Ervin Mapp v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Nov 16 2017, 6:43 am

precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ervin Mapp, November 16, 2017

Appellant-Defendant, Court of Appeals Case No. 49A04-1704-CR-843

v. Appeal from the Marion Superior Court State of Indiana, The Hon. Lisa Borges, Judge Trial Court Cause No. Appellee-Plaintiff. 49G04-1604-F5-14925

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 49A04-1704-CR-843 | November 16, 2017 Page 1 of 5

Case Summary [1] Appellant-Defendant Ervin Mapp and Kiesha Upshaw had ended their long-

term relationship when Mapp arranged to meet with Upshaw to give her some

money that he owed to her. When Mapp and Upshaw met in a fast-food

restaurant parking lot, Mapp asked to use Upshaw’s telephone but refused to

return it to her despite repeated requests. Upshaw, still requesting the return of

her telephone, exited her vehicle and approached Mapp, who produced a knife

and stabbed her in the abdomen. When Upshaw fled on foot, Mapp reached

into Mapp’s vehicle and took her purse. The State charged Mapp with, and he

was convicted of, Level 2 felony robbery. Mapp contends that the State failed

to produce sufficient evidence to sustain his robbery conviction. According to

Mapp, the evidence admitted at trial supports, at most, convictions for theft and

battery. Because we disagree, we affirm.

Facts and Procedural History [2] Upshaw and Mapp dated for six years before ending their relationship in July of

2015. On April 17, 2016, Mapp called Upshaw and asked her to meet with him

the next day so that he could give her some money that he owed her. The duo

agreed to meet in a McDonald’s parking lot at 38th Street and Keystone Avenue

in Indianapolis but ended up driving to a nearby Taco Bell. Mapp approached

Upshaw as she was sitting in her vehicle and asked to use her mobile telephone.

Court of Appeals of Indiana | Memorandum Decision 49A04-1704-CR-843 | November 16, 2017 Page 2 of 5 [3] When Mapp finished, Upshaw asked for her telephone back. Mapp refused to

return the telephone, telling Upshaw that he needed it because he was going out

of town. Upshaw again told Mapp to return her telephone. Upshaw exited her

vehicle, stood in the parking lot behind Mapp, and again asked for her

telephone. Mapp reached into the back seat of his vehicle, as if to retrieve the

money he owed Upshaw, but “[i]n the blip of a second, he grabbed a knife and

stabbed [her] from behind[,]” in the lower abdomen. Tr. Vol. II p. 20. Upshaw

fled on foot and, as she looked back, saw Mapp reach into her vehicle and

remove her purse. [4] On April 21, 2016, the State charged Mapp with Level 5 felony battery and

Level 5 felony intimidation. On June 27, 2016, the State added a charge of

Level 2 felony robbery causing serious bodily injury. On September 19, 2016,

the State filed notice that it intended to have Mapp sentenced as a habitual

offender. Following a jury trial, the jury found Mapp guilty of battery and

robbery, after which Mapp admitted to being a habitual offender. On March

29, 2017, the trial court entered judgment of conviction on Level 2 felony

robbery and sentenced Mapp to thirty years of incarceration, enhanced twenty

years by virtue of his habitual offender status, with five years suspended to

probation.

Discussion and Decision [5] Mapp contends that the State produced insufficient evidence to sustain his

conviction for Level 2 felony robbery, contending that the record supports, at

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most, convictions for theft and battery. When reviewing the sufficiency of

evidence supporting a conviction, we will not reweigh the evidence or judge the

credibility of witnesses. Staton v. State, 853 N.E.2d 470, 474 (Ind. 2006). We

must look to the evidence most favorable to the conviction together with all

reasonable inferences to be drawn from that evidence. Id. We will affirm a

conviction if there is substantial evidence of probative value supporting each

element of the crime from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id. [6] In order to convict Mapp of Level 2 felony robbery, the State was required to

establish that he “knowingly or intentionally t[ook] property from another

person or from the presence of another person … by using or threatening the

use of force on any person; or … by putting any person in fear [and the robbery]

result[ed] in serious bodily injury to any person other than a defendant.” Ind.

Code § 35-42-5-1. Specifically, the State in this case charged Mapp with

“knowingly tak[ing] property, to-wit: cell phone and/or purse, from another

person or from the presence of another person, to-wit: Kiesha Upshaw, by

using or threatening the use of force, said act resulted in serious bodily injury to

Kiesha Upshaw, to-wit: extreme pain[.]” Appellant’s App. Vol. II p. 177. [7] Mapp argues, inter alia, that because he took Upshaw’s telephone from her

before using force, he merely committed theft and not robbery. Mapp’s

argument is without merit. As the Indiana Supreme Court has held, “‘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

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the premises or from the person’s presence.’” Young v. State, 725 N.E.2d 78, 81

(Ind. 2000) (citation omitted). Here, Upshaw was actively resisting Mapp’s

taking of her telephone and it was still in her presence when he stabbed her.

Upshaw repeatedly asked and/or told Mapp to return her telephone, exited her

vehicle, and approached him. Because Upshaw was still in Mapp’s presence

and actively resisting, the robbery was not yet fully effectuated when he stabbed

her. Put another way, while “[i]t 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[,]” id. at 80, that is precisely what

occurred in this case. Mapp’s argument in this regard is without merit, and we

therefore conclude that the State produced sufficient evidence to sustain his

conviction for Level 2 felony robbery.1 [8] We affirm the judgment of the trial court.

Robb, J., and Crone, J., concur.

1 Because we conclude that the State established that Mapp committed robbery with respect to Upshaw’s telephone, we need not separately address his argument regarding her purse. Moreover, because we have rejected Mapp’s argument that he could only be convicted of the theft of Upshaw’s telephone, we need not address his argument that his stabbing of her only supported a battery conviction.

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