MEMORANDUM DECISION
Apr 08 2015, 10:41 am
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 judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony C. Martin, April 8, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1407-CR-243
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable Frances C. Gull,
Judge
Appellee-Plaintiff.
Cause No. 02D05-1307-FB-131
Kirsch, Judge.
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[1] Anthony C. Martin was convicted after a jury trial of robbery1 as a Class B
felony and resisting law enforcement2 as a Class D felony and found to be a
habitual offender.3 He was sentenced to an aggregate term of fifty years
executed. Martin appeals and raises the following restated issues for our
review:
I. Whether the State presented sufficient evidence to support his
conviction for Class B felony robbery; and
II. Whether his sentence is inappropriate in light of the nature of the
offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Around 12:45 a.m. on July 23, 2013, Tyler Zoda, Devon Stewart, and Cory
Clemmer were sitting in the back of their truck eating pizza in the parking lot of
Papa John’s Pizza near State Street and Maplecrest Road in Fort Wayne,
Indiana. Zoda walked over to the Shell gas station and convenience store
(“Shell station”) at 6321 East State Street, which was located next door to the
parking lot, to buy something to drink. After Zoda left, Stewart and Clemmer
saw what they believed to be a red Ford Explorer driving quickly past. The
vehicle was loud, and Stewart and Clemmer observed it drive past them several
1
See Ind. Code § 35-42-5-1. We note that, effective July 1, 2014, a new version of the criminal statutes at
issue in this case were enacted. Because Martin committed his crimes prior to July 1, 2014, we will apply the
statutes in effect at the time he committed his crimes.
2
See Ind. Code § 35-44.1-3-1.
3
See Ind. Code § 35-50-2-8.
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times and circle the Shell station. On their last observation of the Explorer,
Stewart and Clemmer saw it near the car wash located behind the Shell station,
driving rapidly away. As they watched, the Explorer hit a bump, causing the
car wash door to open, and drove away from the area of Maplecrest Road.
[4] At approximately the same time that night, a man, later identified as Frederick
Freeman, entered the Shell station, wearing a dark hat, a white covering over
his lower face, a dark shirt, and gloves, and pointed a silver handgun at the
clerk, Dalvir Singh. Freeman told Singh to give him the money, and Singh
opened the cash register, pulled out the money tray, containing approximately
$300, and placed it on the counter. Freeman took the money tray, exited the
Shell station, turned left, and ran toward Maplecrest Road.
[5] While the robbery was occurring, Justin Douglas and some friends drove up to
a gas pump outside the Shell station, and Douglas exited the car. As he
approached the Shell station, he observed the robbery in progress. Freeman
pointed the handgun at Douglas and told him to leave. Douglas went back to
the car and told the driver to leave. As they drove away, Douglas called the
police, reported the robbery, and gave a description of Freeman and the
direction he traveled. Zoda, who was inside the shell station at the time of the
robbery, also called 911 immediately after Freeman left.
[6] At approximately 12:50 a.m., officers from the Fort Wayne Police Department
heard the dispatch regarding the armed robbery and responded to the Shell
station. They spoke with the witnesses and viewed the surveillance video of the
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robbery. The surveillance video showed that Freeman came from the area of
the car wash when he entered the Shell station, and when he left, he went back
toward the car wash area. The officer radioed a description of Freeman, his
direction of travel, and a description of the vehicle involved to other officers in
the area.
[7] Fort Wayne Police Department Officer Robert Hollo (“Officer Hollo”) was
patrolling in the area of State Street and Coliseum Boulevard at around 12:50
a.m. in an unmarked vehicle when he received the radio broadcast of the
robbery at the Shell station and heard that a red Ford Explorer had been
observed circling the Shell station and was most likely the suspect vehicle. At
1:01 a.m., Officer Hollo was at the intersection of Lake Avenue and Coliseum
Boulevard and saw a red Ford Explorer matching the description of the vehicle
involved in the robbery turning in front of him southbound on Coliseum
Boulevard. Officer Hollo radioed dispatch and informed them of the license
plate number of the Ford Explorer. Officer Hollo then began to follow the
Explorer southbound on Coliseum Boulevard. As he did so, the Explorer
began driving erratically, accelerating, weaving in and out of lanes, and passing
traffic.
[8] Officer Angie Reed arrived to assist Officer Hollo in a fully marked patrol
vehicle and followed Officer Hollo’s vehicle. At that time, Officer Hollo
activated his vehicle’s overhead lights to initiate a traffic stop of the Explorer.
The Explorer made an immediate turn onto Reynolds Street at a high rate of
speed, ignoring Officer Hollo’s attempt to stop it, and accelerated. Officer
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Hollo followed and activated his siren while pursuing the Explorer. The pursuit
continued, reaching speeds of seventy to seventy-five miles per hour and lasted
about two minutes, ending at Anthony Boulevard and Hayden Street, where
the Explorer turned into a parking lot. As soon as the Explorer reached the
parking lot, Freeman, who was the front seat passenger, attempted to exit the
Explorer while it was still moving. Freeman was stuck in the seatbelt, and his
foot dragged on the pavement, which caused his shoe and sock to come off.
Freeman eventually freed himself, exited the Explorer, and fled on foot
westbound toward Lillie Street. Officer Hollo radioed to other officers
Freeman’s description and his direction of flight and stayed with the Explorer
until other officers arrived. Officer Hollo ordered the driver, who was later
identified as Martin, to exit the Explorer. Martin initially did not comply with
the order, but eventually did so. When he did exit the Explorer, Martin was
holding an object that he refused to drop, and he refused to comply with any
other orders given by Officer Hollo. When Officer Hollo threatened to tase
Martin and pulled his Taser from his belt, Martin dropped the object he was
holding, which was later discovered to be a cell phone, and fled in the same
direction as Freeman had. Martin was apprehended when he fell in the yard of
a house. Freeman was subsequently discovered in a bush in front of a house on
Lillie Street. Both men were taken in to custody.
[9] The police recovered $198 in cash and a striped shirt where Freeman had been
hiding in the bush. Inside the Explorer, the police found two black baseball
caps, two pairs of gloves, and a dark colored sweatshirt. They also recovered a
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black cell phone on the front passenger seat and a cell phone lying on the
ground outside the driver’s door. Zoda and Singh were transported to the scene
of the arrest; Zoda was unable to identify either Freeman or Martin, and Singh
positively identified Freeman as the man who robbed the Shell station. The cell
phones recovered from the scene were forensically examined, and it was
discovered that there were twelve telephone calls and ten text messages between
the two cell phones in the four days prior to the robbery. A text message
between the phones on July 20, 2013 referred to a “lick,” which is common
street slang for a robbery. Tr. at 429.
[10] The State charged Martin with Class B felony robbery and Class D felony
resisting law enforcement and alleged that he was a habitual offender. A
bifurcated jury trial was held; in the first phase, the jury found Martin guilty of
both robbery and resisting law enforcement, and in the second phase, Martin
was found to be a habitual offender. The trial court sentenced him to twenty
years for Class B felony robbery, enhanced by thirty years for the habitual
offender finding, and three years for Class D felony resisting law enforcement,
which was ordered to be served concurrently to the other sentence for an
aggregate sentence of fifty years executed. Martin now appeals.
Discussion and Decision
I. Sufficient Evidence
[11] The deferential standard of review for sufficiency claims is well settled. This
court will neither reweigh the evidence nor assess the credibility of witnesses.
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Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.
State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only
the evidence and reasonable inferences most favorable to the trial court’s ruling.
Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt. Tooley, 911
N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to
support the conclusion of the trier of fact, then the verdict will not be disturbed.
Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).
[12] Martin argues that the State failed to present sufficient evidence to support his
conviction for Class B felony robbery. He specifically contends that the
evidence did not support the conclusion that the Explorer stopped by the police
was the same vehicle at the Shell station after the robbery because the vehicle
that left the Shell station was not followed or observed throughout its exit path
and the duration between the robbery and the vehicle pursuit of eleven minutes
does not support that the Explorer was the same vehicle seen leaving the Shell
station. Martin also claims that there was not even any evidence that the robber
left the Shell station in a vehicle, so it was just speculation that the Explorer was
the getaway vehicle. Martin further asserts that the lack of evidence found in
the Explorer after the stop, particularly the absence of the cash tray, white
handkerchief, and gun, demonstrates that the evidence presented was
insufficient. Finally, he alleges that it was unclear how the witnesses were able
to identify the robber since his face was covered, and therefore, such
identifications were unreliable.
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[13] The State charged Martin with Class B felony robbery for acting as an
accomplice to Freeman when he committed the robbery at the Shell station.
Robbery is defined as: “[a] person who knowingly or intentionally takes
property from another person or from the presence of another person . . . by
using or threatening the use of force on any person; or . . . by putting any
person in fear. Ind. Code § 35-42-5-1. The crime is a Class B felony if it
committed while armed with a deadly weapon. I.C. § 35-42-5-1. “A person
who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense.” Ind. Code § 35-41-2-4. Accomplice
liability is not established as a separate crime, but merely a separate basis of
liability for the crime charged. Hampton v. State, 719 N.E.2d 803, 807 (Ind.
1999) (citing Ind. Code § 35-41-2-4). To be convicted of a crime under the
theory of accomplice liability, it is not necessary that the defendant participate
in every element of that crime. Ransom v. State, 850 N.E.2d 491, 496 (Ind. Ct.
App. 2006). In determining whether a person aided or was an accomplice to
another in the commission of a crime, our Supreme Court has long considered
the following four factors: “(1) presence at the scene of the crime; (2)
companionship with another engaged in criminal activity; (3) failure to oppose
the crime; and (4) a defendant’s conduct before, during, and after the
occurrence of the crime.” Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App.
2011), trans. denied.
[14] The evidence presented at trial showed that, between 12:45 and 12:50 a.m. on
July 23, 2013, Freeman robbed the Shell station while armed with a handgun.
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The surveillance video showed that he was wearing a dark hat, a white
handkerchief covering his lower face, a dark shirt, and gloves. Immediately
after Freeman left the Shell station, the robbery was reported to the police. A
red Explorer was seen circling the Shell station prior to the robbery and was
observed rapidly leaving the area and setting off the automatic door of the car
wash. At about 12:50 a.m., information regarding the robbery and identifying
the Explorer as the suspect vehicle was radioed to police officers in the area.
Within ten minutes of the dispatch and fifteen minutes of the robbery, Officer
Hollo observed a red Explorer coming from the direction of State Street and
Maplecrest Road, where the Shell station was located. When Officer Hollo
attempted to stop the Explorer, it began to flee as a high rate of speed and began
a pursuit that reached speeds of up to seventy to seventy-five miles per hour.
After the police were able to get the Explorer to stop, Freeman fled on foot, as
did the driver, Martin. Both Freeman and Martin were caught, and Freeman
was positively identified as the robber by Singh. Clothing similar to what the
robber was wearing in the surveillance video was recovered from inside the
Explorer, and close to $200 was found near Freeman when he was
apprehended.
[15] Based on this evidence, the jury could reasonably conclude that Martin drove
Freeman to the Shell station in the Explorer, waited in the vehicle while
Freeman committed the robbery, and then fled the area with Freeman after the
crime was committed. Martin and Freeman were discovered together a short
time after the crime was committed, and evidence of Martin driving Freeman
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around both before and after the robbery shows that Martin did not oppose the
crime. Additionally, Martin’s conduct after the crime supports his liability as
an accomplice to Freeman. When the police attempted to stop the Explorer,
Martin led them on a high speed chase, and even after the Explorer was
stopped, Martin continued to flee on foot. Evidence of flight may be considered
as circumstantial evidence of consciousness of guilt. Clark v. State, 6 N.E.3d
992, 999 (Ind. Ct. App. 2014). We, therefore, conclude that sufficient evidence
was presented to support Martin’s conviction for Class B felony robbery as an
accomplice. Martin’s arguments to the contrary are all requests for this court to
reweigh the evidence and judge the credibility of the witnesses, which we
cannot do. Tooley, 911 N.E.2d at 724.
II. Inappropriate Sentence
[16] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
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[17] Martin argues that his maximum sentence is inappropriate in light of the nature
of the offense and the character of the offender. He asserts that maximum
sentences should be reserved for the worst offenses and offenders. He contends
that his lack of prior violent offenses in his criminal history demonstrate that he
did not merit a maximum sentence and his lack of recent criminal offenses
show that he is not such a danger to society that he should receive a maximum
sentence. Martin also claims that his offense was a typical robbery and did not
warrant such a lengthy sentence.
[18] Martin was found guilty of Class B felony robbery, which subjected him to
imprisonment for a fixed term between six and twenty years, with the advisory
sentence being ten years. Ind. Code § 35-50-2-5. He was also found to be a
habitual offender, which sentence can be no less than the advisory sentence for
the underlying offense, nor more than the three times the advisory sentence for
the underlying offense, and cannot exceed thirty years. Ind. Code § 35-50-2-
8(h). Martin was also found guilty of Class D felony resisting law enforcement,
which subjected him to imprisonment for a fixed term of between six months
and three years, with an advisory sentence of one and a half years. Ind. Code §
35-50-2-7. The trial court sentenced Martin to twenty years for his robbery
conviction, enhanced by thirty years for the habitual offender finding, and three
years for the resisting law enforcement conviction, which was order to be served
concurrently, for a total sentence of fifty years. The trial court’s sentence was
entirely within the range allowed by statute.
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[19] As to the nature of the offense, the evidence established that Martin was an
accomplice in the armed robbery of the Shell station. Martin drove Freeman to
the Shell station, waited in the vehicle while Freeman committed the robbery,
and then drove Freeman away from the Shell station. Under Indiana Code
section 35-41-2-4, as an accomplice, Martin was equally as culpable as Freeman
in the commission of the crime. The robbery involved the use of a firearm, and
Freeman pointed the hand gun at the store clerk and the customer that were
present in the Shell station and threatened them. Further, during the
commission of the offense, Martin fled from the police when they attempted to
stop the Explorer and led the police on a high speed chase through the streets of
Fort Wayne that reached speeds of seventy to seventy-five miles per hour. This
flight from the police endangered other people and demonstrated a disregard for
the safety of others.
[20] As to the character of the offender, Martin has an extensive criminal history
that began in 1993 when he was a juvenile and continued to the present.
Martin has four juvenile adjudications, and as an adult, he has seven
misdemeanor convictions and three felony convictions. His felony convictions
were for Class D felony receiving stolen property, Class C felony carrying a
handgun without a license, and possession of a firearm by a convicted felon,
which was a federal felony conviction. Martin had his probation revoked twice
and was out on bond for pending charges of Class B felony rape, Class B felony
criminal deviate conduct and being a habitual offender at the time he
committed the present offenses. We conclude that, based on the nature of the
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offense and the character of the offender, Martin’s sentence was not
inappropriate.
[21] Affirmed.
Friedlander, J., and Crone, J., concur.
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