Derrek T. Berryhill v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Jul 09 2014, 9:47 am
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:

RYAN W. TANSELLE GREGORY F. ZOELLER
Capper Tulley & Reimondo Attorney General of Indiana
Brownsburg, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

DERREK T. BERRYHILL, )
)
Appellant-Defendant, )
)
vs. ) No.32A04-1310-CR-527
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Karen M. Love, Judge
Cause No. 32D03-1301-FB-000007

July 9, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
 Following a jury trial, Derrek Berryhill was convicted of Possession of Marijuana,1

a class A misdemeanor, and Aiding, Inducing, or Causing the Commission of a Robbery,2

a class B felony. Berryhill presents several issues for our review, which we restate as:

1. Did the trial court err in permitting the State to amend the charging
information to add Count III, Aiding, Inducing or Causing the
Commission of a Robbery?

2. Did the trial court abuse its discretion in admitting into evidence the
marijuana police found on Berryhill’s person?

3. Did the trial court abuse its discretion in admitting into evidence
Berryhill’s statement to police?

4. Is the evidence sufficient to sustain Berryhill’s conviction for aiding,
inducing, or causing the commission of a robbery?

5. Did the trial court properly sentence Berryhill?

We affirm.

At some point prior to January 26, 2013, Berryhill and Rameil Pitamber, who had

gone to school together, discussed an idea to rob the Little Caesars where Berryhill

worked. During their discussions, Berryhill told Pitamber the names of the employees

who would be working, what they would be doing, and even gave Pitamber a directive to

target a particular employee. On January 26, 2013, Berryhill was scheduled to work until

close, which was typically ten or eleven at night. Early in the evening, however,

Berryhill told the assistant manager that he did not feel well, and Berryhill was permitted

1
Ind. Code Ann. § 35-48-4-11(1) (West, Westlaw current with all legislation of the Second Regular
Session of the 118th General Assembly (2014) with effective dates through May 1, 2014).
2
Ind. Code Ann. § 35-42-5-1 (West, Westlaw current with all legislation of the Second Regular Session
of the 118th General Assembly (2014) with effective dates through May 1, 2014); Ind. Code Ann. § 35-
41-2-4 (West, Westlaw current with all legislation of the Second Regular Session of the 118th General
Assembly (2014) with effective dates through May 1, 2014).

2
to leave early. Before Berryhill ended his shift, he made at least one phone call to a

prepaid cell phone, or “burn phone,” that Pitamber had recently activated. Transcript at

559. When Berryhill made the phone call to the “burn phone” he also entered *67 to

block his number so his number would not show up on phone records.

Pitamber picked up Berryhill around 9:00 p.m. at a Meijer very close to the Little

Caesars store. Pitamber was driving his 1992 red Ford Explorer. Berryhill and Pitamber

then drove to a nearby Speedway station where they watched the Little Caesars store.

Another individual joined them in the vehicle while they were parked at the Speedway,

but that person left when Berryhill and Pitamber began talking about the robbery.

As Berryhill and Pitamber had discussed, Pitamber called Little Caesars and

ordered a pizza. Pitamber used the “burn phone” because he did not want his number

showing up on Little Caesars caller ID. Pitamber made a second call from the “burn

phone” to inform the employees that he would be late picking up the pizza. As an

employee of Little Caesars, Berryhill knew that the procedure was for the doors to be

locked at closing time and that persons needing to pick up and pay for a pizza after the

close of business would knock at the door and be let in. This is precisely what Pitamber

was told to do by the Little Caesars employee who answered Pitamber’s second call.

Pitamber and Berryhill drove to a neighborhood behind the Little Caesars and

parked Pitamber’s vehicle at the end of a cul-de-sac. At some point, Pitamber called the

store again and, pretending that he had been in a hit-and-run, asked if there were cameras

monitoring the outside of the store. Pitamber learned that there were none. Pitamber was

dressed in a black snowsuit, a brown husky jacket, and boots. He was also wearing a

3
dark ski mask. Upon exiting his vehicle, Pitamber grabbed the gun and baton he had

purchased and then he headed in the direction of the Little Caesars. Shortly after 11:00

p.m., Pitamber arrived at the front of the Little Caesars and knocked on the window.

When the assistant manager opened the door, Pitamber walked in, waved his gun, and

told the manager to give him the money from the cash register and safe. Berryhill had

told Pitamber where the safe was located.

The assistant manager accessed the safe and gave Pitamber the money that was

accessible. There was an inner safe that, unbeknownst to Pitamber (or Berryhill), was on

a time lock. The manager, other employees, and Pitamber were all unsuccessful in their

attempts to get into this inner safe.

At some point, a second employee walked to the front of the store. Pitamber then

ordered all of the employees to go to the back of the store and instructed them to tie each

other up with zip ties and duct tape that Pitamber had brought with him. Pitamber then

went to the front of the store again, took the money, broke the employees’ cell phones,

and smashed the store security monitors with the baton.3 Before leaving, Pitamber

ordered the employees into a bathroom and then he blocked the bathroom door because

Berryhill had told him the door did not lock. Pitamber left through a back door. The

employees remained in the bathroom for five to six minutes.

As Pitamber ran through a grassy area behind the Little Caesars on his way back

to his car, the “burn phone” fell out of his pocket. Pitamber also threw one of the Little

Caesars employees’ keys on the ground. When Pitamber reached his truck, Berryhill was

3
This did not prevent the security surveillance system from recording the events inside the Little Caesars.

4
still inside. Berryhill and Pitamber drove back to Berryhill’s house and split the money

from the robbery.4

Because Berryhill’s phone number was in the “burn phone” that Pitamber

dropped, the two devised a plan that if the police located the phone and contacted

Berryhill, Berryhill was going to say that he had called Pitamber “lookin’ for some weed

or somethin’ like that.” Id. at 562.

Thomas Owens, a K-9 officer with the Avon Police Department, was dispatched to

the Little Caesar’s in response to the robbery. Officer Owens and his K-9 went to the

rear of the store and picked up a scent. The K-9 followed the scent and along the path,

Officer Owens located the “burn phone” in a grassy area on top of the snow. Officer

Owens also found a key chain on a pink lanyard that belonged to one of the Little Caesars

employees a short distance away. Both items were on top of the snow, indicating that

they had not been there long. The canine followed the scent to a privacy fence and

picked up the scent again on the other side of the fence in a neighborhood.

Avon Police Detectives Sean Stoops, Brian Nugent, and Jeremy Chapman were

dispatched to the scene of the robbery. The officers used the cell phone records from the

“burn phone” discovered behind the Little Caesars and data from cell phone towers to

identify Berryhill as a person in the area of the robbery at the time it occurred. The

officers also learned that Berryhill was an employee of Little Caesars. Based on this and

4
Pitamber took approximately $644 in cash from the Little Caesar’s. The total financial loss, which
includes replacement costs for security monitors, cables, and supplies, was approximately $1,300.
Pitamber’s share of the money was recovered. Berryhill spent his share of the money on clothes, shoes,
and marijuana that he purchased from Pitamber.

5
other information, on January 29, 2013, Detective Stoops went to Little Caesars and

asked to speak with Berryhill. When Detective Stoops told Berryhill that he wanted to

talk to him regarding the robbery, Berryhill became “very defensive and belligerent,”

“began cursing,” and “began shifting his weight from left to right.” Transcript at 491.

Detective Stoops, believing this behavior to be indicative of verbal and physical

aggression, placed Berryhill in handcuffs and removed him through the back of the store

where another detective was waiting. Once outside, Detective Stoops performed a pat-

down search of Berryhill and discovered a hard object in Berryhill’s right front pocket.

Believing the object could have been part of a gun, Detective Stoops retrieved the object,

which turned out to be a metal tin. Detective Stoops noted an odor of marijuana. Inside

the tin, Detective Stoops discovered marijuana. Berryhill was placed under arrest and

transported to the Avon Police Department.

Prior to being interviewed by Detective Stoops, Berryhill was advised of his

Miranda rights and he signed a waiver of rights form. During the interview, Berryhill

admitted to being present when Pitamber committed the robbery of Little Caesars. In

addition to Berryhill’s admission, Pitamber gave a statement to police and explained that

he and Berryhill discussed the robbery, conducted surveillance of the Little Caesars, and

created an alibi. Pitamber also told the police that Berryhill told him who would be

working, devised the plan to order a pizza and pick it up late, told him where the safe was

located, informed him that the bathroom door did not lock, and that the two agreed to

split the proceeds from the robbery.

6
 On January 31, 2013, Berryhill was charged with Count I, conspiracy to commit

robbery, a class B felony, and Count II, possession of marijuana, a class A misdemeanor.

On May 30, 2013, the State filed a motion to amend the charging information to add

Count III, aiding and abetting in the commission of robbery, a class B felony. The trial

court ultimately permitted the addition of Count III.

A four-day jury trial commenced on August 20, 2013. During the trial Berryhill

made an oral motion to suppress the marijuana found on his person at the time of his

arrest, which the trial court denied. Berryhill subsequently made an oral motion to

suppress his statement to police, and the trial court denied this motion as well. At the

conclusion of the trial, the jury found Berryhill guilty of Counts II and III but not guilty

of Count I. On August 29, 2013, Berryhill filed a motion pursuant to Ind. Trial Rule

50(A) and Ind. Trial Rule 59(J)(7), seeking a judgment notwithstanding the verdict.

Specifically, Berryhill challenged the sufficiency of the evidence supporting the guilty

verdict with respect to Count III and further argued that the verdicts were inconsistent.

Following a hearing on September 10, 2013, the trial court denied Berryhill’s request for

relief.

The trial court held a sentencing hearing on September 27, 2013, and sentenced

Berryhill to concurrent sentences of six months on Count II and nine years with three

years suspended to probation on Count III. Berryhill now appeals.

1.

Berryhill first argues that the trial court erred in permitting the State to amend the

charging information by adding Count III, aiding and abetting in the commission of a

7
robbery. We begin by noting that the State initially charged Berryhill with Count I, class

B felony conspiracy to commit robbery, and Count II, class A misdemeanor possession of

marijuana. A jury trial was set to begin on June 18, 2013. On May 30, 2013, the State

filed its motion to amend the charging information to add Count III, class B felony

aiding, inducing, or causing the commission of a robbery.5 Berryhill objected to the

addition of Count III, and following a hearing on June 3, 2013, the trial court took the

matter under advisement. On June 11, 2013, the trial court denied the State’s motion to

add Count III, but ultimately granted the State’s motion to reconsider such ruling, thereby

permitting the State to add Count III. Berryhill immediately moved for a continuance of

the jury trial, which the trial court granted. A new trial date was set for August 20, 2013.

Ind. Code Ann. § 35-34-1-5 (b) (West, Westlaw current with all legislation of the

Second Regular Session of the 118th General Assembly (2014) with effective dates

through May 1, 2014) states, in pertinent part, that an information “may be amended in

matters of substance . . . by the prosecuting attorney, upon giving written notice to the

defendant at any time . . . before the commencement of trial . . . if the amendment does

not prejudice the substantial rights of the defendant.” The “substantial rights” of a

defendant include a right to sufficient notice and an opportunity to be heard regarding

the charge. Gaby v. State, 949 N.E.2d 870 (Ind. Ct. App. 2011). “Ultimately, the

question is whether the defendant had a reasonable opportunity to prepare for and defend

against the charges.” Id. at 874 (quoting Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct.

5
The State also sought to amend Counts I and II, but only to make minor grammatical and stylistic
changes. Berryhill did not object to the amendments to Counts I and II, but did object to the addition of
Count III.

8
App. 2009), trans. denied ). The substantial rights of the defendant are not prejudiced if:

(1) a defense under the original information would be equally available after

the amendment, and (2) the defendant’s evidence would apply equally to the

information in either form. Gaby v. State, 949 N.E.2d 870.

Under Amended Count I, the charging information provided that Berryhill

conspired with Pitamber to commit the crime of robbery and that the overt act in

furtherance of the conspiracy was that Berryhill “assisted in the armed robbery of Little

Caesars by providing inside information on the operation of Little Caesars to [Pitamber].”

Appellant’s Appendix at 100. Count III alleged simply that Berryhill “did knowingly aid,

induce, or cause [Pitamber] to commit robbery, a Class B felony.” Id. at 102. The trial

court properly concluded that the amendment to add Count III was a substantive change.

Our inquiry is thus whether the amendment prejudiced Berryhill’s substantial rights.

Berryhill contends that the addition of Count III prejudiced his substantial rights

because the addition of new elements for the crime of aiding, inducing or causing the

commission of the robbery essentially “evaporated” his defense to Count I, conspiracy to

commit robbery. Appellant’s Brief at 12. Berryhill, however, does not explain what his

defense was prior to the amendment or how his defense was altered after the addition of

Count III. Although conspiracy to commit robbery and aiding and abetting in the

commission of a robbery have separate and distinct elements, as is reflected in the

charging information, this is not a case where the evidence supporting the two different

charges was different or where two different defenses would be used.

9
 To be sure, Berryhill was fully aware of the evidence against him in that he knew

of Pitamber’s detailed statement to police that Berryhill was the brains behind the

robbery and that the plan was for Pitamber to carry it out. The record illustrates that

Berryhill’s defense was that, while he did have conversations with Pitamber about

robbing Little Caesars, he did not believe that Pitamber would actually go through with it.

Under the facts of this case, this same defense was equally applicable to both Counts I

and III.

Further, we note that Berryhill was afforded an opportunity to be heard regarding

the addition of Count III and that after the State’s motion to amend was granted, the trial

court granted Berryhill’s motion to continue the trial date. The continuance resulted in

Berryhill having nearly two months to prepare a defense to the amended charge, which,

we have noted, was the same defense to both Counts I and III. Berryhill has failed to

establish that the amendment prejudiced his substantial rights. See Ramon v. State, 888

N.E.2d 244 (Ind. Ct. App. 2008).

Berryhill’s argument that the two-month continuance for the jury trial was

improper because it impacted his liberty interests is unavailing. Berryhill never filed a

motion for a speedy trial under Ind. Crim. Rule 4. Further, Berryhill received credit for

his pre-trial incarceration. Based on the foregoing, we conclude that the trial court

properly allowed the State to amend the charging information to add Count III.

2.

Berryhill argues that the trial court abused its discretion in admitting evidence of

the marijuana found on his person. During the trial, Berryhill made an oral motion to

10
suppress the marijuana found on his person on grounds that it was the result of an illegal

search of his person. After hearing arguments outside the presence of the jury, the trial

court denied Berryhill’s motion and permitted the evidence to be presented to the jury.

Questions regarding the admission of evidence are within the sound discretion of

the trial court, and we review the court’s decision only for an abuse of discretion. State v.

Seabrooks, 803 N.E.2d 1190 (Ind. Ct. App. 2004). A trial court abuses its discretion only

if its decision is clearly against the logic and effect of the facts and circumstances before

it, or if the court has misinterpreted the law. Id. A trial court’s ruling on the

admissibility of evidence will be upheld if it is sustainable on any legal theory supported

by the record, even if the trial court did not use that theory. Gonser v. State, 843 N.E.2d

947 (Ind. Ct. App. 2006). The ultimate determination of the constitutionality of

a search or seizure, however, is reviewed de novo. Woodson v. State, 966 N.E.2d 135

(Ind. Ct. App. 2012), trans. denied.

The federal Fourth Amendment and article 1, section 11, of the Indiana

Constitution each protect citizens from unreasonable searches and seizures. Holder v.

State, 847 N.E.2d 930 (Ind. 2006). Although structured similarly, the interpretation and

application of each constitutional provision varies. Id.

The Fourth Amendment of the United States Constitution affords individuals

protection from unreasonable searches and seizures, and this protection has been

extended to the states through the Fourteenth Amendment. U.S. Const. amend. IV; Krise

v. State, 746 N.E.2d 957 (Ind. 2001); Woodson v. State, 960 N.E.2d 224 (Ind. Ct. App.

2012). When a search or seizure is conducted without a warrant, the State bears the

11
burden of proving that an exception to the warrant requirement existed at the time of the

search or seizure. Halsema v. State, 823 N.E.2d 668 (Ind. 2005).

Encounters between law enforcement officers and citizens take a variety of forms,

some of which do not implicate the protections of the Fourth Amendment and some of

which do. Police/citizen encounters can be characterized in three different ways:

First, the Fourth Amendment requires that an arrest or detention that lasts
for more than a short period of time must be justified by probable cause.
Second, pursuant to Fourth Amendment jurisprudence, the police may,
without a warrant or probable cause, briefly detain an individual for
investigatory purposes if, based upon specific and articulable facts, the
officer has a reasonable suspicion that criminal activity has or is about to
occur. The third level of investigation occurs when a police officer makes a
casual and brief inquiry of a citizen, which involves neither an arrest nor a
stop. This is a consensual encounter in which the Fourth Amendment is not
implicated.

State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008). A search or seizure

conducted during a full arrest lasting longer than a short period of time is permissible

only if supported by probable cause. Clark v. State, 994 N.E.2d 252 (Ind. 2013) (citing

Fingers v. State, 799 N.E.2d 528 (Ind. 2003)). A search or seizure that occurs during a

brief investigative stop requires a lower standard of reasonable suspicion. Id.

Determining whether the encounter is consensual or some level of detention “turns

on an evaluation, under all the circumstances, of whether a reasonable person would feel

free to disregard the police and go about his or her business.” Id. at 261 (quoting

California v. Hodari D., 499 U.S. 621, 628 (1991)). The test is objective, i.e., not

whether the citizen actually felt free to leave, but “whether the officer’s words and

12
actions would have conveyed that to a reasonable person.” Id. (quoting California v.

Hodari D., 499 U.S. at 628).

Here, Berryhill was at work when Detective Stoops approached him. At the time,

Detective Stoops was wearing a bullet-proof vest that had the word “police” in “big white

letters.” Transcript at 467. Detective Stoops immediately identified himself as a police

officer and informed Berryhill that he wanted to ask him questions about the robbery.

Berryhill instantly became “very defensive and belligerent,” “began cursing,” and “began

shifting his weight from left to right.” Id. at 491. Within one to two minutes of

encountering Berryhill, Detective Stoops placed Berryhill in handcuffs and tried to calm

him down.

The encounter with Berryhill started out as a consensual encounter, but quickly

turned into a non-consensual encounter after Berryhill was placed in handcuffs. Once in

handcuffs, no reasonable person would believe they were free to leave. See Woodson v.

State, 960 N.E.2d 224 (Ind. Ct. App. 2012). Even though the encounter was not

consensual, Detective Stoops still did not need probable cause to detain Berryhill to

conduct an investigatory stop falling short of traditional arrest. During what is commonly

known as a Terry stop, a police officer is permitted “to stop and briefly detain a person

for investigative purposes if the officer has reasonable suspicion supported by articulable

facts that criminal activity ‘may be afoot’ even if the officer lacks probable cause.”

Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009). “Such reasonable suspicion must be

comprised of more than hunches or unparticularized suspicions.” State v. Murray, 837

N.E.2d 223, 225-26 (Ind. Ct. App. 2005), trans. denied.

13
 Here, Detective Stoops had reasonable suspicion that Berryhill was engaged in –

or had engaged in – criminal activity and that he could pose a danger to him. During the

suppression hearing, Detective Stoops outlined the steps of the investigation into the

robbery at Little Caesars. He explained that from phone records that had been evaluated,

it had been determined that calls were made to and from the burn phone to Berryhill’s

phone during the short amount of time the burn phone was activated. It was also known

that the burn phone was used to place the bogus pizza order that precipitated the robbery.

The detectives also spoke with Berryhill’s brother, who gave them additional information

leading them to believe Berryhill was involved in the robbery. Even though the

description of the robber and the video surveillance of the robbery did not implicate

Berryhill, phone records supported Detective Stoops’s theory that Berryhill was

somehow involved. The police further suspected that Berryhill had provided inside

information to the individual who carried out the robbery because of the manner in which

the robber acted, i.e., the robber knew where the safe was, knew who was working, and

knew that the bathroom door did not lock.

Additionally, when Detective Stoops questioned Berryhill about the robbery,

Berryhill became agitated, shifted his weight from side to side, and cursed at Detective

Stoops. Given his training and experience, Detective Stoops believed that he needed to

protect himself from Berryhill’s aggressive behaviors, so he placed Berryhill in

handcuffs. Detective Stoops then removed Berryhill from the immediate surroundings

and conducted a limited search of Berryhill’s outer clothing. This is permissible in such

situations. See Johnson v. State, 710 N.E.2d 925, 928 (Ind. Ct. App. 1999) (noting that

14
where officer has “a reasonable fear of danger,” the officer may “conduct a carefully

limited search of the [suspect’s] outer clothing” for the distinct purpose of locating

weapons). It was during this pat-down that Detective Stoops felt a hard object in

Berryhill’s pocket that Detective Stoops thought could have been the handle of a revolver

or a semi-automatic handgun. Detective Stoops therefore removed the object and

discovered a metal tin that was determined to contain marijuana.

The facts, taken as a whole, demonstrate that Detective Stoops had reasonable

suspicion to conduct a Terry stop and pat-down of Berryhill’s outer clothing. Detective

Stoops did not violate Berryhill’s Fourth Amendment rights when he seized the metal tin

containing marijuana from Berryhill’s person. Given that the marijuana was legally

seized, the trial court did not abuse its discretion in admitting evidence related thereto.

Although Berryhill briefly mentions the protections afforded under the Indiana

Constitution, he makes no separate argument in that regard. We nevertheless address the

argument. Under the article 1, section 11 of the Indiana Constitution, the legality of a

governmental search 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 (Ind. 2005).

Evaluation of the totality of the circumstances requires consideration of both the degree

of intrusion into the subject’s ordinary activities and the basis upon which the officer

selected the subject of the search or seizure. Id. Although there may be other relevant

considerations that are unique due to differing circumstances, in general, 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

15
method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the

extent of law enforcement needs. Id.

Given the facts of the present case, we conclude that the search of Berryhill’s

person was reasonable under the Indiana Constitution. We begin by noting that Berryhill

was a suspect in an armed robbery investigation for which the weapon had not yet been

recovered. When Detective Stoops confronted Berryhill at his place of employment,

Berryhill became “very defensive and belligerent,” “began cursing,” and “began shifting

his weight from left to right.” Transcript at 491. Detective Stoops placed Berryhill in

handcuffs and escorted him out of the building, at which time he conducted a pat-down

search. Detective Stoops testified that he felt a hard object in Berryhill’s front pocket and

believed that it could have been the handle of a gun, so he retrieved the object. Once the

object was removed from Berryhill’s pocket, Detective Stoops detected the odor of

marijuana. Detective Stoops opened the tin and discovered marijuana. The purpose of

the confrontation, Berryhill’s demeanor, and Detective Stoops’s training and experience

all combine to make the minimal intrusion created by the pat-down search a reasonable

exercise on Detective Stoops’s part. The trial court did not abuse its discretion in

admitting evidence pertaining to the seizure of marijuana from Berryhill’s person.

3.

Berryhill next argues that the trial court abused its discretion in admitting evidence

of his statements to police. Specifically, Berryhill maintains that his statement to

Detective Stoops was coerced and therefore inadmissible.

16
 The decision whether to admit a defendant’s statement is within the discretion of

the trial court. Giles v. State, 760 N.E.2d 248 (Ind. Ct. App. 2002). Absent an abuse of

that discretion, we will not disturb a trial court’s decision. Id. In determining whether

a defendant’s statement was given voluntarily, our focus is whether, looking to all of the

circumstances, the defendant’s statement was free and voluntary and not induced by

violence, threats, promises, or other improper influences. Id. Our supreme court has

provided an open list of factors that may be considered when reviewing the totality of the

circumstances for whether a waiver of rights was voluntary, which includes police

coercion, the length of the interrogation, its location, its continuity, as well as the

defendant’s maturity, education, physical condition, and mental health. State v. Keller,

845 N.E.2d 154 (Ind. Ct. App. 2006) (citing Miller v. State, 770 N.E.2d 763 (Ind. 2002)).

It is the State’s burden to prove that the defendant’s statement was voluntarily given.

Miller v. State, 770 N.E.2d 763.

Berryhill argues that Detective Stoops “created an atmosphere of coercion” by

placing him in an interview room after his arrest for possession of marijuana and then

questioning him about the robbery at Little Caesars. Appellant’s Brief at 21. Berryhill

further argues that the “length, continuity, and continually changing location of

[Berryhill’s] interrogation, combined with [Berryhill] being only nineteen (19) years old

at the time of the interrogation, created an environment of police coercion.” Id. at 22.

We disagree with Berryhill’s characterization of the interview process. Nothing in

the circumstances surrounding Berryhill’s statement indicates that the statement was in

any way coerced. To be sure, the record reveals that after Berryhill was arrested for

17
marijuana possession, he was taken to the Avon Police Department and placed in a ten-

foot by ten-foot interview room at approximately 3:14 p.m. At 3:23 p.m., Berryhill was

read his Miranda rights, which he waived by signing a waiver-of-rights form. Berryhill

then proceeded to give his statement to police. During the interview, Detective Stoops

took Berryhill out of the interview room and the two drove around in Detective Stoops’s

vehicle. Detective Stoops made sure Berryhill understood his Miranda rights at all times,

and Berryhill voluntarily stayed with Detective Stoops because he wanted to prove his

innocence. Berryhill was not in handcuffs when he rode around with Detective Stoops.

Berryhill showed Detective Stoops the route Pitamber took with the getaway vehicle.

Berryhill also showed Detective Stoops where Pitamber lived and identified the vehicle

Pitamber used to flee the scene. At some point, Detective Stoops took Berryhill to

McDonald’s for dinner. Detective Stoops and Berryhill ended up back at the Avon

Police Department where Berryhill finished giving his statement to police around 10:00

p.m. Berryhill was taken to jail at approximately 10:31 p.m. Detective Stoops testified

that Berryhill voluntarily stayed with him for the ride-around and that he was “very, very

helpful.” Transcript at 726. Notably, Berryhill never asked for an attorney, seemed to

know what was going on at all times, and never indicated to police that they had the

wrong person. Moreover, there is nothing in the record showing that Berryhill was less

mature than an average eighteen-year-old or that he was confused by the situation or that

he suffered from any sort of physical or mental condition that could have affected the

voluntariness of his statement. In short, the record is devoid of any indication that

18
Berryhill’s statement was coerced. The trial court did not abuse its discretion in

admitting Berryhill’s statement to police.

4.

Berryhill argues that the evidence is insufficient to sustain his conviction for

aiding and abetting in the commission of an armed robbery. Our standard of review for

challenges to the sufficiency of the evidence is well settled.

When reviewing the sufficiency of the evidence needed to support a
criminal conviction, we neither reweigh evidence nor judge witness
credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We
consider only the evidence supporting the judgment and any reasonable
inferences that can be drawn from such evidence.” Id. We will affirm if
there is substantial evidence of probative value such that a reasonable trier
of fact could have concluded the defendant was guilty beyond a reasonable
doubt. Id.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

I.C. § 35-41-2-4 provides that “[a] person who knowingly or intentionally aids,

induces, or causes another person to commit an offense commits that offense.” Further,

I.C. § 35-42-5-1 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 Class C felony. However, the offense is a Class B
felony if it is committed while armed with a deadly weapon . . . .

Thus, to sustain Berryhill’s conviction, the State’s evidence must have proved beyond a

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

Pitamber to take property from Little Caesars by using or threatening the use of force

while armed with a deadly weapon.

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 In determining whether there was sufficient evidence for purposes of accomplice

liability, we consider such factors as: 1) 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.

Garland v. State, 719 N.E.2d 1236 (Ind. 1999). While a defendant’s mere presence at

the crime scene or lack of opposition to a crime standing alone, is insufficient to establish

accomplice liability, the jury may consider them along with other facts and circumstances

tending to show participation. Id. Furthermore, accomplice liability applies to the

contemplated offense and all acts that are a probable and natural consequence of the

concerted action. Wieland v. State, 736 N.E.2d 1198 (Ind. 2000). Finally, it is not

necessary for Berryhill to have participated in every element of the crime under a theory

of accomplice liability. Bruno v. State, 774 N.E.2d 880 (Ind. 2002).

The evidence in the record showed that Berryhill and Pitamber had gone to school

together and they lived in the same neighborhood. Berryhill and Pitamber had been good

friends up until about a year before the robbery, but their relationship had become mostly

dependent upon Berryhill purchasing marijuana from Pitamber. On the night of the

robbery, Berryhill was scheduled to work at Little Caesars until closing, but feigned an

illness so that he could leave early. Pitamber picked Berryhill up around 9:00 p.m. from

a Meijer store close to the Little Caesars. Berryhill and Pitamber then drove to a nearby

gas station where they could watch the Little Caesars store. Prior to committing the

robbery, Pitamber called Little Caesars and ordered a pizza using a “burn phone” that had

only recently been activated. Pitamber then called back using the same phone to say that

20
he would be late picking up the pizza. The phone calls were Berryhill’s idea because he

knew the procedure would be for the doors to be locked at closing time and that Pitamber

would be permitted to arrive after hours and knock on the door to gain entry in order to

pick up the pizza.

Berryhill told Pitamber which employees would be working that night and told

him where the safe was located. Berryhill was present in Pitamber’s vehicle when

Pitamber, dressed in a snow suit, brown coat, and ski mask, got out of his car and headed

in the direction of the Little Caesars. Before exiting his vehicle, Pitamber grabbed a gun

and a baton. Pitamber brandished the gun and baton during the course of the robbery of

the Little Caesars. Berryhill was still present in Pitamber’s car when Pitamber returned

following the robbery. The two drove to Berryhill’s home where they split the proceeds

from the robbery. Because Pitamber dropped the “burn phone” that had Berryhill’s

number in it as he fled from the Little Caesars, Berryhill and Pitamber devised a plan that

if the police contacted Berryhill, he was going to say that he had called Pitamber “lookin’

for some weed or somethin’ like that.” Transcript at 562. Berryhill used his portion of

the proceeds to buy clothes, shoes, and some marijuana from Pitamber.

Berryhill’s own statement and the testimony of Pitamber corroborate the facts as

set forth above. Any discrepancies in the evidence can be explained by Berryhill’s desire

to conceal his role in the crime. To be sure, in answering a question as to who the

“players” were, Berryhill stated that “it’s really only two people, that’s just me and

[Pitamber].” Id. at 677. While Berryhill claimed that he was sent home early because

business was slow, the surveillance video at the Little Caesars shows Berryhill

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complaining that he did not feel well and asking to go home. Further, the night of the

robbery, just before Berryhill was released to go home, Berryhill contacted Pitamber, but

used the *67 option to block his number. When asked about why he did this, Berryhill

later claimed that he had tried to call Pitamber to talk him out of the robbery. Finally,

Berryhill admitted to talking to Pitamber about robbing the Little Caesars, but claimed

that he did not take Pitamber seriously or believe he would go through with it.

The evidence clearly proves each essential element of aiding, inducing, or causing

the commission of a robbery. Any inconsistencies in the evidence were matters for the

jury to consider in weighing the evidence and judging the credibility of the witnesses.

We will not second-guess the jury in this regard. We therefore conclude that the

evidence is sufficient to sustain Berryhill’s conviction for aiding and abetting in the

commission of an armed robbery, a class B felony.

5.

Berryhill challenges the sentence imposed in two respects. First, he argues that

the trial court improperly overlooked a mitigating factor. He also argues that his sentence

is inappropriate.6

Here, the trial court considered Berryhill’s age at the time of the crime and his

very limited criminal history, i.e., his admitted use of marijuana, to be mitigating

circumstances. The trial court also noted that Berryhill was willing to pay restitution and

found this to be “somewhat” mitigating. Transcript at 1609. The trial court did not find

6
“As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be
analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

22
any aggravating factors. The trial court sentenced Berryhill to six months on Count II

and nine years with three years suspended to probation on Count III, with the sentences to

be served concurrently.

We first consider whether the trial court abused its discretion in sentencing

Berryhill. Sentencing decisions rest within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So

long as the sentence is within the statutory range, it is subject to review only for an abuse

of discretion. Id. “An abuse of discretion occurs if the decision is ‘clearly against the

logic and effect of the facts and circumstances before the court or the reasonable,

probable, and actual deductions to be drawn therefrom.’” Id. at 491 (quoting K.S. v.

State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion

in a number of ways, including omitting mitigating factors that are clearly supported by

the record and advanced for consideration. Anglemyer v. State, 868 N.E.2d 482. If the

trial court abuses its discretion in one of these or another way, remand for resentencing is

the appropriate remedy “if we cannot say with confidence that the trial court would have

imposed the same sentence had it properly considered reasons that enjoy support in the

record.” Id. at 491.

It is true that the trial court did not specifically mention as a mitigating

circumstance that Berryhill had a low risk of recidivism. The trial court did, however,

note that Berryhill had a minimal criminal history, noting only his admitted use of

marijuana, and that he had a family support system. This is akin to a finding of a low risk

23
of recidivism. We do not find that the trial court abused its discretion in overlooking a

significant mitigating circumstance.

We now consider whether Berryhill’s sentence is inappropriate. We begin by

noting although a trial court may have acted within its lawful discretion in imposing

a sentence, article 7, sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of a sentence imposed by the trial court. Alvies v.

State, 905 N.E.2d 57 (Ind. Ct. App. 2009) (citing Anglemyer v. State, 868 N.E.2d 482).

This appellate authority is implemented through Indiana Appellate Rule 7(B), which

provides that a court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.” Anglemyer v. State, 868 N.E.2d at 491. Nevertheless, “we must and should

exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires

us to give ‘due consideration’ to that decision and because we understand and recognize

the unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the burden of

persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073

(Ind. 2006).

The trial court sentenced Berryhill to an aggregate sentence of nine years with

three years suspended to probation. This is less than the advisory sentence of ten years

for a class B felony. See Ind. Code Ann. § 35-50-2-5 (West, Westlaw current with all

legislation of the Second Regular Session of the 118th General Assembly (2014) with

24
effective dates through May 1, 2014) (“A person who commits a Class B felony shall be

inprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory

sentence being ten (10) years.”).

Berryhill argues that his sentence is inappropriate because neither the baton nor

gun was used during the robbery to physically harm any of the employees of Little

Caesars. While this is true, it is not a fact that weighs heavily on the side of the sentence

being inappropriate. Indeed, had the gun or baton been used to physically harm one of

the individuals inside the Little Caesars, the crime charged would likely have been

elevated to a class A felony.7 The advisory sentence of ten years is the starting point for a

class B felony and that is the class of the crime for which Berryhill was convicted, i.e.,

aiding or abetting in the commission of a robbery while armed with a deadly weapon.

Moreover, we note that Berryhill masterminded the armed robbery at the pizza store at

which he worked and thereby endangered the lives of his coworkers. The nature of the

offense does not warrant a lesser sentence.

With regard to Berryhill’s character, the trial court noted his young age, his lack of

criminal history aside from his admitted use of marijuana, and the fact that he has a

family support system. The court took these factors into account and imposed a sentence

less than the advisory sentence. Berryhill simply believes that these factors warranted a

sentence with all or a portion of the executed sentence served on home detention and that

he should not have been ordered to serve probation. We do not agree. A sentence of nine

7
The crime of robbery is “a Class A felony if it results in serious bodily injury to any person other than a
defendant.” I.C. § 35-42-5-1.

25
years (one year less than the advisory) with three years suspended to probation, is not

inappropriate in light of the nature of the offense and the character of this offender.

Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.

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