MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 26 2017, 6:01 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Riccardo Hutchins, May 26, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1609-CR-2184
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1601-F2-2233
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Riccardo Hutchins (Hutchins), appeals his conviction for
burglary while armed with a deadly weapon, a Level 2 felony, Ind. Code § 35-
43-2-1(3)(A); and criminal confinement while armed with a deadly weapon, a
Level 3 felony, I.C. § 35-42-3-3(a),(b)(2)(A).
[2] We affirm.
ISSUE
[3] Hutchins raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt that Hutchins was
armed with a deadly weapon when he committed the offenses of burglary and
criminal confinement.
FACTS AND PROCEDURAL HISTORY
[4] In March of 2014, Mohammed Altaher (Altaher) arrived in the United States
from Saudi Arabia to further his education. On January 11, 2016, he moved to
Indianapolis, Marion County, Indiana, to study mechanical engineering and
technology at Indiana University-Purdue University Indianapolis. Altaher and
another Saudi Arabian student, Hasham Alshayab (Alshayab), rented an
apartment together at Lockefield Gardens, close to the university campus.
[5] On January 13, 2016, at approximately 4:30 p.m., Altaher and Alshayab were
in their apartment when they heard a knock at the door. Altaher looked
through the peephole but did not see anybody on the other side. Assuming a
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 2 of 10
package had been delivered, he opened the door, and “[a] tall, slender black
male” appeared and pushed his way into the apartment. (Tr. Vol. II, p. 111).
The intruder “pulled a gun on” Altaher and ordered him into the living room,
where he directed Altaher and Alshayab to lie on the floor. (Tr. Vol. II, p. 30).
Although Altaher and Alshayab refused to lie down, they sat in the living room
while the suspect pocketed their cell phones and collected a laptop and an
Xbox.
[6] As the intruder gathered the personal property of Altaher and Alshayab, “he
point[ed] the gun very close to” Altaher. (Tr. Vol. II, p. 36). Apart from
movies and videogames, Altaher had never before seen a gun in person, and he
described the suspect’s firearm as “[g]ray color, small. . . . Automatic.” (Tr.
Vol. II, p. 31). Because of its small size, Altaher began to suspect that the gun
may not be real. Speaking in Arabic, Altaher relayed his doubts about the
authenticity of the gun to Alshayab and suggested that they use force “to get
him out of the apartment” and “to get back [their] items.” (Tr. Vol. II, p. 56).
Alshayab agreed, and together, they began “fighting and kicking” the burglar.
(Tr. Vol. II, p. 36). Alshayab also grabbed a pressure cooker off the stove and
hit the intruder with it.
[7] The burglar responded to the physical brawl in kind, and Altaher indicated that
the gun was never visible during the fight. Eventually, the confrontation was
removed to the hallway, and, the intruder, who had abandoned the laptop and
Xbox inside the apartment, attempted to flee the building. However, Altaher
and Alshayab were adamant that the burglar was not leaving with their cell
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 3 of 10
phones, and they continued to engage with the suspect. At one point, the
burglar kicked Altaher in the nose, breaking his nose and causing Altaher to
bleed significantly. The commotion quickly drew the attention of several
neighbors, including Ryan Barnett (Barnett), who opened his door and
observed “three men fighting with each other,” none of whom he had ever seen
before. (Tr. Vol. II, p. 68). “All three of them were claiming that they were
being robbed by someone else.” (Tr. Vol. II, p. 68). The two that Barnett later
learned were his new neighbors (i.e., Altaher and Alshayab) yelled to Barnett
that the third man had a gun, and Barnett observed “a few times that [the
intruder] gestured kind of behind his back, what I could have interpreted as
reaching for a gun.” (Tr. Vol. II, p. 72). Still unsure of what was going on but
concerned about the safety of his neighbors, who appeared to be losing the
fight, Barnett intervened to break up the fight and yelled at the suspect to “[j]ust
get out of here.” (Tr. Vol. II, p. 72).
[8] Alshayab pulled the jacket off the fleeing suspect and retrieved their cell phones.
When the police arrived, they discovered documentation in the burglar’s jacket
in Hutchins’ name. When shown a photo array, Altaher identified Hutchins as
the intruder. Additionally, Barnett stated that he saw Hutchins’ driver’s license
photograph and that he was the same individual involved in the hallway fight
with Altaher and Alshayab.
[9] On June 16, 2016, the State filed an amended Information, charging Hutchins
with Count I, burglary, a Level 2 felony, I.C. § 35-43-2-1(3)(A); Count II,
armed robbery, a Level 3 felony, I.C. § 35-42-5-1(1); Count III, armed robbery,
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 4 of 10
a Level 3 felony, I.C. § 35-42-5-1(1); Count IV, criminal confinement, a Level 3
felony, I.C.§ 35-42-3-3(a),(b)(2)(A); and Count V, criminal confinement, a
Level 3 felony, I.C. § 35-42-3-3(a),(b)(2)(A). On August 8-9, 2016, the trial
court conducted a jury trial. At the close of the evidence, the jury returned a
guilty verdict on Count I, burglary as a Level 2 felony; and Count IV, criminal
confinement as a Level 3 felony. The jury returned a not guilty verdict for the
remaining Counts. The trial court entered judgments of conviction and
acquittal in accordance with the verdict. On August 31, 2016, the trial court
held a sentencing hearing. As to Count I, the trial court sentenced Hutchins to
fifteen years, with ten years executed in the Indiana Department of Correction
and five years suspended, with three years of probation. The trial court stated
that upon Hutchins’ completion of the Purposeful Incarceration program, it
would consider a sentence modification. For Count II, the trial court ordered a
concurrent four-year sentence. The trial court further ordered Hutchins to pay
restitution to Altaher for his medical bills.
[10] Hutchins now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[11] Hutchins claims that the State presented insufficient evidence to support his
conviction for Level 2 felony burglary and Level 3 felony criminal confinement.
When considering a claim of insufficient evidence, we adhere to a long-settled
standard of review. Our court does not reweigh evidence or assess the
credibility of witnesses, and we will consider only the evidence, and the
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 5 of 10
reasonable inferences drawn therefrom, that are most favorable to the verdict.
Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012). We will affirm a
conviction “if the evidence and those inferences constitute substantial evidence
of probative value to support the verdict.” Id. “Reversal is appropriate only
when a reasonable trier of fact would not be able to form inferences as to each
material element of the offense.” Id.
II. Sufficiency of Evidence
[12] Regarding Hutchins’ conviction for Count I, Indiana Code section 35-43-2-
1(3)(A) provides that “[a] person who breaks and enters the building or
structure of another person, with intent to commit a felony or theft in it,
commits burglary, a Level 5 felony. However, the offense is . . . a Level 2
felony if it . . . is committed while armed with a deadly weapon.” As to his
conviction for Count IV, Indiana Code section 35-42-3-3(a),(b)(2)(A) stipulates
that “[a] person who knowingly or intentionally confines another person
without the other person’s consent commits criminal confinement[, a Level 6
felony]. . . . The offense of criminal confinement . . . is . . . a Level 3 felony if it .
. . is committed while armed with a deadly weapon.” Hutchins does not
dispute the sufficiency of the evidence establishing that he committed the
crimes of burglary and criminal confinement; rather, he argues only that the
State failed to prove that he was armed with a deadly weapon—as charged, a
“handgun and/or BB gun”—to warrant the higher-level felonies. (Appellant’s
Conf. App. Vol. II, p. 30). More specifically, Hutchins argues that
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 6 of 10
[f]rom the evidence presented here, when the victim himself did
not believe the gun Hutchins had was real, a reasonable jury
could not have found that Hutchins possessed a deadly weapon,
specifically either the handgun or the BB gun that the State
elected to charge. Because that element of the crimes was not
proven beyond a reasonable doubt, Hutchins’[] convictions
should be reduced to lesser included felonies that are not
enhanced based upon the possession of a deadly weapon.
(Appellant’s Br. pp. 15-16).
[13] A “deadly weapon” includes, in part, “[a] loaded or unloaded firearm” or “[a]
destructive device, weapon, device, taser . . . or electronic stun weapon . . . ,
equipment, chemical substance, or other material that in the manner it . . . is
used; . . . could ordinarily be used; or . . . is intended to be used[] is readily
capable of causing serious bodily injury.” I.C. § 35-31.5-2-86(a)(1)-(2).
“Serious bodily injury” is defined as “bodily injury that creates a substantial risk
of death or that causes: (1) serious permanent disfigurement; (2)
unconsciousness; (3) extreme pain; (4) permanent or protracted loss or
impairment of the function of a bodily member or organ; or (5) loss of a fetus.”
I.C. § 35-31.5-2-292. Accordingly, by statute, “there are two categories of
‘deadly weapons:’ (1) firearms; and (2) weapons capable of causing serious
bodily injury.” Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002).
“Whether a weapon is a deadly weapon is determined from a description of the
weapon, the manner of its use, and the circumstances of the case.” Davis v.
State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied. “The fact
finder may look to whether the weapon had the actual ability to inflict serious
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 7 of 10
injury under the fact situation and whether the defendant had the apparent
ability to injure the victim seriously through use of the object during the crime.”
Merriweather, 778 N.E.2d at 457. Although the deadly weapon need not be
revealed during the crime or even admitted at trial, there must “be evidence to
support the finding that the defendant in fact was ‘armed with a deadly
weapon.’” Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009).
[14] Here, the State charged that Hutchins committed the offenses with either a
handgun or a BB gun. Whereas handguns clearly fit into the category of
firearms, our courts have generally relegated BB guns to the category of other
weapons that are capable of causing serious bodily injury. Davis, 835 N.E.2d at
1112. Our courts have not yet addressed a situation in which a witness testified
that the defendant was armed with a gun but had also expressed doubts about
whether the gun was even real.
[15] In Gorman v. State, 968 N.E.2d 845, 851 (Ind. Ct. App. 2012), trans. denied, our
court clarified that it is not enough for a victim to “merely fear[] that the
defendant was armed with a deadly weapon” where “no such weapon was
shown or displayed and/or the defendant made no statements that he or she
was armed.” However, we stated that “a victim’s testimony that he or she saw
the defendant use what was believed or ‘figured’ to be a gun is, by itself,
sufficient proof of the use of a deadly weapon.” Id. In this case, when Hutchins
forced his way into the apartment of Altaher and Alshayab, he visibly had a
“gun . . . in his hand.” (Tr. Vol. II, p. 30). Altaher conceded his complete lack
of knowledge regarding firearms and described Hutchins’ gun as “[g]ray color,
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 8 of 10
small. . . . Automatic.” (Tr. Vol. II, p. 31). Based on the small size of the gun,
Altaher suspected that it might be fake, although he “was not sure 100 percent.”
(Tr. Vol. II, p. 51). 1 Detective John Dietz (Detective Dietz) of the Indianapolis
Metropolitan Police Department testified that, at first glance, a real gun and a
BB gun may be indistinguishable. He further testified that guns come in
different sizes and styles and are manufactured with different materials. He
stated that it is possible that a real gun could have plastic components.
[16] Furthermore, regardless of whether the gun was a real handgun, the evidence
establishes that Hutchins utilized it in a manner that was “threatening” to
Altaher, and Altaher ultimately testified that he did not “know [if the gun was
real or fake], but [he] was 100 percent scared.” (Tr. Vol. II, pp. 31, 58). See
Whitfield v. State, 699 N.E.2d 666, 671 (Ind. Ct. App. 1998) (concluding that a
disabled pellet gun was a deadly weapon because it “was used in a threatening
manner and placed the victims in fear”), trans. denied. In addition, Detective
Dietz testified that even if Hutchins had used a BB gun instead of a real firearm,
BB guns are capable of causing “substantial injury”—such as “actual puncture
wounds to [the] skin. I’ve had people shot in the face, in the eye.” (Tr. Vol. II,
p. 156). Our court has also previously found that BB/pellet guns, toy guns, or
1
Hutchins also directs our attention to the testimony of the detective who investigated the case, who
acknowledged that the CAD report for this incident, which is “a documented version of what’s going on
that’s real time,” indicates that a 9-1-1 caller reported that a “plastic” gun had been utilized. (Tr. Vol. II, p.
173-74). We note that the CAD report was not admitted into evidence, and there is no indication in the
record as to who called and reported information as to the gun’s material. Nevertheless, this information was
presented to the jury, which ultimately found that a deadly weapon had been utilized.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 9 of 10
guns loaded with blanks can constitute deadly weapons based on their ability to
be used as a bludgeoning instrument. See, e.g., Buchanan v. State, 490 N.E.2d
351, 354-55 (Ind. Ct. App. 1986). Accordingly, we find that there is substantial
evidence of probative value to support the jury’s determination that Hutchins
was armed with a deadly weapon when he committed the offenses of burglary
and criminal confinement.
CONCLUSION
[17] Based on the foregoing, we conclude that the State presented evidence beyond a
reasonable doubt to support Hutchins’ conviction for burglary while armed with
a deadly weapon, a Level 2 felony; and criminal confinement while armed with
a deadly weapon, a Level 3 felony.
[18] Affirmed.
[19] Najam, J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2184 | May 26, 2017 Page 10 of 10