Clemmons v. State
| Decision Date | 31 May 1989 |
| Docket Number | No. 49S00-8804-CR-408,49S00-8804-CR-408 |
| Citation | 538 N.E.2d 1389 |
| Parties | Freddie CLEMMONS, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of the crime of Robbery, a Class C felony, for which he was sentenced to a term of five (5) years enhanced by thirty (30) years by reason of his status as an habitual offender, and Theft, a Class D felony, for which he received a sentence of two (2) years. We note that inasmuch as theft is an included offense within the charge of robbery, the two convictions should have been merged and no separate sentence entered on the crime of theft. This case will therefore be remanded to the trial court with instructions to expunge the theft portion of the conviction and sentence.
The facts are: On March 10, 1987, April Richardson was employed as a cashier at the Kroger Grocery located on East 16th Street in Indianapolis. At approximately 11:00 a.m. on that date, a man later identified as appellant entered the store, walked up to Richardson with one hand in his jacket, and said, "Give me the money bitch." As Richardson backed away, he grabbed money from her hand and also took money from the cash register. Richardson testified that because of appellant's action, "I was scared." When Richardson alerted other employees that she just had been robbed, five of them gave chase and captured appellant a short distance from the store.
He was found to have $180 in cash, two $10 food stamps, a Kroger meat coupon, and a Kroger cash register receipt on his person.
Appellant's sole assignment of error is that there is insufficient evidence to sustain his conviction for robbery. He contends that there is no proof in this record that he actually placed Richardson in fear in order to obtain the money and other property; thus the most the proof submitted by the State established was that he committed a theft.
We cannot agree with appellant in his analysis of the evidence in this case. This Court has said many times that it is not necessary for a victim to testify that he or she was actually put in fear. There only need be evidence from which the jury can infer that the victim was in fact put in fear.
In the case at bar, in addition to the fact that Richardson testified she was placed in...
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Murphy v. State Of Ind.
...to testify that he or she was actually put in fear." Rickert v. State, 876 N.E.2d 1139, 1141 (Ind. Ct. App. 2007) (citing Clemmons v. State, 538 N.E.2d 1389 (Ind. 1989)). The element of fear in the crime of robbery may be inferred from the circumstances. Hightower v. State, 490 N.E.2d 1111,......
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Johnson v. State
...of robbery. One cannot commit robbery without also committing theft. Brown v. State, 650 N.E.2d 304, 305 (Ind.1995); Clemmons v. State, 538 N.E.2d 1389, 1389 (Ind.1989). The State counters that in this case, auto theft is not a lesser included offense of robbery because the taking of differ......
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Jones v. State
...put in fear. See Ind.Code § 35-42-5-1(2) (2004). It does not provide that the victim must remain in fear. See, e.g., Clemmons v. State, 538 N.E.2d 1389, 1390 (Ind.1989) (finding that victim was placed in fear of defendant was supported by her testimony that she was in fear). Moreover, Jones......
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Brown v. State
...argument. Theft is a lesser included offense of robbery, and therefore the two convictions should have been merged. Clemmons v. State (1989), Ind., 538 N.E.2d 1389, 1389. 2. Denial of Motion for Separate The defendant was tried on seven separate counts. Counts I through III stemmed from act......