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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: ERNEST P. GALOS South Bend, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

FILED
Jan 05 2012, 9:09 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
RASHAAD MICHAEL HOGAN, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

CLERK

No. 71A03-1107-CR-336

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable J. Jerome Frese, Judge Cause No. 71D01-0910-FB-114

January 5, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Following a jury trial, Rashaad Michael Hogan appeals his two convictions of robbery, two convictions of confinement, and one conviction of carjacking, all Class B felonies, and sixty-five year sentence thereon. He raises three issues for our review, which we reorder and restate as: 1) whether the trial court abused its discretion in refusing to instruct the jury regarding lesser-included offenses; 2) whether the trial court abused its discretion in instructing the jury such that Hogan could be convicted if some jurors believed he was the principal while other jurors believed he was an accomplice; and 3) whether Hogan's sentence is inappropriate. We conclude that the trial court did not abuse its discretion in refusing Hogan's requested jury instructions as to lesser included offenses, or by instructing the jury that Hogan could be convicted if the State proved he were the principal or an accomplice. We also conclude that his sentence is not inappropriate, and therefore affirm his convictions and sentence. Facts and Procedural History In September 2009, Colton Davis and Andrew McNish watched television at a friend's home and then drove in Davis's two-door car back to their shared South Bend apartment. As the two exited Davis's car at around 10:45 p.m., a group of five young men with their faces covered approached. One of those men, armed with and pointing a semi-automatic handgun, demanded that Davis and McNish turn over their valuables. Davis threw to them his cellular phone, wallet, and keys, and began to walk away. The bandits ordered Davis lie on the ground and they began beating him all over his body. McNish handed over his cellular phone. One of the attackers hit McNish and McNish took a swing in response; a different attacker then used the gun to hit McNish in
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his mouth. The robbers forced Davis and McNish into the trunk of Davis's car, closed it, all got into the car, and drove off. As they drove, the robbers spoke with Davis and McNish between the cushions that separated the backseat from the trunk of the car. On multiple occasions they put the gun to Davis's back, demanded money, and told the two that they would shoot and kill them and throw them into the St. Joseph River. Davis revealed that he had an automated teller machine ("ATM") card in his wallet, which he alread y gave them, and that they could use it to obtain cash from his account. The car pulled over, Davis was moved to the backseat, was struck several times with closed fists and the gun, and was ordered to give directions to access his bank account when the car stopped again at an ATM. One of the robbers used the card to obtain $300 from Davis's account. The group continued to demand more money and Davis volunteered another account. He was struck several more times, and the robbers obtained another $200 from his account at a second ATM. Davis was then forced back into the trunk. While Davis was re-entering the trunk, one of the robbers struck McNish in the ear with the gun, causing his ear to bleed. McNish told Davis that he could not hear out of that ear. The group drove off again, continuing to tell Davis and McNish that they would be shot, killed, and thrown into the nearby river. Throughout the ordeal, the robbers made these threats at least ten times, perhaps up to or more than twenty times. A South Bend Police officer then observed the robbers commit a traffic violation, and upon attempting to pull them over, a chase ensued. Fleeing from police, the group crashed Davis's car to a stop at 11:57 p.m. The robbers jumped out of the car and ran. As officers secured the scene they discovered Davis and McNish in the trunk. Davis
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suffered multiple bruises; McNish's ear bled, and for at least a time, his hearing in that ear was limited. They both refused medical treatment at the scene. During the investigation police interviewed Hogan, who admitted to committing the offenses, named his four compatriots, and largely cooperated with the investigation. The State charged him with robbery of Davis, robbery of McNish, confinement of Davis, confinement of McNish, and carjacking, all Class B felonies. At his jury trial, Hogan objected to several of the State's proposed jury instructions, and the trial court overruled his objections. Hogan also proposed some jury instructions which the trial court rejected. The jury found him guilty of all counts and the trial court entered a judgment of conviction as to all counts except carjacking. Following a sentencing hearing, the trial court ordered that Hogan serve twenty years for robbery of Davis, fifteen years for robbery of McNish, fifteen years for confinement of Davis, and fifteen years for confinement of McNish, all to be served consecutively for a total of sixty-five years. Hogan now appeals his convictions and sentence. Additional facts will be supplied as appropriate. Discussion and Decision I. Omitted Jury Instructions of Lesser-Included Offenses Hogan first argues the trial court abused its discretion by refusing to instruct the jury regarding the lesser-included offenses of robbery as a Class C felony, and confinement as Classes C and D felonies. Our supreme court has described the proper analysis for trial courts when a party requests an instruction on a lesser-included offense of the crime charged:

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When a defendant requests a lesser-included offense instruction, a trial court applies a three-part analysis: (1) determine whether the lesserincluded offense is inherently included in the crime charged; if not, (2) determine whether the lesser-included offense is factually included in the crime charged; and, if either, (3) determine whether a serious evidentiary dispute exists whereby the jury could conclude that the lesser offense was committed but not the greater. Miller v. State, 720 N.E.2d 696, 702 (Ind. 1999) (citation omitted). Where a trial court rejects a tendered instruction upon finding the absence of a serious evidentiary dispute, we review that decision for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Robbery as a Class C felony is inherently included within robbery as a Class B felony. McFarland v. State, 519 N.E.2d 528, 531 (Ind. 1988); Ind. Code

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