                                                                            FILED
                                                                       May 31 2019, 8:35 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Peter C. Soldato                                          Curtis T. Hill, Jr.
      Goshen, Indiana                                           Attorney General

                                                                Evan Matthew Comer
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mitzy J. Romero,                                          May 31, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-39
              v.                                                Appeal from the Elkhart Circuit
                                                                Court
      State of Indiana,                                         The Honorable Michael A.
      Appellee-Plaintiff                                        Christofeno, Judge
                                                                Trial Court Cause No.
                                                                20C01-1801-F3-6



      Crone, Judge.


                                              Case Summary
[1]   Mitzy J. Romero appeals her conviction for level 3 felony robbery while armed

      with a deadly weapon. She asserts that the trial court erred in denying her

      motion for judgment on the evidence because the State failed to prove that she


      Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                            Page 1 of 9
      took property from the victim. Because robbery may be proven with evidence

      establishing that a defendant took property from another person or from the

      presence of another person, we conclude that the evidence is sufficient to

      support her conviction, and therefore we affirm.


                                  Facts and Procedural History
[2]   On October 10, 2017, seventeen-year-old C.M. saw a Facebook post authored

      by her friend Lashi Lewis, advertising that Lewis wanted to sell an iPhone for

      $180.00. C.M. commented on the post that she was interested in buying the

      phone. Lewis contacted C.M. through a private Facebook message, and the

      two agreed to meet at the Life School in Elkhart after C.M. got off work.

      During their communication, Lewis asked whether C.M. would be coming by

      herself or with another person. C.M. told Lewis that she would be alone.

      Shortly before the meeting was to take place, Lewis telephoned C.M. to change

      the meeting location to Studebaker Park in Elkhart.


[3]   When C.M. arrived at the park, she parked next to Lewis’s car. C.M. observed

      Lewis and a passenger in Lewis’s car. C.M. and Lewis exited their vehicles.

      Lewis told C.M. that she did not have the phone with her but that her boyfriend

      had it and he wanted a picture of the money. C.M. thought that was strange

      and initially declined to give Lewis the money. About five minutes passed,

      and Lewis said, “[M]y boyfriend’s not coming unless I send him a picture of the

      money.” Tr. Vol. 2 at 79. C.M. gave Lewis $180.00 in cash so that Lewis

      could take a picture of it. Lewis placed the money on the hood of her car.


      Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019           Page 2 of 9
      Lewis took out her phone to take a picture, but it seemed to C.M. that Lewis

      was just pretending to take the picture.


[4]   C.M. began to consider how she was going to get her money back from Lewis.

      Lewis grabbed the money off the car hood and Lewis’s passenger exited the

      vehicle. The passenger pointed a handgun at Lewis, and said, “[G]ive me the

      money, bro.” Id. at 80. The passenger was wearing a hoodie, and although the

      hood obscured the person’s face, C.M. recognized the voice as Romero’s.

      Romero attended the same school as C.M. and Lewis, and C.M. knew that

      Lewis and Romero were friends. By that time, C.M. realized that “something

      was gonna happen” and thought, “you guys gotta be kidding me right now.”

      Id. at 80. C.M. was “really mad” because she knew she was “about to get

      robbed.” Id. at 81. Lewis asked Romero, “[A]re you serious, bro?” Id. Lewis

      handed Romero the money, and Romero ran toward a nearby elementary

      school. Lewis told C.M. that she was going after Romero and to wait for her.

      However, C.M. thought it best to leave. As she was driving home, she phoned

      her mother and told her that she had been robbed. Id. at 83. C.M.’s mother

      called the police.


[5]   Police interviewed C.M. and Lewis. Sometime after Lewis was interviewed,

      her mother contacted C.M.’s mother and paid her $180.00, all without C.M.’s

      knowledge.


[6]   On January 8, 2018, the State charged Romero with level 3 felony robbery

      while armed with a deadly weapon, alleging that she “did knowingly take


      Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019         Page 3 of 9
      property, to wit: US currency, from another person, to wit: C.M., by using or

      threatening the use of force on any person, while [Romero] was armed with a

      deadly weapon, to wit: a gun.” Appellant’s App. Vol. 2 at 16. On May 24,

      2018, Romero filed a notice of alibi claiming that at the time the crime occurred

      she was with her boyfriend.


[7]   At trial, Lewis testified for the State about her involvement in three similar

      thefts following the incident with C.M. After the State rested, Romero’s

      boyfriend and his mother testified that Romero had been with them at their

      residence at the time C.M. was robbed. Tr. Vol. 3 at 31-34, 51-53. The

      following morning, outside the presence of the jury, Romero moved for a

      directed verdict, arguing that the State failed to introduce evidence establishing

      that Romero took money from C.M. The State moved to amend the charging

      information. After hearing argument, the trial court denied Romero’s motion

      and granted the State’s. The amended information alleges in relevant part that

      “Romero did knowingly take property, to wit: U.S. currency, from another

      person or the presence of another person, to wit: C.M.” Appellant’s App. Vol. 2 at

      49 (emphasis added); Tr. Vol. 3 at 86. Trial resumed, and Romero testified. At

      the close of all the evidence, Romero did not renew her motion for directed

      verdict. The jury found Romero guilty as charged, and the trial court sentenced

      her to eleven years. This appeal ensued.


                                      Discussion and Decision
[8]   Romero argues that the trial court erred in denying her motion for directed

      verdict, also known as a motion for judgment on the evidence. Further,
      Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019             Page 4 of 9
       Romero contends that we should consider only the evidence that had been

       presented at the time she made the motion rather than all the evidence.


[9]    Motions for judgment on the evidence are governed by Indiana Trial Rule

       50(A), which provides in relevant part:


               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


               ….


               (6) A motion for judgment on the evidence made at one stage of
               the proceedings is not a waiver of the right of the court or of any
               party to make such motion on the same or different issues or
               reasons at a later stage ..., except that error of the court in denying the
               motion shall be deemed corrected by evidence thereafter offered or
               admitted.


       (Emphasis added.)


[10]   “A motion for judgment on the evidence challenges the legal sufficiency of the

       evidence.” Farmers Elevator Co. of Oakville v. Hamilton, 926 N.E.2d 68, 75 (Ind.

       Ct. App. 2010), trans. denied.


               The standard of review for a challenge to a ruling on a motion for
               judgment on the evidence is the same as the standard governing
               the trial court in making its decision. Judgment on the evidence
               is appropriate “[w]here all or some of the issues … are not

       Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                        Page 5 of 9
               supported by sufficient evidence.” Ind. Trial Rule 50(A). A
               reviewing court looks only to the evidence and the reasonable
               inferences drawn most favorable to the non-moving party, and
               the motion should be granted only where there is no substantial
               evidence supporting an essential issue in the case. If there is
               evidence that would allow reasonable people to differ as to the
               result, judgment on the evidence is improper.


       Cavens v. Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006) (citations omitted).


[11]   In determining whether judgment on the evidence would have been proper, the

       scope of the evidence we consider on appeal is a function of how the defendant

       proceeded at trial after the motion is denied. In Farmers, this Court closely

       examined the text of Trial Rule 50, the official commentary to subsection (A),

       and Rule 50(A)’s advisory notes, and articulated the following framework for

       appellate review when a trial court denies a motion for judgment on the

       evidence:


               [I]f a defendant unsuccessfully moves for a judgment on the
               evidence at the close of the plaintiff’s case-in-chief, presents his
               own additional evidence thereafter, but renews his motion at the
               conclusion of all evidence, the motion is preserved in the
               traditional sense and is reviewed in light of only the evidence
               introduced during the plaintiff’s case-in-chief. This explains why
               it is advantageous for the defendant to renew the motion. Where
               the defendant moves for judgment on the evidence at the close of
               the plaintiff’s case-in-chief, presents his own evidence thereafter,
               but fails to renew the motion at the conclusion of all evidence,
               the motion is not completely “waived,” because renewal is not a
               requirement under Rule 50. However, the motion must be
               reviewed in light of all evidence presented during the trial,
               because any evidence offered by the defendant may cure an

       Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                 Page 6 of 9
                 otherwise erroneous denial of his motion for judgment on the
                 evidence. Appellate review of the motion essentially becomes
                 review for sufficiency of the evidence.


       926 N.E.2d at 76.1

[12]   Here, Romero introduced additional evidence after her motion was denied and

       did not renew her motion at the close of evidence, and therefore we review her

       claim in light of all the evidence presented at trial. Her sole argument is that the

       State failed to introduce any evidence that she took the money from C.M. and

       that the evidence shows that she took the money from Lewis. However,

       Romero does not challenge the trial court’s decision to grant the State’s motion

       to amend the charging information. Therefore, to convict Romero of level 3

       felony robbery, the State was required to prove beyond a reasonable doubt that

       Romero knowingly took money from or from the presence of C.M. by using or

       threatening the use of force on any person while armed with a deadly weapon.

       Appellant’s App. Vol. 2 at 49; see also Ind. Code § 35-42-5-1(a) (“[A] person




       1
           Regarding to the official commentary to Trial Rule 50(A) and the advisory notes, the Farmers court noted,
                   A motion for a directed verdict made at the conclusion of evidence submitted by one of the
                   parties was required to have been renewed at the conclusion of all the evidence under prior
                   Indiana law. Long v. Archer, 1943, 221 Ind. 186, 46 N.E.2d 818. Although this doctrine is
                   not continued by the new rule, the practice is wise because evidence admitted after a motion
                   for a directed verdict (now, judgment on the evidence) is made may correct the error of the
                   court in overruling the motion, as provided in the last sentence of this subdivision.
               1970 Civil Code Study Commission Comments, reprinted in 3 William F. Harvey, Indiana
               Practice: Rules of Procedure Annotated 459 (3d ed. 2002). Rule 50(A)’s advisory notes clarify that a
               motion for judgment on the evidence need not be renewed after presentation of all the evidence,
               but that the practice is “wise” because evidence introduced after the motion “may correct” the
               error of the court in denying it.
       926 N.E.2d at 76.

       Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                                         Page 7 of 9
       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,” which, if

       committed while armed with a deadly weapon, is a level 3 felony).

[13]   Romero argues only that the State failed to prove that she took money from

       C.M. and makes no argument that the State failed to prove that she took money

       from the presence of C.M. Therefore, any claim in this regard is waived. See

       Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“[A] party waives

       any issue raised on appeal where the party fails to develop a cogent argument or

       provide adequate citation to authority and portions of the record.”), trans.

       denied; Ind. Appellate Rule 46(A)(8) (stating that appellant’s brief must contain

       contentions on issues presented and that each contention must be supported by

       cogent reasoning and citations to authorities and statutes relied on).


[14]   Waiver notwithstanding, a challenge to the sufficiency of the evidence would

       fail. At trial, Lewis and C.M. testified that the money belonged exclusively to

       C.M. at the time of the robbery. Tr. Vol. 2 at 147, 168. The sale of the iPhone

       had not yet occurred. C.M. was in very close physical proximity to the money

       throughout the incident, and the money was out in the open the entire time. In

       fact, C.M. had just handed the money to Lewis and only for the limited purpose

       of permitting Lewis to take a picture of it. This evidence is sufficient to

       establish that Romero took money from the presence of C.M. See Highbaugh v.

       State, 773 N.E.2d 247, 251 (Ind. 2002) (finding evidence sufficient to prove that

       defendant took bag of marijuana from or from the presence of victim where

       Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                Page 8 of 9
       defendant shot and killed victim in the foyer of home victim was buying on

       contract with another person and marijuana was found in ashtray in basement

       where victim was immediately before shooting); cf. Benavides v. State, 808

       N.E.2d 708, 712-13 (Ind. Ct. App. 2004) (finding evidence insufficient to prove

       that defendant took money from or from the presence of second victim, even

       though some money came from sale of second victim’s car and his job, where

       second victim was in a different room and first victim took money from her

       purse to give to defendant), trans. denied. Accordingly, we conclude that

       Romero is not entitled to judgment on the evidence, and we affirm her

       conviction.2


[15]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       2
         Although it is not necessary to our conclusion, we note that the State presented substantial evidence that
       Lewis was Romero’s accomplice and that the sole reason Lewis had the money in her hand when Romero
       demanded it at gunpoint was because Lewis was involved in the crime.

       Court of Appeals of Indiana | Opinion 19A-CR-39 | May 31, 2019                                     Page 9 of 9
