Harvey v. State

• Decision Date: 10 November 1999
• Docket Number: No. 49A02-9902-CR-148.,49A02-9902-CR-148.
• Citation: 719 N.E.2d 406
• Parties: Derrick HARVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

719 N.E.2d 406

Derrick HARVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9902-CR-148.

Court of Appeals of Indiana.

November 10, 1999.

Robert V. Clutter, Clark, Quinn, Moses & Clark, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge

Derrick Harvey appeals his convictions after a trial by jury of robbery¹ and criminal confinement,² both Class B felonies. He presents two issues on appeal which we restate as:

1. Whether the trial court improperly denied Harvey's motion to sever the charges against him; and

2. Whether Harvey's convictions of confinement and robbery improperly resulted in conviction of both a greater and lesser included offense in violation of Ind.Code § 35-38-1-6.

We affirm in part and vacate the conviction of confinement.

FACTS AND PROCEDURAL HISTORY

This case stems from two robberies which occurred in early November of 1996. On the morning of November 3, 1996, two black men, one very tall and the other fairly short, entered a Subway sandwich shop on West 86th Street in Indianapolis. Working that day were manager James McBride and employee David Hill. After inquiring about employment from Hill, the tall man pulled out a handgun, jumped the counter, and made Hill open the cash register while McBride was made to lie down in the back room. After taking the cash, the tall man dragged Hill to the back, pistol-whipped him, and made him lie next to McBride on the ground. The tall man told Hill and McBride not to move or he would shoot them. The robbers then exited through the back door.

Four days later, two black men, matching the description of the November 3rd robbers, entered a Payless liquor store on West 86th Street in Indianapolis. After initially walking to the back of the store, the tall man grabbed the store clerk, Tara Harper, at gunpoint. After a brief struggle, the handgun fired, wounding Harper. The tall man tried to get Harper to open the safe but she pretended not to know the safe's combination. The tall man then dragged Harper to the cash register and forced her to open it. After emptying the register, the tall man pistol-whipped Harper. Harper, now bleeding, instructed the two robbers on how to open the second cash register. At this point, she feigned unconsciousness, waited until she believed the robbers had left the store, then fled.

Police officers quickly discovered the suspects in these two robberies at the home of the tall man's girlfriend. Before being apprehended, the tall man, identified as Dainon Morgan, shot and killed himself as police officers surrounded the house. The short man, Derrick Harvey, attempted to flee but was arrested and charged with seven counts of robbery and confinement resulting from the two November robberies. Harvey was found guilty of the November 7th robbery and the criminal confinement of Harper during that robbery. He was acquitted of all other charges against him.

DISCUSSION AND DECISION

1. Severance of Offenses

Harvey argues he was entitled to severance of the offenses stemming from the two robberies as a matter of right, claiming they were joined solely because they were of a same or similar character. He also contends, in the alternative, the denial of severance was an abuse of the trial court's discretion. The State argues Harvey is not entitled to severance as a matter of right as the charges were not joined because of their similarity but because Harvey engaged in an ongoing scheme or plan to rob evidenced by a common modus operandi. We agree with the State.

Two or more offenses may be joined in the same indictment when they are either of the same or similar character or constitute part of a single scheme or plan. Ind.Code § 35-34-1-9. If offenses are joined solely on the ground that they are of the same or similar character, a defendant is entitled to severance as a matter of right and the trial court has no discretion to deny a motion to sever. § 35-34-1-11(a); see also Valentin v. State, 567 N.E.2d 792, 794 (Ind.1991)

. If, however, offenses are joined as being part of a single scheme or plan, it is within the trial court's discretion to grant severance when it is "appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." § 35-34-1-11(a). See Goodman v. State, 708 N.E.2d 901, 902 (Ind.Ct.App.1999).

Crimes will be considered part of a single scheme or plan for purposes of § 35-34-1-9(a)(2) when there is evidence linking the crimes by a common modus operandi. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind.1997)

. Modus operandi "refers to a pattern of criminal behavior so distinctive that separate crimes may be recognized as the work of the same wrongdoer." Goodman, 708 N.E.2d at 903; see also Penley v. State, 506 N.E.2d 806, 810 (Ind.1987). The methodology of the crimes must be both strikingly similar and unique in such a way as to attribute the crime to a single person. Goodman, 708 N.E.2d at 903. Unlike Goodman, where we did not find a pattern among the thefts of sundry items over a one-month period in rural Greene county at all distinctive, we do find a distinct pattern among the two robberies in this case so as to suggest they were part of a single scheme or plan to rob.

In this case, both robberies took place at approximately the same time of day in the same part of Indianapolis between Ditch Road and Michigan Road on West 86th Street just four days apart. The suspects in both robberies were identified as two black men, one very tall, the other fairly short. The roles played by the suspects during the robberies were similar. In both robberies, the larger Morgan wielded the handgun and physically manipulated the victims while the smaller Harvey assisted. In both robberies, Morgan pistol-whipped the victim after emptying the cash register. While some of these similarities are inherent in many robberies, we find these facts sufficient to show a "series of acts connected together" induced by the common motive to rob. Harvey, therefore, was not entitled to severance as a matter of right.

Since Harvey was not entitled to severance as a matter of right, we must next examine whether the trial court abused its discretion in denying his motion to sever. When determining whether to grant severance in a case where there is no automatic right, a trial court considers: "(1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." Ind.Code § 35-34-1-11(a)(1)-(3). Whether charges are severed under § 35-34-1-11(a) is within the sound discretion of the trial court and will be upheld absent a showing of clear error. Harvey must show "in light of what actually occurred at trial, the denial of a separate trial subjected him to ... prejudice." Brown v. State, 650 N.E.2d 304, 306 (Ind.1995) (quoting Hunt v. State, 455 N.E.2d 307, 312 (Ind.1983)).

Harvey presents no evidence that either the number of offenses charged or the complexity of the evidence offered subjected him to prejudice. Given that Harvey was acquitted of all charges stemming from the first robbery, it appears the jury was able to distinguish the evidence and apply the law intelligently as to each offense. Additionally, even had the offenses been erroneously united, it has long been the law of this state that acquittal of charges from one joined offense makes the misjoinder unavailable for reversal of the judgment. See Myers v. State, 92 Ind. 390, 395 (1883). As such, we find the trial court did not abuse its discretion by denying Harvey's motion to sever.

2. Conviction of Lesser Included Offense

Harvey argues his convictions of robbery and criminal confinement violate Ind.Code § 35-38-1-6³ because confinement, in this context, is a lesser included offense of robbery. Specifically, while confinement is not always an inherently lesser included offense of robbery, Harvey contends the State's charging information and evidence at trial preclude conviction on both counts. We agree with Harvey and find his conviction of confinement violates § 35-38-1-6.⁴ As the statutory analysis is determinative in this case, we need not address Harvey's claim under the Indiana Constitution. Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind.1991) (it is "the duty of the court not to enter upon the consideration of a constitutional question where the court can perceive another ground upon which it may properly rest its decision") (citing Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind.1986)).

Ind.Code § 35-38-1-6 protects defendants charged with an offense and an included offense from being found guilty of both charges as this is tantamount to convicting a defendant twice for the same conduct. An offense may be either inherently or factually included in another offense for purposes of § 35-38-1-6. An offense is inherently included in another when it may be established "by proof of the same material elements or less than all the material elements" defining the "greater" crime charged. Ind.Code § 35-41-1-16(1); see Goudy, 689 N.E.2d at 697; Wright, 658 N.E.2d at 566. An offense is factually included in another when the charging instrument alleges "the means used to commit the crime charged include all of the elements of the alleged lesser included offense." Wright, 658 N.E.2d at 567; Moore v. State, 698 N.E.2d 1203, 1207-08 (Ind.Ct.App.1998). We find the confinement as charged both inherently and factually included in the robbery.

To support Harvey's conviction of robbery as a Class B felony, the State had to prove Harvey (1) knowingly or intentionally (2) took property from another (3) through use or threat of force (4) while armed with a deadly weapon. Ind.Code § 35-42-5-1. To convict on the...