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
                                                               FILED
                                                             Feb 17 2012, 8:54 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

SEAN P. HILGENDORF                               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

TODD A. GRAY, JR.,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 71A05-1106-CR-308
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable John M. Marnocha, Judge
                             Cause No. 71D02-1011-FB-159



                                      February 17, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                 STATEMENT OF THE CASE

        Todd A. Gray, Jr., appeals his conviction for attempted robbery, as a Class B

felony, following a jury trial. Gray raises a single issue for our review, namely, whether

the State presented sufficient evidence to support his conviction. We affirm.

                          FACTS AND PROCEDURAL HISTORY1

        On November 19, 2010, Keenan Anderson2 told several people that he was going

to “hit me a lick today,” which meant that he was going to rob someone. Transcript at

329-30. Later that day, Gray drove Anderson and another of Anderson’s friends, Lee

Lewis, in Gray’s green minivan to the Anchor Inn, a restaurant in South Bend. There,

Gray parked the van in a corner of the parking lot. The three men waited for about

twenty minutes for someone to exit so that Lewis could “get some money.” Id. at 343.

        Jerry Burrow then exited the restaurant. As he began to get into his car, he heard

someone behind him ask for a cigarette. He turned around and saw Anderson and Lewis,

one of whom was pointing a gun at his face. Burrow said, “Get that BB gun out of my

face” and deflected the firearm away. Id. at 155. Burrow then realized that the gun “was

not a BB gun.” Id. at 170. Either Anderson or Lewis then tried to hit Burrow in the head

with the gun, but Burrow deflected the attack. Anderson and Lewis then retreated to

Gray’s van, and Burrow ran back inside the restaurant and called the police.

        Shortly thereafter, South Bend Police Department Officer Neil Graber identified

Gray’s van as the one described by Burrow in his call. Officer Graber initiated a traffic

        1
          Gray’s statement of facts in his appellate brief is not consistent with our standard of review.
See Ind. Appellate Rule 46(A)(6)(b). As such, we do not consider it.
        2
          Anderson’s first name is alternatively spelled “Kennan” and “Keenan” in the record. Transcript
at 150, 327.
                                                   2
stop. Officer Graber arrested Gray, Anderson, and Lewis. He then backtracked into an

alley where he had seen the van exit to “see if we could locate anything that they might

have been able to toss while they were out of my vision.” Id. at 209. There, Officer

Graber found “a semi-auto black handgun that was also the same description of what was

described” by Burrow. Id. at 210.

       On November 20, the State charged Gray with attempted robbery, as a Class B

felony. After a trial in May of 2011, a jury found Gray guilty as charged. This appeal

ensued.

                            DISCUSSION AND DECISION

       Gray contends that the State failed to present sufficient evidence to support his

conviction. When reviewing a claim of sufficiency of the evidence, we do not reweigh

the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132,

1139 (Ind. 2003). We look only to the probative evidence supporting the verdict and the

reasonable inferences that may be drawn from that evidence to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable

doubt. Id. If there is substantial evidence of probative value to support the conviction, it

will not be set aside.

       To prove attempted robbery, as a Class B felony, the State was required to show

beyond a reasonable doubt that Gray, or his accomplice, took a substantial step toward

the knowing or intentional taking of property from another person by using or threatening

to use force on that person. Ind. Code §§ 35-41-2-4 (accomplice liability); 35-41-5-1(a)




                                             3
(attempt); 35-42-5-1 (robbery). The offense is a Class B felony if committed while

armed with a deadly weapon. I.C. § 35-42-5-1.

       On appeal, Gray first argues that the State failed to prove that Anderson or Lewis

had the requisite intent to rob Burrow. Gray’s argument on this issue wholly ignores the

State’s evidence that Anderson had stated to several people earlier on the day in question

that he intended to rob someone later that day. As such, Gray’s argument here must fail.

       Gray next asserts that the State failed to show that a firearm, rather than a BB gun,

was used in the commission of the offense. Again, Gray ignores the evidence. Burrow

testified that he recognized the firearm as a gun, not a BB gun, and Officer Graber

testified that he found a firearm matching Burrow’s description in an alley where he had

witnessed Gray exit in his van. Thus, the State presented sufficient evidence that the

crime was committed with a deadly weapon.

       Last, Gray contends that he did not knowingly aid his confederates in the

commission of the attempted crime. Gray ignores the fact that he, Anderson, and Lewis

lay in wait at the Anchor Inn parking lot for twenty minutes until someone exited so that

Lewis could “get some money.” Transcript at 343. Gray likewise ignores the State’s

evidence that Officer Graber observed Gray drive the get-away vehicle out of the alley in

which the firearm was found. Gray’s arguments on appeal amount to a request for this

court either to ignore or discredit the evidence most favorable to the State, which we will

not do. The State presented sufficient evidence to support Gray’s conviction.

       Affirmed.

ROBB, C.J., and VAIDIK, J., concur.


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