MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Mar 24 2016, 8:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dominique Randolph,                                      March 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1508-CR-1118
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1412-F3-22



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016     Page 1 of 9
[1]   Following a jury trial, Dominique Randolph was convicted of Armed Robbery,

      a Level 3 felony. On appeal, Randolph presents two issues: Did the trial court

      abuse its discretion when it allowed the State to introduce evidence of a

      subsequent robbery pursuant to Ind. Evidence Rule 404(b), and is the evidence

      sufficient to sustain his conviction?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On December 8, 2014, fifteen-year-old N.R. came home from school. After

      completing household chores, he walked to a friend’s house located on Cedar

      Avenue. He left his friend’s house around 6:00 p.m. and began to walk home.

      On his way northbound on Cedar Avenue, N.R. was approached by three male

      individuals who rushed up to him. When N.R. resisted having his pockets

      rummaged through, one of the men pointed a gun at N.R. Another struck him

      across the face with a gun, which caused N.R. pain and also knocked a lens

      from his glasses. All three of the men were armed. The third, later identified as

      Randolph, took N.R.’s cell phone and five dollars from N.R.’s pocket. The

      men then ran from the scene toward Pine Avenue, and N.R. went back to his

      friend’s house where the police were called.


[4]   Hammond Police Officer Gabriel Gutierrez was dispatched to the home on

      Cedar Avenue. After speaking with N.R., Officer Gutierrez received

      information that other officers had stopped three suspects in the area.

      Randolph had been found in the back seat of a vehicle on Pine Avenue, one

      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 2 of 9
      block east and one block south of where N.R. was robbed. Randolph provided

      the officer with a fictitious name when removed from the vehicle.


[5]   Officer Gutierrez took N.R. to the location where there were three suspects

      were being detained. The officers conducted a show-up identification, in which

      N.R. positively identified Randolph as the individual who took his cell phone

      and money out of his pocket.


[6]   On December 11, 2014, the State charged Randolph with armed robbery, a

      Level 3 felony. A jury trial was conducted on June 15-17, 2015. Prior to the

      trial, the State filed a notice that it intended to use evidence of another robbery

      Randolph had allegedly committed that same day. Randolph filed a motion in

      limine regarding this issue, and the trial court denied the motion following a

      hearing.


[7]   Over Randolph’s objection at trial, the State was permitted to introduce

      testimony from Thomas O’Neill, who indicated that Randolph robbed him at

      gunpoint on Cedar Street within minutes of the robbery of N.R. Prior to this

      brief testimony, the trial court admonished the jury that this evidence should be

      considered only “for identification of the defendant and for no other purpose,

      please. And the location.” Transcript at 46. In addition to this admonishment,

      the trial court gave the jury a cautionary instruction as part of its final

      instructions. Instruction 3A stated as follows: “Evidence has been introduced

      that the defendant was involved in a crime other than that charged in the

      information. This evidence has been received solely on the issue of Defendant’s


      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 3 of 9
       identity. This evidence should be considered by you only for that limited

       purpose.” Appendix at 54.


[8]    The jury found Randolph guilty as charged. On July 10, 2015, the trial court

       sentenced Randolph to nine years in prison with four of those years suspended

       to probation. Additional facts will be provided as needed below.


                                           Discussion & Decision


                                           Admission of Evidence


[9]    Randolph challenged the admission of evidence regarding the robbery of

       O’Neill. He contends the trial court abused its discretion in admitting this

       evidence under Ind. Evidence Rule 404(b) because the circumstances of the two

       robberies are not similar enough to constitute signature crimes with a common

       modus operandi.


[10]   We review a trial court’s decision regarding the admissibility of evidence for an

       abuse of discretion. Bishop v. State, 40 N.E.3d 935, 943 (Ind. Ct. App. 2015),

       trans. denied. An abuse of discretion occurs when the ruling is clearly against

       the logic and effect of the facts and circumstances, or if the court has

       misinterpreted the law. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).

       Further, errors in the exclusion of evidence are generally to be disregarded as

       harmless unless they affect the substantial rights of the defendant. Allen v. State,

       813 N.E.2d 349, 361 (Ind. Ct. App. 2004), trans. denied. “In determining

       whether an evidentiary ruling affected a party’s substantial rights, the court


       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 4 of 9
       assesses the probable impact of the evidence on the trier of fact.” Hyser v. State,

       996 N.E. 2d 443, 448 (Ind. Ct. App. 2013).


[11]   Over Randolph’s objection, the State introduced brief testimony from O’Neill

       wherein he stated that Randolph robbed him at gunpoint on December 8, 2014,

       between 6:00 and 6:30 p.m. on Cedar Street. The O’Neill robbery occurred

       within a block of where N.R. was robbed. The trial court admonished the jury

       prior to the introduction of this evidence, as well as during the final jury

       instructions. On both occasions, the court instructed the jury that they should

       consider the evidence solely on the issue of identity.


[12]   Ind. Evidence Rule 404(b)(1) provides that evidence of other crimes, wrongs, or

       acts is not admissible to prove the character of a person in order to show action

       in conformity therewith. Such evidence, however, may be admissible for other

       purposes, such as “proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Ind. Evidence

       Rule 404(b)(2). The rule was designed to assure that the State, relying on

       evidence of uncharged misconduct, may not punish a person for his character.

       Bishop, 40 N.E.3d at 951.


[13]   The standard for assessing the admissibility of 404(b) evidence is: (1) the court

       must determine that the evidence of other crimes, wrongs, or acts is relevant to

       a matter at issue other than the defendant’s propensity to commit the charged

       act; and (2) the court must balance the probative value of the evidence against

       its unfair prejudicial effect pursuant to Ind. Evidence Rule 403. Bishop, 40


       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 5 of 9
       N.E.3d at 951. In determining whether the trial court abused its discretion, we

       employ the same test. Id. at 952.


[14]   In this case, the evidence was admitted for the limited purpose of establishing

       identity. Randolph correctly observes that evidence of other crimes admitted

       under the identity exception are generally evaluated based on whether the

       crimes are signature crimes with a common modus operandi. Id. The signature

       crime test focuses on the similarity and uniqueness between the charged and

       uncharged conduct rather than the time frame between the different criminal

       episodes. Id. at 952-53. “It is for this reason that our precedent has set a high

       bar for admitting signature crime evidence, focusing instead on whether the

       crimes are ‘so strikingly similar that one can say with reasonable certainty that

       one and the same person committed them.’” Id. at 953 (quoting Davis v. State,

       598 N.E.2d 1041, 1048 n.2 (Ind. 1992)). Courts need not look to the signature

       crime test, however, when the challenged evidence is so specifically and

       significantly related to the charged crime in time, place, and circumstance as to

       be logically relevant to one of the particular excepted purposes. Id. at 952.


[15]   Here, the evidence establishes that the robbery of O’Neill occurred on the same

       street and within minutes of N.R.’s.1 The armed robberies happened within a

       block of each other, and both victims identified Randolph as one of their




       1
           The record reflects that the 911 calls for each robbery came into dispatch at 6:14 p.m. and 6:15 p.m.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016                 Page 6 of 9
       attackers.2 Under the circumstances, evidence of O’Neill’s robbery was relevant

       to the issue of identification in this case. See id. at 953 (evidence of other

       shooting was relevant to show identity based on the closeness in time (same

       evening), place (same city), and circumstance (same motive and same firearm)).

       Further, the testimony regarding this second robbery was limited, and the trial

       court gave a cautionary instruction to the jury before the admission of the

       testimony and during final instructions. The evidence was highly relevant, and

       its probative value outweighed any unfair prejudicial effect it might have had on

       Randolph. Accordingly, the trial court did not abuse its discretion by allowing

       O’Neill’s testimony.


[16]   Even if we were to find error, the error would be harmless. The evidence

       establishes that N.R. identified Randolph shortly after the robbery and

       identified Randolph in court. N.R. testified about the robbery clearly and

       unequivocally. Moreover, after the robbery, police located Randolph in the

       back seat of a vehicle only a couple of blocks from where N.R. was robbed.

       Randolph gave police a fictitious name upon his apprehension. In addition to

       this substantial evidence of guilt, the trial court expressly limited the jury’s use

       of O’Neill’s testimony with an admonishment prior to the testimony and a

       limiting instruction at the close of the case.




       2
        At trial, O’Neill only mentioned being robbed by Randolph. At the hearing on the motion in limine,
       however, it was made clear to the court that three men approached O’Neill during the robbery.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016          Page 7 of 9
                                        Sufficiency of the Evidence


[17]   Randolph also argues that the State presented insufficient evidence to convict

       him of armed robbery. In reviewing a challenge to the sufficiency of the

       evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

       Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we

       consider only the evidence supporting the conviction and the reasonable

       inferences to be drawn therefrom. Id. If there is substantial evidence of

       probative value from which a reasonable trier of fact could have drawn the

       conclusion that the defendant was guilty of the crime charged beyond a

       reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State,

       891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[18]   To convict Randolph of Level 3 felony robbery as charged, the State was

       required to prove that, while armed with a deadly weapon, Randolph

       knowingly or intentionally took property from N.R. by using or threatening the

       use of force. Ind. Code § 35-42-5-1. Randolph challenges only the “while

       armed with a deadly weapon” element, which elevated the offense from a Level

       5 felony to a Level 3 felony.


[19]   Randolph claims that because no weapon was recovered in this case and the

       victim only generally talked about his three assailants having weapons, the

       State presented insufficient evidence to show the use of a deadly weapon. We

       find no merit in Randolph’s argument.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 8 of 9
[20]   N.R. testified that all three men had weapons. According to N.R., one of them,

       “[t]he man in the dreads”, pointed a weapon at N.R. while Randolph took a

       cell phone and money out of N.R.’s pocket. Transcript at 66. N.R. also testified

       that during the robbery another one of the men “pistol whipped” him in the

       face. Id. at 73. The blow was hard enough to knock a lens out of N.R.’s

       glasses.


[21]   It is not necessary that a weapon be introduced into evidence at trial in order to

       sustain a conviction for armed robbery. Gorman v. State, 968 N.E.2d 845, 850

       (Ind. Ct. App. 2012), trans. denied. A victim’s testimony that he saw the

       defendant use what was believed to be a gun is, by itself, sufficient proof of the

       use of a deadly weapon. Id. at 851. N.R.’s testimony was sufficient to prove

       that Randolph committed the robbery while armed with a deadly weapon.


[22]   Judgment affirmed.


[23]   Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1118 | March 24, 2016   Page 9 of 9
