Paul Lundy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 27 2019, 5:46 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew R. Falk Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paul Lundy, February 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1370 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie LeMay- Appellee-Plaintiff. Luken, Judge Trial Court Cause No. 32D05-1705-F3-21

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1370 | February 27, 2019 Page 1 of 8

Statement of the Case [1] Paul Lundy appeals his conviction for robbery, as a Level 3 felony, and his

three convictions for contributing to the delinquency of a minor, as Class A

misdemeanors, following a jury trial. Lundy raises a single issue on appeal,

namely, whether the State presented sufficient evidence to support his

convictions. We affirm Lundy’s convictions, but we remand with instructions

for the trial court to correct a sentencing error.

Facts and Procedural History [2] S.C. and C.R., who were both teenagers in Avon, met through an online

messaging application. The two had never met in person, but they had been

texting each other for a few months. On May 30, 2018, C.R. texted S.C. S.C.

was “bored,” so she decided to hang out with C.R. Tr. Vol. III at 15. C.R.

went over to S.C.’s house, where he met S.C. and S.C.’s friend E.M. The three

teenagers played video games and watched movies. The three then decided to

meet some other friends at a neighborhood pool. Among the individuals they

met at the pool was J.F., Lundy’s nephew, who was a long-time friend of both

S.C. and E.M. After a while, S.C., C.R., E.M., and J.F. left the pool and went

back to S.C.’s house to play video games and listen to music. Later, J.F. left

S.C.’s house and returned to the house that he shared with his uncle, Lundy.

C.R., E.M., and S.C. remained at S.C.’s house. At some point, E.M. and S.C.

“went out to the back porch.” Tr. Vol. II at 160.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1370 | February 27, 2019 Page 2 of 8 [3] After J.F. had left S.C.’s house, he received a phone call from S.C. and E.M.

During the call, S.C. and E.M. told J.F. that they had “a plan to get some

money.” Id. at 236. Id. J.F. then “automatically” went to talk to Lundy to tell

him that C.R. “had money on him and that we’re gonna take it.” Id. [4] In the meantime, C.R. was still at S.C.’s house, and S.C. and E.M. were on the

back porch. C.R. got bored and decided to leave. When he informed S.C. and

E.M. that he planned to leave, they asked C.R. if he would give them a ride to

J.F.’s house. C.R. agreed, and C.R. drove his truck while S.C. and E.M. rode

as passengers. C.R., who had just met J.F. earlier that day, did not know how

to get to J.F.’s house, so S.C. and E.M. gave him directions. S.C. and E.M.

directed C.R. to the intersection of Maple Drive and Venable Drive. When

C.R. arrived at the intersection, he stopped the car, and S.C. and E.M. told

C.R. that they were going to call J.F. to “see which house it was.” Id. at 163.

C.R. was “kinda confused,” and he thought it was “odd” that S.C. and E.M.

did not have a specific house that they wanted him to stop at and that they

needed to call to figure out which house was J.F.’s. Id. While C.R. believed

that S.C. and E.M. were calling J.F. to determine which house was his, S.C.

and E.M. had actually sent a text to J.F. to let J.F. know “that they were there.”

Id. at 236. At that point, Lundy “got ready and then left” J.F.’s house. Id. [5] After C.R. had parked the car, and while he was waiting for further directions

from S.C. and E.M., he saw a man walking toward the car. The man walked

up to the car, reached into the window, and pulled the keys out of the ignition.

S.C. and E.M. got out of the car and ran down the street in the direction from

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which the man had come. The man pointed a small handgun at C.R.’s ribs and

demanded that C.R. give him his shoes, cash, and necklace. C.R. complied,

and the man walked away. [6] C.R. immediately called the police. Police officers responded, and they used a

police canine to track the man. The canine tracked the man to the house that

Lundy shared with J.F. Officers also found S.C., E.M., and J.F. in a vehicle in

the driveway of that house. A few days later, officers went to C.R.’s house.

Officers showed C.R. a photo array and asked him to identify the man who had

robbed him. C.R. identified Lundy from the pictures. [7] The State charged Lundy with one count of robbery, as a Level 3 felony (Count

1); three counts of contributing to the delinquency of a minor, as Class A

misdemeanors (Counts 2-4);1 and with being a habitual offender (Count 5). The

trial court held a bifurcated jury trial on April 2 and 3, 2018. At the conclusion

of the first phase of the trial, the jury found Lundy guilty of Counts 1 through 4.

Lundy then stipulated to being a habitual offender. The trial court entered

judgment of conviction against Lundy on all five counts and sentenced him to

an aggregate term of twenty years in the Department of Correction.2 This

appeal ensued.

1 The three teenagers had all pleaded guilty to theft, as a Level 6 felony, for their participation in the offense against C.R. 2 The trial court sentenced Lundy to twenty years in the Department of Correction for the Level 3 felony conviction and to concurrent terms of 180 days for each of the Class A misdemeanor convictions.

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Discussion and Decision Sufficiency of the Evidence

[8] Lundy contends that the State failed to present sufficient evidence to support his

convictions. Our standard of review on a claim of insufficient evidence is well

settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). [9] To convict Lundy of robbery, as a Level 3 felony, the State was required to

prove that Lundy had knowingly or intentionally taken property from C.R. by

using or threatening the use of force while armed with a deadly weapon. Ind.

Code § 35-42-5-1(a) (2018). And to convict Lundy of three counts of

contributing to the delinquency of a minor, as Class A misdemeanors, the State

was required to prove that Lundy was over eighteen years of age and that he

had knowingly or intentionally encouraged, aided, induced, or caused J.F.,

S.C., and E.M. to commit an act of delinquency. I.C. § 35-46-1-8(a). [10] On appeal, Lundy asserts that the evidence is insufficient “to establish that it

was [Lundy] who committed the offenses.” Appellant’s Br. at 10. Specifically,

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he asserts that the evidence demonstrates that the “case was built upon a web of

statements, most of which were internally contradictory or incompatible with

the other witnesses’ testimony.” Id. at 8. Accordingly, Lundy argues that the

evidence establishes “that a co-conspirator was as likely as [Lundy] to have

been the perpetrator of the robbery.” Id. at 9. In essence, Lundy contends that

S.C., E.M., and J.F. were not credible witnesses and that another witness’

testimony “strongly suggests” that J.F. had robbed C.R. instead of Lundy. Id.

at 13. But Lundy’s argument is merely a request that we reweigh the evidence

and assess the credibility of the witnesses, which we cannot do. See Love, 73

N.E.3d at 696. [11] The evidence most favorable to the convictions demonstrates that Lundy

worked with S.C., J.F., and E.M.—all of whom were minors—to rob C.R.

Indeed, J.F. testified that, after he had returned home from S.C.’s house, S.C.

and E.M. called him to tell him that they had “a plan to get some money.” Tr.

Vol. II at 236. J.F. also testified that he had talked to Lundy about S.C. and

E.M.’s plan to get money, that the plan was for them to take money from C.R.,

and that Lundy was part of the plan. J.F. testified that S.C. and E.M. had

texted him when they arrived at the intersection of Maple Drive and Venable

Drive, which was near his house, and that “that’s when [Lundy] got ready and

then left” his house. Id. J.F. further testified that, after Lundy had returned to

the house, Lundy told J.F. that he “forgot to give the keys back to” C.R. Tr.

Vol. III at 55. Further, E.M. and C.R. both testified that Lundy was the person

who had robbed C.R. And C.R. had identified Lundy as the person who had

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robbed him from a photo array a couple of days after the robbery. Accordingly,

we hold that the State presented sufficient evidence to support Lundy’s

conviction for robbery, as a Level 3 felony, and his three convictions for

contributing to the delinquency of a minor, as Class A misdemeanors.

Sentencing [12] Although we affirm Lundy’s convictions, we must remand to the trial court to

correct a sentencing error. See Comer v. State, 839 N.E.2d 721, 726 (Ind. Ct.

App. 2005) (holding that it is our duty to correct sentencing errors, sua sponte, if

necessary). The trial court has broad discretion in sentencing, but “it must act

within statutorily prescribed limits.” Lockhart v. State, 671 N.E.2d 893, 904

(Ind. Ct. App. 1996). Here, during the sentencing hearing, the trial court stated

that Lundy’s twenty-year sentence was the court’s “specific sentence on

robbery[,] as a Level 3 felony.” Tr. Vol. III at 163. And in its sentencing order

on Count 1, the trial court sentenced Lundy to twenty years for his conviction

for robbery, as a Level 3 felony. However, that sentence is four years above the

sixteen-year maximum sentence permitted by statute. See I.C. § 35-50-2-5(b).

Additionally, the trial court’s order did not include any sentence for Lundy’s

habitual offender enhancement.3 But a trial court “shall” sentence a person

found to be a habitual offender to an additional, nonsuspendable term that is

3 During the sentencing hearing, the trial court did not mention any sentence for the habitual offender enhancement. And the judgment of conviction does not include a sentence for that enhancement. However, the abstract of judgment includes a sentence of one day suspended for Count 5.

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between six years and twenty years for a person convicted of a Level 3 felony.

I.C. § 35-50-2-8(i)(1). [13] There is no indication of how much of Lundy’s twenty-year sentence is

attributable to his Level 3 felony conviction and how much is attributable to the

nonsuspendable portion that Lundy must serve for his habitual offender

conviction. Thus, we must remand to the trial court with instructions for the

court to impose a sentence of between three and sixteen years for the Level 3

felony conviction and with a habitual offender enhancement of not less than six

years, to be identified and imposed separately. [14] Affirmed and remanded with instructions.

Pyle, J., and Altice, J., concur.

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