Fix v. State

• Decision Date: 27 September 2021
• Docket Number: Court of Appeals Case No. 20A-CR-1566
• Parties: Zachary FIX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

177 N.E.3d 837

Zachary FIX, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-1566

Court of Appeals of Indiana.

FILED September 27, 2021

Attorney for Appellant: Paul J. Podlejski, Anderson, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Ian McLean, Megan Michelle Smith, Deputy Attorneys General, Indianapolis, Indiana

May, Judge.

[1] Zachary Fix appeals following his convictions of Level 2 felony burglary while armed with a deadly weapon,¹ Level 5 felony robbery,² and Level 6 felony theft.³ He raises three issues, which we revise and restate as:

1. Whether the State presented sufficient evidence that Fix committed Level 2 felony burglary while armed with a deadly weapon based on evidence that he broke and entered the victim's home unarmed but subsequently obtained and used a deadly weapon against the victim;

2. Whether Fix's multiple convictions violate the Indiana Constitution's prohibition against double jeopardy; and

3. Whether the trial court's imposition of consecutive sentences was authorized by law.

We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History⁴

[2] In 2017, Robert Mudd, who has a medical condition that causes progressive paralysis, lived alone in his home in Alexandria, Indiana. At the time relevant to this case, Mudd retained the ability to move his arms and left hand, but he was generally confined to a hospital-style bed located in his living room and required substantial care. His father, Larry Mudd ("Larry"),⁵ would visit him twice a day, once at 6:30 a.m. and again at 8:00 p.m. Larry would lock the back door every night when he left Mudd's house, and he would unlock the back door every morning. Pizza Hut would deliver Mudd lunch daily, and the restaurant instructed its drivers to enter Mudd's house through the back door to deliver food to him.

[3] During the early morning hours of July 7, 2017, Fix and Bobby Yeagy developed a plan to steal items that could then be traded or sold for drugs. Fix mentioned to Yeagy that a friend he met in prison told him about Mudd, and Fix thought Mudd would be an easy target. Yeagy was also familiar with Mudd because he had worked as a delivery driver for Pizza Hut and had delivered orders to Mudd. At approximately 3:00 a.m., Fix cut the power and cable lines into Mudd's house. Fix also disabled an outdoor surveillance camera. Mudd was awake at the time, and he heard Fix and Yeagy enter his house through the back door shortly after the power went out.

[4] Both Fix and Yeagy used flashlights to see as they walked through Mudd's house. They approached Mudd, and Fix shined his flashlight in Mudd's face. Fix and Yeagy searched the area around Mudd's bed and asked Mudd if he had any money. They found Mudd's wallet and asked Mudd for the PIN associated with his debit card. Fix threatened to kill Mudd if Mudd told them an incorrect PIN, but Mudd still relayed a false PIN. At some point, Fix shined his flashlight away from Mudd. Mudd then pulled out a handgun, which he kept hidden under his bedsheets, and pointed it at Fix. Fix saw the handgun and wrestled it away from Mudd's hand. Fix then hit Mudd across the side of the head with the handgun, resulting in a laceration above Mudd's left eye. Fix pulled the bedsheets off Mudd and took a cell phone Mudd had hidden under his leg. Fix also took Mudd's Life Alert pendent and a necklace Mudd was wearing.

[5] While Fix was occupied with Mudd, Yeagy searched the kitchen and the spare bedroom looking for Mudd's medications. Yeagy and Fix then searched the remainder of Mudd's house and collected all the items they wanted to steal into laundry baskets. They asked Mudd questions about certain items in his house, and they asked him to provide the combinations to open various safes. Before Yeagy and Fix left Mudd's house, Fix gave Mudd two Xanax pills to make him tired and warned Mudd that they would be coming back. Throughout the entire encounter, Fix repeatedly threatened to kill Mudd. Mudd was unable to contact anyone after Yeagy and Fix left his house because he was without power or a cell phone.

[6] Yeagy and Fix loaded the stolen items into Yeagy's car. They drove to the home of Yeagy's grandmother and unloaded the stolen items into the garage. Approximately thirty minutes later, they returned to Mudd's house and proceeded to steal more of his property. After about forty-five minutes, Fix and Yeagy left Mudd's house. Prior to leaving, they instructed Mudd to blame the robbery on a "black man with dreads, stocky build." (Tr. Vol. II at 180.) In total, Fix and Yeagy stole twelve firearms; thousands of rounds of ammunition; various tools, including a screw gun and a Caterpillar jump starter; a replica Tommy gun; batteries; several credit and debit cards; various medications, including Xanax and Klonopin ; syringes; cameras; a safe; and various other pieces of property. Mudd later estimated that Fix and Yeagy stole $11,000 worth of property from his house. Larry discovered Mudd and the ransacked house approximately two hours after Fix and Yeagy left, and he contacted the police.

[7] The stolen credit cards were used on July 9, 2017, and July 11, 2017. These transactions included charges from Oakwood Resort in Syracuse, Indiana; Finishline.com; and Amazon.com. Two of the Finish Line purchases used the e-mail address zachafix@gmail.com. Destini Lanning, the mother of Fix's daughter, texted Fix in July 2017 to ask for assistance in meeting her rent payment. Fix responded that he would help Lanning with her rent payment if she would sell Xanax pills for him. Lanning did not reply to Fix's text, and her father covered her rent payment. Lanning mentioned the text conversation to some of her coworkers, and one of Lanning's coworkers contacted the police.

[8] Two friends of Fix and Yeagy, Nathaniel Kissick and Christopher Myers, visited Fix and Yeagy in mid-July 2017 at Yeagy's grandmother's garage. Kissick observed "a pile of stuff" in the garage's back right corner. (Tr. Vol. III at 136.) Fix and Yeagy showed Kissick and Myers several firearms, and they bragged that they had stolen the guns from a handicapped person. Fix also told Kissick and Myers that he had almost been shot during the robbery. Around this time, Yeagy also posted pictures of various guns on Snapchat. Fix and Yeagy later sold some of the stolen guns to Keith Irwin, who bought ten firearms for a total between $800 and $1000. Officers also executed a search warrant on Yeagy's grandmother's house in connection with a separate robbery case and discovered several of the items stolen from Mudd's house.

[9] On March 26, 2018, the State charged Fix with Level 2 felony burglary while armed with a deadly weapon, Level 3 felony robbery resulting in bodily injury,⁶ Level 3 felony armed robbery,⁷ and Level 6 felony theft.⁸ The trial court held a jury trial from February 24, 2020, to February 27, 2020. While Fix was present during jury selection, he absconded following the first day of trial, and the trial court resumed trial with Fix being tried in absentia. At the conclusion of Fix's trial, the jury returned a verdict of guilty on all counts.

[10] The State eventually apprehended Fix, and the trial court held a sentencing hearing on July 28, 2020. At sentencing, the State asked for entry of judgment of conviction for Level 2 felony burglary while armed with a deadly weapon, Level 5 felony robbery as a lesser included offense of Level 3 felony robbery resulting in bodily injury, and Level 6 felony theft. The State explained:

The State's, for count one (1) [Level 2 felony burglary while armed with a deadly weapon], the State is recommending thirty (30) years executed [in the] Department of Corrections. For count two (2) [Level 3 felony robbery resulting in bodily injury], the State is requesting that the court enter the conviction as a lesser included offense, uh, robbery as a level five (5) felony. The State believes that the element, um, as, as was charged and the way that it was, uh, that the jury found him guilty for, uh, that the element of using or threatening, I'm sorry, the element of, uh, resulting in bodily injury to Robert Mudd. There was one (1) action. There's one (1) action that constitutes arming himself and causing bodily injury. It's when he grabbed the gun and hit him over the head with it. None of the other guns that Mr. Fix and Mr. Yeagy stole constitute while armed with a deadly weapon because the law is clear on that. If you go in to steal a weapon you are not armed with that weapon unless you use it in a manner, and this what we argued to the jury during closing statements, unless you use it in a manner, uh, that, um, that would suggest you're armed with it, more than just possessing it and the only gun that they used that was armed was the one that they took from him and hit him over the head with it. That was one action and so I don't know that robbery while armed with a deadly weapon would jusiti, [sic] should be, uh, entered as a conviction and the conviction for robbery resulting in bodily injury, the State believes, uh, we can only ask for a consecutive sentence on [sic] if the court enters it as a level five (5).

* * * * *

And for count three (3) [Level 3 felony armed robbery], um, we are just not asking for a judgment of conviction to be entered at this time, um, um, not dismissing it either should the, uh, any court of appeal decision, um, cause us to have to re visit [sic] um, what conviction should be entered and the sentencing then we can address at that time, but, um we're not asking for a judgment at this time and for count four (4), [Level 6 felony] theft, uh, the State is recommending two in [sic] a half (2 ½) years consecutive and even though some cases suggest that a burglary and theft should not be consecutive, this case is different because the theft, a second theft occurred when they went back in and stole

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