Hersley
admitted to taking “dope” from Brumley. Ex. Vol., State’s Exs. 14-36. Hersley
stated that he took the “dope” because his friend “Special K” gave Brumley
$150 to purchase 1.5 grams of methamphetamine, but Brumley gave “Special
K” rock salt. Id.; see also Tr. p. 425. In the recorded calls, Hersley denied hitting
Brumley or taking his money.
[8] Joshua Motz testified that he saw Hersley and Brumley together on Carver
Street on September 19, 2015. He stated that he saw them walk away from each
other in opposite directions and did not witness an altercation. Tr. pp. 258-60.
In the recorded phone calls discussed above, Hersley repeatedly tried to find out
if Motz was going to testify at trial. Ex. Vol., State’s Exs. 14-36. Hersley
wanted Motz to testify that Hersley had not touched Brumley. In the phone
calls, Hersley threatened Motz when he was told that Motz initially was not
cooperating with the police. Hersley also asked his friends to contact Brumley’s
father to discuss the case.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 3 of 8 [9] Hersley was found not guilty of Level 2 felony robbery, but guilty of Level 3
felony robbery, Level 5 felony robbery, and Class A misdemeanor theft. The
trial court consolidated the Level 5 felony robbery and misdemeanor theft
verdicts with the Level 3 felony robbery verdict. The court then entered
judgment of conviction on the Level 3 felony robbery guilty finding. Hersley
was also adjudicated a habitual offender. The trial court ordered Hersley to
serve an aggregate twenty-two-year sentence executed in the Department of
Correction. Hersley now appeals.
Sufficient Evidence
[10] Hersley challenges the sufficiency of the evidence on the Level 3 robbery
conviction and the habitual offender adjudication. Our standard of review in
claims of insufficient evidence is well settled: we neither reweigh the evidence
nor judge the credibility of the witnesses, and we consider only the evidence
most favorable to the verdict and the reasonable inferences that can be drawn
from this evidence. Knight v. State, 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We
will not disturb the jury’s verdict if substantial evidence of probative value
supports it. Id. As an appellate court, we respect the jury’s exclusive province to
weigh conflicting evidence. Id.
A. Robbery
[11] To convict Hersley of Level 3 robbery, the State was required to prove that he
knowingly or intentionally took property from Brumley by using force or the
threat of force, which resulted in bodily injury to Brumley. Appellant’s App. p.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 4 of 8 17; Ind. Code § 35-42-5-1. Hersley argues that the State failed to prove that
Brumley suffered bodily injury, the element that enhanced the felony from a
Level 5 felony to a Level 3 felony.
[12] Brumley testified that he was hit in the head and fell to the ground. He stated he
was then punched in the face and lost consciousness for several seconds. Officer
Terkhorn responded to Brumley’s report that he had been robbed. He took
photographs of Brumley’s injuries, which were admitted at trial. The officer
observed that the right side of Brumley’s face was swollen and scraped. Tr. p.
233. Brumely’s father testified that after the robbery, Brumely’s face was red, he
had a knot on the back of his head, and he had red marks on his ribs. Tr. p. 324.
Brumley unequivocally named Hersley as the person who physically assaulted
him and took his money and methamphetamine.
[13] Hersley’s argument that the State failed to prove that Brumley suffered bodily
injury is simply a request to reweigh the evidence and the credibility of the
witnesses, which our court will not do. Hersley observes that Brumley’s
testimony at trial was not entirely consistent with his pre-trial statements.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2017, 9:13 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Brant Curtis T. Hill, Jr. Brown, DePrez & Johnson, P.A. Attorney General of Indiana Shelbyville, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Danny L. Hersley, Jr., February 17, 2017 Appellant-Defendant, Court of Appeals Case No. 16A05-1602-CR-364 v. Appeal from the Decatur Circuit Court State of Indiana, The Honorable Timothy B. Day, Appellee-Plaintiff Judge Trial Court Cause No. 16C01-1509-F3-633
Mathias, Judge.
[1] Danny L. Hersley, Jr. (“Hersley”) was convicted in Decatur Circuit Court of
Level 3 felony Robbery and was adjudicated a habitual offender. He appeals
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 1 of 8 both his conviction and adjudication, challenging the sufficiency of the
evidence. He also argues that the trial court committed a double jeopardy
violation when it consolidated the guilty verdicts for Level 5 felony robbery and
Class A misdemeanor theft with the Level 3 felony robbery guilty verdict.
[2] We affirm.
Facts and Procedural History
[3] In the early morning hours on September 19, 2015, Uriah Brumley (“Brumley”)
and Hersley were outside Brumley’s cousin’s home on North Carver Street in
Greensburg, Indiana. Hersley was a friend of Brumley’s father, and they had
known each other for several years. Hersley was at the house to purchase drugs.
[4] At some point, Hersley hit Brumley in the back of the head. Brumley fell to the
ground, and Hersley punched the right side of Brumley’s face. Brumley lost
consciousness for several seconds after he fell to the ground. Hersley then stole
approximately $250 and methamphetamine from Brumley’s pockets. Hersley
fled the scene on his mountain bike.
[5] Brumley reported the incident to the police. Officer Matthew Terkhorn of the
Greensburg Police Department interviewed Brumley and took photographs of
Brumley’s injuries. The officer observed that the right side of Brumley’s face
was swollen and scraped. Tr. p. 233. Brumely’s father also observed that
Brumely’s face was red, he had a knot on the back of his head, and he had red
marks on his ribs. Tr. p. 324.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 2 of 8 [6] Hersley was charged with Level 2 felony robbery, Level 3 felony robbery, Level
5 felony robbery and Class A misdemeanor theft. The State also alleged that he
was a habitual offender. A bifurcated jury trial commenced on December 15,
2015.
[7] At trial, Brumley testified that he was a drug user and had previously sold
methamphetamine to Hersley and one of Hersley’s friends. Transcribed
telephone calls between Hersley from jail and various individuals were also
admitted at trial. During the recorded conversations with his friends, Hersley
admitted to taking “dope” from Brumley. Ex. Vol., State’s Exs. 14-36. Hersley
stated that he took the “dope” because his friend “Special K” gave Brumley
$150 to purchase 1.5 grams of methamphetamine, but Brumley gave “Special
K” rock salt. Id.; see also Tr. p. 425. In the recorded calls, Hersley denied hitting
Brumley or taking his money.
[8] Joshua Motz testified that he saw Hersley and Brumley together on Carver
Street on September 19, 2015. He stated that he saw them walk away from each
other in opposite directions and did not witness an altercation. Tr. pp. 258-60.
In the recorded phone calls discussed above, Hersley repeatedly tried to find out
if Motz was going to testify at trial. Ex. Vol., State’s Exs. 14-36. Hersley
wanted Motz to testify that Hersley had not touched Brumley. In the phone
calls, Hersley threatened Motz when he was told that Motz initially was not
cooperating with the police. Hersley also asked his friends to contact Brumley’s
father to discuss the case.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 3 of 8 [9] Hersley was found not guilty of Level 2 felony robbery, but guilty of Level 3
felony robbery, Level 5 felony robbery, and Class A misdemeanor theft. The
trial court consolidated the Level 5 felony robbery and misdemeanor theft
verdicts with the Level 3 felony robbery verdict. The court then entered
judgment of conviction on the Level 3 felony robbery guilty finding. Hersley
was also adjudicated a habitual offender. The trial court ordered Hersley to
serve an aggregate twenty-two-year sentence executed in the Department of
Correction. Hersley now appeals.
Sufficient Evidence
[10] Hersley challenges the sufficiency of the evidence on the Level 3 robbery
conviction and the habitual offender adjudication. Our standard of review in
claims of insufficient evidence is well settled: we neither reweigh the evidence
nor judge the credibility of the witnesses, and we consider only the evidence
most favorable to the verdict and the reasonable inferences that can be drawn
from this evidence. Knight v. State, 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We
will not disturb the jury’s verdict if substantial evidence of probative value
supports it. Id. As an appellate court, we respect the jury’s exclusive province to
weigh conflicting evidence. Id.
A. Robbery
[11] To convict Hersley of Level 3 robbery, the State was required to prove that he
knowingly or intentionally took property from Brumley by using force or the
threat of force, which resulted in bodily injury to Brumley. Appellant’s App. p.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 4 of 8 17; Ind. Code § 35-42-5-1. Hersley argues that the State failed to prove that
Brumley suffered bodily injury, the element that enhanced the felony from a
Level 5 felony to a Level 3 felony.
[12] Brumley testified that he was hit in the head and fell to the ground. He stated he
was then punched in the face and lost consciousness for several seconds. Officer
Terkhorn responded to Brumley’s report that he had been robbed. He took
photographs of Brumley’s injuries, which were admitted at trial. The officer
observed that the right side of Brumley’s face was swollen and scraped. Tr. p.
233. Brumely’s father testified that after the robbery, Brumely’s face was red, he
had a knot on the back of his head, and he had red marks on his ribs. Tr. p. 324.
Brumley unequivocally named Hersley as the person who physically assaulted
him and took his money and methamphetamine.
[13] Hersley’s argument that the State failed to prove that Brumley suffered bodily
injury is simply a request to reweigh the evidence and the credibility of the
witnesses, which our court will not do. Hersley observes that Brumley’s
testimony at trial was not entirely consistent with his pre-trial statements.
Hersley also cites his and Motz’s testimonies that Hersley did not touch
Brumley. However, it was within the exclusive province of the jury to weigh
Brumley’s credibility and the State’s other evidence against Hersley’s and
Motz’s testimonies. For these reasons, we conclude that the State presented
sufficient evidence from which a reasonable fact-finder could conclude that
Hersley used force to rob Brumley causing Brumley to suffer bodily injury.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 5 of 8 B. Habitual Offender
[14] Citing Indiana Code section 35-50-2-8(d), Hersley argues that the State failed to
prove that he was a habitual offender. Specifically, he claims that the evidence
was insufficient to establish that not more than ten years had elapsed between
his last release from imprisonment, probation, or parole and the date of the
instant offense. Subsection (d) of the habitual offender statute applies to a
person who has allegedly committed a Level 5 or 6 felony. In this case, Hersley
was convicted of a Level 3 felony; therefore, subsection (d) does not apply.
[15] Because Hersley was convicted of a Level 3 felony, we must look at subsection
(b) of the habitual offender statute. Subsection (b) of Indiana Code section 35-
50-2-8 defines a habitual offender as a person convicted of a Level 1 through
Level 4 felony “if the state proves beyond a reasonable doubt that: (1) the
person has been convicted of two (2) prior unrelated felonies; and (2) at least
one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D
felony.”
[16] As required by subsection (b), the State proved that Hersley was previously
convicted of two unrelated felonies: Class C felony forgery in 1989 and Class C
felony forgery in 2000.1 Therefore, the State proved that Hersley is a habitual
offender as defined under Indiana Code section 35-50-2-8(b).
1 The State also proved that Hershey was convicted of Class D felony theft in 1995.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 6 of 8 Double Jeopardy
[17] Article 1, Section 14 of the Indiana Constitution provides in pertinent part: “No
person shall be put in jeopardy twice for the same offense.” Hersley argues that
the trial court violated the double jeopardy clause by failing to vacate the guilty
verdicts for Level 5 felony robbery and Class A misdemeanor theft.
[18] “A defendant's constitutional rights are violated when a court enters judgment
twice for the same offense, but not when a defendant is simply found guilty of a
particular count.” Green v. State, 856 N.E.2d 703 (Ind. 2006). A guilty verdict
can be a significant legal event, “but only if a court later enters judgment on it.”
Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015); see also Gardiner v. State, 928
N.E.2d 194, 197 (Ind. 2010) (stating that “the penal consequences of a guilty
finding are trigged only by the entry of a judgment of conviction”).
[19] When no judgment of conviction is entered on the jury’s verdict, it is
unnecessary to vacate the verdict. See Carter v. State, 750 N.E.2d 778, 781 n.8
(Ind. 2001) (“[A] claim of multiple punishment for the same offense requires
multiple judgments of conviction, entered by the trial court.”); see also Green,
856 N.E.2d at 703 (Ind. 2006) (holding “[w]here the court merges the lesser-
included offense without imposing judgment, there is no need to remand on
appeal to vacate.”). “[M]ore harm than good may result if a trial court ‘vacates'
a jury verdict not reduced to judgment. If a conviction for a greater offense is
reversed . . . a conviction for the lesser offense may remain valid.” Carter, 750
N.E.2d at 781 n.9.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 7 of 8 [20] Here, faced with double jeopardy concerns, the trial court properly declined to
enter judgment of conviction on the Level 5 felony robbery and Class A
misdemeanor theft guilty verdicts. The court “consolidated” the guilty verdicts
on those offenses with the guilty verdict for Level 3 felony robbery, and only
entered judgment of conviction for Level 3 felony robbery. Appellant’s App. p.
39. Because the trial court only entered judgment of conviction on the Level 3
felony robbery guilty verdict, Hersley has not established a double jeopardy
violation.
Conclusion
[21] We affirm Hersley’s Level 3 felony robbery conviction and habitual offender
adjudication.
[22] Affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017 Page 8 of 8