MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 10 2018, 10:48 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            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
James A. Edgar                                           Curtis T. Hill, Jr.
J. Edgar Law Office, P.C.                                Attorney General of Indiana
Indianapolis, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Henry Robinson,                                          October 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-100
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Jeffrey Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1610-F3-40219



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018                 Page 1 of 13
                                       Statement of the Case

[1]   Henry Robinson (“Robinson”) appeals his conviction, following a jury trial, for

      Level 3 felony armed robbery.1 Robinson argues that: (1) the trial court

      committed fundamental error by admitting the testimony of a detective; and (2)

      there was insufficient evidence to support his conviction. Finding that the trial

      court did not commit fundamental error and that there was sufficient evidence

      to support Robinson’s conviction, we affirm his conviction.


[2]   We affirm.


                                                     Issues

                         1. Whether the trial court committed fundamental error by
                            admitting the testimony of a detective.

                         2. Whether there was sufficient evidence to support Robinson’s
                            conviction.

                                                     Facts

[3]   On October 5, 2016, Kamran Ahmed (“Ahmed”) was working at a Marathon

      gas station convenience store. Ahmed was operating the cash register and his

      co-worker, Drahamane Toure (“Toure”), was outside cleaning the parking lot.

      Robinson approached the register to purchase several items. Ahmed attempted

      to process Robinson’s credit card as payment, but the card was declined.




      1
          IND. CODE § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 2 of 13
      Ahmed swiped the card two more times, and it was declined both times. The

      cash register printed a declined receipt for each of the three swipes, and Ahmed

      showed each declined receipt to Robinson. During this time, Robinson’s credit

      card was not charged. Robinson then left the store.


[4]   Toure, Ahmed’s co-worker, observed Robinson come out of the convenience

      store and walk to a truck parked by a pump. Robinson removed a shotgun

      from the truck and reentered the store. He pointed the shotgun at Ahmed and

      said, “Give me the money. Give me my money.” (Tr. 46). Ahmed stood

      behind the counter, and Robinson grabbed a tower of lighters, boxes of cigars,

      and t-shirts from the store. Robinson also took Ahmed’s cell phone that was

      sitting beside the cash register. Neither the store merchandise nor Ahmed’s

      phone was ever recovered. A woman then entered the store and commanded

      Robinson to leave. The convenience store cameras caught the entire incident

      on surveillance video.


[5]   Detective Brent Hendricks (“Detective Hendricks”) from the Indianapolis

      Metropolitan Police Department (“IMPD”) was assigned to investigate the

      incident. During his investigation, Detective Hendricks reviewed the

      surveillance video, spoke with Toure and Ahmed, and developed Robinson as a

      suspect. Detective Hendricks also learned that Robinson leased a building and

      ran a makeshift convenience store. Detective Hendricks obtained a search

      warrant and searched Robinson’s convenience store. Among the limited items

      found at his convenience store were a box of cigars and a tower of lighters.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 3 of 13
      Both of these items matched the items taken from the Marathon convenience

      store.


[6]   On October 12, 2016, the State charged Robinson with Level 3 felony armed

      robbery. The case proceeded to a jury trial on November 29, 2017. The State

      called Ahmed, Toure, and Detective Hendricks as witnesses, and they testified

      to the facts above. On direct examination, Detective Hendricks testified about

      his position with IMPD and about his investigation. He stated that he was a

      detective sergeant in the robbery and aggravated assault division of IMPD.

      When discussing the fact that Robinson took Ahmed’s cell phone when he

      robbed the store, Detective Hendricks testified, without objection, that “a lot of

      times, a suspect, when they take a cell phone, they do that to prevent the person

      from calling the police.” (Tr. 80). The jury returned a guilty verdict.

      Thereafter, the trial court sentenced Robinson to five (5) years for the Level 3

      felony armed robbery conviction. The trial court ordered the sentence to be

      served in the Department of Correction. Robinson now appeals.


                                                  Decision

[7]   On appeal, Robinson argues that: (1) the trial court committed fundamental

      error by admitting certain testimony of Detective Hendricks; and (2) there was

      insufficient evidence to support his conviction. We will review each argument

      in turn.


      1. Admission of Evidence


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 4 of 13
[8]    Robinson argues that the trial court committed fundamental error by admitting

       certain testimony from Detective Hendricks. Specifically, Robinson challenges

       one statement made by the detective during direct examination and argues that

       his statement was an opinion as to his intent that should have been excluded

       from evidence under Indiana Evidence Rule 704(b).


[9]    Before we address Robinson’s argument, we note that our appellate rules

       require that each contention made in the argument section of an appellant’s

       brief “must contain the contentions of the appellant on the issues presented,

       supported by cogent reasoning.” Ind. Appellate Rule 46(A)(8)(a). This means

       that an appellant’s argument section “must be supported by citations to the

       authorities, statutes, and the Appendix or parts of the Record on Appeal relied

       on.” Id. (emphasis added). Robinson, however, has failed to satisfy Indiana

       Appellate Rule 46’s requirement of providing a cogent argument supported by

       citation to authority. This failure hinders our review and results in waiver of

       appellate review of this issue. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind.

       Ct. App. 2016) (waiving a defendant’s argument where he failed to provide a

       cogent argument).


[10]   Waiver notwithstanding, we disagree with Robinson’s contention that the trial

       court erred when it allowed certain testimony from Detective Hendricks.

       Generally, a trial court’s ruling on the admissibility of evidence is reviewed for

       an abuse of discretion. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009),

       trans. denied. We will reverse a trial court’s decision only if it is clearly against

       the logic and effect of the facts and circumstances of the case. Id. Even if the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 5 of 13
       decision was an abuse of discretion, we will not reverse if the admission of

       evidence constituted harmless error. Id.


[11]   Robinson acknowledges that he did not object to the testimony at trial. His

       failure to object to the testimony results in waiver of any argument regarding its

       admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure

       to object at trial waives the issue for review unless fundamental error

       occurred.”), reh’g denied. Robinson recognizes this procedural default and

       argues that the admission of the testimony constituted fundamental error.


[12]   “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)

       (internal quotation marks omitted). “Harm is not shown by the fact that the

       defendant was ultimately convicted; rather harm is found when error is so

       prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[13]   Robinson asserts, that under Indiana Evidence Rule 704, the court should not

       have allowed Detective Hendricks to testify that “a lot of times, a suspect, when


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 6 of 13
       they take a cell phone, they do that to prevent the person from calling the

       police.” (Tr. 80). Robinson argues that Detective Hendricks’ testimony was

       an impermissible opinion regarding his intent when taking Ahmed’s cell phone.

       Indiana Evidence Rule 704 provides:

           (a) In General–Not Automatically Objectionable. Testimony in the form of
               an opinion or inference otherwise admissible is not objectionable just
               because it embraces an ultimate issue.
           (b) Exception. Witnesses may not testify to opinions concerning intent,
               guilt, or innocence in a criminal case; the truth or falsity of allegations;
               whether a witness has testified truthfully; or legal conclusions.

[14]   “Indiana Evidence Rule 704(a) generally allows witness opinion testimony to

       ‘embrace’ an ultimate issue – but as a matter of constitutional right, only a jury

       may resolve an ultimate issue.” Williams v. State, 43 N.E.3d 578, 580 (Ind.

       2015). “And Evidence Rule 704(b) explicitly prohibits, in criminal cases,

       witness opinions concerning the ultimate issue of guilt. Id.


[15]   Turning to Robinson’s challenge to the admission of Detective Hendricks’

       direct examination testimony, we conclude that he has failed to meet his burden

       of showing fundamental error. On direct examination, Detective Hendricks

       testified that “[Ahmed’s] cell phone was missing. And a lot of times, a suspect,

       when they take a cell phone they do that to prevent the person from calling the

       police. So they will dump it.” (Tr. 80). We observe, as the State points out,

       that Detective Hendricks did not testify that Robinson’s intent had been to rob

       Ahmed of his cell phone to prevent him from calling the police. Rather, he

       testified generally that, based on his experience and training as a robbery and

       aggravated assault detective sergeant, it was not unusual for robbers to take a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 7 of 13
       cell phone because they want to prevent the victim from calling the police. If

       opinion testimony is general and does not conclusively tie the defendant to the

       crime, it is permissible. See Julian v. State, 811 N.E.2d 392, 400 (Ind. Ct. App.

       2004), trans. denied. Further, some witnesses may possess knowledge that does

       not reach the level sufficient to have them declared an expert witness, but their

       knowledge is beyond that of an ordinary juror. INDIANA EVID. R. 701; Kubsch

       v. State, 784 N.E.2d 905. 922 (Ind. 2003). As such, they are permitted to give

       an opinion based on their personal knowledge under Indiana Evidence Rule

       701 as a skilled witness. Id. In order for a skilled witness to give their opinion,

       it only needs to be shown that they have enough knowledge to make the

       opinion helpful to a clear understanding of the witness’s testimony or the

       determination of a fact in issue. EVID. R. 701. Because Detective Hendricks’

       testimony made no specific statements declaring Robinson’s intent, the

       testimony was not excluded under Indiana Evidence Rule 704(b) and was

       admissible under Rule 701.


[16]   Indeed, even if the trial court had erred in admitting the testimony, any “error[ ]

       in the admission of evidence [is] to be disregarded unless [it] affect[s] the

       substantial rights of a party.” Hoglund, 962 N.E.2d at 1238. “The improper

       admission [of evidence] is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court there is

       no substantial likelihood the challenged evidence contributed to the

       conviction.” Id. Additionally, “‘[a]ny error in the admission of evidence is not

       prejudicial, and [is] therefore harmless, if the same or similar evidence has been


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 8 of 13
       admitted without objection or contradiction.’” Id. (quoting McCovens v. State,

       539 N.E.2d 26, 30 (Ind. 1989)).


[17]   Here, there was substantial evidence apart from the detective’s general direct

       examination testimony that leads us to conclude that there is no substantial

       likelihood the challenged evidence contributed to the conviction. Robinson’s

       guilt is established by Ahmed’s and Toure’s eyewitness testimony presented at

       trial and the surveillance video showing him robbing the gas station at

       gunpoint. Robinson has failed to show how the admission of the detective’s

       direct examination testimony made a fair trial impossible. Thus, we conclude

       that the trial court did not commit any error, fundamental or otherwise.


       2. Insufficient Evidence


[18]   Robinson next argues that the State presented insufficient evidence to support

       his conviction for Level 3 felony armed robbery. Our standard of review for

       sufficiency of evidence claims is well-settled. We do not assess the credibility of

       the witnesses or reweigh the evidence in determining whether the evidence is

       sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

       the probative evidence and reasonable inferences supporting the verdict. Id.

       Reversal is appropriate only when no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. “When reviewing

       the sufficiency of evidence establishing the elements of a crime — including the

       intent element — we consider only the evidence supporting the verdict along




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 9 of 13
       with any reasonable inferences drawn from that evidence.” Heavrin v. State, 675

       N.E.2d 1075, 1079 (Ind. 1996), reh’g denied.


[19]   In order to convict Robinson of Level 3 felony armed robbery as charged, the

       State was required to prove beyond a reasonable doubt that “on or about

       October 5, 2016, Robinson did knowingly take property, to-wit: retail

       merchandise/tobacco products and/or a cellular telephone from another person

       or the presence of another person, to wit: Ahmed, by using force or threatening

       to use force, to wit: by brandishing and pointing a shotgun at Ahmed and

       taking said property from the presence of Ahmed while armed with a deadly

       weapon.” (App. 24). See also I.C. § 35-42-5-1(a).2 A person engages in conduct

       “knowingly” if he “is aware of a high probability that he is doing so.” I.C. § 35-

       41-2-2(b).


[20]   On appeal, Robinson’s argument that there was insufficient evidence to sustain

       his conviction has two components. First, he argues that the State failed to

       show that he intended to take property. Alternatively, he argues that “the State

       failed to show that [he] actually carried away any property from the store.”

       (Robinson’s Br. 7).


[21]   Because intent is a mental function, absent an admission by the defendant, it

       must be determined from a consideration of the defendant’s conduct and the




       2
        We note that the robbery statute was amended after the commission of Robinson’s offense. This
       amendment, however, did not change the part of the statute relevant to Robinson’s offense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018             Page 10 of 13
       natural and usual consequences thereof. Metzler v. State, 540 N.E.2d 606, 609

       (Ind. 1989). As a result, jurors “must usually resort to reasonable inferences

       based upon an examination of the surrounding circumstances to determine

       whether, from the person’s conduct and the natural consequences that might be

       expected from that conduct, a showing or inference [of] the intent to commit

       that conduct exists.” Id.


[22]   Here, the evidence presented at trial shows that Robinson’s credit card was

       declined three times. He left the store and reentered, armed with a shotgun,

       and pointed it at Ahmed. Robinson demanded that Ahmed, “Give me the

       money. Give me all my money.” (Tr. 46). Robinson then took a tower of

       lighters, boxes of cigars, t-shirts, and Ahmed’s cell phone and left the store.

       None of these items were ever recovered. The jury could reasonably infer from

       Robinson’s conduct and the natural consequences expected from that conduct

       that he intended to take property from the presence of another person.


[23]   Turning to Robinson’s second argument, he acknowledges that he “briefly

       possessed merchandise and a cell phone,” but contends that “it cannot be

       concluded that [he] carried any property away from the premises.” (Robinson’s

       Br. 11, 13). It is true that without the taking of property, “and no evidence from

       which to draw an inference that the property was taken, there can be no

       conviction for robbery.” Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000), reh’g

       denied. As our supreme court has explained, “taking” the victims property is an

       essential element of robbery, but the evidence of the “taking” need only



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 11 of 13
       establish that the property was moved a slight distance. Nelson v. State, 528

       N.E.2d 453, 455 (Ind. 1988).


               In other words, it must appear that the property was taken from
               the possession of the victim into that of the robber. But the crime
               is consummated if the robber acquires possession of the property
               for even a short time, and his subsequent disposition of the
               property taken is immaterial.

       Id. (quoting Neal v. State, 14 N.E.2d 590, 596 (Ind. 1938)).


[24]   In this case, the evidence establishes that Robinson reached behind the counter

       and took a stand of lighters, boxes of cigars, and Ahmed’s cell phone into his

       possession for the duration of the robbery. See Coleman v. State, 653 N.E.2d 481,

       482 n.1 (Ind. 1995) (a store clerk or manager is considered to be in lawful

       possession of the store’s goods for purposes of theft related crimes, such as

       robbery). While one employee described Robinson as dropping some items,

       Ahmed unequivocally testified that Robinson left the store with a stand of

       lighters, boxes of cigars, Ahmed’s cell phone, and several t-shirts. Detective

       Hendricks also testified that an identical tower of lighters and box of cigars were

       discovered in Robinson’s convenience store. Robinson’s contention that the

       State did not establish that he actually carried property away from the store

       must fail. Robinson’s sufficiency challenges to the State’s evidence are merely

       requests to reweigh the inferences made by the jury and its determination of

       witness credibility. We deny this request. See Drane, 867 N.E.2d at 146.

       Accordingly, we find that the State presented sufficient evidence, and we affirm

       that trial court’s Level 3 felony armed robbery conviction.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 12 of 13
[25]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-100 | October 10, 2018   Page 13 of 13
