Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 1 of 6 

### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Valerie K. Boots Marion County Public Defender Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Charles Sharpe, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff

. August 15, 2016 Court of Appeals Case No. 49A02-1601-CR-52 Appeal from the Marion Superior Court The Honorable Kurt Eisgruber, Judge Trial Court Cause No. 49G01-1408-FA-39382

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 2 of 6 

# Case Summary
Charles Sharpe was convicted of Class A felony attempted robbery for shooting a man that he met to buy a cell phone that had been posted on Craigslist. He now appeals, arguing that there was a fatal variance between the allegations in the charging information and the proof at trial. Finding no prejudice from any variance, we affirm. 

# Facts and Procedural History

[1] In May 2014, Carlos Rodas posted an ad vertisement on Craigslist to sell an iPhone 5S. Rodas received a text mess age from Sharpe, who indicated that he was interested in buying the phone. Rodas asked Sharpe to meet him at a neutral location in Indianapolis, but Sha rpe said he could not leave his house because he was watching his baby an d asked Rodas to meet him near 37th Street and Linwood Avenue. Rodas drove to that location, and Sharpe got in the front passenger seat of Rodas’s car. After inspecting the phone, Sharpe said he would buy it. Sharpe told Rodas that he was going to give him extra money for driving to meet him and asked Rodas if he had any change in his wallet. As Rodas reached for his wallet, Sharpe pulled out a gun and pointed it at Rodas. Sharpe told Rodas that he wanted his wa llet, phone, and keys. After taking these items, Sharpe opened the car doo r and started to run away. Rodas followed him. Rodas tried to grab his keys from Sharpe, and both men fell to the ground, where they struggled for th e gun. Sharpe pulled the trigger and shot Rodas, but Rodas did not feel the gun shot. Sharpe started to walk away,Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 3 of 6 but Rodas followed him and reached for th e gun. Sharpe shot Rodas a second time, and this time Rodas fell to the grou nd. As Sharpe ran off, he shot Rodas a third and final time. Sharpe did not take any of Rodas’s possessions with him.

[2] Rodas was taken to the hospital where he underwent surgery. Sharpe later gave a statement to the police wherein he ad mitted that he had a gun and that his plan was to take whatever Rodas had be cause he needed money. Tr. p. 112.

[3] The State initially charged Sharpe with Co unt I: Class A felony robbery (serious bodily injury). The State later added Count II: Class A felony attempted robbery (serious bodily inju ry). The State dismissed Count I, and a bench trial was held on Count II. The trial cour t found Sharpe guilty on Count II and sentenced him to thirty years, with twenty-two years executed.

[4] Sharpe now appeals.


# Discussion and Decision

[5] Sharpe contends that there was a fatal va riance between the allegations in the attempted-robbery charging information and the proof at trial. Because the charging information advises the defendan t of the accusations against him, the allegations in the pleading an d the evidence used at tria l must be consistent with one another. Blount v. State , 22 N.E.3d 559, 569 (Ind. 2014). A variance is an essential difference between the two. No t all variances, however, are fatal. Id. Relief is required only if the variance: (1) misled th e defendant in preparing aCourt of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 4 of 6 defense, resulting in prejudice, or (2) l eaves the defendant vu lnerable to future prosecution under the same evidence. Id.

[6] Here, the charging information for Cla ss A felony attempte d robbery provides:
Charles Sharpe, on or about May 23, 2014, did attempt to commit the crime of robbery, which is to knowingly take property, to-wit: a cellular telephone from anoth er person or the p resence of another person, to-wit: Carlos Rodas, by using orthreat[en]ing the use of force, towit: shooting at and against the person of Carlos Rodas , said act resulting in serious bodily injury to Carlos Rodas, to-wit: multiple gunshot wounds, wh ich conduct constituted a substantial step toward the commis sion of said crime of Robbery

. . . . Appellant’s App. p. 33 (emphasis adde d). Sharpe argues that the evidence presented at trial did not show that Sha rpe attempted to take the phone from Rodas by shooting him; rather, “the ev idence consistently showed that the shooting occurred only as Sharpe was attempting to get away from the scene.” Appellant’s Br. p. 10 (empha sis added). Sharpe claims that he was prejudiced because “[i]f counsel had understood before trial that the State planned only to prove the shooting occurred no t in the taking of the cell phone, but in effecting Sharpe’s escape, counsel could have mounted a different defense.” Id. at 12. 1

[7] To the extent there was a variance, Sharp e cannot show prejudice as a result of not being able to prepare a defense that he shot Rodas only while escaping.

1 Sharpe does not argue that he was left vulnerable to future prosecution under the same evidence. See Blount , 22 N.E.3d at 569. In any event, we find that Sh arpe is protected from future prosecution.Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 5 of 6 The Indiana Supreme Court addressed a similar issue in Young v. State , 725 N.E.2d 78 (Ind. 2000). There, the de fendant entered the victim’s home under the guise of selling food stamps. The de fendant snatched the victim’s wallet and ran to his car, which he left running in the alley. The victim pursued the defendant and grabbed on to the windsh ield. The defendant hit the victim’s knuckles with a screwdriver, but the victim continued to hang on as the defendant drove down the a lley. Eventually the friction from the pavement wore through the victim’s shoes, and he fell off the car. As he sped away, the defendant ran over the victim’s leg, fr acturing his ankle. The defendant was convicted of Class A felony robbery.

[8] On appeal, the defendant argued that he did not commit Class A felony robbery—but rather only th eft—because “the force was used to accomplish his escape, not take the property.” Id. at 80. Our Supreme Court rejected this argument, reasoning:

A crime that is continuous in it s purpose and objective is deemed to be a single uninterrupted tr ansaction. A robbery is not complete until the defendant aspo rts the property, or takes it from the possession of the victim . Asportation continues as the perpetrators depart from the plac e where the property was seized. In short, when the robbery an d the violence are so closely connected in point of time, place, and continuity of action, they constitute one continuous scheme or transaction.

[9] Id. at 81 (quotations and citations omitted) . Accordingly, the Court found that because the “snatching of money, exertion of force, and escape were so closely connected in time (to sprint from hous e to running car parked outside), placeCourt of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-52 | August 15, 2016 Page 6 of 6 (from door to alley), and continuity (i n stealing money, then attempting to escape with it),” “we hold [that] Young’s taking of property includes his actions in effecting his escape.” Id.

[10] The same can be said here, too. That is , the attempt to take Rodas’s phone, the shooting, and the escape were so cl osely connected in time, place, and continuity that Sharpe’s attempt to take Rodas’s phone included his actions in effecting his escape. Accordingly, even if Sharpe had prepared for and made the defense that he only shot Rodas whil e escaping (as opposed to while trying to take Rodas’s phone), it would not have been successful according to Young

. Finding no prejudice from any variance between the allegations in the charging information and the proof at trial, we affirm the trial court.

[11] Affirmed.
Baker, J., and Najam, J., concur.