                                                                                FILED
                                                                           May 10 2016, 5:38 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                     Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Pugh,                                             May 10, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1506-CR-483
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Lisa F. Borges,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 49G04-1311-FA-71137




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016                         Page 1 of 29
                                          Statement of the Case
                                                                                   1
[1]   Michael Pugh appeals his convictions of two counts of rape, both Class A
                                                                               2
      felonies; one count of attempted criminal deviate conduct, a Class A felony;
                                      3                                                4
      one count of robbery, a Class B felony; three counts of carjacking, all Class B

      felonies; one count of robbery, a Class A felony; one count of robbery, a Class
                                                             5
      C felony; and one count of burglary, a Class A felony. We affirm.


                                                         Issues
[2]   Pugh presents six issues for our review, which we consolidate and restate as:

                 I.       Whether the trial court abused its discretion by admitting
                          evidence obtained as a result of an alleged unlawful
                          seizure of Pugh.
                 II.      Whether there was sufficient evidence to convict Pugh as
                          an accomplice of rape, attempted criminal deviate
                          conduct, and carjacking.
                 III.     Whether Pugh’s convictions of three counts of robbery
                          violate the single larceny rule.
                 IV.      Whether Pugh’s two rape convictions constitute a single
                          offense under the continuing crime doctrine.




      1
          Ind. Code § 35-42-4-1 (1998).
      2
          Ind. Code §§ 35-41-5-1 (1977); 35-42-4-2 (1998).
      3
          Ind. Code § 35-42-5-1 (1984).
      4
          Ind. Code § 35-42-5-2 (1993).
      5
          Ind. Code § 35-43-2-1 (1999).


      Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016               Page 2 of 29
                 V.     Whether the trial court erred in denying Pugh’s motion for
                        a mistrial.

                                 Facts and Procedural History
[3]   Beginning in the late evening hours of October 28, 2013, and into the early

      morning hours of October 29, 2013, Pugh, Trae Spells, Alexander Dupree,

      Adrian Anthony, and Demetre Brown were hanging out at an apartment at 34th

      and Meridian Streets in Indianapolis. During their time together, these men

      drank alcohol, smoked marijuana laced with embalming fluid, and consumed
             6
      Spice and pills. At some point, the five men left the apartment and drove to a

      liquor store in a Thunderbird that Pugh had borrowed. At the liquor store they

      bought a bottle of peach vodka that everyone in the car shared. They then

      drove to a neighborhood where they obtained cocaine. They all used the

      cocaine, drove back to the liquor store for more alcohol, and then drove to a

      party. Eventually the five men left the party taking Isaiah Hill with them.


[4]   That same night, a family consisting of a husband, wife, and adult daughter,

      living in a home on the northeast side of Indianapolis, did not close their

      overhead garage door nor lock the access door from the garage to the home

      when they went to bed. At approximately 5:15 a.m., after having consumed the

      alcohol and drugs, the carload of men drove through the neighborhood and




      6
       Spice is a mix of herbs and manmade chemicals with mind-altering effects. It is often called “synthetic
      marijuana” or "fake weed" because some of the chemicals in it are similar to ones in marijuana; but its effects
      are sometimes very different from marijuana, and frequently much stronger. NIDA FOR TEENS,
      http://teens.drugabuse.gov/drug-facts/spice (last visited May 2, 2016).

      Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016                            Page 3 of 29
      noticed the open garage door. The men parked down the street and walked up

      the driveway of the house and into the garage. Once in the garage, the men

      each took gloves they found in the garage and put them on, except Spells who

      had his own gloves. Pugh opened the unlocked access door to the house, and

      the group entered the home. Brown and Anthony had guns, and the gun

      carried by Brown belonged to Pugh.


[5]   The men went upstairs where the bedrooms were located, and Anthony went

      into the room of the husband and wife wielding his gun. The husband and wife

      were awakened by the bedroom light being turned on and male voices around

      their bed repeatedly yelling for cash, cell phones, and guns and threatening

      them that if they lied or failed to keep their heads down, they would be killed.

      The daughter, in her bedroom, awoke to people yelling for cash in her parents’

      bedroom. She took her purse into their bedroom and handed it to the first

      person she came upon hoping to placate the intruders. Spells and Brown

      escorted her back to her bedroom and told her to lie face down on her bed while

      they searched her room for items to steal. One of them told the daughter she

      had “a nice butt,” and someone touched her leg and then moved his hand up

      her leg and inside her shorts to touch her vaginal area. Tr. p. 173. The men

      asked the daughter if she had any money, and she responded that she had a

      student loan of $9,000 in her bank account.


[6]   The husband, who has a neurological disorder that makes it very difficult for

      him to walk without braces on his legs, was told to stay in bed with the sheet

      over his head. At one point, the men asked the husband a question and, when

      Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 4 of 29
      he did not respond quickly enough, they hit him over the head with the drawer

      of the nightstand saying that when they asked a question they expected an

      answer right away.


[7]   Meanwhile, the wife attempted to get to the phone in an upstairs office to call

      911, but as she was running down the hallway Anthony shot her in the hip.

      Bleeding from the wound, the wife was taken downstairs and walked out to one

      of the family’s cars. Again, she attempted to run for help, but she tripped and

      fell. She was tackled and dragged back into the house where Anthony shot her

      in the foot. She fell to the floor, and one of the men kicked her in the head so

      hard she saw blue and stars.


[8]   Having been shot twice and kicked in the head, the wife was then taken out to

      one of the family’s cars and put in the back seat with Anthony, while another of

      the men drove the car to an ATM. On the drive, the men showed the wife the

      ATM card they had taken from the house. She told them the card was her

      daughter’s and that she did not know the pin number, so the men turned

      around and drove back to the house. On the way, Anthony pulled down the

      wife’s pants and attempted anal intercourse while he was groping her body with

      his hands. When that proved unsuccessful, Anthony turned the wife around

      and forced her to perform fellatio. When he ejaculated into her mouth, he

      threatened her, “You better swallow or I’ll kill you.” Id. at 111. The wife

      yielded to the threat. Anthony checked her mouth and then wiped out her

      mouth with a piece of cloth.



      Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 5 of 29
[9]    After returning to the house and getting the husband’s ATM card, the wife was

       forced to drive the car back to the ATM with Anthony in the front passenger

       seat holding a gun on her. During the drive, the wife initiated a personal

       conversation with Anthony in an attempt to “make him think about what he

       was doing” and make him realize that it “wasn’t something that he had to be

       doing.” Id. at 117. The wife withdrew $800 at the ATM and was told to get

       more in a second transaction, but that transaction was denied. Anthony also

       told the wife to tell his cohorts that the amount she was able to withdraw was

       $500.


[10]   Following the ransacking of the daughter’s room, Spells led her downstairs to

       the kitchen area, sat her in a kitchen chair, and told her to keep her eyes shut or

       she would be shot. Hill grabbed the daughter by her hair and forced her into a

       small bathroom off the kitchen. Dupree also went into the bathroom. Hill sat

       on the toilet and Dupree sat on the sink. While Dupree forced the daughter to

       perform fellatio, Hill attempted to have forced vaginal intercourse with her

       from behind. When Dupree was finished, Hill took the daughter into the den

       and put her on a couch. Spells, Dupree and Brown followed them into the den.

       Hill then forcibly had vaginal intercourse with the daughter while commanding

       her “[M]oan, bitch.” Id. at 204. When Hill finished, Dupree attempted anal

       intercourse, but was unsuccessful. Dupree then forced vaginal intercourse on

       the daughter. When Dupree finished, Brown moved the daughter from the

       couch to the floor and then forced vaginal intercourse on her. Spells left the

       den and went to the stairs where he encountered Pugh. Pugh asked what was


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 6 of 29
       happening, and Spells told him the men were having sex with the daughter,

       which Pugh said he did not believe. Pugh instructed Spells to go upstairs to the

       second floor to guard the husband, and he continued on down the stairs. Spells

       went upstairs, checked on the husband, and then returned to the first floor.

       When Spells returned to the den, Brown finished and told Spells to “get some.”

       Id. at 1028. Initially Spells declined but then went ahead and had vaginal

       intercourse with the daughter.


[11]   When the wife and Anthony returned to the house, the daughter was being led

       out to a car. The wife asked to be allowed to go with her daughter or to go in

       her stead because she could see that her daughter was upset and she knew her

       daughter was not good with directions. Her plea was refused, and she was

       taken into the house and told to lie down in the entryway.


[12]   Anthony then took the daughter to the ATM at gunpoint. While she was

       withdrawing the money, he reached across the seat and began touching her

       vagina. At a stoplight on the return trip, Anthony demanded that the daughter

       kiss him.


[13]   Meanwhile, as the wife was lying in the entryway, the voices and noise

       gradually decreased. As the wife started to get up to go for help, the front door

       opened, and her daughter and Anthony entered. Anthony asked where the

       other men were, and the wife told him they were gone. Anthony took the

       women upstairs to the master bedroom, told them to lie down on the floor, and

       left the house. The men took three of the family’s four cars that they had


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 7 of 29
       loaded with items from the house and then transferred the stolen items to a shed

       behind Dupree’s mother’s house.


[14]   The next day, officers investigating the home invasion learned that a print taken

       from the sink in the downstairs bathroom of the home had been connected to

       Dupree. The ensuing investigation of Dupree included his cell phone records,

       which showed frequent interaction between Dupree’s number and a number

       that the police database linked to Pugh. In addition, the police pulled a photo

       of Pugh that showed he wore his hair in dreadlocks. The victims had told the

       police that one of the men that invaded their home had dreadlocks. Based upon

       this information, the police began surveillance of Pugh as well.


[15]   Later that day, officers located Pugh driving the Thunderbird in Indianapolis

       and to the apartment at 34th and Meridian Streets where the men had been the

       previous night. The police also had information that Dupree’s cell phone was

       in the same apartment building at the time Pugh went there. Pugh parked and

       went into the apartment building. Later, Pugh, and two other persons the

       police could not identify by sight, exited the building and got into the

       Thunderbird. The driver of the Thunderbird began to drive away, with Pugh as

       the front passenger, but then immediately pulled into an alley and stopped. At

       that time, the order was given for officers to approach the vehicle. The officer

       who first approached the Thunderbird saw Pugh lean forward and then down

       “as though he were reaching or retrieving something from under the . . . seat.”

       Id. at 936. Pugh was removed from the car and handcuffed, the officer then

       saw the butt of a gun sticking out from under the front passenger seat. After

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016     Page 8 of 29
       being advised of his Miranda rights, Pugh stated that the gun was his, he was the

       only person that would have possession of the handgun, and he was the last

       person to have possession of that handgun. The officers seized the gun, and

       subsequent testing revealed that blood splattered inside the end of the barrel

       belonged to the wife.


[16]   Based upon this violent home invasion, Pugh was charged with thirty-five

       counts: four counts of rape, as Class A felonies; twelve counts of criminal

       deviate conduct, as Class A felonies; two counts of attempted criminal deviate

       conduct, as Class A felonies; three counts of carjacking, as Class B felonies; two

       counts of robbery, as Class B felonies; three counts of criminal confinement, as

       Class B felonies; two counts of intimidation, as Class C felonies; one count of

       aggravated battery, as a Class B felony; one count of robbery, as a Class A

       felony; one count of battery by bodily waste, as a Class A misdemeanor; two

       counts of battery, as Class C felonies; one count of battery, as a Class A

       misdemeanor; and one count of burglary, as a Class A felony.


[17]   Prior to trial, Pugh filed a motion to suppress alleging the officers illegally

       seized him, which resulted in the illegal seizure of his handgun and his

       statement to police. Following a hearing on Pugh’s motion, the trial court

       denied it. At trial, Pugh objected to the admission of the handgun as well as his

       statement to the police, but the trial court overruled his objection and admitted

       the evidence. Near the end of trial, Pugh moved for a mistrial after the bailiff

       informed the court that two jurors had inquired as to what Pugh was drawing

       during the trial proceedings. The trial court denied Pugh’s motion.

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016      Page 9 of 29
[18]   At the conclusion of its evidence, the State dismissed seven of the charges

       against Pugh, and the remaining twenty-eight charges were submitted to the

       jury. The jury found Pugh guilty of twenty of those charges. At sentencing, the

       trial court vacated ten counts, and reduced one count of Class B felony robbery

       to a Class C felony. The trial court sentenced Pugh to an aggregate sentence of

       248 years. This appeal ensued.


                                     Discussion and Decision
                                      I.      Admission of Evidence
[19]   Pugh contends the trial court abused its discretion by admitting into evidence

       the seized handgun, his statement concerning the gun, and the results of testing

       on the gun. Specifically, Pugh asserts that the officer lacked reasonable

       suspicion to conduct an investigatory stop and thus violated his rights under

       both the federal and state constitutions.


[20]   The trial court is afforded wide discretion in ruling on the admissibility and

       relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

       On appeal, evidentiary decisions are reviewed for abuse of discretion and are

       reversed only when the decision is clearly against the logic and effect of the

       facts and circumstances. Id. In reviewing a trial court’s ruling on the

       admissibility of evidence from an allegedly illegal search, we do not reweigh the

       evidence. Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). Rather, we

       defer to the trial court’s factual determinations, unless clearly erroneous, and

       we consider conflicting evidence most favorable to the trial court’s ruling. Id.


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 10 of 29
       Further, we consider anew any legal question of the constitutionality of a search

       or seizure. Id.


[21]   The Fourth Amendment to the United States Constitution protects against

       unreasonable searches and seizures. Likewise, article I, section 11 of the

       Indiana Constitution protects citizens from unreasonable searches and seizures.

       Despite the similarity of the two provisions, Indiana courts interpret and apply

       article I, section 11 independently from Fourth Amendment analysis. Mitchell

       v. State, 745 N.E.2d 775, 786 (Ind. 2001).


                                              Fourth Amendment

[22]   Permissible under the Fourth Amendment’s protection against unreasonable

       searches and seizures is the Terry stop. A Terry stop allows an officer to briefly

       stop an individual for investigatory purposes if, based upon specific, articulable

       facts, the officer has a reasonable suspicion that “criminal activity may be

       afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       Reasonable suspicion entails at least a minimal level of objective justification

       that is more than an unparticularized suspicion or hunch. State v. Campbell, 905

       N.E.2d 51, 54 (Ind. Ct. App. 2009), trans. denied. However, the reasonable

       suspicion necessary for a Terry stop need not rise to the level of suspicion

       required for probable cause. Id. Whether the officer’s suspicion was reasonable

       is a fact-sensitive inquiry that must be determined on a case-by-case basis by

       considering the totality of the circumstances. Rutledge v. State, 28 N.E.3d 281,

       291 (Ind. Ct. App. 2015). For instance, a set of individually innocent facts,

       when observed in combination, can be sufficient to create reasonable suspicion
       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 11 of 29
       of criminal activity. Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003). In

       assessing the reasonableness of investigatory stops, courts must strike “a

       balance between the public interest and the individual’s right to personal

       security free from arbitrary interference by law [enforcement] officers.” Carter v.

       State, 692 N.E.2d 464, 466 (Ind. Ct. App. 1997).


[23]   Here, the officers had information that Dupree’s print had been found in the

       home, and they were trying to locate Dupree. In addition, because the victims

       had indicated to police that it was a group of men that had invaded their home,

       the officers were looking into anyone associated with Dupree. As part of the

       investigation, the officers obtained Dupree’s cell phone records. These records

       showed frequent interaction between Dupree’s cell phone and a cell phone

       number identified as Pugh’s. The officers then obtained a photo of Pugh which

       showed he had dreadlocks. Although the victims could give very little

       information about the men, they had indicated that one of the men had

       dreadlocks. Based upon this description and his connection to Dupree, Pugh

       was put under police surveillance.


[24]   On October 30, 2013, officers had information that Dupree’s cell phone was in

       an apartment building at 34th and Meridian Streets. That same day, officers

       were conducting surveillance on Pugh when he drove to that apartment

       building at 34th and Meridian Streets and went inside. He eventually exited the

       building with two persons police could not identify by sight because they were

       wearing hoodies. Pugh and the two others got into the car, with Pugh as the

       front passenger, and immediately pulled into an alley. When one of the officers

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 12 of 29
       conducting the surveillance approached the vehicle, he saw Pugh lean forward

       and then down toward the floorboard. For safety, the officer removed Pugh

       from the car and then saw the butt of a handgun sticking out from under the

       seat.


[25]   The totality of these circumstances indicate that when the officers detained

       Pugh, they already knew Dupree had been involved in the violent home

       invasion because of the print he left behind. They knew that Dupree’s cell

       phone was in the apartment building at the time that Pugh was there, that

       Dupree and Pugh were closely connected, and therefore that it was possible that

       Dupree was in the vehicle with Pugh. On these facts, we find the reasonable

       suspicion standard to be satisfied.


                                              Article I, Section 11

[26]   Concluding that the detention did not violate Pugh’s Fourth Amendment

       rights, we now turn to the separate argument under the Indiana Constitution.

       “The legality of a governmental search under the Indiana Constitution turns on

       an evaluation of the reasonableness of the police conduct under the totality of

       the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). The

       reasonableness of a search or seizure turns on a balance of: (1) the degree of

       concern, suspicion, or knowledge that a violation has occurred, (2) the degree of

       intrusion the method of the search or seizure imposes on the citizens’ ordinary

       activities, and (3) the extent of law enforcement needs. Myers v. State, 839

       N.E.2d 1146, 1153 (Ind. 2005). As we consider the reasonableness of a search

       or seizure, we give section 11 a liberal construction in favor of protecting
       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 13 of 29
       individuals from unreasonable intrusions on their privacy. State v. Gerschoffer,

       763 N.E.2d 960, 965 (Ind. 2002).


[27]   In this case the degree of concern, suspicion, or knowledge held by the police

       was strong. The crimes they were investigating were serious, and they had solid

       evidence linking Dupree to these crimes. The police had further evidence

       linking Pugh to Dupree and a description from the victims that matched Pugh.


[28]   The degree of intrusion was minimal here. The car in which Pugh was riding

       was already stopped in the alley when the officer approached, and the officers’

       main objective was to see if Dupree was in the car. It was Pugh’s movement

       inside the car in an effort to hide his gun that caused the interaction to intensify.


[29]   Lastly, the extent of law enforcement needs was great. The police were

       investigating a very violent home invasion where they had few leads. When

       they stopped the car, they were investigating the one piece of solid evidence

       they had by trying to locate Dupree as quickly as possible. Under the totality of

       the circumstances presented here, we conclude that the actions of the officers

       were reasonable.


[30]   Thus, we hold there was no violation of Pugh’s rights under either the Fourth

       Amendment or article 1, section 11. Accordingly, the trial court’s admission of

       the evidence flowing from the investigatory stop of Pugh was not in error.




       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 14 of 29
                                  II.      Sufficiency of the Evidence
[31]   Pugh was convicted under the theory of accomplice liability of two counts of

       rape of the daughter, one count of attempted criminal deviate conduct with

       regard to the daughter, and three counts of carjacking. He challenges all of

       these convictions on the basis that the State failed to present evidence sufficient

       to support them.


[32]   When we review a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor judge the credibility of the witnesses. Brasher v. State,

       746 N.E.2d 71, 72 (Ind. 2001). Instead, we consider only the evidence most

       favorable to the verdict and any reasonable inferences drawn therefrom. Id. If

       there is substantial evidence of probative value from which a reasonable fact-

       finder could have found the defendant guilty beyond a reasonable doubt, the

       verdict will not be disturbed. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind.

       2001).


[33]   In order to convict Pugh of rape, attempted criminal deviate conduct, and

       carjacking as an accomplice, the State was required to prove beyond a

       reasonable doubt that he knowingly or intentionally aided, induced, or caused

       another person to commit these offenses. See Ind. Code § 35-41-2-4 (1977). It is

       not necessary that the evidence show the accomplice personally participated in

       the commission of each element of the offense. Griffin v. State, 16 N.E.3d 997,

       1003 (Ind. Ct. App. 2014). A person who aids another in committing a crime is

       just as guilty as the actual perpetrator. Lothamer v. State, 44 N.E.3d 819, 822


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 15 of 29
       (Ind. Ct. App. 2015), trans. denied. Moreover, the accomplice is “criminally

       responsible for everything which follows incidentally in the execution of the

       common design, as one of its natural and probable consequences, even though

       it was not intended as part of the original design or common plan.” Griffin, 16

       N.E.3d at 1003.


[34]   There is no bright-line rule in determining accomplice liability; rather, the

       particular facts and circumstances of each case must be considered to determine

       whether a person participated in the offense as an accomplice. Castillo v. State,

       974 N.E.2d 458, 466 (Ind. 2012). In order for an accomplice’s conviction to

       stand:


                [T]here must be evidence of his affirmative conduct, either in the
                form of acts or words, from which an inference of a common
                design or purpose to effect the commission of a crime may be
                reasonably drawn. Each participant must knowingly or
                intentionally associate himself with the criminal venture,
                participate in it, and try to make it succeed. That said, the State
                need not show that [he] was a party to a preconceived scheme; it
                must merely demonstrate concerted action or participation in an
                illegal act.
       Griffin, 16 N.E.3d at 1003-04 (citations omitted).


[35]   While a defendant’s presence at the scene or lack of opposition to a crime,

       standing alone, is insufficient to establish accomplice liability, courts may

       consider presence in conjunction with other factors to determine whether one

       acted as an accomplice to a crime. Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct.

       App. 2014), trans. denied. The four factors relevant to this inquiry are: (1)


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 16 of 29
       presence at the scene of the crime, (2) companionship with another at the scene

       of the crime, (3) failure to oppose commission of the crime, and (4) course of

       conduct before, during, and after occurrence of the crime. Id.


                                           (1) Presence at the Scene

[36]   The evidence shows that Pugh donned a pair of gloves from the victims’ garage

       and that he led the gang into the house. For at least part of the time, he

       guarded the husband on the second floor of the house, and he remained in the

       home during the hours-long, violent home invasion.


                                      (2) Companionship at the Scene

[37]   The State presented evidence that Pugh provided the transportation to the scene

       in the borrowed Thunderbird. He was the first to enter the home from the

       garage with five other men, all of whom put on gloves before they entered the

       home. All of the men, including Pugh, went to the second floor of the home

       and confronted the sleeping family. Two of the men were armed with

       handguns, one of which belonged to Pugh. Pugh coordinated his behavior with

       that of his confederates during the violent, hours-long ordeal as they completely

       ransacked the house and shot the wife twice with his gun. While the men were

       searching the house, they called out to each other, sharing information

       concerning items of value they found or information they coerced from the

       victims. Pugh was present on the second floor of the home guarding the

       husband during part of the time that his confederates were raping and sexually

       violating the daughter on the first floor. When Pugh left his post guarding the


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 17 of 29
       husband and went to the first floor, he was specifically told that the rapes were

       occurring. Further, while the father was being guarded and the wife and

       daughter were enduring being shot and sexually violated, the men were loading

       the family’s property into at least one of the family’s cars. When the men had

       completed their raid, Spells left the house and was stopped by Pugh who told

       him that Anthony would be returning and that he was to go back to the house

       and wait for Anthony. Then Hill and Dupree drove the victims’ Mitsubishi,

       Spells drove the victims’ Infiniti, and Anthony drove the victims’ Ford. Pugh

       followed in the Thunderbird. The State’s evidence plainly demonstrates Pugh’s

       companionship with the other five men.


                            (3) Failure to Oppose Commission of the Crime

[38]   Pugh argues that because he did not believe his cohorts were raping the

       daughter, as evidenced by his statement to Spells, he cannot be said to have

       failed to oppose them. However, the evidence demonstrates that Pugh was in

       the home while these acts were occurring and that he need not have been

       physically present on the first floor to know what occurred there. The father,

       who was in his bedroom on the second floor, could hear “whooping going on

       so [he knew] that there[ ] [was] activity going on in the den, which is – which is

       down on the first floor. And [he heard] at one point somebody come out and

       go, ‘Woo wooo.’” Tr. p. 287. Moreover, even if Pugh did not believe Spells

       when he specifically told Pugh that their confederates were raping the daughter,

       he continued downstairs to the first floor armed with this information and did

       nothing to verify it and to stop or protest his confederates’ actions. The jury

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 18 of 29
       could reasonably conclude that Pugh knew, and possibly saw, what was

       happening yet did nothing to oppose the crimes being committed.


                                             (4) Course of Conduct

[39]   Pugh provided transportation during the evening’s activities of drug and alcohol

       gorging and to the home invasion, as well as providing one of the two handguns

       used in these offenses. He put on gloves before entering the home, and he led

       the gang’s entry into the home. For at least part of the time, he guarded the

       husband upstairs while the others ransacked the house and committed sex acts

       against the daughter. The State’s evidence demonstrated, generally, that the

       men loaded items of value from the home into at least one of the family’s cars.

       Pugh and the men left the residence and met up at a house. At some point,

       they transferred the stolen items from the cars to a shed behind Dupree’s

       mother’s house. Pugh, with Spells, Anthony, Brown, and Dupree, sold some of

       the victims’ property. The day after the home invasion, Pugh gave a friend a

       gold Michael Kors watch that the wife later identified as hers. The State also

       presented evidence that Pugh’s cell phone number appeared frequently in

       Dupree’s cell phone records. And, when Pugh was apprehended the day after

       the home invasion, he was in possession of the handgun he admitted was his

       and which was later shown to have been the gun that was used to shoot the

       wife.


[40]   We come to the question of whether the sex crimes of which Pugh was

       convicted were natural and probable consequences of the home invasion for the

       purpose of stealing whatever valuable property the six could find. Even though
       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 19 of 29
       such sex acts may not have been contemplated as part of the original purpose

       for the home invasion, Pugh would be liable as an accomplice for everything

       that followed incidentally as a natural and probable consequence of the

       invasion. See Griffin, 16 N.E.3d at 1003 (accomplice is responsible for

       everything which follows incidentally in execution of common design even

       though not part of original plan).


[41]   Here, the six males, after extensive use of drugs and alcohol, set out armed to

       find a home they could invade and burgle. The home they chose, given the

       circumstances, was likely occupied. The six went in prepared to do whatever

       they needed to do to succeed, and indeed they did. The six men used terror and

       intimidation to dominate and control their victims so they could strip them of

       their property. Where, as here, there are female victims, such domination and

       control can probably and naturally lead to acts of sexual domination and

       control like rape and criminal deviate conduct. The evidence in this case was

       sufficient to support the convictions of Pugh as an accomplice to rape and

       attempted criminal deviate conduct.


[42]   The main purpose of this home invasion was to take property of value. Taking

       the family’s vehicles was taking property of value and was ancillary to

       transporting the valuables taken from inside the home. The Thunderbird was

       not enough, alone, to transport the six men as well as all the stolen property.

       The State presented sufficient evidence to demonstrate that Pugh was an

       accomplice to the carjackings.



       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 20 of 29
                                        III. Single Larceny Rule
[43]   Next Pugh argues that his three robbery convictions violate the single larceny

       rule such that two of his convictions must be vacated. The single larceny rule

       has historically provided that “when several articles of property are taken at the

       same time, from the same place, belonging to the same person or to several

       persons there is but a single ‘larceny’, i.e. a single offense.” Raines v. State, 514

       N.E.2d 298, 300 (Ind. 1987). The rationale behind this rule has been that the

       taking of several articles at the same time from the same place is pursuant to a

       single intent and design, thus constituting one offense. Id. However, we note

       that although the single larceny rule has long been entrenched in Indiana law,

       over time the Indiana Supreme Court has substantially limited its application.

       See Curtis v. State, 42 N.E.3d 529, 534-37 (Ind. Ct. App. 2015) (discussing

       Ferguson v. State, 273 Ind. 468, 405 N.E.2d 902 (1980); McKinley v. State, 272

       Ind. 689, 400 N.E.2d 1378 (1980); and Bivins v. State, 642 N.E.2d 928 (Ind.

       1994)), trans. denied.


[44]   The State charged Pugh with three counts of robbery, with each count alleging

       a different victim. Count XIII alleged the men took from the daughter

       “currency, and/or computer, and/or jewelry, and/or keys, and/or television,

       and/or cellular phone.” Appellant’s App. pp. 156-57. Count XVIII alleged the

       men took from the wife “currency, and/or watch, and/or jewelry, and/or keys,

       and/or television, and/or cellular phone.” Id. at 158. In a similar manner,

       Count XXXIII alleged the men took from the husband “currency, and/or

       computer, and/or television, and/or cellular phone, and/or keys.” Id. at 163.

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016      Page 21 of 29
       Pugh claims that the items were all taken pursuant to a single intent and were

       all part of the same criminal transaction. He also asserts that it makes no

       difference that the items belonged to three different individuals.


[45]   Our Supreme Court has held that the single larceny doctrine “does not apply to

       the situation [ ] where a robber has taken the individual property of separate

       individuals.” Ferguson, 273 Ind. at 475, 405 N.E.2d at 906. Moreover, relief

       under the single larceny rule may be had only where the conduct constitutes a

       single act or transaction. Borum v. State, 951 N.E.2d 619, 627 (Ind. Ct. App.

       2011). In this case, the men’s actions occurred over an extended period of time

       and constituted multiple transactions. The men took property belonging

       separately to the husband, the wife, and the daughter over a period of several

       hours in the home. In addition, the wife was taken separately at gunpoint to a

       bank location several blocks away and was robbed of the money she obtained

       from her bank account. When the wife was returned to the home, the daughter

       was then taken separately at gunpoint to the bank location and was robbed of

       the money she obtained from her bank account. Thus, the single larceny rule

       does not apply here where the robbery of the husband, the robbery of the wife,

       and the robbery of the daughter were distinct transactions, some of which

       occurred at neither the same place nor the same time. See Bivins, 642 N.E.2d at

       944-45 (no violation of single larceny rule where defendant convicted of one

       count of theft for taking victim’s money, credit card, and car keys from motel

       room and second count of theft for taking victim’s car from motel parking lot).




       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 22 of 29
                                  IV. Continuing Crime Doctrine
[46]   Pugh claims that the two rapes of which he was convicted constitute a single

       transaction under the continuing crime doctrine such that one conviction

       should be vacated. The continuing crime doctrine establishes that actions that

       are sufficient to constitute separate criminal offenses may be so compressed in

       terms of time, place, singleness of purpose, and continuity of action as to

       constitute a single transaction. Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct.

       App. 2005), trans. denied. The doctrine involves those instances where a

       defendant’s conduct amounts to only a single, chargeable crime such that the

       State is prevented from charging a defendant twice for the same offense. Id.


[47]   Here, Count III charged that Demetre Brown, Adrian Anthony, Alexander

       Dupree, Michael Pugh, Trae T. Spells and Isaiah Hill did knowingly have

       sexual intercourse with the daughter when she was compelled by deadly force

       or the threat of deadly force inside the bathroom and/or den. Appellant’s App.

       p. 152. Count IX charged that Demetre Brown, Adrian Anthony, Alexander

       Dupree, Michael Pugh, Trae T. Spells and Isaiah Hill did knowingly have

       sexual intercourse with the daughter when she was compelled by deadly force

       or the threat of deadly force inside the den. Id. at 155. Pugh argues that both

       offenses had to have occurred in the den because the daughter testified that

       there was no penetration in the bathroom and that all the rapes in the den

       occurred “one immediately after the other” so as to constitute a single offense.

       Appellant’s Br. p. 42.



       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016   Page 23 of 29
[48]   As to the rape that occurred in the bathroom, the daughter testified at trial as

       follows:

               Daughter:         I could just like feel their penis kind of touching my
                                 vagina.
               Counsel:          You say, kind of touching?
               Daughter:         It’s the outside of my vagina. I guess they weren’t
                                 really able to like penetrate I guess at that point.
               Counsel:          Okay. So when you say that they were trying to,
                                 then that you mean that the penis was touching
                                 your vagina, but they weren’t able to achieve a full
                                 penetration?
               Daughter:         I don’t think so, yeah.
       Tr. p. 197. Indiana Code section 35-31.5-2-302 (2012) defines sexual

       intercourse as an act that includes any penetration of the female sex organ by

       the male sex organ. This Court has clarified that this statute does not require

       that the vagina be penetrated; instead, evidence of the slightest degree of

       penetration by the male sex organ of the female sex organ, including the

       external genitalia, is sufficient. See Atteberry v. State, 911 N.E.2d 601, 609 (Ind.

       Ct. App. 2009). Thus, the daughter was raped in the bathroom. She was then

       moved out of the bathroom and into the den where she was raped four more

       times by three different men. Accordingly, these facts demonstrate at least two

       distinct offenses of rape and the continuing crime doctrine is not applicable.


[49]   Furthermore, even if Count III was considered as a rape that occurred in the

       den and not the bathroom, the continuing crime doctrine would still not apply.

       The evidence was clear that four different rapes occurred in the den. The


       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016           Page 24 of 29
       daughter was taken into the den and first raped on the couch by Isaiah Hill.

       Hill removed himself, and Dupree raped the daughter after unsuccessfully

       attempting anal intercourse. Brown then moved the daughter from the couch to

       the floor and raped her, after which, Spells raped her.


[50]   We find these facts similar to those in Firestone v. State, 838 N.E.2d 468 (Ind. Ct.

       App. 2005). There, Firestone raped his victim while another person held her

       down. Firestone then climbed on top of her, held her down, and forced her to

       perform fellatio on him. This Court held that Firestone had clearly committed

       two different offenses at different times by first having his penis penetrate the

       victim’s vagina and then, in a separate offense, placing his penis in her mouth.

       Id. at 472.


[51]   The continuous crime doctrine applies only where a defendant has been

       charged multiple times with the same “continuous” offense. Hines v. State, 30

       N.E.3d 1216, 1220 (Ind. 2015). The continuity of these men’s actions (i.e.,

       raping the daughter in succession) does not negate the fact that these acts were

       completely separate offenses committed at separate times, some in a separate

       place (couch/floor), and each time by a different perpetrator. Following the

       logic of Firestone, these men clearly committed distinct, chargeable crimes at

       different times. Therefore, the rape in the bathroom and each rape in the den

       was separate in time from the other, and the continuing crime doctrine does not

       apply to Pugh’s rape convictions.




       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 25 of 29
                                         V.      Motion for Mistrial
[52]   Finally, Pugh asserts that the trial court erred by denying his motion for a

       mistrial. A mistrial is an extreme remedy warranted only when no other

       curative measure will rectify the situation. Donnegan v. State, 809 N.E.2d 966,

       972 (Ind. Ct. App. 2004), trans. denied. To prevail on appeal from the denial of

       a motion for mistrial, the defendant must establish that he was placed in a

       position of grave peril to which he should not have been subjected. Williams v.

       State, 755 N.E.2d 1128, 1132 (Ind. Ct. App. 2001), trans. denied. The gravity of

       the peril is determined by considering the misconduct’s probable persuasive

       effect on the jury’s decision. Id. A trial court is in the best position to

       determine whether a mistrial is warranted because it evaluates first-hand all

       relevant facts and circumstances at issue and their impact on the jury. Weisheit

       v. State, 26 N.E.3d 3, 15 (Ind. 2015), cert. denied, 136 S. Ct. 901, 193 L. Ed. 2d

       796 (2016). Accordingly, we review the trial court’s denial of a motion for a

       mistrial for an abuse of discretion. Id. “However, the correct legal standard for

       a mistrial is a pure question of law, which we review de novo.” Ramirez v. State,

       7 N.E.3d 933, 935 (Ind. 2014).


[53]   On the last day of trial, the court notified the parties that two jurors had asked

       the bailiff what Pugh was drawing and that the jurors had expressed concern

       that he was drawing pictures of them. Pugh’s counsel responded that he had

       asked Pugh to do something during trial to distract himself so Pugh was

       drawing pictures of his wife and kids. Counsel expressed concern about the

       impartiality of the jurors and requested that the two jurors be individually

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016        Page 26 of 29
       questioned. The State objected to questioning the jurors, and the trial court

       denied Pugh’s request. Thereafter, Pugh requested that both jurors be removed

       and moved for a mistrial. The trial court denied both motions. Pugh’s

       drawings were made a part of the record on appeal.


[54]   The right to an impartial jury is a constitutional right and an essential element

       of due process. Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). Biased

       jurors must be dismissed, and when there is a suggestion that they have been

       exposed to extrajudicial matters, the trial court should make a threshold

       assessment of the likelihood of resulting prejudice. Id. at 1020-21. If the court

       determines that no risk of substantial prejudice exists, it need not investigate

       further. Id. at 1021. Conversely, if the trial court finds the risk of prejudice is

       substantial, as opposed to imaginary or remote, it should interrogate the jury

       collectively to determine who, if anyone, has been exposed, and then

       individually interrogate any such jurors away from the others. Id. If the court

       discovers any degree of exposure and the likely effect thereof, it must take

       appropriate action, including at least a collective admonishment. Id. At all

       stages in this process, the trial court has the discretion to take whatever actions

       it deems necessary and appropriate. Id.


[55]   In denying Pugh’s motions, the trial court stated that the behavior and reactions

       of a defendant in the courtroom are, naturally, observable by the jury and noted

       that Pugh had been “reacting visibly to the evidence” by “[s]haking his head,

       rolling his eyes, [and] hanging his head.” Tr. p. 1145. The court determined

       there was no need to question the jurors about the drawings because they would

       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016     Page 27 of 29
       be charged by the court in final instructions to arrive at a unanimous verdict

       based on the evidence. The court stated, “I don’t believe we’ve risen to the

       level where I think that the jurors are indicating that they can’t evaluate the

       evidence fairly and carefully.” Id. at 1148.


[56]   While our courts have a duty to ensure an impartial jury, they are not obligated

       “to ensure the absence of any bias.” Caruthers, 926 N.E.2d at 1021. Indeed, our

       Supreme Court has long maintained that “‘jurors need not be absolutely

       insulated from all extraneous influences regarding the case and that such

       exposure, without a showing of influence, will not require a new trial.’” Id.

       (citing Lindsey v. State, 260 Ind. 351, 357, 295 N.E.2d 819, 823 (1973)).

       Although Pugh characterizes the situation as juror exposure to outside

       influences, such is not the case. Rather, this is simply a situation of juror

       observations of a defendant’s behavior during trial. Nevertheless, the trial court

       made a threshold assessment and determined there was little likelihood of

       resulting prejudice. Nothing more was required. See, e.g., Caruthers, 926 N.E.2d

       at 1020-22 (no fundamental error where trial court did not interrogate jury for

       bias after taking additional security measures to address unspecified juror

       concerns). Pugh has failed to establish that he was placed in a position of grave

       peril to which he should not have been subjected such that the trial court abused

       its discretion in denying his motion for a mistrial.




       Court of Appeals of Indiana | Opinion 49A02-1506-CR-483 | May 10, 2016    Page 28 of 29
                                                 Conclusion
[57]   For the reasons stated, we conclude that the trial court did not err by admitting

       evidence obtained as a result of the seizure of Pugh and that there was sufficient

       evidence to support Pugh’s convictions of rape, attempted criminal deviate

       conduct, and carjacking as an accomplice. In addition, the single larceny rule is

       not violated by Pugh’s three robbery convictions, and the continuing crime

       doctrine does not apply to his convictions of two counts of rape. Finally, we

       conclude that the trial court did not err in denying Pugh’s motion for a mistrial.


[58]   Affirmed.


       Barnes, J., and Altice, J., concur.




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