ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Jeffrey A. Modisett
Indianapolis, IN Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
JERRY YOUNG, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9904-CR-242 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
Appellant Jerry Young was convicted of robbery as a class A felony. Ind. Code Ann. § 35-42-5-1 (West 1998). The court imposed the presumptive sentence of thirty years and added thirty years because Young was an habitual offender. In this direct appeal, he challenges:
the sufficiency of the evidence, claiming that the State did not prove that he took property by using force;
the sufficiency of the evidence, claiming that the State did not prove that the victim sustained serious bodily injury; and
the proportionality of his sentence.
Morris pursued Young and arrived at the car in time to grab onto
the windshield and the door handle. He reached into the open window
to turn off the ignition. Young rapped his knuckles with a screwdriver
and drove down the alley, but Morris continued to hang onto the car.
Morris said he couldnt let go, because Young was going too fast.
(R. at 153.) The friction from the pavement of the alley
wore through Morriss shoe, and he fell off. Young ran over Morriss
leg as he sped away.
Morris sustained a fractured ankle and abrasions and bruises on his arms and
legs. He went to the emergency room for treatment a day or
two after he was injured. Morris reports that his leg is still
stiff and, as a result, he freeze[s] up and fall[s] down a lot,
trying to walk. (R. at 168.)
It is true that committing robbery by use of force requires that the
force be used before the defendant completes taking the property from the presence
of the victim. Eckelberry, 497 N.E.2d at 234. In this case,
Young snatched Morriss wallet, ran off the Morrises property, jumped into his car,
which he had left running, and attempted to drive off. Thus, by
the time Young exerted the force on Morris by striking his hand with
a screwdriver, speeding up, and running over Morriss leg, he was off the
Morrises property and attempting to escape. Essentially, Young claims that the force
was used to accomplish his escape, not take the property.
We rejected this very claim in Eckelberry. Eckelberry stole the victims car
parked outside her house. On his way off her property, he hit
her with the car. He escaped, was caught, tried and convicted of
robbery by use of force. We affirmed the conviction, holding that the
force not only accompanied the taking of the automobile . . . ,
but indeed was necessary to accomplish it. Id. at 234.
In the present case, Young succeeded in removing the wallet from the premises
and from Morriss presence only by hitting Morris with the screwdriver and driving
away over Morriss leg. Had he not done so, Morris would have
turned off the ignition of the car, halting Youngs escape. As such,
[Youngs] use of force was necessary to accomplish the theft . . .
and was thus part of the robbery. Coleman v. State, 653 N.E.2d
481, 483 (Ind. 1995).
In Coleman, the defendant put some film canisters from a store into his
pocket and left the building. A manager followed him outside. Seeing
the film protruding from the defendants pocket, the manager asked the defendant whether
he had forgotten to pay for anything. The defendant pulled a knife
and threatened the manager. He escaped, was caught, tried and convicted of
robbery by use of force. We affirmed.
Similarly, in Cooper v. State, 656 N.E.2d 888 (Ind. Ct. App. 1995), the
perpetrator went into the victims house to try to convince victim to buy
items from him. As the defendant was leaving, he slipped a gun
from the victims back pocket. The victim pursued defendant onto the porch,
where they struggled. The struggle continued into the front yard. Defendant
escaped, was caught, tried and convicted of robbery by use of force.
Again, we affirmed. Id. at 890.
Young attempts to distinguish Eckelberry, Coleman, and Cooper on the basis that the
defendants in those cases exerted the force while the defendant remained on the
victims property, whereas Young exerted force once he was off Morriss land.
We think this position untenable.
We have previously held . . . that a [robbery by use of
force] is not fully effectuated if the person in lawful possession of the
property resists before the thief has removed the property from the premises or
from the persons presence. Coleman, 653 N.E.2d at 482 (emphasis added) (citing
Eckelberry, 497 N.E.2d at 234 (The evidence showed the force was used before
Eckelberry completed taking the automobile from the presence of Mrs. Bohannan.)). The
statute provides that the property must be taken from another person or from
the presence of another person. Ind. Code Ann. § 35-42-5-1 (West 1998).
A defendant may exert force off the victims land and still exert
the force in the victims presence. Many robberies occur in places never
owned by the victim, like parking lots.
A crime that is continuous in its purpose and objective is deemed to
be a single uninterrupted transaction. Eddy v. State, 496 N.E.2d 24, 28
(Ind. 1986). A robbery is not complete until the defendant asports the
property, or takes it from the possession of the victim. Id. (upholding
felony murder conviction where defendant killed victim after removing property from victims pockets,
but prior to taking property away with him); Neal v. State, 214 Ind.
328, 14 N.E.2d 590, 596 (1938) (defining asportation). Asportation continues as the
perpetrators depart from the place where the property was seized. See Coleman,
653 N.E.2d at 482; Eddy, 496 N.E.2d at 28. In short, when
the robbery and the violence are so closely connected in point of time,
place, and continuity of action, they constitute one continuous scheme or transaction.
Thompson v. State, 441 N.E.2d 192 (Ind. 1982); Stroud v. State, 272 Ind.
12, 395 N.E.2d 770 (1979).
Such is the case here. The snatching of money, exertion of force,
and escape were so closely connected in time (to sprint from house to
running car parked outside), place (from door to alley), and continuity (in stealing
money, then attempting to escape with it), that we hold Youngs taking of
property includes his actions in effecting his escape.
Whether bodily injury is serious has been held to be a matter of
degree and therefore a question reserved for the factfinder. Hill v. State,
592 N.E.2d 1229, 1231 (Ind. 1992). Here, a 69-year-old victim suffered a
fractured ankle and badly lacerated arms and legs as a result of the
robbery. (R. at 162-66.) His ankle was placed in an immobilizing
split for almost eight weeks. (R. at 256, 260.) He has
residual pain and difficulty walking. (R. at 138, 168.)
This is substantial probative evidence from which the factfinder could reasonably find serious
bodily injury beyond a reasonable doubt. See, e.g., Hill, 592 N.E.2d at
1231 (victims leg in splint for five weeks, missing work for four weeks
amounted to serious bodily injury); Hawkins v. State, 514 N.E.2d 1255, 1256 (Ind.
1987) (67-year-old victims broken arm, significant pain, and residual soreness amounted to serious
The Indiana Constitution demands that penalties be proportionate to the nature of the
offense. Ind. Const. Art. I, § 16. Much of the recent
case law interpreting Section 16 involves challenges to sentences enhanced according to the
habitual offender statute. Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993)
(citations omitted). In analyzing a disproportionality claim concerning an habitual offender enhancement,
we inquire into both the nature and gravity of the present crime as
well as the nature of the predicate felonies. Mills v. State, 512
N.E.2d 846 (Ind. 1987); Taylor v. State, 511 N.E.2d 1036 (Ind. 1987)).
The present crime is serious in nature. Young used force to escape
with the wallet, which resulted in serious bodily injury to an elderly victim.
The predicate felonies are similarly weighty. The State points out that
Young has been arrested thirty-eight times, sixteen of which were for felony offenses,
and convicted nineteen times, six of which were for felony offenses. (Appellees
Br. at 7 (citing R. at 89).) Relying on the gravity of
the present offense and the severity and numerosity of the predicate offenses, we
affirm Youngs sentence.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.