Henry Robinson v. State of Indiana (mem. dec.) ( 2018 )

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.
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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.
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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.
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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
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[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
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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
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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
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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
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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
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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.
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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
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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.
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[25] Affirmed.
Najam, J., and Crone, J., concur.
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