                                                                          FILED
                                                                      Nov 04 2019, 8:35 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT –                                  ATTORNEYS FOR APPELLEE
JOHNATHAN OLSON                                           Curtis T. Hill, Jr.
Michael G. Moore                                          Attorney General of Indiana
Indianapolis, Indiana
                                                          Ian McLean
ATTORNEY FOR APPELLANT –                                  Supervising Deputy Attorney
AUSTIN MAHONEY                                            General
                                                          Indianapolis, Indiana
Leanna Weissmann
Lawrenceburg, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Johnathan Olson and Austin J.                             November 4, 2019
Mahoney,                                                  Court of Appeals Case No.
Appellants-Defendants,                                    19A-CR-773
                                                          Appeal from the Vigo Superior
        v.                                                Court
                                                          The Honorable Michael J. Lewis,
State of Indiana,                                         Judge
Appellee-Plaintiff.                                       Trial Court Cause Nos.
                                                          84D06-1809-F2-3494
                                                          84D06-1809-F2-3491



Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019                           Page 1 of 10
                                        Statement of the Case
[1]   In this consolidated appeal, Johnathan Olson and Austin Mahoney appeal the

      trial court’s denial of their motions to dismiss the State’s charges against them

      for robbery, as Level 2 felonies. Olson and Mahoney present two issues for our

      review:


              1.       Whether the trial court erred when it denied their motions
                       to dismiss the charges.

              2.       Whether the State is collaterally estopped from
                       prosecuting them for robbery.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In 2018, Olson, Mahoney, and four of their friends, all minors, visited the Jiffy

      Mini Mart in Terre Haute and stole items from the store “on multiple

      occasions.” Appellants’ App. Vol. 2 at 14. On September 20, the group stole

      items from the store, and when they returned to the store later that evening,

      Jiffy Mini Mart employee Robert Bailey confronted them and asked them to

      leave the store. While Bailey was distracted by other members of the group,

      Mahoney reached over a counter and stole a package of cigars. Mahoney and

      the group then exited the store, with Bailey following them.


[4]   Once outside in the parking lot, the young men surrounded Bailey and, when

      Bailey tried to get away, Mahoney punched Bailey in the head. A passerby,
      Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019       Page 2 of 10
      Ron Deitz, intervened in an attempt to aid Bailey, and the group threatened

      Deitz. In the meantime, one of the young men struck Bailey in the head and

      knocked him to the ground. While Bailey was lying on the ground, Mahoney

      kicked Bailey in the stomach, and Olson “stomp[ed]” on Bailey’s head. Id.

      The group then fled the scene.


[5]   The State charged Olson and Mahoney each with robbery, as a Level 2 felony;

      battery, as a Level 5 felony; theft, as a Class A misdemeanor; criminal mischief,

      as a Class A misdemeanor; and criminal trespass, as a Class A misdemeanor.

      The robbery charges meant that Olson and Mahoney would be tried as adults.

      See Ind. Code § 31-30-1-4(a)(6)(B) (2019) (providing that if an individual is at

      least sixteen years old and commits robbery resulting in bodily injury a juvenile

      court lacks jurisdiction over the individual). Olson and Mahoney’s cohorts,

      including N.G., were younger than sixteen at the time, and their cases

      remained in juvenile court.


[6]   On November 16, a juvenile court held a factfinding hearing on the State’s

      petition alleging that N.G. was a delinquent in part for his participation in the

      robbery with Olson and Mahoney. At the conclusion of the hearing, the

      juvenile court found that the State had not proved that N.G. had committed

      robbery, but the court found that N.G. had committed theft. Thereafter, Olson

      and Mahoney filed motions to dismiss the robbery charges pending against each

      of them. In their motions to dismiss, Olson and Mahoney alleged in relevant

      part that
      Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019       Page 3 of 10
              there was no robbery. There was at one point in time a possible
              theft and there was at a different point of time a possible battery.
              However, there clearly was not a robbery which resulted in
              serious bodily injury. . . . Thus, [the robbery charge] must be
              dismissed for lack of probable cause.


      Appellants’ App. Vol. 2 at 22. In support of their motions, Olson and Mahoney

      alleged that N.G.’s adjudication for theft based on the juvenile court’s finding

      that there was no evidence of a robbery was “conclusive” evidence that a

      robbery did not occur. Id. at 23. The trial court denied their motions to dismiss

      following a hearing. This appeal ensued.


                                      Discussion and Decision
                               Issue One: Denial of Motions to Dismiss

[7]   Olson and Mahoney contend that their robbery charges are “factually

      insufficient as shown by the charging documents and as confirmed by the

      refusal of the juvenile court to convict a codefendant of robbery[.]” Appellants’

      Br. at 11. Accordingly, Olson and Mahoney maintain that the trial court erred

      when it denied their motions to dismiss the robbery charges. We cannot agree.


[8]   A motion to dismiss under Indiana Trial Rule 12(B)(6) challenges only the legal

      sufficiency of the charges, which presents a question of law that we review de

      novo. Stone v. State, 128 N.E.3d 475, 480 (Ind. Ct. App. 2019), trans. denied. We

      may affirm the trial court’s judgment under Trial Rule 12(B)(6) on any basis

      supported by the record. See id. “A motion to dismiss under Trial Rule

      Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019            Page 4 of 10
      12(B)(6) is appropriate only when ‘the facts alleged in the challenged pleading

      are incapable of supporting relief under any set of circumstances.’” Id. (quoting

      Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015)).


[9]   To prove robbery, as a Level 2 felony, the State is required to show that Olson

      and Mahoney each knowingly or intentionally took property from another

      person or from the presence of another person by using or threatening the use of

      force on any person which resulted in serious bodily injury to any person other

      than a defendant. I.C. § 35-42-5-1. The charging informations alleged in

      relevant part that Olson and Mahoney each knowingly or intentionally took

      property from another person or from the presence of another person, namely,

      Bailey and/or Jiffy Mini Mart, by using or threatening the use of force on any

      person, resulting in serious bodily injury to Bailey. And the identical probable

      cause affidavits alleged in relevant part as follows:


              3. On 09-26-2018 Affiant[, a Terre Haute Police Department
              Officer,] went to the Jiffy gas station at 25th street and 8th
              Avenue to obtain a copy of the video surveillance from the
              Robbery. While watching the video Affiant was able to identify
              all the suspects from having dealt with all six of them personally.
              Affiant watched the surveillance video, incorporated herein as
              Attachment A, and observed . . . Mahoney reach over the
              counter, take merchandise, and then exit the store. During this
              same time, multiple other males identified as James Edmonson,
              Anthony Cheeseman, N.G. (age 15), Elijah “Eli” Rooksberry,
              and Johnathan Olson were inside of the store and appeared to be
              either watching the store employees or attempting to distract the
              employees. Affiant observed Robert Bailey confront the males
      Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019       Page 5 of 10
        and appears to order them to leave the store. As they are leaving
        the store, Bailey follows them out of the front door.

        4. As the group enters the lot of the business, Affiant observed
        James Edmonson square up, standing in front of the victim with
        his body bladed towards the victim and clinched fists. Affiant
        also observed . . . Mahoney [and the others] surround the victim
        in an aggressive and intimidating manner.

        5. Shortly after the victim had been surrounded by all six people
        he was attempting to walk away when Affiant observed . . .
        Mahoney suddenly attack the victim from the side. After
        [Mahoney] sucker punched the victim all 6 juveniles ran out of
        the video range. Seconds later they all re-entered the video and
        three of the males were attacking Ron Dietz, who was trying to
        assist the victim and prevent any further battery from occurring.
        While [Mahoney] was attacking Ron Dietz, Anthony and
        Johnathan both ran up on Dietz as if they were both attempting
        to batter him at the same time [Mahoney] was attacking him.

        6. While [Mahoney] was attacking the other white male (along
        with Anthony and Johnathan) Robert Bailey was looking
        towards Ron Dietz as he was being attacked and had his back to
        James “Jimmy” Edmondson. Jimmy ran up from behind and
        struck Robert Bailey with his closed fist causing him to fall to the
        ground. After being struck by Jimmy, the victim fell to the
        ground unconscious and was lying on the ground motionless.

        7. While the victim was lying on the ground motionless Affiant
        observed [Mahoney] kick him in his midsection. At that point all
        the juveniles started to flee south on foot. As they started to flee
        Affiant observed Johnathan Olson take his foot and stomp on the
        victim’s head prior to fleeing the scene.

                                                 ***
Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019        Page 6 of 10
               9. Affiant spoke to the store manager Shelly and she advised that
               the same group of juveniles had come in the store earlier that day
               and had stolen several items. When they re-entered the store
               they were asked to leave by Robert Bailey because of the prior
               theft. In the video you can see while all parties were inside,
               several of the suspects turned their pockets inside out as to show
               they had nothing in their possession at that time. Several of the
               juveniles were attempting to distract the victim while [Mahoney]
               went to the other side of the counter, reached into a closed plastic
               case and stole some cigars from behind the counter. Affiant was
               also advised that group had stolen from that store on multiple
               occasions prior to this incident.


       Appellants’ App. Vol. 2 at 14.


[10]   Olson and Mahoney maintain that, “even if taken as true,” the charging

       documents “fail to establish Olson and Mahoney committed robbery because

       the State did not allege the boys used force to complete the taking of the

       property.” Appellants’ Br. at 12. Olson and Mahoney correctly assert that “the

       robbery statute requires a nexus between the taking and force,” and they

       contend that the charging documents do not show any such nexus. Id. at 13

       (citing Rowe v. State, 496 N.E.2d 585 (Ind. Ct. App. 1986)). Olson and

       Mahoney read the charging documents as supporting a theft followed by

       batteries against Bailey that were entirely unrelated to the theft. And they urge

       us to consider the juvenile court’s refusal to adjudicate N.G. as a delinquent on

       the robbery charge as support for their motions to dismiss.




       Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019       Page 7 of 10
[11]   However, we agree with the State that the charging documents are sufficient to

       support the robbery charges against Olson and Mahoney. While the State has

       not alleged that Mahoney used force at the very moment he took the cigars

       from the Jiffy Mini Mart, our Supreme Court has held that the “use of force”

       element in the robbery statute is satisfied where “the person in lawful

       possession of the property resists before the thief has removed the property from

       the premises or from the person’s presence.” Coleman v. State, 653 N.E.2d 481,

       482 (Ind. 1995). It is not until the property is successfully removed from the

       premises or person’s presence that the robbery is complete. Cooper v. State, 656

       N.E.2d 888, 889 (Ind. Ct. App. 1995) (citing Coleman, 653 N.E.2d at 483). If

       the use of force is necessary to accomplish the theft and elude the person in

       possession of the property, it is part of the robbery. Id.


[12]   Here, in the charging informations, the State alleged that Olson and Mahoney

       took the cigars from Jiffy Mini Mart and/or from the presence of Bailey by

       using or threatening the use of force. The probable cause affidavits state that

       Bailey followed Olson and Mahoney and the others out of the store and into the

       parking lot, and it was there and then that Mahoney and others battered Bailey.

       Thus, the charging documents are facially sufficient to support the robbery

       charges.


[13]   Still, Olson and Mahoney contend that “[t]here was no evidence the store

       employees knew Mahoney possessed the cigars in his pocket when the fight

       occurred.” Appellants’ Br. at 15. And they state that “Bailey did not follow the
       Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019       Page 8 of 10
       boys out of the store to retrieve the stolen item, nor did he follow the juveniles

       to stop them from continuing to remove the property.” Id. But the trial court

       has not heard any evidence at this stage of the proceedings. The probable cause

       affidavits are silent as to whether Bailey was pursuing Mahoney because he had

       taken the cigars or whether Mahoney could have eluded Bailey without the use

       of force. Questions of fact to be decided at trial or facts constituting a defense

       are not properly raised by a motion to dismiss. Pavolovich v. State, 6 N.E.3d 969,

       974 (Ind. Ct. App. 2014), trans. denied. Whether the evidence will be sufficient

       to prove the robbery charges will be determined at trial. At this stage of the

       proceedings, we cannot say that the trial court erred when it denied Olson’s and

       Mahoney’s motions to dismiss the robbery charges.


                                          Issue Two: Collateral Estoppel

[14]   Olson and Mahoney also contend that the State is barred by collateral estoppel,

       or issue preclusion, 1 from prosecuting them for robbery. They maintain that,

       because a juvenile court found the evidence insufficient to support N.G.’s

       adjudication as a delinquent for committing robbery, the State is bound by that

       adjudication in the instant cases. We cannot agree.


[15]   As the State correctly points out, “in criminal cases, the invocation of collateral

       estoppel requires mutuality of estoppel and identity of the parties.” Martin v.




       1
           There is no dispute that claim preclusion does not apply here.
       Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019        Page 9 of 10
       State, 740 N.E.2d 137, 142 (Ind. Ct. App. 2000), trans. denied. Here, because

       neither Olson nor Mahoney was a party in the juvenile court’s adjudication of

       N.G., collateral estoppel does not apply. The State is not barred from

       prosecuting Olson and Mahoney for robbery.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-773 | November 4, 2019      Page 10 of 10
