      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D),                            Sep 28 2016, 6:23 am

      this Memorandum Decision shall not be                                  CLERK
      regarded as precedent or cited before any                          Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bruce W. Graham                                          Gregory F. Zoeller
      Graham Law Firm, P.C.                                    Attorney General of Indiana
      Lafayette, Indiana                                       Karl Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rodney Lloyd,                                            September 28, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A02-1509-CR-1465
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court 1
      State of Indiana,                                        The Honorable Randy J. Williams,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D01-1410-F3-00006



      Mathias, Judge.


[1]   Following a jury trial in Tippecanoe Superior Court, Rodney Lloyd (“Lloyd”)

      was convicted of Level 3 felony robbery while armed with a deadly weapon and


      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016   Page 1 of 12
      sentenced to nine and one-half years of incarceration. Lloyd appeals and

      presents two issues, which we restate as: (1) whether the State presented

      evidence sufficient to prove that Lloyd was armed with a deadly weapon, and

      (2) whether Lloyd’s nine and one-half year sentence is inappropriate.

[2]   We affirm.


                                         Facts and Procedural History

[3]   At the time relevant to this appeal, Yeuping Zhang (“Zhang”) was a graduate

      student at Purdue University. Zhang looked on a website where he could find

      an escort or prostitute. He decided to call upon the services of Larissa Catron

      (“Catron”), who went by the name of “Aria” on the website. Tr. p. 61. Zhang

      telephoned Catron and agreed to meet her on October 19, 2014, and pay her

      $100 for an hour of her time.

[4]   Catron lived in a duplex with Quenton Hansen (“Hansen”). Before Zhang

      came to her house, Catron sent a text message to Lloyd to see if she wanted to

      “hit a lick”1 with her and Hansen. Tr. p. 85. Lloyd agreed and asked to bring

      another individual, who was variously identified as either his younger cousin or

      younger brother. When Catron objected to the inclusion of this younger person,

      Lloyd reassured her that he was eighteen years old and that he and his younger

      relative were “good at hitting licks.” Tr. p. 87.




      1
          “Hit a lick” is street slang for an easy means of obtaining money, often through illegal means. See Tr. p. 85.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016             Page 2 of 12
[5]   Lloyd and his relative arrived at Catron’s home, where they, Catron, and

      Hansen smoked marijuana. Catron also injected herself with heroin. Before

      Zhang arrived at 5:00 p.m., Hansen hid in the bathroom with Catron’s dog,

      while Lloyd and his relative hid in a closet in the bedroom. When Zhang

      arrived, Catron took him to her bedroom and demanded payment in cash up

      front. Zhang handed her five $20 bills, which Catron placed in a hutch in the

      hallway.


[6]   Catron then returned to the bedroom and demanded that Zhang leave her

      home. Zhang objected that he had not received anything in exchange for his

      money and demanded his money back. Catron told Zhang that she was not

      alone and that he needed to leave. At this point, Lloyd and his relative burst out

      of the closet, and Hansen came out of the bathroom into the bedroom. Lloyd

      placed what appeared to be a handgun to Zhang’s head. Lloyd and his relative

      pushed Zhang face-first against the wall and told Zhang, “Don’t move. Do you

      want to die?” Tr. p. 40. They then frisked Zhang and took another $100 in cash,

      his cell phone, and his car keys.


[7]   Lloyd handed the gun to his relative, who continued to hold it against Zhang’s

      head. Lloyd took the car keys and went to Zhang’s car, where he found Zhang’s

      wallet and stole another $40 or $50 in cash. Lloyd then returned to Catron’s

      home and gave the keys back to Zhang. One of the robbers gave Zhang his cell

      phone. Catron held up her cell phone and falsely told Zhang that she had

      recorded the entire incident and, if he went to the police, she would show them

      the recording as proof that he was illegally visiting a prostitute. They then

      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016   Page 3 of 12
      shoved Zhang out the front door. As he left, Zhang heard the robbers laughing

      at their successful crime.

[8]   Undeterred by Catron’s threat, Zhang contacted the police and reported the

      robbery. The police obtained a warrant to search Catron’s home, and, during

      the execution of the warrant, found the $100 Catron had placed in the hutch

      and a BB gun that looked like a handgun underneath Catron’s mattress. Lloyd

      and the others were arrested. When questioned by the police, Lloyd admitted

      that he had hidden in the closet but claimed that his relative had perpetrated the

      robbery.


[9]   On October 24, 2014, the State charged Lloyd with Level 3 felony conspiracy to

      commit robbery while armed with a deadly weapon, Level 3 felony robbery

      while armed with a deadly weapon, Level 3 felony conspiracy to commit

      criminal confinement, Level 3 felony criminal confinement, and Class A

      misdemeanor theft. The State subsequently dismissed the conspiracy counts. A

      two-day jury trial commenced on July 21, 2015, at the conclusion of which the

      jury found Lloyd guilty of the remaining charges. The trial court “merged” the

      theft and confinement convictions with the robbery conviction and entered

      judgment only on the robbery conviction. On September 8, 2015, the trial court

      sentenced Lloyd to nine and one-half years of incarceration. Lloyd now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016   Page 4 of 12
                                     I. Sufficiency of the Evidence

[10]   Lloyd first argues that the State failed to present evidence sufficient to support

       his conviction for Level 3 felony robbery while armed with a deadly weapon.

       Specifically, Lloyd claims that the State failed to prove that he was armed with

       a deadly weapon because the weapon used was a BB gun and not a firearm.

[11]   In reviewing this claim, we apply our well-settled standard of review. We

       neither reweigh the evidence nor judge the credibility of the witnesses, and we

       consider only the evidence most favorable to the verdict and the reasonable

       inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,

       993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial

       evidence of probative value supports it. Id. As an appellate court, we respect the

       jury’s exclusive province to weigh conflicting evidence. Id.


[12]   The State charged Lloyd with Level 3 felony robbery while armed with a deadly

       weapon. The statute defining this crime provides:


               A person who knowingly or intentionally takes property from
               another person or from the presence of another person:

                   (1) by using or threatening the use of force on any person; or

                   (2) by putting any person in fear;

               commits robbery, a Level 5 felony.


               However, the offense is a Level 3 felony if it is committed while
               armed with a deadly weapon or results in bodily injury to any
               person other than a defendant.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016   Page 5 of 12
       Ind. Code § 35-42-5-1 (emphasis added). Lloyd argues only that the State failed

       to prove that the BB gun used during the robbery was a deadly weapon, which

       elevated his crime from a Level 5 felony to a Level 3 felony.


[13]   The statute defining the term “deadly weapon” provides in relevant part:

                 (a) Except as provided in subsection (b),[2] “deadly weapon”
                 means the following:

                      (1) A loaded or unloaded firearm.

                      (2) A destructive device, weapon, device, taser (as defined in
                      IC 35-47-8-3) or electronic stun weapon (as defined in IC 35-
                      47-8-1), equipment, chemical substance, or other material that
                      in the manner it:

                           (A) is used;

                           (B) could ordinarily be used; or

                           (C) is intended to be used;

                      is readily capable of causing serious bodily injury.

                      (3) An animal (as defined in IC 35-46-3-3) that is:

                           (A) readily capable of causing serious bodily injury; and




       2
           Subsection 86(b), which is inapplicable here, provides:

                 (b) The term [deadly weapon] does not include:
                      (1) a taser (as defined in IC 35-47-8-3);
                      (2) an electronic stun weapon (as defined in IC 35-47-8-1);
                      (3) a chemical designed to temporarily incapacitate a person; or
                      (4) another device designed to temporarily incapacitate a person;
                 if the device described in subdivisions (1) through (4) is used by a law enforcement officer
                 who has been trained in the use of the device and who uses the device in accordance with
                 the law enforcement officer's training and while lawfully engaged in the execution of official
                 duties.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016           Page 6 of 12
                         (B) used in the commission or attempted commission of a
                         crime.

                    (4) A biological disease, virus, or organism that is capable of
                    causing serious bodily injury.

       Ind. Code § 35-31.5-2-86.

[14]   Lloyd spends much of his brief arguing that a BB gun is not a firearm.3

       However, a BB gun may still be considered a deadly weapon if, in the manner it

       is used, could ordinarily be used, or is intended to be used, is readily capable of

       causing serious bodily injury. See I.C. § 35-31.5-2-86(a)(2). “Serious bodily

       injury” is in turn defined as “bodily injury that creates a substantial risk of death

       or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3)

       extreme pain; (4) permanent or protracted loss or impairment of the function of

       a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.


[15]   The question of whether a weapon is a deadly weapon is determined from a

       description of the weapon, the manner of its use, and the circumstances of the

       case. Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002) (citing

       Glover v. State, 441 N.E.2d 1360, 1362 (Ind. 1982)). The jury, when determining

       whether a weapon is a “deadly weapon” for purposes of the statute, “may look



       3
         A “firearm” is statutorily defined as any weapon that is capable of expelling, designed to expel, or that may
       readily be converted to expel, a projectile by means of an explosion. Ind. Code § 35-47-1-5. This court has
       previously held that a BB gun or pellet gun is not a firearm. See Miller v. State, 616 N.E.2d 750, 757 n.13 (Ind.
       Ct. App. 1993) (holding that a pellet gun cannot be considered a “handgun” because it uses carbon dioxide as
       the propellant, which cannot explode); but see id. at 758 (Rucker, J., dissenting in relevant part) (concluding
       that a pellet gun using carbon dioxide gas did fit the statutory definition of a “firearm” because it expelled a
       projectile by way of an explosion, i.e., “sudden violence from internal energy caused by the pressure from
       CO2 gas.”).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016           Page 7 of 12
       to whether the weapon had the actual ability to inflict serious injury under the

       fact situation and whether the defendant had the apparent ability to injure the

       victim seriously through use of the object during the crime.” Id. (emphasis

       supplied) (citing Whitfield v. State, 699 N.E.2d 666, 670 (Ind. Ct. App. 1998)).


[16]   Against this background, Lloyd’s claim that the BB gun used to rob Zhang was

       not a deadly weapon is completely without merit. Our courts have held for over

       thirty years that a BB gun, even though not a firearm, can still be considered a

       deadly weapon. See Glover, 441 N.E.2d at 1362; Davis v. State, 835 N.E.2d 1102,

       1112 (Ind. Ct. App. 2005); Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct.

       App. 2002); Whitfield v. State, 699 N.E.2d 666, 670 (Ind. Ct. App. 1998); Hart v.

       State, 671 N.E.2d 420, 428 (Ind. Ct. App. 1996) (all holding that a BB gun was

       a deadly weapon).4

[17]   The same is true here. The BB gun used by Lloyd looks like a firearm. See Ex.

       Vol., State’s Exs. 16, 17. It was used in a manner intended to make Zhang

       believe that it was a real firearm, and it was intended, and did, place Zhang in

       fear. See Tr. p. 43. Although no direct testimony was presented regarding the

       ability of the BB gun to cause injury, we think it was well within the knowledge

       of the jury that a BB gun can cause injury, either by shooting a BB or pellet or

       by being used as a blunt-force weapon. Indeed, even Lloyd admits that the BB

       gun, had it been fired, might have pierced Zhang’s scalp.



       4
         Hart was abrogated in part on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). Fajardo was
       itself later superseded by statute, as noted in Abernathy v. Gulden, 46 N.E.3d 489, 496 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016          Page 8 of 12
[18]   From this evidence, the jury was well within its role as the trier of fact to

       determine that the BB gun used by Lloyd was a deadly weapon for purposes of

       elevating Lloyd’s crime to a Level 3 felony. See Rogers v. State, 537 N.E.2d 481,

       485 (Ind. 1989) (holding that the realism of the weapon used, even though it was

       disabled, coupled with defendant’s threatening behavior, caused the victims to

       fear for their lives and was therefore a “deadly weapon”); Glover, 441 N.E.2d at

       1362 (holding that jury could reasonably find that .177 caliber air pistol was a

       deadly weapon where the pistol, “when discharged at a human being at close

       range, could result in extreme pain, and even the loss and impairment of hearing

       or sight.”); Davis, 835 N.E.2d at 1112-13 (holding that evidence was sufficient to

       support jury finding that BB guns used in bank robbery were deadly weapons

       where the victims and even the police, at least initially, believed that the guns

       were real firearms, the robbers used the guns in a threatening manner, and there

       was evidence that the BB guns could cause serious bodily injury); Merriweather,

       778 N.E.2d at 458 (holding that evidence was sufficient to support finding that

       BB gun was a deadly weapon where the gun used had the apparent ability to

       cause serious bodily injury and was used in a threatening manner and placed the

       victims in fear); Whitfield, 699 N.E.2d at 671 (holding that evidence was sufficient

       to support finding that disabled pellet gun was a deadly weapon where defendant

       came into a store, stuck a gun in the victim’s face and demanded money, the

       victim was so frightened that he could barely speak, and the pellet gun was

       “virtually indistinguishable” from a real caliber gun); Hart, 671 N.E.2d at 428

       (holding that jury could have properly found that the BB gun used was a deadly


       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016   Page 9 of 12
       weapon where the BB gun itself was introduced into evidence, and the victim

       testified that the weapon pointed at him placed him in fear for his life).

[19]   We therefore conclude that the evidence was sufficient to support the jury’s

       conclusion that the BB gun used by Lloyd was a deadly weapon sufficient to

       elevate Lloyd’s conviction for robbery to a Level 3 felony.


                                       II. Inappropriate Sentence

[20]   Lloyd also claims that his nine and one-half year sentence is inappropriate in

       light of the nature of the offense and the character of the offender. Even if a trial

       court acts within its lawful discretion in imposing a sentence, Article 7, Sections

       4 and 6 of the Indiana Constitution authorize independent appellate review and

       revision of that sentence. Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App.

       2011). This authority is implemented via Indiana Appellate Rule 7(B), which

       provides that an appellate court “may revise a sentence authorized by statute if,

       after due consideration of the trial court’s decision, the Court finds that the

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

       of the offender.” However, “we must and should exercise deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Id. at 355-56.


[21]   Although we have the power to review and revise sentences, “[the principal role

       of appellate review should be to attempt to leaven the outliers, and identify

       some guiding principles for trial courts and those charged with improvement of


       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016 Page 10 of 12
       the sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The burden is on the

       defendant to persuade us that his sentence is inappropriate. Trainor, 950 N.E.2d

       at 356 (citing Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)).


[22]   Here, Lloyd was convicted of a Level 3 felony. The sentencing range for a Level

       3 felony is three to sixteen years, with the advisory sentence being nine years.

       Ind. Code § 35-50-2-5(b). Thus, the nine and one-half year sentence imposed by

       the trial court was only slightly above the advisory sentence, and well below the

       maximum sentence. With this in mind, we address Lloyd’s claim that his

       sentence is inappropriate.

[23]   Considering the nature of the offense, we note that Lloyd lay in wait for Zhang

       by hiding in the closet. Lloyd played the central role in the armed robbery and

       was the one who pointed the gun at Zhang’s head and asked him if he “wanted

       to die?” Tr. pp. 40-41. Lloyd took Zhang’s car keys and stole items from the

       vehicle. Lloyd also involved his younger relative in the robbery. Thus, the

       nature of the offense does nothing the persuade us that the sentence imposed by

       the trial court was inappropriate.

[24]   Lloyd’s character also provides no support for his claim that his sentence is

       inappropriate. Lloyd has a history of delinquent and criminal behavior that

       dates back to 2009, when he was adjudicated a delinquent child for actions that,

       if committed by an adult, would have been Class C felony burglary, Class A


       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016 Page 11 of 12
       misdemeanor resisting law enforcement, and Class B misdemeanor false

       informing. During the juvenile case, Lloyd failed to appear twice and failed to

       report to probation.


[25]   In 2012, Lloyd was convicted as an adult of Class A misdemeanor criminal

       trespass and was sentenced to a ninety-day suspended term and ordered to

       complete 275 days of unsupervised probation. Lloyd failed to appear on two

       occasions during that case and had his probation revoked. In 2013, Lloyd was

       convicted of Class D felony theft and Class A misdemeanor carrying a handgun

       without a license. Lloyd was still on probation from this offense at the time he

       committed the instant offenses. In 2014, Lloyd was convicted of Class B

       misdemeanor false informing. Lloyd was also on probation for this offense

       when he committed the instant offenses.


[26]   Lloyd has a significant criminal history that includes carrying a handgun without

       a license. He was also granted probation in the past to no effect and was even on

       probation in two different cases at the time of the instant offenses. Prior attempts

       at leniency have obviously failed to correct Lloyd’s criminal behavior. Giving

       due deference to the trial court’s sentencing decision, we are unable to say that

       Lloyd has demonstrated that his nine and one-half year sentence is inappropriate

       in light of the nature of his offense and the character of the offender.

[27]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1465 | September 28, 2016 Page 12 of 12
