BARTEAU, Senior Judge.
Defendant-Appellant Carlton Wright appeals his convictions of robbery, a Class A felony, Indiana Code section 35-42-5-1 (1984), and criminal confinement, a Class D felony, Indiana Code section 35-42-3-3 (2006).
Wright raises three issues, which we restate as:
On December 24, 2009, Reinaldo Santiago encountered Wright and Kianna Ball at a motel in Clarksville, Indiana, while he was looking for friends. Santiago spoke very little English, but he agreed to give Wright and Ball a ride. They got into Santiago's van, and Santiago drove them to his house to retrieve his cell phone. Next, Santiago took them with him as he went to buy alcohol and withdraw money from an automatic teller machine, and then they returned to Santiago's home. At Santiago's home, Wright convinced Santiago to give him forty dollars in exchange for sex with Ball, but Santiago ultimately did not have sex with her.
Next, the three of them got back into Santiago's van, and Santiago drove to a friend's house to find someone to serve as a translator. Wright was in the front passenger seat, and Ball sat in the back seat. When Santiago arrived at his friend's house and parked the van, Ball produced a handgun and pointed it at Santiago's head. Wright grabbed Santiago and prevented him from moving. Next, Wright got out of the van and came around to Santiago's door. Ball shot Santiago in the head, and Wright pulled Santiago out of the van. Wright took Santiago's seat and drove off. Witnesses obtained medical assistance for Santiago. He survived the shooting after numerous surgeries, but he was rendered permanently blind.
Meanwhile, Officer John Grimm saw the van as it drove through several stop signs. Grimm tried to stop the van, but the driver evaded him. Soon after losing sight of the van, Grimm discovered it abandoned in an alley. The doors were open and the engine was still running. Shortly thereafter, a business's surveillance system recorded Wright and Ball as they walked together down a street. Next, Mary Orteze was in her apartment when she heard someone
The State charged Wright with robbery, resisting law enforcement, and criminal confinement as a Class B felony. The jury found Wright guilty of robbery and resisting law enforcement as charged, but convicted him of criminal confinement as a Class D felony. The trial court sentenced Wright to an aggregate sentence of fifty years. He now appeals.
In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind.2010). It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict, and we will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Treadway, 924 N.E.2d at 639.
In order to convict Wright of robbery as charged, the State was required to prove beyond a reasonable doubt that Wright (1) knowingly or intentionally (2) took Santiago's vehicle from Santiago or Santiago's presence (3) by using or threatening the use of force on Santiago or by putting Santiago in fear (4) in a manner that resulted in serious bodily injury, specifically a gunshot wound, to Santiago's head. See Ind.Code § 35-42-5-1. Furthermore, at trial the jury was instructed that Wright could be found guilty of the robbery as an accomplice. Indiana Code section 35-41-2-4 (1977) provides, in relevant part, "[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense. . . ." In determining whether a person aided another in the commission of a crime, our Supreme Court has considered the following four factors: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant's conduct before, during, and after the occurrence of the crime. Garland v. State, 788 N.E.2d 425, 431 (Ind.2003). A defendant is criminally liable for the use of a weapon by an accomplice even in the complete absence of evidence that the defendant was personally armed. Merriweather v. State, 778 N.E.2d 449, 458-59 (Ind.Ct.App.2002).
In this case, Wright contends that the evidence is insufficient to convict him of robbery as an accomplice. Turning to the factors set forth in Garland, Wright concedes
Next, instead of failing to oppose the robbery, Wright actively participated in it. After Ball shot Santiago, Wright removed Santiago from the van and drove off with Ball, thereby completing the robbery. Finally, Wright's conduct after the robbery provides additional proof that he aided in the crime. Instead of seeking medical assistance for Santiago, Wright remained with Ball after the robbery, fleeing with her in the van and then on foot. He separated from Ball only when their capture was imminent. This evidence is sufficient to convict Wright of robbery as an accomplice. See Wieland v. State, 736 N.E.2d 1198, 1203 (Ind.2000) (determining that the evidence was sufficient to convict the defendant of robbery as an accomplice where the defendant accompanied a friend into a store, personally took merchandise while his friend wielded a gun, and ran away from the store with his friend). Wright argues that the testimony of Santiago and other witnesses to the robbery was contradictory, but this is nothing more than a request to reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (noting that appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict).
Wright argues that his convictions for robbery and criminal confinement violate Article I, Section 14 of the Indiana Constitution, which provides, in relevant part, "[n]o person shall be put in jeopardy twice for the same offense."
Wright contends that his convictions violate the "actual evidence" test. To show that two challenged offenses constitute the same offense under the actual evidence test, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind.2002). Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury's determination. Id.
In this case, the trial court instructed the jurors that in order to convict Wright of robbery, they had to determine beyond a reasonable doubt that he: (1) knowingly or intentionally (2) aided (3) another person "in the commission of the offense of Robbery (Class A Felony), defined as knowingly or intentionally taking property from the person or presence of another
The evidence at trial established that when Ball drew a handgun and pointed it at Santiago's head, Wright grabbed Santiago and held him in place. Santiago was unable to get away. Santiago then testified that after Wright got out of the van and came around to his door, Ball shot him, and Wright pulled him out of the van. Several other witnesses to the incident testified that Wright did not get out of the van but instead struggled with Santiago inside the van and pushed him out of the door. In any event, Wright's grabbing of Santiago occurred while Ball had a gun pointed at Santiago and was immediately followed by Santiago's shooting and his removal from the van. A jury could have reasonably determined that Wright's actions constituting robbery of Santiago included Wright's confinement of Santiago. See Polk v. State, 783 N.E.2d 1253, 1259 (Ind.Ct.App.2003), trans. denied (finding that the defendant's robbery and criminal confinement convictions violated double jeopardy because only one confrontation occurred that resulted in the taking of the victim's property, and the confinement was not greater than that necessary to accomplish the robbery).
Turning to the State's closing argument, we note that during a discussion of the elements of robbery, the State told the jury, "[t]hey took his property, the property in his possession. A van. They used force on him, multiple types of force. Carlton Wright grabbed a hold of him and hand [sic] him and confined him into the van for some amount of time. A brief amount of time, but it was force." Tr. p. 485. Thus, the jury was led to believe that the same force used to confine Santiago could also be the same force used to rob him.
Based on the evidence presented and the State's argument to the jury, we conclude that there is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of criminal confinement were also used to establish the essential elements of robbery. See Vanzandt v. State, 731 N.E.2d 450, 455-56 (Ind.Ct.App.2000), trans. denied (determining that the defendant's convictions for robbery and criminal confinement violated double jeopardy because there was an absence of evidence to establish the essential elements of confinement independent of the robbery). Consequently, Wright's conviction for criminal confinement must be vacated.
Wright's sentencing challenge is governed by Indiana Appellate Rule 7(B), which provides, in relevant part, "[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." To assess the appropriateness of the sentence, we look first to the statutory range established for the classes of the offenses. Here, robbery is a Class A felony, for which the advisory sentence is thirty years, the shortest sentence is
We then look to the nature of the offenses and the character of the offender. The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation. See, e.g., Treadway, 924 N.E.2d at 642 (noting that the defendant's crimes were "horrific and brutal"). The character of the offender is found in what we learn of the offender's life and conduct. See Lindsey v. State, 916 N.E.2d 230, 241-42 (Ind.Ct.App.2009), trans. denied (reviewing the defendant's criminal history, probation violations, and history of misconduct while incarcerated). In making this determination, we may look to any factors appearing in the record. Calvert v. State, 930 N.E.2d 633, 643 (Ind.Ct.App.2010). Furthermore, we give due consideration to the trial court's decision and its more direct knowledge of the offense and the offender. See Wilkes v. State, 917 N.E.2d 675, 693 (Ind.2009) (stating, "[a]s in all sentencing, . . . we give considerable deference to the ruling of the trial court"). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).
Our review here of the nature of the offenses shows that Santiago, who had offered Wright and Ball a lift and showed them hospitality, was repaid by an unprovoked ambush that left him permanently blind. Due to his injury, Santiago was forced to quit his job as a welder and had to hire a caretaker. It is also noteworthy that after the robbery, Wright did not seek medical attention for Santiago's clearly grievous injury but instead callously abandoned him in the street. Furthermore, rather than disassociate himself from Ball after she shot Santiago, Wright fled with Ball and resisted all attempts at capture. In summary, the manner in which Wright committed his crimes demonstrates complete disregard for the lives and property of others.
Wright contends that because he was convicted as an accomplice, "his role in the offense was at best of a secondary nature." Appellant's Br. p. 27. We disagree. Wright grabbed Santiago and prevented him from escaping from Ball. Furthermore, Wright completed the robbery by removing Santiago from the van after Ball shot him. Finally, Wright individually ignored multiple demands by the police to halt and instead chose to continue to flee, even after Ball surrendered. Thus, Wright was an active and necessary participant in these crimes.
Our review here of the character of the offender shows that Wright, who was twenty-five years old at sentencing, had been adjudicated a juvenile for acts that would constitute intimidation if committed by an adult. Furthermore, as an adult Wright acquired a misdemeanor conviction for driving with a suspended license and felony convictions for theft and possession
For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions for the trial court to vacate Wright's conviction for criminal confinement.
Affirmed in part, reversed in part, and remanded with instructions.
BAKER, J., and BAILEY, J., concur.
