Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                       Mar 19 2014, 6:55 am
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:

JOHN ANDREW GOODRIDGE                           GREGORY F. ZOELLER
Evansville, Indiana                             Attorney General of Indiana

                                                GEORGE P. SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID D. PIKE,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 82A01-1307-CR-321
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                      The Honorable Wayne S. Trockman, Judge
                          Cause No. 82D02-1110-FA-1103



                                      March 19, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The victim, Timothy Morton, was attacked by several men, including the

appellant-defendant, David Pike. As a result of the assault, Morton was hospitalized. He

suffers from traumatic brain injuries and has flashbacks about the incident.

          Pike appeals his convictions for Robbery Resulting in Serious Bodily Injury,1 a

class A felony, and Aggravated Battery,2 a class B felony. We reject Pike’s claims that

various statements that he made to a detective should have been excluded from the

evidence at trial, and we find that the jury was properly instructed. Finally, we conclude

that the evidence was sufficient to support Pike’s convictions.

                                          FACTS

          After arriving home from work on October 4, 2011, Morton took a nap and woke

up around 11:00 p.m. Morton walked to a gas station to purchase snacks and cigarettes

and then walked to the 711 Bar in Evansville.

          Morton played a couple of games of pool and bought a beer. Morton saw Pike

inside the bar but did not talk to him. About forty minutes later, Morton left the 711 Bar.

Pike also left the bar, approached Morton, and asked for a cigarette. Morton gave him

one and began walking home. At some point, Morton noticed a group of black males,

including Pike, following him. According to Morton, Pike was wearing a white hat and a

black t-shirt. Because he was being followed, Morton decided to take a detour. Morton

stopped at another bar to use the restroom.


1
    Ind. Code § 35-42-5-1(2).
2
    I.C. § 35-42-2-1.5.
                                              2
       After Morton left the tavern, a vehicle pulled up and two black males exited the

vehicle. Morton recognized the individuals from the group who had been following him.

Morton noticed that the three other men who had been following him were walking down

the alley. Morton began walking down Virginia Avenue, and Morton’s friend, Jesse

Adams, picked up Morton and drove him to Linwood Avenue to see one of Adams’s

friends.

       After arriving on Linwood, Morton noticed Pike again and talked with him.

Adams did not allow smoking in his vehicle, so Morton and Pike walked around and

smoked cigarettes. At some point, Pike pinned Morton against the vehicle. Pike and one

of the other men stole Morton’s money. Morton noticed that some other men were

running in his direction. Morton was then struck in the head and lost consciousness.

       Early in the morning of October 5, 2011, Evansville Police Detective Michael

Sides responded to a report of a person down in front of Work One on Walnut Street.

When Detective Sides arrived in that area, he heard that the person was actually down on

Linwood Avenue, which intersects with Walnut Street. Detective Sides found a man

lying in the street, naked from the chest down. A t-shirt was pulled over his head, and his

arms were above his head.

       Detective Sides approached the male, who was later identified as Morton, and

observed that he was lying face down, gasping for air. There were abrasions on Morton’s

back, and his head was bleeding. Detective Sides called for an ambulance, which arrived

in five minutes. Morton’s injuries were numerous and severe, including a traumatic brain

                                            3
injury that resulted in Morton’s hospitalization for several weeks. Morton also suffers

from memory loss and has flashbacks from the incident.

       On the evening that Morton was attacked, Robert Owens (Robert) saw Pike near

the corner of Linwood and Cherry on two occasions. When Robert first saw Pike, he was

with a white male. Pike walked in Robert’s driveway while the white male remained on

the street. Pike told Robert that the person he was with “had a little bit of change, little

bit of money.” Tr. p. 449. Robert told Pike to leave. When Robert saw Pike the second

time, he told Pike and another black male who was with him to get out of there because

of the police activity in the area.

       Around the time that Morton was attacked, Beverly Owens (Beverly), whose

house is located on the corner of Cherry and Linwood, was awakened by the sound of

someone screaming. Beverly looked out her living room window and saw a young, white

male wearing a t-shirt and blue jeans. It appeared to Beverly that the man was screaming

because he was intoxicated. A few minutes after Beverly began watching the white male,

a black male wearing a blue jersey approached the white male. The black male appeared

to assist the white male, and they began walking down Linwood until Beverly could no

longer see them. About ten minutes later, Pike ran up Linwood to Cherry Street carrying

something in his hands. Police subsequently found Morton’s jeans and underwear in a

storm sewer near the corner of Linwood and Cherry.

       Pike was transported to the Evansville Police Department on October 5, 2011.

Captain Andy Chandler spoke to Pike while they waited for Detective Keith Whitler to

                                             4
arrive and interview Pike.     After Detective Whitler arrived, he advised Pike of his

Miranda rights, which Pike indicated that he understood. Detective Whitler then told

Pike about the robbery and attack on Morton and asked Pike if he knew Morton. Pike

told Detective Whitler that he had been at the 711 Tavern with Morton, whom Pike

referred to as his “dude.” Tr. p. 532. Pike and Morton left the bar together, but parted

ways, as Pike went first to his “baby momma’s house” and then to his sister’s house. Id.

at 532-33. Pike initially denied being at the crime scene, but when Detective Whitler

indicated there was evidence to the contrary, Pike acknowledged that he had been at the

corner of Linwood and Cherry and stated that he had been drinking with Morton and

another individual by the name of “Doty.” Id. at 533-34.

       Detective Whitler reviewed surveillance footage from the 711 tavern, which

confirmed Pike’s claim that he had left the bar with Morton. The video showed Pike and

Morton walking west on Virginia Street.          After Pike was arrested and held at the

Vanderburgh County Jail, he made several calls to his girlfriend, Schreka Simpson. Pike

told Simpson that the “sh*t happened at 1:40 [a.m.] when . . . wasn’t nobody out there,

man.” Tr. p. 551. Pike said, “the statements that (indiscernible) is too mother fu*kin’

familiar, man. For (indiscernible) some old lady lookin’ out her window type sh*t. I

mean, I know I’m gonna break it down.” Id. at 553. Pike asked Simpson to “check to

see if dude’s still in the mother fu*kin’ hospital, or if he was dead.” Id. at 555. Pike told

Simpson to not allow the detectives to “hold on to my sh*t.”         Id. at 557. Pike said,



                                             5
“They can’t hold me in here on Willy’s mother fu*kin’ statement.” Id. Pike said he was

not “really worried till I get pointed out . . . by the victim.” Id. at 559.

          On October 5, 2011, the State charged Pike with Count I, class A felony robbery,

and the information on Count II for class B felony aggravated battery was amended on

January 26, 2012. Thereafter, on May 15, 2012, Pike filed a motion to suppress, claiming

that the statements that Pike made to the detectives were in violation of Miranda3 and

“were obtained as a result of a custodial interrogation by Officer A. Chandler of the

Defendant. The statements of Defendant were later used during interrogation by Officer

K. Whitler.” Appellant’s App. p. 68. Pike alleged that prior to his alleged interrogation

by Officer Chandler, Pike was “not informed of his Miranda rights.             Id. at 68-69.

However, Officer Chandler explained to Officer Whitler that he and Pike were talking

“just to pass the time,” while they were waiting for Officer Whitler to arrive. Tr. p. 92.

In other words, there was no evidence that Pike confessed to Officer Chandler and

nothing of substance was discussed about the offense.

          Following a hearing on the motion, the trial court ruled that

          any statements made by the Defendant to Detective Chandler, were pre-Miranda,
          interrogation in nature, and are therefore ordered suppressed. The statements
          made post-Miranda, by the Defendant to Detective Whitler, were voluntary and
          not given as the result of any coercion from the previous interrogation, and are
          therefore admissible.”

Appellant’s App. p. 80. Thus, the trial court granted Pike’s motion to suppress in part

and denied it in part.

3
    Miranda v. Arizona, 384 U.S. 43 (1966).
                                                6
       Pike’s three-day jury trial commenced on May 20, 2013. At some point during the

trial, Detective Whitler testified as to what Pike had said, and Pike was found guilty as

charged. Thereafter, the trial court sentenced Pike to concurrent terms of forty years

imprisonment on Count I and to fifteen years on Count II. He now appeals.

                           I. Admissibility of Pike’s Statements

       Pike argues that his convictions must be reversed because the trial court should

have excluded all of the statements that he made to the detectives. Specifically, Pike

maintains that the “trial court erred in finding the post-Miranda interrogation of Pike was

not tainted by the illegality of the first statement.” Appellant’s Br. p. 16. Therefore, Pike

contends that “the belated advisement of rights did not render the second statement

admissible” and none of his statements should have been admitted at trial. Id.

       We note that while Pike originally challenged the admission of his statements

through a motion to suppress, he appeals following a completed trial and thus challenges

the admission of the evidence at trial. “Accordingly, ‘the issue is more appropriately

framed as whether the trial court abused its discretion by admitting the evidence at trial.”’

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007) (quoting Washington v. State,

784 N.E.2d 584, 587 (Ind. Ct. App. 2003)).

       Our standard of review for rulings on the admissibility of evidence is essentially

the same whether the challenge is made by a pre-trial motion to suppress or by an

objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002). We

do not reweigh the evidence, and we consider conflicting evidence most favorable to the

                                             7
trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005). We also

consider uncontroverted evidence in the defendant’s favor. Id.

       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington, 784 N.E.2d at 587. Accordingly, we will reverse a trial court’s ruling on the

admissibility of evidence only when the trial court abused its discretion. Id. An abuse of

discretion involves a decision that is clearly against the logic and effect of the facts and

circumstances before the court. Id.

       In addressing Pike’s arguments, we initially observe that Pike does not point to his

objection at trial regarding the admission of any statements that he made to Detective

Whitler. Rather, Pike contends that the trial court “erred in refusing to grant his motion

to suppress evidence in its entirety.” Appellant’s Br. p. 15. Here, because Pike did not

make a contemporaneous objection to the admission of the statements that he made to the

detective, he has waived review of his statements’ admissibility. Jackson v. State, 735

N.E.2d 1146, 1152 (Ind. 2000).

       Waiver notwithstanding, we note that when an individual is in custody and subject

to custodial interrogation, the police are required to advise the person of his or her rights,

as set forth in Miranda. As noted above, in the pretrial ruling, the trial court determined

that whatever Pike stated while talking to Detective Chandler before Detective Whitler




                                              8
advised Pike of his Miranda rights was not admissible.                   However, any subsequent

statements made to Detective Whitler were admissible.4

        By way of analogy, in Oregon v. Elstad, 470 U.S. 298 (1985), the United States

Supreme Court determined that a voluntary statement, given after the police provided a

subject with Miranda warnings, is admissible, regardless of the fact that the suspect

already made statements before receiving the warnings. The crucial fact is that both

statements were not coerced. Id. at 317-18.

        We acknowledge that a somewhat different result was reached in Missouri v.

Seibert, 542 U.S. 600 (2004), where the confession at issue was obtained by using a two-

step interrogation strategy that called for the deliberate withholding of the Miranda

warnings until the suspect confessed, followed by a Miranda warning, and the

defendant’s repetition of his previous confession. Id. That plurality opinion in Seibert

determined that the defendant’s admission was inadmissible and concluded that the

admissibility of a statement obtained in a “two-stage interview” depends on “whether the

Miranda warnings given midstream could have been effective enough to accomplish their

object.” Id. at 615.

        However, even in Seibert, one of the justices reasoned that the admissibility of

post-warning statements should continue to be governed by the principles set forth in


4
  The State does not cross appeal and challenge the trial court’s ruling in excluding the pre-Miranda
statements that Pike made to Detective Chandler. It only responds to Pike’s argument that the trial court
erred in admitting the statements that Pike made to Detective Whitler following the advisement of the
Miranda rights. More specifically, the State maintains that “Pike has failed to establish the trial court
erred” in admitting those statements. Appellee’s Br. p. 8.
                                                   9
Elstad, unless—like the circumstances in Seibert—a police officer purposely used a two-

step interrogation technique designed to circumvent the rule in Miranda.

       That said, even if we were to apply the rationale of Seibert in this case, there is no

showing that the detectives employed a two-step interrogation process to circumvent the

Miranda rule. Even more compelling, it is apparent that Detective Chandler and Pike

primarily engaged in “small talk” while they waited for Detective Whitler to arrive. Tr.

p. 92. Indeed, Pike did not admit to any wrongdoing in his conversation with Detective

Chandler and did not make any comments as to if he knew Morton or had any contact

with him. Therefore, unlike the situation in Seibert, the detectives did not interrogate

Pike until he confessed, advise him of his Miranda rights, and then had Pike repeat the

confession. In light of these circumstances, we conclude the trial court properly admitted

Pike’s statement that he provided to Detective Whitler. Thus, Pike’s claim fails.

                                   II. Jury Instructions

       Pike next claims that the jury was improperly instructed. Specifically, Pike argues

that the trial court erred in instructing the jury on accomplice liability because there was

no evidence that he acted in concert with anyone else.

       In resolving this issue, we initially observe that the purpose of jury instructions is

to inform the jury of the law applicable to the facts without misleading the jurors and to

enable them to comprehend the case clearly and arrive at a just, fair, and correct verdict.

Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).



                                             10
         The standard of review when challenging the trial court’s decision to give or

refuse an instruction requires us to consider (1) whether the instruction correctly states

the law; (2) whether there is evidence in the record to support giving the instruction; and

(3) whether the substance of the tendered instruction is covered by other instructions that

were given. Springer v. State, 798 N.E.2d 431, 433 (Ind. 2003).

         The trial court has discretion in instructing the jury, and we will reverse only when

the instructions amount to an abuse of discretion. Id. To constitute an abuse of discretion

the instructions given must be erroneous and the instructions taken as a whole must

misstate the law or otherwise mislead the jury. Munford, 923 N.E. 2d at 11. We note

that an instruction on accomplice liability is proper where there is some evidence that a

second party was involved in the crime. Taylor v. State, 840 N.E.2d 324, 338 (Ind.

2006).

         Here, the evidence showed that others assisted Pike in committing the crime

against Morton. For instance, Morton testified that when Pike pinned him against a

vehicle, Morton saw others running in his direction. Morton was then struck in the head

and lost consciousness. Also, around the time that the assault occurred, Beverly observed

Pike walk down Linwood after a white male and a black male had walked down the

street. Approximately ten minutes later, Pike ran up Linwood to Cherry Street. Beverly

observed that Pike was carrying something in his hands.

         Robert testified that he saw Pike twice near the corner of Linwood and Cherry,

which was in the vicinity where the police discovered Morton’s jeans and underwear. Tr.

                                              11
p. 500, 528-29. The first time that Robert saw Pike, he was with a white male. Pike

walked onto Robert’s driveway, while the white male stayed on the street. Id. at 448-49.

As noted above, Pike told Robert that the person he was with “had a little bit of change,

little bit of money.” Id. at 449. This evidence indicated that Pike was looking for

someone to help him take Morton’s money. In response, Robert ordered Pike to leave.

Id. When Robert saw Pike the second time, he was with a black male, and Robert again

told Pike to “get out of there” because of the police activity. Id. at 450-51, 461.

       Finally, when Pike spoke to Detective Whitler, he admitted that he was at the

corner of Linwood and Cherry and stated he had been drinking with Morton and another

man named “Doty.” Id. at 533-34. All of this evidence supported the inference that Pike

did not act alone in attacking and robbing Morton. Thus, we conclude that the trial court

did not err in instructing the jury as to accomplice liability.

                              III. Sufficiency of the Evidence

       Pike claims that his convictions must be set aside because the evidence did not

support his convictions. Specifically, Pike claims that “the accounts of the three eye

witnesses at trial cannot be construed together or apart to conclude that Pike committed

the charged offense beyond a reasonable doubt.” Appellant’s Br. p. 20.

       In reviewing a challenge to the sufficiency of the evidence, we consider only the

evidence most favorable to the verdict and any reasonable inferences that may be drawn

from that evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). If a reasonable

finder of fact could determine from the evidence that the defendant was guilty beyond a

                                              12
reasonable doubt, its verdict will be upheld. Baker v. State, 968 N.E.2d 227, 229 (Ind.

2012). We will not reweigh the evidence or judge the credibility of witnesses. Id. Such

evaluations are for the trier of fact and not the appellate courts. McHenry, 820 N.E.2d at

126. The uncorroborated testimony of the victim is sufficient to sustain a conviction.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Finally, conflicts in the evidence are

for the jury to resolve. Soward v. State, 716 N.E.2d 423, 425 (Ind. 1999).

       In this case, Pike contends that the State failed to prove that he was the individual

who actually robbed and beat Morton. However, there is no distinction between the

responsibility of a principal and an accomplice; nor are they separate crimes. Stokes v.

State, 908 N.E.2d 295, 303 (Ind. Ct. App. 2009). In accordance with Indiana Code

section 35-41-2-4, “a person who knowingly or intentionally aids, induces, or causes

another person to commit an offense commits that offense. . . .”               Moreover, an

accomplice is criminally liable for all acts committed by a confederate which are a

probable and natural consequence of their concerted action. Alvies v. State, 905 N.E.2d

57, 61 (Ind. Ct. App. 2009). Additionally, the evidence does not need to establish that the

defendant personally participated in the commission of each element of a particular

offense in order to sustain the defendant’s conviction as an accomplice. Id.

       As discussed above, Morton saw Pike inside the 711 Bar on the night in question.

Morton gave Pike a cigarette and left the bar. As Pike started to walk home, he noticed a

group of black males, including Pike, following him. At that point, Morton decided to

take a detour. Morton then noticed Pike again and talked with him while they smoked

                                            13
cigarettes. In a turn of events, Pike eventually pinned Morton against a vehicle and saw

other individuals approach him. Morton was then struck in the head, lost consciousness,

and was robbed of his money at some point. When the police officers saw Morton in the

street, they noticed that he had been stripped of his underwear and jeans and had

numerous injuries. This evidence was sufficient to establish Pike’s involvement in the

assault and robbery of Morton as either a principal or an accomplice. See Byrer v. State,

423 N.E.2d 704, 706-08 (Ind. Ct. App. 1981) (observing that while the defendant may not

have actually committed the crime, there was sufficient evidence that he aided those who

did commit the crime, and the robbery conviction was proper).

       Although there were some minor discrepancies in Morton’s identification of Pike

as the perpetrator, Pike fails to demonstrate any basis for reversing his convictions. In

fact, Morton accurately testified that Pike was taller than he was, that Pike had facial hair

“like a goatee,” and the police eventually located a black t-shirt inside a red pullover

shirt, which Morton described that Pike was wearing at the time of the assault. Tr. p. 316,

482, 485. Also, Morton’s testimony that Pike was wearing blue jeans was consistent with

Robert’s testimony that Pike was wearing dark pants, and Morton’s contention that Pike

was wearing a white hat was corroborated by the surveillance video from the 711 Bar.

Id. at 451.

       In conclusion, the testimony of the remaining witnesses corroborated Morton’s

testimony regarding Pike’s involvement in the attack and was sufficient to establish

Pike’s participation in the crimes.     Finally, Pike’s statement over the telephone as

                                             14
described above that he “was not really worried till [he gets] pointed out . . . by the

victim” could also be viewed as an acknowledgement of guilt.

      In short, Pike’s arguments amount to a request to reweigh the evidence, which we

will not do. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We conclude that the

evidence was sufficient to support Pike’s convictions.

      The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




                                           15
