The Indiana Court of Appeals affirmed an Elkhart student’s robbery conviction after concluding there was sufficient evidence to support that she stole money in the presence of the cash’s owner.
When schoolmates C.M. and Lashi Lewis arranged to meet at a park so that C.M. could purchase an iPhone Lewis had advertised for sale on Facebook, a third party stole the money it was to be exchanged for.
At the meeting, Lewis told C.M. that she didn’t have the phone on hand but first needed to send a picture of the $180 in cash to her boyfriend before she could get the phone to C.M. As Lewis took the money and, C.M. testified, pretended to take a picture of it, a person exited Lewis’ vehicle with a gun drawn, demanding Lewis hand over the money.
That individual, Mitzy Romero, then took the cash and ran. Romero was later charged with Level 3 felony robbery while armed with a deadly weapon.
The day following her trial, Romero moved for a directed verdict, arguing that the state failed to introduce evidence that she took the money from C.M. The trial court denied Romero’s motion and granted the state’s motion to amend the charging information, which included in part that “Romero did knowingly take property, to wit: U.S. currency, from another person or in the presence of another person, to wit: C.M.”
After Romero did not renew her motion for a directed verdict, a jury found her guilty as charged and imposed an 11-year sentence.
In her appeal of the conviction, Romero argued that the appellate court should only consider evidence presented at the time she made her motion, rather than all the evidence. She also argued that the state failed to introduce any evidence that she took the money directly from C.M. and that the evidence revealed that she took the money from Lewis.
But the appellate court found that because Romero did not challenge the trial court’s decision to grant the state’s motion to amend the charging information, the state would have to prove beyond a reasonable doubt that Romero knowingly took money from or from the presence of C.M.
“Romero argues only that the State failed to prove that she took money from C.M. and makes no argument that the State failed to prove that she took money from the presence of C.M. Therefore, any claim in this regard is waived,” Judge Terry Crone wrote for the court.
Waiver notwithstanding, the appellate court concluded Romero’s argument would otherwise fail, based on both C.M. and Lewis’ testimony that money belonged to C.M. at the time of the robbery and that the sale had not yet occurred.
“C.M. was in very close physical proximity to the money throughout the incident, and the money was out in the open the entire time. In fact, C.M. had just handed the money to Lewis and only for the limited purpose of permitting Lewis to take a picture of it. This evidence is sufficient to establish that Romero took money from the presence of C.M.,” Crone continued.
The appellate court therefore found sufficient evidence to support Romero’s convictions in Mitzy J. Romero v. State of Indiana, 19A-CR-39.