Croney v. State, 49S00-8804-CR-398

• Decision Date: 03 May 1989
• Docket Number: No. 49S00-8804-CR-398,49S00-8804-CR-398
• Citation: 537 N.E.2d 478
• Parties: Antoine C. CRONEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 478

537 N.E.2d 478

Antoine C. CRONEY, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8804-CR-398.

Supreme Court of Indiana.

May 3, 1989.

Howard Howe, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant was tried by the court without a jury and found guilty of two counts of Robbery, Class B felonies, and one count of Theft, a Class D felony. He received sentences of twelve (12) years each on the robbery convictions and two (2) years on the theft conviction, the sentences to run concurrently.

The facts are: At approximately 10:30 p.m. on June 6, 1987, Allen Hall was driving a 1979 Buick on New Jersey Street in Indianapolis. He was accompanied by David Berryhill. Because of the narrowness of the street, they pulled to the side to allow another car to pass. At that time, Berryhill saw appellant, whom he knew from school. Appellant and another man identified as Scooter offered to sell marijuana to Berryhill and Hall; they refused. Scooter then approached the driver's side of the car with a pistol and told Hall to "give up your money." Scooter then told Hall to turn his car off and to leave the keys in the ignition. Berryhill stated to appellant "Hey, man, what's going on?" Appellant replied: "Yeah, you gotta give it up too." The two victims were forced to give up their wallets. The victims were then ordered out of the car. Appellant opened the passenger door and searched Berryhill when he exited the car. Berryhill asked appellant, "Why you robbing me, you know I know you?" Appellant did not reply. Scooter took the two victims to the rear of the car and forced them to walk away. Appellant got into the car and drove it away.

Appellant claims the trial court erred in convicting and sentencing him on both Count I, Robbery, and Count III, Theft in that both counts concerned the robbery of Hall. He correctly takes the position that theft is an included offense of robbery. The State waives argument on this issue, citing McGraw v. State (1987), Ind., 514 N.E.2d 621, which holds that theft being an included offense of robbery, the theft conviction must be vacated once the robbery conviction is sustained by the evidence. We will therefore remand this case for correction of the sentence.

Appellant claims the trial court erred in that there was not sufficient evidence to sustain his convictions. It is appellant's position that the evidence clearly shows...