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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: DANIELLE GREGORY Marion County Public Defender Appellate Division Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

FILED
Dec 21 2010, 9:29 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ARENZO RICHMOND, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-1004-CR-449

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol Orbison, Judge Cause No. 49G22-0902-FB-22381

December 21, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary While armed with a weapon, Arenzo Richmond entered a computer store, confined the three people working there, and stole several laptops. He also took a cell phone and cash from the store owner and took a wallet from one of the employees, but gave it back when he realized that it did not contain any money. As a result, Richmond was charged with robbery, attempted robbery, and three counts of confinement. Richmond's first two trials ended in mistrials. After his third trial, Richmond was convicted on all counts and was sentenced to an aggregate term of twelve years with two suspended. On appeal, Richmond argues that his convictions of confinement, robbery, and attempted robbery constitute double jeopardy; however, because the confinements extended beyond the time necessary to complete the robbery and attempted robbery, the convictions are proper. Next, Richmond argues that there was insufficient evidence to support one of the confinement convictions because the victim did not testify; however, we conclude that other testimony supports a reasonable inference that that victim did not consent to the confinement. Richmond also argues that he was denied a speedy trial. His third trial commenced within a year of the date that the charges were filed, and Indiana Criminal Rule 4(C) therefore was not violated; nor has he persuaded us that a Marion County rule concerning case disposition guidelines was violated. Finally, Richmond argues that the trial court abused its discretion by finding improper aggravating factors. While we agree that the trial court improperly considered the victims' fear as an aggravating factor, we conclude that the trial court would have imposed the same sentence even without this factor; therefore, we affirm his

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convictions and sentence. However, Richmond correctly notes that there is an error in the abstract of judgment; therefore, we remand for the trial court to amend the abstract of judgment. Facts and Procedural History On February 2, 2009, Richmond and Stanley Chapman entered an Indianapolis store called Computer Overdrive. Richmond was wearing a ski mask and wielding a handgun. Richmond ordered Mark Kilgo, the store owner, and two employees, Dustin Gibbs and Ryan Burtch,1 to go to the back of the store and get on the ground. They all complied, and Burtch began to pray out loud. If any of them hesitated to follow orders or looked up at the robbers, Richmond would say, "Are you trying to get shot?" Tr. at 54. Richmond took Gibbs's wallet, but gave it back to him when he realized that there was no money in it. Richmond took about $400 from Kilgo's wallet, which included at least two $100 bills. He also took about $60 from the register. Kilgo, Gibbs, and Burtch realized that the robbers had gone when they heard the door chimes. Kilgo hit the alarm button to call the police. Kilgo and Gibbs went to the door and saw Richmond getting into a black SUV. They discovered that the robbers had taken several laptops and Kilgo's cell phone. Kilgo's phone had a GPS locator, so he began tracking the location of the phone online. Officer Justin Turner responded to the alarm, and he broadcast a description of the robbers and the location of the cell phone, the 2900 block of East Riverside Drive. Officer

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His name is spelled "Birch" in the transcript; however, court filings spell his name "Burtch."

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Kevin Neathery located a black SUV in the 2700 block of East Riverside Drive and conducted a traffic stop. Richmond was in the driver's seat and Chapman was in the passenger seat. Three officers transported Kilgo, Gibbs, and Burtch to the scene of the stop. Kilgo and Gibbs recognized the SUV. None of them could positively identify Richmond or Chapman, but Gibbs and Kilgo thought that they had the same build as the robbers, and they recognized Richmond's boots. After Kilgo learned Richmond's name, he remembered that Richmond had been a customer of Computer Overdrive on several occasions. Richmond gave John Maloney, the detective assigned to the case, permission to search the vehicle. Inside, he found two laptops with stickers that said "Computer Overdrive." Id. at 35. Kilgo's cell phone was in the glove box. Chapman had $190 in his possession, and Richmond had $170; each man had a $100 bill. Richmond and Chapman were charged with the robbery of Kilgo, the attempted robbery of Gibbs, and with one count of confinement for each of the three victims; all counts were charged as class B felonies because of the use of a deadly weapon. Richmond had two trials that resulted in mistrials, and he was tried a third time on March 8 and 9, 2010. Chapman entered a plea agreement with the State and testified against Richmond. Chapman admitted that he and Richmond committed the robbery at Computer Overdrive, taking laptops, money, and a cell phone. He testified that following the robbery, they left in a black SUV and took Chapman's share of the stolen items to his house. Chapman, who was seventeen at the time of the offense, lived with his mother, who gave the police permission to

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search his house. The police recovered two laptops with Computer Overdrive stickers on them. Kilgo and Gibbs also testified against Richmond, but Burtch did not testify at the third trial. The jury found Richmond guilty as charged. The trial court entered judgment on five class B felonies. At sentencing on March 31, 2010, the trial court found as a mitigating circumstance that Richmond had no criminal record. As aggravating circumstances, the court found that Richmond had been the "ringleader" of the offenses and that he had put his victims in fear. Id. at 261. The trial court sentenced Richmond to twelve years, with two suspended, on the robbery and attempted robbery convictions. The court sentenced Richmond to six years for each confinement conviction. All sentences were to be served concurrently. On April 1, 2010, the trial court modified Richmond's convictions and sentences for confinement, entering judgment as class D felonies and reducing the sentences to three years each. Richmond now appeals. Discussion and Decision I. Double Jeopardy Richmond argues that, pursuant to the continuing crime doctrine, he may not be convicted of confinement and robbery/attempted robbery.2 The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.... [T]he continuous crime doctrine
The State contends that Richmond has waived this issue because he did not file a motion to dismiss the charging information. We rejected this argument in Sanders v. State, 914 N.E.2d 792, 794 (Ind. Ct. App. 2009), trans. denied. The State did not mention Sanders in its brief or address any of the reasons why Sanders declined to find waiver; therefore, we decline to part ways with Sanders.
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does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, the doctrine defines those instances where a defendant's conduct amounts only to a single chargeable crime. In doing so, the continuous crime doctrine prevents the State from charging a defendant twice for the same continuous offense. Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005) (citations omitted), trans. denied. Richmond compares his case to Buchanan v. State, 913 N.E.2d 712 (Ind. Ct. App. 2009), trans. denied. Buchanan used a pay phone to call in false bomb threats to two schools to create a diversion while he robbed a bank. Buchanan told the bank employees that he knew where their families lived and that if they told anyone, he would hurt them. Buchanan was convicted of robbery, three counts of confinement, three counts of intimidation, and two counts of false reporting.3 On appeal, Buchanan argued that his convictions of false reporting and intimidation must be vacated pursuant to the continuing crime doctrine. Noting that the false bomb threats and his intimidation of the bank employees were part of his scheme to rob the bank, we agreed that those crimes were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction" and vacated the convictions of false reporting and intimidation. Id. at 720-21. We do not agree that Buchanan controls. First, in Buchanan, we noted that the State had conceded at the sentencing hearing that the false reporting and intimidation convictions must be vacated. Second, Buchanan did not confine the bank employees any longer than it took him to rob the bank.

He was also convicted of theft, but we reversed that conviction because it was a lesser included offense of robbery. Buchanan, 913 N.E.2d at 720.

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By contrast, Richmond confined Gibbs and Burtch while he robbed Kilgo, and he confined Kilgo and Burtch while he made a separate attempt to rob Gibbs. Therefore, Richmond's case is more similar to Austin v. State, 603 N.E.2d 169 (Ind. Ct. App. 1992), trans. denied. Austin entered an apartment where seven people were gathered, told all of them to remain still, and represented that he had a gun. Austin then approached each person individually and demanded money. Austin was convicted of five counts of robbery, two counts of attempted robbery, and seven counts of confinement. We rejected Austin's argument that the confinement convictions constituted double jeopardy, because it is well established that any confinement of the victim beyond that necessary to effectuate the robbery is a separate violation. Id. at 174. To hold that the confinement of the others while one is being robbed is inherent in the force used to effectuate the robbery smacks in the face of good public policy and potentially ignores the liberties of the others affected by the robbery. If a robber approaches a group of people, but only robs one while instructing the others not to move, he has confined the others in addition to robbing the one. Id. Richmond's confinement of each victim extended beyond what was necessary to effectuate the robbery and attempted robbery. See id. That being the case, we are not persuaded that the offenses were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." II. Sufficiency of the Evidence Richmond argues that there is insufficient evidence that he confined Burtch because Burtch did not testify. When reviewing a challenge to the sufficiency of the evidence, we
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neither reweigh the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we consider only the evidence most favorable to the verdict and the reasonable inferences supporting it. Id. "We affirm if there is substantial evidence of probative value from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Purvis v. State, 829 N.E.2d 572, 587 (Ind. Ct. App. 2005), trans. denied, cert. denied. To convict Richmond of confinement, the State was required to prove beyond a reasonable doubt that he confined Burtch without his consent. Ind. Code

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