Romero v. State

          Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-1801-F3-6

          ATTORNEY FOR APPELLANT Peter C. Soldato Goshen, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Mitzy J. Romero appeals her conviction for level 3 felony robbery while armed with a deadly weapon. She asserts that the trial court erred in denying her motion for judgment on the evidence because the State failed to prove that she took property from the victim. Because robbery may be proven with evidence establishing that a defendant took property from another person or from the presence of another person, we conclude that the evidence is sufficient to support her conviction, and therefore we affirm.

         Facts and Procedural History

         [¶2] On October 10, 2017, seventeen-year-old C.M. saw a Facebook post authored by her friend Lashi Lewis, advertising that Lewis wanted to sell an iPhone for $180.00. C.M. commented on the post that she was interested in buying the phone. Lewis contacted C.M. through a private Facebook message, and the two agreed to meet at the Life School in Elkhart after C.M. got off work. During their communication, Lewis asked whether C.M. would be coming by herself or with another person. C.M. told Lewis that she would be alone. Shortly before the meeting was to take place, Lewis telephoned C.M. to change the meeting location to Studebaker Park in Elkhart.

         [¶3] When C.M. arrived at the park, she parked next to Lewis's car. C.M. Observed Lewis and a passenger in Lewis's car. C.M. and Lewis exited their vehicles. Lewis told C.M. that she did not have the phone with her but that her boyfriend had it and he wanted a picture of the money. C.M. thought that was strange and initially declined to give Lewis the money. About five minutes passed, and Lewis said, "[M]y boyfriend's not coming unless I send him a picture of the money." Tr. Vol. 2 at 79. C.M. gave Lewis $180.00 in cash so that Lewis could take a picture of it. Lewis placed the money on the hood of her car. Lewis took out her phone to take a picture, but it seemed to C.M. that Lewis was just pretending to take the picture.

         [¶4] C.M. began to consider how she was going to get her money back from Lewis. Lewis grabbed the money off the car hood and Lewis's passenger exited the vehicle. The passenger pointed a handgun at Lewis, and said, "[G]ive me the money, bro." Id. at 80. The passenger was wearing a hoodie, and although the hood obscured the person's face, C.M. recognized the voice as Romero's. Romero attended the same school as C.M. and Lewis, and C.M. knew that Lewis and Romero were friends. By that time, C.M. realized that "something was gonna happen" and thought, "you guys gotta be kidding me right now." Id. at 80. C.M. was "really mad" because she knew she was "about to get robbed." Id. at 81. Lewis asked Romero, "[A]re you serious, bro?" Id. Lewis handed Romero the money, and Romero ran toward a nearby elementary school. Lewis told C.M. that she was going after Romero and to wait for her. However, C.M. thought it best to leave. As she was driving home, she phoned her mother and told her that she had been robbed. Id. at 83. C.M.'s mother called the police.

         [¶5] Police interviewed C.M. and Lewis. Sometime after Lewis was interviewed, her mother contacted C.M.'s mother and paid her $180.00, all without C.M.'s knowledge.

         [¶6] On January 8, 2018, the State charged Romero with level 3 felony robbery while armed with a deadly weapon, alleging that she "did knowingly take property, to wit: U.S. currency, from another person, to wit: C.M., by using or threatening the use of force on any person, while [Romero] was armed with a deadly weapon, to wit: a gun." Appellant's App. Vol. 2 at 16. On May 24, 2018, Romero filed a notice of alibi claiming that at the time the crime occurred she was with her boyfriend.

         [¶7] At trial, Lewis testified for the State about her involvement in three similar thefts following the incident with C.M. After the State rested, Romero's boyfriend and his mother testified that Romero had been with them at their residence at the time C.M. was robbed. Tr. Vol. 3 at 31-34, 51-53. The following morning, outside the presence of the jury, Romero moved for a directed verdict, arguing that the State failed to introduce evidence establishing that Romero took money from C.M. The State moved to amend the charging information. After hearing argument, the trial court denied Romero's motion and granted the State's. The amended information alleges in relevant part that "Romero did knowingly take property, to wit: U.S. currency, from another person or the presence of another person, to wit: C.M." Appellant's App. Vol. 2 at 49 (emphasis added); Tr. Vol. 3 at 86. Trial ...