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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: JOHN ANDREW GOODRIDGE Evansville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jun 21 2012, 9:07 am

IN THE COURT OF APPEALS OF INDIANA
HERBERT E. ROBERTSON III, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 82A01-1110-CR-465

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-1006-FB-713

June 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Herbert E. Robertson III appeals his conviction for class B felony armed robbery and his adjudication as a habitual offender, arguing that the trial court abused its discretion in excluding certain evidence. Finding no error, we affirm. Facts and Procedural History During the evening of December 21, 2009, Andrea Atterberry was working alone at a Vanderburgh County liquor store. Robertson entered the store and purchased a half pint of vodka and asked for change for the soda machine. About an hour later, Robertson returned, bought another half pint of vodka, and asked Atterberry when her shift was over. Robertson entered the store a third time and asked Atterberry for change for a ten-dollar bill. Atterberry opened the cash register drawer and got the change. When she looked up, Robertson had a knife and demanded, "[B]**ch give me the money in the drawer." Tr. at 18. She declined and called 911. While Atterberry was talking to the 911 operator, Robertson screamed and stabbed at her with the knife. Atterberry threw the money at him, and he left. The police arrived, but Robertson was gone. That day, Atterberry provided a description of the robber to Evansville Police Detective Tony Mayhew that was recorded and transcribed. Atterberry described the robber as about five feet eight inches tall, around 220 pounds, with blue eyes and a two-to-three-day beard growth, and wearing a black stocking cap, a blue hooded jacket, a blue button shirt, light colored jeans, and black shoes. Id. at 107. A month or two later, Detective Mayhew was investigating an unrelated liquor store theft and noticed that the suspect in that case, Henry Arheleger, fit Atterberry's description.

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Detective Mayhew showed Atterberry a photo array of six men, which included Arheleger but not Robertson. Atterberry did not identify any of the men as the actual robber, but said that of the six men, Arheleger most resembled the robber. Id. at 25-26. About a week later, Detective Mayhew showed Atterberry approximately fifty photographs, none of which were of Robertson. Atterberry said that none of the photographs were of the man who had robbed her. Sometime later, Atterberry informed Detective Mayhew that she remembered that the robber had previously come into the store with a woman whom Atterberry would recognize. After Atterberry identified that woman in a photo array, Detective Mayhew showed her another photo array containing Robertson's picture. Atterberry immediately identified Robertson as the robber. The State charged Robertson with class B felony armed robbery and with being a habitual offender. The jury found Robertson guilty of class B felony armed robbery, and the trial court found that Robertson was a habitual offender. Robertson appeals. Additional facts will be provided as necessary. Discussion and Decision Robertson argues that the trial court erred in excluding evidence of the police investigation of Arheleger and the transcript of Atterberry's recorded statement to Detective Mayhew on the day of the robbery. We review the trial court's decision on the admissibility of evidence for an abuse of discretion. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App.

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2007). "An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Id. At trial, Robertson moved to introduce evidence of the police investigation of Arheleger. In summary, Robertson sought to introduce evidence that (1) Arheleger agreed to take a polygraph test as to whether he committed the robbery and agreed that the results could be used as evidence against him; (2) after police explained to Arheleger that if he failed to appear for his polygraph appointment, his failure to appear would be considered an admission of guilt of the robbery, Arheleger replied, "if I don't show up then you can assume I'm guilty;" (3) Arheleger appeared at the scheduled time to take his polygraph test but was asked to sign a second polygraph stipulation agreement and to reschedule the polygraph; and (4) Arheleger left before rescheduling the polygraph test and never took it. Defendant's Offer to Prove 1. The trial court denied Robertson's motion. Robertson argues that the investigation evidence is admissible because it raises the possibility that Arheleger committed the robbery. "Evidence which tends to show someone else committed the crime logically makes it less probable that the defendant committed the crime, and thus meets the definition of relevance in Indiana Evidence Rule 401." Cook v. State, 734 N.E.2d 563, 568 (Ind. 2000) (citing Joyner v. State, 678 N.E.2d 386, 389 (Ind.

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1997)).1 Evidence Rule 401 provides that evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." As one treatise puts it: To be admissible in a criminal prosecution, evidence that a third party has committed the crime with which the defendant is charged need not show substantial proof of a probability that the third person has committed the act; it need only be capable of raising a reasonable doubt of the defendant's guilt. .... .... While a criminal defendant may present alternative perpetrator evidence at trial in order to cast doubt on the defendant's guilt, the defendant must first lay an evidentiary foundation to establish that the alternative perpetrator evidence has an inherent tendency to connect the alternative perpetrator to the actual commission of the charged crime. 29 AM. JUR. 2d Evidence

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