Henry Robinson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 10, 2018
• Docket: 18A-CR-100
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 10 2018, 10:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Edgar Curtis T. Hill, Jr. J. Edgar Law Office, P.C. Attorney General of Indiana Indianapolis, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Henry Robinson, October 10, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-100 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff. Judge The Honorable Jeffrey Marchal, Magistrate Trial Court Cause No. 49G06-1610-F3-40219

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 1 of 13 Statement of the Case

[1] Henry Robinson (“Robinson”) appeals his conviction, following a jury trial, for

Level 3 felony armed robbery.1 Robinson argues that: (1) the trial court

committed fundamental error by admitting the testimony of a detective; and (2)

there was insufficient evidence to support his conviction. Finding that the trial

court did not commit fundamental error and that there was sufficient evidence

to support Robinson’s conviction, we affirm his conviction.

[2] We affirm.

Issues

1. Whether the trial court committed fundamental error by admitting the testimony of a detective.

2. Whether there was sufficient evidence to support Robinson’s conviction.

Facts

[3] On October 5, 2016, Kamran Ahmed (“Ahmed”) was working at a Marathon

gas station convenience store. Ahmed was operating the cash register and his

co-worker, Drahamane Toure (“Toure”), was outside cleaning the parking lot.

Robinson approached the register to purchase several items. Ahmed attempted

to process Robinson’s credit card as payment, but the card was declined.

1 IND. CODE § 35-42-5-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 2 of 13 Ahmed swiped the card two more times, and it was declined both times. The

cash register printed a declined receipt for each of the three swipes, and Ahmed

showed each declined receipt to Robinson. During this time, Robinson’s credit

card was not charged. Robinson then left the store.

[4] Toure, Ahmed’s co-worker, observed Robinson come out of the convenience

store and walk to a truck parked by a pump. Robinson removed a shotgun

from the truck and reentered the store. He pointed the shotgun at Ahmed and

said, “Give me the money. Give me my money.” (Tr. 46). Ahmed stood

behind the counter, and Robinson grabbed a tower of lighters, boxes of cigars,

and t-shirts from the store. Robinson also took Ahmed’s cell phone that was

sitting beside the cash register. Neither the store merchandise nor Ahmed’s

phone was ever recovered. A woman then entered the store and commanded

Robinson to leave. The convenience store cameras caught the entire incident

on surveillance video.

[5] Detective Brent Hendricks (“Detective Hendricks”) from the Indianapolis

Metropolitan Police Department (“IMPD”) was assigned to investigate the

incident. During his investigation, Detective Hendricks reviewed the

surveillance video, spoke with Toure and Ahmed, and developed Robinson as a

suspect. Detective Hendricks also learned that Robinson leased a building and

ran a makeshift convenience store. Detective Hendricks obtained a search

warrant and searched Robinson’s convenience store. Among the limited items

found at his convenience store were a box of cigars and a tower of lighters.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 3 of 13 Both of these items matched the items taken from the Marathon convenience

store.

[6] On October 12, 2016, the State charged Robinson with Level 3 felony armed

robbery. The case proceeded to a jury trial on November 29, 2017. The State

called Ahmed, Toure, and Detective Hendricks as witnesses, and they testified

to the facts above. On direct examination, Detective Hendricks testified about

his position with IMPD and about his investigation. He stated that he was a

detective sergeant in the robbery and aggravated assault division of IMPD.

When discussing the fact that Robinson took Ahmed’s cell phone when he

robbed the store, Detective Hendricks testified, without objection, that “a lot of

times, a suspect, when they take a cell phone, they do that to prevent the person

from calling the police.” (Tr. 80). The jury returned a guilty verdict.

Thereafter, the trial court sentenced Robinson to five (5) years for the Level 3

felony armed robbery conviction. The trial court ordered the sentence to be

served in the Department of Correction. Robinson now appeals.

Decision

[7] On appeal, Robinson argues that: (1) the trial court committed fundamental

error by admitting certain testimony of Detective Hendricks; and (2) there was

insufficient evidence to support his conviction. We will review each argument

in turn.

1. Admission of Evidence

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 4 of 13 [8] Robinson argues that the trial court committed fundamental error by admitting

certain testimony from Detective Hendricks. Specifically, Robinson challenges

one statement made by the detective during direct examination and argues that

his statement was an opinion as to his intent that should have been excluded

from evidence under Indiana Evidence Rule 704(b).

[9] Before we address Robinson’s argument, we note that our appellate rules

require that each contention made in the argument section of an appellant’s

brief “must contain the contentions of the appellant on the issues presented,

supported by cogent reasoning.” Ind. Appellate Rule 46(A)(8)(a). This means

that an appellant’s argument section “must be supported by citations to the

authorities, statutes, and the Appendix or parts of the Record on Appeal relied

on.” Id. (emphasis added). Robinson, however, has failed to satisfy Indiana

Appellate Rule 46’s requirement of providing a cogent argument supported by

citation to authority. This failure hinders our review and results in waiver of

appellate review of this issue. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind.

Ct. App. 2016) (waiving a defendant’s argument where he failed to provide a

cogent argument).

[10] Waiver notwithstanding, we disagree with Robinson’s contention that the trial

court erred when it allowed certain testimony from Detective Hendricks.

Generally, a trial court’s ruling on the admissibility of evidence is reviewed for

an abuse of discretion. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009),

trans. denied. We will reverse a trial court’s decision only if it is clearly against

the logic and effect of the facts and circumstances of the case. Id. Even if the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 5 of 13 decision was an abuse of discretion, we will not reverse if the admission of

evidence constituted harmless error. Id.

[11] Robinson acknowledges that he did not object to the testimony at trial. His

failure to object to the testimony results in waiver of any argument regarding its

admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure

to object at trial waives the issue for review unless fundamental error

occurred.”), reh’g denied. Robinson recognizes this procedural default and

argues that the admission of the testimony constituted fundamental error.

[12] “The fundamental error exception is extremely narrow[ ] and applies only when

the error constitutes a blatant violation of basic principles, the harm or potential

for harm is substantial, and the resulting error denies the defendant

fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)

(internal quotation marks omitted). “Harm is not shown by the fact that the

defendant was ultimately convicted; rather harm is found when error is so

prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239.

“Fundamental error is meant to permit appellate courts a means to correct the

most egregious and blatant trial errors that otherwise would have been

procedurally barred, not to provide a second bite at the apple for defense

counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.

[13] Robinson asserts, that under Indiana Evidence Rule 704, the court should not

have allowed Detective Hendricks to testify that “a lot of times, a suspect, when

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 6 of 13 they take a cell phone, they do that to prevent the person from calling the

police.” (Tr. 80). Robinson argues that Detective Hendricks’ testimony was

an impermissible opinion regarding his intent when taking Ahmed’s cell phone.

Indiana Evidence Rule 704 provides:

(a) In General–Not Automatically Objectionable. Testimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue. (b) Exception. Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

[14] “Indiana Evidence Rule 704(a) generally allows witness opinion testimony to

‘embrace’ an ultimate issue – but as a matter of constitutional right, only a jury

may resolve an ultimate issue.” Williams v. State, 43 N.E.3d 578, 580 (Ind.

2015). “And Evidence Rule 704(b) explicitly prohibits, in criminal cases,

witness opinions concerning the ultimate issue of guilt. Id.

[15] Turning to Robinson’s challenge to the admission of Detective Hendricks’

direct examination testimony, we conclude that he has failed to meet his burden

of showing fundamental error. On direct examination, Detective Hendricks

testified that “[Ahmed’s] cell phone was missing. And a lot of times, a suspect,

when they take a cell phone they do that to prevent the person from calling the

police. So they will dump it.” (Tr. 80). We observe, as the State points out,

that Detective Hendricks did not testify that Robinson’s intent had been to rob

Ahmed of his cell phone to prevent him from calling the police. Rather, he

testified generally that, based on his experience and training as a robbery and

aggravated assault detective sergeant, it was not unusual for robbers to take a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 7 of 13 cell phone because they want to prevent the victim from calling the police. If

opinion testimony is general and does not conclusively tie the defendant to the

crime, it is permissible. See Julian v. State, 811 N.E.2d 392, 400 (Ind. Ct. App.

2004), trans. denied. Further, some witnesses may possess knowledge that does

not reach the level sufficient to have them declared an expert witness, but their

knowledge is beyond that of an ordinary juror. INDIANA EVID. R. 701; Kubsch

v. State, 784 N.E.2d 905. 922 (Ind. 2003). As such, they are permitted to give

an opinion based on their personal knowledge under Indiana Evidence Rule

701 as a skilled witness. Id. In order for a skilled witness to give their opinion,

it only needs to be shown that they have enough knowledge to make the

opinion helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue. EVID. R. 701. Because Detective Hendricks’

testimony made no specific statements declaring Robinson’s intent, the

testimony was not excluded under Indiana Evidence Rule 704(b) and was

admissible under Rule 701.

[16] Indeed, even if the trial court had erred in admitting the testimony, any “error[ ]

in the admission of evidence [is] to be disregarded unless [it] affect[s] the

substantial rights of a party.” Hoglund, 962 N.E.2d at 1238. “The improper

admission [of evidence] is harmless error if the conviction is supported by

substantial independent evidence of guilt satisfying the reviewing court there is

no substantial likelihood the challenged evidence contributed to the

conviction.” Id. Additionally, “‘[a]ny error in the admission of evidence is not

prejudicial, and [is] therefore harmless, if the same or similar evidence has been

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 8 of 13 admitted without objection or contradiction.’” Id. (quoting McCovens v. State,

539 N.E.2d 26, 30 (Ind. 1989)).

[17] Here, there was substantial evidence apart from the detective’s general direct

examination testimony that leads us to conclude that there is no substantial

likelihood the challenged evidence contributed to the conviction. Robinson’s

guilt is established by Ahmed’s and Toure’s eyewitness testimony presented at

trial and the surveillance video showing him robbing the gas station at

gunpoint. Robinson has failed to show how the admission of the detective’s

direct examination testimony made a fair trial impossible. Thus, we conclude

that the trial court did not commit any error, fundamental or otherwise.

2. Insufficient Evidence

[18] Robinson next argues that the State presented insufficient evidence to support

his conviction for Level 3 felony armed robbery. Our standard of review for

sufficiency of evidence claims is well-settled. We do not assess the credibility of

the witnesses or reweigh the evidence in determining whether the evidence is

sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

the probative evidence and reasonable inferences supporting the verdict. Id.

Reversal is appropriate only when no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Id. “When reviewing

the sufficiency of evidence establishing the elements of a crime — including the

intent element — we consider only the evidence supporting the verdict along

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 9 of 13 with any reasonable inferences drawn from that evidence.” Heavrin v. State, 675

N.E.2d 1075, 1079 (Ind. 1996), reh’g denied.

[19] In order to convict Robinson of Level 3 felony armed robbery as charged, the

State was required to prove beyond a reasonable doubt that “on or about

October 5, 2016, Robinson did knowingly take property, to-wit: retail

merchandise/tobacco products and/or a cellular telephone from another person

or the presence of another person, to wit: Ahmed, by using force or threatening

to use force, to wit: by brandishing and pointing a shotgun at Ahmed and

taking said property from the presence of Ahmed while armed with a deadly

weapon.” (App. 24). See also I.C. § 35-42-5-1(a).2 A person engages in conduct

“knowingly” if he “is aware of a high probability that he is doing so.” I.C. § 35-

41-2-2(b).

[20] On appeal, Robinson’s argument that there was insufficient evidence to sustain

his conviction has two components. First, he argues that the State failed to

show that he intended to take property. Alternatively, he argues that “the State

failed to show that [he] actually carried away any property from the store.”

(Robinson’s Br. 7).

[21] Because intent is a mental function, absent an admission by the defendant, it

must be determined from a consideration of the defendant’s conduct and the

2 We note that the robbery statute was amended after the commission of Robinson’s offense. This amendment, however, did not change the part of the statute relevant to Robinson’s offense.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 10 of 13 natural and usual consequences thereof. Metzler v. State, 540 N.E.2d 606, 609

(Ind. 1989). As a result, jurors “must usually resort to reasonable inferences

based upon an examination of the surrounding circumstances to determine

whether, from the person’s conduct and the natural consequences that might be

expected from that conduct, a showing or inference [of] the intent to commit

that conduct exists.” Id.

[22] Here, the evidence presented at trial shows that Robinson’s credit card was

declined three times. He left the store and reentered, armed with a shotgun,

and pointed it at Ahmed. Robinson demanded that Ahmed, “Give me the

money. Give me all my money.” (Tr. 46). Robinson then took a tower of

lighters, boxes of cigars, t-shirts, and Ahmed’s cell phone and left the store.

None of these items were ever recovered. The jury could reasonably infer from

Robinson’s conduct and the natural consequences expected from that conduct

that he intended to take property from the presence of another person.

[23] Turning to Robinson’s second argument, he acknowledges that he “briefly

possessed merchandise and a cell phone,” but contends that “it cannot be

concluded that [he] carried any property away from the premises.” (Robinson’s

Br. 11, 13). It is true that without the taking of property, “and no evidence from

which to draw an inference that the property was taken, there can be no

conviction for robbery.” Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000), reh’g

denied. As our supreme court has explained, “taking” the victims property is an

essential element of robbery, but the evidence of the “taking” need only

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 11 of 13 establish that the property was moved a slight distance. Nelson v. State, 528

N.E.2d 453, 455 (Ind. 1988).

In other words, it must appear that the property was taken from the possession of the victim into that of the robber. But the crime is consummated if the robber acquires possession of the property for even a short time, and his subsequent disposition of the property taken is immaterial.

Id. (quoting Neal v. State, 14 N.E.2d 590, 596 (Ind. 1938)).

[24] In this case, the evidence establishes that Robinson reached behind the counter

and took a stand of lighters, boxes of cigars, and Ahmed’s cell phone into his

possession for the duration of the robbery. See Coleman v. State, 653 N.E.2d 481,

482 n.1 (Ind. 1995) (a store clerk or manager is considered to be in lawful

possession of the store’s goods for purposes of theft related crimes, such as

robbery). While one employee described Robinson as dropping some items,

Ahmed unequivocally testified that Robinson left the store with a stand of

lighters, boxes of cigars, Ahmed’s cell phone, and several t-shirts. Detective

Hendricks also testified that an identical tower of lighters and box of cigars were

discovered in Robinson’s convenience store. Robinson’s contention that the

State did not establish that he actually carried property away from the store

must fail. Robinson’s sufficiency challenges to the State’s evidence are merely

requests to reweigh the inferences made by the jury and its determination of

witness credibility. We deny this request. See Drane, 867 N.E.2d at 146.

Accordingly, we find that the State presented sufficient evidence, and we affirm

that trial court’s Level 3 felony armed robbery conviction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 12 of 13 [25] Affirmed.

Najam, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018 Page 13 of 13