Denise Hoskins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Jun 08 2018, 5:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Anthony S. Churchward Curtis T. Hill, Jr. Deputy Public Defender Attorney General Anthony S. Churchward, P.C. Fort Wayne, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Denise Hoskins, June 8, 2018 Appellant-Defendant, Court of Appeals Case No. 02A05-1711-CR-2649 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1601-F3-1

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 02A05-1711-CR-2649 | June 8, 2018 Page 1 of 4

Case Summary [1] Denise Hoskins appeals her conviction for level 3 attempted robbery following

a jury trial. Hoskins argues that there was insufficient evidence to support her

conviction. Finding that the evidence was sufficient, we affirm.

Facts and Procedural History [2] The evidence most favorable to the verdict shows that on January 5, 2016,

Hoskins attempted to leave a J.C. Penney store without paying for clothes that

she was carrying. After walking through the store doors and triggering the store

alarm, Hoskins was stopped by one of J.C. Penney’s loss prevention officers,

Kimberly Blair. Hoskins tried to escape by running past Blair, who grabbed her

arm. Hoskins threw the clothes outside the store, and Blair tried to handcuff

her. Blair was only able to secure one handcuff before the two fell to the

ground in a scuffle. Hoskins grabbed Blair’s hair and wouldn’t let go, even as

other store workers attempted to restrain her. After a mall security officer

arrived on scene, Hoskins stopped resisting and was escorted to the J.C. Penney

loss prevention office until the police arrived. [3] In addition to theft and battery, the State charged Hoskins with level 3 felony

attempted robbery. The State subsequently dismissed the theft and battery

charges. At trial, the jury found Hoskins guilty of attempted robbery, and she

was sentenced to fifteen years. This appeal ensued.

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Discussion and Decision [4] Hoskins challenges the sufficiency of the evidence supporting her conviction.

In reviewing an insufficient evidence claim, we do not reweigh the evidence or

judge the credibility of witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). Rather, we consider only the evidence that supports the verdict and the

reasonable inferences arising therefrom. Id. “We will affirm if there is

substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt.” Id. [5] Indiana Code Section 35-42-5-1 provides in pertinent part that a person who

knowingly or intentionally takes property from another person or from the

presence of another person by using or threatening the use of force on any

person commits robbery, a level 3 felony if it results in bodily injury to any

person other than the defendant. “A person attempts to commit a crime when,

acting with the culpability required for commission of the crime, the person

engages in conduct that constitutes a substantial step toward commission of the

crime.” Ind. Code § 35-41-5-1. [6] Hoskins concedes that she intentionally took a substantial step toward taking

the clothes out of the store without paying. She also concedes that force was

used that resulted in bodily injury to Blair. However, she argues that the

evidence does not show that she used any force or threat of force to take the

clothing from the store, and thus at most she was guilty of theft. Hoskins’s

argument ignores the principle that “[i]f the use of force is necessary to

accomplish the theft and elude the person in possession of the property, it is Court of Appeals of Indiana | Memorandum Decision 02A05-1711-CR-2649 | June 8, 2018 Page 3 of 4

part of the robbery.” Cooper v. State, 656 N.E.2d 888, 889 (Ind. Ct. App. 1995).

Here, the evidence showed that Hoskins used force in an unsuccessful attempt

to elude Blair. This force was therefore a part of the attempted robbery.1

Accordingly, we affirm Hoskins’s conviction. [7] Affirmed.

Bailey, J., and Brown, J., concur.

1 An abandonment defense by Hoskins would likely not have succeeded at trial. To successfully assert an abandonment defense, the decision to withdraw from a crime must be voluntary and in no way attributable to extrinsic factors that increase the odds of detection or make a crime more difficult. Jones v. State, 87 N.E.3d 450, 457 (Ind. 2017). Thus, a reasonable factfinder could likely find that the altercation with Blair was an extrinsic factor that hindered the completion of the crime.

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