MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Nov 07 2019, 7:47 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Toby Lewis Webster,                                     November 7, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-683
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant W.
Appellee-Plaintiff                                      Hawkins, Judge
                                                        Trial Court Cause No.
                                                        49G05-1708-F3-30368



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019                  Page 1 of 11
[1]   Toby Lewis Webster appeals his convictions of Level 3 felony armed robbery 1

      and Level 5 felony battery by means of a deadly weapon. 2 He raises two issues

      on appeal: whether there was sufficient evidence to support his convictions and

      whether the convictions violate the Indiana Constitution’s double jeopardy

      clause. We affirm in part, reverse in part, and remand.



                                   Facts and Procedural History
[2]   Brian Cotterell and Webster were acquaintances who would purchase and use

      drugs together on the east side of Indianapolis. Cotterell knew Webster by

      Webster’s nickname, Twin. On June 5, 2017, Webster asked Cotterell to drive

      him to a Lowe’s Home Improvement store in Indianapolis. Cotterell agreed

      and picked Webster up in a ’93 Ford Econoline van. Webster agreed to give

      Cotterell money for gas, and the two travelled to the Lowe’s store. However,

      the store was closed when they arrived, and Cotterell drove to a Rickers gas

      station near the Lowe’s parking lot. Cotterell and Webster then began to argue

      about the gas money. They left the Rickers gas station and travelled down Post

      Road to a BP gas station. Cotterell drove the van up to the northern-most gas

      pump at the station and told Webster to exit the vehicle.




      1
          Ind. Code § 35-42-5-1.
      2
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 2 of 11
[3]   Their argument escalated, and Cotterell turned off the van’s ignition and started

      to exit the vehicle. Webster then angrily came over from the passenger seat to

      the driver’s seat with a folding knife and cut Cotterell in the left side rib cage

      area. Webster then started the van and began to drive away. Cotterell held

      onto the driver-side door with his feet on the running board, but Cotterell lost

      his grip as Webster drove away. He then hung onto the van with his feet

      dragging on the pavement for a short while before he fell off the van onto the

      street.


[4]   Cotterell called his girlfriend and then contacted 911. Cotterell suffered a torso

      wound from the knife and injuries to his feet. An ambulance arrived and

      Cotterell received medical treatment at the scene. Cotterell declined to be

      transported to a hospital. Detective Bradley Millikan responded to the scene.

      Cotterell spoke with Detective Millikan and gave him a description of Webster.

      He also relayed Webster’s nickname, Twin, and gave Detective Millikan the

      cell phone number associated with Twin.


[5]   Detective Millikan connected Twin’s phone number to Webster through a

      February 2019 Lawrence Police Department dispatch report. Detective

      Millikan assembled a photo array of black males. The first photo array did not

      include Webster, and Cotterell did not identify anyone in the first photo array.

      Detective Millikan assembled a second photo array as Twin, which included

      Webster, and Cotterell identified Webster as the perpetrator. Detective

      Millikan also reviewed surveillance footage from the BP gas station. On June

      8, 2017, the Hancock County Sheriff’s Department recovered Cotterell’s van in

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 3 of 11
      Greenfield, Indiana. Police searched the van for fingerprints, but they did not

      recover any identifiable prints.


[6]   Detective Millikan also prepared and submitted a search warrant for Webster’s

      cell phone records. Detective Adam Franklin analyzed the cell phone records.

      Detective Franklin testified that when a cell phone places a call or sends a text,

      the cell phone tower with the strongest signal to the phone will facilitate the

      call. He uses information provided by the phone companies to match up the

      date and time of a phone call or text with the cell phone tower that facilitated

      the call or text. This method allows him to determine the general area where a

      cell phone was located when it sent or received a call or text. He analyzed the

      call records from Webster’s cell phone on June 5, 2017, between 8:58 pm and

      11:55 pm. The data showed Webster’s cell phone made and received calls on

      the date of the crime, around the time of the crime, from the area where the

      crime occurred. The phone also made and received calls later in the evening

      while in Greenfield, Indiana, where Cotterell’s van was recovered.


[7]   On August 18, 2017, the State charged Webster with armed robbery and battery

      with a deadly weapon. The State later filed an information asserting Webster

      was a habitual offender. Webster waived his right to trial by jury on March 27,

      2018. After a hearing on September 17, 2018, the court granted Webster’s




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 4 of 11
      request to proceed pro se. A bench trial was held on November 15, 2018, and

      November 29, 2018. 3


[8]   After the court found Webster guilty on both counts, the following exchange

      took place:


              Court: . . . State, I’m not sure if I can sentence him on both 1 and
              2.


              State: I agree[.]


              Court: So as we stand here right now, although convicted on 1
              and 2, there may come a time when I’ll have to enter not guilty
              or show it dismissed.


      (Tr. Vol. III at 94.) The State then presented evidence that Webster was a

      habitual offender, and the court found that he was. On December 3, 2018, the

      court sentenced Webster to twelve years for armed robbery, enhanced by eight

      years because of the habitual offender finding, for an aggregate executed

      sentence of twenty years. The court merged the felony battery by means of a

      deadly weapon conviction into the armed robbery conviction.



                                  Discussion and Decision


      3
        Two cases against Webster were consolidated for bench trial because the facts were somewhat intertwined.
      The court tried Webster in the instant case and another case involving charges of conspiracy to commit
      criminal confinement and obstruction of justice. The court found Webster not guilty on the conspiracy and
      obstruction of justice charges, and we will not discuss those charges further.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019                Page 5 of 11
                                        Sufficiency of the Evidence

[9]    When reviewing the sufficiency of the evidence to support a conviction, we

       look only to the probative evidence and the reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence does

       not need to overcome every hypothesis of innocence. Id. at 147. We do not

       reweigh the evidence, nor do we assess the credibility of the witnesses. Stokes v.

       State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied. “The

       conviction will be affirmed if there is substantial evidence of probative value to

       support the conclusion of the trier of fact.” Id. The testimony of a single

       eyewitness is enough to sustain a conviction. Emerson v. State, 724 N.E.2d 605,

       609-10 (Ind. 2000), reh’g denied. “It is for the trier of fact to resolve conflicts in

       the evidence and to decide which witnesses to believe or disbelieve.” Ferrell v.

       State, 746 N.E.2d 48, 51 (Ind. 2001). We will reverse “only when no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt.” McMiller v. State, 90 N.E.3d 672, 675 (Ind. Ct. App. 2017).


[10]   A person commits Level 3 felony armed robbery if he knowingly or

       intentionally takes property from another person by using force or threatening

       to use force, while armed with a deadly weapon or in a way that causes bodily

       injury to another person. Ind. Code § 35-42-5-1. A person commits Level 5

       felony battery with a deadly weapon if he touches another person in a rude,

       insolent, or angry manner with a deadly weapon. Ind. Code § 35-42-2-1.


[11]   Webster argues there is insufficient evidence to support his convictions because

       of apparent inconsistencies between Cotterell’s testimony and the rest of the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 6 of 11
       evidence. For example, Cotterell testified that Webster stabbed him with a

       folding knife, but police did not recover a folding knife in the course of their

       investigation. Further, while Cotterell told detectives that he had met Webster

       through work, the two had never worked together. Cotterell’s statements are

       unclear about whether he was inside the van or outside the van when Webster

       stabbed him, and the BP station surveillance video does not show Webster

       stabbing Cotterell. In the pictures of Cotterell taken at the scene, Cotterell’s

       shirt is not torn or bloodstained. Finally, no fingerprint or DNA evidence links

       Webster to the crime.


[12]   However, Webster’s argument is simply an invitation for us to reweigh the

       evidence, which we may not do. See Krueger v. State, 56 N.E.3d 1240, 1243

       (Ind. Ct. App. 2016), trans. denied. Cotterell testified that Webster used a knife

       to stab him and steal his van. Cotterell identified Webster in a photo array and

       during his testimony at trial. Police took pictures of Cotterell’s injuries, and the

       State presented evidence that Webster’s cell phone was in the area of the crime

       on the date of the crime and at the time of the crime. A few hours after the

       crime, Webster’s cell phone was in Greenfield, where Cotterell’s van was

       ultimately recovered. While Webster’s fingerprints were not found in the van,

       neither were Cotterell’s fingerprints found there, which led the State to suggest

       that someone wiped down the van so that no fingerprints would be present.


[13]   Neither the nature of the relationship between Cotterell and Webster nor

       Cotterell’s refusal of medical attention is relevant to whether Webster

       committed armed robbery. Finally, we are not surprised the folding knife was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 7 of 11
       not found because Webster was arrested approximately two months after the

       date of the crime. Consequently, we hold the State presented sufficient

       evidence to support Webster’s convictions. See Gorman v. State, 968 N.E.2d

       845, 851 (Ind. Ct. App. 2012) (holding eyewitness’ unequivocal testimony

       identifying the defendant as perpetrator and statement that defendant was

       armed with a gun was sufficient to support armed robbery conviction), trans.

       denied.


                                               Double Jeopardy

[14]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” Ind. Const. art. 1, § 14.


                 Two offenses are the ‘same offense’ in violation of Indiana’s
                 Double Jeopardy Clause if, with respect to either the statutory
                 elements of the challenged crimes or the actual evidence used to
                 convict, the essential elements of one challenged offense also
                 establish the essential elements of another challenged offense.
                 We review de novo whether a defendant’s convictions violate this
                 provision.


       Shultz v. State, 115 N.E.3d 1280, 1283 (Ind. Ct. App. 2018) (internal citation

       omitted) (emphasis in original).


                 If a trial court does not formally enter a judgment of conviction
                 on a jury verdict of guilty, then there is no requirement that the
                 trial court vacate the ‘conviction,’ and merger is appropriate.
                 However, if the trial court does enter judgment of conviction on a
                 jury’s guilty verdict, then simply merging the offenses is
                 insufficient and vacation of the offense is required.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 8 of 11
       Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (internal citation

       omitted). A trial court may withhold entering a judgment of conviction after a

       guilty finding in order to avoid violating the prohibition against double

       jeopardy. Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010) (trial court

       accepted jury’s guilty verdict for robbery but declined to enter judgment of

       conviction because robbery count merged with other counts), reh’g denied.


[15]   Both the armed robbery offense and the battery with a deadly weapon offense

       stem from Webster cutting Cotterell with a knife and stealing his van. Webster

       argues the court entered judgment of conviction on both offenses in violation of

       the Indiana Constitution’s double jeopardy prohibition. The following

       exchange took place when the court announced its verdict:


               Court: I think the next step is for the Court to enter judgment. I
               find . . . Mr. Webster, I’m sorry. Guilty of [armed robbery and
               battery with a deadly weapon] . . . State, I’m not sure if I can
               sentence him on both 1 and 2.


               State: I agree[.]


               Court: So as we stand here right now, although convicted on 1
               and 2, there may come a time when I’ll have to enter not guilty
               or show it dismissed.


       (Tr. Vol. III at 94.) At the beginning of the sentencing hearing, the trial court

       stated: “If I remember correctly, Mr. Webster was convicted of Counts 1 and 2 .

       . . .” (Id. at 121.) An oral statement by the trial court that it is entering a

       judgment of conviction or acquittal is sufficient to enter judgment. See Stott v.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 9 of 11
       State, 822 N.E.2d 176, 178 (Ind. Ct. App. 2005) (holding trial court was bound

       by its oral pronouncement that it would enter judgment of acquittal on one

       count of child molesting, so neither the chronological case summary nor the

       abstract of judgment could show the defendant was convicted of that count),

       trans. denied. The trial court’s statements noted above that its next step was “to

       enter judgment,” that Webster stood “convicted on 1 and 2,” and that he “was

       convicted” indicate entry of judgments of conviction on both counts.


[16]   At the sentencing hearing, the court explained to Webster: “You’ll only be

       sentenced on Count 1 [armed robbery], we’ll show Count 2 [battery with deadly

       weapon] merged into Count 1 since most of the activities involved in Count 2

       occurred in Count 1, and we’re not going to sentence you twice for the same

       thing.” (Tr. Vol. III at 123.) Additionally, the sentencing order provides the

       battery by means of a deadly weapon “conviction merged” with the armed

       robbery conviction and the trial court sentenced Webster only on the armed

       robbery conviction. (App. Vol. II at 20.) However, as noted in Kovats, merging

       offenses after judgments of conviction have been entered is insufficient to

       eliminate the double jeopardy violation. 982 N.E>2d at 414-415. Instead,

       Webster’s conviction of battery by means of a deadly weapon should have been

       vacated. See Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017) (holding

       order that did not specifically delineate on which counts court entered judgment

       of conviction and that stated counts “merge for purposes of sentencing”

       effectively entered judgment of conviction on both counts in violation of the

       prohibition against double jeopardy). Consequently, we reverse Webster’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 10 of 11
       conviction of battery by means of a deadly weapon and remand for the trial

       court to vacate the improperly merged conviction. See Kovats, 982 N.E.2d at

       414 (remanding for trial court to vacate improperly merged conviction).



                                               Conclusion
[17]   There is sufficient evidence to support Webster’s armed robbery conviction

       because Cotterell testified Webster used a knife to stab him and then stole his

       van. However, the trial court improperly merged the battery with a deadly

       weapon count and the armed robbery count in violation of Indiana’s

       prohibition against double jeopardy. Therefore, we affirm Webster’s conviction

       of armed robbery, reverse his conviction of battery by means of a deadly

       weapon, and remand for the trial court to vacate the improperly merged battery

       conviction.


[18]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-683 | November 7, 2019   Page 11 of 11
