MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Feb 15 2018, 9:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Heather Dean-Barton                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert D. Coleman,                                       February 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         11A01-1705-CR-934
        v.                                               Appeal from the Clay Superior
                                                         Court
State of Indiana,                                        The Honorable J. Blaine Akers,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         11D01-1605-F3-337



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018        Page 1 of 13
                                             Case Summary
[1]   Robert D. Coleman was convicted of level 3 felony conspiracy to commit

      armed robbery, level 4 felony unlawful possession of a firearm by a serious

      violent felon (“SVF”), class A misdemeanor carrying a handgun without a

      license, and class A misdemeanor false identity statement. He now appeals,

      challenging the trial court’s admission of certain exhibits during his jury trial as

      well as the appropriateness of his aggregate twenty-five-year sentence. Finding

      no reversible error in the admission of the challenged exhibits and concluding

      that Coleman has failed to meet his burden of establishing that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   In 2016, several Indianapolis-area Kroger stores (“Kroger”) were victims of

      pharmacy robberies perpetrated by a pair of African-American males who

      typically wore hats and cased the pharmacy area of each store before

      approaching the counter and demanding controlled substances. In May 2016,

      Kroger notified the management of its stores in Indianapolis and surrounding

      counties concerning the robberies and reminded employees about the pharmacy

      robbery protocols.


[3]   On the afternoon of May 13, 2016, Brandi Schutter, a certified pharmacy

      technician at Kroger’s Brazil, Indiana store, observed two African-American

      males lingering near the pharmacy area. Both were wearing hats, and one of

      them, later identified as Coleman, was peering around the end of an aisle


      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 2 of 13
      toward the pharmacy. Finding the men’s behavior to be suspicious, Schutter

      notified her supervisor, and the two implemented pharmacy robbery protocols.

      Per the protocols, a group of Kroger employees congregated by the pharmacy

      area, and another employee called 911 to report a robbery in progress.

      Immediately thereafter, Coleman and his companion, Stacey Griffin, left the

      store without making a purchase.


[4]   Within minutes, Clay County Sheriff’s deputies arrived and apprehended the

      two suspects in the parking lot. When asked his identity, Coleman provided a

      false name. An eyewitness reported that she had seen a man fitting Coleman’s

      description remove a handgun from his clothing and throw it in a trash can on

      the sidewalk outside the tanning salon by Kroger. Deputies recovered the

      handgun from the trash can and found it to contain a full magazine and a round

      in the chamber. The deputies conducted patdowns before transporting

      Coleman and Griffin. During the patdown of Griffin, a piece of paper fell from

      his pocket onto the pavement. The paper appeared to be a robbery demand

      note.


[5]   The State charged Coleman with level 3 felony attempted armed robbery, level

      3 felony conspiracy to commit armed robbery, level 4 felony unlawful

      possession of a firearm by an SVF, class A misdemeanor carrying a handgun

      without a license, and class A misdemeanor false identity statement. Coleman

      waived jury trial on the SVF count, and a jury convicted him as charged on the

      remaining counts. The trial court subsequently convicted him on the SVF



      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 3 of 13
      count. Per the State’s request, the trial court did not enter judgment on the level

      3 felony attempt count due to double jeopardy concerns.


[6]   The trial court sentenced Coleman to an aggregate twenty-five-year term, with

      sixteen years for the conspiracy count, a consecutive nine-year term for the SVF

      count, and concurrent one-year terms for his two class A misdemeanor

      convictions. Coleman now appeals. Additional facts will be provided as

      necessary.


                                     Discussion and Decision

        Section 1 – The trial court did not commit reversible error in
                admitting the challenged surveillance video.
[7]   Coleman first challenges the trial court’s admission of State’s Exhibit 12,

      surveillance video footage from the nearby Sun Factory Tanning salon. We

      review evidentiary rulings for an abuse of discretion resulting in prejudicial

      error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of discretion

      occurs when the trial court’s ruling is either clearly against the logic and effect

      of the facts and circumstances before it or the court misinterprets the law. Id.

      In determining whether improperly admitted evidence has prejudiced the

      defendant, we assess the probable impact of that evidence on the jury in light of

      all the other properly admitted evidence. Id. If independent, properly admitted

      evidence of guilt supports the conviction, the error is harmless. Id.


[8]   In challenging the admission of the Sun Factory surveillance video, Coleman

      claims that the State failed to properly lay a foundation to authenticate the

      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 4 of 13
      video. The surveillance video showed Coleman discarding a handgun into a

      trash can on the Kroger plaza sidewalk. Eyewitness Megan Miller testified that

      while she was inside a nail salon nearby, she observed through the window as a

      man fitting Coleman’s description removed a handgun from his clothing and

      threw it in a trash can outside the tanning salon by Kroger. Police recovered a

      loaded handgun from the trash can. Coleman did not object to Miller’s

      testimony during trial, nor does he challenge it on appeal. Because the video is

      cumulative of Miller’s eyewitness testimony, any error in its admission would

      be harmless. See Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (“The

      improper admission of evidence is harmless error when the erroneously

      admitted evidence is merely cumulative of other evidence before the trier of

      fact.”), trans denied. As such, we need not address the merits of Coleman’s

      argument concerning the video.


            Section 2 – The trial court acted within its discretion in
                      admitting the robbery demand note.
[9]   Coleman also challenges the admission of State’s Exhibit 15, a robbery demand

      note recovered during a patdown search of Griffin in the Kroger parking lot.

      Particularly, he asserts that the note is inadmissible on hearsay grounds under

      Indiana Evidence Rule 802. See Harrison v. State, 32 N.E.3d 240, 254 (Ind. Ct.

      App. 2015) (hearsay is generally inadmissible), trans. denied. Hearsay is an out-

      of-court statement offered to prove the truth of the matter asserted. Ind.

      Evidence Rule 801(c). However, a statement is not hearsay if it “was made by




      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 5 of 13
       the party’s coconspirator during and in furtherance of the conspiracy.” Ind.

       Evidence Rule 801(d)(2)(E).


               For a statement to be admissible under Rule 801(d)(2)(E), the
               State must prove that there is “independent evidence” of the
               conspiracy. This means that the State must show, by a
               preponderance of the evidence, (1) the existence of a conspiracy
               between the declarant and the party against whom the statement
               is offered and (2) that the statement was made in the course and
               in furtherance of the conspiracy.


       Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App. 2007) (citation omitted); see

       also Ind. Code § 35-41-5-2(a), -(b) (person conspires when, with intent to

       commit a felony, person agrees with another person to commit the felony, and

       one of the persons performs overt act in furtherance of agreement).


[10]   “A statement is in furtherance of a conspiracy when the statement is ‘designed

       to promote or facilitate achievement of the goals of the ongoing conspiracy.’”

       Roush, 875 N.E.2d at 809 (quoting Leslie v. State, 670 N.E.2d 898, 901 (Ind. Ct.

       App. 1996), trans. denied (1997)). Independent proof of a conspiracy “may be

       either direct or circumstantial and need not be strong.” Hightower v. State, 866

       N.E.2d 356, 365 (Ind. Ct. App. 2007), trans. denied.


[11]   Here, the challenged evidence is a handwritten note that fell from Griffin’s

       pocket during a patdown search outside Kroger. The note reads, “This is a

       robbery. Corporate (sic) or I will kill you. I need Tussinex[,] Percocet 10 mg[,]

       Roxicodonie (sic) 10 mg 30 mg.” State’s Ex. 15. This written statement would

       certainly facilitate the achievement of the goal of a conspiracy to commit armed

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 6 of 13
       robbery of a pharmacy. To the extent that Coleman points to the note’s

       phrasing in singular, not plural, first person, we note that this matter affects the

       weight rather than the admissibility of the evidence, as admissibility depends

       upon a showing of sufficient independent evidence of a conspiracy.


[12]   As for the independent evidence supporting a conspiracy between Coleman and

       Griffin, surveillance video from Dollar General captured them, wearing

       seemingly identical hats, walking from Dollar General (at the opposite end of

       the strip center) toward Kroger. State’s Ex. 22. Both the Dollar General video

       and the Kroger video showed the two always walking with one about ten to

       fifteen feet ahead of the other. Id.; State’s Ex. 1. They approached and entered

       Kroger one right after the other. Once inside, they walked toward the

       pharmacy area together and remained in the pharmacy area long enough to

       cause concern to pharmacy technician Schutter. See Tr. Vol. 2 at 146

       (Schutter’s testimony that Coleman and Griffin were right beside each other

       when she saw them and appeared to be together). The pharmacy area video

       and photographic evidence captured Coleman peering around an end aisle

       toward the pharmacy, a fact which Schutter had noticed and described as

       suspicious. State’s Exs. 1, 2. When Schutter initiated the pharmacy robbery

       protocols and several Kroger employees congregated by the pharmacy, the two

       men left the store, one after the other, without making a purchase and with

       Coleman discarding a handgun in a trash can outside.


[13]   Simply put, the out-of-court statement was a handwritten note demanding

       controlled substances under a threat of death. It was found in Griffin’s

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 7 of 13
       possession immediately after he and Coleman, armed with a loaded handgun,

       had cased the Kroger pharmacy together. Sufficient independent evidence of a

       conspiracy supported the admission of the note. The trial court therefore acted

       within its discretion in admitting it under Indiana Evidence Rule 801(d)(2)(E).


           Section 3 – Coleman has failed to demonstrate that his
        sentence is inappropriate in light of the nature of the offenses
                              and his character.
[14]   Coleman asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

       principal role is to leaven the outliers, focusing on the length of the aggregate

       sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

       2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

       consideration of all aspects of the penal consequences imposed by the trial court

       in sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,


       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 8 of 13
       the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581

       (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied

       (2014)). The defendant bears the burden of persuading this Court that his

       sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d

       1174, 1181 (Ind. 2016).


[15]   In considering the nature of Coleman’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Green v.

       State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[16]   Coleman was convicted of one level 3 felony, one level 4 felony, and two class

       A misdemeanors and was sentenced to twenty-five years. The sentencing range

       for a level 3 felony is three to sixteen years, with a nine-year advisory term.

       Ind. Code § 35-50-2-5. A level 4 felony carries a sentencing range of two to

       twelve years, with a six-year advisory term. Ind. Code § 35-50-2-5.5. Because

       his level 4 felony was a crime of violence, the trial court had the discretion to

       impose it consecutive to his level 3 felony without being subject to the twenty-

       year aggregate limit. Ind. Code § 35-50-1-2(a)(18), -(d)(4). A class A

       misdemeanor carries a sentence of not more than one year. Ind. Code § 35-50-

       3-2.

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-CR-934| February 15, 2018   Page 9 of 13
[17]   At first glance, Coleman’s offenses do not appear particularly heinous in nature,

       yet he received the maximum term for conspiracy to commit armed robbery.

       As he correctly observes, no one was physically harmed by his actions that day.

       However, the trial court explained the nature of Coleman’s offenses not only in

       terms of what did happen but also with respect to what could have happened

       but for the actions of astute members of the Kroger pharmacy staff:


               I am firmly convinced the jury got it right. More importantly, I
               am convinced that [the] people of Kroger got it right. The people
               of Kroger prevented a tragedy. There was going to be most
               likely, an armed robbery actually committed, and but not for, the
               training they had received and the email they had received and
               the actions that they took, they prevented something that was far
               worse than what did actually happen. To say that you are totally
               innocent and that nothing happened, the evidence does not
               support that Robert.


       Tr. Vol. 3 at 119.


[18]   We agree with the trial court’s observations. Coleman admitted that he was

       under the influence of Percocet when he came to Kroger with a full magazine in

       his handgun and a round in the chamber. Griffin’s note indicated the duo’s

       intent to kill pharmacy employees if they did not cooperate in giving them the

       drugs they demanded. It was the employees’ implementation of pharmacy

       robbery protocols, not any repudiation by Coleman and Griffin, that prevented

       a potential blood bath. These employees had been warned of a rash of such

       robberies at Indianapolis stores and prevented their small-town Kroger from

       suffering the same fate. In this vein, we note Coleman’s statements during

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       sentencing to the effect that he was from Indianapolis where circumstances are

       different. To the extent that he appeared to downplay his crimes and criminal

       background due to their being more commonplace in a large metropolitan area,

       we do not find this persuasive. The fact is, he chose to go to the small town of

       Brazil, locked and loaded, to perpetrate an armed robbery.


[19]   Moreover, nine years of Coleman’s twenty-five-year sentence are attributable

       to his status as an SVF and the consecutive sentencing stemming from its

       categorization of as a “crime of violence.” Ind. Code § 35-50-1-2(a)(18). The

       trial court elevated his term above the six-year advisory but split the difference

       between the advisory and the twelve-year maximum.


[20]   Similarly, Coleman’s character does not militate toward a shorter sentence. We

       conduct our review of his character by engaging in a broad consideration of his

       qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other

       grounds on reh’g, 11 N.E.3d 571. During sentencing, the trial court found as

       aggravators Coleman’s criminal history and that he was on parole at the time

       he committed the current offenses. The presentence investigation report shows

       a criminal history that is both long and confusing, with some of his juvenile

       dispositions listed as “unknown.” Appellant’s App. Vol. 3 at 9. From what we

       can glean, Coleman’s criminal conduct began at age fourteen when he

       committed offenses resulting in four true findings for intimidation (three of

       which would have been felonies if committed by an adult). At age fifteen, he

       had two true findings for battery, one of which would have been a felony, and

       one true finding for misdemeanor conversion. As a sixteen-year-old, he had a

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       true finding for felony residential entry, and the next year, he had true findings

       for misdemeanor pointing a firearm and criminal recklessness. By the time he

       turned eighteen, he had been charged with class B felony robbery and remanded

       to the Marion County Jail. He was convicted in adult court of class B felony

       robbery and class A misdemeanor carrying a handgun without a license. At age

       twenty-four, he was an SVF.


[21]   Criminal record notwithstanding, Coleman asked the trial court to suspend part

       of his sentence due to hardship on his family. While we do not discount the

       negative impact of Coleman’s incarceration on his son and other unrelated

       dependents, we note that incarceration almost always poses a degree of

       hardship on dependents. Hunter, 72 N.E.3d at 936. As such, the record must

       show special circumstances demonstrating that the hardship to the defendant’s

       dependents will be undue or unusual. Id. at 935-36. The record here simply

       does not indicate such circumstances. Instead, the record indicates that despite

       being a parent since age fifteen, Coleman has not adjusted his criminal lifestyle

       to avoid hardship on his son. Even when he was given leniency in sentencing,

       he did not respond positively. He violated his parole, as noted by the trial

       court, and has a record peppered with violations of community corrections,

       home detention, and work release.


[22]   Moreover, Coleman’s use of illegal drugs does not bode well when considering

       his character. He is a regular marijuana user and was under the influence of

       Percocet when he entered Kroger with the intent of acquiring more of the same

       – at gunpoint. During sentencing, he and his family attributed his drug use and

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       criminal behavior to his brother’s death in 2008. While we find this

       circumstance sad, we do not find it excusable. In sum, Coleman has failed to

       demonstrate that his sentence is inappropriate in light of the nature of his

       offenses and his character. Accordingly, we affirm.


[23]   Affirmed.


       Robb, J., and Bradford, J., concur.




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