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                             May 17 2013, 8:03 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

PHILIP R. SKODINSKI                                 GREGORY F. ZOELLER
South Bend, Indiana                                 Attorney General of Indiana

                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

RODNEY D. MOSBY,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )     No. 71A04-1209-CR-469
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable John M. Marnocha, Judge
                               Cause No. 71D01-1205-FB-58


                                           May 17, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
        Devante Williams was robbed at gunpoint by Terrell Howard of almost $400.00 while

Appellant-Defendant Rodney Mosby sat on a couch nearby. Mosby advised Williams to give

Howard everything lest he make the situation worse or get himself hurt. After Howard

pistol-whipped Williams, Williams dropped all of his cash on the ground and left. Howard

and Mosby left together and attempted to flee when they were spotted by police. When the

duo was apprehended, Howard was in possession of $378.00, and Mosby, $100.00. Mosby

was convicted of Class B felony robbery and Class A misdemeanor resisting law

enforcement. Mosby contends that the State produced insufficient evidence to sustain his

robbery conviction, the trial court abused its discretion in refusing to admit certain testimony,

and the trial court committed fundamental error by mentioning the Aurora, Colorado

shootings1 during voir dire. Because we find no legal error, we affirm.

                          FACTS AND PROCEDURAL HISTORY

        On the morning of May 1, 2012, Williams withdrew $400 from an ATM, stopped at a

7-11 for cigarettes and a drink, and went to a friend’s South Bend house. Orlando, another

friend of Williams’s, was supposed to be going to court that day, and Williams planned to

meet him at the house and give him money to help make bail. When Williams arrived, he

found only Mosby and Howard, both in the downstairs living room. Howard told Williams

that Orlando had already gone to court, and Williams left. As Williams walked away from

the house, Howard yelled at him to return, saying that Orlando was on the telephone.


        1
         On July 20, 2012, twelve persons were killed and fifty-eight wounded when a gunman opened fire in
an Aurora, Colorado movie theater.


                                                    2
       Williams returned to find Howard on the stairs and Mosby lying on a couch. Howard

handed Williams the telephone, walked past him, slammed the door shut, put a handgun to

Williams’s head, and demanded that he “come off everything[,]” which Williams understood

as a demand that he hand over anything of value. Howard handed the telephone to Mosby,

saying, “Hey, Bro, come on, take the phone.” Tr. p. 177. Mosby said, “Just give him

everything, so you won’t make it a worser [sic] situation or get yourself hurt.” Tr. p. 180

([sic] in transcript). When Williams did not initially comply with Howard’s demands,

Howard struck him on the head with the grip of the handgun. Williams threw all of his cash

on the ground, and Howard ordered him to leave.

       A neighbor saw three men on the porch, and heard one of them say, “You hit me in the

head, and now you took my money.” Tr. p. 209. Williams called police and said that he had

been robbed by two men. As Mosby and Howard walked away from the house, the neighbor

overheard one say to the other, “Oh, he ain’t going to do nothing.” Tr. p. 215. South Bend

Police Officer James Dennin soon arrived and observed Mosby and Howard walking in an

alley. When Officer Dennin identified himself as a police officer and yelled at the duo to

stop, they turned, looked, and ran off down the alley. When Mosby and Howard were

apprehended soon thereafter, Mosby had $100.00 on his person and Howard had $278.00.

       On May 2, 2012, the State charged Mosby with Class B felony robbery with a deadly

weapon, Class B felony robbery causing bodily injury, and Class A misdemeanor resisting

law enforcement. Mosby’s trial began on July 31, 2012. During voir dire, the trial court said

the following to the prospective jurors:


                                             3
               THE COURT: In Counts I and II, let me explain a little bit about the
       law. And I think it’s kind of a topic at this point, because I got a lot of
       questions from people yesterday concerning the murders in Aurora, Colorado.
       You will recall if you’ve been watching the news, there were twelve people
       that were killed in that situation.
               But the authorities, the State in Colorado, charged twenty-four counts of
       murder, one [sic] for each victim in the case.
               And here you have a situation where there is alleged one robbery and
       one victim, but there are two counts that are charged.
               I can tell you that the State is entitled to charge alternate theories of
       criminal liability. And in this case, Count I, is Robbery, as a B Felony,
       because it’s alleged that there was a firearm that was used. Then Count II, is
       Robbery, as a Class B Felony, because it is alleged that bodily injury resulted.
               And so the State is allowed to do that, and juries are allowed to decide
       whether the State has proved each of those cases.
               So in situations like this or in any other case where there are alternative
       theories, those alternative theories are allowed to go to the jury. And the jury
       could find the person guilty on both counts or not guilty on both counts, or
       guilty on one and not guilty on the other.
               But whether judgments of convictions could be entered on both counts,
       let’s say you find a person guilty on both counts, that’s something that I deal
       with as a matter of law. Because a person cannot be twice convicted of the
       same crime.
               But’s that’s not a jury issue, that’s a judge issue.
               Does everyone understand that?
               (Whereupon, all the veniremen indicate affirmatively.)

Tr. pp. 21-22 ([sic] in transcript).

       During trial, Howard testified on Mosby’s behalf. Howard testified that no robbery

had taken place but that Williams had come to the house looking for drugs, which led to a

scuffle when Howard refused to provide any. Mosby testified that he had been awakened by

Howard yelling at Williams, “You have to go, Bro, you have to go.” Tr. p. 352. When

Mosby attempted to testify that Williams had replied, “That’s f***ed up[,]” the trial court

sustained the State’s hearsay objection. Tr. p. 352. The jury found Mosby guilty as charged,



                                               4
and the trial court entered judgment of conviction on counts I and III and sentenced Mosby to

an aggregate sentence of fifteen years of incarceration.

                                       DISCUSSION

                  I. Whether the State Produced Sufficient Evidence
                      to Sustain Mosby’s Burglary Conviction

       When reviewing the sufficiency of the evidence to support a conviction, we consider

only the probative evidence and reasonable inferences supporting the verdict. Drane v. State,

867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess witness credibility and

weigh the evidence to determine whether it is sufficient to support a conviction. Id. We

consider conflicting evidence in the light most favorable to the trial court’s ruling. Id. We

affirm the conviction unless no reasonable fact-finder could find that the elements of the

crime were proven beyond a reasonable doubt. Id.

       Mosby contends only that the State produced insufficient evidence to establish that he

and Howard worked in concert to rob Williams. In order to convict Mosby as charged, the

State was required to show that he “knowingly or intentionally aid[ed], induce[d], or

cause[d]” Howard to “take[] property from [Williams] by using or threatening the use of

force on any person … or … by putting any person in fear … while armed with a deadly

weapon[.]” Ind. Code §§ 35-42-5-1; 35-41-2-4.

       Factors considered by the fact-finder to determine whether a defendant aided
       another in the commission of a crime include: (1) presence at the scene of the
       crime; (2) companionship with another engaged in a crime; (3) failure to
       oppose the commission of the crime; and (4) the course of conduct before,
       during, and after the occurrence of the crime.

Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000).

                                              5
       We conclude that the State produced sufficient evidence to sustain Mosby’s robbery

conviction, as there is ample evidence that he and Howard were working together. Mosby

was at the scene and did not oppose the robbery. The evidence most favorable to Mosby’s

conviction also establishes companionship and behavior consistent with working with

Howard. After Howard put his handgun to Williams’s head, Mosby took the telephone from

Howard, who referred to Mosby as “Bro.” Tr. p. 177. Mosby then advised Williams to give

Howard everything so that he would not make the situation worse or get himself hurt. This

statement can be interpreted as indicating a knowledge of Howard’s intentions, further

evidence of the two working together. After the robbery, Howard and Mosby walked from

the house together, and one said to the other, “Oh, he ain’t going to do nothing.” Tr. p. 215.

When apprehended, Howard had $278.00 on his person and Mosby had $100.00, suggesting

that they split the almost $400.00 stolen from Williams. Finally, when spotted by police and

told to stop, both Mosby and Howard attempted to flee, which can be circumstantial evidence

of a guilty conscience. See, e.g., Abercrombie v. State, 478 N.E.2d 1236, 1240 (Ind. 1985).

Mosby’s argument in this regard amounts to an invitation to reweigh the evidence, which we

will not do.

                        II. Whether the Trial Court Abused its
                     Discretion in Not Admitting Certain Evidence

       The admissibility of evidence is within the sound discretion of the trial court. Curley

v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans denied. We will reverse a trial court’s

decision on the admissibility of evidence only upon a showing of an abuse of that discretion.

Id. An abuse of discretion may occur if the trial court’s decision is clearly against the logic

                                              6
and effect of the facts and circumstances before the court, or if the court has misinterpreted

the law. Id. The Court of Appeals may affirm the trial court’s ruling if it is sustainable on

any legal basis in the record, even though it was not the reason enunciated by the trial court.

Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh

the evidence, and consider the evidence most favorable to the trial court’s ruling. Hirsey v.

State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.

       Howard testified that a scuffle ensued when Williams came to the house looking for

drugs and Howard refused to provide any. Mosby argues that the trial court abused its

discretion in refusing to admit his testimony regarding Williams’s response to Howard’s

request that he leave following their scuffle, which was, “That’s f***ed up.” Tr. p. 352.

Mosby contends that this evidence corroborates Howard’s version of events. We conclude

that even if the trial court abused its discretion in refusing to admit testimony regarding the

out-of-court statement, any such abuse was harmless. “Errors in the admission of evidence

are to be disregarded as harmless unless they affect the substantial rights of the defendant.”

Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). Even if we assume that Williams’s

statement tends to support Howard’s version of events, the jury clearly did not believe

Howard, and there is no reason to conclude that this—at best—cumulative evidence would

have swayed it. Any abuse of discretion the trial court may have committed can only be

considered harmless.

                    III. Whether the Trial Court’s Remarks During
                       Voir Dire Amounted to Fundamental Error



                                              7
       Mosby contends that the trial court’s voir dire reference to the shootings in Aurora,

Colorado, to which he did not object, nonetheless constituted fundamental error.

              A claim that has been waived by a defendant’s failure to raise a
       contemporaneous objection can be reviewed on appeal if the reviewing court
       determines that a fundamental error occurred. See, e.g., Trice v. State, 766
       N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904 N.E.2d 684, 694 (Ind.
       Ct. App. 2009). The fundamental error exception is “extremely narrow, and
       applies only when the error constitutes a blatant violation of basic principles,
       the harm or potential for harm is substantial, and the resulting error denies the
       defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587
       (Ind. 2006). The error claimed must either “make a fair trial impossible” or
       constitute “clearly blatant violations of basic and elementary principles of due
       process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). This exception is
       available only in “egregious circumstances.” Brown v. State, 799 N.E.2d
       1064, 1068 (Ind. 2003).

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

       Mosby has failed to establish that the trial court’s statements amounted to fundamental

error. The trial court merely used a familiar news story to illustrate the non-controversial

legal concept of charging in the alternative. The trial court did not in any way compare

Mosby’s alleged actions to those committed in Aurora or compare him to James Holmes, the

alleged perpetrator in that case. We fail to see, and Mosby does not explain, how such

statements could possibly have rendered a fair trial impossible. The trial court’s voir dire

statements did not constitute fundamental error.

       The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.




                                              8
