Webster v. State
| Decision Date | 07 November 2019 |
| Docket Number | Court of Appeals Case No. 19A-CR-683 |
| Citation | 138 N.E.3d 968 (Table) |
| Parties | Toby Lewis WEBSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Timothy J. Burns, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
[1] Toby Lewis Webster appeals his convictions of Level 3 felony armed robbery1 and Level 5 felony battery by means of a deadly weapon.2 He raises two issues on appeal: whether there was sufficient evidence to support his convictions and whether the convictions violate the Indiana Constitution's double jeopardy clause. We affirm in part, reverse in part, and remand.
[2] Brian Cotterell and Webster were acquaintances who would purchase and use drugs together on the east side of Indianapolis. Cotterell knew Webster by Webster's nickname, Twin. On June 5, 2017, Webster asked Cotterell to drive him to a Lowe's Home Improvement store in Indianapolis. Cotterell agreed and picked Webster up in a '93 Ford Econoline van. Webster agreed to give Cotterell money for gas, and the two travelled to the Lowe's store. However, the store was closed when they arrived, and Cotterell drove to a Rickers gas station near the Lowe's parking lot. Cotterell and Webster then began to argue about the gas money. They left the Rickers gas station and travelled down Post Road to a BP gas station. Cotterell drove the van up to the northern-most gas pump at the station and told Webster to exit the vehicle.
[3] Their argument escalated, and Cotterell turned off the van's ignition and started to exit the vehicle. Webster then angrily came over from the passenger seat to the driver's seat with a folding knife and cut Cotterell in the left side rib cage area. Webster then started the van and began to drive away. Cotterell held onto the driver-side door with his feet on the running board, but Cotterell lost his grip as Webster drove away. He then hung onto the van with his feet dragging on the pavement for a short while before he fell off the van onto the street.
[4] Cotterell called his girlfriend and then contacted 911. Cotterell suffered a torso wound from the knife and injuries to his feet. An ambulance arrived and Cotterell received medical treatment at the scene. Cotterell declined to be transported to a hospital. Detective Bradley Millikan responded to the scene. Cotterell spoke with Detective Millikan and gave him a description of Webster. He also relayed Webster's nickname, Twin, and gave Detective Millikan the cell phone number associated with Twin.
[5] Detective Millikan connected Twin's phone number to Webster through a February 2019 Lawrence Police Department dispatch report. Detective Millikan assembled a photo array of black males. The first photo array did not include Webster, and Cotterell did not identify anyone in the first photo array. Detective Millikan assembled a second photo array as Twin, which included Webster, and Cotterell identified Webster as the perpetrator. Detective Millikan also reviewed surveillance footage from the BP gas station. On June 8, 2017, the Hancock County Sheriff's Department recovered Cotterell's van in Greenfield, Indiana. Police searched the van for fingerprints, but they did not recover any identifiable prints.
[6] Detective Millikan also prepared and submitted a search warrant for Webster's cell phone records. Detective Adam Franklin analyzed the cell phone records. Detective Franklin testified that when a cell phone places a call or sends a text, the cell phone tower with the strongest signal to the phone will facilitate the call. He uses information provided by the phone companies to match up the date and time of a phone call or text with the cell phone tower that facilitated the call or text. This method allows him to determine the general area where a cell phone was located when it sent or received a call or text. He analyzed the call records from Webster's cell phone on June 5, 2017, between 8:58 pm and 11:55 pm. The data showed Webster's cell phone made and received calls on the date of the crime, around the time of the crime, from the area where the crime occurred. The phone also made and received calls later in the evening while in Greenfield, Indiana, where Cotterell's van was recovered.
[7] On August 18, 2017, the State charged Webster with armed robbery and battery with a deadly weapon. The State later filed an information asserting Webster was a habitual offender. Webster waived his right to trial by jury on March 27, 2018. After a hearing on September 17, 2018, the court granted Webster's request to proceed pro se. A bench trial was held on November 15, 2018, and November 29, 2018.3
[8] After the court found Webster guilty on both counts, the following exchange took place:
(Tr. Vol. III at 94.) The State then presented evidence that Webster was a habitual offender, and the court found that he was. On December 3, 2018, the court sentenced Webster to twelve years for armed robbery, enhanced by eight years because of the habitual offender finding, for an aggregate executed sentence of twenty years. The court merged the felony battery by means of a deadly weapon conviction into the armed robbery conviction.
[9] When reviewing the sufficiency of the evidence to support a conviction, we look only to the probative evidence and the reasonable inferences supporting the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). The evidence does not need to overcome every hypothesis of innocence. Id. at 147. We do not reweigh the evidence, nor do we assess the credibility of the witnesses. Stokes v. State , 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied . "The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier of fact." Id. The testimony of a single eyewitness is enough to sustain a conviction. Emerson v. State , 724 N.E.2d 605, 609-10 (Ind. 2000), reh'g denied . "It is for the trier of fact to resolve conflicts in the evidence and to decide which witnesses to believe or disbelieve." Ferrell v. State , 746 N.E.2d 48, 51 (Ind. 2001). We will reverse "only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." McMiller v. State , 90 N.E.3d 672, 675 (Ind. Ct. App. 2017).
[10] A person commits Level 3 felony armed robbery if he knowingly or intentionally takes property from another person by using force or threatening to use force, while armed with a deadly weapon or in a way that causes bodily injury to another person. Ind. Code § 35-42-5-1. A person commits Level 5 felony battery with a deadly weapon if he touches another person in a rude, insolent, or angry manner with a deadly weapon. Ind. Code § 35-42-2-1.
[11] Webster argues there is insufficient evidence to support his convictions because of apparent inconsistencies between Cotterell's testimony and the rest of the evidence. For example, Cotterell testified that Webster stabbed him with a folding knife, but police did not recover a folding knife in the course of their investigation. Further, while Cotterell told detectives that he had met Webster through work, the two had never worked together. Cotterell's statements are unclear about whether he was inside the van or outside the van when Webster stabbed him, and the BP station surveillance video does not show Webster stabbing Cotterell. In the pictures of Cotterell taken at the scene, Cotterell's shirt is not torn or bloodstained. Finally, no fingerprint or DNA evidence links Webster to the crime.
[12] However, Webster's argument is simply an invitation for us to reweigh the evidence, which we may not do. See Krueger v. State , 56 N.E.3d 1240, 1243 (Ind. Ct. App. 2016), trans. denied . Cotterell testified that Webster used a knife to stab him and steal his van. Cotterell identified Webster in a photo array and during his testimony at trial. Police took pictures of Cotterell's injuries, and the State presented evidence that Webster's cell phone was in the area of the crime on the date of the crime and at the time of the crime. A few hours after the crime, Webster's cell phone was in Greenfield, where Cotterell's van was ultimately recovered. While Webster's fingerprints were not found in the van, neither were Cotterell's fingerprints found there, which led the State to suggest that someone wiped down the van so that no fingerprints would be present.
[13] Neither the nature of the relationship between Cotterell and Webster nor Cotterell's refusal of medical attention is relevant to whether Webster committed armed robbery. Finally, we are not surprised the folding knife was not found because Webster was arrested approximately two months after the date of the crime. Consequently, we hold the State presented sufficient evidence to support Webster's convictions. See Gorman v. State , 968 N.E.2d 845, 851 (Ind. Ct. App. 2012) (), trans. denied .
[14] The Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the...
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