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: ATTORNEYS FOR APPELLEE:

ERNEST P. GALOS GREGORY F. ZOELLER

South Bend, Indiana Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

RASHAAD MICHAEL HOGAN, )

)

Appellant- Defendant, )

)

vs. ) No. 71A03-1107-CR-336

)

STATE OF INDIANA, )

)

Appellee- Plaintiff, )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
2

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 lesserincluded 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 
3

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 already 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 
4

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:
5

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 § 35-42-5-1. 

The offense is a Class B felony if the defendant is armed with a deadly weapon or the 

robbery results in bodily injury to any person other than the defendant. Ind. Code § 35-

42-5-1(2). The issue, then, is whether a serious evidentiary dispute existed whereby the 

jury could have concluded that neither Hogan nor his compatriots1 were armed with a 

deadly weapon and that neither Davis nor McNish sustained bodily injury. 

Hogan contends “no significant evidence was produced regarding whether a 

deadly weapon was used as [the gun used] could have been a BB gun or something other 

than a real weapon.” Brief of Appellant-Defendant at 16. Incidentally, a pellet gun, a BB 

gun, and even an inoperable gun may constitute a deadly weapon. Davis v. State, 835 

N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied. “Whether a weapon is a deadly 

weapon is determined from a description of the weapon, the manner of its use, and the 

 

1 Under the rules of accomplice liability, all accomplices may be held equally liable for any of their 

compatriots’ actions which were a probable and natural consequence of their common plan. Collier v. State, 470 

N.E.2d 1340, 1342 (Ind. 1984). 
6

circumstances of the case.” Id. “The fact finder may look to whether the weapon had the 

actual ability to inflict serious injury under the fact situation and whether the defendant 

had the apparent ability to injure the victim seriously through use of the object during the 

crime.” Id. (quotation omitted). Hogan admitted to police, the transcript of which was 

admitted into evidence, that a silver gun was used which might have been a .45 caliber 

semi-automatic handgun. In addition, a substantial amount of evidence was presented 

that the gun was used multiple times to strike Davis and McNish, and was used to 

threaten to kill them as well. There was no serious evidentiary dispute that the gun which 

was frequently referred to at trial constitutes a deadly weapon.

‘“Bodily injury’ means any impairment of physical condition, including physical 

pain.” Ind. Code § 35-41-1-4. Substantial evidence was presented that the robbers struck 

Davis and McNish numerous times. Davis suffered multiple bruises; McNish’s ear bled, 

and for at least a time, his hearing in that ear was limited. While more detailed

information regarding the injuries of Davis and McNish would have been helpful, there 

was no serious evidentiary dispute whereby the jury could conclude that neither Hogan 

nor his compatriots were armed with a deadly weapon and that neither Davis nor McNish 

sustained bodily injury. The trial court did not abuse its discretion in refusing to instruct 

the jury regarding robbery as a Class C felony.

Criminal confinement as a Class B felony also inherently includes confinement as 

Classes C and D felonies. Confinement is by default a Class D felony, but is a Class C 

felony if it is committed by using a vehicle, and is a Class B felony if it is committed 
7

while a defendant is armed with a deadly weapon.2 Ind. Code § 35-42-3-3. There is no 

serious evidentiary dispute that Davis and McNish were confined in a vehicle, nor, as 

discussed above, that a defendant was armed with a deadly weapon. Therefore, the trial 

court did not err in refusing to instruct the jury of the lesser-included classes of criminal 

confinement.

II. Jury Instructions Provided

Hogan next argues the trial court erred in providing the jury with instructions that 

permitted his conviction if some jurors believed he committed the acts himself while 

other jurors believed that he aided, induced, or caused another person to commit them. A 

trial court’s instruction of the jury lies within the trial court’s discretion. Gantt v. State, 

825 N.E.2d 874, 877 (Ind. Ct. App. 2005).

It is well-settled that an accomplice is criminally liable for the acts done by his 

confederates which were a probable and natural consequence of their common plan. 

Collier, 470 N.E.2d at 1342. Stated differently, “[a]n accomplice need not act out each 

element of an offense as the acts of one accomplice are imputed to all.” Id. 

Similarly, it does not matter if some jurors believed Hogan satisfied certain 

elements of the offenses as the principal and other jurors believed he satisfied those same 

elements as an accomplice. So long as the jury believed that the State proved each 

required element beyond a reasonable doubt, Hogan’s convictions may stand. He is 

equally culpable regardless of whether he was the principal or an accomplice for any of 

these offenses. See id. Thus, the trial court did not abuse its discretion.

 

2

For the sake of clarity and brevity, we omit the other alternative elements, which are not relevant to this 

situation, that may be used to distinguish these classes of felonies.
8

III. Inappropriate Sentence

This court has authority to revise a sentence “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.” Ind. Appellate Rule 7(B). In making this 

determination, we may look to any factors appearing in the record. Roney v. State, 872 

N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. Nevertheless, the defendant bears 

the burden to persuade this court that his or her sentence is inappropriate. Childress v. 

State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as 

appropriate at the end of the day turns on our sense of the culpability of the defendant, the 

severity of the crime, the damage done to others, and myriad other factors that come to 

light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Hogan was 

convicted of four Class B felonies. The sentencing range for a Class B felony is six to 

twenty years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5. The 

trial court sentenced Hogan to 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.

As to the nature of the offenses, Hogan makes two arguments. First, the ordeal 

was not the “worst of the worst.” It was not, he argues, as horrendous for the victims as 

the State contends because neither of the victims sought medical treatment and because it 

lasted only about one hour and fifteen minutes at the most; it did not last several hours as 

the trial court stated. Br. of Appellant-Defendant at 12. While we agree with Hogan’s 

time estimation and that the evidence does not indicate these offenses led to serious 

bodily harm, the crimes committed were akin to a psychological horror – as Hogan and 
9

his compatriots tightly confined Davis and McNish in the trunk of a small car, repeatedly 

threatened to shoot and kill them and throw them into a river, and based on the erratic 

gun-wielding and violent behavior of Hogan and the others, Davis and McNish had every 

reason to fear that they would, in fact, be shot, killed, and thrown into the river. And 

although it did not last as long as the trial court mentioned, Hogan understates the harm 

to the extent he argues that one hour and fifteen minutes of confinement and violence is 

too short of a period in which one could inflict psychological harm. It is also significant 

that, but for the police officer’s keen observation and relentless pursuit, Hogan and his 

compatriots’ criminal jaunt would have continued even longer and it is likely it would 

have resulted in more serious harm – or even death – to Davis and McNish.3

Two, Hogan minimizes his role in the events. He contends that he did not wield 

the gun or strike Davis or McNish with the gun, and blandly states he was just a driver 

for a portion of the time and played an insignificant role in this group joyride. It is true 

that no part of the evidence indicates that Hogan led the group in violence or planning. 

However, the facts of this case include several points at which Hogan could have left the 

group – when they opted to take Davis’s car or when they opted to take Davis and 

McNish with them in the trunk, when they stopped the car and pulled Davis out to 

squeeze him into the back seat with three other attackers on their way to the first ATM, 

when they arrived at the first ATM, when they arrived at the second ATM, when they 

stopped to put Davis back into the trunk, or when the car eventually crashed. Instead, 

 

3 We also note that the nature of this conduct approximates kidnapping, a Class A felony, which carries a 

sentencing range of twenty to fifty years with an advisory sentence of thirty years, per count. See Ind. Code § 35-

42-3-2(a)(2) (“A person who knowingly or intentionally confines another person: . . . (2) while hijacking a vehicle;

. . . commits kidnapping, a Class A felony.”); Ind. Code § 35-50-2-4 (regarding sentencing for a Class A felony).
10

Hogan chose to drive the car at the beginning, knowledgeable that Davis and McNish 

were crammed in the trunk. Hogan remained with the group through each moment at 

which he could have walked away, and when the car crashed he ran from police on foot. 

Hogan’s somewhat passive participation, to put it mildly, does not warrant a more lenient 

sentence.

As to Hogan’s character, he highlights the following: he was cooperative with the 

investigation and provided accurate information, he had a difficult childhood, he was 

only eighteen years old at the time of the offenses, and while awaiting trial he sought 

employment and to further his education. We do not ignore these circumstances, and 

commend Hogan for his cooperation and efforts. However, the Pre-Sentence 

Investigation (“PSI”) report, prepared by the probation department to assist the trial court 

in sentencing Hogan, reveals much more. Specifically, it reveals Hogan’s consistent 

pattern of flouting the law, and dangerous and reckless behavior.

Hogan began drinking alcohol at the age of fourteen, and reported that he typically 

drinks about half a pint two to three times per week. He did not report a hiatus of his 

drinking habits following these offenses, and reportedly last consumed alcohol in April 

2011 (incidentally around the time that the PSI was completed). Perhaps even more 

disturbing than the age at which he began drinking, the frequency of his drinking, or his 

continued drinking even after these offenses, is the fact that he is still not of legal age to 

drink alcohol, until February 2012. He has been routinely ignoring state liquor laws.

Hogan also admits that he began using marijuana at the age of fourteen and uses 

about four grams every day. He last used marijuana – again – in April 2011. Hogan also 

twice experimented with ecstasy pills at the age of sixteen. His frequent substance abuse 
11

and defiance of the law is especially troublesome because it might have been 

instrumental in leading to these offenses, as he and his compatriots smoked five grams of 

marijuana and drank three fifths of a bottle of alcohol before they embarked on this 

rampage. His only reported substance abuse treatment attempt was mandated while he 

was in the Indiana Boy’s School. Although he reportedly completed that treatment 

program, he admitted that it did not help him kick his habit.

In 2003, as a juvenile, Hogan was arrested for intimidation and criminal 

recklessness, both Class D felonies if committed by an adult. In 2004, Hogan was 

arrested for battery as a Class A misdemeanor.

As an adult, Hogan was arrested on two separate occasions for never having 

received a license. On one of these occasions he failed to yield to an emergency vehicle. 

We concede that these relatively minor driving violations would not usually provide 

significant support for enhanced and consecutive sentences, but here they are additional 

examples of Hogan’s unrelenting disrespect for the rule of law even after numerous 

opportunities to change his ways. These driving offenses are also highly relevant because 

Hogan admits to driving Davis’s car during this double robbery and yet his PSI indicates 

he was never licensed to drive.

In June 2009, he was convicted of receiving stolen property as a Class A 

misdemeanor. He was imprisoned for fifty-seven days and placed on probation, which he 

violated by committing the offenses which are the subject of this appeal.

Hogan’s PSI demonstrates that his character is not so upstanding that his present 

sentence is inappropriate. We conclude, in light of the nature of Hogan’s offenses and 

his character, that the trial court’s sixty-five year sentence is not inappropriate.
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Conclusion

The trial court did not abuse its discretion in refusing Hogan’s requested jury 

instructions regarding 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.

Affirmed.

NAJAM, J., and VAIDIK, J., concur.