MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Nov 15 2016, 6:24 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Isiaka Habimana, November 15, 2016
Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-509 v. Appeal from the Marion Superior Court. The Honorable Amy J. Barbar, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49G02-1505-F2-18619
Sharpnack, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 1 of 9 Statement of the Case 1 [1] Isiaka Habimana appeals his convictions of armed robbery, a Level 3 felony; 2 robbery resulting in bodily injury, a Level 3 felony; and auto theft, a Level 6 3 felony. We affirm.
Issues [2] Habimana raises two issues, which we restate as:
I. Whether there is sufficient evidence to sustain Habimana’s convictions. II. Whether Habimana’s convictions for armed robbery and auto theft violate his constitutional protections against double jeopardy by arising from the same larceny.
Facts and Procedural History [3] In July 2014, Bulaiton Ndayizeye, his wife Zawadi Hatungimana, and their two
children arrived in Indianapolis and settled into an apartment. Ndayizeye met
Habimana through work. Ndayizeye did not speak English, but Habimana was
able to translate workplace directives for him. Ndayizeye knew Habimana as
“Hashim.” Tr. p. 31.
[4] In late April 2015, Habimana sold a used television to Ndayizeye. In late April
and early May of that year, Ndayizeye allowed Habimana and his
1 Ind. Code § 35-42-5-1 (2014). 2 Ind. Code § 35-42-5-1. 3 Ind. Code § 35-43-4-2.5 (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 2 of 9 acquaintance, Genesis Childress, to live with him and his family for two weeks.
Habimana and Childress moved out before May 9, 2015.
[5] Jarvis Taylor lived in an apartment below Ndayizeye and Hatungimana.
Taylor knew Habimana and had socialized with him on several occasions. He
also knew Childress as Habimana’s acquaintance. Taylor was aware that
Habimana had acted as a translator for “the people that stayed upstairs.” Id. at
166.
[6] On May 9, 2015, Taylor saw Habimana, Childress, and several other men
approach the apartment building. Taylor went outside and briefly chatted with
Habimana before Habimana and his companions went upstairs.
[7] Meanwhile, Ndayizeye, Hatungimana, their children, and several friends were
in their apartment, celebrating Ndayizeye’s recent release from the hospital.
Habimana, Childress, and several other men suddenly entered the apartment
without permission. One of Hatungimana’s friends tried to call 911, but
Childress took the phone from her and threw it away. When Hatungimana
protested the intruders’ presence, Habimana struck her in the head with a
closed fist several times. Hatungimana briefly lost consciousness as a result of
Habimana hitting her. Next, Habimana pointed a knife at her. At that point,
Ndayizeye jumped out of a window, ran away, and called the police.
[8] Taylor heard screaming coming from upstairs, and, when he went outside, he
saw Habimana trying to keep Hatungimana from leaving her apartment.
Taylor went back into his apartment to get his gun.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 3 of 9 [9] Meanwhile, one of Habimana’s companions pointed a handgun at
Hatungimana and her friends. Habimana, Childress and their companions
searched the apartment before leaving. They took the television set, Ndayizeye
and Hatungimana’s identification cards, the key to their van, and their van
registration.
[10] When Taylor returned outside, he saw Habimana, Childress, and their
companions come downstairs. Childress and a man drove off in a blue car, and
Habimana and another man drove away in Ndayizeye and Hatungimana’s van.
Ndayizeye had money in the van, which he had intended to use for rent.
[11] The police were unable to immediately locate Habimana or his companions.
On August 18, 2015, Officer Steven Hayth of the Indianapolis Metropolitan
Police Department encountered Brandon Sams sitting in the passenger seat of a
van in an apartment complex. Sams told Hayth he was not the driver and
pointed to a door, indicating the driver was in there. When Hayth returned to
his car and ran the van’s license plate number through computer records, he
learned that the van had been stolen from Ndayizeye.
[12] As Hayth returned to the van, a man who was later identified as Habimana
walked out of the door to which Sams had previously pointed, and Sams told
Hayth that Habimana was his companion. Hayth asked Habimana to stop, but
he went back into the apartment. Hayth followed Habimana and saw him walk
through the apartment and exit through a back door. Next, Hayth walked
through the apartment and saw Habimana walk across a patio and through a
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 4 of 9 gate in a privacy fence before starting to run away. Hayth continued to follow
and shouted at Habimana to stop. Habimana finally stopped, and Hayth took
him into custody. Hayth searched the van and found Habimana’s identification
and Hatungimana’s identification.
[13] The State charged Habimana with numerous offenses, including armed
robbery, robbery resulting in bodily injury, and auto theft. The jury found him
guilty of the three charges and not guilty of the other offenses. The trial court
sentenced Habimana, and this appeal followed.
Discussion and Decision I. Sufficiency of the Evidence [14] Habimana claims the evidence is insufficient to sustain his convictions. The
State responds that Habimana overlooks evidence favorable to the judgment.
When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). We neither reassess
witness credibility nor reweigh the evidence. Id. We will affirm unless no
reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Id.
[15] In order to obtain a conviction for armed robbery, the State was required to
prove beyond a reasonable doubt that Habimana (1) knowingly or intentionally
(2) took property (3) from another person or the presence of another person (4)
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Nov 15 2016, 6:24 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Isiaka Habimana, November 15, 2016
Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-509 v. Appeal from the Marion Superior Court. The Honorable Amy J. Barbar, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49G02-1505-F2-18619
Sharpnack, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 1 of 9 Statement of the Case 1 [1] Isiaka Habimana appeals his convictions of armed robbery, a Level 3 felony; 2 robbery resulting in bodily injury, a Level 3 felony; and auto theft, a Level 6 3 felony. We affirm.
Issues [2] Habimana raises two issues, which we restate as:
I. Whether there is sufficient evidence to sustain Habimana’s convictions. II. Whether Habimana’s convictions for armed robbery and auto theft violate his constitutional protections against double jeopardy by arising from the same larceny.
Facts and Procedural History [3] In July 2014, Bulaiton Ndayizeye, his wife Zawadi Hatungimana, and their two
children arrived in Indianapolis and settled into an apartment. Ndayizeye met
Habimana through work. Ndayizeye did not speak English, but Habimana was
able to translate workplace directives for him. Ndayizeye knew Habimana as
“Hashim.” Tr. p. 31.
[4] In late April 2015, Habimana sold a used television to Ndayizeye. In late April
and early May of that year, Ndayizeye allowed Habimana and his
1 Ind. Code § 35-42-5-1 (2014). 2 Ind. Code § 35-42-5-1. 3 Ind. Code § 35-43-4-2.5 (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 2 of 9 acquaintance, Genesis Childress, to live with him and his family for two weeks.
Habimana and Childress moved out before May 9, 2015.
[5] Jarvis Taylor lived in an apartment below Ndayizeye and Hatungimana.
Taylor knew Habimana and had socialized with him on several occasions. He
also knew Childress as Habimana’s acquaintance. Taylor was aware that
Habimana had acted as a translator for “the people that stayed upstairs.” Id. at
166.
[6] On May 9, 2015, Taylor saw Habimana, Childress, and several other men
approach the apartment building. Taylor went outside and briefly chatted with
Habimana before Habimana and his companions went upstairs.
[7] Meanwhile, Ndayizeye, Hatungimana, their children, and several friends were
in their apartment, celebrating Ndayizeye’s recent release from the hospital.
Habimana, Childress, and several other men suddenly entered the apartment
without permission. One of Hatungimana’s friends tried to call 911, but
Childress took the phone from her and threw it away. When Hatungimana
protested the intruders’ presence, Habimana struck her in the head with a
closed fist several times. Hatungimana briefly lost consciousness as a result of
Habimana hitting her. Next, Habimana pointed a knife at her. At that point,
Ndayizeye jumped out of a window, ran away, and called the police.
[8] Taylor heard screaming coming from upstairs, and, when he went outside, he
saw Habimana trying to keep Hatungimana from leaving her apartment.
Taylor went back into his apartment to get his gun.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 3 of 9 [9] Meanwhile, one of Habimana’s companions pointed a handgun at
Hatungimana and her friends. Habimana, Childress and their companions
searched the apartment before leaving. They took the television set, Ndayizeye
and Hatungimana’s identification cards, the key to their van, and their van
registration.
[10] When Taylor returned outside, he saw Habimana, Childress, and their
companions come downstairs. Childress and a man drove off in a blue car, and
Habimana and another man drove away in Ndayizeye and Hatungimana’s van.
Ndayizeye had money in the van, which he had intended to use for rent.
[11] The police were unable to immediately locate Habimana or his companions.
On August 18, 2015, Officer Steven Hayth of the Indianapolis Metropolitan
Police Department encountered Brandon Sams sitting in the passenger seat of a
van in an apartment complex. Sams told Hayth he was not the driver and
pointed to a door, indicating the driver was in there. When Hayth returned to
his car and ran the van’s license plate number through computer records, he
learned that the van had been stolen from Ndayizeye.
[12] As Hayth returned to the van, a man who was later identified as Habimana
walked out of the door to which Sams had previously pointed, and Sams told
Hayth that Habimana was his companion. Hayth asked Habimana to stop, but
he went back into the apartment. Hayth followed Habimana and saw him walk
through the apartment and exit through a back door. Next, Hayth walked
through the apartment and saw Habimana walk across a patio and through a
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 4 of 9 gate in a privacy fence before starting to run away. Hayth continued to follow
and shouted at Habimana to stop. Habimana finally stopped, and Hayth took
him into custody. Hayth searched the van and found Habimana’s identification
and Hatungimana’s identification.
[13] The State charged Habimana with numerous offenses, including armed
robbery, robbery resulting in bodily injury, and auto theft. The jury found him
guilty of the three charges and not guilty of the other offenses. The trial court
sentenced Habimana, and this appeal followed.
Discussion and Decision I. Sufficiency of the Evidence [14] Habimana claims the evidence is insufficient to sustain his convictions. The
State responds that Habimana overlooks evidence favorable to the judgment.
When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). We neither reassess
witness credibility nor reweigh the evidence. Id. We will affirm unless no
reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Id.
[15] In order to obtain a conviction for armed robbery, the State was required to
prove beyond a reasonable doubt that Habimana (1) knowingly or intentionally
(2) took property (3) from another person or the presence of another person (4)
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 5 of 9 by using force or by threatening the use of force (5) while armed with a deadly
weapon. Ind. Code § 35-42-5-1.
[16] In this case, the evidence showed that Habimana pointed a knife at
Hatungimana and her friends and participated in taking her and Ndayizeye’s
van and money. He or his accomplices removed the van key and registration
from the apartment, and he and a companion left in the van, which contained
money Ndayizeye had intended to use for rent. This is sufficient evidence to
sustain the conviction for armed robbery.
[17] In order to obtain a conviction for robbery resulting in bodily injury, the State
was required to prove beyond a reasonable doubt that Habimana (1) knowingly
or intentionally (2) took property (3) from another person or the presence of
another person (4) by using force or by threatening the use of force (5) resulting
in bodily injury to any person other than a defendant. Ind. Code § 35-42-5-1.
[18] Here, the evidence at trial disclosed that Habimana punched Hatungimana in
the head several times when she argued with him, rendering her unconscious
for a short period of time. The punches resulted in swelling on the left side of
her head. After striking Hatungimana, Habimana and his companions
removed property from the apartment, specifically a used television set that he
had previously sold to Ndayizeye. This is sufficient evidence to sustain the
conviction.
[19] In order to obtain a conviction for auto theft, the State was required to prove
beyond a reasonable doubt that Habimana (1) knowingly (2) exerted
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 6 of 9 unauthorized control (3) over another person’s motor vehicle (4) with the intent
to deprive the person of the vehicle’s value or use. Ind. Code § 35-43-4-2.5.
[20] As to this offense, the evidence at trial revealed that, after leaving the
apartment, Habimana and a companion entered Ndayizeye and Hatungimana’s
van and drove off. When Officer Hayth found the van three months later, Sams
was sitting in the passenger seat and told him the driver had gone inside a
nearby apartment building. Habimana exited the apartment building but
attempted to flee when Hayth called out to him. Habimana’s personal property
was found in the van, along with Hatungimana’s identification. This is
sufficient evidence from which a reasonable finder of fact could have found
Habimana guilty of auto theft beyond a reasonable doubt.
[21] Habimana points to his own testimony, in which he stated he did not rob
anyone on May 9. Instead, he asserted he and his friends went to the apartment
to retrieve his personal property, and he only took what belonged to him
without weapons or violence. He further claimed he had the van on August 18
because Childress loaned it to him, and she had told him she had Ndayizeye’s
permission to drive it. Habimana’s arguments amount to a request to reweigh
the evidence, which our standard of review forbids. See Sutherlin v. State, 784
N.E.2d 971, 974 (Ind. Ct. App. 2003) (Appellant’s claim that he was at work
when the robbery occurred was a request to reweigh the evidence).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 7 of 9 II. Double Jeopardy – Single Larceny Rule [22] Habimana claims his convictions for armed robbery and auto theft violate his
constitutional protections against double jeopardy. In response, the State
argues the facts demonstrate that he committed distinct criminal offenses.
[23] The Fifth Amendment to the Constitution of the United States provides, in
relevant part: “No person shall be subject for the same offense to be twice put
in jeopardy of life or limb.” The Indiana Constitution provides, “No person
shall be put in jeopardy twice for the same offense.” Ind. Const. Art. 1, § 14.
[24] A key principle of double jeopardy is that where only one offense is committed,
there can be only one judgment and one sentence. Borum v. State, 951 N.E.2d
619, 627 (Ind. Ct. App. 2011). This case concerns an aspect of double jeopardy
known as the single larceny rule. When several articles of property are taken at
the same time, from the same place, belonging to the same person or to several
persons, there is only one offense. Id. The larceny complained of must be one
single act or transaction, and the defendant must have a single intent when
taking the property at issue. Id. The defendant bears the burden of proving his
or her conviction violated a constitutional protection against double jeopardy.
Lutes v. State, 272 Ind. 699, 702, 401 N.E.2d 671, 672-73 (Ind. 1980).
[25] In this case, the evidence indicates Habimana engaged in more than one act
while committing his crimes. He or an accomplice took the van’s keys and
registration, along with other property, from the apartment. Once Habimana
arrived at the parking lot, he and an accomplice drove off with the van, which
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 8 of 9 was a separate criminal act. See Bivins v. State, 642 N.E.2d 928, 945 (Ind. 1994)
(the single larceny rule did not apply where defendant stole property from a
motel room and then stole a car from the parking lot). He has failed to
demonstrate that the single larceny rule applies to his case.
Conclusion [26] For the foregoing reasons, we affirm the judgment of the trial court.
[27] Affirmed.
Barnes, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-509 | November 15, 2016 Page 9 of 9