Charles Sharpe v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 15 2016, 8:26 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Sharpe, August 15, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1601-CR-52
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1408-FA-39382
Vaidik, Chief Judge.
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Case Summary
Charles Sharpe was convicted of Class A felony attempted robbery for shooting
a man that he met to buy a cell phone that had been posted on Craigslist. He
now appeals, arguing that there was a fatal variance between the allegations in
the charging information and the proof at trial. Finding no prejudice from any
variance, we affirm.
Facts and Procedural History
[1] In May 2014, Carlos Rodas posted an advertisement on Craigslist to sell an
iPhone 5S. Rodas received a text message from Sharpe, who indicated that he
was interested in buying the phone. Rodas asked Sharpe to meet him at a
neutral location in Indianapolis, but Sharpe said he could not leave his house
because he was watching his baby and asked Rodas to meet him near 37th
Street and Linwood Avenue. Rodas drove to that location, and Sharpe got in
the front passenger seat of Rodas’s car. After inspecting the phone, Sharpe said
he would buy it. Sharpe told Rodas that he was going to give him extra money
for driving to meet him and asked Rodas if he had any change in his wallet. As
Rodas reached for his wallet, Sharpe pulled out a gun and pointed it at Rodas.
Sharpe told Rodas that he wanted his wallet, phone, and keys. After taking
these items, Sharpe opened the car door and started to run away. Rodas
followed him. Rodas tried to grab his keys from Sharpe, and both men fell to
the ground, where they struggled for the gun. Sharpe pulled the trigger and
shot Rodas, but Rodas did not feel the gun shot. Sharpe started to walk away,
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but Rodas followed him and reached for the gun. Sharpe shot Rodas a second
time, and this time Rodas fell to the ground. As Sharpe ran off, he shot Rodas
a third and final time. Sharpe did not take any of Rodas’s possessions with
him.
[2] Rodas was taken to the hospital where he underwent surgery. Sharpe later gave
a statement to the police wherein he admitted that he had a gun and that his
plan was to take whatever Rodas had because he needed money. Tr. p. 112.
[3] The State initially charged Sharpe with Count I: Class A felony robbery (serious
bodily injury). The State later added Count II: Class A felony attempted
robbery (serious bodily injury). The State dismissed Count I, and a bench trial
was held on Count II. The trial court found Sharpe guilty on Count II and
sentenced him to thirty years, with twenty-two years executed.
[4] Sharpe now appeals.
Discussion and Decision
[5] Sharpe contends that there was a fatal variance between the allegations in the
attempted-robbery charging information and the proof at trial. Because the
charging information advises the defendant of the accusations against him, the
allegations in the pleading and the evidence used at trial must be consistent with
one another. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). A variance is an
essential difference between the two. Not all variances, however, are fatal. Id.
Relief is required only if the variance: (1) misled the defendant in preparing a
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defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future
prosecution under the same evidence. Id.
[6] Here, the charging information for Class A felony attempted robbery provides:
Charles Sharpe, on or about May 23, 2014, did attempt to
commit the crime of robbery, which is to knowingly take property,
to-wit: a cellular telephone from another person or the presence of another
person, to-wit: Carlos Rodas, by using or threat[en]ing the use of force, to-
wit: shooting at and against the person of Carlos Rodas, said act
resulting in serious bodily injury to Carlos Rodas, to-wit:
multiple gunshot wounds, which conduct constituted a
substantial step toward the commission of said crime of Robbery
....
Appellant’s App. p. 33 (emphasis added). Sharpe argues that the evidence
presented at trial did not show that Sharpe attempted to take the phone from
Rodas by shooting him; rather, “the evidence consistently showed that the
shooting occurred only as Sharpe was attempting to get away from the scene.”
Appellant’s Br. p. 10 (emphasis added). Sharpe claims that he was prejudiced
because “[i]f counsel had understood before trial that the State planned only to
prove the shooting occurred not in the taking of the cell phone, but in effecting
Sharpe’s escape, counsel could have mounted a different defense.” Id. at 12.1
[7] To the extent there was a variance, Sharpe cannot show prejudice as a result of
not being able to prepare a defense that he shot Rodas only while escaping.
1
Sharpe does not argue that he was left vulnerable to future prosecution under the same evidence. See Blount,
22 N.E.3d at 569. In any event, we find that Sharpe is protected from future prosecution.
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The Indiana Supreme Court addressed a similar issue in Young v. State, 725
N.E.2d 78 (Ind. 2000). There, the defendant entered the victim’s home under
the guise of selling food stamps. The defendant snatched the victim’s wallet
and ran to his car, which he left running in the alley. The victim pursued the
defendant and grabbed on to the windshield. The defendant hit the victim’s
knuckles with a screwdriver, but the victim continued to hang on as the
defendant drove down the alley. Eventually the friction from the pavement
wore through the victim’s shoes, and he fell off the car. As he sped away, the
defendant ran over the victim’s leg, fracturing his ankle. The defendant was
convicted of Class A felony robbery.
[8] On appeal, the defendant argued that he did not commit Class A felony
robbery—but rather only theft—because “the force was used to accomplish his
escape, not take the property.” Id. at 80. Our Supreme Court rejected this
argument, reasoning:
A crime that is continuous in its purpose and objective is deemed
to be a single uninterrupted transaction. A robbery is not
complete until the defendant asports the property, or takes it
from the possession of the victim. Asportation continues as the
perpetrators depart from the place where the property was seized.
In short, when the robbery and the violence are so closely
connected in point of time, place, and continuity of action, they
constitute one continuous scheme or transaction.
[9] Id. at 81 (quotations and citations omitted). Accordingly, the Court found that
because the “snatching of money, exertion of force, and escape were so closely
connected in time (to sprint from house to running car parked outside), place
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(from door to alley), and continuity (in stealing money, then attempting to
escape with it),” “we hold [that] Young’s taking of property includes his actions
in effecting his escape.” Id.
[10] The same can be said here, too. That is, the attempt to take Rodas’s phone, the
shooting, and the escape were so closely connected in time, place, and
continuity that Sharpe’s attempt to take Rodas’s phone included his actions in
effecting his escape. Accordingly, even if Sharpe had prepared for and made
the defense that he only shot Rodas while escaping (as opposed to while trying
to take Rodas’s phone), it would not have been successful according to Young.
Finding no prejudice from any variance between the allegations in the charging
information and the proof at trial, we affirm the trial court.
[11] Affirmed.
Baker, J., and Najam, J., concur.
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