956 N.E.2d 187 (Ind.App. 2011), 02A03-1103-CR-91, Laster v. State

Docket Nº02A03-1103-CR-91.
Citation956 N.E.2d 187
Opinion JudgeCRONE, Judge.
Party NameAnthony D. LASTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyRandy M. Fisher, Deputy Public Defender, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelBAILEY, J., and MATHIAS, J., concur.
Case DateOctober 26, 2011
CourtCourt of Appeals of Indiana

Page 187

956 N.E.2d 187 (Ind.App. 2011)

Anthony D. LASTER, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 02A03-1103-CR-91.

Court of Appeals of Indiana.

October 26, 2011

Page 188

Randy M. Fisher, Deputy Public Defender, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Anthony D. Laster and an unidentified accomplice robbed four people in their apartment. Laster was linked to the crimes when it was discovered that he had possession of one of the cell phones taken during the robbery. Although three of the victims identified Laster as one of the robbers, Laster claimed that his stepfather had purchased the phone for him and that he was not involved in the robbery. The morning of his jury trial for robbery and burglary, Laster moved for a continuance, asserting that a witness had recently come forward who implicated two other men in the robbery. The trial court denied the motion and proceeded with the trial. Laster was found guilty of burglary and four counts of robbery, all class B felonies. The trial court imposed an aggregate sentence of forty years, all executed.

On appeal, Laster argues that the trial court abused its discretion by denying his motion for continuance. All that was known about the new potential witness was her first name. Because there was no apparent likelihood of locating the witness, we conclude that the trial court did not abuse its discretion by denying Laster's motion for continuance.

Laster also argues that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. While we agree with the trial court that the existence of separate victims justifies consecutive sentences, we conclude that the nature of the offenses and the character of the offender do not warrant a fully executed sentence on each count. Therefore, we remand for the trial court to revise each sentence to eight years executed and two years suspended, for a total of thirty-two years executed and eight years suspended.

Facts and Procedural History

On the evening of July 29, 2010, Oscar Narvaez, Martin Narvaez, Amy Simons, James Neighbor, and Donovan Dowling went to a bar in Fort Wayne. Oscar,

Page 189

Neighbor, and Dowling were roommates and students at IPFW. Oscar, his brother Martin, and his girlfriend Simons are all from Australia, and Neighbor is from the United Kingdom. Dowling offered to be the designated driver. There was not enough room for everyone in his car, so he first took Martin and Neighbor back to Neighbor's apartment.

When Martin and Neighbor entered their apartment building, a man was standing in the hallway. It seemed that he was about to knock on one of the doors, and Martin told him that no one was there. As Martin turned to unlock his brother's door, he felt a gun pressed against his back. Martin and Neighbor were told to go in and lie on the floor. Two men entered behind them, and one of them pushed Martin to the floor. The men placed pillows over Martin's and Neighbor's heads and demanded to know where their money was. Martin and Oscar had recently cashed their checks from their summer jobs, and Martin initially denied knowing where the money was. One of the robbers hit him in the head with a pistol, and Martin then told them where the money was.

Meanwhile, Oscar and Simons got a ride home with someone else, and Dowling went to meet some other friends. Oscar and Simons arrived home while the robbery was still in progress. The robbers ordered Oscar and Simons to lie on the floor, and they complied. At some point, Oscar tried to get up, and he was pushed back onto the floor and kicked in the head. One of the robbers held two guns on the victims while the other collected items of value, including cell phones, suitcases, wallets, laptops, a camera, a PlayStation, an Xbox, DJ turntables, and Simons's purse, which contained passports and cash. As the robbers left, one of them said, " [Don't] f— ing move, don't move or I'll blow you." Tr. at 149.

Afraid that the robbers would return, Oscar, Martin, Simons, and Neighbor remained on the floor for about ten minutes. Then Oscar got up and tried to find a phone so that he could call the police. Simons and Martin were especially shaken up and would not get up off the floor.

When Dowling arrived home, he knocked on the door because it was bolted shut and he could not get in. The people inside were still frightened and made Dowling answer questions to prove who he was before they would let him in. Oscar then used Dowling's cell phone to call the police.

The phone that had been stolen from Oscar was a Blackberry. About five days after the robbery, Oscar's friend Christopher Moreno forgot that Oscar's phone had been stolen and tried to contact him. Moreno noticed that Oscar's profile picture had been replaced by a photo of an unknown man.1 A few days later, Oscar's name had been replaced with the name " Anthony." Oscar and Martin identified the man in the photo as one of the robbers.

Page 190

Detective Jason Snyder was able to identify the man in the photo as Anthony Laster. Detective Snyder prepared a photographic array and showed it separately to Neighbor, Simons, and Oscar. Simons and Oscar picked Laster's picture out of the array. Neighbor was not able to identify anyone because the pillow over his head had prevented him from getting a good look at the robbers. Martin, who attends school in New York, had already left town and was not shown the photographic lineup.

Detective Snyder interviewed Laster. Laster said that his stepfather, Darnell Walker, had given him the Blackberry. He claimed that Walker had purchased it at a gas station from someone named " Cam." Detective Snyder showed Laster the photo that had replaced Oscar's on his Blackberry profile, and Laster agreed that it was a photo of himself.

Laster was charged with four counts of class B felony robbery and one count of class B felony burglary. The other robber has apparently remained unidentified. The jury trial commenced on Tuesday, January 11, 2011. That morning, Laster requested a continuance because two potential witnesses had come forward. Defense counsel stated that on the Friday before trial, he received a call from someone named " Molly" who would not give her last name. Molly claimed that the robbery had been committed by LaCameron Smith and Franklin Wright. She claimed to have been present when they planned the robbery and when they divided up the stolen goods afterwards. Defense counsel provided this information to the prosecutor and also gave Molly the prosecutor's phone number.

The other potential witness was Avery Wilkens. Wilkens approached defense counsel in court on the Monday before trial. Wilkens claimed to have been present when Walker purchased the Blackberry from Smith. Smith was expected to testify that he had not sold a phone to Walker.

The prosecutor objected to the continuance, arguing that Wilkens and Molly were not credible witnesses and that the State had paid to fly in a witness from Philadelphia. The court denied Laster's motion, concluding that it was " untimely and unsupported." Appellant's App. at 5.

At trial, Oscar, Martin, and Dowling testified about the events of July 29, 2010. Oscar and Martin both testified with certainty that they recognized the picture from Oscar's phone as one of the robbers, and they each identified Laster in court as one of the robbers; in fact, Martin testified that he was " completely adamant" that Laster was the man he had seen in the hallway. Tr. at 152. Simons and Neighbor were no longer in the country and did not wish to return for the trial. Moreno testified about seeing Laster's photograph and the name " Anthony" when he tried to contact Oscar.

Laster testified in his own defense. He stated that he had been living with his brother, Antonio Laster; his uncle, Richard Austin; Austin's girlfriend; and Austin's daughter. The evening of July 28, 2010, he was home with Antonio, Austin, Austin's girlfriend, Austin's daughter, and a friend, Javon Turner. The men played a video game until late in the evening, and then went to bed. The next day was Austin's daughter's birthday. Laster and Antonio helped Austin and his girlfriend prepare for their daughter's birthday party. Later that day, a three-day family reunion commenced. Austin, Antonio, and Turner also testified and corroborated Laster's account of his activities.

Laster testified that he had gotten the Blackberry from Walker. He knew that

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Walker did not pay much for the phone, but he did not think that was unusual because the phone was scratched. Walker testified that he bought the phone from Smith at a gas station. Walker paid $15-20 for the Blackberry, which was scratched.

In rebuttal, the State called Smith. Smith testified that he is friends with Laster and knows Walker. He claimed that he did not sell Walker a cell phone.

The jury found Laster guilty as charged. At sentencing, Laster's grandmother and a friend testified to Laster's positive character traits, and his mother also submitted a letter to the court. Laster was twenty years old when he committed the offenses, and he had a previous adjudication for disorderly...

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19 practice notes
  • 980 N.E.2d 449 (Ind.App. 2012), 22A01-1204-CR-153, Deloney v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2012
    ...factors that are improper as a matter of law." Phelps v. State, 969 N.E.2d 1009, 1019 (Ind.Ct.App.2012) (citing Laster v. State, 956 N.E.2d 187 (Ind.Ct.App.2011)), trans. Deloney does not contest that the trial court's issuing statement was inadequate or that the trial court failed to ......
  • 969 N.E.2d 1009 (Ind.App. 2012), 55A01-1108-CR-410, Phelps v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 11, 2012
    ...supported by the record and advanced for consideration, or (4) by finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187 The trial court identified the following aggravating factors when sentencing Phelps: (1) The offense occurred in the presence of other chil......
  • 31 N.E.3d 17 (Ind.App. 2015), 02A03-1405-CR-181, Carter v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 2015
    ...supported by the record and advanced for consideration; or (4) by finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187, 193 (Ind.Ct.App. 2011). Carter's argument, however, focuses not on the sentencing statement or on aggravators and mitigators, but on his a......
  • 993 N.E.2d 1199 (Ind.App. 2013), 74A04-1209-CR-472, Kleaving v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 11, 2013
    ...for consideration, (4) or by finding factors that are improper as a matter of law. Gleason, 965 N.E.2d at 710 (citing Laster v. State, 956 N.E.2d 187, 193 Here, Kleaving challenges her sentence in several respects, arguing that (1) the trial court did not enter a sentencing statement, (2) t......
  • Request a trial to view additional results
19 cases
  • 980 N.E.2d 449 (Ind.App. 2012), 22A01-1204-CR-153, Deloney v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2012
    ...factors that are improper as a matter of law." Phelps v. State, 969 N.E.2d 1009, 1019 (Ind.Ct.App.2012) (citing Laster v. State, 956 N.E.2d 187 (Ind.Ct.App.2011)), trans. Deloney does not contest that the trial court's issuing statement was inadequate or that the trial court failed to ......
  • 969 N.E.2d 1009 (Ind.App. 2012), 55A01-1108-CR-410, Phelps v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 11, 2012
    ...supported by the record and advanced for consideration, or (4) by finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187 The trial court identified the following aggravating factors when sentencing Phelps: (1) The offense occurred in the presence of other chil......
  • 31 N.E.3d 17 (Ind.App. 2015), 02A03-1405-CR-181, Carter v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 2015
    ...supported by the record and advanced for consideration; or (4) by finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187, 193 (Ind.Ct.App. 2011). Carter's argument, however, focuses not on the sentencing statement or on aggravators and mitigators, but on his a......
  • 993 N.E.2d 1199 (Ind.App. 2013), 74A04-1209-CR-472, Kleaving v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 11, 2013
    ...for consideration, (4) or by finding factors that are improper as a matter of law. Gleason, 965 N.E.2d at 710 (citing Laster v. State, 956 N.E.2d 187, 193 Here, Kleaving challenges her sentence in several respects, arguing that (1) the trial court did not enter a sentencing statement, (2) t......
  • Request a trial to view additional results

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