Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                              FILED
any court except for the purpose of                              Aug 27 2012, 9:15 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:

DONALD E.C. LEICHT                                         GREGORY F. ZOELLER
Kokomo, Indiana                                            Attorney General of Indiana

                                                           ANGELA N. SANCHEZ
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ARBIE CLAY, JR.,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 34A02-1202-CR-156
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE HOWARD CIRCUIT COURT
                            The Honorable Lynn Murray, Judge
                              Cause No. 34C01-1108-FB-139


                                         August 27, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

          Arbie Clay, Jr. (“Clay”) appeals his conviction in the Howard Circuit Court for

Robbery, as a Class C felony.1 We affirm.

                                             Issues

          Clay presents two issues for our review, which we restate as:

            I.    Whether there was sufficient evidence to support the conviction; and

           II.    Whether the State committed prosecutorial misconduct, thus depriving
                  Clay of a fair trial.

                                 Facts and Procedural History

          On August 16, 2011, at around 7:20 p.m., an individual who would later be identified

as Clay entered a Low Bob’s Tobacco Store (“the store”) while the on-duty clerk, Tracy

Sturgell (“Sturgell”), was in the store’s office changing out store surveillance video tapes.

Sturgell saw Clay enter the store on a video monitor and, thinking Clay was a customer, left

the back room to work the storefront.

          When Sturgell emerged from the office to the area behind the store counter and cash

register, she was not able to see Clay. She quickly felt something sharp pressed against her

left lower back, and from behind Clay told her to open the cash register, yelling instructions

not to look at him and to hurry up. Sturgell had difficulty opening the register because she

was nervous, and she again felt a sharp object pressed against her back.

          Sturgell eventually was able to open the register. Once she did, Clay emptied the

register of its bills and dropped the register’s cash drawer on the floor of the store. While

1
    Ind. Code § 35-42-5-1(1).

                                                2
Clay was emptying the cash register, Sturgell turned sideways to get out of the way of the

register drawer and saw Clay’s face. As Clay left, Sturgell attempted to see where he went;

she then returned inside the store, called 9-1-1, and locked the store to wait for police to

arrive.

          Among the officers who responded to the 9-1-1 call was Kokomo Police Department

Detective Chad Rodgers (“Detective Rodgers”). After paramedics treated a minor wound

Sturgell had received from the sharp object Clay used in the robbery, Detective Rodgers and

Sturgell traveled to the police station and Sturgell gave a statement concerning the night’s

events. Sturgell described the robber as a black male, aged between fifty and sixty years,

with no facial hair and bad teeth. Based upon this description, Detective Rodgers composed

a photographic array for Sturgell to view, and Sturgell identified Clay as the robber from the

array.

          Based upon Sturgell’s identification of Clay, Detective Rodgers provided photographs

to the midnight shift of Kokomo police officers. One of these officers, Ty Solomon (“Officer

Solomon”), observed an individual matching Clay’s description riding a bicycle at around

11:30 p.m. that night. Officer Solomon stopped Clay and asked for his name and birthdate.

Clay did not identify himself by his proper name and answered with enough hesitation to

prompt Officer Solomon to contact Detective Rodgers, who came to the scene. Upon

arriving, Detective Rodgers exited his car and addressed Clay by name; Clay briefly nodded

his head and slumped his shoulders, and was arrested.

          On August 22, 2011, Clay was charged with two counts of Armed Robbery, each as


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Class B felonies. A jury trial was conducted on January 10 and 11, 2012. At its conclusion,

the jury found Clay not guilty as to one count of Robbery, and guilty as to the second count

of Robbery, as a Class C felony. On February 8, 2012, the trial court entered judgment of

conviction and sentenced Clay to eight years imprisonment.

       This appeal followed.

                                  Discussion and Decision

                                Sufficiency of the Evidence

       Clay challenges his conviction, arguing first that the State failed to produce sufficient

evidence of his guilt.

       Our standard of review for challenges to the sufficiency of the evidence is well settled.

We consider only the probative evidence and reasonable inferences supporting the verdict.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of

witnesses or reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting

Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v.

State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       Here, Clay was convicted of Robbery, as a Class C felony. To obtain a conviction, the

State was required to prove beyond a reasonable doubt that Clay knowingly or intentionally

took property from another person or from the presence of another person by using or

threatening the use of force. I.C. § 35-42-5-1(1).


                                               4
       On appeal, Clay argues that the State failed to produce sufficient evidence of his

identity as the perpetrator of the armed robbery on August 16, 2011. In making this

argument, Clay draws our attention to differing accounts of his physical characteristics, and

compares these accounts to each other and to a photograph taken of him at the time of his

arrest. Yet at trial, Sturgell identified Clay as the individual who robbed the store. This

testimony corroborated her identification of Clay from a photographic array composed by

Detective Rodgers the evening of the robbery. Sturgell also clarified her description of Clay

as having “bad teeth,” testifying that she meant “that something stood out that I noticed,

maybe they were shifted or not bad as in rotting that’s not--, what I’m talking about

something different” (Tr. at 183), and “[w]hen I say bad teeth it’s something that made it

stand out to me.” (Tr. at 184.)

       Thus, to the extent Clay contends that he was misidentified based upon Sturgell’s

description of his teeth or facial hair, we decline his invitation to reweigh the evidence

supporting the verdict. See Drane, 867 N.E.2d at 146. We therefore conclude there was

sufficient evidence to support Clay’s conviction of Robbery, as a Class C felony.

                                  Prosecutorial Misconduct

       Clay raises a second issue challenging his conviction, namely, that the State engaged

in prosecutorial misconduct during closing argument, and that he is therefore entitled to a

reversal of his conviction.

       When reviewing a claim of prosecutorial misconduct, we determine whether the

prosecutor engaged in misconduct and, if so, whether the misconduct placed the defendant in


                                             5
a position of grave peril to which he would not otherwise have been subjected. Booher v.

State, 773 N.E.2d 814, 817 (Ind. 2002). Whether the defendant has been placed in grave

peril is measured by the probable persuasive effect of the misconduct on the jury’s decision,

rather than the degree of impropriety of the conduct itself. Id.

       Where, as here, defendant did not object at trial to the alleged misconduct, a defendant

must not only demonstrate prosecutorial misconduct, but also must establish that the

misconduct rises to the level of fundamental error. Id. Fundamental error is an “extremely

narrow exception that allows a defendant to avoid waiver of an issue” and “makes ‘a fair trial

impossible or constitute[s] clearly blatant violations of basic and elementary principles of due

process … present[ing] an undeniable and substantial potential for harm.’” Cooper v. State,

854 N.E.2d 831, 835 (Ind. 2006) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

       The statement the prosecutor made during closing argument of which Clay now

complains is:

       So historically eye witness identifications (inaudible) most crimes are
       (inaudible) are prosecuted, people are convicted on the basis of what other
       people saw or heard and if you're going to not believe Ms. Sturgell because she
       got the color of his shorts wrong or because her definition of bad teeth means
       discolored or misaligned as opposed to rotting or missing, then the criminal
       justice system is in a world of trouble because under those circumstances I
       guess my advice to you would be to board up, lock your doors, board up your
       windows and keep your kids and grandkids at home because if you can’t rely
       on the testimony of one of your fellow citizens to what they saw or heard, that
       this system is going to grind to a halt.

(Tr. at 193-94.) Based upon this portion of the State’s closing argument, Clay argues that the

State “induce[d] the jury to ignore both the presumption of innocence and its obligations to

weigh evidence impartially,” instead “ask[ing] them to focus on the ‘integrity’ or

                                               6
‘survivability’ of the criminal justice system, and the safety of their loved ones.” (Appellee’s

Br. at 7.) This, Clay argues, rose to the level of fundamental error.

       Though we agree with Clay that this portion of the State’s argument was

inappropriate, we cannot conclude that Clay was placed in the grave peril required to obtain a

reversal of his conviction. During the trial, inconsistencies in Sturgell’s description of Clay’s

physical characteristics as conveyed to Detective Rodgers were exploited during cross-

examination, but the State adduced testimony from both Sturgell and Detective Rodgers that

would reasonably allow for the reconciliation of discrepancies. The trial court instructed the

jury that its duty was to “reconcile the conflicts” in the evidence “on the theory that each

witness has testified to the truth,” and that the jurors “should weigh the evidence and give

credit to the testimony in light of your own experience and observations to the ordinary

affairs of life.” (Appellant’s App. at 11.) Thus, while the State’s argument may have

stretched beyond the boundaries of proper considerations for a jury by appealing to the jury’s

passions, we nevertheless assume the jury properly followed the instruction given by the trial

court. Thus, we cannot conclude in this instance that the State’s argument placed Clay in

grave peril, let alone that the argument had so prejudicial an effect upon Clay’s due process

rights as to amount to fundamental error.

                                          Conclusion

       The State produced sufficient evidence to sustain Clay’s conviction. The State’s

closing argument did not amount to a deprivation of Clay’s due process rights such that any

misconduct may have resulted in fundamental error. We therefore affirm Clay’s conviction


                                               7
for Robbery.

      Affirmed.

RILEY, J., and CRONE, J., concur.




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