MEMORANDUM DECISION May 07 2015, 9:51 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 Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raymond Stewart, May 7, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1410-CR-759 v. Appeal from the Marion Superior Court. The Honorable Christine Klineman, State of Indiana, Commissioner. Appellee-Plaintiff Cause No. 49G05-1405-FA-22368
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 1 of 6 [1] Raymond Stewart appeals his conviction for Robbery, 1 a Class A felony.
Stewart argues that the evidence presented was insufficient to find him guilty
beyond a reasonable doubt. Finding the evidence sufficient, we affirm.
Facts [2] On April 12, 2014, Ricky Hamiter entered the Community Spirit Liquor Store
in Indianapolis around 8.00 p.m. Hamiter is a disabled, fifty-seven-year-old
man. After entering the store, Hamiter was confronted by Stewart. Hamiter
recognized Stewart. Years earlier, Hamiter had been Stewart’s school bus driver
and they now live in the same neighborhood. Stewart asked Hamiter if he
could “borrow a dollar real quick.” Tr. p. 28; State’s Ex. 1, 10:16:40. Hamiter
denied Stewart’s request. Stewart continued to request the money and said that
he was “gonna take [Hamiter’s] mother fuckin’ dollar.” State’s Ex. 1, 10:16:51.
Stewart also said that he was going to “pick [Hamiter’s] mother fucking
pocket.” Id. at 10:17:16.
[3] Hamiter tried to retreat from Stewart and attempted to leave the store. Stewart
then grabbed Hamiter and pushed him up against a wall. Stewart shouted that
he was “gonna fuck [Hamiter] up boy.” Id. at 10:17:25. He also yelled that he
was going to “beat the fuck out of [Hamiter].” Id. at 10:17:48. Stewart then
repeatedly smashed Hamiter’s head against the wall until Hamiter collapsed.
1 Ind. Code § 35-42-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 2 of 6 Stewart crouched over Hamiter and moved his hands around Hamiter’s
pockets. Stewart was yelling for Hamiter to “[g]imme that motherfuckin’
dollar,” id. at 10:18:20, and that he would “beat mother fuckers up.” Id. at
10:18:46. Stewart then exited the store.
[4] As a result of the attack, Hamiter lost consciousness. On regaining
consciousness, Hamiter left the store and unsuccessfully tried to call 911.
Hamiter was missing thirty-three dollars; his driver’s license; a gold onyx
earring; and the earring’s post. Hamiter eventually contacted law enforcement,
and two police officers came to Hamiter’s house. He told the officers that he
had been assaulted. The next day, Hamiter called the liquor store to retrieve his
missing money and any items he may have purchased. A store employee
informed him that he had not made any purchases and that his property was
not at the store. Two days after the attack, Hamiter again called 911 and
reported that he had been assaulted and robbed. This report led to Stewart’s
arrest. Hamiter’s missing property was not found.
[5] The State charged Stewart with robbery, a class A felony, and later added a
count alleging that Stewart was an Habitual Offender.2 On September 25, 2014,
Stewart was tried before a jury for the robbery charge, but submitted the
habitual offender charge to the trial court. The jury was presented with the
video footage and the audio recording of the attack. Additionally, Hamiter
2 Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 3 of 6 testified. The jury found Stewart guilty of robbery, and the trial court found
that Stewart was an habitual offender. Stewart was sentenced to thirty years for
robbery, and that sentence was enhanced by another thirty years for the
habitual offender adjudication. Five years of the term were suspended by the
trial court. The court also ordered one year of non-reporting probation.
Stewart now appeals.
Discussion and Decision [6] In reviewing the sufficiency of the evidence, this Court examines only “the
probative evidence and reasonable inferences that support the verdict.” Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012) (internal quotation omitted). “[W]e
consider only the evidence most favorable to the trial court ruling and affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id. We do not “reweigh the evidence to
determine if it was sufficient to support a conviction,” nor do we assess witness
credibility. Id.
[7] Stewart contends that the State did not establish beyond a reasonable doubt that
he robbed Hamiter. Specifically, Stewart argues that the following facts negate
his conviction: that the video does not show Stewart going through Hamiter’s
pockets and taking the property; that it is possible that Hamiter’s property went
missing another way; that Hamiter did not testify at trial that Stewart took the
property; and, that Hamiter did not report the property missing until two days
after the attack.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 4 of 6 [8] To prove robbery beyond a reasonable doubt, the State must prove that Stewart
“knowingly or intentionally” took property from Hamiter by use or threat of
force, and that, in the process, Hamiter sustained serious bodily injury. Ind.
Code § 35-42-5-1.3 “Elements of a crime may be shown by circumstantial
evidence and the logical inference drawn therefrom.” Jones v. State, 479 N.E.2d
44, 45 (Ind. 1985) (upholding robbery conviction where evidence that defendant
took money was solely circumstantial - trial); Nunley v. State, 995 N.E.2d 718,
722 (Ind. Ct App. 2013) (same), clarified on reh’g on other grounds, trans. denied.
[9] Here, the evidence showed that Stewart asked Hamiter for money; that Hamiter
refused to give the money; that Stewart pushed Hamiter against a wall; that
Stewart repeatedly smashed Hamiter’s head against the wall; that Hamiter fell
to the ground; that Stewart crouched over Hamiter; that Stewart’s hands moved
around Hamiter’s pockets; that Stewart said he was “gonna take [Hamiter’s]
mother fuckin’ dollar,” State’s Ex. 1, 10:16:51; that Stewart said he was going
to “pick [Hamiter’s] mother fucking pocket,” id. at 10:16:51; that Stewart also
said that Hamiter should “[g]imme that motherfuckin’ dollar,” id. at 10:17:16;
and, that, after the attack, Hamiter was missing thirty-three dollars, his driver’s
license, a gold onyx earring, and the earring’s post.
[10] As in Nunley, no one saw Stewart take the property. As in Jones, it is possible
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MEMORANDUM DECISION May 07 2015, 9:51 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 Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raymond Stewart, May 7, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1410-CR-759 v. Appeal from the Marion Superior Court. The Honorable Christine Klineman, State of Indiana, Commissioner. Appellee-Plaintiff Cause No. 49G05-1405-FA-22368
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 1 of 6 [1] Raymond Stewart appeals his conviction for Robbery, 1 a Class A felony.
Stewart argues that the evidence presented was insufficient to find him guilty
beyond a reasonable doubt. Finding the evidence sufficient, we affirm.
Facts [2] On April 12, 2014, Ricky Hamiter entered the Community Spirit Liquor Store
in Indianapolis around 8.00 p.m. Hamiter is a disabled, fifty-seven-year-old
man. After entering the store, Hamiter was confronted by Stewart. Hamiter
recognized Stewart. Years earlier, Hamiter had been Stewart’s school bus driver
and they now live in the same neighborhood. Stewart asked Hamiter if he
could “borrow a dollar real quick.” Tr. p. 28; State’s Ex. 1, 10:16:40. Hamiter
denied Stewart’s request. Stewart continued to request the money and said that
he was “gonna take [Hamiter’s] mother fuckin’ dollar.” State’s Ex. 1, 10:16:51.
Stewart also said that he was going to “pick [Hamiter’s] mother fucking
pocket.” Id. at 10:17:16.
[3] Hamiter tried to retreat from Stewart and attempted to leave the store. Stewart
then grabbed Hamiter and pushed him up against a wall. Stewart shouted that
he was “gonna fuck [Hamiter] up boy.” Id. at 10:17:25. He also yelled that he
was going to “beat the fuck out of [Hamiter].” Id. at 10:17:48. Stewart then
repeatedly smashed Hamiter’s head against the wall until Hamiter collapsed.
1 Ind. Code § 35-42-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 2 of 6 Stewart crouched over Hamiter and moved his hands around Hamiter’s
pockets. Stewart was yelling for Hamiter to “[g]imme that motherfuckin’
dollar,” id. at 10:18:20, and that he would “beat mother fuckers up.” Id. at
10:18:46. Stewart then exited the store.
[4] As a result of the attack, Hamiter lost consciousness. On regaining
consciousness, Hamiter left the store and unsuccessfully tried to call 911.
Hamiter was missing thirty-three dollars; his driver’s license; a gold onyx
earring; and the earring’s post. Hamiter eventually contacted law enforcement,
and two police officers came to Hamiter’s house. He told the officers that he
had been assaulted. The next day, Hamiter called the liquor store to retrieve his
missing money and any items he may have purchased. A store employee
informed him that he had not made any purchases and that his property was
not at the store. Two days after the attack, Hamiter again called 911 and
reported that he had been assaulted and robbed. This report led to Stewart’s
arrest. Hamiter’s missing property was not found.
[5] The State charged Stewart with robbery, a class A felony, and later added a
count alleging that Stewart was an Habitual Offender.2 On September 25, 2014,
Stewart was tried before a jury for the robbery charge, but submitted the
habitual offender charge to the trial court. The jury was presented with the
video footage and the audio recording of the attack. Additionally, Hamiter
2 Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 3 of 6 testified. The jury found Stewart guilty of robbery, and the trial court found
that Stewart was an habitual offender. Stewart was sentenced to thirty years for
robbery, and that sentence was enhanced by another thirty years for the
habitual offender adjudication. Five years of the term were suspended by the
trial court. The court also ordered one year of non-reporting probation.
Stewart now appeals.
Discussion and Decision [6] In reviewing the sufficiency of the evidence, this Court examines only “the
probative evidence and reasonable inferences that support the verdict.” Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012) (internal quotation omitted). “[W]e
consider only the evidence most favorable to the trial court ruling and affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id. We do not “reweigh the evidence to
determine if it was sufficient to support a conviction,” nor do we assess witness
credibility. Id.
[7] Stewart contends that the State did not establish beyond a reasonable doubt that
he robbed Hamiter. Specifically, Stewart argues that the following facts negate
his conviction: that the video does not show Stewart going through Hamiter’s
pockets and taking the property; that it is possible that Hamiter’s property went
missing another way; that Hamiter did not testify at trial that Stewart took the
property; and, that Hamiter did not report the property missing until two days
after the attack.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 4 of 6 [8] To prove robbery beyond a reasonable doubt, the State must prove that Stewart
“knowingly or intentionally” took property from Hamiter by use or threat of
force, and that, in the process, Hamiter sustained serious bodily injury. Ind.
Code § 35-42-5-1.3 “Elements of a crime may be shown by circumstantial
evidence and the logical inference drawn therefrom.” Jones v. State, 479 N.E.2d
44, 45 (Ind. 1985) (upholding robbery conviction where evidence that defendant
took money was solely circumstantial - trial); Nunley v. State, 995 N.E.2d 718,
722 (Ind. Ct App. 2013) (same), clarified on reh’g on other grounds, trans. denied.
[9] Here, the evidence showed that Stewart asked Hamiter for money; that Hamiter
refused to give the money; that Stewart pushed Hamiter against a wall; that
Stewart repeatedly smashed Hamiter’s head against the wall; that Hamiter fell
to the ground; that Stewart crouched over Hamiter; that Stewart’s hands moved
around Hamiter’s pockets; that Stewart said he was “gonna take [Hamiter’s]
mother fuckin’ dollar,” State’s Ex. 1, 10:16:51; that Stewart said he was going
to “pick [Hamiter’s] mother fucking pocket,” id. at 10:16:51; that Stewart also
said that Hamiter should “[g]imme that motherfuckin’ dollar,” id. at 10:17:16;
and, that, after the attack, Hamiter was missing thirty-three dollars, his driver’s
license, a gold onyx earring, and the earring’s post.
[10] As in Nunley, no one saw Stewart take the property. As in Jones, it is possible
that Hamiter’s property could have been taken by a third party. However, like
3 This is the language from the statute that was in place at the time Stewart committed the offense. It has since been amended, with an effective date of July, 1, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 5 of 6 Nunley and Jones, the circumstantial evidence and the logical inferences that
may be drawn therefrom were sufficient for reasonable minds to have reached
the conclusion drawn by the jury—that Stewart was guilty of robbery beyond a
reasonable doubt.
[11] Finally, Hamiter’s failure to directly testify that Stewart took the property does
not undercut the sufficiency of the evidence. Hamiter was unconscious at the
time of the robbery, and an audio and video recording of the attack was played
to the jury. Similarly, Hamiter’s failure to directly report missing property until
two days after the attack does not undermine the evidence supporting the
conviction. These arguments amount to a request that we reweigh the evidence
and assess witness credibility—a request we decline. We conclude that
sufficient evidence supports Stewart’s conviction.
[12] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015 Page 6 of 6