Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any c ourt except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE: JEFFREY G. RAFF GREGORY F. ZOELLER Deputy Public Defender Attorney General o f Indiana Fort Wayne , Indiana KYLE HUNTER Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS O F INDIANA

DESHAUN RICHARDS , ) ) Appellant

- Defendant, ) ) vs. ) No. 02A03

- 1211

- CR

- 467 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr. , Judge Cause No. 02D06

- 1202

- FB

- 30

June 11, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION
BRADFORD, Judge2

During the afternoon hours o f February 10, 2012, Appellant

- Defendant Deshaun Richards and another man robbed seventy

- year - old Jimmie Adkins at gunpoint. Richards was subsequently c harged with and convicted of Class B felony robbery and Class A misdemeanor carrying a handgun without a license. At sentencing, t he trial court merged Richards’s conviction for Class A misdemeanor carrying a handgun without a license into his conviction for Class B felony robbery. The trial court sentenced Richards to a term of twelve years, with ten years executed and two years suspended to probation. On appeal, Richards contends that the evidence is insufficient to sustain his conviction for Class B f elony robbery and that the sentence imposed by the trial court is inappropriate in lig ht of the nature of his offense and his character. Concluding that the evidence i s sufficient to sustain Richards’s conviction and that his sentence is not inappropriate , we affirm.

FACTS AND PROCEDURAL HISTORY During the afternoon hours o f February 10, 2012, seventy

- year - old Adkins was outside working in the trunk of his vehicle. Adkins looked up from his work and noticed Richards and another man walking through a gr oup of children that were getting off of the school bus. Adkins acknowledged the men before returning to his work. A few moments later, the men approached Adkins from behind. Richards put a gun to Adkin s’s side and told Adkins, “ [I] f you don’t give me the money, I shoot you.” Tr. p. 20. Adkins looked Richards in the face and said, “I can’t, got no money.” Tr. p. 16. Adkins observed Richards’s “full” face before Richards instructed Adkins to “turn [his] head.” Tr.
p p . 23, 16. Adkins complied with this instruction. While Richards held Adkins at gunpoint,3

the other man searched Adkins, taking a cell phone and a pack of cigarettes. As the men were leaving, the second man told Adkins , “ [Y] ou can’t call the police because I got the cell phone.” Tr. p . 20. After Richards and the other man left, Adkins notified police of the robbery. Adkins
gave the investigating officer a detailed description of both Richards and the gun used in the robbery. With the help of other officers, t he investigating offic er subsequently located Richards, who matched the description given by Adkins. The investigating officer subsequently escorted Adkins to the location where Richards was found for the purpose of determining whether Adkins could identify Richards as the ind ividual who had robbed him. Once at this location, police brought six men out, one by one. One of these men was Richards

. Adkins recognized Richards and identified him as the man who had held him at gunpoint. On February 1 6 , 20 12 , the State charged Richards with Class B felony robbery

. 1 On September 17, 2012, the State charge d Richards with Class A misdemeanor carrying a handgun without a license. 2 A jury trial was conducted on October 4, 2012

. At trial, Adkins provided detailed description s of both Richards and the gun used during the robbery. Th ese description s were consistent with the description s Adkins gave to the investigating officer shortly after the robbery occurred. In addition, Adkins again identified Richards as the man who had held him at gunpoint. Adkins also identified the

1 Ind. Code § 35

- 42

- 5

- 1. 2 Ind. Code §§ 35

- 47

- 2

- 1 and 35

- 47

- 2

- 23.4

jacket that Richards was wearing at the time of the robbery , and the gun used during the

co mmission of the robbery. Both of these items were recovered from the home in which Richards was found shortly after th e robbery occurred.
A t the conclusion of the presentation of the evidence, the jury found Richards guilty as charged. During the October 26, 2012 sentencing hearing , the trial court merged Richards ’s Class A misdemeanor carrying a handgun without a lic ense conviction into his Class B felony robbery conviction . The trial court sentenced Richards to a term of twelve years of incarceration with two years suspended to probation. This appeal follows

. DISCUSSION AND DECISION I. Sufficiency of the Evidenc e Richards contends that the evidence is insufficient to sustain his conviction for Class B felony robbery

. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. 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. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact

- finder could find the elements of the crime proven beyond a reasonable dou bt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State , 867 N.E.2d 144, 146

- 47 (Ind. 2007 ) (citations, emphasis, and quotations omitted). “In essence, we assess only whether the verdict could be reached based on5

reasonable inferences that may be drawn from the evidence presented.” Baker v. State , 968 N.E.2d 227, 229 (Ind. 2012). Upon review , appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State , 768 N.E.2d 433, 435 (Ind. 2002). Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the resolution of which is within the province of the trier of fact.” Jordan v. State , 656 N.E.2d 816, 818 (Ind. 1995). Indiana Code section 35

- 4 2

- 5

- 1 provides, in relevant part, that a “person who knowingly or intentionally takes property from another person or from the pres ence of another person ... while armed with a deadly weapon” c ommits Class B felony robbery. In challenging the sufficiency of the evidence presented at trial, Richards claims that the stress of the robbery coupled with the allegedly suggestive nature of th e identification procedures used by police makes Adkins’s identification of Richards unreliable. Specifically, Richards argues that the identification procedure utilized by police

— which included showing Adkins six men, one of whom was Richards , one by one

— w as unduly suggestive because it indicated that the police believed that one of the individuals presented to Adkins had committed the robbe ry . Richards, however, does not present any authority supporting his claim that the procedure used by the police wa s unduly suggestive so as to make Adkins’s
identification of Richards unreliable , and the record indicates that Adkins’s identification of Richards was certain and consistent at all times relevant to the instant appeal

. The record demonstrates that Adkins was able to identify Richards both shortly after the robbery took place and at trial, testifying that he s aw Richards’s “ full face” on multiple6

occasions before and during the robbery . Tr. p. 23. Adkins first saw Richards and the other man when he looke d up from working on his vehicle and saw the men walking through a group of children as the children got off of a school bus. Adkins acknowledged the men before turning his attention back to his work. Soon thereafter, Adkins felt a gun “in [his] side” an d heard Richards t ell him to “give [him] money

. ” Tr. p. 16. Adkins looked Richards in the face and said, “I can’t, got no money.” Tr. p. 16. Adkins got a good look at Richards’s
face before he complied with Richards ’s instruct ion for Adkins to “turn [h is] head

. ” Tr. p. 16. After Richards and the other man left, Adkins notified police of the robbery. Adkins
gave the investigating officer detailed description s of both Richards and the gun used during the robbery. The investigating officer subsequent ly escorted Adkins to the location where Richards, who , again , matched the description given by Adkins, was found. Once at this location, police brought six men , one of whom was Richards , out one by one. Adkins recognized Richards and identified Richards as the man who had held him at gunpoint. Furthermore, at trial, Adkins provided detailed description s of both Richards and the gun used during the robbery

. Th e s e description s w ere consistent with the descriptions Adkins gave to police shortly after th e robbery occurred. Adkins again identified Richards as the man who had held him at gunpoint. He also identified the jacket that Richards was wearing at the time of the robbery and the gun used during the course of the robbery , both of which were recover ed from the home in which Richards was found shortly after the robbery occurred.7

Upon review, we conclude that t he evidence most favorable to the jury’s verdict demonstrates that Richards, while armed with a deadly weapon, knowingly or intentionally took property from Adkins. Nothing in the record indicates that Adkins’s identification of Richards was unreliable or was influenced in any way by the allegedly incriminating identification procedures used by police . The record demonstrates that Adkins observ ed Richards’s entire face multiple times , and his various identification s of Richards w ere certain and consistent. R ichards ’s claim to the contrary amounts to an invitation to reweigh the evidence, which we will not do. Stewart , 768 N.E.2d 433 at 435.
II. Appropriateness of Sentence Richards also contends that the sentence imposed by the trial court is inappropriate in light of the nature of his offense and his character. In arguing that his sentence is inappropriate, Richards argues that his “twelve (12) year sentence with ten (10) years executed” should be reduced “to the advisory sentence of ten (10) years with six (6) years executed.” Appellant’s Br. p. 6. Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence authorized by s tatute 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.” In analyzing such claims, we “‘concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant’s character.’” Paul v. Stat e , 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting Brown v. State , 760 N.E.2d 243, 247 (Ind. Ct. App. 2002),8

trans. denied ). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State , 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). With respect to the nature of his offense, Richards acknowledges that armed robbery is a serious matter and that the armed robbery was traumatizing to the seventy

- year - old victim. Richards, however argues that his offense do es “not appea r to be more aggravating than one would expect.” Appellant’s Br. p. 6. Adkins, however, testified that he was severely impacted by Richards’s criminal acts, claiming that he was “scared to death” by Richards’s actions. Tr. p. 22. With respect to his ch aracter, Richards acknowledges that his criminal history includes four juvenile adjudications, two of which would have been felonies if committed by an adult

. Richards nonetheless argues that his twelve

- year sentence is inappropriate because he was only ei ghteen at the time he committed the instant offense, and the instant offense is his first adult conviction. T he record demonstrates that Richards has an ongoing disregard for the law. This disregard for the law dates back to when Richards was eleven year s old. Richards ’s prior juvenile adjudications include juvenile adjudications for actions which, if committed by an adult, would constitute Class C felony battery and Class D felony criminal trespass. His criminal history also includes two juvenile adjud ications for actions which, if committed by an adult, would constitute Class A misdemeanor carrying a handgun without a license. In addition, Richards’s criminal behavior appears to be escalating in nature , and several of his criminal actions include the p ossession and /or use of a firearm. In summary, Richards robbed a seventy

- year - old man at gunpoint. The victim was9

traumatized by Richards’s actions. Richards’s criminal record and his instant actions demonstrate a propensity to carry a handgun without a license and to use the handgun in the commission of other criminal acts

. His criminal behavior also appears to be escalating in
nature. In light of these facts, we cannot say that Richards’s twelve

- year sentence is inappropriate. The judgment of th e trial court is affirmed. RILEY, J., and BROWN, J., concur.