MEMORANDUM DECISION
                                                                 May 07 2015, 9:51 am
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
Valerie K. Boots                                         Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Raymond Stewart,                                        May 7, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1410-CR-759
        v.                                              Appeal from the Marion Superior
                                                        Court.
                                                        The Honorable Christine Klineman,
State of Indiana,                                       Commissioner.
Appellee-Plaintiff                                      Cause No. 49G05-1405-FA-22368




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015       Page 1 of 6
[1]   Raymond Stewart appeals his conviction for Robbery, 1 a Class A felony.

      Stewart argues that the evidence presented was insufficient to find him guilty

      beyond a reasonable doubt. Finding the evidence sufficient, we affirm.



                                                    Facts
[2]   On April 12, 2014, Ricky Hamiter entered the Community Spirit Liquor Store

      in Indianapolis around 8.00 p.m. Hamiter is a disabled, fifty-seven-year-old

      man. After entering the store, Hamiter was confronted by Stewart. Hamiter

      recognized Stewart. Years earlier, Hamiter had been Stewart’s school bus driver

      and they now live in the same neighborhood. Stewart asked Hamiter if he

      could “borrow a dollar real quick.” Tr. p. 28; State’s Ex. 1, 10:16:40. Hamiter

      denied Stewart’s request. Stewart continued to request the money and said that

      he was “gonna take [Hamiter’s] mother fuckin’ dollar.” State’s Ex. 1, 10:16:51.

      Stewart also said that he was going to “pick [Hamiter’s] mother fucking

      pocket.” Id. at 10:17:16.


[3]   Hamiter tried to retreat from Stewart and attempted to leave the store. Stewart

      then grabbed Hamiter and pushed him up against a wall. Stewart shouted that

      he was “gonna fuck [Hamiter] up boy.” Id. at 10:17:25. He also yelled that he

      was going to “beat the fuck out of [Hamiter].” Id. at 10:17:48. Stewart then

      repeatedly smashed Hamiter’s head against the wall until Hamiter collapsed.




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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015   Page 2 of 6
      Stewart crouched over Hamiter and moved his hands around Hamiter’s

      pockets. Stewart was yelling for Hamiter to “[g]imme that motherfuckin’

      dollar,” id. at 10:18:20, and that he would “beat mother fuckers up.” Id. at

      10:18:46. Stewart then exited the store.


[4]   As a result of the attack, Hamiter lost consciousness. On regaining

      consciousness, Hamiter left the store and unsuccessfully tried to call 911.

      Hamiter was missing thirty-three dollars; his driver’s license; a gold onyx

      earring; and the earring’s post. Hamiter eventually contacted law enforcement,

      and two police officers came to Hamiter’s house. He told the officers that he

      had been assaulted. The next day, Hamiter called the liquor store to retrieve his

      missing money and any items he may have purchased. A store employee

      informed him that he had not made any purchases and that his property was

      not at the store. Two days after the attack, Hamiter again called 911 and

      reported that he had been assaulted and robbed. This report led to Stewart’s

      arrest. Hamiter’s missing property was not found.


[5]   The State charged Stewart with robbery, a class A felony, and later added a

      count alleging that Stewart was an Habitual Offender.2 On September 25, 2014,

      Stewart was tried before a jury for the robbery charge, but submitted the

      habitual offender charge to the trial court. The jury was presented with the

      video footage and the audio recording of the attack. Additionally, Hamiter




      2
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015   Page 3 of 6
      testified. The jury found Stewart guilty of robbery, and the trial court found

      that Stewart was an habitual offender. Stewart was sentenced to thirty years for

      robbery, and that sentence was enhanced by another thirty years for the

      habitual offender adjudication. Five years of the term were suspended by the

      trial court. The court also ordered one year of non-reporting probation.

      Stewart now appeals.


                                   Discussion and Decision
[6]   In reviewing the sufficiency of the evidence, this Court examines only “the

      probative evidence and reasonable inferences that support the verdict.” Lock v.

      State, 971 N.E.2d 71, 74 (Ind. 2012) (internal quotation omitted). “[W]e

      consider only the evidence most favorable to the trial court ruling and affirm the

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt.” Id. We do not “reweigh the evidence to

      determine if it was sufficient to support a conviction,” nor do we assess witness

      credibility. Id.


[7]   Stewart contends that the State did not establish beyond a reasonable doubt that

      he robbed Hamiter. Specifically, Stewart argues that the following facts negate

      his conviction: that the video does not show Stewart going through Hamiter’s

      pockets and taking the property; that it is possible that Hamiter’s property went

      missing another way; that Hamiter did not testify at trial that Stewart took the

      property; and, that Hamiter did not report the property missing until two days

      after the attack.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015   Page 4 of 6
[8]    To prove robbery beyond a reasonable doubt, the State must prove that Stewart

       “knowingly or intentionally” took property from Hamiter by use or threat of

       force, and that, in the process, Hamiter sustained serious bodily injury. Ind.

       Code § 35-42-5-1.3 “Elements of a crime may be shown by circumstantial

       evidence and the logical inference drawn therefrom.” Jones v. State, 479 N.E.2d

       44, 45 (Ind. 1985) (upholding robbery conviction where evidence that defendant

       took money was solely circumstantial - trial); Nunley v. State, 995 N.E.2d 718,

       722 (Ind. Ct App. 2013) (same), clarified on reh’g on other grounds, trans. denied.


[9]    Here, the evidence showed that Stewart asked Hamiter for money; that Hamiter

       refused to give the money; that Stewart pushed Hamiter against a wall; that

       Stewart repeatedly smashed Hamiter’s head against the wall; that Hamiter fell

       to the ground; that Stewart crouched over Hamiter; that Stewart’s hands moved

       around Hamiter’s pockets; that Stewart said he was “gonna take [Hamiter’s]

       mother fuckin’ dollar,” State’s Ex. 1, 10:16:51; that Stewart said he was going

       to “pick [Hamiter’s] mother fucking pocket,” id. at 10:16:51; that Stewart also

       said that Hamiter should “[g]imme that motherfuckin’ dollar,” id. at 10:17:16;

       and, that, after the attack, Hamiter was missing thirty-three dollars, his driver’s

       license, a gold onyx earring, and the earring’s post.


[10]   As in Nunley, no one saw Stewart take the property. As in Jones, it is possible

       that Hamiter’s property could have been taken by a third party. However, like



       3
         This is the language from the statute that was in place at the time Stewart committed the offense. It has
       since been amended, with an effective date of July, 1, 2014.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015                   Page 5 of 6
       Nunley and Jones, the circumstantial evidence and the logical inferences that

       may be drawn therefrom were sufficient for reasonable minds to have reached

       the conclusion drawn by the jury—that Stewart was guilty of robbery beyond a

       reasonable doubt.


[11]   Finally, Hamiter’s failure to directly testify that Stewart took the property does

       not undercut the sufficiency of the evidence. Hamiter was unconscious at the

       time of the robbery, and an audio and video recording of the attack was played

       to the jury. Similarly, Hamiter’s failure to directly report missing property until

       two days after the attack does not undermine the evidence supporting the

       conviction. These arguments amount to a request that we reweigh the evidence

       and assess witness credibility—a request we decline. We conclude that

       sufficient evidence supports Stewart’s conviction.


[12]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-759 | May 7, 2015   Page 6 of 6
