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                                     Jul 03 2014, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS C. ALLEN                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 MONIKA PREKOPA TALBOT
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM H. ROYAL, II,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A05-1311-CR-584
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D04-1307-FB-125


                                        July 3, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION


SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

       William H. Royal, II, appeals his convictions for robbery resulting in bodily

injury, a Class B felony, Ind. Code § 35-42-5-1 (1984); theft, a Class D felony, Ind. Code

§ 35-43-4-2 (2009); and battery resulting in bodily injury, a Class A misdemeanor, Ind.

Code § 35-42-2-1 (2012). He also appeals the jury’s determination that he is a habitual

offender. Ind. Code § 35-50-2-8 (2005). Finally, he challenges the aggregate sentence

imposed by the trial court. We affirm in part, reverse in part, and remand.

                        FACTS AND PROCEDURAL HISTORY

       On the evening of June 28, 2013, Kenneth Bright visited his cousin, Royal, at

Royal’s home in Fort Wayne. Several other people arrived, including Royal’s brother,

Lance. They played cards for money and also played videogames. Later, Bright sat in

the kitchen and played with his phone, an HTC brand, while others played dice. He had

around $950 in cash and his phone charger with him that night.

       Bright left to use the restroom, and when he returned to the kitchen, only Lance

and Royal were present. Lance pulled out a handgun and told Bright to turn over his

money. In addition, Lance accused Bright of calling the police on Royal three years

before. Next, Royal hit Bright in the face, causing abrasions, swelling, and bleeding.

Lance knocked Bright to the ground and struck him, bruising his torso. Lance also

pointed the gun at Bright’s face and ordered Royal to remove Bright’s clothes. Bright

quit struggling because he was afraid. When he was naked, Royal laughed at him. Royal

and Lance’s sister, Chantel, came into the kitchen, saw the robbery, and fled.



                                            2
       Bright gathered his clothes, got partially dressed, and was next ordered outside,

where he finished dressing. Lance went outside with the gun and gave Bright $10.

Bright complained, so Lance went back inside and returned with $50 and Bright’s phone.

Bright walked away and tried to call the police, but the battery had been removed from

his phone. He ran home and contacted the police from there.

       The police arrested Royal at home and found $225 on his person. Another officer

found Lance driving around, stopped him, and arrested him. The officer found $624 and

an HTC cell phone battery on Lance. The officer also found two cell phones in Lance’s

possession. Neither phone was an HTC model, and they both already had batteries.

       A detective interviewed Royal in jail. Royal claimed that Bright had not been at

his home that night and that he had not seen him since 2010. An officer took photos

inside of Royal’s home after his arrest, and one of the photos of the kitchen showed a

phone charger that Bright identified as his.

       The State charged Royal with robbery resulting in bodily injury, theft, battery

resulting in bodily injury, and being a habitual offender. During the pendency of the

case, Royal and Lance contacted family members and asked them to pressure Bright to

stop cooperating with the State. The jury determined that Royal was guilty as charged.

The court sentenced him to an aggregate term of fifty years, and this appeal followed.

                                          ISSUES

       Royal raises three issues, which we restate as:

       I.     Whether the evidence is sufficient to sustain his convictions.



                                               3
       II.    Whether his convictions violate the Indiana Constitution’s Double Jeopardy
              Clause.

       III.   Whether his sentence is inappropriate in light of the nature of the offenses
              and his character.

                             DISCUSSION AND DECISION

                          I. SUFFICIENCY OF THE EVIDENCE

       When reviewing a challenge to the sufficiency of the evidence underlying a

conviction, we neither reweigh the evidence nor assess the credibility of witnesses.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). The evidence and all reasonable

inferences drawn from it are viewed in a light most favorable to the judgment. Id. 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.

       The State alleged that Royal was guilty of robbery and theft as an accessory. A

person who knowingly or intentionally aids, induces, or causes another person to commit

an offense commits that offense. Ind. Code § 35-41-2-4 (1977). A jury may infer

complicity in a crime from the defendant’s failure to oppose the crime, companionship

with the one engaged in the offenses, and his or her course of conduct before, during, and

after the offenses. Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000).

       Royal challenges his convictions for robbery resulting in bodily injury, theft, and

battery resulting in bodily injury. Rather than argue that the State failed to prove the

elements of each offense, he claims that the evidence as a whole shows that Bright was

angry at him due to a past dispute and fabricated the entire incident to get him in trouble.

                                             4
Royal points to testimony by his witnesses that Bright was not at Royal’s home on the

evening in question and claims that Bright’s testimony was irreconcilably inconsistent.

        Viewing the facts in the light most favorable to the judgment, Bright testified

unequivocally that his cousins, Royal and Lance, ambushed him at gunpoint when he

came out of the bathroom, that Royal struck him, resulting in pain, bleeding, and

swelling, that Lance pushed him to the floor and Royal stripped him naked, that they took

approximately $950 in cash from him, that Lance took the battery from his phone in the

course of sending him away from Royal’s house, and that Lance and Royal later asked

family members to pressure him not to cooperate with the State.

        The evidence also shows that when the police arrested Lance, he had a phone

battery whose brand matched that of Bright’s phone. Both Lance and Royal had currency

on their persons when they were arrested, that, when added together, substantially

accounted for Bright’s missing $950. Finally, Royal told the police that he had not seen

Bright for three years, but Bright’s cell phone charger was found in his kitchen.

        Regarding accomplice liability for robbery and theft, Royal did not oppose the

crimes, followed Lance’s orders, assisted in taking Bright’s money, and lied to police

about Bright being present at his house. The evidence as a whole is thus sufficient to

sustain Royal’s convictions for robbery resulting in bodily injury, theft, and battery

resulting in bodily injury.1 Reconciling any inconsistencies in Bright’s testimony and

weighing his motive to lie were tasks for the jury. See Grinstead v. State, 684 N.E.2d
1
  Royal also challenges the sufficiency of the evidence supporting his habitual offender determination.
However, he concedes that if the evidence is sufficient to sustain his robbery and theft convictions, then
there is also sufficient evidence to sustain the habitual offender enhancement. Appellant’s Br. p. 17. We
thus do not need to address this point.
                                                    5
482, 487 (Ind. 1997) (weighing an accomplice’s testimony about defendant’s

participation in crimes was a matter for the finder of fact).

                     II. INDIANA DOUBLE JEOPARDY CLAUSE

       Double jeopardy claims under the Indiana Constitution are evaluated utilizing a

two part test, pursuant to which multiple offenses are considered the same offense in

violation of article 1, section 14, “if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original).

       Royal’s constitutional challenge is directed to the actual evidence test. To prevail

under this test, he must demonstrate that there is a reasonable possibility that the

evidentiary facts used by the jury to establish all of the essential elements of one of his

offenses may also have been used to establish all of the essential elements of the other

offense. Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999). A reasonable possibility

that the jury used the same facts to reach two convictions requires substantially more than

a logical possibility. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). We evaluate the

evidence from the jury’s perspective and may consider the charging information, jury

instructions, and arguments of counsel. Id. at 720.

                     A. Robbery Resulting in Bodily Injury and Theft

       The charging information alleged, with respect to the robbery charge:

       On or about the 29th day of June, 2013, in the County of Allen and in the
       State of Indiana, said defendant, William H. Royal, II, while acting in
       concert with Lance Royal, Jr., did knowingly or intentionally take property,

                                              6
       to wit: United States Currency; from the person or presence of another
       person, to wit: Kenneth Bright, by using or threatening the use of force or
       by putting said Kenneth Bright in fear, said act resulting in bodily injury to
       Kenneth Bright, to wit: physical pain and/or visible injury, being contrary
       to the form of the statute in such case made and provided.

Appellant’s App. p. 14.

       The charging information further alleged that Royal committed theft, as follows:

       On or about the 29th day of June, 2013, in the County of Allen and in the
       State of Indiana, said defendant, William H. Royal, II, while acting in
       concert with Lance Royal, Jr., did knowingly or intentionally exert
       unauthorized control over the property of Kenneth Bright, with intent to
       deprive Kenneth Bright of any part of the value or use of said property,
       being contrary to the form of the statute in such case made and provided.

Id. at 16. Thus, the theft charge does not specify that United States currency was the

property at issue.

       Next, the jury instructions defining the offenses of robbery and theft did not

specify the property involved in each crime. However, during closing arguments the

prosecutor described the property that was the subject of each charge. With respect to the

robbery charge, the prosecutor told the jury:

       The Defendant and Lance knowingly took property from Kenneth Bright.
       Is there any doubt that his property was taken in a knowingly or
       intentionally [sic] manner? He didn’t leave property behind and they just
       happened to just say, “Hey, let’s not return it.” It was forcibly removed
       from his property, from his person. His money was in his pocket when his
       pockets were—his clothes were taken off of him.

Tr. p. 286. As for the theft charge, the prosecutor explained:

       They exerted unauthorized control over his property with the intent that he
       wouldn’t be able to have that property, you heard that. His charger, you
       saw that picture. His cell phone battery was taken from him and why?
       What was the intent? The intent was so he could not call for help, because
       when he got that cell phone back and he tried to call for help, he couldn’t

                                                7
       even turn the darn thing on, the battery was gone. You see that charger
       right there, that’s his charger, he identified that for you.

Id. at 288. Thus, the State identified for the jury different items of property to support

each offense. Royal has failed to demonstrate a reasonable possibility that the same

property was used to establish the essential elements of robbery and theft. See Thy Ho v.

State, 725 N.E.2d 988, 992 (Ind. Ct. App. 2000) (no violation of the actual evidence test

where State cited to different items of property to support robbery and theft convictions).

      B. Robbery Resulting in Bodily Injury and Battery Resulting in Bodily Injury

       The robbery charge is set forth above. The charging information alleged that

Royal had committed battery as follows:

       On or about the 29th day of June, 2013, in the County of Allen and in the
       State of Indiana, said defendant, William H. Royal, II, did knowingly or
       intentionally touch Kenneth Bright in a rude, insolent, or angry manner,
       resulting in bodily injury, to wit: physical pain and/or visible injury, being
       contrary to the form of the statute in such case made and provided.

Appellant’s App. p. 18. Thus, the robbery charge and the battery charge both alleged that

Bright had suffered physical pain and/or visible injury. Similarly, the trial court’s jury

instructions did not differentiate between types of injury when describing the elements of

robbery and battery. Id. at 96, 98. Finally, reviewing the State’s arguments to the jury, it

appears that the State cited the injuries that Bright received during the robbery as

supporting both the robbery and battery charges. We thus conclude there is a reasonable

possibility that the jury used the same evidence—Royal’s punch to Bright’s face—to

convict him of robbery resulting in bodily injury and battery resulting in bodily injury.

Royal’s conviction for battery thus violates the actual evidence test. See Mendenhall v.


                                             8
State, 963 N.E.2d 553, 572 (Ind. Ct. App. 2012) (actual evidence test was violated where

the same injury supported a robbery conviction and a battery conviction), trans. denied.

       When two convictions violate double jeopardy principles, we may remedy the

violation by reducing either conviction to a less serious form of the same offense if doing

so will eliminate the violation. Id. In this case, reducing Royal’s battery conviction to a

Class B misdemeanor will eliminate the double jeopardy violation because the element of

bodily injury will no longer be an issue. See Ind. Code § 35-42-2-1. We remand with

instructions to reduce Royal’s battery conviction to a Class B misdemeanor and to

resentence him on that conviction accordingly.

                          III. APPROPRIATENESS OF SENTENCE

       Royal argues that his sentence should be reduced.2 Article 7, section 4 of the

Indiana Constitution authorizes independent appellate review of sentences. Rice v. State,

6 N.E.3d 940, 946 (Ind. 2014). This review is implemented through Indiana Appellate

Rule 7(B), which states that we may revise a sentence, even if authorized by statute, if

“after due consideration of the trial court’s decision,” the sentence is inappropriate “in

light of the nature of the offense or the character of the offender.” A defendant must

persuade the appellate court that his or her sentence has met the inappropriateness

standard of review. Rice, 6 N.E.3d at 946.

       We first consider the sentences. At the time Royal committed his offenses, the

maximum sentence for a Class B felony was twenty years, the minimum sentence was six

2
 Our determination that the trial court must reduce Royal’s battery conviction to a Class B misdemeanor
and resentence him on that conviction does not affect our sentencing analysis because the trial court
ordered that he would serve his sentence for battery concurrently with his sentence for robbery.
                                                  9
years, and the advisory sentence was ten years. Ind. Code § 35-50-2-5 (2005). The trial

court imposed a maximum sentence of twenty years upon Royal’s conviction for B

felony robbery resulting in bodily injury.

       At the time Royal committed the offense of D felony theft, the maximum sentence

for a D felony was three years, the minimum sentence was six months, and the advisory

sentence was one and a half years. Ind. Code § 35-50-2-7 (2005). The trial court

imposed the maximum sentence of three years, to be served concurrently with the

robbery sentence.

       Finally, when a defendant is found to be a habitual offender, the court may

sentence the defendant to an additional fixed term that is not less than the advisory

sentence for the underlying offense nor more than three (3) times the advisory sentence

for the underlying offense, not to exceed thirty years. Ind. Code § 35-50-2-8(h). The

trial court attached the habitual offender determination to the robbery conviction and

imposed the maximum sentence of thirty years, for an aggregate term of fifty years.

       Next, we consider the nature of the offenses. Royal and Lance ambushed Bright,

their cousin, at gunpoint and demanded his money. They struck him, causing injuries to

his face and ribs. In addition, Royal stripped Bright naked and laughed at him. Royal’s

actions were not necessary to accomplish the robbery and their only purpose was to

humiliate Bright.

       Royal and Lance allowed Bright to partially dress before forcing him outside,

where he finished getting dressed. Furthermore, Lance or Royal removed the battery

from Bright’s phone, making it more difficult for him to summon help. Bright told a

                                             10
detective he was “angry that his family members would rob him.” Tr. p. 211. Later,

Royal and Lance asked other family members to contact Bright to urge him not to

cooperate with the State.

       Turning to Royal’s character, he was twenty-eight years old at sentencing. As a

juvenile, he committed acts that would have constituted battery and escape if they had

been committed by an adult. As an adult, he committed five misdemeanors and four

felonies, including multiple charges of possessing a handgun without a license and

resisting law enforcement. Thus, he continues to participate in crimes of violence and

acts of misconduct with firearms. Furthermore, Royal has violated terms of probation

and parole in the past, and he was on probation when he committed the current offenses.

       Royal argues that his sentence is inappropriate because he “is not the worst of the

worst,” noting that he was employed when he committed his crimes. Appellant’s Br. p.

25. Royal did not receive the maximum possible sentence, as he is serving his sentences

for theft and battery concurrently with his sentence for robbery. In any event, Royal’s

employment, which was no doubt a condition of his probation, fails to offset the

callousness of his crimes. Royal punched his cousin, stripped off his clothes to get his

money, and laughed at him during the assault.           In addition, lesser sentences and

opportunities for probation have not deterred Royal.         To the contrary, his current

convictions indicate that he is escalating his criminal conduct. Royal has not met his

burden of proving that his fifty-year sentence is inappropriate.




                                             11
                                     CONCLUSION

      For the reasons stated above, we affirm the trial court’s judgment in part, reverse it

in part, and remand with instructions to reduce Royal’s battery conviction to a Class B

misdemeanor and to impose a new sentence for that offense.

      Affirmed in part, reversed in part, and remanded.

VAIDIK, C.J., and BAKER, J., concur.




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