Curtis v. State

• Decision Date: 26 August 2015
• Docket Number: No. 18A02–1501–CR–59.,18A02–1501–CR–59.
• Citation: 42 N.E.3d 529
• Parties: Seth CURTIS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

42 N.E.3d 529

Seth CURTIS, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 18A02–1501–CR–59.

Court of Appeals of Indiana.

Aug. 26, 2015.

Alan K. Wilson, Muncie, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BRADFORD

, Judge.

Case Summary

[1] On July 8, 2011, Appellant–Defendant Seth Curtis entered a CVS store located in Delaware County. While inside the store, Curtis threatened a customer at gun point. Also at gun point, he ordered the pharmacist to give him certain drugs that were located in a safe within the pharmacy and ordered the pharmacy technician to give him the keys to her vehicle (“car keys”). After the pharmacist and the pharmacy technician complied with his orders, Curtis left the store with the drugs and the pharmacy technician's car keys. Once outside the store, Curtis took the pharmacy technician's vehicle. He later abandoned the vehicle behind a vacant building.

[2] Appellee–Plaintiff the State of Indiana (the “State”) subsequently charged Curtis with two counts of Class B felony armed robbery, Class C felony intimidation, and Class D felony auto theft. Following a jury trial, Curtis was found guilty of each of the charged offenses. The trial court subsequently imposed a judgment of conviction against Curtis on each count. The trial court sentenced Curtis to twenty years for each of the Class B felony armed robbery convictions, seven years for the Class C felony intimidation conviction, and two and one-half years for the Class D felony auto theft conviction. The trial court ordered that the sentences for the Class B felony convictions be served concurrently to each other but consecutive to the sentences imposed for the Class C felony intimidation and the Class D felony auto theft convictions.

[3] On appeal, Curtis contends that the State presented insufficient evidence to sustain his convictions. He also contends that the imposition of judgment of conviction against him and a sentence for both of the armed robbery counts and for both the armed robbery and auto theft counts violated the single larceny rule. We affirm.

Facts and Procedural History

[4] At approximately 9:00 a.m. on July 8, 2011, a man, who was subsequently identified as Curtis, wearing a gray sweatshirt, jeans, a black turtleneck, a black face mask on top of his head, and a black glove on his left hand passed in front of the entrance to the CVS store located at 415 E. McGalliard Road in Delaware County. Surveillance video from the CVS store showed Curtis, who was carrying a plastic bottle containing blue liquid, walk in front of the entrance toward a trash can that is located just to the left of the entrance. Curtis momentarily moved out of the area covered by the surveillance video before immediately re-entering the area covered by the surveillance video. Curtis then entered the CVS. Curtis did not have the plastic bottle containing blue liquid in his hands when he entered the store.

[5] Once in the store, Curtis approached the pharmacy area of the store. Upon arriving at the pharmacy area, Curtis removed a black handgun from his pocket. Curtis approached Jeffrey Lightner, a regular customer of the CVS who was standing at the drop-off area of the pharmacy waiting to have a prescription filled, and told Lightner “don't f'ing look at me ... [o]r I will shoot you.” Tr. p. 83.

[6] Nariman Al Shweiki was the pharmacist on duty when Curtis arrived at the pharmacy counter. Shweiki observed Curtis climb over the pharmacy counter before pointing his gun at her head and ordering her to give him Opana

pills. Shweiki responded to Curtis's demand by opening the safe and placing the bottles of Opana pills in a bag for him to take. Shweiki was the only person who could give Curtis the bottles of Opana pills because the pills are a controlled substance which is stored in a safe, and only the pharmacist knows the code to open the safe.

[7] After ordering Shweiki to give him the Opana

pills, Curtis turned, pointed his gun at the pharmacy technician on duty, Rebekah Williams, and demanded that Williams give him her car keys. Curtis repeated his demand three times before Williams complied. Before leaving the pharmacy but while still pointing his gun at Williams, Curtis asked Williams what kind of vehicle she drove. Williams answered that she drove a gold Chrysler Pacifica. Curtis then left the CVS carrying the bag containing the Opana

pills and Williams's car keys.

[8] Upon responding to the scene shortly after the robberies, the investigating officers recovered a plastic Powerade bottle containing blue liquid from the trash can that is located just to the left of the entrance to the CVS. Although the robberies occurred on a warm day in July, the plastic bottle was cool to the touch and had condensation on it. The plastic bottle recovered from the trash can looked like the one carried by Curtis immediately before he entered the store and carried out the robberies. Nothing else found in the trash can resembled a plastic bottle containing blue liquid. Shweiki and Williams testified that to their knowledge, the trash can in question was usually emptied daily. Williams also opined that the trash can must have been emptied the night before as it was not full at the time that the robberies occurred.

[9] While on his way to the CVS store, one of the investigating officers subsequently spotted Williams's vehicle parked behind a vacant building. The vehicle was unoccupied and the keys were in the ignition. There were no other vehicles located behind the building.

[10] A few days later, investigating officers received a call from Jay Mosier. Mosier informed the officers that on the morning in question, he had been eating in the back parking lot of the McDonalds restaurant located at McGalliard Road and Granville Avenue when he observed a white man running from behind a building that he believed to be vacant. Mosier observed the man approach a “rough looking” burgundy car, throw something inside, and climb in before quickly driving off. Tr. p. 253. The building described by Mosier was the same building behind which investigating officers located Williams's vehicle. Investigating officers also subsequently learned that on the date of the robbery, a maroon 2004 Pontiac Grand Prix was registered to Curtis's then-wife.

[11] On September 14, 2012, the State charged Curtis with Count I—Class B felony armed robbery, Count II—Class B felony armed robbery, Count III—Class C felony intimidation, and Count IV—Class D felony auto theft. The trial court conducted a jury trial on November 19 and November 20, 2014. During trial, Kimberly Marshall, a forensic biologist with the Indiana State Police Laboratory testified that she conducted DNA analysis on the plastic bottle recovered from the crime scene and on a sample provided by Curtis. Marshall testified that her analysis demonstrated that Curtis's DNA profile matched the DNA recovered from the plastic bottle recovered from the crime scene within a statistical probability of one to three hundred and thirty billion (330,000,000,000). Marshall further testified that she was able to reach the conclusion that, in the absence of an identical twin, Curtis was the source of the DNA recovered from the plastic bottle “to a reasonable degree of scientific certainty.” Tr. p. 206.

[12] Following the conclusion of trial, the jury found Curtis guilty as charged. The trial court subsequently entered a judgment of conviction against Curtis on all four counts. On January 8, 2015, the trial court sentenced Curtis as follows: Count I—twenty years, Count II—twenty years, Count III—seven years, and Count IV—two and one-half years. The trial court ordered that the sentences imposed on Counts I and II be served concurrently to each other, but consecutively to the sentences imposed on Counts III and IV. The trial court also ordered that the sentence imposed in the instant matter be served consecutively to Curtis's sentences in three unrelated criminal matters. This appeal follows.

Discussion and Decision

[13] On appeal, Curtis raises two contentions: (1) that the evidence is insufficient to sustain his convictions and (2) that the imposition of a judgment of conviction against him and a sentence for both Counts I and II and both Counts II and IV violate the single larceny rule. We will discuss each claim in turn.

I. Sufficiency of the Evidence

[14] Curtis contends that the evidence is insufficient to sustain his convictions for two counts of Class B felony armed robbery, Class C felony intimidation, and Class D felony auto theft.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind.2007)

(citations, emphasis, and quotations omitted). “In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.2012) (emphasis in original). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.2002).

[15] The version...