                                                                             FILED
                                                                        Dec 11 2018, 10:13 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John M. Haecker                                           Curtis T. Hill, Jr.
Squiller & Hamilton, LLP                                  Attorney General
Auburn, Indiana
                                                          Angela N. Sanchez
                                                          Assistant Section Chief
                                                          Criminal Appeals
                                                          Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

Riley M. Randall,                                         December 11, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1574
        v.                                                Appeal from the DeKalb Superior
                                                          Court
State of Indiana,                                         The Honorable Monte L. Brown,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No. 17D02-1706-
                                                          F3-4




Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018                            Page 1 of 8
                                              Case Summary
[1]   Riley M. Randall appeals his conviction following a jury trial for level three

      felony robbery while armed with a deadly weapon. He contends that the trial

      court abused its discretion in instructing the jury. Finding no abuse of

      discretion, we affirm.


                                  Facts and Procedural History
[2]   The facts most favorable to the verdict indicate that on May 12, 2016, Randall

      purchased marijuana from Ron Wilkinson at Wilkinson’s apartment in Garrett.

      Randall was short on cash, so he used a jar full of coins to purchase the

      marijuana. After leaving, Randall believed that Wilkinson had shorted him on

      the deal. Randall called Brandon Cardone, told him that Wilkinson had

      shorted him, and asked Cardone if he had a gun. Cardone informed Randall

      that he did have a gun. Cardone and another man, Zachary Burcham, who

      were both armed with guns, drove to meet Randall. Randall also called his

      friend, Jacob Johnston, and asked him to come with all three men to go to

      Wilkinson’s apartment in order to “get a bag fixed” that “was light.” Tr. Vol.

      2. at 199. This meant that they were planning to go and “either get the monies

      [sic] worth back or get the rest of the marijuana.” Id.


[3]   The men all got into Cardone’s car, and Randall directed them to Wilkinson’s

      apartment. When they arrived, Johnston decided to stay in the car while the

      others went inside the building. The men knocked on Wilkinson’s door, and

      Wilkinson yelled for them to come in. Cardone and Burcham entered the


      Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018       Page 2 of 8
      apartment, and Randall stood outside at the top of the stairs. Cardone and

      Burcham ordered Wilkinson to the ground at gunpoint and asked him where

      his money and drugs were. One of the men took Wilkinson’s wallet. Once

      Wilkinson was on the ground and in a position where he would not be able to

      see and identify Randall, Cardone went outside and tapped on the wall to signal

      Randall to come in to help. Randall eventually entered the apartment and

      located Wilkinson’s safe. Randall grabbed the safe, as well as the jar of coins he

      had used to purchase the marijuana, and the three men ran out of the

      apartment. They returned to Cardone’s car and reported to Johnston what had

      happened. The men had also taken Wilkinson’s cell phone but dropped it in

      the parking lot.


[4]   All four men returned to the apartment where Randall had been staying and

      divided up the money and the drugs. Meanwhile, Wilkinson reported the crime

      to his apartment manager and called police. Wilkinson was later able to

      identify Randall from the apartment complex’s surveillance video, but he did

      not recognize the other two men who entered his apartment. Police were

      unable to locate Randall that night. The next day, Randall went to the police

      station and told police that he had been kidnapped and forced to rob Wilkinson.

      He later told Johnston that they both should claim that Cardone and Burcham

      forced Johnston to force Randall to get them marijuana.


[5]   The State charged Randall with level 3 felony robbery while armed with a

      deadly weapon. Prior to trial, Randall tendered a proposed jury instruction on

      the statutory defense of duress, asserting that the evidence would show that he

      Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018    Page 3 of 8
      was an unwilling participant in the armed robbery. The trial court subsequently

      issued a written order denying the proposed instruction. Following a trial, the

      jury found Randall guilty as charged. The trial court imposed a nine-year

      sentence with two years suspended to probation. This appeal ensued.


                                      Discussion and Decision
[6]   Randall asserts that the trial court abused its discretion in rejecting his tendered

      jury instruction regarding the statutory defense of duress. Thus, we must first

      determine whether the duress defense applies in the instant case. This is an

      issue of statutory construction, which we review de novo. Jones v. State, 87

      N.E.3d 450, 454 (Ind. 2017). “Our goal is to determine the legislature’s intent,

      which we do by following the plain and ordinary meaning of the statute’s

      unambiguous language.” Id.


[7]   We will then review whether the trial court abused its discretion. The manner

      of instructing a jury is left to the sound discretion of the trial court. Albores v.

      State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied. We review the trial

      court’s decision only for an abuse of that discretion. Id. On review of a trial

      court’s decision to refuse a proposed jury instruction, we consider whether the

      instruction (1) correctly states the law, (2) is supported by the evidence, and (3)

      is covered in substance by other instructions that are given. Id. We consider jury

      instructions as a whole and in reference to each other. Evans v. State, 81 N.E.3d

      634, 637 (Ind. Ct. App. 2017). We do not reverse the trial court unless the

      instructions as a whole misstate the law or mislead the jury. Id.


      Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018          Page 4 of 8
[8]   Randall claimed duress as a defense to armed robbery, and tendered a jury

      instruction that provided as follows:


              It is at issue whether the Defendant was acting under duress.

                     It is a defense that the Defendant was compelled to
              commit the acts charged by threat of imminent serious bodily
              injury to himself or another person. Compulsion exists only if the
              force, threat, or circumstances would render a reasonable person
              incapable of resisting pressure.

                    The defense does not apply to a person who recklessly,
              knowingly or intentionally placed himself in a situation where it
              was foreseeable that he would be subjected to duress.

                    The State has the burden of proving beyond a reasonable
              doubt that the Defendant was not acting under duress.


      Appellant’s App. Vol. 2 at 35-36. The trial court rejected this instruction,

      concluding that, pursuant to Indiana Code Section 35-41-3-8(b)(2), the duress

      defense “does not apply to armed robbery cases.” Id. at 43. Indeed, the duress

      statute provides,


              (a) It is a defense that the person who engaged in the prohibited
              conduct was compelled to do so by threat of imminent serious
              bodily injury to himself or another person. With respect to
              offenses other than felonies, it is a defense that the person who
              engaged in the prohibited conduct was compelled to do so by
              force or threat of force. Compulsion under this section exists only
              if the force, threat, or circumstances are such as would render a
              person of reasonable firmness incapable of resisting the pressure.




      Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018        Page 5 of 8
               (b) This section does not apply to a person who:

               (1) recklessly, knowingly, or intentionally placed himself in a
               situation in which it was foreseeable that he would be subjected
               to duress; or

               (2) committed an offense against the person as defined in IC 35-42.


       Ind. Code § 35-41-3-8(b)(2) (emphasis added).


[9]    Randall concedes that robbery is indeed “an offense against the person” as

       defined by Indiana Code Section 35-42-5-1. Nevertheless, he asserts that

       because the jury was also instructed (and likely convicted him) on a theory of

       accomplice liability, the duress defense should have been available. We

       disagree.


[10]   Indiana’s accomplice-liability statute provides, in part, “A person who

       knowingly or intentionally aids, induces, or causes another person to commit

       an offense commits that offense[.]” Ind. Code § 35-41-2-4. Pursuant to this

       statute, an individual who aids another person in committing a crime is as

       guilty as the actual perpetrator. Specht v. State, 838 N.E.2d 1081, 1093 (Ind. Ct.

       App. 2005), trans. denied (2006). The statute does not set forth a separate crime,

       but merely provides a separate basis of liability for the crime that is charged. Id.

       at 1092. Accordingly, a person who aids another person in committing armed

       robbery is as guilty of armed robbery as the actual perpetrator.


[11]   Contrary to Randall’s assertion, the character of an offense as one “against the

       person” as defined in Indiana Code Section 35-42 in no way depends on

       Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018         Page 6 of 8
       whether the defendant is the principal or an accomplice, or whether another

       inchoate basis of liability is alleged. See, e.g., Armand v. State, 474 N.E.2d 1002,

       1005 (Ind. 1985) (holding that attempted robbery is an offense against the

       person to which the duress defense is expressly excluded). Relying on our

       supreme court’s discussion of the statutory abandonment defense in Jones, 87

       N.E.3d 450, Randall makes a nuanced argument that, notwithstanding the clear

       prohibition against the use of a duress defense by one who commits an offense

       against the person, the legislature intended for the duress defense to be available

       to one who aids, induces, or causes an offense against the person. However,

       the abandonment defense, and the discussion thereof in Jones, is wholly

       inapposite. Unlike the duress statute, the abandonment statute specifically

       provides that abandonment may be asserted as a defense to crimes under

       Indiana Code Section 35-41-2-4 (aiding, inducing, or causing an offense),

       Indiana Code Section 35-41-5-1 (attempt), or Indiana Code Section 35-41-5-2

       (conspiracy). Ind. Code § 35-41-3-10. Indeed, the abandonment defense

       “applies exclusively” to those three inchoate statutory offenses. Jones, 87

       N.E.3d at 455. As stated above, the duress statute specifically prohibits its

       application to a certain type of offense, which includes the inchoate versions of

       that type of offense. Armand, 474 N.E.2d at 1005.


[12]   Simply stated, the offense is the offense, and the legislature has plainly provided

       that the duress defense is unavailable to a person, such as Randall, who is

       alleged to have committed an offense against the person, regardless of the basis

       of liability. Therefore, duress was not available as a defense to Randall’s charge


       Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018       Page 7 of 8
       of armed robbery. The trial court did not abuse its discretion in rejecting his

       tendered duress instruction.


[13]   Randall very briefly argues that the trial court abused its discretion in failing to

       simply give his tendered instruction but limit its application to the lesser-

       included offense of theft because, unlike robbery, theft is not an offense against

       the person as defined in Indiana Code Section 35-42. However, there is nothing

       in the record to indicate that Randall requested that the trial court give his

       duress instruction coupled with a limiting instruction, nor did he tender an

       instruction limiting the application of the defense.1 “[I]t has long been

       established that a party cannot complain of incomplete or omitted instructions

       when he, himself, has not tendered any instruction on that issue.” Brittain v.

       State, 565 N.E.2d 757, 760 (Ind. Ct. App. 1990) (quoting Law v. State, 273 Ind.

       624, 626-27, 406 N.E.2d 1185, 1186 (1980)). Randall’s failure to tender a

       limiting instruction results in waiver of the issue on appeal. See id.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       1
         Although Randall’s counsel mentioned during a pretrial hearing the potential of still pursuing the duress
       defense in the event the evidence presented at trial supported a jury instruction on the lesser-included offense
       of theft, it does not appear that he renewed such a request at the close of the evidence or tendered a limiting
       instruction.

       Court of Appeals of Indiana | Opinion 18A-CR-1574 | December 11, 2018                                Page 8 of 8
