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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: BRUCE W. GRAHAM Trueblood & Graham P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

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

No. 79A02-0603-CR-208

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy Williams, Judge Pro Tem Cause No. 79D01-0507-FA-22

December 19, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Cory M. Salinas appeals following a jury trial in which he was convicted of robbery resulting in serious bodily injury, a Class A felony. 1 Salinas raises the following issues, which we restate as: (1) whether sufficient evidence supports Salinas's conviction for robbery resulting in serious bodily injury; (2) whether the trial court properly sentenced Salinas; and (3) whether Salinas's sentence is inappropriate given the nature of the offense and his character. We reverse, concluding that insufficient evidence exists to support Salinas's conviction for robbery resulting in serious bodily injury. Therefore, we do not reach Salinas's arguments regarding sentencing. Facts and Procedural History The facts most favorable to the decision below are that on June 10, 2005, Salinas, his girlfriend, Nicole Sivits, Matthew Poisel, and Poisel's girlfriend, Denise Leazenby, traveled from Logansport, Indiana, to Lafayette, Indiana. The group stayed at the residence of Susan Williams, Salinas's mother. On June 11, 2005, while their girlfriends were working at Filly's Gentlemen's Club, Salinas and Poisel crossed the pedestrian bridge from Lafayette to West Lafayette. On their way, they met two local lawyers, Jason Cottrell and Dan Moore. Salinas and Poisel asked the lawyers if there were any strip clubs in West Lafayette. Cottrell and Moore said that none existed, but directed Salinas and Poisel to the Neon Cactus, a nightclub in the area. As Cottrell and Moore walked away, either Salinas or Poisel asked whether the Neon Cactus had a cover charge. Cottrell replied that there was a five-dollar cover charge.

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Either Salinas or Poisel then asked the other whether he had money for the cover charge, and then said that even if they did not have money they could rob or "jack" someone for it. Id. at 478. Poisel and Salinas continued toward the Neon Cactus. As they approached the club, they came across Brian Clawson, who was standing at an ATM, and Poisel suggested that they rob Clawson. Salinas testified that he told Poisel that they should not commit the robbery. Poisel approached Clawson, asked him for his money, and when Clawson refused, shot him in the back. Poisel took Clawson's wallet and fifty dollars that Clawson had withdrawn from the ATM, and handed the wallet to Salinas. 2 After being shot, Clawson managed to crawl out to a parking lot, where a passer-by saw him and summoned assistance. As a result of the gunshot wound, Clawson was hospitalized for roughly six weeks. Salinas testified that after the shooting, he ran back to his mother's residence, where Poisel joined him. The two then called a cab, and went to Filly's to meet their girlfriends. While at Filly's, Poisel and Salinas played pool and drank beer. When the four left Filly's around three a.m., they went to Steak n' Shake and then to Salinas's mother's residence, where they spent the night. In the morning, Sivits told Leazenby that Poisel had shot someone the night before. Before leaving Salinas's mother's residence, Poisel hid a gun not used in the shooting in a flowerpot. Salinas testified that he later found another gun under his mother's couch. Salinas thought that this gun was the one with which Poisel shot Clawson.

The jury also found Salinas guilty of robbery, a Class B felony, and theft, a Class D felony. The trial court correctly did not enter judgment on these convictions. Appellant's Appendix at 7. 2 Salinas testified that Poisel never handed him the wallet. However, a police interview transcript, which was introduced into evidence, indicates that an officer asked Salinas, "What'd Matt do when he took out [Clawson's] wallet?" Salinas responded "I don't know. That's the thing. I, Matt went through it after ..., he handed it to me. I'm way over here. It's kind of hard to fuckin' see." Id. at 733.

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Salinas gave this gun to a friend, who took the gun to Logansport. Police eventually recovered this gun and determined it was the one with which Clawson was shot. Salinas was charged with robbery resulting in serious bodily injury, robbery, conspiracy to commit robbery, and theft. The State did not attempt to show that Salinas was the actual shooter, but proceeded on the theory of accomplice liability. A jury found Salinas innocent of conspiracy to commit robbery, but guilty of robbery resulting in serious bodily injury, robbery, and theft. The trial court entered a judgment of conviction for robbery resulting in serious bodily injury and sentenced Salinas to thirty-two years, with six years suspended, four of those to be executed on community corrections, and two on supervised probation. At the sentencing hearing, the trial court discussed (1) the nature and

circumstances of the crime, (2) Salinas's criminal history, (3) Clawson's recommendation that Salinas receive the maximum sentence, (4) the fact that Salinas's involvement in the crime was less than that of Poisel, (5) Salinas's youth, and (6) his family support. 3 Salinas now appeals both his conviction and sentence. Additional facts will be included as needed. Discussion and Decision I. Sufficiency of the Evidence A. Standard of Review When reviewing a claim of insufficient evidence, we will not reweigh evidence or judge witnesses' credibility. Grim v. State, 797 N.E.2d 825, 830 (Ind. Ct. App. 2003). We

The court did not use the terms "aggravators" or "mitigators" when discussing these terms, and did not set out aggravators or mitigators in the sentencing order. However, the order states, "[t]he Court finds the aggravating factors outweigh the mitigating factors." Id. at 4.

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will consider only the evidence favorable to the judgment and the reasonable inferences drawn therefrom. Id. We will affirm a conviction if the lower court's finding is supported by substantial evidence of probative value. Id. B. Sufficiency of the Evidence for Accomplice Liability The State tried Salinas on a basis of accomplice liability, under which "[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense." Ind. Code

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