Amos Thompson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 15 2016, 9:16 am
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
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Agency
Indianapolis, Indiana Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amos Thompson, February 15, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1507-CR-891
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1502-F3-6001
Brown, Judge.
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[1] Amos Thompson appeals his conviction for robbery as a level 3 felony.
Thompson raises one issue, which we revise and restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On February 18, 2015, Thompson went inside a Marsh Supermarket store in
Indianapolis and placed twenty or thirty retail items from the health and beauty
section of the store inside his pants. While placing the items in his pants,
Thompson was confronted by store manager Michael Bratton. Thompson
looked at Bratton, continued placing items in his pants, and walked toward
Bratton, while Bratton stood in front of him to prevent him from leaving the
store. When he was approximately four to six feet from Bratton, Thompson
pulled a knife from one of his pockets.1 When Bratton saw the knife, he threw
up his hands, took a step back, and let Thompson pass. Thompson then ran
and exited the store, and Bratton called the police. Thompson threw some of
the items from his pants onto the sidewalk as he was running. Police later took
Thompson into custody, and Bratton identified him as the person he had
confronted in the store.
[3] On February 19, 2015, the State charged Thompson with robbery as a level 3
felony and intimidation as a level 6 felony, and the State later alleged he was an
habitual offender. On June 10, 2015, the court held a bench trial at which
1
Bratton testified that the knife was a carpet knife, that it had a thick handle, that the blade was a triangle,
and that the blade could slide up and down. Thompson referred to the knife as a box cutter.
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Bratton presented testimony consistent with the foregoing, including that
Thompson “pulled [the knife] out to let me know he had a weapon on him.”
Transcript at 10. When asked if he had concerns he could be injured, Bratton
stated “Yeah but I think it was just --.” Id. at 12. Thompson testified that he
went to the store to shoplift, that he had placed duct tape on his sweat pants to
stop items from falling out at the bottom, and that he wore other pants over the
sweatpants to cover them up. He also testified that the sole reason he pulled the
knife out of his pants was because he had been caught, and he wanted to cut the
duct tape or the leg of his pants “[b]ecause [he] wanted to give something back
cause [he] had too much stuff.” Id. at 55. He stated that he never threatened
Bratton, and that, when he pulled the knife out, he heard Bratton say “he’s got
a weapon,” and “that’s when I took off running before I could even cut pants
back in the store.” Id. at 56.
[4] The court found Thompson guilty of robbery as a level 3 felony and found him
to be an habitual offender, and the charge of intimidation was dismissed. The
court later sentenced Thompson to eighteen years with twelve years executed in
the Department of Correction followed by six years in community corrections.
Discussion
[5] The issue is whether the evidence is sufficient to sustain Thompson’s conviction
for robbery as a level 3 felony. When reviewing the sufficiency of the evidence
to support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.
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Id. We consider conflicting evidence most favorably to the trial court’s ruling.
Id. We affirm the conviction unless “no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins
v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence
is sufficient if an inference may reasonably be drawn from it to support the
verdict. Id.[6] Ind. Code § 35-42-5-1 governs the offense of robbery as a level 3 felony and
provides that “[a] person who knowingly or intentionally takes property from
another person or from the presence of another person: (1) by using or
threatening the use of force on any person; or (2) by putting any person in fear;
commits robbery . . . .” “[T]he offense is a Level 3 felony if it is committed
while armed with a deadly weapon . . . .” Ind. Code § 35-42-5-1. The State
charged that Thompson
did knowingly take property, to-wit: retail merchandise, from
another person or the presence of another person, to-wit: Michael
Bratton, by using force or by threatening the use of force on
Michael Bratton or by putting Michael Bratton in fear, to-wit: by
brandishing and displaying a knife at Michael Bratton; said act
being committed while the defendant was armed with a deadly
weapon, to-wit: a knife.
Appellant’s Appendix at 17.
[7] Thompson concedes that he intended to shoplift. However, he argues that,
when he was confronted by Bratton, he pulled out his box cutter knife to cut
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through the tape to release the stolen merchandise and not to threaten Bratton
with force. He also argues Bratton was not fearful. He requests that his
conviction for robbery be reduced to theft.
[8] The State maintains that the evidence is sufficient to sustain Thompson’s
robbery conviction, that Thompson brandished a deadly weapon in the course
of committing a theft, that in doing so Thompson placed Bratton in fear of
personal injury, and that Thompson’s claims are invitations to reweigh the
evidence. It also argues that Thompson brandishing the knife convinced
Bratton to back away from his attempt to prevent Thompson from leaving and
that, had Thompson not shown Bratton the knife, Bratton would have
attempted to stop him.
[9] Thompson does not dispute that he knowingly took the retail merchandise
while armed with a deadly weapon. The evidence presented at trial shows that
he entered the store armed with a knife and placed merchandise in his pants,
that he pulled a knife from his pocket as he approached Bratton and was about
four to six feet away from him, that Bratton was standing in front of him to
prevent him from leaving the store, that upon observing the knife Bratton threw
up his hands and backed away, and Thompson then ran out of the store.
Bratton indicated he was concerned he could be injured. A video recording
admitted into evidence is not inconsistent with Bratton’s testimony. The trier of
fact could reasonably find that Thompson took the merchandise by using or
threatening the use of force on Bratton or by placing Bratton in fear by
displaying a knife. The court heard the testimony of Bratton and Thompson,
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and Thompson’s argument on appeal is an invitation to reweigh the evidence or
reassess the credibility of the witnesses, which we will not do. See Drane, 867
N.E.2d at 146.
[10] Based upon the record, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could find beyond a
reasonable doubt that Thompson committed the crime of robbery as a level 3
felony.
Conclusion
[11] For the foregoing reasons, we affirm Thompson’s conviction for robbery as a
level 3 felony.
[12] Affirmed.
Kirsch, J., and Mathias, J., concur.
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