MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Jul 19 2017, 6:17 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Arbie Clay, Jr.,                                         July 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1702-CR-282
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         34C01-1604-F5-93



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017        Page 1 of 10
                                                Case Summary
[1]   Arbie Clay, Jr. (“Clay”), was convicted of Robbery, as a Level 5 felony; 1

      Attempted Disarming of a Law Enforcement Officer, as a Level 5 felony; 2 two

      counts of Resisting Law Enforcement, one as a Level 6 felony and one as a

      Class A misdemeanor;3 and Battery against a Public Safety Official, as a Level 6

      felony.4 Clay was sentenced to an aggregate term of imprisonment of six years.

      He now appeals.


[2]   We affirm.



                                                        Issues
[3]   Clay raises one issue on review, which we restate as the following two issues:

                    I.     Whether the trial court erred when it issued jury
                           instructions with respect to Robbery; and


                   II.     Whether there was sufficient evidence to sustain Clay’s
                           conviction for Robbery.




      1
          Ind. Code § 35-42-5-1.
      2
          I.C. §§ 35-44.1-3-2 & 35-41-5-1.
      3
          I.C. § 35-44.1-3-1(b)(1) & 35-44-3-3(a)(1).
      4
          I.C. § 35-42-2-1(d)(2).


      Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 2 of 10
                            Facts and Procedural History
[4]   On the evening of April 20, 2016, Clay drove to the Handle Bar, a bar in

      Kokomo. Angelia Sharp (“Sharp”) was working as bartender that day, and

      when Clay entered the bar, Sharp was delivering food to a table.


[5]   When Clay entered the bar, he immediately went behind the counter and

      removed about $300 in cash from the cash box under the counter. Sharp saw

      Clay enter and, trying to make Clay return the money, stood at the entrance

      behind the counter. Clay pushed Sharp out of the way, shoving her into the

      counter and injuring her arm, causing bruising and soreness. Clay then ran out

      of the bar; Sharp and several patrons followed him, and saw a dark SUV leave

      the parking lot at a high rate of speed.


[6]   The Kokomo Police Department was called, and several police cars began

      searching for the SUV Clay was driving. Several officers saw an SUV matching

      the description provided to police dispatch, and two police cars, driven by

      Officers Brandon Hector (“Officer Hector”) and Noah Moody (“Officer

      Moody”), activated their emergency lights to initiate a traffic stop.


[7]   Clay did not stop his vehicle, and instead led the officers on a chase through

      several streets and alleys in Kokomo. Eventually, Clay stopped his vehicle and

      fled on foot. Officers Hector and Moody gave chase and eventually caught up

      with Clay. A physical confrontation ensued, during which Clay struck Officer

      Hector multiple times on the chest, and grabbed at Officer Moody’s pistol,

      despite several instances in which the officers used a Taser to subdue Clay. The

      Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 3 of 10
       confrontation did not end until additional officers arrived and forced Clay to

       the ground and handcuffed him.


[8]    On April 22, 2016, Clay was charged with Robbery, Attempted Disarming of a

       Law Enforcement Officer, two counts of Resisting Law Enforcement, and

       Battery against a Public Safety Official. The State also alleged that Clay was a

       Habitual Offender.5 On November 23, 2016, the State dismissed the Habitual

       Offender allegation.


[9]    A jury trial was conducted on November 29, 2016. During the trial, Clay

       testified that he believed himself to be guilty of Theft, but not of Robbery. After

       the close of evidence, Clay proffered to the court a proposed jury instruction for

       Theft; the trial court declined to issue the instruction. Other than offering an

       instruction on Theft, Clay did not object to any of the jury instructions the trial

       court issued.


[10]   At the close of the trial, the jury found Clay guilty as charged. A sentencing

       hearing was conducted on January 25, 2017, and the trial court imposed an

       aggregate sentence of six years imprisonment.


[11]   This appeal ensued.




       5
           I.C. § 35-50-2-8(c).


       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 4 of 10
                                  Discussion and Decision
                                            Jury Instruction
[12]   Clay argues that the trial court issued erroneous jury instructions related to the

       Robbery charge, thereby impermissibly enlarging the nature of the charge filed

       by the State. The Indiana Supreme Court has set forth the law pertaining to our

       review of jury instructions:


               In reviewing a trial court’s decision to give or refuse tendered
               jury instructions, this Court considers: (1) whether the instruction
               correctly states the law; (2) whether there is evidence in the
               record to support the giving of the instruction; and (3) whether
               the substance of the tendered instruction is covered by other
               instructions which are given.


       Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001).


[13]   Clay was charged with Robbery, as a Level 5 felony. The State’s charging

       information alleged, “[Clay] did knowingly and intentionally take property

       from the presence of another person, by using force, to wit: threw [Sharp] out of

       his way.” (App’x Vol. 2 at 11.)


[14]   The Robbery statute 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; commits robbery, a Level 5 felony.” I.C. § 35-42-5-1.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 5 of 10
[15]   The trial court issued jury instructions related to Robbery that Clay argues

       expanded the charges by instructing the jury on fear. Final Instruction 2 recited

       the State’s charging information. Final Instruction 3 provided the text of the

       robbery statute quoted above. Final Instruction 14 defined “fear” as “an

       emotional state of mind created by anticipation of bodily injury.” (App’x Vol. 4

       at 17.) This is identical to the definition provided in the Indiana Pattern Jury

       Instructions, see Ind. Pattern Jury Instructs. 14.1610, and comports with the

       definition of fear set forth in Indiana cases, including Rigsby v. State: “a fear of

       bodily injury or personal harm is required to support a conviction requiring a

       person be put in ‘fear.’” 582 N.E.2d 910, 912 (Ind. Ct. App. 1991) (citing Koby

       v. State, 209 Ind. 91, 97-98, 198 N.E. 88, 90 (1939)).


[16]   Clay argues that the instructions related to fear were given in error and

       prejudiced him. The State contends that these were not given in error; that

       even if given in error the instruction was nevertheless not prejudicial; and that

       in any event Clay failed to object to the instruction, thereby inviting error on the

       trial court’s part.


[17]   Our review of the record discloses that Clay did not object to any of the

       instructions the trial court issued. As this Court has observed:

               Failure to object to an instruction at trial typically results in
               waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36
               (Ind. Ct. App. 2002). If an instruction is so flawed that it
               constitutes fundamental error, however, waiver does not preclude
               review on appeal. Id. To qualify as fundamental, an error must
               be so prejudicial to the rights of the defendant as to make a fair

       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 6 of 10
               trial impossible. Id. Fundamental error is a substantial, blatant
               violation of due process. Taylor v. State, 717 N.E.2d 90, 93
               (Ind.1999).


       Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010).


[18]   Notably, Clay makes no claim of fundamental error, and thus waived the

       question of jury instruction upon appeal. Waiver notwithstanding, the jury

       instructions are not legally incorrect: the trial court instructed the jury on

       Robbery based upon the statutory elements. While the State did not directly

       charge fear in its information, there was evidence presented that Sharp was

       placed in fear because of Clay’s actions toward her when he fled the bar, and

       the statutory elements of Robbery include being placed in fear. Moreover, there

       was evidence that Clay used force against Sharp when he took the cash from

       behind the bar’s counter, and that the use of force in turn placed Sharp in fear.

       Finally, to the extent Clay suggests that the difference between fear and force

       amounts to a variance between the charging information and the jury

       instructions, we note that fear and force often rely upon similar evidence at

       trial, and that no fatal variance lies where the same evidence could prove either

       fear or force. See Daniels v. State, 957 N.E.2d 1025, 1028 (Ind. Ct. App. 2011)

       (noting that “convictions for robbery by placing a victim in fear have been

       affirmed in situations … where the more appropriate charge arguably would

       have been for a forcible taking of property”).




       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 7 of 10
[19]   Clay failed to object to the trial court’s instructions, thus waiving the question

       of jury instruction for appeal, and has failed as well to establish any error in the

       court’s instructions—let alone fundamental error.


                                                 Sufficiency
[20]   Clay also challenges the sufficiency of the evidence supporting his conviction

       for Robbery. Our standard of review in such cases is well settled. We consider

       only the probative evidence and reasonable inferences supporting the verdict.

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

       of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

       2000)). “The evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d

       331, 334 (Ind. Ct. App. 2001)).


[21]   To convict Clay of Robbery, as a Level 5 felony, the State was required to prove

       beyond a reasonable doubt that Clay knowingly or intentionally took property

       from the presence of another person, by using force—here, throwing Sharp out

       of his way. See I.C. § 35-42-5-1; App’x Vol. 2 at 11.


[22]   Clay’s sufficiency argument appears to boil down to an observation that, at

       trial, he insisted he was guilty of Theft but not Robbery, and that his act of

       pushing Sharp aside and forcing her into a counter did not satisfy the force

       requirement of Robbery because it occurred as he was fleeing the bar. As to

       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 8 of 10
       Theft instead of Robbery, this Court has held with respect to the admissibility of

       evidence that “a criminal defendant may not stipulate her way out of the full

       evidentiary force of the case to be presented against her.” Kellett v. State, 716

       N.E.2d 975, 979 (Ind. Ct. App. 1999). Stipulating to an (uncharged) count of

       Theft did not afford an opportunity for Clay to avoid a conviction for Robbery.


[23]   With respect to the use of force, our supreme court has held that “robbery by

       use of force requires that the force be used before the defendant completes

       taking the property from the presence of the victim.” Young v. State, 725 N.E.2d

       78, 80 (Ind. 2000). Here, Sharp testified that she stood in front of Clay to

       prevent him from leaving the counter area in the bar, and that Clay pushed her

       into the counter as he fled, causing bruising and soreness to Sharp’s arm. Here,

       as in Young, force was used in flight from the victim and was “closely connected

       in time…place…and continuity” id. at 81, so that a reasonable jury could find

       that Clay’s pushing of Sharp constituted use of force within the context of his

       taking of money from the bar. To the extent Clay would have us accept his

       admission to having committed Theft and his denial—premised upon his own

       testimony—that he committed Robbery, we must decline the invitation to

       reweigh evidence.


[24]   We conclude that there was sufficient evidence to sustain the conviction.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 9 of 10
                                               Conclusion
[25]   The trial court’s issuance of jury instructions was not in error. There was

       sufficient evidence to sustain Clay’s conviction.


[26]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 34A04-1702-CR-282 | July 19, 2017   Page 10 of 10
