Johnathan Olson and Austin J. Mahoney v. State of Indiana

FILED
Nov 04 2019, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT – ATTORNEYS FOR APPELLEE
JOHNATHAN OLSON Curtis T. Hill, Jr.
Michael G. Moore Attorney General of Indiana
Indianapolis, Indiana
Ian McLean
ATTORNEY FOR APPELLANT – Supervising Deputy Attorney
AUSTIN MAHONEY General
Indianapolis, Indiana
Leanna Weissmann
Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnathan Olson and Austin J. November 4, 2019
Mahoney, Court of Appeals Case No.
Appellants-Defendants, 19A-CR-773
Appeal from the Vigo Superior
v. Court
The Honorable Michael J. Lewis,
State of Indiana, Judge
Appellee-Plaintiff. Trial Court Cause Nos.
84D06-1809-F2-3494
84D06-1809-F2-3491
Najam, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019 Page 1 of 10
Statement of the Case
[1] In this consolidated appeal, Johnathan Olson and Austin Mahoney appeal the
trial court’s denial of their motions to dismiss the State’s charges against them
for robbery, as Level 2 felonies. Olson and Mahoney present two issues for our
review:
1. Whether the trial court erred when it denied their motions
to dismiss the charges.
2. Whether the State is collaterally estopped from
prosecuting them for robbery.
[2] We affirm.
Facts and Procedural History
[3] In 2018, Olson, Mahoney, and four of their friends, all minors, visited the Jiffy
Mini Mart in Terre Haute and stole items from the store “on multiple
occasions.” Appellants’ App. Vol. 2 at 14. On September 20, the group stole
items from the store, and when they returned to the store later that evening,
Jiffy Mini Mart employee Robert Bailey confronted them and asked them to
leave the store. While Bailey was distracted by other members of the group,
Mahoney reached over a counter and stole a package of cigars. Mahoney and
the group then exited the store, with Bailey following them.
[4] Once outside in the parking lot, the young men surrounded Bailey and, when
Bailey tried to get away, Mahoney punched Bailey in the head. A passerby,
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Ron Deitz, intervened in an attempt to aid Bailey, and the group threatened
Deitz. In the meantime, one of the young men struck Bailey in the head and
knocked him to the ground. While Bailey was lying on the ground, Mahoney
kicked Bailey in the stomach, and Olson “stomp[ed]” on Bailey’s head. Id.
The group then fled the scene.
[5] The State charged Olson and Mahoney each with robbery, as a Level 2 felony;
battery, as a Level 5 felony; theft, as a Class A misdemeanor; criminal mischief,
as a Class A misdemeanor; and criminal trespass, as a Class A misdemeanor.
The robbery charges meant that Olson and Mahoney would be tried as adults.
See Ind. Code § 31-30-1-4(a)(6)(B) (2019) (providing that if an individual is at
least sixteen years old and commits robbery resulting in bodily injury a juvenile
court lacks jurisdiction over the individual). Olson and Mahoney’s cohorts,
including N.G., were younger than sixteen at the time, and their cases
remained in juvenile court.
[6] On November 16, a juvenile court held a factfinding hearing on the State’s
petition alleging that N.G. was a delinquent in part for his participation in the
robbery with Olson and Mahoney. At the conclusion of the hearing, the
juvenile court found that the State had not proved that N.G. had committed
robbery, but the court found that N.G. had committed theft. Thereafter, Olson
and Mahoney filed motions to dismiss the robbery charges pending against each
of them. In their motions to dismiss, Olson and Mahoney alleged in relevant
part that
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there was no robbery. There was at one point in time a possible
theft and there was at a different point of time a possible battery.
However, there clearly was not a robbery which resulted in
serious bodily injury. . . . Thus, [the robbery charge] must be
dismissed for lack of probable cause.
Appellants’ App. Vol. 2 at 22. In support of their motions, Olson and Mahoney
alleged that N.G.’s adjudication for theft based on the juvenile court’s finding
that there was no evidence of a robbery was “conclusive” evidence that a
robbery did not occur. Id. at 23. The trial court denied their motions to dismiss
following a hearing. This appeal ensued.
Discussion and Decision
Issue One: Denial of Motions to Dismiss
[7] Olson and Mahoney contend that their robbery charges are “factually
insufficient as shown by the charging documents and as confirmed by the
refusal of the juvenile court to convict a codefendant of robbery[.]” Appellants’
Br. at 11. Accordingly, Olson and Mahoney maintain that the trial court erred
when it denied their motions to dismiss the robbery charges. We cannot agree.
[8] A motion to dismiss under Indiana Trial Rule 12(B)(6) challenges only the legal
sufficiency of the charges, which presents a question of law that we review de
novo. Stone v. State, 128 N.E.3d 475, 480 (Ind. Ct. App. 2019), trans. denied. We
may affirm the trial court’s judgment under Trial Rule 12(B)(6) on any basis
supported by the record. See id. “A motion to dismiss under Trial Rule
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12(B)(6) is appropriate only when ‘the facts alleged in the challenged pleading
are incapable of supporting relief under any set of circumstances.’” Id. (quoting
Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015)).
[9] To prove robbery, as a Level 2 felony, the State is required to show that Olson
and Mahoney each knowingly or intentionally took property from another
person or from the presence of another person by using or threatening the use of
force on any person which resulted in serious bodily injury to any person other
than a defendant. I.C. § 35-42-5-1. The charging informations alleged in
relevant part that Olson and Mahoney each knowingly or intentionally took
property from another person or from the presence of another person, namely,
Bailey and/or Jiffy Mini Mart, by using or threatening the use of force on any
person, resulting in serious bodily injury to Bailey. And the identical probable
cause affidavits alleged in relevant part as follows:
3. On 09-26-2018 Affiant[, a Terre Haute Police Department
Officer,] went to the Jiffy gas station at 25th street and 8th
Avenue to obtain a copy of the video surveillance from the
Robbery. While watching the video Affiant was able to identify
all the suspects from having dealt with all six of them personally.
Affiant watched the surveillance video, incorporated herein as
Attachment A, and observed . . . Mahoney reach over the
counter, take merchandise, and then exit the store. During this
same time, multiple other males identified as James Edmonson,
Anthony Cheeseman, N.G. (age 15), Elijah “Eli” Rooksberry,
and Johnathan Olson were inside of the store and appeared to be
either watching the store employees or attempting to distract the
employees. Affiant observed Robert Bailey confront the males
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and appears to order them to leave the store. As they are leaving
the store, Bailey follows them out of the front door.
4. As the group enters the lot of the business, Affiant observed
James Edmonson square up, standing in front of the victim with
his body bladed towards the victim and clinched fists. Affiant
also observed . . . Mahoney [and the others] surround the victim
in an aggressive and intimidating manner.
5. Shortly after the victim had been surrounded by all six people
he was attempting to walk away when Affiant observed . . .
Mahoney suddenly attack the victim from the side. After
[Mahoney] sucker punched the victim all 6 juveniles ran out of
the video range. Seconds later they all re-entered the video and
three of the males were attacking Ron Dietz, who was trying to
assist the victim and prevent any further battery from occurring.
While [Mahoney] was attacking Ron Dietz, Anthony and
Johnathan both ran up on Dietz as if they were both attempting
to batter him at the same time [Mahoney] was attacking him.
6. While [Mahoney] was attacking the other white male (along
with Anthony and Johnathan) Robert Bailey was looking
towards Ron Dietz as he was being attacked and had his back to
James “Jimmy” Edmondson. Jimmy ran up from behind and
struck Robert Bailey with his closed fist causing him to fall to the
ground. After being struck by Jimmy, the victim fell to the
ground unconscious and was lying on the ground motionless.
7. While the victim was lying on the ground motionless Affiant
observed [Mahoney] kick him in his midsection. At that point all
the juveniles started to flee south on foot. As they started to flee
Affiant observed Johnathan Olson take his foot and stomp on the
victim’s head prior to fleeing the scene.
***
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9. Affiant spoke to the store manager Shelly and she advised that
the same group of juveniles had come in the store earlier that day
and had stolen several items. When they re-entered the store
they were asked to leave by Robert Bailey because of the prior
theft. In the video you can see while all parties were inside,
several of the suspects turned their pockets inside out as to show
they had nothing in their possession at that time. Several of the
juveniles were attempting to distract the victim while [Mahoney]
went to the other side of the counter, reached into a closed plastic
case and stole some cigars from behind the counter. Affiant was
also advised that group had stolen from that store on multiple
occasions prior to this incident.
Appellants’ App. Vol. 2 at 14.
[10] Olson and Mahoney maintain that, “even if taken as true,” the charging
documents “fail to establish Olson and Mahoney committed robbery because
the State did not allege the boys used force to complete the taking of the
property.” Appellants’ Br. at 12. Olson and Mahoney correctly assert that “the
robbery statute requires a nexus between the taking and force,” and they
contend that the charging documents do not show any such nexus. Id. at 13
(citing Rowe v. State, 496 N.E.2d 585 (Ind. Ct. App. 1986)). Olson and
Mahoney read the charging documents as supporting a theft followed by
batteries against Bailey that were entirely unrelated to the theft. And they urge
us to consider the juvenile court’s refusal to adjudicate N.G. as a delinquent on
the robbery charge as support for their motions to dismiss.
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[11] However, we agree with the State that the charging documents are sufficient to
support the robbery charges against Olson and Mahoney. While the State has
not alleged that Mahoney used force at the very moment he took the cigars
from the Jiffy Mini Mart, our Supreme Court has held that the “use of force”
element in the robbery statute is satisfied where “the person in lawful
possession of the property resists before the thief has removed the property from
the premises or from the person’s presence.” Coleman v. State, 653 N.E.2d 481,
482 (Ind. 1995). It is not until the property is successfully removed from the
premises or person’s presence that the robbery is complete. Cooper v. State, 656
N.E.2d 888, 889 (Ind. Ct. App. 1995) (citing Coleman, 653 N.E.2d at 483). If
the use of force is necessary to accomplish the theft and elude the person in
possession of the property, it is part of the robbery. Id.
[12] Here, in the charging informations, the State alleged that Olson and Mahoney
took the cigars from Jiffy Mini Mart and/or from the presence of Bailey by
using or threatening the use of force. The probable cause affidavits state that
Bailey followed Olson and Mahoney and the others out of the store and into the
parking lot, and it was there and then that Mahoney and others battered Bailey.
Thus, the charging documents are facially sufficient to support the robbery
charges.
[13] Still, Olson and Mahoney contend that “[t]here was no evidence the store
employees knew Mahoney possessed the cigars in his pocket when the fight
occurred.” Appellants’ Br. at 15. And they state that “Bailey did not follow the
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boys out of the store to retrieve the stolen item, nor did he follow the juveniles
to stop them from continuing to remove the property.” Id. But the trial court
has not heard any evidence at this stage of the proceedings. The probable cause
affidavits are silent as to whether Bailey was pursuing Mahoney because he had
taken the cigars or whether Mahoney could have eluded Bailey without the use
of force. Questions of fact to be decided at trial or facts constituting a defense
are not properly raised by a motion to dismiss. Pavolovich v. State, 6 N.E.3d 969,
974 (Ind. Ct. App. 2014), trans. denied. Whether the evidence will be sufficient
to prove the robbery charges will be determined at trial. At this stage of the
proceedings, we cannot say that the trial court erred when it denied Olson’s and
Mahoney’s motions to dismiss the robbery charges.
Issue Two: Collateral Estoppel
[14] Olson and Mahoney also contend that the State is barred by collateral estoppel,
or issue preclusion, 1 from prosecuting them for robbery. They maintain that,
because a juvenile court found the evidence insufficient to support N.G.’s
adjudication as a delinquent for committing robbery, the State is bound by that
adjudication in the instant cases. We cannot agree.
[15] As the State correctly points out, “in criminal cases, the invocation of collateral
estoppel requires mutuality of estoppel and identity of the parties.” Martin v.
1
There is no dispute that claim preclusion does not apply here.
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State, 740 N.E.2d 137, 142 (Ind. Ct. App. 2000), trans. denied. Here, because
neither Olson nor Mahoney was a party in the juvenile court’s adjudication of
N.G., collateral estoppel does not apply. The State is not barred from
prosecuting Olson and Mahoney for robbery.
[16] Affirmed.
Bailey, J., and May, J., concur.
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