MEMORANDUM DECISION
                                                                      Mar 17 2015, 10:33 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Kathie A. Perry                                          Gregory F. Zoeller
Sovich Minch, LLP                                        Attorney General of Indiana
Indianapolis, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Devan L. Jones,                                          March 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1408-CR-334
        v.                                               Appeal from the Shelby Superior
                                                         Court 1
                                                          The Honorable Jack A. Tandy,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Cause No. 73D01-1403-FC-031




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015          Page 1 of 7
[1]   Following a bench trial, Devan Jones was convicted of Robbery, a class C

      felony.1 Jones challenges the sufficiency of the evidence supporting his

      conviction.


[2]   We affirm.

[3]   On March 14, 2014, Officer James Jones (the Undercover Officer) of the

      Shelbyville Police Department (SPD) set up an undercover narcotics

      transaction with Tommy Sayre (Sayre) at the Big Foot gas station in

      Shelbyville. The Undercover Officer was to purchase five pounds of marijuana

      from Sayre in exchange for $5000 in cash and then arrest Sayre as soon as the

      transaction was complete. Sergeant Mike Polston of the SPD and Deputy

      Joseph Mohr of the Shelby County Sheriff’s Department were in a vehicle close

      by to secure video surveillance of the transaction between the Undercover

      Officer and Sayre. Officer Jamie Kolls of the SPD was also nearby in an

      unmarked police car to assist with the arrest after the transaction.

[4]   Deputy Mohr and Sergeant Polston identified Sayre’s car, a blue Honda, in the

      Big Foot parking lot. Jones, driving a silver car, pulled up next to Sayre’s car.

      Sayre and his brother, Matt Sayre, who was in the driver’s seat, briefly

      conversed with Jones. Sayre gestured for Jones to move his silver car in front of

      the blue Honda. The Undercover Officer then pulled behind the blue Honda




      1
        Ind. Code Ann. §35-42-5-1 (West, Westlaw 2013). Effective July 1, 2014 this offense has been reclassified
      as a level 5 felony. Because this offense was committed prior to that date, it retains its former classification as
      a class C felony.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015                   Page 2 of 7
      and Sayre approached the Undercover Officer’s vehicle. After the Undercover

      Officer exited his vehicle, he handed Sayre the envelope containing $5000 in

      cash and Sayre walked back to the blue Honda. Sayre got into the passenger

      side of the blue Honda and his brother quickly drove out of the parking lot.

[5]   Officer Kolls was in his unmarked police car when he heard on the radio that

      Sayre was fleeing. Officer Kolls pulled his car onto State Road 44 to clear

      traffic and saw the blue Honda, followed by a silver car, pulling out onto State

      Road 44 at a high rate of speed with tires spinning and gravel flying. The silver

      car, driven by Jones, pulled out of the parking lot so quickly that another

      vehicle had to swerve out of the way to avoid being hit. Officer Kolls was able

      to pass a third vehicle to get behind Jones’s car. Jones was still following

      closely behind Sayre. When Officer Kolls was behind Jones, Jones quickly

      reduced his speed to a rate below the posted speed limit of 55 m.p.h. Officer

      Kolls made multiple attempts to pass Jones, but each time Jones swerved in the

      same direction such that Officer Kolls was unable to safely pass. Sayre and his

      brother were able to avoid apprehension because Jones prevented Officer Kolls

      from passing him. Within a mile from the Big Foot, police officers in marked

      police cars were able to pull Jones over without incident. Upon questioning,

      Jones told Deputy Mohr that he had stopped at the gas station to call his

      girlfriend and that he told Sayre he did not want to be a party to the plan.


[6]   Sayre and his brother were apprehended later that same evening. Sayre had

      explained to Sergeant Polston that Jones’s job was to pull out behind them and



      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015   Page 3 of 7
      “drive like hell” so that he and his brother could escape. Transcript at 85. Sayre

      promised to give Jones $500 for doing his part.

[7]   Jones was charged with conspiracy to commit robbery, robbery, theft, and

      conspiracy to commit theft. A bench trial was held on June 10, 2014. On June

      13, 2014, the trial court found Jones guilty of robbery and theft. Jones was

      acquitted of the conspiracy charges and the court did not enter judgment of

      conviction on the theft charge due to double jeopardy concerns. On July 9,

      2014, Jones was sentenced to five years executed at the Indiana Department of

      Correction. Jones now appeals his conviction.

[8]   Jones challenges the sufficiency of the evidence in two respects. First, he argues

      that the evidence of his driving behavior was insufficient to establish the

      element of force or threat of force, as is required to support a conviction of class

      C felony robbery. See I.C. § 35-42-5-1. Second, Jones argues that if there was

      force or threat of force, it was removed in time from the actual taking of

      property and was not necessary to complete the taking.


[9]   Our standard of reviewing challenges to the sufficiency of the evidence

      supporting a criminal conviction is well settled.

              When reviewing a challenge to the sufficiency of the evidence
              underlying a criminal conviction, we neither reweigh the evidence nor
              assess the credibility of witnesses. The evidence—even if conflicting—
              and all reasonable inferences drawn from it are viewed in a light most
              favorable to the conviction. “[W]e affirm if there is substantial
              evidence of probative value supporting each element of the crime from
              which a reasonable trier of fact could have found the defendant guilty


      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015   Page 4 of 7
               beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178
               (Ind. 2004).
       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[10]   To convict Jones of robbery as charged, the State was required to prove that

       Jones 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. First, Jones claims that the use of his vehicle to block officers from

       passing him in their pursuit of Sayres did not constitute the element of force

       necessary to elevate his offense from theft to robbery.

[11]   The use of force necessary to elevate a theft to a robbery may occur when the

       thief tries to leave with the stolen goods. Young v. State, 725 N.E.2d 78 (Ind.

       2000). Jones’s use of his car to prevent Officer Kolls from catching up to the

       blue Honda constituted the requisite force or the threat of force. Jones used his

       car to cut off another motorist in the Big Foot parking lot so that he could stay

       behind Sayre. When Officer Kolls caught up with Jones, Jones blocked Officer

       Kolls each time the Officer tried to pass. His act of swerving when Officer

       Kolls tried to pass him constitute a threat of force because Officer Kolls had to

       react to avoid hitting Jones. Jones used his car as a weapon to threaten to hit

       the other drivers and specifically threaten Officer Kolls in the Officers attempts

       to pass Jones. Jones finally stopped his vehicle when police officers in marked

       units surrounded him.

[12]   Jones also argues that his driving behavior was not directed toward any of the

       victims in this case, or toward any identified person, in furtherance of the crime.

       Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015   Page 5 of 7
       We note that I.C. § 35-45-5-1(1) does not require that the force element has to

       be used against the victim. Specifically, I.C. § 35-45-5-1(1) states that the use of

       force may be “on any person”. Therefore, pursuit to the plain terms of I.C. §

       35-45-5-1(1), the force Jones directed toward Officer Kolls was force sufficient

       to satisfy this essential element for robbery.

[13]   Jones’s second argument is that even if there was force or threat of force, it was

       removed in time from the actual taking of property and was not necessary to

       complete the taking. Jones’s actions were not removed in time from the taking.

       “[A] crime that is continuous in its purpose and objective is deemed to be a

       single uninterrupted transaction”. Dye v. State, 984 N.E. 2d 625, 629 (Ind.

       2013) (quoting Eddy v. State, 496 N.E.2d. 24, 28 (Ind. 1986)). The robbery is

       not complete until the offender “asports the property, or takes it from the

       possession of the victim”. Young v. State, 725 N.E.2d 78, 81 (Ind. 2000).

       Asportation continues as the offender departs from the location where the

       property was taken from the victim. See Coleman v. State, 653 N.E.2d 481 (Ind.

       1995). The evidence demonstrates that Jones’s role was to block Sayre’s

       pursuers, regardless of who they were, so that Sayre could get away. Jones’s

       actions were intentionally directed at the pursuers and the fact that a person

       other than the original victim gave chase to recover the goods does not break

       the chain of action of the robbery. His role was a part of the continuous scheme

       because his driving behavior was designed to allow Sayre to escape with the

       money.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015   Page 6 of 7
[14]   Jones has failed to meet the burden of persuading this court that the evidence

       was insufficient support his conviction for robbery. We agree with the trial

       court that “there is no doubt Jones used force by maneuvering his vehicle as a

       means to promote the successful escape of the Sayres.” Appellants Appendix at

       29.

[15]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-334 | March 17, 2015   Page 7 of 7
