MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     Dec 03 2015, 6:45 am
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
Chris Palmer                                            Gregory F. Zoeller
Marion County Public Defender                           Attorney General of Indiana
Agency
Indianapolis, Indiana                                   Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Howard Wilder,                                          December 3, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1503-CR-125
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge

                                                        The Honorable Jeffrey L. Marchal,
                                                        Judge Pro Tempore
                                                        Trial Court Cause No.
                                                        49G06-1412-F3-54217



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015       Page 1 of 13
[1]   Howard Wilder appeals his conviction for armed robbery as a level 3 felony.

      He raises one issue which we revise and restate as whether the State presented

      sufficient evidence to sustain his conviction. We affirm and remand.


                                      Facts and Procedural History

[2]   At approximately 8:30 a.m. on December 6, 2014, Davon Jackson, who

      worked at the Dollar General Store on North High School Road in

      Indianapolis, noticed Wilder engaging in what she considered odd behavior

      while she was restocking shelves in the health and beauty section of the store.

      Jackson observed Wilder, who was wearing a white t-shirt, blue jeans, and a

      blue zipped-up hooded sweatshirt, pick up several bottles of lotion from the

      shelves, and, as he walked into the aisle where Jackson was working, she

      noticed the outline of several items under his t-shirt.


[3]   Jackson approached Wilder and requested that he give back the merchandise

      from under his shirt. At that point, he did not respond to her request, and she

      called for another employee to assist her. The other employee did not come to

      her assistance, and Wilder moved towards Jackson while she backed up. He

      continued to move towards her and he raised his t-shirt, resulting in the product

      under his shirt falling to the floor. While Wilder was still moving towards

      Jackson, he said “[w]hat, [b]itch,” pulled a handgun from his sweatshirt,

      cocked it, and struck Jackson in the face with the gun. Transcript at 8. Jackson

      stumbled backwards into a display table, Wilder walked past her, and he left the

      store without taking any merchandise with him.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 2 of 13
[4]   After Wilder left the store, Jackson called 911, and Indianapolis Metropolitan

      Police Officer Christopher Carmack was dispatched to the scene. As a result of

      the blow to her face, Jackson sustained a cut under her eye but refused medical

      treatment for the injury. Officer Carmack drove his patrol car around the store

      in search of someone matching Wilder’s description, noticed Wilder, confirmed

      his description, and ordered him to stop. Wilder was placed under arrest and

      told the officers he had been at his brother’s home, which was located behind

      the store. No gun was found in a search following the incident. Jackson was

      driven to the area where Wilder was arrested, and she identified him as the

      perpetrator.


[5]   On December 8, 2014, the State charged Wilder with Count I, robbery resulting

      in bodily injury as a level 3 felony; Count II, armed robbery as a level 3 felony;

      Count III, battery by means of a deadly weapon as a level 5 felony; and Count

      IV, carrying a handgun without a license as a Class A misdemeanor.


[6]   Wilder waived his right to trial by jury and the court held a bench trial on

      February 12, 2015. At trial, Wilder orally moved for judgment on the evidence

      as to Counts I and II, arguing that the State had not “established a nexus

      between the taking and the use or threat of force,” which the court denied. Id.

      at 35. During closing argument, Wilder’s counsel argued that he was

      “shoplifting” and that his actions in the store amounted to “taking of the items,

      a confrontation, a relinquishing of the items, then him attempting to get out of

      the store . . . .” Id. at 37. The court then found that the State had met its

      burden of proof and found Wilder guilty of Counts I, II, III, and IV.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 3 of 13
[7]   On March 5, 2015, the court held a sentencing hearing and entered judgments

      of conviction on only Counts II, armed robbery, and IV, carrying a handgun

      without a license due to double jeopardy concerns. The court sentenced Wilder

      on Count II to a term of twelve years with six years executed in the Department

      of Correction and six years suspended to probation, and to a concurrent one

      year executed sentence on Count IV.


                                                  Discussion

[8]   The issue is whether the evidence is sufficient to sustain Wilder’s conviction for

      armed robbery. When reviewing the sufficiency of the evidence to support a

      conviction, we must 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 witness credibility or reweigh the evidence. Id. We

      consider conflicting evidence most favorably to the trial court’s ruling. Id. We

      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)). It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

      is sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id.


[9]   Wilder argues that he left the store without any merchandise, that there was an

      “insufficient nexus between Wilder’s use of force and his attempt to steal

      merchandise from the store,” and that his actions showed that his intent was

      “to steal the items by concealment, not by use of force or threat of force.”
      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 4 of 13
       Appellant’s Brief at 9. He maintains that he “abandoned” the merchandise

       when approached by Jackson, that his use of force came as he was attempting

       to leave the store and not before or during the taking, and that the possession of

       a gun while he was “shoplifting bottles of lotion” does not establish that he had

       the intent to accomplish the theft by force. Id. He posits that, at most, he

       would be “guilty of attempted theft” and “perhaps an additional offense for

       hitting Jackson with the gun.” Id. at 10.


[10]   The State’s position is that “as soon as Wilder threatened force and placed

       Jackson in fear while carrying the stolen merchandise, he committed robbery.”

       Appellee’s Brief at 6. It further maintains that his use of the handgun was a part

       of the act of robbery, and that “Wilder’s actions were so closely linked in time

       and circumstance that they cannot be separated.” Id. The State also contends

       that, contrary to Wilder’s claim that he abandoned the merchandise before

       striking Jackson, his actions were “not unequivocally an act of abandonment,

       but [they] [were] part of an overall act of threatening violence and intimidation

       of Jackson.” Id. at 7. In the alternative, the State argues that should this Court

       determine that the evidence presented is insufficient to support an armed

       robbery conviction, the evidence is sufficient to support the lesser-included

       crime of attempted armed robbery. The State observes that Wilder’s entry into

       the store “with the intent to steal” while “armed with a deadly weapon is

       indicative [] that he was aware of the high probability that he may commit

       robbery” and is a substantial step toward accomplishment of that purpose. Id.

       at 9.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 5 of 13
[11]   Ind. Code § 35-42-5-1 governs the offense of armed robbery and 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 . . . .


[12]   An attempt crime is governed by Ind. Code § 35-41-5-1(a), which provides that

       “[a] person attempts to commit a crime when, acting with the culpability

       required for commission of the crime, the person engages in conduct that

       constitutes a substantial step toward commission of the crime,” and further

       provides that “[a]n attempt to commit a crime is a felony or misdemeanor of

       the same level or class as the crime attempted.” Attempted armed robbery is an

       included offense of armed robbery. See Ind. Code § 35-31.5-2-168(2) (providing

       that an included offense is one that “consists of an attempt to commit the

       offense charged or an offense otherwise included therein”). A “substantial

       step” toward the commission of a crime, for purposes of the crime of attempt, is

       any overt act beyond mere preparation and in furtherance of intent to commit

       an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 6 of 13
[13]   The evidence presented at trial shows that Wilder entered the store while armed

       with a handgun and placed bottles of lotion under his shirt. When questioned

       by Jackson, he initially did not respond to her request to return the

       merchandise, moved towards her, lifted his t-shirt, resulting in the fall of the

       merchandise, pulled a gun from his person, and struck Jackson with the gun.

       We conclude that Wilder’s actions while in the Dollar General constituted a

       substantial step toward the commission of armed robbery.


[14]   To the extent Wilder argues on appeal that he abandoned the property, we

       observe that abandonment must be voluntary and “must in no way be

       attributable to the influence of extrinsic circumstances.” Barnes v. State, 269

       Ind. 76, 82, 378 N.E.2d 839, 843 (1978). Under the circumstances, we cannot

       say that Wilder voluntarily abandoned the merchandise.


[15]   We find Lund v. State, 264 Ind. 428, 345 N.E.2d 826 (Ind. 1976), to be

       instructive. In Lund, the defendant was charged with robbery of Perry Murphy,

       but the evidence revealed the commission of attempted robbery. 264 Ind. at

       430-431, 345 N.E.2d at 828. The Court observed that the evidence disclosed

       that “the defendant attempted an armed robbery of Murphy, an offense

       necessarily included in the charge of armed robbery of Murphy.” Id. at 431,

       345 N.E.2d at 828. The Court stated that “[o]ne who is charged with the

       commission of a crime may be convicted of an attempt to commit the charged

       offense, if the attempt as well as the contemplated act is itself proscribed.” Id. at

       431, 345 N.E.2d at 828-829 (citation omitted). The Court also observed that

       remand was not required because the completed act and the attempt were both

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 7 of 13
       proscribed by the same statute, the same penalty was provided for each, and the

       Court, therefore, saw “no harm to the defendant that he was sentenced for

       armed robbery rather than for an attempted armed robbery.” Id. at 431, 345

       N.E.2d at 829. Based upon Lund, we cannot say that reversal is required and

       affirm Wilder’s conviction. We remand for the limited purpose of correcting

       the abstract of judgment.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm Wilder’s conviction and remand.


[17]   Affirmed


       Riley, J., concurs.

       Altice, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 8 of 13
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Howard Wilder,                                          Court of Appeals Case No.
                                                               49A04-1503-CR-125
       Appellant-Plaintiff,

               v.

       State of Indiana,
       Appellee-Defendant.




       Altice, Judge, concurring in result with separate opinion.


[18]   I concur with my colleagues’ ultimate decision to affirm Wilder’s conviction. I

       also agree with the majority’s analysis of Wilder’s abandonment argument. I

       write separately, however, because I believe the State presented sufficient

       evidence to support Wilder’s conviction for the completed robbery, not just the

       attempted offense.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 9 of 13
[19]   Wilder’s failure to ultimately remove the merchandise from the store does not

       preclude his conviction for the completed robbery. As our Supreme Court has

       explained, asportation is an essential element of robbery, but the evidence of

       asportation need only establish that the property was moved a slight distance.

       Nelson v. State, 528 N.E.2d 453, 455 (Ind. 1988).


               In other words, it must appear that the property was taken from
               the possession of the victim into that of the robber. But the crime
               is consummated if the robber acquires possession of the property
               for even a short time, and his subsequent disposition of the
               property taken is immaterial.


       Id. (quoting Neal v. State, 14 N.E.2d 590, 596 (Ind. 1938)). In Nelson, our

       Supreme Court found sufficient evidence of asportation where the victim threw

       her purse at the robber, who then rummaged through the purse before

       abandoning it and fleeing without removing any of its contents. Id. at 454-55.

       See also Staton v. State, 524 N.E.2d 6, 6-8 (Ind. 1988) (finding sufficient evidence

       of asportation where robber rummaged through victim’s purse and dumped out

       contents).


[20]   The evidence in this case establishes that Wilder took the merchandise into his

       possession by placing it under his shirt. He still had possession of the

       merchandise when Jackson confronted him and he began walking toward her.

       Although the merchandise fell to the ground when Wilder raised his shirt,

       Wilder’s ultimate disposition of the merchandise is immaterial. Based on the

       above-cited case law, I would hold that the State presented sufficient evidence

       of asportation to support Wilder’s conviction for the consummated robbery.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 10 of 13
[21]   I would also reject Wilder’s argument that he is not guilty of robbery because

       the taking ended before he exerted any force. As an initial matter, the State was

       not required to prove that Wilder actually exerted force to support the robbery

       conviction. It was enough if the State proved that Wilder threatened the use of

       force or placed Jackson in fear. See I.C. § 35-42-5-1. The evidence presented in

       this case establishes that when Jackson confronted him, Wilder began walking

       toward Jackson. Jackson called out to another employee for help and began

       backing away. Wilder continued to advance toward Jackson as he lifted his

       shirt, causing the concealed merchandise to fall to the floor. I believe the events

       that took place before Wilder dropped the merchandise were sufficient to

       support a finding that Wilder threatened force and/or put Jackson in fear, and

       it is undisputed that he was armed throughout the entire encounter. See

       Kruckeberg v. State, 377 N.E.2d 1351, 1354 (Ind. 1978) (finding sufficient

       evidence to support armed robbery conviction even where victim was not aware

       defendant was armed).


[22]   Furthermore, I would conclude that Wilder’s actions in striking Jackson with

       the gun after he dropped the merchandise were sufficient to support a

       conclusion that Wilder used force in the commission of the robbery. As our

       Supreme Court has explained, “when the robbery and the violence are so

       closely connected in point of time, place, and continuity of action, they

       constitute one continuous scheme or transaction.” Young v. State, 725 N.E.2d

       78, 81 (Ind. 2000). In this case, Wilder dropped the merchandise mere

       moments before striking Jackson, and his use of force facilitated his escape from


       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 11 of 13
       the scene after Jackson confronted him. In my view, the taking and the use of

       force were so closely linked as to be deemed a single, uninterrupted transaction.


[23]   I also find this court’s decisions in Cooper v. State, 656 N.E.2d 888 (Ind. Ct.

       App. 2000), and Nunley v. State, 995 N.E.2d 718 (Ind. Ct. App. 2013), clarified

       on other grounds on reh’g, 4 N.E.3d 669, trans. denied, instructive. In Cooper, the

       defendant grabbed a gun out of the victim’s back pocket and fled. 656 N.E.2d

       at 889. The victim pursued Cooper and tackled him. After a tussle, Cooper

       escaped with the gun. On appeal, Cooper argued that the evidence was

       insufficient to support his robbery conviction because the taking was not

       accomplished by force. This court rejected the argument, reasoning that

       Cooper used force in leaving the premises and the victim’s presence. Id.


[24]   In Nunley, the defendant was in the process of shoplifting DVDs when he was

       confronted by a store clerk, who stated that he was going to call the police. 995

       N.E.2d at 720. Nunley, who had by that time reached a breezeway located

       between the interior and exterior doors of the store, turned around and walked

       over to the clerk, shoved him, and told him not to call the police. On appeal,

       Nunley argued that that the theft had been completed when he exited through

       the first set of doors, and that the robbery conviction could not stand because

       physical confrontation with the clerk was not necessary to effectuate the taking.

       This court rejected that argument, reasoning that “the jury could have

       concluded that the confrontation was not a separate incident but was directly

       linked to [the clerk’s] questioning of Nunley, and was integral to Nunley’s

       attempt to complete the taking.” Id. at 721.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 12 of 13
[25]   Similarly, in Coleman v. State, 653 N.E.2d 481, 482 (Ind. 1995), the defendant

       pocketed five rolls of film at a supermarket and began to leave the store. A

       store manager followed Coleman just outside the store and confronted him.

       Coleman then pulled a knife and threatened the manager, who retreated into

       the store. On appeal, Coleman argued that he could not be found guilty of

       robbery because the theft had been effectuated before he threatened the

       manager. Our Supreme Court held that the conviction was supported by

       sufficient evidence because “Coleman could not have perfected the robbery

       without eluding [the manager].” Id. at 483.


[26]   Unlike Wilder, the defendants in Cooper, Nunley, and Coleman all ultimately

       removed the property from the location where the force occurred. I do not

       believe, however, that the actual removal of the property in those cases was

       essential. After all, our Supreme Court has held that the disposition of the

       property taken during a robbery is immaterial. Instead, I believe that these

       cases stand for the proposition that the use or threat of force in the escape from

       the scene of the taking elevates what would otherwise be theft to robbery. That

       is precisely what happened here. Accordingly, I would hold that the State

       presented sufficient evidence to support Wilder’s conviction for the completed

       robbery.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-125 | December 3, 2015   Page 13 of 13
