James Brown v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 01 2020, 9:10 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott H. Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Brown, October 1, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-790
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D03-1909-F2-17
Weissmann, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-790 | October 1, 2020 Page 1 of 8
[1] James Brown appeals his convictions for Level 5 Felony Robbery1 and Level 2
Felony Criminal Confinement,2 arguing that the evidence is insufficient to
support the convictions. Finding the evidence sufficient, we affirm.
Facts
[2] On the afternoon of September 22, 2019, Edward Brown, his wife Sarah
Brown, and their two teenage grandchildren were heading home after attending
church.3 Edward was driving the family’s Ford Flex, Sarah was in the front
passenger’s seat, and the two teenagers were in the back seat.
[3] The vehicle was stopped at an intersection when it was rear-ended by a vehicle
being driven by a person later identified as Brown. Edward looked backwards
and saw that Brown had exited his vehicle and begun to leave the scene.
Edward exited his vehicle and told Brown to come back because they needed to
exchange information. Edward was standing right by the driver’s seat with the
door open and the car still running when Brown turned around and approached
Edward’s vehicle. Brown forcibly pushed Edward away from the vehicle and
entered it. Edward attempted to reach into the vehicle to prevent Brown from
putting the car into gear but jerked his hand away as Brown drove away with
Sarah and the two teenagers inside.
1
Ind. Code § 35-42-5-1(a).
2
Ind. Code § 35-42-3-3(b)(4)(B).
3
The Browns have no relation to the appellant.
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[4] Sarah had been texting when the accident occurred. As soon as she felt the
impact, she turned around to check on the boys. One had a bloody nose and
the other said he was okay. She watched Brown approach Edward, use both
hands to push him away from the vehicle, and enter the driver’s seat. Brown
shifted the vehicle into drive and sped away. Sarah pleaded with Brown,
“please don’t do this.” Tr. Vol. II p. 36. Brown responded, “You called me
back here, so we’re all going to die today.” Id. at 37. As Brown drove toward
the next intersection, Sarah reached over to try to pull the keys out of the
ignition. Brown and Sarah then began struggling over the keys. Eventually,
Sarah was able to pull the keys out of the ignition. Brown fought with her,
using force as they “tousl[ed] and tugg[ed] back and forth.” Id. at 38. Brown
lunged at Sarah, trying to reclaim the keys, but was unsuccessful. He jumped
out of the vehicle and was later found and arrested.
[5] On September 24, 2019, the State charged Brown with Level 5 felony robbery,
three counts of Level 2 felony criminal confinement, three counts of Level 6
felony intimidation, Class B misdemeanor leaving the scene of an accident,
Level 6 felony auto theft, and Class A misdemeanor battery. At the conclusion
of the February 10, 2020, jury trial, the jury found Brown guilty as charged.
The trial court ordered the leaving the scene of an accident, auto theft, and
battery convictions merged into the robbery conviction and two of the criminal
confinement convictions and the three intimidation convictions merged into
one criminal confinement conviction. On March 19, 2020, the trial court
sentenced Brown to five years for robbery and twenty-two years for criminal
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confinement, to run concurrently, for an aggregate sentence of twenty-two years
imprisonment. Brown now appeals.
Discussion and Decision
[6] Brown argues that the evidence is insufficient to support the robbery and
criminal confinement convictions. When considering the sufficiency of the
evidence supporting a conviction, we will consider only the probative evidence
and reasonable inferences that may be drawn therefrom that support the verdict.
E.g., Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). In conducting our review,
we will neither reweigh the evidence nor judge the credibility of witnesses. Id.
We will affirm unless no reasonable factfinder could find the elements of the
crime proved beyond a reasonable doubt. Id.
I. Robbery
[7] To convict Brown of Level 5 felony robbery, the State was required to prove
beyond a reasonable doubt that he knowingly or intentionally took property
“from another person or from the presence of another person” by using or
threatening the use of force or by putting any person in fear. I.C. § 35-42-5-1(a).
In the charging information, the State alleged that Brown “did knowingly take
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property, a Ford Flex vehicle from Victim 1, by using force or threatening the
use of force.” Appellant’s App. Vol. II p. 2-3.4
[8] Brown argues, essentially, that because Edward was not actually in the vehicle
at the time Brown took it, there is insufficient evidence to prove that Brown
took the vehicle from Edward. We disagree. “‘Presence,’ within the rule that a
taking of property from the presence of another may constitute a robbery,
means a possession or control so immediate that violence or intimidation is
essential to sunder it.” Paulson v. State, 181 Ind. App. 559, 562, 393 N.E.2d
211, 213 (1979) (internal quotation omitted); see also Ortiz v. State, 716 N.E.2d
345, 351 (Ind. Ct. App. 1999) (observing that “the words [‘from another
person’] contained in the robbery statute are not so strictly construed as to
exclude the taking of property from the immediate presence of the person”)
(internal quotation marks omitted). In this case, the following evidence
supports the conclusion that Brown took the vehicle from Edward’s person or
presence:
• Edward testified that after the collision, he exited his vehicle, which was
still running, to tell Brown to come back to the scene. Edward “was
standing there by my door, by the driver’s door,” which was open. Tr.
Vol. II p. 23. Brown approached Edward, pushed him with both hands
away from the door, got in the vehicle, and drove it away. Id. at 30.
4
Brown contends that the State “chose to charge robbery that was accomplished by the taking of property
from the victim’s person” as opposed to robbery that is accomplished by taking the property from the victim’s
presence. Appellant’s Br. p. 8. This argument is unpersuasive, as the language of the charging information
did not specify whether the vehicle was taken from Edward’s person or his presence; therefore, the State was
not limited to one theory or the other.
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• Sarah testified that after the collision, Brown began to walk away from
the scene. Edward then got out of the car to tell Brown to come back.
Sarah thought Brown “was getting ready to give us his contact
information,” but instead, he “pushed my husband out of the way,
pushed him real hard, jumped in the vehicle with me and my two kids,
put it in drive real quick, and slammed on the gas pedal and took off with
the [three] of us in there.” Id. at 35-36.
A reasonable factfinder could conclude, based on this evidence, that Brown
took the vehicle from Edward’s person or presence. Edward was standing right
by the open driver’s side door, the vehicle was still running, his family was still
inside the vehicle, and Brown had to use force (by pushing Edward away) to
sunder Edward’s possession or control of the vehicle. See Paulson, 181 Ind.
App. at 562, 393 N.E.2d at 213 (noting that property is within the “presence” of
a person if the person has “possession or control so immediate that violence or
intimidation is essential to sunder it”). Therefore, we find the evidence
sufficient to support Brown’s conviction for Level 5 felony robbery.
II. Criminal Confinement
[9] To convict Brown of Level 2 felony criminal confinement, the State was
required to prove beyond a reasonable doubt that he knowingly or intentionally
confined Sarah and her grandsons without their consent while hijacking their
vehicle. I.C. § 35-42-3-3(b)(4)(B). “Hijacking” is defined as the exercise of
“unlawful or unauthorized control of a vehicle by force or threat of force upon
the vehicle’s inhabitants.” Taylor v. State, 879 N.E.2d 1198, 1202 (Ind. Ct. App.
2008) (internal quotation marks omitted).
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[10] Brown’s only argument with respect to this conviction is that the evidence does
not support a conclusion that he used force or threat of force on Sarah and her
grandsons. We disagree. To enter the vehicle, Brown had to use force on
Edward by using both hands to push Edward away from the vehicle. After
entering the vehicle, Brown threatened Sarah, warning that “you called me
back here, so we’re all going to die today.” Tr. Vol. II p. 37. At that point,
Sarah and her grandsons were so frightened that “[w]e all started screaming”
and she feared that Brown would “kill my kids.” Id. After Sarah pulled the
keys out of the ignition, Brown fought with her, using force as they “tousl[ed]
and tugg[ed] back and forth.” Id. at 38. In fact, he applied such force that
Sarah’s “wrist got twisted,” causing her “quite a bit of pain.” Id. at 38-39.5
[11] A reasonable factfinder could conclude, based on this evidence, that Brown
used force (physically struggling with Sarah over the car keys, twisting her wrist
and causing her pain) or the threat of force (pushing Edward away from the
vehicle, telling Sarah and the boys that they were all going to die) to exert and
maintain unauthorized control of the vehicle. Therefore, the evidence is
5
There is also evidence in the record that the Ford Flex door locks automatically engage when the vehicle
reaches a speed of ten miles per hour. While the front seat passengers can still open their doors, the backseat
passengers cannot. Moreover, Brown was driving the vehicle at a fast speed, meaning that the occupants
could not exit the vehicle safely. See Taylor, 879 N.E.2d at 1202 (affirming conviction for kidnapping by
hijacking because the “doors of the Acura locked when Taylor put it in gear . . . [and t]he children could not
escape because Taylor drove the car at a high rate of speed”). While Edward and Sarah’s grandchildren were
teenagers, they were disabled and likely could not have escaped from the vehicle while it was in motion.
Sarah said that even if she could have escaped the moving vehicle, “I was not going to leave my kids in that
backseat with him.” Tr. Vol. II p. 39.
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sufficient to support Brown’s conviction for Level 2 felony criminal
confinement.
[12] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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