Cole v. State

• Decision Date: 10 May 2012
• Docket Number: No. 73A01–1107–CR–310.,73A01–1107–CR–310.
• Citation: 967 N.E.2d 1044
• Parties: Anthony L. COLE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

967 N.E.2d 1044

Anthony L. COLE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 73A01–1107–CR–310.

Court of Appeals of Indiana.

April 16, 2012.

Ordered Published May 10, 2012.

Gilda W. Caviness, Caviness Law Office, LLC, Rushville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Following a jury trial, Anthony Cole was convicted of Burglary ¹ as a class A felony; Robbery ² as a class B felony; Criminal Confinement ³ as a class B felony; Intimidation with a Deadly Weapon,⁴ a class C felony; Theft ⁵ as a class D felony; Criminal Gang Activity ⁶ as a class D felony; and Carrying a Handgun Without a License,⁷ a class A misdemeanor. Thereafter, Cole admitted to being a Habitual Offender.⁸ Inclusive of the habitual offender enhancement, the trial court sentenced Cole to an aggregate sentence of fifty years. On appeal, Cole presents the following issues for our review:

1. Is the evidence sufficient to support Cole's conviction for class D felony criminal gang activity?

2. Do Cole's convictions for burglary, robbery, criminal confinement, intimidation with a deadly weapon, theft, and carrying a handgun without a license violate the double jeopardy clause of the Indiana Constitution?

3. Is Cole's habitual offender enhancement proper?

We affirm in part, reverse in part, dismiss in part, and remand.

Jerry Ayers stopped smoking in 1992. Since that time, Ayers would accumulate one-and five-dollar bills as his non-smoking savings. Ayers folded the bills in half and kept the money in varying bunches, each wrapped with colored rubber bands. Ayers stored all of his cash savings in this manner and kept the money in a safe in his garage. Years later, Ayers began having some medical issues, so he started selling marijuana. Ayers purchased the marijuana from Robbie McColley. Ayers kept his money from the sale of marijuana in his bedroom, separate from his non-smoking savings. Ayers estimated that he had as much as $8000 in his bedroom, but did not know how much cash he had in his safe in the garage other than to say it was a “great deal more” than $20. Transcript at 266. Ayers also owned two guns and a holster that he kept in his safe in the garage.

McColley had been to Ayers's home numerous times and knew of the location of the safe in Ayers's garage. On one occasion, McColley introduced Ayers to a man Ayers knew only as Blade. Blade's real name is Edward LeFlore. McColley brought LeFlore to Ayers's home the previous winter so LeFlore could inquire about buying a car from Ayers. Ayers had never before met Cole, the defendant in this case.

In October 2010, Ayers and his step-daughter, Lisa Boswell, lived at Ayers's home in Fairland, Indiana. On October 4, 2010, Ayers was away from the home, but Boswell was there with her twenty-one-year-old step-daughter, Katina. That evening, Boswell was in the kitchen cleaning while Katina was in another room watching television. Around 8:00 p.m., the women heard a loud noise and then saw Cole kick through the front door. Cole and a second individual barged through the door and Cole identified himself and the second intruder as police officers, and, while pointing a gun, ordered Boswell and Katina to lie face down on the floor. Cole and the second individual were dressed in black and both were wearing black shirts that said “Police” or “K–9 Unit” on them. Transcript at 343. They were also wearing ski masks and black gloves. The women described Cole, the first intruder through the door, as a stocky black man, “a big, broad guy” with “great big arms” and a calm demeanor. Id. at 305. The women described the second individual through the door as a “tall, slender guy” who had a loud voice and an active demeanor. Id. at 304.

Boswell did not immediately comply with Cole's command, so Cole came across the living room and stood close to Boswell, pointed the gun at her, and again ordered her to lie on the floor. Boswell complied with Cole's second command, and then Cole patted her down, asked if she had anything on her, and tied her hands behind her back with zip ties. The second intruder went to Katina and helped her to the floor. When Cole finished securing Boswell's hands behind her back, he moved to Katina and secured her hands behind her back with zip ties. Cole told Boswell and Katina to keep their faces down and not look up. Cole was acting like a police officer and seemingly talking to other officers on a radio reporting that the house was secure so other officers could enter.

The second intruder went to the back of the house and looked in all of the rooms while asking if anyone else was in the home. He then went into Ayers's room and Boswell and Katina could hear him making a lot of noise as he was ransacking Ayers's room.

While the second intruder was in Ayers's room, Cole, who was standing over Boswell and had a gun against the back of her head, commented on the fact that there was “an awfully big safe” in the garage. Id. at 308. Cole questioned Boswell about the contents of the safe and then asked her for the combination. Cole eventually was able to open the safe. During this time, the women heard sirens approach and then fade. Cole acted calm as if they were expected. Cole then left the house with a bag over his shoulder that contained contents from the garage safe, and the second intruder also left the house with a large bag full of items from Ayers's room. As they were leaving, the intruders told the women to “keep your face on the floor. We're bringing in the K–9s.” Id. at 346. Boswell estimated that the men were in the home for fifteen to twenty minutes.⁹

After the men left, Boswell was able to free herself from the zip ties and then she helped remove the zip ties from Katina's hands. The two women then left the home and quickly walked to a neighbor's home where police were called. A detective who spoke with Boswell and Katina noted that they each had “little indents and red marks” around their wrists where the zip ties had been used to secure their hands behind their backs. Id. at 324. The marks became lighter as time went on. Photographs were taken of the marks approximately six hours after the incident.

After speaking with police, Boswell and Katina were permitted to return to the home and collect some personal belongings. When they went inside, Boswell noted that her stepfather's room had been “demolished.” Id. at 325. No other room in the house had been torn apart in the same manner, even though Boswell's purse was out in the open in her bedroom. Other than the large safe in the garage, little else in the house had been touched.

Meanwhile, Sergeant Louie Koch, a K–9 officer with the Shelby County Sheriff's Department, was on patrol in the area when he came across a stranded vehicle. Sergeant Koch discovered that the car's owner lived nearby, so he went to the owner's residence, going by Ayers's residence on his way. Sergeant Koch learned that the owner of the stranded vehicle was on his way back to fix the car, so Sergeant Koch headed back toward Interstate 74, at which time he encountered a dark SUV stopped in the roadway with its lights off in front of Ayers's home. The SUV was not in the roadway when Sergeant Koch passed by just minutes earlier. Sergeant Koch activated his emergency lights, but the driver, later identified as LeFlore, drove away with quick acceleration. Sergeant Koch initiated a vehicle pursuit and called for back-up assistance. After a short pursuit, LeFlore stopped the vehicle in the middle of the road and fled from the vehicle, running north into a wooded area. Sergeant Koch found a black ski-mask outside the driver's side door LeFlore had just exited.

Sergeant Koch described the fleeing suspect as a black male wearing a white tank top, and black pants and shoes. Sergeant Koch identified himself as a K–9 officer and ordered LeFlore to stop. After Sergeant Koch lost sight of LeFlore, he returned to the SUV, made sure no one else was inside, and secured it. He then retrieved his K–9 and continued his search for LeFlore. The K–9 followed a “really strong track” along which Sergeant Koch spotted a white tank top in the middle of a field. Id. at 408. As his search continued, Koch found a black t-shirt with the word “Police” on it and he advised a crime scene technician as to its location. Id. at 409. LeFlore was apprehended later that evening after someone reported seeing a black male was walking down Pumpkin Vine Road. LeFlore was wearing only his undershorts, had smudges of dirt on his back, shoulders, and legs, and his feet were bleeding.

Sheriff Michael Bowlby responded to Sergeant Koch's call for assistance after LeFlore fled in the SUV. As Sheriff Bowlby exited I–74 he observed a black male, later identified as Cole, walking in front of an old convenience store that had closed. Cole was dressed in dark clothing with clearly visible orange or red embroidery on both the shirt and pants. Given the report that two black men had held two women at gunpoint, Sheriff Bowlby secured Cole while other officers patted him and placed him in handcuffs. Cole was calm, but sweaty despite the cool temperature of that night. Officers found in Cole's pocket seven bundles of folded money, each of them banded together with colored rubber bands and totaling $563. Cole explained to the officers that his car had broken down on the interstate as he was headed to the nearby casino. Sheriff Bowlby searched for a broken-down car as described by Cole and never discovered one and was not aware of anyone else finding a car similar to that described by Cole. During a search of the area, officers discovered a number of items, including ear covers, a black stocking cap, brown work gloves, and a wig behind the convenience store where Cole was apprehended. A shirt marked with “K–9” was found in a nearby yard.

In the...