Holden v. State

• Citation: 815 N.E.2d 1049
• Decision Date: 13 October 2004
• Docket Number: No. 15A05-0310-CR-532.,15A05-0310-CR-532.
• Parties: Robert D. HOLDEN, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

815 N.E.2d 1049

Robert D. HOLDEN, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 15A05-0310-CR-532.

Court of Appeals of Indiana.

October 13, 2004.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Robert Holden appeals from his convictions for two counts of Robbery as Class B felonies¹ and two counts of Conspiracy to Commit Robbery as Class B felonies.² He presents four issues for our review:

I. Whether the convictions are supported by sufficient evidence;

II. Whether evidence related to a subsequent robbery of a third bank should have been admitted;

III. Whether the convictions for robbery and conspiracy violate double jeopardy; and

IV. Whether the trial court erred in sentencing Holden.

We affirm in part, reverse in part, and remand with instructions.

The facts reveal that Holden, along with Bryan Harvey, made plans to rob the Firstar bank in Dillsboro. In preparation, they observed the daily routine at the bank and planned an escape route. They then approached Jacob Turner and asked him to rob the bank. On March 1, 2001, Turner, using a handgun given to him by Holden, entered the bank and demanded money from the tellers. He took approximately $16,000 and fled to a waiting vehicle driven by Harvey. Holden followed in another vehicle. Turner subsequently discarded his clothes and the handgun. The three then drove to Cincinnati and spent their money. Once the funds dried up, they planned a second robbery in Moores Hill.

To prepare for the Moores Hill robbery, they scouted out the bank and devised a plan as they had done before. Holden also provided money to his girlfriend, Jennifer Brummet, to purchase a .45 caliber Smith & Wesson handgun. After the plans were made, Turner decided not to participate. Thus, on April 10, 2001, Harvey entered the Firstar bank in Moores Hill armed with the handgun and removed cash from the tellers' drawers. Holden waited for Harvey and drove him away from the scene. Holden and Harvey split the proceeds from that robbery.

On June 1, 2001, a third robbery took place, this one at a bank in Switzerland County.³ Following that robbery, an Indiana State Police Trooper stopped the car driven by Holden which was seen fleeing from the scene. Turner was the passenger in that car. Through the investigation of the Switzerland County robbery, the police were able to connect Holden to the Dillsboro and Moores Hill robberies. As a result, Holden was charged with two counts of robbery and two counts of conspiracy to commit robbery. Additionally, he pleaded guilty to the robbery in Switzerland County.

I Sufficiency of the Evidence

Holden asserts that the evidence was insufficient to support his convictions for any of the crimes. Specifically, he contends that the only evidence of his guilt was the testimony of the co-defendants who gave their testimony as part of their plea agreements and the statement of his girlfriend who was not charged with any involvement in the crimes. In attempting to refute the testimony upon which the jury relied to convict him, Holden claims that it is incredibly dubious and should be disregarded. He opines that without their testimony, no evidence exists upon which he can be convicted.

Our standard of review for a sufficiency of the evidence claim is well settled. We will not reweigh the evidence or judge the credibility of the witnesses. VanMatre v. State, 714 N.E.2d 655, 657-58 (Ind.Ct.App.1999). We will consider only the evidence which supports the conviction and any reasonable inferences which the trier of fact may have drawn from the evidence. Id. at 657. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt. Id. at 658. Reasonable doubt is a doubt which arises from the evidence, the lack of evidence, or a conflict in the evidence. Chambers v. State, 551 N.E.2d 1154, 1156 (Ind.Ct.App.1990).

We will not impinge upon the jury's resolution with regard to the credibility of witnesses unless confronted with testimony of inherent improbability, or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Heeter v. State, 661 N.E.2d 612, 615 (Ind.Ct.App.1996). A conviction will be overturned only where the only testimony is so incredibly dubious or inherently improbable that it runs counter to human experience, and no reasonable person could believe it. Id. A conviction may be reversed if the sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence of appellant's guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind.1999).

Holden recognizes that the incredible dubiosity rule applies in situations where a sole witness testifies to a fact but argues that it should be expanded to those cases in which "several witnesses give testimony rendered suspect in light of their incentive for lenient sentences." Appellant's Brief at 7. We are not persuaded by Holden's argument that such an expansion of the rule is needed. In any event, were the rule to be applied here, the testimony does not run counter to human experience and is not of such nature that no reasonable person could believe it. The testimony provided by Holden's accomplices relayed the events surrounding the planning for the robberies and the robberies themselves in a logical and consistent manner. There was nothing inherently improbable in their testimony.

Additionally, we note that Holden's request appears to be nothing more than a request that we determine that the witnesses were not credible and that we reweigh the evidence in his favor. We will not do so. The evidence presented at trial is sufficient to support Holden's convictions.

II Admission of Evidence of Third Bank Robbery

Holden also claims that the trial court erred in allowing evidence related to the robbery which took place in Switzerland County. Specifically, he challenges the testimony which revealed that the vehicle he was driving had been stopped after fleeing the scene of the bank robbery, that he led police to a .45 caliber Smith & Wesson handgun used in that robbery, and that the particular handgun was admitted into evidence at the trial as evidence of the crimes committed in Dillsboro and Moores Hill. He alleges that the evidence was admitted in violation of Indiana Evidence Rule 404(b).

The admission of evidence is within the sound discretion of the trial court. Cowan v. State, 783 N.E.2d 1270, 1274 (Ind.Ct.App.2003),trans. denied. We will reverse the trial court only for an abuse of discretion. Id. A trial court abuses its discretion when its evidentiary ruling is clearly against the logic, facts, and circumstances presented. Id.

Evidence Rule 404(b) states:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

The rationale underlying Evidence Rule 404(b) is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct. Cowan, 783 N.E.2d at 1275. Following an objection to the admission of evidence upon the ground that it violates Evidence Rule 404(b), we: (1) determine whether evidence of bad acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and (2) balance the probative value of such evidence against its prejudicial effect. Id. Evidence Rule 404(b) does not bar the admission of evidence of uncharged acts which are "intrinsic" to the charged offense. Lee v. State, 689 N.E.2d 435, 439 (Ind.1997). Other acts are "intrinsic" if they occur at the same time and under the same circumstances as the crimes charged. See id. (stating in a parenthetical citation that deeds are termed "extrinsic" when the other crimes or wrongs occurred at different times and under different circumstances from the charged offense).

In this case, the trial court found that some evidence of the Switzerland County robbery was intrinsic to the Dillsboro and Moores Hill robberies because a complete story could not be told without referring to how the police came into possession of the handgun and identified Holden as a suspect. Given the facts in this case, especially the length of time between the robberies, this finding is problematic, at least with respect to the fact that to some degree the evidence impliedly suggested that Holden had been involved in the Switzerland County robbery.⁴ However, we need not decide whether the evidence should have been admitted because the admission of the evidence was harmless.

Errors in the admission of evidence will not result in reversal if the error is harmless; that is, if the probable impact of the evidence upon the jury is sufficiently minor so as to not affect a party's substantial rights. King v. State, 799 N.E.2d 42, 49 (Ind.Ct.App.2003),trans. denied. The testimony with regard to the robbery in Switzerland County was brief, and the questioning about the robbery was phrased so that the information elicited would establish that it led to the discovery of the .45 caliber Smith & Wesson handgun which was believed to have been used in the Moores Hill robbery. Additional testimony...