MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Aug 15 2016, 8:26 am
this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court


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
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Sharpe,                                          August 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1601-CR-52
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1408-FA-39382



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016        Page 1 of 6
                                          Case Summary
      Charles Sharpe was convicted of Class A felony attempted robbery for shooting

      a man that he met to buy a cell phone that had been posted on Craigslist. He

      now appeals, arguing that there was a fatal variance between the allegations in

      the charging information and the proof at trial. Finding no prejudice from any

      variance, we affirm.



                            Facts and Procedural History
[1]   In May 2014, Carlos Rodas posted an advertisement on Craigslist to sell an

      iPhone 5S. Rodas received a text message from Sharpe, who indicated that he

      was interested in buying the phone. Rodas asked Sharpe to meet him at a

      neutral location in Indianapolis, but Sharpe said he could not leave his house

      because he was watching his baby and asked Rodas to meet him near 37th

      Street and Linwood Avenue. Rodas drove to that location, and Sharpe got in

      the front passenger seat of Rodas’s car. After inspecting the phone, Sharpe said

      he would buy it. Sharpe told Rodas that he was going to give him extra money

      for driving to meet him and asked Rodas if he had any change in his wallet. As

      Rodas reached for his wallet, Sharpe pulled out a gun and pointed it at Rodas.

      Sharpe told Rodas that he wanted his wallet, phone, and keys. After taking

      these items, Sharpe opened the car door and started to run away. Rodas

      followed him. Rodas tried to grab his keys from Sharpe, and both men fell to

      the ground, where they struggled for the gun. Sharpe pulled the trigger and

      shot Rodas, but Rodas did not feel the gun shot. Sharpe started to walk away,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016   Page 2 of 6
      but Rodas followed him and reached for the gun. Sharpe shot Rodas a second

      time, and this time Rodas fell to the ground. As Sharpe ran off, he shot Rodas

      a third and final time. Sharpe did not take any of Rodas’s possessions with

      him.

[2]   Rodas was taken to the hospital where he underwent surgery. Sharpe later gave

      a statement to the police wherein he admitted that he had a gun and that his

      plan was to take whatever Rodas had because he needed money. Tr. p. 112.

[3]   The State initially charged Sharpe with Count I: Class A felony robbery (serious

      bodily injury). The State later added Count II: Class A felony attempted

      robbery (serious bodily injury). The State dismissed Count I, and a bench trial

      was held on Count II. The trial court found Sharpe guilty on Count II and

      sentenced him to thirty years, with twenty-two years executed.

[4]   Sharpe now appeals.



                                 Discussion and Decision
[5]   Sharpe contends that there was a fatal variance between the allegations in the

      attempted-robbery charging information and the proof at trial. Because the

      charging information advises the defendant of the accusations against him, the

      allegations in the pleading and the evidence used at trial must be consistent with

      one another. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). A variance is an

      essential difference between the two. Not all variances, however, are fatal. Id.

      Relief is required only if the variance: (1) misled the defendant in preparing a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016   Page 3 of 6
      defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future

      prosecution under the same evidence. Id.


[6]   Here, the charging information for Class A felony attempted robbery provides:

              Charles Sharpe, on or about May 23, 2014, did attempt to
              commit the crime of robbery, which is to knowingly take property,
              to-wit: a cellular telephone from another person or the presence of another
              person, to-wit: Carlos Rodas, by using or threat[en]ing the use of force, to-
              wit: shooting at and against the person of Carlos Rodas, said act
              resulting in serious bodily injury to Carlos Rodas, to-wit:
              multiple gunshot wounds, which conduct constituted a
              substantial step toward the commission of said crime of Robbery
              ....


      Appellant’s App. p. 33 (emphasis added). Sharpe argues that the evidence

      presented at trial did not show that Sharpe attempted to take the phone from

      Rodas by shooting him; rather, “the evidence consistently showed that the

      shooting occurred only as Sharpe was attempting to get away from the scene.”

      Appellant’s Br. p. 10 (emphasis added). Sharpe claims that he was prejudiced

      because “[i]f counsel had understood before trial that the State planned only to

      prove the shooting occurred not in the taking of the cell phone, but in effecting

      Sharpe’s escape, counsel could have mounted a different defense.” Id. at 12.1


[7]   To the extent there was a variance, Sharpe cannot show prejudice as a result of

      not being able to prepare a defense that he shot Rodas only while escaping.



      1
       Sharpe does not argue that he was left vulnerable to future prosecution under the same evidence. See Blount,
      22 N.E.3d at 569. In any event, we find that Sharpe is protected from future prosecution.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016             Page 4 of 6
      The Indiana Supreme Court addressed a similar issue in Young v. State, 725

      N.E.2d 78 (Ind. 2000). There, the defendant entered the victim’s home under

      the guise of selling food stamps. The defendant snatched the victim’s wallet

      and ran to his car, which he left running in the alley. The victim pursued the

      defendant and grabbed on to the windshield. The defendant hit the victim’s

      knuckles with a screwdriver, but the victim continued to hang on as the

      defendant drove down the alley. Eventually the friction from the pavement

      wore through the victim’s shoes, and he fell off the car. As he sped away, the

      defendant ran over the victim’s leg, fracturing his ankle. The defendant was

      convicted of Class A felony robbery.

[8]   On appeal, the defendant argued that he did not commit Class A felony

      robbery—but rather only theft—because “the force was used to accomplish his

      escape, not take the property.” Id. at 80. Our Supreme Court rejected this

      argument, reasoning:

              A crime that is continuous in its purpose and objective is deemed
              to be a single uninterrupted transaction. A robbery is not
              complete until the defendant asports the property, or takes it
              from the possession of the victim. Asportation continues as the
              perpetrators depart from the place where the property was seized.
              In short, when the robbery and the violence are so closely
              connected in point of time, place, and continuity of action, they
              constitute one continuous scheme or transaction.


[9]   Id. at 81 (quotations and citations omitted). Accordingly, the Court found that

      because the “snatching of money, exertion of force, and escape were so closely

      connected in time (to sprint from house to running car parked outside), place

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016   Page 5 of 6
       (from door to alley), and continuity (in stealing money, then attempting to

       escape with it),” “we hold [that] Young’s taking of property includes his actions

       in effecting his escape.” Id.


[10]   The same can be said here, too. That is, the attempt to take Rodas’s phone, the

       shooting, and the escape were so closely connected in time, place, and

       continuity that Sharpe’s attempt to take Rodas’s phone included his actions in

       effecting his escape. Accordingly, even if Sharpe had prepared for and made

       the defense that he only shot Rodas while escaping (as opposed to while trying

       to take Rodas’s phone), it would not have been successful according to Young.

       Finding no prejudice from any variance between the allegations in the charging

       information and the proof at trial, we affirm the trial court.

[11]   Affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016   Page 6 of 6
