                                                                      FILED
                                                                  Jul 19 2017, 6:37 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Katherine Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Stacy Lamont Griffin,                                      July 19, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           11A05-1609-CR-2084
        v.                                                 Appeal from the Clay Circuit
                                                           Court
State of Indiana,                                          The Honorable Joseph D. Trout,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           11C01-1605-F3-336



Bailey, Judge.




Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017                  Page 1 of 14
                                               Case Summary
[1]   Stacy Lamont Griffin (“Griffin”) appeals his conviction for Attempted

      Robbery, as a Level 5 felony.1 We affirm.



                                                     Issues
[2]   Griffin presents three issues for review:


                 I.       Whether the procedures by which the trial court conducted
                          voir dire deprived Griffin of a fair and impartial jury;


                 II.      Whether there is sufficient evidence of probative value to
                          support his conviction; and


                 III.     Whether his sentence is inappropriate.


                                Facts and Procedural History
[3]   On May 13, 2016, pharmacist Sarah Cox (“Cox”) was working with two

      pharmacy technicians, Sara Mills (“Mills”), and Brandi Schutter (“Schutter”),

      in a Kroger pharmacy in Brazil, Indiana. The pharmacy employees had been

      warned, one day earlier, to be on high alert due to a rash of recent robberies by

      individuals wearing hats or hoodies.




      1
          Ind. Code §§ 35-42-5-1, 35-41-5-1.


      Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017         Page 2 of 14
[4]   Cox saw two men wearing black baseball caps in the cosmetics aisle “peeking

      backward” at the pharmacy. (Tr. Vol. II, pg. 114.) Each man had his face

      “turned back over his shoulder” and was staring. (Tr. Vol. II, pg. 124.) Mills

      and Schutter each observed that the men were not looking at the products for

      sale; rather, they appeared to be “peeping” or “peering around … staring at

      associates.” (Tr. Vol. II, pgs. 132, 139.) Schutter walked back to the pharmacy

      and informed Cox that she felt as if “something really bad was about to

      happen.” (Tr. Vol. II, pg. 139.)


[5]   Cox issued an intercom page for a fictitious customer to alert the store manager

      of a security issue. Pursuant to their training, several employees proceeded to

      the pharmacy and surrounded it. One employee called 9-1-1. The two men in

      baseball caps quickly left the store.


[6]   City of Brazil police officers who had been having lunch in the same retail plaza

      as Kroger responded immediately, and apprehended Griffin just outside the

      Kroger store. He was physically cooperative but initially supplied an incorrect

      name and birth date. A handwritten note was in Griffin’s right front pants

      pocket. The note read:

              This is a Robbery Please Corporate [sic] or I will kill you I need
              Tussinex [sic] Percocet 10 mg Roxicodine [sic] 10 mg 30 mg


      (State’s Ex. 9.)


[7]   Meanwhile, other officers apprehended Robert Coleman (“Coleman”) as he

      attempted to enter a different store in the same retail plaza; he too offered a

      Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017     Page 3 of 14
      fictitious name. A customer from a nearby nail salon came forward to report

      that she had seen a man throw a gun into a trashcan just as she had heard

      officers issue commands to get down on the ground. Officers retrieved a loaded

      semi-automatic gun from a trash can near where Coleman was apprehended.

      Griffin advised one of the officers that Coleman had disposed of a gun. He also

      advised that Coleman had handed him the handwritten note while they were

      inside the Kroger store. Griffin denied reading it before pocketing it.


[8]   Griffin was charged with Attempted Robbery, as a Level 5 felony, Conspiracy

      to Commit Robbery, and False Informing. He filed two pre-trial motions

      concerning jury selection: a “Motion for Individual Voir Dire of Potential

      Jurors” and a “Motion to Prohibit the ‘Rehabilitation’ of Prospective Jurors

      and From Asking any Form of the ‘Magic Question.’” (App. at 129-131.) On

      July 5, 2016, the trial court issued an order substantially denying Griffin’s

      motions but reducing the number of jurors to be examined at one time from

      eighteen to twelve.


[9]   The False Informing charge was dismissed and, on July 6, 2016, Griffin was

      brought to trial before a jury on charges of Robbery and Conspiracy to Commit

      Robbery, as Level 3 felonies. After a three-day trial, Griffin was acquitted of

      the conspiracy charge and found guilty of the lesser-included offense of

      Robbery, as a Level 5 felony. On August 8, 2016, Griffin was sentenced to six

      years imprisonment. He now appeals.



                                  Discussion and Decision
      Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 4 of 14
                                                    Voir Dire
[10]   On June 21, 2016, the trial court issued its “Order of Voir Dire Examination of

       Jurors,” providing that the jury box was to be filled with eighteen jurors and the

       jury would be selected from the first twelve with excused jurors then replaced in

       numerical order with the jurors examined in the back row. (App. at 56.)

       Griffin then filed a motion for individual voir dire of jurors. In support of the

       motion, he made certain averments, including:


               The Defense will need to discuss with each and every juror about
               what they know about the case. This case has been reported in
               the Brazil Times twice, the Terre Haute Tribune, has been
               reported on WTHI and WTWO, was reported on the radio, was
               easily located at numerous internet sites, and was likely on
               Facebook and other social media.


               Information in those reports include information included in the
               Defense motion in limine.


               Because the Defendant demanded a speedy trial, this news
               reporting is only weeks old.


               It is essential to discover if the potential jurors have prejudged
               this case and been exposed to information that should be
               excluded from them.


               By asking such questions in front of the full panel, if a juror
               responds by stating the excluded information, the entire panel
               will become aware of the excluded information.




       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017     Page 5 of 14
               The Defendant and co-defendant are black males from
               Indianapolis. They live in neighborhoods that would be
               commonly thought of as “the ghetto.”


               2010 U.S. Census data reveals that the population of Clay
               County, Indiana has a population of less than 27,000 people
               which is 97.8% white and 0.3% black.


               The Defense must question the jury for bias regarding race, the
               stigma of being from “the ghetto,” and being an “other” who
               drove an hour from home to come into this small community.


               People in groups are under social pressure to give answers which
               conform to an idealistic “norm” which are not reflective of their
               actual attitudes, beliefs, and life experiences.


       (App. at 129.)


[11]   Contemporaneously, Griffin filed a motion to prohibit the trial court judge from

       “rehabilitating” a prospective juror challenged for cause. (App. at 131.) Griffin

       sought to avoid what he described as a “magic question,” that is, whether the

       juror could set aside his or her (allegedly biased) opinion and render an

       impartial verdict based upon the law and the evidence. (App. at 132.) Griffin

       argued that the practice of rehabilitation by use of a “magic question” was

       flawed and unhelpful in identifying biased jurors and quoted from “the earliest

       American decision considering this phenomenon,” the treason trial of United

       States v. Burr, 25 Fed. Cas. 49, 50 (D. Va. 1807):




       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017    Page 6 of 14
               [A biased juror] may declare that notwithstanding [his]
               prejudices he is determined to listen to the evidence, and be
               governed by it; but the law will not trust him.


       (App. at 133.)


[12]   On July 5, 2016, the trial court issued two orders with respect to voir dire. In

       relevant part, the orders provided:

               Even though the case was originally reported in television media,
               it is not a high profile case in that no continuing coverage has
               been held.


               The defendant has no absolute right to individualized voir dire
               and it is in the discretion of the judge under the circumstances of
               every particular case to determine whether such voir dire is
               needed or appropriate. The Court is [sic] this case has deemed it
               is not needed or appropriate just because the defendant is a black
               male and just because the case was originally reported in the
               media.


       (App. at 139.)

               This Judge will not attempt to persuade any potential juror to
               change their opinion but simply determine whether or not they
               can set their opinions aside and judge the case based solely on the
               evidence and the law.


       (App. at 135.)


[13]   Forty-five prospective jurors appeared on July 6, 2016, and all remained in the

       courtroom unless excused upon peremptory or for-cause challenges. Twelve


       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 7 of 14
       jurors indicated that they had heard something about the case; four of those

       served on the jury. The other eight jurors, having remained in the courtroom,

       heard some descriptions from others of what they had heard. For example,

       Prospective Juror K, who was excused, had seen “the news” and thought that

       Griffin “probably had some part” in a robbery. (Tr. Vol. I, pgs. 118, 122.)

       Prospective Juror B, who was excused, had heard “there was an armed robbery

       at Kroger.” (Tr. Vol. I, pg. 118.) Prospective Juror G, also excused, had seen a

       newspaper and had a co-worker who “knew of a previous robbery.” (Tr. Vol. I,

       pg. 119.) Excused Prospective Juror R had heard the accused was in possession

       of a robbery note.


[14]   On appeal, Griffin argues that he was denied his right to an impartial jury

       “through the trial court’s decision to conduct group voir dire, rather than the

       completely individualized voir dire which Griffin requested in light of the

       pretrial publicity in that small community.” Appellant’s Brief at 21. He asserts

       that the entire jury panel was exposed to “a number of accounts of the offense”

       before the jury was seated and “entered the trial with information which tainted

       perception of the evidence.” Id. He also observes that unsuccessful attempts to

       rehabilitate Prospective Juror G led to an unfavorable mention before other

       venirepersons; that is, the prospective juror “thought” that Griffin “was

       involved.” (Tr. Vol. I, pg. 121.) According to Griffin, conducting




       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 8 of 14
       individualized voir dire would have obviated any prejudice from a juror having

       previously been exposed to a venireperson’s accounts or opinions.2


[15]   The trial court has broad discretionary power in regulating the form and

       substance of voir dire examination, and “a criminal defendant has no absolute

       right to separately question a prospective juror outside the presence of other

       jurors.” Brown v. State, 563 N.E.2d 103, 105-6 (Ind. 1990). Individualized voir

       dire may be required where the circumstances are highly unusual or potentially

       damaging to a defendant. Id. at 106.


[16]   In Brown, the appellant claimed that “many of the prospective jurors were

       familiar with the facts and circumstances.” Id. However, the Court focused

       upon those who actually served as jurors:

                We fail to find that appellant has presented anything that was
                “highly unusual or potentially damaging” so as to require
                individual voir dire. From the record, the jurors chosen formed
                no opinions or if they had, they were able to put them aside. The
                jurors also stated that they were aware of their duty to follow the
                instructions presented by the trial court.


       Id. at 106. In accordance with this guidance from our Indiana Supreme Court,

       we focus upon the jurors chosen in this case. Only one of the jurors, Juror K,



       2
        Griffin concedes that he did not comply with the exhaustion rule by using all of his peremptory challenges.
       See Weisheit v. State, 26 N.E.3d 3, 12 (Ind. 2015), (describing the “exhaustion rule” as one under which parties
       may seek appellate review of for-cause challenges to prospective jurors only if they have exhausted their
       peremptory challenges), reh’g denied. However, Griffin claims that any replacement juror would likewise
       have been tainted under the circumstances of open voir dire in a small community. In short, his complaint is
       with the procedure employed and not with individual prospective jurors.

       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017                           Page 9 of 14
       served on the jury after having alluded to Griffin’s guilt or innocence. Juror K

       had, in voir dire, admitted to thinking that the accused “probably had some

       part.” (Tr. Vol. I, pg. 122.) Thereafter, Juror K advised the trial court that she

       would be able to set the preliminary opinion aside, follow the instructions of the

       court, and decide based upon the evidence. When the jurors chosen had either

       formed no opinions about the case before hearing the evidence or stated that

       they could put any opinions aside, this does not demonstrate “circumstances

       [that] are highly unusual or potentially damaging to the defendant.” Collins v.

       State, 826 N.E.2d 671, 676 (Ind. Ct. App. 2005), trans. denied. Ultimately,

       “jurors need not be totally ignorant of the facts involved in order for a

       defendant to receive a fair trial.” Id. at 675. Griffin has demonstrated no abuse

       of the trial court’s discretion.


                                   Sufficiency of the Evidence
[17]   Griffin’s defense was that he was merely in the wrong place at the wrong time

       with a companion whose intentions were unknown to him. He now asserts that

       the State failed to show his intent to commit a robbery and thus failed to present

       sufficient evidence to support his conviction.


[18]   Indiana Code Section 35-42-5-1 provides that one commits Robbery when he

       “knowingly or intentionally takes property from another person or from the

       presence of another person (a) by using or threatening the use of force on any

       person; or (b) by putting any person in fear.” Pursuant to Indiana Code Section

       35-41-5-1, a person attempts to commit a crime when, “acting with the same


       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017    Page 10 of 14
       culpability required for commission of the crime, the person engages in conduct

       that constitutes a substantial step toward commission of the crime.” “What

       constitutes a ‘substantial step’ toward the commission of a crime is dependent

       upon the facts of the case, but the requirement is a minimal one and is often

       defined as any overt act in furtherance of the crime.” Oeth v. State, 775 N.E.2d

       696, 700 (Ind. Ct. App. 2002), trans. denied.


[19]   A person engages in conduct “intentionally” if, when he engages in the

       conduct, it is his conscious objective to do so. I. C. § 35-41-2-2(a). A person

       engages in conduct “knowingly” if, when he engages in the conduct, he is

       aware of a high probability that he is doing so. I. C. § 35-41-2-2(b). Knowledge

       and intent are mental states and, absent an admission by the defendant, the trier

       of fact must resort to the reasonable inferences from both the direct and

       circumstantial evidence to determine whether the defendant has the requisite

       knowledge or intent to commit the offense in question. Stokes v. State, 922

       N.E.2D 758, 764 (Ind. Ct. App. 2010), trans. denied.


[20]   When reviewing a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess witness credibility. Bailey v. State, 979 N.E.2d

       133, 135 (Ind. 2012). We affirm if there is substantial evidence of probative

       value supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt. Id.




       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 11 of 14
[21]   Here, Kroger pharmacy employees testified that Griffin and Coleman (who

       wore matching hats)3 lingered in a cosmetics aisle of the store without

       appearing to have any interest in the products for sale. Rather, they looked

       back over their shoulders and stared at the pharmacy. When one employee

       passed by the pair and attempted to make eye contact, and it became apparent

       that the suspicions of store employees had been aroused, Griffin and Coleman

       left the store quickly. When detained, Griffin initially gave a false name and

       birthdate. He was found in possession of a note demanding three drugs that

       were “opioid-related” controlled substances. (Tr. Vol. II, pg. 118.) His

       companion immediately disposed of a loaded firearm. This is sufficient

       evidence from which the jury could conclude beyond a reasonable doubt that

       Griffin intended to rob the Kroger pharmacy and took a substantial step toward

       that goal by entering the store and surveilling it while in possession of a demand

       note.


                                                    Sentence
[22]   The sentencing range for a Level 5 felony is one to six years imprisonment, with

       an advisory sentence of three years. I. C. § 35-50-2-6. In imposing the

       maximum sentence upon Griffin, the trial court found three mitigators

       (hardship to his child, the remoteness of his most serious prior offense, and the

       lack of actual physical harm from the instant crime), and three aggravators (a




       3
        There was testimony that, just prior to the entry into Kroger, Coleman’s girlfriend had purchased two
       matching ballcaps from a nearby Dollar General Store.

       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017                       Page 12 of 14
       criminal history including a prior robbery, violation of community corrections,

       and three pending warrants). Griffin asks that we revise his sentence to four

       years.


[23]   The authority granted to this Court by Article 7, section 6 of the Indiana

       Constitution permitting appellate review and revision of criminal sentences is

       implemented through Appellate Rule 7(B). Under this rule, and as interpreted

       by case law, appellate courts may revise sentences after due consideration of the

       trial court’s decision, if the sentence is found to be inappropriate in light of the

       nature of the offense and the character of the offender. Cardwell v. State, 895

       N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 85657 (Ind.

       2003). The principal role of such review is to attempt to leaven the outliers.

       Cardwell, 895 N.E.2d at 1225.


[24]   Regarding the nature of the offense, Griffin acted in concert with another

       person to attempt to rob a pharmacy of opioid-related controlled substances.

       As to his character, Griffin has a significant criminal history consisting of both

       felony and misdemeanor convictions. Prior attempts at rehabilitation,

       including probation, community corrections, and electronic monitoring, have

       failed.


[25]   Griffin was adjudicated delinquent in 2005 for having committed an act that

       would be Conversion if committed by an adult. In 2008, at the age of sixteen,

       he was waived into adult court and was convicted of Robbery, as a Class B

       felony. In 2012, he was convicted of Invasion of Privacy and Resisting Arrest;


       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 13 of 14
       in 2013 and in 2014, he was again convicted of Invasion of Privacy. In 2015,

       Griffin was convicted of Strangulation and Battery causing injury to a pregnant

       woman. He has had his probation revoked on multiple occasions. He was on

       electronic monitoring when the instant crime took place. At the time of

       sentencing, he had outstanding warrants in three different cause numbers. In

       sum, Griffin has not met his burden of demonstrating that his sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.



                                                 Conclusion
[26]   Griffin has not demonstrated an abuse of the trial court’s discretion in the

       denial of his motion for sequestered, individualized voir dire. Sufficient

       evidence supports his conviction for Attempted Robbery, as a Level 5 felony.

       His six-year sentence is not inappropriate.


[27]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 11A05-1609-CR-2084 | July 19, 2017   Page 14 of 14
