Timberlake v. State

• Citation: 679 N.E.2d 1337
• Decision Date: 15 May 1997
• Docket Number: No. 49A02-9603-CR-179,49A02-9603-CR-179
• Parties: Norman TIMBERLAKE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 1337

679 N.E.2d 1337

Norman TIMBERLAKE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9603-CR-179.

Court of Appeals of Indiana.

May 15, 1997.

Lesa Lux Johnson, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Norman Timberlake appeals his conviction by jury of robbery ¹ as a class B felony; three counts of criminal confinement ² as a class B felony; and carrying a handgun without a license ³ as a class A misdemeanor; his adjudication as an habitual offender; ⁴ and his sentence thereon.

We affirm in part, reverse in part, and remand for resentencing.

ISSUES

1. Whether the trial court erred in denying Timberlake's motion to dismiss the habitual offender charge.

2. Whether the trial court erred in admitting a Village Pantry surveillance videotape.

3. Whether Timberlake's separate sentences for robbery and confinement violate double jeopardy.

4. Whether the trial court's imposition of consecutive sentences for robbery, criminal confinement and carrying a handgun without a license violates Ind.Code 35-50-1-2.

FACTS

On February 4, 1993, at approximately 7:30 p.m., Norman Timberlake entered the Village Pantry at 30th Street and Post Road in Marion County. Village Pantry employee Paul Taylor was working behind the counter, and manager Deborah Henry was in the back of the store stocking beverages in the cooler. Timberlake walked to the coffee maker, and Taylor walked over and poured Timberlake a cup of coffee. Timberlake asked to speak with the manager, and Taylor told Henry that a customer wanted to speak with her. Taylor walked back behind the counter, and Henry came out of the cooler.

After all of the customers had left the store, Timberlake pulled out a .25 caliber chrome-plated automatic handgun and said, "You know what this is." (R. 498). Timberlake told Taylor to come out from behind the counter, and he made Taylor and Henry sit on the floor. As he held the gun to Henry's temple, Timberlake told Taylor to get up and open the cash register. Timberlake also told Taylor that he would kill Henry if Taylor did anything wrong. Taylor, who was standing in front of the counter, had difficulty opening the register, and Henry "begg[ed]" Timberlake to let her open it. (R. 561).

As Timberlake, Henry and Taylor were walking behind the counter, customer Gary Levi entered the store. Timberlake looked at Levi, showed Levi his handgun, and said, "Well, you're in it with us now." (R. 564). Timberlake told Levi to come behind the counter. Henry opened the register, and Taylor took the money out of the register, put it into a bag, and gave it to Timberlake. Timberlake then told Henry to open the safe. When Henry explained that the safe had a time-delay system, Timberlake became angry. Taylor told Timberlake that there was money in another cash register. Taylor opened the second register, and Timberlake removed the money from it. Thereafter, Timberlake told Henry, Taylor and Levi to go to the back room. The three individuals "froze," (R. 509), and Timberlake instructed them to get on their knees on the floor and not move. Timberlake walked out of the store as another customer entered it. Taylor locked the front door, and as he was about to call the police, he learned that Henry had pushed the silent alarm button while she was behind the counter. A Village Pantry surveillance camera videotaped the robbery.

Taylor, Henry and Levi were subsequently shown a photographic array, and all three individuals identified Timberlake. When Timberlake was arrested, the police officers found a .25 caliber chrome-plated automatic handgun in his pocket.

Timberlake was convicted by jury of robbery as a class B felony, three counts of criminal confinement as a class B felony, and carrying a handgun without a license as a class A misdemeanor. He was also adjudicated to be an habitual offender. The trial court sentenced Timberlake to 20 years for the robbery, 20 years for each criminal confinement, and one year for carrying a handgun without a license. Further, the trial court enhanced Timberlake's robbery sentence by 30 years because of his habitual offender adjudication. Lastly, the trial court ordered Timberlake to serve the sentences consecutively, for a total of 111 years. We will provide additional facts in our discussion of the issues.

DECISION

I. Motion to Dismiss the Habitual Offender Charge

Ind.Code 35-50-2-8(a) provides that the "state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felonies...." Before July 1993, the state was permitted to file an habitual offender charge "at any time before, during, or after trial so long as it [did] not prejudice the substantial rights of the defendant." Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70, 73 (1981). However, effective July 1, 1993, the legislature added the following provision to Ind.Code 35-34-1-5:

(e) An amendment of an indictment or information to include a habitual offender charge under IC 35-50-2-8 must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of trial.

Here, on February 10, 1993, the state charged Timberlake with robbery, three counts of criminal confinement, and carrying a handgun without a license. The trial court held an initial hearing on February 12, 1993, and set the omnibus date for April 21, 1993. After numerous continuances, on March 1, 1995, the trial court scheduled trial for October 2, 1995. On September 12, 1995, the State filed an habitual offender charge against Timberlake. On September 27, 1995, Timberlake filed a motion to dismiss the charge. Specifically, Timberlake argued that the charge was not timely filed according to the requirements set forth in Ind.Code 35-34-1-5(e). The trial court denied Timberlake's motion.

Timberlake contends that the trial court erred in denying his motion to dismiss the habitual offender charge. We disagree.

As the State points out, and the prosecutor noted at the motion to dismiss hearing, the "amended statute would have required the State to file the habitual offender count before the effective date of the statute." State's Brief, p. 4. Specifically, the omnibus date was April 21, 1993. According to the amended statute, the habitual offender charge would have had to have been filed not later than May 1, 1993--two months before the amended statute became effective. Therefore, the State could not have complied with the amended statute. Timberlake responds that because the "State was aware of the amendment limiting the filing of the habitual offender when it was enacted by the legislature in the early months of 1993," the State should have filed the habitual offender charge within ten days of the statute's effective date. We agree with the State that the amended statute imposes no such requirement.

Timberlake further contends that the "amendment of [I.C.] 35-34-1-5(e) was an ameliorative sentencing amendment in that it limited the previously unlimited right of the prosecution to file the habitual offender count." Timberlake's Brief, p. 13. Therefore, according to Timberlake, the "doctrine of 'amelioration' applies." Timberlake's Brief, p. 12. Under the doctrine of amelioration, a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to the new statute rather than the sentencing statute in effect at the time of the commission of the crime. Lunsford v. State, 640 N.E.2d 59, 60 (Ind.Ct.App.1994). Timberlake's reliance on the doctrine of amelioration is misplaced. Specifically, the doctrine of amelioration applies to sentencing, and Timberlake's argument concerns the trial court's denial of his motion to dismiss an habitual offender charge. I.C. 35-34-1-5(e) is not an ameliorative sentencing amendment. Rather, it concerns the amendment of informations and indictments. The doctrine of amelioration does not apply in this case.

Lastly, Timberlake posits that "even should this Court not find that it is specifically a sentence amelioration, the limitation would still be applicable in this case because it is procedural and not substantive." Timberlake's Brief, p. 13. In support of his proposition, Timberlake refers us to Willis v. State, 567 N.E.2d 1170 (Ind.Ct.App.1991), trans. denied. However, the facts of Willis are distinguishable from those before us. First, Willis involves the trial court's denial of a petition for sentence modification, not a motion to dismiss an habitual offender charge. Further, as the State points out, "Willis ... did not require any party to comply with a new statute even before the effective date of the statute." State's Brief, p. 5. The trial court did not err in denying Timberlake's motion to dismiss the habitual offender charge.

II. Videotape

The standard applicable to the admissibility of photographs applies to videotapes. Meisberger v. State, 640 N.E.2d 716, 724 (Ind.Ct.App.1994), trans. denied. The admission of photographic evidence is within the discretion of the trial court, and we will reverse upon a showing that the trial court abused its discretion. Scott v. State, 632 N.E.2d 761, 764 (Ind.Ct.App.1994).

Timberlake contends that the trial court erred in admitting the Village Pantry surveillance videotape of the robbery. Specifically, he contends that the State failed to lay a sufficient foundation for the videotape's admissibility. In support of his contention, Timberlake directs us to Bergner v. State, 397 N.E.2d 1012 (Ind.Ct.App.1979), wherein this court held that photographic evidence is admissible as...