MEMORANDUM DECISION Mar 17 2015, 10:33 am Pursuant to Ind. Appellate Rule 65(D), 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 Kathie A. Perry Gregory F. Zoeller Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devan L. Jones, March 17, 2015
Appellant-Defendant, Court of Appeals Case No. 73A01-1408-CR-334 v. Appeal from the Shelby Superior Court 1 The Honorable Jack A. Tandy, State of Indiana, Judge Appellee-Plaintiff Cause No. 73D01-1403-FC-031
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 1 of 7 [1] Following a bench trial, Devan Jones was convicted of Robbery, a class C
felony.1 Jones challenges the sufficiency of the evidence supporting his
conviction.
[2] We affirm.
[3] On March 14, 2014, Officer James Jones (the Undercover Officer) of the
Shelbyville Police Department (SPD) set up an undercover narcotics
transaction with Tommy Sayre (Sayre) at the Big Foot gas station in
Shelbyville. The Undercover Officer was to purchase five pounds of marijuana
from Sayre in exchange for $5000 in cash and then arrest Sayre as soon as the
transaction was complete. Sergeant Mike Polston of the SPD and Deputy
Joseph Mohr of the Shelby County Sheriff’s Department were in a vehicle close
by to secure video surveillance of the transaction between the Undercover
Officer and Sayre. Officer Jamie Kolls of the SPD was also nearby in an
unmarked police car to assist with the arrest after the transaction.
[4] Deputy Mohr and Sergeant Polston identified Sayre’s car, a blue Honda, in the
Big Foot parking lot. Jones, driving a silver car, pulled up next to Sayre’s car.
Sayre and his brother, Matt Sayre, who was in the driver’s seat, briefly
conversed with Jones. Sayre gestured for Jones to move his silver car in front of
the blue Honda. The Undercover Officer then pulled behind the blue Honda
1 Ind. Code Ann. §35-42-5-1 (West, Westlaw 2013). Effective July 1, 2014 this offense has been reclassified as a level 5 felony. Because this offense was committed prior to that date, it retains its former classification as a class C felony.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 2 of 7 and Sayre approached the Undercover Officer’s vehicle. After the Undercover
Officer exited his vehicle, he handed Sayre the envelope containing $5000 in
cash and Sayre walked back to the blue Honda. Sayre got into the passenger
side of the blue Honda and his brother quickly drove out of the parking lot.
[5] Officer Kolls was in his unmarked police car when he heard on the radio that
Sayre was fleeing. Officer Kolls pulled his car onto State Road 44 to clear
traffic and saw the blue Honda, followed by a silver car, pulling out onto State
Road 44 at a high rate of speed with tires spinning and gravel flying. The silver
car, driven by Jones, pulled out of the parking lot so quickly that another
vehicle had to swerve out of the way to avoid being hit. Officer Kolls was able
to pass a third vehicle to get behind Jones’s car. Jones was still following
closely behind Sayre. When Officer Kolls was behind Jones, Jones quickly
reduced his speed to a rate below the posted speed limit of 55 m.p.h. Officer
Kolls made multiple attempts to pass Jones, but each time Jones swerved in the
same direction such that Officer Kolls was unable to safely pass. Sayre and his
brother were able to avoid apprehension because Jones prevented Officer Kolls
from passing him. Within a mile from the Big Foot, police officers in marked
police cars were able to pull Jones over without incident. Upon questioning,
Jones told Deputy Mohr that he had stopped at the gas station to call his
girlfriend and that he told Sayre he did not want to be a party to the plan.
[6] Sayre and his brother were apprehended later that same evening. Sayre had
explained to Sergeant Polston that Jones’s job was to pull out behind them and
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 3 of 7 “drive like hell” so that he and his brother could escape. Transcript at 85. Sayre
promised to give Jones $500 for doing his part.
[7] Jones was charged with conspiracy to commit robbery, robbery, theft, and
conspiracy to commit theft. A bench trial was held on June 10, 2014. On June
13, 2014, the trial court found Jones guilty of robbery and theft. Jones was
acquitted of the conspiracy charges and the court did not enter judgment of
conviction on the theft charge due to double jeopardy concerns. On July 9,
2014, Jones was sentenced to five years executed at the Indiana Department of
Correction. Jones now appeals his conviction.
[8] Jones challenges the sufficiency of the evidence in two respects. First, he argues
that the evidence of his driving behavior was insufficient to establish the
element of force or threat of force, as is required to support a conviction of class
C felony robbery. See I.C. § 35-42-5-1. Second, Jones argues that if there was
force or threat of force, it was removed in time from the actual taking of
property and was not necessary to complete the taking.
[9] Our standard of reviewing challenges to the sufficiency of the evidence
supporting a criminal conviction is well settled.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence—even if conflicting— and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 4 of 7 beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[10] To convict Jones of robbery as charged, the State was required to prove that
Jones knowingly or intentionally took “property from another person or from
the presence of another person” by using or threatening the use of force. I.C. §
35-42-5-1. First, Jones claims that the use of his vehicle to block officers from
passing him in their pursuit of Sayres did not constitute the element of force
necessary to elevate his offense from theft to robbery.
[11] The use of force necessary to elevate a theft to a robbery may occur when the
thief tries to leave with the stolen goods. Young v. State, 725 N.E.2d 78 (Ind.
2000). Jones’s use of his car to prevent Officer Kolls from catching up to the
blue Honda constituted the requisite force or the threat of force. Jones used his
car to cut off another motorist in the Big Foot parking lot so that he could stay
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MEMORANDUM DECISION Mar 17 2015, 10:33 am Pursuant to Ind. Appellate Rule 65(D), 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 Kathie A. Perry Gregory F. Zoeller Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devan L. Jones, March 17, 2015
Appellant-Defendant, Court of Appeals Case No. 73A01-1408-CR-334 v. Appeal from the Shelby Superior Court 1 The Honorable Jack A. Tandy, State of Indiana, Judge Appellee-Plaintiff Cause No. 73D01-1403-FC-031
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 1 of 7 [1] Following a bench trial, Devan Jones was convicted of Robbery, a class C
felony.1 Jones challenges the sufficiency of the evidence supporting his
conviction.
[2] We affirm.
[3] On March 14, 2014, Officer James Jones (the Undercover Officer) of the
Shelbyville Police Department (SPD) set up an undercover narcotics
transaction with Tommy Sayre (Sayre) at the Big Foot gas station in
Shelbyville. The Undercover Officer was to purchase five pounds of marijuana
from Sayre in exchange for $5000 in cash and then arrest Sayre as soon as the
transaction was complete. Sergeant Mike Polston of the SPD and Deputy
Joseph Mohr of the Shelby County Sheriff’s Department were in a vehicle close
by to secure video surveillance of the transaction between the Undercover
Officer and Sayre. Officer Jamie Kolls of the SPD was also nearby in an
unmarked police car to assist with the arrest after the transaction.
[4] Deputy Mohr and Sergeant Polston identified Sayre’s car, a blue Honda, in the
Big Foot parking lot. Jones, driving a silver car, pulled up next to Sayre’s car.
Sayre and his brother, Matt Sayre, who was in the driver’s seat, briefly
conversed with Jones. Sayre gestured for Jones to move his silver car in front of
the blue Honda. The Undercover Officer then pulled behind the blue Honda
1 Ind. Code Ann. §35-42-5-1 (West, Westlaw 2013). Effective July 1, 2014 this offense has been reclassified as a level 5 felony. Because this offense was committed prior to that date, it retains its former classification as a class C felony.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 2 of 7 and Sayre approached the Undercover Officer’s vehicle. After the Undercover
Officer exited his vehicle, he handed Sayre the envelope containing $5000 in
cash and Sayre walked back to the blue Honda. Sayre got into the passenger
side of the blue Honda and his brother quickly drove out of the parking lot.
[5] Officer Kolls was in his unmarked police car when he heard on the radio that
Sayre was fleeing. Officer Kolls pulled his car onto State Road 44 to clear
traffic and saw the blue Honda, followed by a silver car, pulling out onto State
Road 44 at a high rate of speed with tires spinning and gravel flying. The silver
car, driven by Jones, pulled out of the parking lot so quickly that another
vehicle had to swerve out of the way to avoid being hit. Officer Kolls was able
to pass a third vehicle to get behind Jones’s car. Jones was still following
closely behind Sayre. When Officer Kolls was behind Jones, Jones quickly
reduced his speed to a rate below the posted speed limit of 55 m.p.h. Officer
Kolls made multiple attempts to pass Jones, but each time Jones swerved in the
same direction such that Officer Kolls was unable to safely pass. Sayre and his
brother were able to avoid apprehension because Jones prevented Officer Kolls
from passing him. Within a mile from the Big Foot, police officers in marked
police cars were able to pull Jones over without incident. Upon questioning,
Jones told Deputy Mohr that he had stopped at the gas station to call his
girlfriend and that he told Sayre he did not want to be a party to the plan.
[6] Sayre and his brother were apprehended later that same evening. Sayre had
explained to Sergeant Polston that Jones’s job was to pull out behind them and
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 3 of 7 “drive like hell” so that he and his brother could escape. Transcript at 85. Sayre
promised to give Jones $500 for doing his part.
[7] Jones was charged with conspiracy to commit robbery, robbery, theft, and
conspiracy to commit theft. A bench trial was held on June 10, 2014. On June
13, 2014, the trial court found Jones guilty of robbery and theft. Jones was
acquitted of the conspiracy charges and the court did not enter judgment of
conviction on the theft charge due to double jeopardy concerns. On July 9,
2014, Jones was sentenced to five years executed at the Indiana Department of
Correction. Jones now appeals his conviction.
[8] Jones challenges the sufficiency of the evidence in two respects. First, he argues
that the evidence of his driving behavior was insufficient to establish the
element of force or threat of force, as is required to support a conviction of class
C felony robbery. See I.C. § 35-42-5-1. Second, Jones argues that if there was
force or threat of force, it was removed in time from the actual taking of
property and was not necessary to complete the taking.
[9] Our standard of reviewing challenges to the sufficiency of the evidence
supporting a criminal conviction is well settled.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence—even if conflicting— and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 4 of 7 beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[10] To convict Jones of robbery as charged, the State was required to prove that
Jones knowingly or intentionally took “property from another person or from
the presence of another person” by using or threatening the use of force. I.C. §
35-42-5-1. First, Jones claims that the use of his vehicle to block officers from
passing him in their pursuit of Sayres did not constitute the element of force
necessary to elevate his offense from theft to robbery.
[11] The use of force necessary to elevate a theft to a robbery may occur when the
thief tries to leave with the stolen goods. Young v. State, 725 N.E.2d 78 (Ind.
2000). Jones’s use of his car to prevent Officer Kolls from catching up to the
blue Honda constituted the requisite force or the threat of force. Jones used his
car to cut off another motorist in the Big Foot parking lot so that he could stay
behind Sayre. When Officer Kolls caught up with Jones, Jones blocked Officer
Kolls each time the Officer tried to pass. His act of swerving when Officer
Kolls tried to pass him constitute a threat of force because Officer Kolls had to
react to avoid hitting Jones. Jones used his car as a weapon to threaten to hit
the other drivers and specifically threaten Officer Kolls in the Officers attempts
to pass Jones. Jones finally stopped his vehicle when police officers in marked
units surrounded him.
[12] Jones also argues that his driving behavior was not directed toward any of the
victims in this case, or toward any identified person, in furtherance of the crime.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 5 of 7 We note that I.C. § 35-45-5-1(1) does not require that the force element has to
be used against the victim. Specifically, I.C. § 35-45-5-1(1) states that the use of
force may be “on any person”. Therefore, pursuit to the plain terms of I.C. §
35-45-5-1(1), the force Jones directed toward Officer Kolls was force sufficient
to satisfy this essential element for robbery.
[13] Jones’s second argument is that even if there was force or threat of force, it was
removed in time from the actual taking of property and was not necessary to
complete the taking. Jones’s actions were not removed in time from the taking.
“[A] crime that is continuous in its purpose and objective is deemed to be a
single uninterrupted transaction”. Dye v. State, 984 N.E. 2d 625, 629 (Ind.
2013) (quoting Eddy v. State, 496 N.E.2d. 24, 28 (Ind. 1986)). The robbery is
not complete until the offender “asports the property, or takes it from the
possession of the victim”. Young v. State, 725 N.E.2d 78, 81 (Ind. 2000).
Asportation continues as the offender departs from the location where the
property was taken from the victim. See Coleman v. State, 653 N.E.2d 481 (Ind.
1995). The evidence demonstrates that Jones’s role was to block Sayre’s
pursuers, regardless of who they were, so that Sayre could get away. Jones’s
actions were intentionally directed at the pursuers and the fact that a person
other than the original victim gave chase to recover the goods does not break
the chain of action of the robbery. His role was a part of the continuous scheme
because his driving behavior was designed to allow Sayre to escape with the
money.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 6 of 7 [14] Jones has failed to meet the burden of persuading this court that the evidence
was insufficient support his conviction for robbery. We agree with the trial
court that “there is no doubt Jones used force by maneuvering his vehicle as a
means to promote the successful escape of the Sayres.” Appellants Appendix at
29.
[15] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015 Page 7 of 7