MEMORANDUM DECISION
                                                                     Apr 29 2015, 8:55 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
Jennifer A. Joas                                          Gregory F. Zoeller
Madison, Indiana                                          Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Keith R. Miller,                                         April 29, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A01-1407-CR-296
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jonathan W.
Appellee-Plaintiff                                       Webster, Judge

                                                         Case No. 40C01-1106-FA-261




Crone, Judge.


                                         Case Summary
A jury found Keith R. Miller guilty of seven counts, including class A felony

robbery resulting in serious bodily injury and class D felony receiving stolen


Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015         Page 1 of 9
      property. The trial court sentenced him to forty-seven and a half years. Miller

      claims that the State failed to present sufficient evidence to sustain his

      convictions. He also challenges his sentence as inappropriate in light of the

      nature of the offenses and his character. Finding the evidence sufficient and

      that Miller has failed to establish that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[1]   The relevant facts most favorable to the jury’s verdict are that in June 2011,

      Keith Miller was dating Christina Hope Franklin. Miller told Franklin that he

      had cased out a jewelry store in North Vernon that he thought would be easy to

      rob. He discussed looking at cheap jewelry first and then more expensive

      jewelry before knocking out the owner. On June 11, Franklin was arrested

      when police found drugs and paraphernalia at her home.


[2]   On June 14, Miller asked Jamie Costilla for a ride to downtown North Vernon.

      Once they parked, she did not know where he went, but upon his return ten or

      fifteen minutes later, he said, “I bet it would be easy to rob that place and knock

      an old man out.” Tr. at 131. On the night of June 15, Miller and Justin Clark

      stayed with Costilla in a motel room. When Costilla awoke on June 16, Miller

      and Clark had left with her car.


[3]   On the same day, James Pfeiffer, then sixty-one years old, was working alone at

      his jewelry store in North Vernon. Miller entered the store. Pfeiffer recognized

      Miller because he had been in the store a few days earlier looking at Fenton

      glassware. Pfeiffer asked Miller whether he wanted to look at Fenton glassware

      Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 2 of 9
      again, and Miller said yes. As Pfeiffer began showing Miller the glassware, he

      noticed Clark standing on the sidewalk in a way that did not feel or look right.

      Clark entered the store, and Pfeiffer began to feel concerned. Pfeiffer wanted to

      keep both of the men in his line of sight.


[4]   When Miller asked to see items that cost less than fifty dollars, Pfeiffer picked

      up a vase to return it to the shelf. As he turned, Miller repeatedly struck him on

      the head with an iron bar. Pfeiffer eventually got on his hands and knees to try

      to shield himself. When the blows stopped, Pfeiffer turned his head, and Miller

      sprayed his right eye with an insecticide. As Pfeiffer pulled out his cell phone to

      call 911, it became covered in blood. He crawled toward the front door and

      yelled for help.


[5]   After Miller hit Pfeiffer, Miller and Clark went from case to case trying to open

      them. Clark scooped jewelry into a bag, and they ran to the back of the store.

      When they realized that they were unable to exit through the back door, Clark

      panicked and dropped the bag. He and Miller ran out the front door and down

      the alley to Costilla’s car. Pfeiffer followed them down the alley. The men got

      into the car, and Pfeiffer grabbed Miller’s neck as Miller was trying to start the

      car. The car accelerated and dragged Pfeiffer before he lost his grip. The car

      then ran over both of his arms and his left leg. Miller and Clark eventually

      wrecked and abandoned Costilla’s car and stole two vehicles en route to Texas,

      where they were apprehended.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 3 of 9
[6]   When Miller and Clark did not return with her car, Costilla reported it stolen.

      The police told her that it had been involved in a jewelry store robbery and

      asked her to watch the store’s surveillance camera footage to identify the people

      in the video. She identified them as Miller and Clark.


[7]   During the robbery, Pfeiffer’s cornea split, and he continues to have eye

      problems. He suffered one broken finger bone, a concussion, cuts on his head

      that required stitches, and headaches that lingered for six months after the

      attack. Because of his injuries, he was forced to close his store for two weeks.


[8]   The State charged Miller with seven counts: class A felony robbery resulting in

      serious bodily injury, class B felony robbery with a deadly weapon, class C

      felony battery resulting in serious bodily injury, class D felony receiving stolen

      property, class A felony aiding robbery resulting in serious bodily injury, class

      A felony attempted robbery resulting in serious bodily injury, and class A felony

      aiding attempted robbery resulting in serious bodily injury. The jury convicted

      Miller on all seven counts. During sentencing, the trial court merged the

      convictions for Counts II, III, V, VI, and VII with Count I. The trial court

      sentenced Miller to forty-five years on Count I (class A felony robbery resulting

      in serious bodily injury to Pfeiffer) and thirty months on Count IV (class D

      felony receiving stolen property, i.e. Costilla’s car), to be served consecutively,

      for an aggregate sentence of forty-seven and a half years. Miller now appeals.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 4 of 9
                                      Discussion and Decision

            Section 1 – The evidence is sufficient to sustain Miller’s
                                 convictions.
[9]    Miller contends that the State failed to present sufficient evidence to sustain his

       convictions. In reviewing a challenge to the sufficiency of the evidence, “we

       neither reweigh the evidence nor assess witness credibility, and will focus on the

       evidence most favorable to the verdict together with the reasonable inferences

       that may be drawn therefrom. We will affirm unless no reasonable factfinder

       could find the elements of the crime proved beyond a reasonable doubt.”

       Cooper v. State, 940 N.E.2d 1210, 1213 (Ind. Ct. App. 2011) (citation omitted),

       trans. denied.


[10]   Miller first asserts that Pfeiffer’s in-court identification of him as the person who

       committed the robbery is unreliable because Pfeiffer did not see the person who

       attacked or robbed him. Miller concedes that he failed to object to this

       identification at trial, but he asserts that the identification resulted in

       fundamental error. “Fundamental error is error so egregious that reversal of a

       criminal conviction is required even if no objection to the error is registered at

       trial.” Robey v. State, 7 N.E.3d 371, 379 (Ind. Ct. App. 2014) (citation and

       quotation marks omitted), trans. denied. “The standard for fundamental error is

       whether the error was so prejudicial to the rights of the defendant that a fair

       trial was impossible. Fundamental error requires prejudice to the defendant.”

       Id. (citation omitted).



       Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 5 of 9
[11]   A court may consider the following factors when determining whether a

       witness had an independent basis for the in-court identification: the amount of

       time the witness was in the presence of the defendant; the distance between the

       two; the lighting conditions; the witness’s degree of attention to the defendant;

       the witness’s capacity for observation; the witness’s opportunity to perceive

       particular characteristics of the perpetrator; the accuracy of any prior

       description of the perpetrator by the witness; the witness’s level of certainty at

       the pretrial identification; and the length of time between the crime and the

       identification. Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001). Pfeiffer

       testified that he recognized Miller from a previous visit, and the jewelry store’s

       surveillance video shows that they interacted for at least a minute and a half,

       standing approximately two feet away, before Miller struck Pfeiffer. Pfeiffer

       testified that he was concerned by the presence of the two men and wanted to

       keep them in sight. The record suggests that it was a bright sunny day and the

       store was well-lit. Although Pfeiffer was not asked to identify Miller until trial,

       which occurred nearly two years after the crime, we agree with the State that

       Pfeiffer had an excellent opportunity and the capacity to observe him. Based on

       the foregoing, we conclude that Pfeiffer had an independent basis for his in-

       court identification of Miller and that the trial court committed no error, let

       alone fundamental error, in admitting the identification.


[12]   Miller also challenges the testimony of Clark, his accomplice, who testified at

       trial after being granted use immunity by the State. Miller invokes the

       incredible dubiosity rule, which is inapplicable because more than one witness


       Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 6 of 9
       testified regarding his involvement in the crimes and his convictions are also

       supported by circumstantial evidence. See Moore v. State, No. 71S00-1405-LW-

       361, slip op. at 6 (Ind. Mar. 24, 2015) (“[T]he appropriate scope of the

       incredible dubiosity rule as utilized in Indiana and other jurisdictions requires

       that there be: 1) a sole testifying witness; 2) testimony that is inherently

       contradictory, equivocal, or the result of coercion; and 3) a complete absence of

       circumstantial evidence.”). Miller’s argument is simply a request to reweigh

       evidence and judge Clark’s credibility, which we may not do. Having rejected

       Miller’s arguments, we affirm his convictions.


         Section 2 – Miller has failed to establish that his sentence is
          inappropriate in light of the nature of the offenses and his
                                   character.
[13]   Miller asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

       which provides, “The Court may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” “Our inquiry focuses on the defendant’s aggregate sentence, rather

       than the number of counts, length of the sentence on any individual count, or

       whether any sentences are concurrent or consecutive.” Remy v. State, 17 N.E.3d

       396, 401-02 (Ind. Ct. App. 2014), trans. denied (2015). “The nature of offense

       compares the defendant’s actions with the required showing to sustain a

       conviction under the charged offense, while the character of the offender

       permits for a broader consideration of the defendant’s character.” Anderson v.


       Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 7 of 9
       State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (citation and internal quotation

       marks omitted).The defendant bears the burden of persuading us that his

       sentence is inappropriate. Remy, 17 N.E.3d at 402.


[14]   “[R]egarding the nature of the offense, the advisory sentence is the starting

       point the Legislature has selected as an appropriate sentence for the crime

       committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218. Miller was sentenced for a class A felony, which has an

       advisory sentence of thirty years and a range of twenty to fifty years, Ind. Code

       § 35-50-2-4, and a class D felony, which has an advisory sentence of one and a

       half years and a range of six months to three years. Ind. Code § 35-50-2-7. To

       convict Miller of robbery resulting in serious bodily injury as charged, the State

       was required to prove that he knowingly or intentionally took property from

       Pfeiffer by using or threatening the use of force on him, Ind. Code § 35-42-5-1,

       and that Miller’s actions resulted in serious bodily injury, which means bodily

       injury1 that causes extreme pain. Ind. Code § 35-31.5-2-292. Here, Miller

       struck Pfeiffer in the head multiple times with an iron bar and sprayed

       insecticide in his eye when he intentionally took property from Pfeiffer. Pfeiffer

       suffered extreme pain and a concussion from Miller’s blows to his head,

       sustained a broken bone in his finger, and continues to suffer from impaired

       vision. As a result of his injuries, Pfeiffer had to close his store for two weeks




       1
        Indiana Code Section 35-31.5-2-29 defines bodily injury as any impairment of physical condition, including
       physical pain.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015             Page 8 of 9
       after the attack. The brutal nature of this robbery does not merit a reduction of

       Miller’s sentence.


[15]   As for Miller’s character, the record demonstrates that he has a significant

       criminal history that includes convictions for five felonies and five

       misdemeanors in addition to the convictions at issue here. His prior offenses

       include theft by deception, receiving stolen property, possession of cocaine, and

       driving with a suspended license, and he had a felony auto theft charge pending

       at the time of sentencing. He committed the current crimes while he was on

       probation, and he lied to the probation officer who prepared the presentence

       investigation report about his criminal history, job history, financial situation,

       and family situation. His criminal history demonstrates that he will not

       conform his behavior to society’s standards and that prior sentences have not

       deterred him from pursuing new and violent actions without regard for the lives

       of potential victims. Here, he beat a sixty-one-year-old man in the head with an

       iron bar, dragged him as he was hanging onto a car, and then ran him over with

       the vehicle. In sum, Miller has failed to carry his burden of demonstrating that

       his sentence is inappropriate in light of the nature of the offenses and his

       character. Therefore, we affirm.


[16]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1407-CR-296| April 29, 2015   Page 9 of 9
