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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.

FILED
Mar 04 2010, 8:33 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN C. BOHDAN Deputy Public Defender Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana STEPHEN TESMER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LANELL T. AYERS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A03-0911-CR-544

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0802-FB-33

March 4, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Lanell T. Ayers appeals his conviction, after a jury trial, of robbery, a class B felony. We affirm. ISSUES 1. Whether his conviction must be reversed because the jury returned inconsistent verdicts. 2. Whether the trial court abused its discretion in admitting evidence. FACTS In 2007, Jere Wilchar was the owner/employee of a landscape company. In frequenting a Speedway gas station near his home, he had met an employee there named Casey. On September 14, 2007, Casey invited Wilchar to visit with her. Because she had recently moved, she was providing him with directions to her new residence on his cell phone. She directed him to an alley behind some buildings, where he parked in a parking lot. Still on his phone, Wilchar walked toward a specified doorway, which Casey told him that she would open. Standing outside the door, Wilchar was confronted by Ayers and another man. When Wilchar saw Ayers "drawn" handgun, he "gave . . . up to them" his own gun -putting it down. (Tr. 153). The two men ordered Wilchar to walk to his vehicle in the illuminated parking lot, and to empty his pockets and give them his phone. Wilchar gave them $200.00 from his right pocket and his phone. Ayers, holding the gun, was within two to three feet of Wilchar while the second man rummaged through the trunk and 2

interior of his vehicle. Ayers ordered Wilchar into the vehicle to assist the second man remove the stereo. Wilchar started the vehicle, put it in reverse, "backed up and then tried to run them over." Id. at 155. Ayers "pointed his gun at [Wilchars] car and shot a round." Id. at 156. The men fled, and Wilchar went to a nearby business and called the police. When the police arrived. Wilchar reported that he had been robbed, at gunpoint, of money, his gun, his phone, and some personal items; and he gave a general description of the robbers. An immediate search was unproductive. Subsequently, Wilchar reported to his cellular service provider that his phone had been stolen. Approximately a week after the robbery, the cellular service provider notified Wilchar that it had recovered his phone. When Wilchar retrieved his phone, he found that it contained "a lot of pictures"

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