MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Jul 19 2017, 6:17 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arbie Clay, Jr., July 19, 2017
Appellant-Defendant, Court of Appeals Case No.
34A04-1702-CR-282
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray,
Appellee-Plaintiff. Judge
Trial Court Cause No.
34C01-1604-F5-93
Bailey, Judge.
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Case Summary
[1] Arbie Clay, Jr. (“Clay”), was convicted of Robbery, as a Level 5 felony; 1
Attempted Disarming of a Law Enforcement Officer, as a Level 5 felony; 2 two
counts of Resisting Law Enforcement, one as a Level 6 felony and one as a
Class A misdemeanor;3 and Battery against a Public Safety Official, as a Level 6
felony.4 Clay was sentenced to an aggregate term of imprisonment of six years.
He now appeals.
[2] We affirm.
Issues
[3] Clay raises one issue on review, which we restate as the following two issues:
I. Whether the trial court erred when it issued jury
instructions with respect to Robbery; and
II. Whether there was sufficient evidence to sustain Clay’s
conviction for Robbery.
1
Ind. Code § 35-42-5-1.
2
I.C. §§ 35-44.1-3-2 & 35-41-5-1.
3
I.C. § 35-44.1-3-1(b)(1) & 35-44-3-3(a)(1).
4
I.C. § 35-42-2-1(d)(2).
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Facts and Procedural History
[4] On the evening of April 20, 2016, Clay drove to the Handle Bar, a bar in
Kokomo. Angelia Sharp (“Sharp”) was working as bartender that day, and
when Clay entered the bar, Sharp was delivering food to a table.
[5] When Clay entered the bar, he immediately went behind the counter and
removed about $300 in cash from the cash box under the counter. Sharp saw
Clay enter and, trying to make Clay return the money, stood at the entrance
behind the counter. Clay pushed Sharp out of the way, shoving her into the
counter and injuring her arm, causing bruising and soreness. Clay then ran out
of the bar; Sharp and several patrons followed him, and saw a dark SUV leave
the parking lot at a high rate of speed.
[6] The Kokomo Police Department was called, and several police cars began
searching for the SUV Clay was driving. Several officers saw an SUV matching
the description provided to police dispatch, and two police cars, driven by
Officers Brandon Hector (“Officer Hector”) and Noah Moody (“Officer
Moody”), activated their emergency lights to initiate a traffic stop.
[7] Clay did not stop his vehicle, and instead led the officers on a chase through
several streets and alleys in Kokomo. Eventually, Clay stopped his vehicle and
fled on foot. Officers Hector and Moody gave chase and eventually caught up
with Clay. A physical confrontation ensued, during which Clay struck Officer
Hector multiple times on the chest, and grabbed at Officer Moody’s pistol,
despite several instances in which the officers used a Taser to subdue Clay. The
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confrontation did not end until additional officers arrived and forced Clay to
the ground and handcuffed him.
[8] On April 22, 2016, Clay was charged with Robbery, Attempted Disarming of a
Law Enforcement Officer, two counts of Resisting Law Enforcement, and
Battery against a Public Safety Official. The State also alleged that Clay was a
Habitual Offender.5 On November 23, 2016, the State dismissed the Habitual
Offender allegation.
[9] A jury trial was conducted on November 29, 2016. During the trial, Clay
testified that he believed himself to be guilty of Theft, but not of Robbery. After
the close of evidence, Clay proffered to the court a proposed jury instruction for
Theft; the trial court declined to issue the instruction. Other than offering an
instruction on Theft, Clay did not object to any of the jury instructions the trial
court issued.
[10] At the close of the trial, the jury found Clay guilty as charged. A sentencing
hearing was conducted on January 25, 2017, and the trial court imposed an
aggregate sentence of six years imprisonment.
[11] This appeal ensued.
5
I.C. § 35-50-2-8(c).
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Discussion and Decision
Jury Instruction
[12] Clay argues that the trial court issued erroneous jury instructions related to the
Robbery charge, thereby impermissibly enlarging the nature of the charge filed
by the State. The Indiana Supreme Court has set forth the law pertaining to our
review of jury instructions:
In reviewing a trial court’s decision to give or refuse tendered
jury instructions, this Court considers: (1) whether the instruction
correctly states the law; (2) whether there is evidence in the
record to support the giving of the instruction; and (3) whether
the substance of the tendered instruction is covered by other
instructions which are given.
Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001).
[13] Clay was charged with Robbery, as a Level 5 felony. The State’s charging
information alleged, “[Clay] did knowingly and intentionally take property
from the presence of another person, by using force, to wit: threw [Sharp] out of
his way.” (App’x Vol. 2 at 11.)
[14] The Robbery statute 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 Level 5 felony.” I.C. § 35-42-5-1.
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[15] The trial court issued jury instructions related to Robbery that Clay argues
expanded the charges by instructing the jury on fear. Final Instruction 2 recited
the State’s charging information. Final Instruction 3 provided the text of the
robbery statute quoted above. Final Instruction 14 defined “fear” as “an
emotional state of mind created by anticipation of bodily injury.” (App’x Vol. 4
at 17.) This is identical to the definition provided in the Indiana Pattern Jury
Instructions, see Ind. Pattern Jury Instructs. 14.1610, and comports with the
definition of fear set forth in Indiana cases, including Rigsby v. State: “a fear of
bodily injury or personal harm is required to support a conviction requiring a
person be put in ‘fear.’” 582 N.E.2d 910, 912 (Ind. Ct. App. 1991) (citing Koby
v. State, 209 Ind. 91, 97-98, 198 N.E. 88, 90 (1939)).
[16] Clay argues that the instructions related to fear were given in error and
prejudiced him. The State contends that these were not given in error; that
even if given in error the instruction was nevertheless not prejudicial; and that
in any event Clay failed to object to the instruction, thereby inviting error on the
trial court’s part.
[17] Our review of the record discloses that Clay did not object to any of the
instructions the trial court issued. As this Court has observed:
Failure to object to an instruction at trial typically results in
waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36
(Ind. Ct. App. 2002). If an instruction is so flawed that it
constitutes fundamental error, however, waiver does not preclude
review on appeal. Id. To qualify as fundamental, an error must
be so prejudicial to the rights of the defendant as to make a fair
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trial impossible. Id. Fundamental error is a substantial, blatant
violation of due process. Taylor v. State, 717 N.E.2d 90, 93
(Ind.1999).
Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010).
[18] Notably, Clay makes no claim of fundamental error, and thus waived the
question of jury instruction upon appeal. Waiver notwithstanding, the jury
instructions are not legally incorrect: the trial court instructed the jury on
Robbery based upon the statutory elements. While the State did not directly
charge fear in its information, there was evidence presented that Sharp was
placed in fear because of Clay’s actions toward her when he fled the bar, and
the statutory elements of Robbery include being placed in fear. Moreover, there
was evidence that Clay used force against Sharp when he took the cash from
behind the bar’s counter, and that the use of force in turn placed Sharp in fear.
Finally, to the extent Clay suggests that the difference between fear and force
amounts to a variance between the charging information and the jury
instructions, we note that fear and force often rely upon similar evidence at
trial, and that no fatal variance lies where the same evidence could prove either
fear or force. See Daniels v. State, 957 N.E.2d 1025, 1028 (Ind. Ct. App. 2011)
(noting that “convictions for robbery by placing a victim in fear have been
affirmed in situations … where the more appropriate charge arguably would
have been for a forcible taking of property”).
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[19] Clay failed to object to the trial court’s instructions, thus waiving the question
of jury instruction for appeal, and has failed as well to establish any error in the
court’s instructions—let alone fundamental error.
Sufficiency
[20] Clay also challenges the sufficiency of the evidence supporting his conviction
for Robbery. Our standard of review in such cases is well settled. We consider
only the probative evidence and reasonable inferences supporting the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility
of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
2000)). “The evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d
331, 334 (Ind. Ct. App. 2001)).
[21] To convict Clay of Robbery, as a Level 5 felony, the State was required to prove
beyond a reasonable doubt that Clay knowingly or intentionally took property
from the presence of another person, by using force—here, throwing Sharp out
of his way. See I.C. § 35-42-5-1; App’x Vol. 2 at 11.
[22] Clay’s sufficiency argument appears to boil down to an observation that, at
trial, he insisted he was guilty of Theft but not Robbery, and that his act of
pushing Sharp aside and forcing her into a counter did not satisfy the force
requirement of Robbery because it occurred as he was fleeing the bar. As to
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Theft instead of Robbery, this Court has held with respect to the admissibility of
evidence that “a criminal defendant may not stipulate her way out of the full
evidentiary force of the case to be presented against her.” Kellett v. State, 716
N.E.2d 975, 979 (Ind. Ct. App. 1999). Stipulating to an (uncharged) count of
Theft did not afford an opportunity for Clay to avoid a conviction for Robbery.
[23] With respect to the use of force, our supreme court has held that “robbery by
use of force requires that the force be used before the defendant completes
taking the property from the presence of the victim.” Young v. State, 725 N.E.2d
78, 80 (Ind. 2000). Here, Sharp testified that she stood in front of Clay to
prevent him from leaving the counter area in the bar, and that Clay pushed her
into the counter as he fled, causing bruising and soreness to Sharp’s arm. Here,
as in Young, force was used in flight from the victim and was “closely connected
in time…place…and continuity” id. at 81, so that a reasonable jury could find
that Clay’s pushing of Sharp constituted use of force within the context of his
taking of money from the bar. To the extent Clay would have us accept his
admission to having committed Theft and his denial—premised upon his own
testimony—that he committed Robbery, we must decline the invitation to
reweigh evidence.
[24] We conclude that there was sufficient evidence to sustain the conviction.
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Conclusion
[25] The trial court’s issuance of jury instructions was not in error. There was
sufficient evidence to sustain Clay’s conviction.
[26] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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Arbie Clay, Jr. v. State of Indiana (mem. dec.)
Combined Opinion