Pink A. Robinson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 07 2019, 5:31 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark D. Altenhof Curtis T. Hill, Jr.
Goshen, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pink A. Robinson, October 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2218
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-1609-F3-45
Friedlander, Senior Judge.
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[1] Pink A. Robinson appeals his three convictions of robbery with a deadly
1
weapon, all Level 3 felonies. He also appeals his aggregate sentence of forty-
eight years, with three years suspended. We affirm.
[2] Kristina Wortinger was an assistant manager at a women’s clothing store in
Elkhart, Indiana. On January 9, 2016, at 8:30 p.m., she was at work, along
with Reta Holley, a sales associate. A customer, Angela Heitzman, was also
present. The sun had set, and it was raining.
[3] Two men entered the store through the front door just as Heitzman had
finished paying Holley for a purchase. One of the men wore a hooded jacket
with the hood up and was carrying a bag bearing the store’s logo. Wortinger
greeted him, thinking he was returning a purchase. Next, Wortinger noticed
the second man was wearing a bandana over his face, leaving only his eyes
visible. At that point, the man in the hooded jacket walked around the counter
and pointed a handgun at her. The man in the bandana approached Heitzman
and pointed a handgun at her. The men yelled at all three women, ordering
them to go to the dressing room.
[4] Once they were all in the dressing room, the men asked which of them was the
manager and had keys. Wortinger admitted she was the manager, and the man
in the hooded jacket ordered her to come with him. As she complied, she
1
Ind. Code § 35-42-5-1 (2014).
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noticed he was wearing black gloves, and the man in the bandana was wearing
blue latex gloves.
[5] Wortinger and the man went to the safe, which was near the cash register. It
appeared to her that the man already knew where the safe was located.
Wortinger unlocked the safe, but it was empty. Next, the man ordered her to
open the cash registers. He took money from the registers and ordered
Wortinger to return to the dressing room.
[6] While Wortinger and the man in the hooded jacket were gone, the man in the
bandana had remained in the dressing room with Holley and Heitzman. In a
loud voice, he ordered them to undress down to their underwear as he
continued to point a handgun at them. They complied. The man in the
bandana also ordered Heitzman to give him her purse. She handed the purse to
him, but as she did so she attempted to dump it out, and some of the contents
fell on the floor. The man took the purse, which Heitzman later learned still
contained her wallet and car keys.
[7] When Wortinger and the man in the hooded jacket returned to the dressing
room, she noticed that a third man was present and was accompanying the two
gunmen. The men told her to deactivate the alarm on the store’s back door.
Wortinger initially lied, saying she did not know how to turn it off. Two of the
men pointed their guns at her face, and told her they knew she could deactivate
the alarm.
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[8] Wortinger, who was thinking of her daughter back home, turned off the back
door alarm. One of the men initially wanted to order the women to go with
them, but after a brief discussion they instead ordered the women to lie on the
ground for ten minutes. The men left, taking Holley and Heitzman’s clothes
with them. After the men left, Wortinger called 911 to report the robbery and
locked the doors. She was terrified and crying. Holley and Heitzman began to
put on clothes they found in the store.
[9] Corporal Dustin Young of the Elkhart Police Department (“EPD”) was
dispatched to the store along with other officers, and he arrived within a few
minutes of Wortinger’s call. He knocked on the front door, and Wortinger
unlocked it and let him in. She appeared to be very frightened and wanted to
lock the door behind the officer, even after he explained more officers were on
the way. Corporal Young also saw Holley and Heitzman putting on clothes.
[10] Wortinger continued to cry and had difficulty communicating, but she
managed to describe the three robbers’ clothes for Corporal Young. She also
told Corporal Young she was terrified and had thought that she was going to
die.
[11] Next, Officer Kacy Weaver (who subsequently married and changed her name
to Kacy Weaver Denesuk) arrived at the store. She had been trained in
collecting evidence and took photographs throughout the store. Officer Weaver
noted that the cash register area had been ransacked. When she entered the
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dressing room area, she photographed items that were scattered on the floor,
which Heitzman later identified as having been in her purse.
[12] Another officer arrived with a K9 unit and searched behind the store. He found
a boot near two blue latex gloves on the ground and contacted Officer Weaver.
She also found a dollar bill on the ground a little further away. Officer Weaver
photographed and collected the boot, gloves, and dollar bill. Holley later
identified the boot as hers.
[13] The blue latex gloves were sent to a state laboratory for DNA testing. An
analyst generated a DNA profile from one of the gloves and uploaded the
profile into Indiana’s DNA database. The analyst learned that the DNA profile
matched Robinson’s already-existing profile in the database. The EPD then
obtained a search warrant for a DNA sample from Robinson, collected the
sample, and submitted it to the laboratory for further testing. The analyst
developed a DNA profile from Robinson’s sample and compared it with the
DNA profile derived from the blue latex glove. The profiles were consistent
and estimated to occur once in more than eight trillion unrelated individuals.
[14] After the robbery, Holley continued to work at the store, but she works only
during daylight hours and is scared of male customers. When a male customer
enters the store, she hides in the bathroom until they leave. Heitzman did not
go back to the store for four months.
[15] On September 21, 2016, the State charged Robinson with three counts of
robbery while armed with a deadly weapon, all Level 3 felonies. The case was
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tried by jury, and the jury determined Robinson was guilty as charged. The
trial court sentenced Robinson to an aggregate sentence of forty-eight years,
with three years suspended to probation. This appeal followed.
[16] Robinson raises five issues, which we consolidate and restate as:
1. Whether the trial court erred in granting the State’s
challenge for cause of a potential juror.
2. Whether the trial court erred in allowing a witness to
testify about fingerprint evidence.
3. Whether the evidence is sufficient to sustain Robinson’s
convictions.
4. Whether Robinson’s sentence is inappropriate in light of
the nature of the offense and the character of the offender.
1. Jury Selection – Challenge for Cause
[17] Robinson argues the trial court erred in granting the State’s challenge for cause
of potential juror 1869. “An impartial jury is the cornerstone of a fair trial,
guaranteed by the Sixth Amendment and Article 1, Section 13 of our Indiana
Constitution.” Ramirez v. State, 7 N.E.3d 933, 936 (Ind. 2014). The purpose of
the jury selection process is to determine whether potential jurors can render a
fair and impartial verdict in accordance with the law and evidence. Lindsey v.
State, 916 N.E.2d 230 (Ind. Ct. App. 2009), trans. denied.
[18] Parties and trial courts achieve an impartial jury by removing potential jurors
who cannot render a fair and impartial verdict. Oswalt v. State, 19 N.E.3d 241(Ind. 2014). Parties may seek to remove a potential juror using two processes:
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a challenge for cause; or a peremptory challenge. See id. at 246 (discussing the
two processes).
[19] This case concerns a challenge for cause. A motion to exclude a potential juror
for cause may be granted when a potential juror’s views would prevent or
substantially impair the performance of a juror’s duties in accordance with the
court’s instructions or the juror’s oath. Id. (quotation omitted). Indiana Code
section 35-37-1-5 (1989) and Indiana Jury Rule 17 “list many additional bases
for removing a prospective juror for cause.” Oswalt, 19 N.E.3d at 246. For
example, Indiana Code section 35-37-1-5 states that a potential juror may be
challenged for cause if, among other grounds, “the person is biased or
prejudiced for or against the defendant.” In addition, Indiana Jury Rule 17
provides in relevant part that a “court shall sustain a challenge for cause if the
prospective juror: . . . is biased or prejudiced for or against a party to the case.”
[20] Whether a trial court should excuse a particular juror for cause rests within its
sound discretion, and we will reverse the trial court only when its decision is
illogical or arbitrary. Lindsey, 916 N.E.2d 230. We afford substantial deference
to trial judges regarding this decision because they see potential jurors firsthand
and are in a much better position to assess whether they can serve without bias
and reach a decision based on the law. Id.[21] In Byers v. State, 709 N.E.2d 1024 (Ind. 1999), the trial court granted the State’s
request to exclude a potential juror for cause. The juror had previously been
represented by Byers’ trial counsel in a criminal case and stated that he had
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been treated unfairly by police. The potential juror further agreed that serving
as a juror might present a problem, and if he were the defendant, having a
person like him on the jury would be “a plus.” Id. at 1026. A panel of this
Court affirmed the trial court’s decision, concluding the potential juror’s prior
representation by Byers’ counsel, plus the potential juror’s belief that he had
been treated unfairly by police, suggested he could not be impartial.
[22] In Robinson’s case, prospective jurors filled out questionnaires, which were
provided to the parties prior to jury selection. During jury selection, the
2
prosecutor asked potential juror 1869, a woman, about her questionnaire, and
the following exchange occurred:
Q: 1869, you had made a comment on your questionnaire
about, um, that you’re a victim of the unfairness of the country’s
judicial system. So, obviously, that was a red flag for me. Let’s
talk about that a little bit. Do you remember writing that?
A: Yes.
Q: Okay. Now, while I’m curious and I want to know,
because I’m a fix it kind of person, I know that that’s not where
we’re supposed to be right now. So, I want to – I need to ask you
this question. Do you feel like the judicial system is flawed?
A: It’s two-fold.
Q: Okay. Tell me two-fold.
2
The potential juror’s race is unspecified in the record. The trial court noted: “[t]he Court does not know
whether Juror 1869 is, in fact, an African-American woman. I would say this, it is the Court’s perspective
that she certainly appeared to be an African-American woman, or at least she appeared not to be a Caucasian
woman.” Tr. Vol. II, p. 67.
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A: Yes, but I don’t think it’s my responsibility here today, nor
am I capable here today, to fix it.
Q: Okay. That makes sense to me. I understand that. So, is
that the twofold part of it?
A: Yes.
Q: So, why -
A: Yes, I think it’s flawed, but it is not my responsibility for
what you called me here for to fix it.
Q: Okay.
A: Nor can I do that here today for what I’ve been called to
do.
Q: Okay. You also talk about not judging people and not
being a busy body in other people’s business.
A: Yes.
Q: What do you mean by that?
A: That it is not for me to judge people one way or the other.
Q: Okay.
A: And that I have to be about the business of making sure
that I do what I have to do to be a productive member of society
and just try to make the world better from what I can do.
Q: Okay.
A: For whatever task that I am put to do in that moment.
Q: Do you think this process is about judging people?
A: No.
Q: Okay, what is it about?
A: Law breakers and bringing them to justice. Bringing
justice to people that’s been wronged.
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Q: So, if someone – if someone has broken the law, do you
believe they need to be held accountable for it?
A: Yes.
****
Q: . . . . Now, a long time ago.
A: Yes.
Q: A long time ago, you had some issues, correct?
A: Yes.
Q: Let’s see. Young and dumb?
A: Yeah, yeah, yes, young and dumb.
Q: Okay. Anything about that experience that left a bad taste
in your mouth?
A: No.
Q: Did you – how did it turn out?
A: I served time in the penitentiary.
Q: Did you think it was fair?
A: Yes.
Q: Okay. Did you learn from it?
A: Yes.
Q: Okay. And you had a member of your immediate family
that’s had something to do with the system. Anything about
that? Were they treated fairly?
A: Yes.
Q: Okay. All right. Thank you.
Tr. Vol. II, pp. 36-41.
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[23] Robinson then questioned potential jurors. He had the following exchange
with potential juror 1869:
Q: You had made some statements on your juror
questionnaire previously. Um, were you talking, when you
wrote your juror questionnaire, were you talking about the
system as a whole, as opposed to a particular instance?
A: It’s been so long since I wrote that statement, but, um, can
you read it?
Q: Sure.
A: I’m pretty sure.
Q: You discussed being a victim of unfairness of the judicial
system.
A: Yes.
Q: And were you talking about the judicial system as a
whole?
A: No, I was just talking about the incident that had
something to do with me at that time.
Q: Okay. So, are you able to put what happened to you at
that particular time aside and be a juror on this case and rule
fairly and impartially?
A: Yes, I could.
Id. at 60-61.
[24] After Robinson finished his questions, a sidebar was held off the record. The
trial court then excused several jurors, including potential juror 1869. After the
jury was selected and excused for the day, the trial court held a hearing on the
record. Robinson objected to the State challenging potential juror 1869 for
cause. He argued that the potential juror had “clarified her responses” to her
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questionnaire and would be fair. Id. at 64. In response, the State contended
that the contradiction between the potential juror’s statements in her
questionnaire and her statements in court indicated that she may have “an
agenda” or may have been “trying to avoid being called as a juror when she
filled out her questionnaire.” Id. at 65-66. The trial court issued the following
ruling:
I believe [the prosecutor] accurately read the statements from the
perspective [sic] Juror 1869’s questionnaire, which that is good
because the Court wanted that as part of the record. Now, what
the Court notes, and this goes to questioning by both the State of
Indiana and the Defense, and it directly is related to the Court’s
decision to allow Juror 1869 to be struck for cause. Juror 1869’s
responses were inconsistent with the responses she gave on her
questionnaire. But just as importantly, her responses to the State
and her responses to the Defense, to questioning during voir dire,
was [sic] also inconsistent. And this is the response that was the
most troubling to the Court, and I cer -- I’m not arguing with
you, [Robinson], I – I heard what you said and I certainly
acknowledge your argument and what you said and I thought
you stated that accurately but the – but the – the statement that
prospective Juror 1869 made was to a question by [Robinson]
and her response was that she was a victim of unfair judicial
system to her, which means, it’s very personal to her, which is
that exactly what she expressed on her jury questionnaire.
From the Court’s perspective, I think when you look at the
totality of that, there is no question but what prospective Juror
1869 should have been released for cause.
Id. 67-68.
[25] We agree with the trial court that potential juror 1869’s statements in her
questionnaire sharply contradicted her statements during the hearing. In the
questionnaire, she described a prior interaction with the legal system in strongly
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negative terms, stating that she, like the potential juror in Byers, had been a
victim of the country’s legal system. By contrast, during the hearing, although
the potential juror agreed with Robinson that her belief that the justice system
was unfair resulted from her prior criminal case, she also told the prosecutor
that the prior case did not leave a bad taste in her mouth, and she had been
treated fairly. The trial judge was in the best position to assess potential juror
1869’s credibility in light of these contradictory statements and could have
reasonably determined that she could not be impartial. The trial court did not
abuse its discretion. See Byers, 709 N.E.2d 1024 (potential juror’s statement that
he “had not been treated fairly by the police” was grounds for a challenge for
cause).
[26] On a related topic, Robinson argues that excusing proposed juror 1869 from
service violated the United States Supreme Court’s holding in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986), which held that
racial discrimination in jury selection violates the Equal Protection Clause.
Batson is procedurally distinguishable from the current case because Batson
addressed racial discrimination in the context of peremptory challenges, not
challenges for cause, during jury selection. See, e.g., State v. Bowers, 482 N.W.2d
774, 776 (Minn. Sup. Ct. 1992) (“To our knowledge, however, neither [the
United States Supreme Court] nor any state court has expanded Batson to
challenges for cause”).
[27] This is not to say that racial discrimination is permissible in the context of
challenges for cause. Rather, “if a prosecutor has demonstrated a challenge for
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cause is necessary,” then the prosecutor has presented a racially neutral
explanation for removing the juror, thus meeting the standard set forth in
Batson. Bowers, 482 N.W.2d at 776. In the current case, the prosecutor
questioned potential juror 1869’s impartiality due to the strong contradictions
between her questionnaire and her answers at trial. Further, the prosecutor did
not challenge for cause another potential juror of color. We conclude Robinson
has failed to demonstrate reversible error.
2. Admission of Fingerprint Evidence
[28] Robinson claims the trial court erred in admitting testimony about fingerprint
analysis from Sergeant Denise Houser, claiming she was not qualified as an
expert. The State argues that Robinson waived this claim for failure to timely
object and for failure to state the reason for the objection. Based on our review
of the transcript, we disagree with the State and address the merits of
Robinson’s claim.
[29] Indiana Evidence Rule 702 provides:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
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[30] Absent an abuse of discretion, we will not disturb a trial court’s determination
that a witness is qualified to testify as an expert and render an expert opinion.
Ross v. State, 665 N.E.2d 599 (Ind. Ct. App. 1996). An abuse of discretion
occurs if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id.[31] During Robinson’s trial, Sergeant Houser explained that she is in charge of the
EPD’s crime scene unit and evidence facility. She has bachelor’s degrees in
criminal justice and psychology, and she graduated from the Indiana Law
Enforcement Academy. She was an evidence technician for three years,
reporting to crime scenes to collect evidence including fingerprints and DNA
swabs. In 2010, Sergeant Houser was promoted to an evidence technician with
the EPD’s Criminal Investigations Division, which required more advanced
training. During her employment with the EPD she has regularly attended
additional training courses on topics including crime scene processing and
discovering latent fingerprints on skin. In addition, Sergeant Houser supervises
and trains the EPD’s evidence technicians.
[32] Robinson objected to Sergeant Houser explaining how fingerprints are
generated, identifying the processes that evidence technicians use to detect and
preserve fingerprints, and describing the circumstances under which EPD
evidence technicians would or would not search for prints. We conclude from
the preceding paragraph that the State set forth sufficient evidence from which
the trial court could conclude that Sergeant Houser qualified as an expert
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witness on fingerprint evidence. The court did not abuse its discretion. See
Ross, 665 N.E.2d 599 (no abuse of discretion in qualifying witness as DNA
expert; witness testified about his education and experience).
3. Sufficiency of the Evidence
[33] Robinson argues the State failed to provide sufficient evidence to sustain his
three convictions for armed robbery. He specifically claims the State failed to
demonstrate he participated in the robberies.
[34] When an appellant challenges the sufficiency of the evidence to sustain a
conviction, we look to the evidence and the reasonable inferences therefrom
which supports the verdict. Parsley v. State, 557 N.E.2d 1331 (Ind. 1990). The
identity of the perpetrator of a crime is a question of fact, not law, and the
weight given to identification evidence is a function of the trier of fact. Watkins
v. State, 551 N.E.2d 1145 (Ind. 1990). If there is evidence of probative value
from which a reasonable trier of fact could infer that appellant was guilty
beyond a reasonable doubt, then the conviction must be affirmed. Parsley, 557
N.E.2d 1331.
[35] To obtain three convictions of armed robbery as charged, the State was required
to prove beyond a reasonable doubt that: (1) Robinson (2) knowingly (3) took
property (money or clothing) (4) of another person (Wortinger, Holley, and
Heitzman, respectively) (5) by putting the person in fear (6) while armed with a
deadly weapon (a gun). Ind. Code § 35-42-5-1.
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[36] One of the gunmen who participated in the store robbery wore blue latex gloves
and had placed a bandana on his face. That man worked with the suspect in
the hooded jacket, who emptied the cash registers. Meanwhile, the man in the
bandana ordered Holley and Heitzman to disrobe. He took Heitzman’s purse,
and when the robbers fled from the store through the back door, he also took
Holley and Heitzman’s clothes.
[37] When the police searched behind the store, they found Holley’s boot near a set
of blue latex gloves. The gloves were submitted for DNA testing, and a DNA
profile generated from one of the gloves matched Robinson’s DNA profile.
During questioning by a detective, Robinson denied that he had ever been to
that store. This is sufficient evidence to establish that Robinson participated in
the store robbery. See Curtis v. State, 42 N.E.3d 529 (Ind. Ct. App. 2015)
(evidence sufficient to sustain conviction for armed robbery; Curtis had
discarded a plastic bottle before entering the store, and his DNA was later
discovered on the bottle), trans. denied.
[38] Robinson notes that none of the three women identified him or anyone else as a
participant in the robberies. This is a request to reweigh the evidence, which
our standard of review forbids. We affirm the trial court on this issue.
4. Appropriateness of Sentence
[39] Robinson argues his sentence is inappropriately high and asks the Court to
order two or all three of his sentences to be served concurrently rather than
consecutively. Article 7, section 6 of the Indiana Constitution authorizes this
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Court to “review and revis[e]” sentences. This constitutional authority is
implemented through Indiana Appellate Rule 7(B), which provides: “The
Court may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.”
[40] The principal role of appellate review under Rule 7(B) is to attempt to leaven
the outliers, not to achieve a perceived correct result in each case. Threatt v.
State, 105 N.E.3d 199 (Ind. Ct. App. 2018), trans. denied. As a result, the
question is not whether another sentence is more appropriate, but whether the
sentence imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App.
2008). “[W]hether we regard a sentence as appropriate at the end of the day
turns on our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Robinson
has the burden of proving his sentence is inappropriate. Estrada v. State, 969
N.E.2d 1032 (Ind. Ct. App. 2012), trans. denied.
[41] At the time Robinson committed his three offenses, the maximum sentence for
a Level 3 felony was sixteen years, the minimum sentence was three years, and
the advisory sentence was nine years. Ind. Code § 35-50-2-5 (2014). The trial
court sentenced Robinson to sixteen years on each conviction, with three years
suspended to probation for Count I. The court further ordered Robinson to
serve the three sentences consecutively, for an aggregate sentence of forty-eight
years, with three suspended to probation.
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[42] Starting with the nature of the offenses, Robinson notes his aggregate executed
sentence is close to the maximum and claims there “was nothing particularly
heinous about the offenses.” Appellant’s Br. p. 21. We disagree. Robinson
and his accomplices attempted to conceal their identities and appeared to have
advance knowledge of the store’s layout and security, which indicates a degree
of planning.
[43] Although use of a deadly weapon is an element of the offenses here, Robinson
and his accomplices chose to use the handguns by pointing them directly at the
three women. Further, when Wortinger claimed she did not know how to
deactivate the back door alarm, Robinson and his companion pointed their
guns at her head. His actions placed all three women in greater danger and
terror than the elements of the offense required.
[44] In addition, Robinson committed robbery against Holley and Heitzman by
ordering them to disrobe at gunpoint and then stealing their clothes and
Heitzman’s purse. This act terrified and humiliated them, and he presumably
gained very little from taking their clothes.
[45] Finally, the robberies had long-term negative effects on Holley and Heitzman.
Holley stopped working at night, and she is still fearful every time a man enters
the store. Heitzman did not return to that store for four months. Nothing
about the nature of the robberies merits a downward sentencing adjustment.
[46] Turning to the character of the offender, Robinson was thirty-nine years old at
sentencing. His criminal history includes convictions of dealing in cocaine or a
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narcotic drug, robbery, battery resulting in bodily injury, two counts of resisting
law enforcement, being a felon in possession of a handgun, operating a vehicle
without ever receiving a license, and operating a vehicle without ever receiving
a license with a prior conviction. It is troubling that Robinson continues to
commit robberies and gun-related offenses. In addition, he was serving a
sentence in community corrections when he committed the offenses at issue in
this case. The State further alleged during sentencing that Robinson has a child
support arrearage dating back to 2015, and Robinson’s employment history is
spotty at best. Robinson has failed to demonstrate that a reduction of his forty-
eight-year sentence is appropriate in light of his character.
[47] For the reasons stated above, we affirm the judgment of the trial court.
[48] Judgment affirmed.
May, J., and Mathias, J., concur.
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