Ervin Mapp v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Nov 16 2017, 6:43 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
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ervin Mapp, November 16, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1704-CR-843
v. Appeal from the Marion Superior
Court
State of Indiana, The Hon. Lisa Borges, Judge
Trial Court Cause No.
Appellee-Plaintiff.
49G04-1604-F5-14925
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Ervin Mapp and Kiesha Upshaw had ended their long-
term relationship when Mapp arranged to meet with Upshaw to give her some
money that he owed to her. When Mapp and Upshaw met in a fast-food
restaurant parking lot, Mapp asked to use Upshaw’s telephone but refused to
return it to her despite repeated requests. Upshaw, still requesting the return of
her telephone, exited her vehicle and approached Mapp, who produced a knife
and stabbed her in the abdomen. When Upshaw fled on foot, Mapp reached
into Mapp’s vehicle and took her purse. The State charged Mapp with, and he
was convicted of, Level 2 felony robbery. Mapp contends that the State failed
to produce sufficient evidence to sustain his robbery conviction. According to
Mapp, the evidence admitted at trial supports, at most, convictions for theft and
battery. Because we disagree, we affirm.
Facts and Procedural History
[2] Upshaw and Mapp dated for six years before ending their relationship in July of
2015. On April 17, 2016, Mapp called Upshaw and asked her to meet with him
the next day so that he could give her some money that he owed her. The duo
agreed to meet in a McDonald’s parking lot at 38th Street and Keystone Avenue
in Indianapolis but ended up driving to a nearby Taco Bell. Mapp approached
Upshaw as she was sitting in her vehicle and asked to use her mobile telephone.
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[3] When Mapp finished, Upshaw asked for her telephone back. Mapp refused to
return the telephone, telling Upshaw that he needed it because he was going out
of town. Upshaw again told Mapp to return her telephone. Upshaw exited her
vehicle, stood in the parking lot behind Mapp, and again asked for her
telephone. Mapp reached into the back seat of his vehicle, as if to retrieve the
money he owed Upshaw, but “[i]n the blip of a second, he grabbed a knife and
stabbed [her] from behind[,]” in the lower abdomen. Tr. Vol. II p. 20. Upshaw
fled on foot and, as she looked back, saw Mapp reach into her vehicle and
remove her purse.
[4] On April 21, 2016, the State charged Mapp with Level 5 felony battery and
Level 5 felony intimidation. On June 27, 2016, the State added a charge of
Level 2 felony robbery causing serious bodily injury. On September 19, 2016,
the State filed notice that it intended to have Mapp sentenced as a habitual
offender. Following a jury trial, the jury found Mapp guilty of battery and
robbery, after which Mapp admitted to being a habitual offender. On March
29, 2017, the trial court entered judgment of conviction on Level 2 felony
robbery and sentenced Mapp to thirty years of incarceration, enhanced twenty
years by virtue of his habitual offender status, with five years suspended to
probation.
Discussion and Decision
[5] Mapp contends that the State produced insufficient evidence to sustain his
conviction for Level 2 felony robbery, contending that the record supports, at
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most, convictions for theft and battery. When reviewing the sufficiency of
evidence supporting a conviction, we will not reweigh the evidence or judge the
credibility of witnesses. Staton v. State, 853 N.E.2d 470, 474 (Ind. 2006). We
must look to the evidence most favorable to the conviction together with all
reasonable inferences to be drawn from that evidence. Id. We will affirm a
conviction if there is substantial evidence of probative value supporting each
element of the crime from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id.
[6] In order to convict Mapp of Level 2 felony robbery, the State was required to
establish that he “knowingly or intentionally t[ook] property from another
person or from the presence of another person … by using or threatening the
use of force on any person; or … by putting any person in fear [and the robbery]
result[ed] in serious bodily injury to any person other than a defendant.” Ind.
Code § 35-42-5-1. Specifically, the State in this case charged Mapp with
“knowingly tak[ing] property, to-wit: cell phone and/or purse, from another
person or from the presence of another person, to-wit: Kiesha Upshaw, by
using or threatening the use of force, said act resulted in serious bodily injury to
Kiesha Upshaw, to-wit: extreme pain[.]” Appellant’s App. Vol. II p. 177.
[7] Mapp argues, inter alia, that because he took Upshaw’s telephone from her
before using force, he merely committed theft and not robbery. Mapp’s
argument is without merit. As the Indiana Supreme Court has held, “‘a
[robbery by use of force] is not fully effectuated if the person in lawful
possession of the property resists before the thief has removed the property from
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the premises or from the person’s presence.’” Young v. State, 725 N.E.2d 78, 81
(Ind. 2000) (citation omitted). Here, Upshaw was actively resisting Mapp’s
taking of her telephone and it was still in her presence when he stabbed her.
Upshaw repeatedly asked and/or told Mapp to return her telephone, exited her
vehicle, and approached him. Because Upshaw was still in Mapp’s presence
and actively resisting, the robbery was not yet fully effectuated when he stabbed
her. Put another way, while “[i]t is true that committing robbery by use of force
requires that the force be used before the defendant completes taking the
property from the presence of the victim[,]” id. at 80, that is precisely what
occurred in this case. Mapp’s argument in this regard is without merit, and we
therefore conclude that the State produced sufficient evidence to sustain his
conviction for Level 2 felony robbery.1
[8] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
1
Because we conclude that the State established that Mapp committed robbery with respect to Upshaw’s
telephone, we need not separately address his argument regarding her purse. Moreover, because we have
rejected Mapp’s argument that he could only be convicted of the theft of Upshaw’s telephone, we need not
address his argument that his stabbing of her only supported a battery conviction.
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