Pagan v. State

• Decision Date: 11 June 2004
• Docket Number: No. 88A01-0309-CR-330.,88A01-0309-CR-330.
• Parties: Angel PAGAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

809 N.E.2d 915

Angel PAGAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 88A01-0309-CR-330.

Court of Appeals of Indiana.

June 11, 2004.

Transfer Denied August 26, 2004.

Alison T. Frazier, Eckert Alcorn Goering & Sage, Madison, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Angel Pagan appeals his conviction and sentence for Class B felony robbery. We affirm in part and remand in part.

Issues

We restate the issues before us as:

I. whether the State presented sufficient evidence to convict Pagan of robbery as charged in the information;

II. whether he is entitled to a new trial because of an unauthorized separation of the jurors during deliberations;

III. whether his trial counsel was ineffective; and

IV. whether his sentence is inappropriate.

Facts

The facts most favorable to the judgment are that on October 3, 2002, Pagan entered Hardinsburg Video by himself, pointed a knife at Jody McIntyre, and demanded that she give him all of the money in the store's cash register and a moneybag under the counter. Hardinsburg Video appears to be a sole proprietorship owned and operated by McIntyre. After obtaining the money, Pagan ordered McIntyre to lie down in an adjoining room and, before leaving, threatened to kill her if she got up in the next two minutes. Pagan took none of McIntyre's personal property. Police apprehended Pagan and two companions, Angel Torres and James Thompson, shortly thereafter. Pagan then gave a recorded statement to police admitting to the crime, but claiming it was Torres' and Thompson's idea to commit the robbery.

The State charged Pagan with one count of robbery with a deadly weapon, a Class B felony. The information, as amended, specifically alleged that Pagan took property "from another person, to-wit: Hardinsburg Video, owned by Jody McIntyre...." App. p. 29. After a jury trial on March 4 through 7, 2003, Pagan was found guilty as charged. Before sentencing, Pagan filed a motion alleging that at least two jurors committed misconduct by making cell phone calls during deliberations without the knowledge of the parties or court authorization. Nevertheless, the trial court proceeded to sentencing over Pagan's objection. It imposed a total sentence of twenty years, with four years suspended. Pagan now appeals.

Analysis

I. Sufficiency of the Evidence

Pagan argues that the State failed to prove the crime of robbery as alleged in the charging information.¹ In reviewing a claim of insufficient evidence, we will affirm the conviction unless, considering only the evidence and all reasonable inferences favorable to the judgment, and neither reweighing the evidence nor judging the credibility of the witnesses, we conclude that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Bethel v. State, 730 N.E.2d 1242, 1243 (Ind.2000).

In order to convict Pagan of robbery as a Class B felony, the State was required to prove he knowingly or intentionally took property from another person, or from the presence of another person, by using or threatening the use of force or by putting any person in fear, while armed with a deadly weapon. Ind.Code § 35-42-5-1. As Pagan points out, the State did not charge him with taking property "from the presence of another person," but from a person, namely "Hardinsburg Video, owned by Judy McIntyre...." App. p. 29.

Pagan specifically argues that the State failed to prove Hardinsburg Video is a "person" that could be robbed. Indiana Code Section 35-41-1-22(a) defines "person" for purposes of the Criminal Code as "a human being, corporation, limited liability company, partnership, unincorporated association, or governmental entity." Unfortunately, it is true that a sole proprietorship, as Hardinsburg Video apparently is, is not expressly listed as a possible "person" that can be the victim of a crime, while corporations, partnerships, limited liability companies, and unincorporated associations² are. Cf. Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind.Ct.App. 1992)

(holding sole proprietorship did not fall under Indiana Trial Rule 4.6(A) list of "organizations," which included corporations, partnerships, trusts, governmental organizations, and unincorporated associations).

We are satisfied, though, that a sole proprietorship may qualify as a "person" that can be the victim of a crime. Our supreme court clearly held that a sole proprietorship may be a crime victim, separate and distinct from the business owner, in McKinley v. State, 272 Ind. 689, 400 N.E.2d 1378 (1980). There, the defendant was charged with and convicted of two counts of robbery, once for taking the property of a sole proprietorship pharmacy, and again for taking the personal property of the pharmacy owner. On appeal, the defendant contended that he could only be convicted of one count of robbery related to the individual. Our supreme court rejected this claim, holding that the pharmacy was a "business establishment" and that two separate crimes were committed when the defendant robbed "both that individual and that individual's business." Id. at 691, 400 N.E.2d at 1379. However, we acknowledge that the court was not asked to consider whether a sole proprietorship fell under the legal definition of "person" in the Criminal Code.

We note in the alternative that the definition of "sole proprietorship" is "[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her own personal capacity." Black's Law Dictionary 1398 (7th ed.1999). Under this definition, it is clear that stealing property from a sole proprietorship business is tantamount to stealing from the individual owner of the business, who necessarily owns all of the business' property. This is so even if, under McKinley, it is possible to be convicted of two separate counts of robbery if a defendant forcibly takes both clearly identifiable "business" property and "individual" property. Here, the only property Pagan took was clearly identifiable with the Hardinsburg Video business. As such, we conclude that although the State was only entitled to charge Pagan with one count of robbery, it could allege and prove the taking of property from the "person" of Hardinsburg Video, which property was also necessarily the property of Jody McIntyre, a human being. It is evident to us that it could not have been the intent of the legislature to impose criminal liability for robbing a corporation or other "officially" established business, or for robbing an individual person, but not for robbing an unincorporated business operated as a sole proprietorship. We find sufficient evidence that Hardinsburg Video was a "person" as alleged in the charging information. Cf. Smith v. State, 664 N.E.2d 758, 760 (Ind.Ct.App. 1996),

trans. denied (holding that estate was a "person" under Indiana Code Section 35-41-1-22 although estates are not expressly listed as such).

II. Separation of Jurors

Pagan's second argument is that a separation of the jurors during their deliberations requires reversal of his conviction.³ Specifically, he notes that the bailiff observed at least two jurors make outgoing calls on their cell phones while deliberations were taking place, apparently in order to inform family members that they would not be home for dinner. This did not come to the attention of the trial court or either party until after the judgment of conviction was entered, but before sentencing.

Indiana Jury Rule 29, effective January 1, 2003, provides:

(a) The court, in its discretion may permit the jury in civil cases to separate during deliberations. However, before the jurors are permitted to separate, the court shall instruct them that while they are separated, they shall:

(1) not discuss the case among themselves or with anyone else;

(2) not talk to the attorneys, parties, or witnesses;

(3) not express any opinion about the case; and

(4) not listen to or read any outside or media accounts of the trial.

(b) The court shall not permit the jury to separate during deliberation in criminal cases unless all parties consent to the separation and the instructions found in section "a" of this rule are given.

Pagan points out that the jurors in question did not seek court permission before making outside phone calls during deliberations,⁴ and thus the jurors were not instructed in accordance with this rule nor was consent of the parties sought before the calls were made.

It is true that as a general proposition, once a jury retires to deliberate, trial courts should strictly comply with the requirement that jurors remain together from the moment their deliberations begin until their verdict has been pronounced, unless there are exigent circumstances warranting separation. Follrad v. State, 428 N.E.2d 1201, 1203 (Ind.1981). Nevertheless, the State claims that the jurors' use of their cell phones during deliberations was not equivalent to a separation of the jurors, citing Bryant v. State, 246 Ind. 17, 202 N.E.2d 161 (1964). We disagree that Bryant supports such a broad proposition. In that case, a juror sought permission from the trial court during deliberations, albeit ex parte, to make a five or ten minute telephone call home to arrange for the caring of his livestock. Our supreme court condemned "any irregularities during the deliberations of the jury" and referred to the phone call as "the jury separation...." Id. at 21, 202 N.E.2d at 163-64. Thus, it is clear that a telephone call home during deliberations does amount to a jury separation, notwithstanding the State's argument. Additionally, we observe that Indiana Code Section 35-37-2-6(a)(3) requires the bailiff in charge of the jury to "not permit any person to speak or communicate with them" once deliberations have begun. This statutory mandate was...