MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Oct 06 2017, 10:47 am

this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Paul Henton                                        October 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1703-CR-535
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1506-F5-33




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017           Page 1 of 7
[1]   Terry Paul Henton appeals his conviction of Level 5 felony robbery, 1 asserting

      the evidence was insufficient to prove he used or threatened to use force. We

      affirm.



                                Facts and Procedural History
[2]   In May 2015, an AT&T store in Lafayette, Indiana, had an “experience table”

      where customers could evaluate the features and functions of various phones

      before deciding which phone to purchase. (Tr. at 38.) The telephones on this

      table were unlocked, so that customers could access all the functions without

      entering a password, and were capable of sending texts and placing phone calls.

      The phones were connected to the table by a single cord that functioned both as

      a security device and as a charging cable. An AT&T employee explained


                 we attach a security mechanism into the inside of the table so the
                 table . . . has an insert. That security mechanism connects these
                 telephone cord looking cords, I want to say, but it basically just
                 shoots an electrical charge to each phone. And we attach it to
                 the phone on the front and the back with an adhesive and then
                 the charging cord so that the phone can stay alive. . . . [T]here’s
                 an adhesive, a box of about this big, so about two inches, if that,
                 if that makes any sense, you attach the adhesive to the back of
                 the phone, so that if a person is trying to tamper with it or steal
                 the battery or something like that, they can’t pry the back off of
                 the phone for phones that have backs that can be taken off of,
                 which are fair amount of the S5 Galaxies. So, that actual
                 security sensor also has a wrapped part that wraps around the



      1
          Ind. Code § 35-42-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 2 of 7
              front. It has a red light on it, so that basically attaches the tube so
              that if it’s ever tampered with or somebody tries to take it off or
              take the back off so that they can retrieve the phone, the alarm
              still sounds. . . . That coil is attached to a table, and that is, that
              electrical cord is run there. So that is running all day and if
              anybody stops it or triggers the device, that’s when the sound
              triggers.


      (Id. at 40, 51-2.)


[3]   Around 7:30 p.m. on May 27, 2015, Henton entered the AT&T store and asked

      the employee greeting customers at the door if the employee had seen a baby

      bottle that Henton allegedly had left in the store earlier. As that employee

      canvassed the store for a bottle and asked other employees if they had seen a

      bottle, Henton approached the experience table. He tapped each cell phone

      and, finding it unlocked, he picked it up and held onto it as he moved down the

      line of phones on the table.


[4]   As he reached around another customer to pick up the phone that was being

      explained to that customer by a sales associate, Arneetric Rias-Thompson, Rias-

      Thompson thought Henton was being rude and grabbed the security wire to

      keep the phone in front of her customers. Henton backed away from the table,

      which straightened the curled security cables and then he “used his leverage” to

      lean back and snapped the cords, including the cord in Rias-Thompson’s hand.

      (Id. at 41.) Henton then “stumbled maybe like one or two steps, because it does

      take a little bit of force to break it,” (id. at 43), and ran out of the store with five

      or six smartphones.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 3 of 7
[5]   The State charged Henton with Level 5 felony robbery, Level 6 felony

      conspiracy to commit theft, 2 and two counts of Level 6 felony theft. 3 It also

      alleged he was an habitual offender. 4 Henton pled guilty to all charges except

      the Level 5 felony robbery. After a bench trial, the court convicted him of that

      crime and imposed an aggregate sentence of ten years.



                                     Discussion and Decision
[6]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.




      2
          Ind. Code §§35-43-4-2(a)(1)(A) (theft) (2014), 35-41-5-2 (conspiracy).
      3
          Ind. Code § 35-43-4-2(a)(1)(A) (2014).
      4
          Ind. Code § 35-50-2-8 (2014).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 4 of 7
[7]   Henton was convicted of Level 5 felony robbery, which occurs when a person

              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 . . . .


      Ind. Code § 35-42-5-1 (2014). At the end of trial, the court noted:


              The . . . AT&T employee at one point had the cords attached to
              the phone in her hand and she had a grasp of that. But based
              upon her testimony, the force that was being exerted by the
              Defendant caused those cords to snap and allowed him to leave
              the store with the phones. That sounds like to the Court that
              there was force used to dislodge at least the cords, and the cord is
              attached to the phone, from the possession of the AT&T
              employee. . . . [I]n this case, there is some physical exertion of
              some force used to break the cord and to break it out of the
              possession of the employee. Therefore, I think the State has
              satisfied one of the three elements of robbery, which is by using
              or threatening the use of force and by using the amount of force
              necessary to break that phone free from the table.


      (Tr. at 73-4.)


[8]   When she was on the witness stand, Rias-Thompson confirmed that she was

      “shocked” and “scared” by Henton’s stealing of the smartphones. (Id. at 67.)

      The prosecutor asked Rias-Thompson why she was scared by the incident when

      Henton had not threatened anyone, and Rias-Thompson replied:



      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 5 of 7
              I mean you’re at work and something like this happens, I think it
              shocks anybody, but I was really shocked about the, the cords,
              because I put together so many of these mechanisms and we’ve
              tested them pretty roughly of, you know, how hard you would
              have to pull to get them off, how you would have to do with that,
              but that was the most shocking to me is that, the, the breaking of
              the cords.


      (Id. at 68.) She also testified she was afraid she would be injured by the copper

      wire that runs through the cord to carry the electrical current.


[9]   More than thirty years ago, our Indiana Supreme Court explained, with regard

      to a 1984 Class C felony version of robbery that contained the exact same

      elements required for Henton’s conviction:

              Under our present statute, the offense of robbery as a Class C
              felony does not require that a certain amount or type of force be
              proved to establish the commission of that offense. This Court
              has long recognized that the particular degree of force necessary
              to constitute robbery is not defined by statute or the common
              law. We have held that the degree of force used to constitute the
              crime of robbery has to be a greater degree of force than would be
              necessary to take possession of the victim’s property if no
              resistance was offered and that there must be enough force to
              constitute violence.


      Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984), reh’g denied. Furthermore,

      “when the owner, aware of an impending snatching, resists it, or when, the

      thief’s first attempt being ineffective to separate the owner from his property, a

      struggle for the property is necessary before the thief can get possession thereof,

      there is enough force to make the taking robbery.” Ryle v. State, 549 N.E.2d 81,

      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 6 of 7
       84 n.5 (Ind. Ct. App. 1990) (quoting 2 W. LaFave & A. Scott, Substantive

       Criminal Law 445-50 (1986)), trans. denied. Here, Rias-Thompson attempted to

       resist Henton’s snatching of the phone by grabbing the security cord, and to free

       the phone, Henton pulled on the cord with sufficient force to snap the cord.

       We conclude this was sufficient force exerted against Rias-Thompson’s control

       over the property to prove Henton guilty of Level 5 felony robbery as charged.



                                               Conclusion
[10]   The State presented sufficient evidence for the trial court to find Henton used

       force when he snapped the cord to take the smartphone from Rias-Thompson.

       We therefore affirm Henton’s conviction of Level 5 felony robbery.


[11]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-535 | October 6, 2017   Page 7 of 7
