On Pеtition to Transfer from the Indiana Court of Appeals, No. 10A01-0708-CR-356
Tony Gray was found guilty by a jury of robbing two fast-food restaurants while armed with a deadly weapon. We find the evidence sufficient to sustain a finding Gray was armed during the first robbery, but insufficient to sustain a finding Gray was armed during the second.
Facts and Procedural History
On the evening of February 14, 2007, Gray entered a Clarksville Arby's fast-food
Four days later, Gray entered a Clarks-ville Long John Silver's restaurant, grabbed manager Kathleen Doss by the arm, and told her that he was robbing the restaurant. According to Doss, Gray "had something in his pocket, you know, I thought it was a gun and it was in his pocket and he, yоu know, grabbed my arm and put it to my, you know, like, like right by my, he was standing like right behind me." Ella Henley, a customer sitting in a booth, testified that Gray "had something in his pocket, which I thought was a gun.... I was afraid that he might just, you know, reflex might pull the trigger and might shoot her." Gray proceeded with Doss to the back of the restaurant where he ordered the employees to stаnd against a wall and instructed general manager Thomas Jones to remove the cash from the restaurant's safe and registers. When Jones tried stalling to permit another employee to call the police, Gray told Jones, "You act like you want to die today," and "you're going to end up getting yourself shot."
An employee called 911 while Gray and Jones were in the front of the restaurant at the cash registers. Henley had left the restaurant unnoticed and also called the police shortly after the employee's call. Gray took approximately $2,600 and left through the back door as Clarksville police officer Carl Durbin responded to the calls and approached the Long John Silver's. Durbin saw Gray running from the restaurant toward the back of a neighboring Firestone Auto Care Center. Several people exited the Long John Silver's and pointed at Gray. Durbin turned into the driveway along the side of the Firestone store. Gray had started his car and was driving from the rear of the Firеstone store toward the street. Durbin swung behind Gray's car and activated his lights, and Gray immediately stopped his car, got out, and put his hands in the air. Durbin placed Gray under arrest and handcuffed him. Durbin estimated that ten to twelve seconds elapsed between the time he saw Gray running from Long John Silver's and the time he stopped Gray in his car. He estimated that the Firestone was roughly 200 feet away from the Long John Silver's.
Durbin was soon joined by Captain Dale Hennessey, who assisted in arresting Gray and inventoried Gray's car. Hennessey found the money from Long John Silver's in the front seat. No firearm was found on Gray's person, inside his automobile, or in the vicinity. An electric shaver was found in Gray's right jacket pocket.
Gray was convicted by a jury of two counts of armed robbery, Class B felonies, and three counts of armed criminal confinement, also Class B felonies, for confinement of three of the restaurant employees. Gray was also convicted as a habitual offender and sentenced to an aggregate term of seventy years imprisonment.
Gray appealed, arguing that there was insufficient evidence that he was armed
Standard of Review
Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdiet and will affirm the conviction if there is probative evidence from which a rеasonable jury could have found the defendant guilty beyond a reasonable doubt. O'Connell v. State,
Sufficiency of the Evidence
Robbery is a Class C felony but "is a Class B felony if it is committed while armed with a deadly weapon." Ind.Code § 35-42-5-1 (2004). Similarly, criminal confinement is a Class D felony but is a Class B felony if it is "committed while armed with a deadly weapon." Id. § 35-42-3-3(b)(2)(A). "Deadly weapon" is defined to include a number of things, see id. § 35-41-1-8, but in this case the charging instrument alleged that Gray was armed with "a gun" when he committed the robberies. Therefore, in order to elevate Gray's convictions to Class B felonies, the State was required to prove that Gray committed the offenses using a firearm. See Mitchem v. State,
A conviction for armed robbery may be sustained even if the deadly weapon was not revealed during the robbery. Schumpert v. State,
The crime of armed robbery, an aggravated form of robbery, is based in part on the potential for injury that arises from the possession of a dangerous weapon. When there is no such weapon, the potential is absent. The victim's apprehension is, of course, likely to be the same whether the defendant had a gun or only said he had a gun, but did not. The nature of any threats and a victim's apprehension may be relevant factors in sentencing a defendant on his conviction of unarmed robbery, but, in the absence of evidence warranting an inference beyond a reasonable doubt that a defendant, in fact, had some instrumentality in his possession, there can be no conviction of robbery while "armed with a dangerous weapon."
Commonwealth v. Howard,
The Long John Silver's witnesses testified similarly to the Arby's witnesses. Ella Henley never saw a gun but thought Gray had one in his pocket. Henley "was afraid thаt he might just, you know, reflex might pull the trigger...." Kathleen Doss testified that Gray "made it to look like" he had a firearm. And Thomas Jones testified that he never saw a firearm during the robbery but that Gray "made us believe that [he] had a gun."
The defendant's statement or implication that he had a weapon is itself evidence that he was in fact armed. White v. Stаte,
Although no one testified to seeing a gun, in both cases Gray communicated that he was armed. Gray's statement at Long John Silver's that Jones would end up getting himself shot is substantive, if not conclusive, evidence that Gray had a gun in his pocket when he robbed Long John Silver's.
4
Gray's conduct and statements in the Arby's robbery were less clear but nonetheless permitted the jury to infer that Gray had сommunicated to the victim that he had a gun. His keeping his hand in his pocket and statements that "no one would get hurt" if the employees cooperated clearly implied that he could and would
Without more, Gray's statements and conduct at both stores would be sufficient to permit the jury to find that he was in fact armed at the time of both offenses. The chain of events following Gray's flight from the Long Jоhn Silver's demonstrates otherwise as to that robbery. Gray was arrested almost immediately after leaving the Long John Silver's, and police found no firearm on Gray's person, in his car, or at the scene of the crime. Under these circumstances, it is impossible to conclude beyond a reasonable doubt that Gray was in fact armed at the time of the Long John Silver's robbery. Compare Commonwealth v. Delgado,
In sum, Gray was spotted by Officer Durbin as he was exiting the Long John Silver's, and was arrested approximately ten to twelve seconds later only 200 feet away from the restaurant. Gray and his automobile were searched at the time of his arrest, and money was found but no weapon. No gun was found in the surrounding area, but an electric shaver in the pocket in which restaurant employees assumed Gray was concealing a weapon. We believe that the limited timeframe, the proximity of the arrest, the police's failure to recover a gun in the area, and the discovery of the shaver in Gray's jacket together рreclude any finding beyond a reasonable doubt that Gray was in fact armed with a gun at Long John Silver's. We agree with Judge Barnes that "all of the evidence and all of the reasonable inferences therefrom lead to just one conclusion," "namely that Gray used an electric shaver, not a gun, to rob the Long John Silver's." Gray, at 24,
Conclusion
This cause is remanded to the trial court with instructions to reduce Gray's convictions on the Long John Silver's crimes (Counts I and II) to Class C felony robbery and Class D felony criminal confinement. In all other respects, the judgment of the trial court is affirmed.
Notes
. Gray raised four other arguments on appeal: that the trial court erred by denying Gray's motion to sever the Arby's counts from the Long John Silver's counts, Gray's motion to suppress statements he made to law enforcement, and Gray's motion to suppress identification evidencе, and that Gray's robbery and criminal confinement convictions violated the double jeopardy provisions of the Indiana Constitution. The Court of Appeals resolved all four claims in favor of the State. Gray v. State, No. 10A01-0708-CR-356, slip op. at 6-9, 9-11, 11-15, 19-20,
. See NH.Rev.Stat. Ann. § 636:1 (LexisNexis 2007) (robbery conviction is enhanced if defendant "[wJas actually armed with a deadly weapon" or '"[rleasonably appeared to the victim to be armed with a deadly weapon"); Wis. Stat. Ann. § 943.32 (West 2005) (robbery conviction is enhanced if committed "by use or threat of use of a dangerous weapon ... or
. The Massachusetts armed robbery statute provides that "[wlhoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property whiсh may be the subject of larceny shall be" subject to an enhanced robbery conviction and sentence. Mass. Gen. Laws Aun. ch. 265, § 17 (West 2008).
. On this note, we should briefly revisit the Arby's robbery to clarify one point. Gray, who told the court he was within one semester of completing his criminal justice degree, represented himself at trial. The transcript is sоmewhat confusing, and at some points reads as if authored by Joseph Heller. At trial Gray asked Arby's employee Stacey Clark about testimony she had provided in a prior deposition:
[Gray:] Ma'am, did the suspect ever tell you verbally he had a gun?
[Clark:] No, you did not say you had a gun.
[[Image here]]
[Gray:] I think starting on page, starting on line 9, did you say, "I don't know if he said if he had a gun. But he said no onе will get shot. That no one will get burt", is that true, ma'am?
[Clark:] And it says something to that, something like that. ...
[[Image here]]
... [It says in here, from straight from line 9, I know if he said but he said no one would get shot. Something like thai.
[Gray:] Right.
[Clark:] That no one would get hurt, something like that. That's what I said.
Clark's deposition was not entered into evidence and it is unclear whether her live testimony confirmed either that Gray said he was armed or that he was in fact armed.