Enrique Perez v. State of Indiana ( 2013 )

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 judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
Apr 16 2013, 9:15 am
IN THE
COURT OF APPEALS OF INDIANA
ENRIQUE PEREZ, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1208-CR-419
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol J. Orbison, Judge
The Honorable Anne Flannelly, Commissioner
Cause No. 49G22-1203-FA-16892
April 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Enrique Perez appeals his conviction for robbery as a class B felony. Perez raises
one issue, which we revise and restate as whether the evidence is sufficient to sustain his
conviction. We affirm.1
The relevant facts follow. On February 4, 2012, Oscar Herrera-Romero
(“Herrera”) was at his apartment in Indianapolis, Indiana, with Gustavo Munoz and
Herrera’s cousin Justino Herrera, and Herrera and Munoz were smoking crack. At one
point, Herrera went to the bathroom when there was a knock at the front door. Justino
went to the front door and heard Perez say “[o]pen the door, I have a weapon” and to
open the door or he was “going to be f----- up.” Transcript at 106-107. Justino attempted
to answer the door, but before he could answer, Perez and his brother Jose Perez broke
down the door and entered the apartment. Upon entering, Perez struck Justino in the
chest, asked where Herrera was, and told Justino to sit down and not do anything. Jose,
armed with a full bottle of beer, opened the bathroom door, observed Herrera, and stated
“here you are” and “I told you,” which caused Herrera to feel scared. Id. at 55-56. Jose
then struck Herrera on his left eyebrow with the beer bottle, causing Herrera pain. Jose
then hit Herrera several times with his hands, grabbed Herrera by his ponytail, and
dragged him from the bathroom and into the living room. Jose continued to punch and
kick Herrera “all the way to the front room.” Id. at 58.
Once in the front room, Herrera was on his knees and was blocking blows to his
face by covering his head, and Jose demanded money from Herrera.2 While this was
1
As discussed below, we also remand for the court to correct a scrivener’s error.
2
Herrera testified at trial that he and Jose had been in a band and had received a loan in order to
2
happening, Perez was standing in front of Justino, who was sitting in a chair, as well as
Munoz, and Perez advised them not to get involved. Then, Jose told Perez to “pull the
gun,” and he reached inside Herrera’s pants pockets and removed his cell phone and
wallet which contained a one dollar bill and a check for $1,000 made out to Herrera and
signed by Victor Sosa.3 Id. at 65. Jose handed the wallet to Perez. Perez then kicked
Herrera, warned him not to tell the police, and he left with Jose. Herrera located his
wallet and cell phone in the room, but when he looked inside of the wallet he noticed that
the $1,000 check was gone.
On March 14, 2012, the State charged Perez with Count I, burglary as a class A
felony; Count II, robbery as a class B felony; and Count III, criminal confinement as a
class B felony. The next day, the State filed an amended charging information because
the date of the offenses on the original charging information was incorrect. In May 2012,
the State again amended the charging information and specifically amended the language
of Count II and charged Count III as a class D felony rather than a class B felony. On
June 28, 2012, the court held a joint jury trial for both Perez and Jose in which evidence
consistent with the foregoing was presented. The jury found Perez guilty on Counts II
and III, and on Count I, burglary, the jury found Perez not guilty of burglary but guilty of
residential entry as a class D felony as a lesser included offense. On July 19, 2012, the
court sentenced Perez to six years on Count II and 545 days each on Counts I and III, and
do “some kind of celebration for the band,” that he had begun to believe that Jose was not repaying the
loan with the money that Herrera had been giving Jose, and that he decided to stop paying Jose.
Transcript at 60.
3
Herrera testified at trial that Sosa was a friend whom he had helped with some remodeling work
on Sosa’s home.
3
it ordered that Perez serve his sentences concurrently with each other. Thus, Perez
received an aggregate sentence of six years in the Department of Correction.
The issue is whether the evidence is sufficient to sustain Perez’s conviction for
robbery as a class B felony. 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. The uncorroborated testimony of one witness, even if it is the
victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073
(Ind. 1991). However, “[a] conviction cannot be based on speculation.” Gross v. State,
817 N.E.2d 306, 311 (Ind. Ct. App. 2004). When two or more people combine their
efforts to commit a crime, each person is criminally responsible for all acts committed by
his confederates. Draper v. State, 556 N.E.2d 1380, 1383 (Ind. Ct. App. 1990), trans.
denied.
The offense of robbery as a class B felony is governed by Ind. Code § 35-42-5-1,
which provides:
A person who knowingly or intentionally takes property from another
person or from the presence of another person:
(1) by using or threatening the use of force on any person;
or
(2) by putting any person in fear;
4
commits robbery, a Class C felony. However, the offense is a Class B
felony if it . . . results in bodily injury to any person other than a defendant .
...
The charging information, as amended, alleged that Perez and Jose, “on or about March
4, 2012, did knowingly take from . . . [Herrera] property, that is: phone and/or check
and/or U.S. Currency, by putting [Herrera] in fear or by using or threatening the use of
force on [Herrera], which resulted in bodily injury to [Herrera] that is: lacerations and/or
cuts and/or pain.” Appellant’s Appendix at 39. Thus, in order to convict Perez of
robbery as a class B felony, the State needed to prove that Perez knowingly took either
Herrera’s phone, currency, or the check, by putting Herrera in fear or by threatening the
use of force and caused bodily injury in the form of lacerations, cuts, or pain.
Perez argues that the State failed to prove that he took Herrera’s property.
Specifically, Perez argues that the only currency discussed at trial was a one dollar bill,
and Herrera testified that, following the incident, the wallet still contained the currency.
Perez argues that Herrera was asked if he recovered his cell phone, and he replied “with a
vague ‘uhh-uh’,” and Detective Lemond testified that Herrera “told him the only property
taken was the” check. Appellant’s Brief at 6. Finally, Perez argues regarding the check
that no witnesses testified that they saw a check being removed from Herrera’s wallet,
that Herrera’s explanation that he received a check from Sosa for a remodeling job “does
not make sense” because Sosa owned his own construction company and was dying of
cancer and had been undergoing chemotherapy, and that even “assuming arguendo that
somebody dying of cancer and undergoing chemotherapy wanted to do a remodeling job,
they would want it done quickly” and by their own company rather than by somebody
5
working construction as a third job such as Herrera.4 Id. at 5-6. Perez also argues that
Herrera never told Justino about the check, Justino had not seen the check, the State did
not produce evidence demonstrating that the check had been canceled by Sosa, and the
detective never verified that the check existed.
Here, the evidence most favorable to Perez’s conviction reveals that Perez, while
accompanied by Jose, broke down Herrera’s door and entered the apartment. Jose found
Herrera in the bathroom and told Herrera “here you are” and “I told you,” which made
Herrera feel scared. Transcript at 55-56. Jose struck Herrera with the beer bottle which
caused him pain. Jose dragged Herrera by his ponytail into the living room, and in so
doing struck Herrera with his hands and feet several times. Jose removed Herrera’s cell
phone and wallet from his pockets. Perez also kicked Herrera. Herrera testified that,
prior to the incident, his wallet contained a check for $1,000 which was missing
afterwards. The State presented numerous photographs of Herrera depicting cuts or
scrapes on his head, leg, and torso. Perez’s argument is merely a request that we reweigh
the evidence and reevaluate the credibility of the witnesses, which we cannot do. See
Rohr v. State, 866 N.E.2d 242, 248 (Ind. 2007), reh’g denied.
Based upon our review of the record, we conclude that evidence of probative value
exists from which the jury could have found Perez guilty beyond a reasonable doubt of
robbery as a class B felony. See Davis v. State, 835 N.E.2d 1102, 1111 (Ind. App. Ct.
2005) (“[W]here two people act in concert to commit a crime, each may be charged as a
principal in all acts committed by the accomplice in the accomplishment of the crime.”),
4
Perez cites to the testimony of Justino that, around the time of the incident, Herrera was working
sixty to seventy hours a week at a factory and at Taco Bell.
6
trans. denied; Thompson v. State, 612 N.E.2d 1094, 1098 (Ind. Ct. App. 1993) (noting
that “[t]he uncorroborated testimony of even one witness is sufficient to support a
conviction” and that “[t]his is true even though the witness in question is the victim”),
reh’g denied, trans. denied.
Finally, as noted by the State in its brief, the abstract of judgment indicates that
Perez was convicted of criminal confinement as a class B felony rather than as a class D
felony. As noted above, the court granted the State’s motion to amend the charge of
criminal confinement to a class D felony, and the verdict form entered by the jury states
that it found Perez guilty of criminal confinement as a class D felony. Accordingly, we
remand with instructions that the court issue an amended abstract of judgment as well as
enter Perez’s conviction for criminal confinement on Count III as a class D felony.
For the foregoing reasons, we affirm Perez’s conviction for robbery as a class B
felony and remand for the court to issue an amended abstract of judgment correcting a
scrivener’s error and entering a conviction on Count III as criminal confinement as a
class D felony.
Affirmed and remanded.
RILEY, J., and BRADFORD, J., concur.
7