Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
Apr 21 2014, 6:25 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES CLARK, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1305-CR-416
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48C03-1301-FC-74
April 21, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
James Clark appeals his convictions and sentence for Class C felony robbery and
two counts of Class D felony theft. We affirm.
Issues
Clark raises three issues, which we restate as:
I. whether the trial court properly denied his motion to
sever the robbery charge from the theft charges;
II. whether the evidence is sufficient to sustain his
convictions; and
III. whether the trial court properly sentenced him.
Facts
On January 6, 2013, Officer Joe Garrett of the Anderson Police Department was
working as a part-time security officer at the St. Vincent’s Regional Health Center when
he was informed that a television had been taken from the hospital. He reviewed video
surveillance and saw a black man wearing Carhart-style overalls, a tan coat, and a black
cap walk into a waiting room, remove a television, and walk out of the building with it at
approximately 4:00 p.m. Later, security officers received a report of another missing
television. Another review of video surveillance showed a black man wearing a tan coat
and black cap enter the hospital at approximately 7:30 a.m., take a nap for several hours,
and leave the hospital at shortly before 2:00 p.m. pushing a large cart that was covered
with a sheet. The object under the sheet appeared to be a television. An employee also
reported that he was missing Carhart-style overalls from the employee locker room.
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The next day, a black man wearing a tan coat and black cap walked into a
convenience store in Anderson and handed the clerk a note that said, “Don’t make this
hard. Give me the money.” Tr. p. 106. The man then said, “Don’t make this hard.” Id.
at 108. The clerk gave the man the cash from the register, the cash from the safe, and
cartons of cigarettes. The man had his hand in his pocket during the whole incident.
While investigating the robbery at the convenience store, Officer Brian Porter
obtained video and pictures from the convenience store’s surveillance cameras. When he
arrived back at the station, he saw pictures from the hospital’s surveillance cameras and
realized that the same person was involved in both incidents. Detective Norman Rayford
saw surveillance pictures from the hospital and the convenience store and identified the
man involved in the thefts and robbery as Clark, whom he knew from church. Detective
Rayford had seen Clark at the convenience store three or four weeks before the robbery
wearing a tan coat. Clark was wearing Carhart-style overalls when he was taken into
custody. When interviewed by the police, Clark admitted that he took a nap at the
hospital. The clerk was unable to identify Clark as the robber in a photo lineup.
The State charged Clark with Class C felony robbery and two counts of Class D
felony theft. Clark filed a motion to sever the robbery charge from the theft charges. The
trial court found that the offenses were “not of the same or similar character” and denied
Clark’s motion to sever the robbery charges. Id. at 20. At the jury trial, the clerk
identified Clark as the man that robbed him at the convenience store. The jury found
Clark guilty as charged. The trial court sentenced Clark to concurrent sentences of four
years on the theft conviction and eight years on the robbery conviction to be served
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consecutive to the sentence for the theft convictions for an aggregate sentence of twelve
years. The trial court found that the theft convictions were an episode of criminal
conduct under Indiana Code Section 35-50-1-2(c) but that the robbery conviction was not
part of that episode. Clark now appeals.
Analysis
I. Severance
Clark argues that the trial court erred by denying his motion to sever the robbery
charge from the theft charges. Two or more offenses may be joined in the same
indictment or information when the offenses are: (1) of the same or similar character,
even if not part of a single scheme or plan, or (2) are based on the same conduct or on a
series of acts connected together or constituting parts of a single scheme or plan. Ind.
Code § 35-34-1-9. If two or more offenses are joined for a trial in the same indictment or
information solely upon the ground that they are of the same or similar character, the
defendant shall have a right to a severance of the offenses. I.C. § 35-34-1-11(a); see also
Brown v. State, 650 N.E.2d 304, 305-306 (Ind. 1995). “In all other cases the court, upon
motion of the defendant or the prosecutor, shall grant a severance of offenses whenever
the court determines that severance is appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense . . . .” I.C. § 35-34-1-11(a); see also
Brown, 650 N.E.2d at 305-306. In so doing, the trial court is to consider: (1) the number
of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the
trier of fact will be able to distinguish the evidence and apply the law intelligently as to
each offense. I.C. § 35-34-1-11(a); see also Brown, 650 N.E.2d at 305-306. Where
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severance is not mandated by Indiana Code Section 35-34-1-11(a), “[w]e will only
reverse the judgment and order new, separate trials if the defendant can ‘show that in
light of what actually occurred at trial, the denial of a separate trial subjected him to such
prejudice that the trial court abused its discretion in refusing to grant his motion for
severance.’” Brown, 650 N.E.2d at 306 (quoting Hunt v. State, 455 N.E.2d 307, 312
(Ind. 1983)).
Clark argues that he was entitled to have the robbery charge severed because the
charges were joined solely on the ground that they were of the same or similar character.
However, we find that the charges brought against Clark were not joined solely because
they were of the same or similar character. Rather, they were joined because they were a
series of acts connected together. The similarity of the appearance and clothing on the
person who stole from the hospital and robbed the convenience store led officers to
conclude that the same person committed all three offenses. Detective Rayford was able
to identify the person in the surveillance photos as Clark. As the State points out, “the
evidence in all three crimes was inextricably linked.” Appellee’s Br. p. 12. As a result,
we conclude that Clark was not entitled to severance as a matter of right.1 See, e.g.,
Harvey v. State, 719 N.E.2d 406, 409 (Ind. Ct. App. 1999) (holding that evidence
regarding two robberies was sufficient to show a “series of acts connected together” and
that the defendant was not entitled to severance as a matter of right).
II. Sufficiency
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Having concluded that Clark was not entitled to severance as a matter of right, we note that Clark makes
no argument that the trial court abused its discretion by denying the motion to sever.
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Next, Clark argues that the evidence is insufficient to sustain his convictions.
When reviewing the sufficiency of the evidence needed to support a criminal conviction,
we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). “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.
According to Clark, the evidence is insufficient to sustain any of his convictions
because no conclusive evidence identified him as the perpetrator. Clark argues that
Detective Rayford was unable to identify him from the surveillance videos and did not
know the perpetrator’s last name and that the clerk was unable to identify him in a photo
lineup. Detective Rayford testified that he recognized Clark as the perpetrator from
photos taken by the hospital and convenience store surveillance systems. Although he
did not initially recall Clark’s last name, Detective Rayford knew that Clark’s first name
was James and that he attended the same church as Detective Rayford, which led to the
identification of Clark as the perpetrator. Further, although the clerk was unable to
identify Clark in the photo lineup, he identified Clark during the trial as the person who
robbed the convenience store. Clark’s argument is merely a request to reweigh the
evidence and judge the credibility of the witnesses, which we cannot do.
Clark also argues that none of the stolen items were found on him or traced to him.
Although the stolen items were never recovered, “the recovery of stolen property and its
production at trial are not essential to prove that a robbery was committed or that the
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accused committed it.” Leavell v. State, 455 N.E.2d 1110, 1115 (Ind. 1983). We
conclude that the evidence is sufficient to sustain Clark’s convictions for Class C felony
robbery and two counts of Class D felony theft.
III. Sentence
Clark also argues that he was improperly sentenced. Indiana Code Section 35-50-
1-2(c) provides:
[E]xcept for crimes of violence, the total of the consecutive
terms of imprisonment, exclusive of terms of imprisonment
under IC 35-50-2-8 and IC 35-50-2-10, to which the
defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed the advisory
sentence for a felony which is one (1) class of felony higher
than the most serious of the felonies for which the person has
been convicted.
There is no dispute that Clark’s offenses were not crimes of violence. Clark contends
that his offenses arose “out of an episode of criminal conduct.” I.C. § 35-50-1-2(c).
Indiana Code Section 35-50-1-2(b) defines as “episode of criminal conduct” as “offenses
or a connected series of offenses that are closely related in time, place, and
circumstance.”
Clark argues that the offenses occurred in a short period of time, that he wore the
same clothes, and that he was continuing a pattern of criminal activity. However, our
supreme court has noted that “the timing of the offenses dictate[s] whether the offenses
were or were not single episodes of criminal conduct.” Reed v. State, 856 N.E.2d 1189,
1201 (Ind. 2006). Here, the robbery occurred twelve hours after the thefts at a different
location. Consequently, the robbery was not “simultaneous” or “contemporaneous” with
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the thefts. Id. at 1200. The robbery was not closely related in time, place, or
circumstance to the thefts. We conclude that the limitation on the total consecutive
sentence found in Indiana Code Section 35-50-1-2(c) is inapplicable here.
Conclusion
The trial court properly denied Clark’s motion for severance. Further, the
evidence is sufficient to sustain Clark’s convictions, and the trial court properly
sentenced him. We affirm.
Affirmed.
BAKER, J., and CRONE, J., concur.
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