Nunley v. State

• Decision Date: 02 October 2013
• Docket Number: No. 10A04–1212–CR–630.,10A04–1212–CR–630.
• Citation: 995 N.E.2d 718
• Parties: George A. NUNLEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

995 N.E.2d 718

George A. NUNLEY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 10A04–1212–CR–630.

Court of Appeals of Indiana.

Oct. 2, 2013.

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

Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

George A. Nunley appeals his conviction for robbery as a Class C felony and adjudication as an habitual offender. Nunley presents two issues on appeal: 1) whether there is sufficient evidence to support his robbery conviction; and 2) whether the trial court erred in allowing the State to amend the habitual offender allegation. Concluding that sufficient evidence supports Nunley's robbery conviction but that the trial court erred in allowing the State to amend the habitual offender allegation, we affirm in part, reverse in part, and remand.

Facts and Procedural History

In April 2010, Nunley and his girlfriend Debe Mueller went to a Rite Aid Pharmacy store. The manager on duty at the time was Norman Judd. Judd greeted Nunley and Mueller and asked them if they needed any assistance; they replied that they did not. A few minutes later, Judd again asked them if they needed any help, to which they replied no. Soon thereafter, Judd went into the store's restroom and checked the trash and baby-changer, per store policy, to see whether there was any empty packaging or other trash suggesting that someone had tried to steal merchandise from the store. Judd found nothing of concern at that time.

As Judd left the restroom, Nunley passed him and did not make eye contact or respond to Judd's greeting. Judd found that suspicious and stayed in that area of the store until Nunley left the bathroom. When Nunley left the bathroom, Judd went back into the restroom and found several empty DVD packages and wrapping. Judd ran out of the bathroom, and asked Nunley where the product was. At this point, Nunley was nearly running to the front of the store. Nunley turned around and asked Judd, “are you accusing me of stealing, bitch?” Transcript at 195. Judd told Nunley that he would let the police handle the situation. Nunley and Mueller were making their way out of the store as Judd picked up his phone and neared the front of the store. Nunley had gone through the interior set of doors and was in a breezeway and not yet through the exterior set of doors when he turned around and walked over to Judd. Judd testified that Nunley came over to him, shoved him, and said, “don't you call the police on me, bitch.” Tr. at 196. Nunley then left the store. Judd then walked outside to get Nunley's license plate number. When the police arrived, Judd gave the officer Nunley's license plate number and provided a copy of the store's surveillance camera footage and the DVD packaging found in the restroom. Before he left that night, Judd looked through the store to see if he could find any of the missing DVDs, but he did not find any.

In May 2010, the State charged Nunley with robbery as a Class C felony and alleged that he was an habitual offender. A jury trial was scheduled to begin on October 9, 2012, and a jury was empaneled that day but no testimony was heard. On October 10, 2012, the State requested leave to amend the habitual offender charge; the trial court granted the request over Nunley's objection and continued the trial to six days later. The trial then resumed on October 16, 2012, and the following day the jury found Nunley guilty of the robbery charge and found him to be an habitual offender. In November 2012, the court sentenced Nunley to eight years executed for the robbery conviction and enhanced his sentence by twelve years based on the habitual offender finding. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

The standard for reviewing sufficiency of the evidence claims is well settled. We do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d 173, 185 (Ind.2001). 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 trier-of-fact could have found the defendant guilty beyond a reasonable doubt. Id.

B. Nunley's Robbery Conviction

Our robbery statute provides that a Class C felony robbery is committed when:

A person ... knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear[.]

Ind.Code § 35–42–5–1. Nunley acknowledges that a conviction may rest upon the uncorroborated testimony of the victim. Ludy v. State, 784 N.E.2d 459, 461 (Ind.2003). Nunley argues, in essence, that the evidence indicates that once he exited through the first set of doors at the store, a theft had been completed and that when he turned around to shove Judd and tell Judd not to call the police, that confrontation was not necessary to complete the taking and thus does not support a conviction for robbery. SeeInd.Code § 35–43–4–2(a) (“A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft....”).

On the contrary, the record supplies sufficient evidence from which the jury could have concluded that the confrontation was not a separate incident but was directly linked to Judd's questioning of Nunley, and was integral to Nunley's attempt to complete the taking. Judd testified that Nunley “kind of angled to the door but he came back to me when he saw me on the phone when I said I would let the police handle it.” Tr. at 243. Our review of the record and the surveillance video leads us to conclude that the situation was more fluid and less delineated than Nunley suggests. Judd also testified that not only did Nunley shove him, but that Nunley caused him to fear for his safety and for that of his co-workers. Further, Judd testified that he has to call the police at least four or five times each month due to shoplifting, but that none of those other shoplifters had caused him to be scared. Nunley is essentially asking us to reweigh the evidence, which we cannot do.

Nunley also argues that there was insufficient evidence to support a determination that he actually took property from the store. Again, this is a request for us to reweigh the evidence. The recovery of stolen property is not essential to prove that a robbery was committed or that the accused committed it. Leavell v. State, 455 N.E.2d 1110, 1115 (Ind.1983). Judd testified that he checked the restroom just before Nunley went into it and there was no inventory packaging in the restroom at that time, but that the DVD wrappers and packaging were in there right after Nunley exited the restroom. Because it is common for shoplifters to leave packaging in the restroom in order to discard security tags and make items more portable, Judd was specifically looking for such packaging each time he inspected the restroom—both before and after Nunley used it. Judd also testified that, while he did not check the computer inventory following the incident with Nunley, he did look through the rest of the store to see if any of the missing DVDs had been placed somewhere else in the store, and he found no such evidence. We conclude that there was sufficient evidence from which a jury could have determined that the State proved the elements of robbery beyond a reasonable doubt.

II. Amendment of Habitual Offender Allegation

Nunley also argues that the trial court erred in allowing the State to amend the habitual offender allegation portion of the information after the jury was empaneled. We agree.

The original information listed two prior convictions for Nunley to support the habitual offender count: a theft and possession of cocaine. However, the parties agree that the conviction for possession of cocaine was not a predicate offense under the habitual offender statute.¹ The State requested leave to amend the habitual offender charge the day after the jury was empaneled in order to remove the possession of cocaine charge and add additional theft charges that would go to an habitual offender allegation. Nunley objected to the amendment, noting that he had recognized that the State could not establish that Nunley was an habitual offender based on the information, and he had prepared to go forward on that basis. The court recessed for an hour, and upon resuming, both parties gave their arguments regarding the proposed amendment. Ultimately, the court allowed the amendment but continued the trial for six days so that Nunley could prepare his defense.

Indiana Code section 35–34–1–5 deals with amendments to an information and has four subsections—(a), (b), (c), and (e)—that, at first blush, could potentially apply to the amendment here.² We conclude below that none of these subsections allows the amendment in this case.

Subsection (a) provides that “[a]n indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect....” Ind.Code § 35–34–1–5(a). The subsection lists eight examples of immaterial defects, none of which apply to the amendment at hand, and then allows a ninth catch-all category for “any other defect which does not prejudice the substantial rights of the defendant.” Id. While the habitual offender charge is not a separate “offense” under Indiana law, our supreme court has held that it is subject to the rules governing charging of criminal offenses, such as Indiana Code section 35–34–1–5. Murphy v. State, ...