James Clark v. State of Indiana ( 2014 )


Menu:
  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not
    be regarded as precedent or cited
    before any court except for the purpose
    of establishing the defense of res
    Apr 21 2014, 6:25 am
    judicata, collateral estoppel, or the law
    of the case.
    ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
    JOHN T. WILSON                                    GREGORY F. ZOELLER
    Anderson, Indiana                                 Attorney General of Indiana
    KATHERINE MODESITT COOPER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    JAMES CLARK,                                      )
    )
    Appellant-Defendant,                      )
    )
    vs.                                )      No. 48A02-1305-CR-416
    )
    STATE OF INDIANA,                                 )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE MADISON CIRCUIT COURT
    The Honorable Thomas Newman, Jr., Judge
    Cause No. 48C03-1301-FC-74
    April 21, 2014
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    BARNES, Judge
    Case Summary
    James Clark appeals his convictions and sentence for Class C felony robbery and
    two counts of Class D felony theft. We affirm.
    Issues
    Clark raises three issues, which we restate as:
    I.     whether the trial court properly denied his motion to
    sever the robbery charge from the theft charges;
    II.    whether the evidence is sufficient to sustain his
    convictions; and
    III.   whether the trial court properly sentenced him.
    Facts
    On January 6, 2013, Officer Joe Garrett of the Anderson Police Department was
    working as a part-time security officer at the St. Vincent’s Regional Health Center when
    he was informed that a television had been taken from the hospital. He reviewed video
    surveillance and saw a black man wearing Carhart-style overalls, a tan coat, and a black
    cap walk into a waiting room, remove a television, and walk out of the building with it at
    approximately 4:00 p.m. Later, security officers received a report of another missing
    television. Another review of video surveillance showed a black man wearing a tan coat
    and black cap enter the hospital at approximately 7:30 a.m., take a nap for several hours,
    and leave the hospital at shortly before 2:00 p.m. pushing a large cart that was covered
    with a sheet. The object under the sheet appeared to be a television. An employee also
    reported that he was missing Carhart-style overalls from the employee locker room.
    2
    The next day, a black man wearing a tan coat and black cap walked into a
    convenience store in Anderson and handed the clerk a note that said, “Don’t make this
    hard. Give me the money.” Tr. p. 106. The man then said, “Don’t make this hard.” 
    Id. at 108.
    The clerk gave the man the cash from the register, the cash from the safe, and
    cartons of cigarettes. The man had his hand in his pocket during the whole incident.
    While investigating the robbery at the convenience store, Officer Brian Porter
    obtained video and pictures from the convenience store’s surveillance cameras. When he
    arrived back at the station, he saw pictures from the hospital’s surveillance cameras and
    realized that the same person was involved in both incidents. Detective Norman Rayford
    saw surveillance pictures from the hospital and the convenience store and identified the
    man involved in the thefts and robbery as Clark, whom he knew from church. Detective
    Rayford had seen Clark at the convenience store three or four weeks before the robbery
    wearing a tan coat. Clark was wearing Carhart-style overalls when he was taken into
    custody. When interviewed by the police, Clark admitted that he took a nap at the
    hospital. The clerk was unable to identify Clark as the robber in a photo lineup.
    The State charged Clark with Class C felony robbery and two counts of Class D
    felony theft. Clark filed a motion to sever the robbery charge from the theft charges. The
    trial court found that the offenses were “not of the same or similar character” and denied
    Clark’s motion to sever the robbery charges. 
    Id. at 20.
    At the jury trial, the clerk
    identified Clark as the man that robbed him at the convenience store. The jury found
    Clark guilty as charged. The trial court sentenced Clark to concurrent sentences of four
    years on the theft conviction and eight years on the robbery conviction to be served
    3
    consecutive to the sentence for the theft convictions for an aggregate sentence of twelve
    years. The trial court found that the theft convictions were an episode of criminal
    conduct under Indiana Code Section 35-50-1-2(c) but that the robbery conviction was not
    part of that episode. Clark now appeals.
    Analysis
    I. Severance
    Clark argues that the trial court erred by denying his motion to sever the robbery
    charge from the theft charges.     Two or more offenses may be joined in the same
    indictment or information when the offenses are: (1) of the same or similar character,
    even if not part of a single scheme or plan, or (2) are based on the same conduct or on a
    series of acts connected together or constituting parts of a single scheme or plan. Ind.
    Code § 35-34-1-9. If two or more offenses are joined for a trial in the same indictment or
    information solely upon the ground that they are of the same or similar character, the
    defendant shall have a right to a severance of the offenses. I.C. § 35-34-1-11(a); see also
    Brown v. State, 
    650 N.E.2d 304
    , 305-306 (Ind. 1995). “In all other cases the court, upon
    motion of the defendant or the prosecutor, shall grant a severance of offenses whenever
    the court determines that severance is appropriate to promote a fair determination of the
    defendant’s guilt or innocence of each offense . . . .” I.C. § 35-34-1-11(a); see also
    
    Brown, 650 N.E.2d at 305-306
    . In so doing, the trial court is to consider: (1) the number
    of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the
    trier of fact will be able to distinguish the evidence and apply the law intelligently as to
    each offense. I.C. § 35-34-1-11(a); see also 
    Brown, 650 N.E.2d at 305-306
    . Where
    4
    severance is not mandated by Indiana Code Section 35-34-1-11(a), “[w]e will only
    reverse the judgment and order new, separate trials if the defendant can ‘show that in
    light of what actually occurred at trial, the denial of a separate trial subjected him to such
    prejudice that the trial court abused its discretion in refusing to grant his motion for
    severance.’” 
    Brown, 650 N.E.2d at 306
    (quoting Hunt v. State, 
    455 N.E.2d 307
    , 312
    (Ind. 1983)).
    Clark argues that he was entitled to have the robbery charge severed because the
    charges were joined solely on the ground that they were of the same or similar character.
    However, we find that the charges brought against Clark were not joined solely because
    they were of the same or similar character. Rather, they were joined because they were a
    series of acts connected together. The similarity of the appearance and clothing on the
    person who stole from the hospital and robbed the convenience store led officers to
    conclude that the same person committed all three offenses. Detective Rayford was able
    to identify the person in the surveillance photos as Clark. As the State points out, “the
    evidence in all three crimes was inextricably linked.” Appellee’s Br. p. 12. As a result,
    we conclude that Clark was not entitled to severance as a matter of right.1 See, e.g.,
    Harvey v. State, 
    719 N.E.2d 406
    , 409 (Ind. Ct. App. 1999) (holding that evidence
    regarding two robberies was sufficient to show a “series of acts connected together” and
    that the defendant was not entitled to severance as a matter of right).
    II. Sufficiency
    1
    Having concluded that Clark was not entitled to severance as a matter of right, we note that Clark makes
    no argument that the trial court abused its discretion by denying the motion to sever.
    5
    Next, Clark argues that the evidence is insufficient to sustain his convictions.
    When reviewing the sufficiency of the evidence needed to support a criminal conviction,
    we neither reweigh evidence nor judge witness credibility. Bailey v. State, 
    907 N.E.2d 1003
    , 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and
    any reasonable inferences that can be drawn from such evidence.” 
    Id. We will
    affirm if
    there is substantial evidence of probative value such that a reasonable trier of fact could
    have concluded the defendant was guilty beyond a reasonable doubt. 
    Id. According to
    Clark, the evidence is insufficient to sustain any of his convictions
    because no conclusive evidence identified him as the perpetrator. Clark argues that
    Detective Rayford was unable to identify him from the surveillance videos and did not
    know the perpetrator’s last name and that the clerk was unable to identify him in a photo
    lineup. Detective Rayford testified that he recognized Clark as the perpetrator from
    photos taken by the hospital and convenience store surveillance systems. Although he
    did not initially recall Clark’s last name, Detective Rayford knew that Clark’s first name
    was James and that he attended the same church as Detective Rayford, which led to the
    identification of Clark as the perpetrator. Further, although the clerk was unable to
    identify Clark in the photo lineup, he identified Clark during the trial as the person who
    robbed the convenience store. Clark’s argument is merely a request to reweigh the
    evidence and judge the credibility of the witnesses, which we cannot do.
    Clark also argues that none of the stolen items were found on him or traced to him.
    Although the stolen items were never recovered, “the recovery of stolen property and its
    production at trial are not essential to prove that a robbery was committed or that the
    6
    accused committed it.” Leavell v. State, 
    455 N.E.2d 1110
    , 1115 (Ind. 1983). We
    conclude that the evidence is sufficient to sustain Clark’s convictions for Class C felony
    robbery and two counts of Class D felony theft.
    III. Sentence
    Clark also argues that he was improperly sentenced. Indiana Code Section 35-50-
    1-2(c) provides:
    [E]xcept for crimes of violence, the total of the consecutive
    terms of imprisonment, exclusive of terms of imprisonment
    under IC 35-50-2-8 and IC 35-50-2-10, to which the
    defendant is sentenced for felony convictions arising out of an
    episode of criminal conduct shall not exceed the advisory
    sentence for a felony which is one (1) class of felony higher
    than the most serious of the felonies for which the person has
    been convicted.
    There is no dispute that Clark’s offenses were not crimes of violence. Clark contends
    that his offenses arose “out of an episode of criminal conduct.” I.C. § 35-50-1-2(c).
    Indiana Code Section 35-50-1-2(b) defines as “episode of criminal conduct” as “offenses
    or a connected series of offenses that are closely related in time, place, and
    circumstance.”
    Clark argues that the offenses occurred in a short period of time, that he wore the
    same clothes, and that he was continuing a pattern of criminal activity. However, our
    supreme court has noted that “the timing of the offenses dictate[s] whether the offenses
    were or were not single episodes of criminal conduct.” Reed v. State, 
    856 N.E.2d 1189
    ,
    1201 (Ind. 2006). Here, the robbery occurred twelve hours after the thefts at a different
    location. Consequently, the robbery was not “simultaneous” or “contemporaneous” with
    7
    the thefts.   
    Id. at 1200.
      The robbery was not closely related in time, place, or
    circumstance to the thefts. We conclude that the limitation on the total consecutive
    sentence found in Indiana Code Section 35-50-1-2(c) is inapplicable here.
    Conclusion
    The trial court properly denied Clark’s motion for severance.        Further, the
    evidence is sufficient to sustain Clark’s convictions, and the trial court properly
    sentenced him. We affirm.
    Affirmed.
    BAKER, J., and CRONE, J., concur.
    8