Gray v. State, 10S01-0808-CR-476.

• Decision Date: 31 March 2009
• Docket Number: No. 10S01-0808-CR-476.,10S01-0808-CR-476.
• Citation: 903 N.E.2d 940
• Parties: Tony R. GRAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

903 N.E.2d 940

Tony R. GRAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 10S01-0808-CR-476.

Supreme Court of Indiana.

March 31, 2009.

Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 10A01-0708-CR-356.

BOEHM, Justice.

Tony Gray was found guilty by a jury of robbing two fast-food restaurants while armed with a deadly weapon. We find the evidence sufficient to sustain a finding Gray was armed during the first robbery, but insufficient to sustain a finding Gray was armed during the second.

Facts and Procedural History

On the evening of February 14, 2007, Gray entered a Clarksville Arby's fast-food restaurant and, keeping his right hand in his jacket pocket, ordered employee Stacy Dodge to get behind the counter. Dodge saw "what looked like could have been a weapon" in Gray's jacket and "figured it was a gun." Gray took Dodge to the back of the restaurant and instructed the other employees to lie down on the floor. Gray ordered manager Stacey Clark to open the restaurant's safe and cash registers. Clark testified that Gray "had something in his right pocket. I saw a black handle. . . . [H]e told me that to stay calm and no one would get hurt. . . . I assumed there was a weapon in his pocket. I assumed it was a gun. I have no idea if it was or not, but I was really scared for my life and my employees' lives." Gray took over $1,000 and fled through a side door.

Four days later, Gray entered a Clarksville Long John Silver's restaurant, grabbed manager Kathleen Doss by the arm, and told her that he was robbing the restaurant. According to Doss, Gray "had something in his pocket, you know, I thought it was a gun and it was in his pocket and he, you know, grabbed my arm and put it to my, you know, like, like right by my, he was standing like right behind me." Ella Henley, a customer sitting in a booth, testified that Gray "had something in his pocket, which I thought was a gun. . . . I was afraid that he might just, you know, reflex might pull the trigger and might shoot her." Gray proceeded with Doss to the back of the restaurant where he ordered the employees to stand against a wall and instructed general manager Thomas Jones to remove the cash from the restaurant's safe and registers. When Jones tried stalling to permit another employee to call the police, Gray told Jones, "You act like you want to die today," and "you're going to end up getting yourself shot."

An employee called 911 while Gray and Jones were in the front of the restaurant at the cash registers. Henley had left the restaurant unnoticed and also called the police shortly after the employee's call. Gray took approximately $2,600 and left through the back door as Clarksville police officer Carl Durbin responded to the calls and approached the Long John Silver's. Durbin saw Gray running from the restaurant toward the back of a neighboring Firestone Auto Care Center. Several people exited the Long John Silver's and pointed at Gray. Durbin turned into the driveway along the side of the Firestone store. Gray had started his car and was driving from the rear of the Firestone store toward the street. Durbin swung behind Gray's car and activated his lights, and Gray immediately stopped his car, got out, and put his hands in the air. Durbin placed Gray under arrest and handcuffed him. Durbin estimated that ten to twelve seconds elapsed between the time he saw Gray running from Long John Silver's and the time he stopped Gray in his car. He estimated that the Firestone was roughly 200 feet away from the Long John Silver's.

Durbin was soon joined by Captain Dale Hennessey, who assisted in arresting Gray and inventoried Gray's car. Hennessey found the money from Long John Silver's in the front seat. No firearm was found on Gray's person, inside his automobile, or in the vicinity. An electric shaver was found in Gray's right jacket pocket.

Gray was convicted by a jury of two counts of armed robbery, Class B felonies, and three counts of armed criminal confinement, also Class B felonies, for confinement of three of the restaurant employees. Gray was also convicted as a habitual offender and sentenced to an aggregate term of seventy years imprisonment.

Gray appealed, arguing that there was insufficient evidence that he was armed with a deadly weapon in the course of these offenses.¹ The Court of Appeals affirmed, finding sufficient evidence that Gray had a gun in his pocket in each incident. Gray v. State, No. 10A01-0708-CR-356, slip op. at 15-18, 2008 WL 2313145 (Ind.Ct.App. June 6, 2008). Judge Barnes dissented, expressing his view that the evidence Gray had been armed was premised solely on the witnesses' beliefs and fears—as opposed to actual proof that Gray had a gun at the time of the offenses. Id. at 22, 2008 WL 2313145. Judge Barnes would have reduced Gray's robbery convictions to Class C felonies and his criminal confinement convictions to Class D felonies. Id. at 25, 2008 WL 2313145. Gray petitioned for transfer, which this Court has granted.

Standard of Review

Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. O'Connell v. State, 742 N.E.2d 943, 949 (Ind.2001).

Sufficiency of the Evidence

Robbery is a Class C felony but "is a Class B felony if it is committed while armed with a deadly weapon." Ind.Code § 35-42-5-1 (2004). Similarly, criminal confinement is a Class D felony but is a Class B felony if it is "committed while armed with a deadly weapon." Id. § 35-42-3-3(b)(2)(A). "Deadly weapon" is defined to include a number of things, see id. § 35-41-1-8, but in this case the charging instrument alleged that Gray was armed with "a gun" when he committed the robberies. Therefore, in order to elevate Gray's convictions to Class B felonies, the State was required to prove that Gray committed the offenses using a firearm. See Mitchem v. State, 685 N.E.2d 671, 677-78 (Ind.1997).

A conviction for armed robbery may be sustained even if the deadly weapon was not revealed during the robbery. Schumpert v. State, 603 N.E.2d 1359, 1364 (Ind.Ct.App.1992). Nor is it necessary that the weapon be admitted into evidence at trial. Brown v. State, 266 Ind. 82, 86, 360 N.E.2d 830, 833 (1977). It is, however, necessary that there be evidence to support the finding that the defendant in fact was "armed with a deadly weapon," in this case a "gun." In this respect, Indiana's statute requires more than its counterparts in some other states which elevate robbery based not only on the fact of use of a weapon, but also, for example, on the perception of the victim that the defendant was armed even if there was in fact no weapon.²

As Judge Barnes pointed out, Class B felony armed robbery typically involves "an actual heightened risk of harm to the victim." Gray, at 23, 2008 WL 2313145. Academic commentary has also concluded that "intimidation by some means is a necessary ingredient of simple robbery without violence; something additional in the way of dangerousness is needed for aggravated robbery. . . ." 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(f), at 195 (2d ed.2003). "[T]he greater punishment is awarded for armed robbery so as to deter the dangerous person who is actually capable of inflicting death or serious bodily." Id. at 195 n. 110. Under statutes such as Indiana's, an armed robbery conviction requires proof that the perpetrator actually—rather than apparently—possessed a deadly weapon. As the Massachusetts Supreme Judicial Court has explained in interpreting its statute which also requires that the defendant be armed:³

The crime of armed robbery, an aggravated form of robbery, is based in part on the potential for injury that arises from the possession of a dangerous weapon. When there is no such weapon, the potential is absent. The victim's apprehension is, of course, likely to be the same whether the defendant had a gun or only said he had a gun, but did not. The nature of any threats and a victim's apprehension may be relevant factors in sentencing a defendant on his conviction of unarmed robbery, but, in the absence of evidence warranting an inference beyond a reasonable doubt that a defendant, in fact, had some instrumentality in his possession, there can be no conviction of robbery while "armed with a dangerous weapon."

Commonwealth v. Howard, 386 Mass. 607, 436 N.E.2d 1211, 1213 (1982). Indiana is more expansive than Massachusetts, however, because our statute has broadly defined "deadly weapon" to include unloaded firearms, and convictions for armed robberies with blank or plugged guns have been upheld. Barber v. State, 418 N.E.2d 563, 568 (Ind.Ct.App.1981); Rogers v. State, 537 N.E.2d 481, 484-85 (Ind.1989). There is therefore no requirement under Indiana law that the victim be actually in danger of being shot. Presumably this reflects the view that use of a firearm as a club is possible, and the mere display of a firearm can provoke reaction in others that risk severe injury either by panic or attempted retaliation. Despite the broadened definition of "deadly weapon," Indiana's statute, like Massachusetts's, requires that the person actually possess the weapon at the time of the crime. And in Gray's case the information required the weapon to be a "gun."

We turn now to the question whether the evidence is sufficient to establish that Gray possessed a gun in either or both of these incidents. Stacey Dodge testified with respect to...