FOR PUBLICATION

Attorney for APPELLANT:    ATTORNEYS FOR APPELLEE:

Bruce A. M ac Tavish     STEVE CARTER
Markel Markel Lambring & MacTavish     Attorney General of Indiana
Pendleton, Indiana    
             George P. Sherman        
            Deputy Attorney General
Indianapolis, Indiana

Leonard Proffit,        )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 36A01-0401-CR-31 
                             )
STATE OF INDIANA,            )
                             )
Appellee.                    )

Proffit argues that there was no evidence that he intended to take property by force or do violence to Bruner when he went to Bruner’s home. Intent is a mental state and may be inferred from circumstantial evidence. Sinks v. State, 235 Ind. 484, 488, 133 N.E.2d 563, 564 (1956) (direct evidence of the intent to commit robbery was not essential but could be inferred from circumstantial evidence); Moses v. State, 170 Ind.App. 451, 456, 352 N.E.2d 851, 854 (1976) (criminal intent to commit robbery may be inferred from the surrounding circumstantial evidence). Proffit does not deny that there was evidence indicating that he and his cohorts were planning to burglarize Bruner’s home. He appears to argue that there was no evidence that he planned to rob Bruner. This is not the relevant question; the question is whether there was evidence that he knowingly or intentionally took property from Bruner or the presence of Bruner by the use of force. That he may have only been planning to burglarize Bruner’s home and ended up killing and robbing him is of no moment.
Here, the evidence reveals that a burglary was planned by Proffit, Wayt, and Weber. Obviously things did not go as planned, because Bruner was at home and an argument ensued. The argument led to Proffit stabbing Bruner while Bruner was held by Wayt, with Wilson apparently in another part of the house. After Bruner collapsed to the floor bleeding, Proffit and his accomplices “got their stuff.” Tr. at 471. Before the killing, Proffit and his friends had no methamphetamine to share with Beavers. Shortly thereafter, they had a “pretty good size chunk.” Tr. at 545. Also, Weber had a bulge in her pocket which appeared to be money. Proffit, when speaking to Easley about the Bruner killing, stated that his “cut” was $20,000. The evening of his death, Bruner was seen with a substantial amount of methamphetamine in his house. When Bruner’s body was found by his friend Kirts, Bruner’s bedroom had been ransacked. Kirts, who knew where Bruner kept things hidden, searched for drugs and money but found only a digital scale. Proffit later traded a ring, engraved with Bruner’s initials, for methamphetamine. From this evidence, the jury could reasonably infer that Proffit knowingly took property from Bruner or the presence of Bruner by the use of force. See footnote See I.C. § 35-42-5-1.
Proffit also argues that, because the evidence indicates that Bruner was killed before any property was taken, he cannot be convicted of robbery, which requires a taking by force or threat of force from another or from the presence of another. Proffit attempts to distinguish the case at bar from the facts present in Robinson v. State, 693 N.E.2d 548 (Ind. 1998), wherein the defendant planned to kill one Hobbs, a fellow drug dealer, so that he could “move up” in the local drug trade and make more money. Robinson eventually shot and killed his rival during a struggle in the victim’s car. Robinson and his accomplice drove the victim’s car three miles from the site of the shooting, dragged the body into a field, and despoiled the body of drugs and money. Upon appeal from his convictions for murder and robbery, Robinson claimed that there was insufficient evidence to support his robbery conviction because the victim was already dead when the property was taken from him, and that the robbery statute requires that the property be taken from another person or the presence of another person. According to Robinson, a dead man was not a person for purposes of the robbery statute. Our Supreme Court rejected this contention, holding that “[t]he record contain[ed] abundant evidence that the taking of Hobbs’ property was effectuated by the use of force against him while he was still alive. That Robinson waited until after Hobbs’ death actually to take the property is of no moment.” 693 N.E.2d at 554. The same is true here. Proffit was planning to burglarize Bruner’s home and steal drugs, money, and guns. Somehow, the planned robbery resulted in a confrontation between Bruner and Proffit during which Proffit stabbed and killed Bruner. That Proffit and his accomplices took Bruner’s property after Bruner was killed does not diminish the fact that the taking was effectuated by the use of force against Bruner while he was alive. See id. That the defendant in Robinson had planned to kill and rob the victim, whereas Bruner only planned a burglary and theft, is irrelevant.
Proffit also unsuccessfully attempts to distinguish his case from Ortiz v. State, 716 N.E.2d 345 (Ind. 1999). In that case, the defendant’s adopted mother was found dead in her bed, strangled and beaten with a sledgehammer, and her car was missing from the garage. Ortiz was not at home and had spent the day driving friends in the victim’s car and using her credit cards. The victim’s blood was found on Ortiz’s clothes and shoes, and the blood spatter on the clothes was consistent with the clothes having been worn on the night of the murder. Upon appeal to our Supreme Court, Ortiz challenged the sufficiency of the evidence supporting his robbery conviction. The evidence revealed that the credit cards were taken from the victim’s purse located in the kitchen and that the car was taken from her garage, whereas the victim was killed in her bedroom while she was likely asleep. Ortiz therefore argued that the property was not taken from the victim’s person or presence. The Ortiz Court rejected this contention, holding that the jury could have reasonably inferred that Ortiz’s beating of his mother with the sledgehammer prevented her from retaining control over her property and the fact the property was taken from a different room did not undermine the sufficiency of the evidence to support the robbery conviction. Id. at 351-52. Similarly here, although the evidence indicates that Proffit and his accomplices might not have taken property from the immediate presence of Bruner, by stabbing and killing Bruner, Proffit prevented Bruner from retaining control over his property located in other parts of the home. See id.
Proffit’s claim that his case is similar to that presented in Kimbrough v. State, 622 N.E.2d 230 (Ind. Ct. App. 1993), is also unavailing. In that case, the defendant was driving with friends when they saw three other young men with whom they had an ongoing dispute. The defendant exited the car and chased one of the other men, Rainey, and engaged him in a fight. Immediately before the fight, Rainey had purchased some drinks and snacks, but when he got home after the fight with Kimbrough, those items were missing from his pockets. Upon appeal, this court held that the evidence did not support the robbery conviction. Id. at 231. Rainey did not feel anyone going into his pockets or taking his property during the fight. Id. Therefore, the court held that the evidence did not support a reasonable inference that Kimbrough or one of his friends took Rainey’s property from him by force or the threat of force. Id. In essence, there was no evidence that any property was taken from Rainey. Here, unlike in Kimbrough, there is evidence that Proffit took property from Bruner’s house after he was killed. This evidence has been detailed, and we need not repeat it here. Suffice it to say that the facts before us are distinguishable from those present in Kimbrough. In summary, the evidence is sufficient to support Proffit’s conviction for robbery. Therefore, the trial court did not err in denying his motion for a directed verdict at the close of the State’s case-in-chief.

Final instruction number twelve reads:
“Each party to a conspiracy is responsible for all acts performed by his co-conspirators in furtherance of the conspiracy.” Id. at 333, 350.

Proffit notes that he was not charged with conspiracy, and that a conviction for a crime which is not charged, and which is not a lesser-included offense of the crime charged, constitutes denial of due process of law. See Lechner v. State, 439 N.E.2d 1203, 1205 (Ind. Ct. App. 1982) See footnote (finding fundamental error and reversing conviction for child molesting because it was neither an offense alleged in the charging information nor a lesser-included offense of the charged crime).
Here, although Proffit was not charged with conspiracy, neither was he convicted of conspiracy. In the cases cited by Proffit, the defendant was convicted of a crime which was not charged. See Nelson v. State, 479 N.E.2d 48 (Ind. 1985) (reversing conviction where, despite the fact that the defendant was charged with felony murder, the trial court instructed the jury regarding voluntary manslaughter and jury convicted defendant thereof); Peek v. State, 454 N.E.2d 450 (Ind. Ct. App. 1983) (reversing conviction for battery as a Class C felony as a lesser-included offense of robbery, where charging information alleged only bodily injury, not serious bodily injury as required for a conviction for battery as a Class C felony); Lechner, 439 N.E.2d at 1205 (reversing conviction for child molestation for fondling or touching where defendant was charged with attempted child molesting by performing or submitting to sexual intercourse or deviate sexual conduct because the former crime is not a lesser-included offense of the latter). Because Proffit was not convicted of conspiracy, we are unable to agree with him that the jury instructions amounted to a denial of due process.
Nevertheless, Proffit claims that the instructions prejudiced him in that it confused the jury as to what he was charged with and guilty of. A similar argument was rejected by our Supreme Court in Martin v. State, 457 N.E.2d 1085 (Ind. 1984). The challenged instructions in Martin read:
“‘The Court instructs you that where two or more persons knowingly combine to commit a crime, each is criminally responsible for the acts of his confederates committed in furtherance of the common design.’

Martin argued that the given instructions effectively charged him with conspiracy, a crime he was not charged with, and that the instructions were misleading in that the jury could believe that the mere presence of a person at the scene of the crime could lead to his conviction. Rejecting the defendant’s argument, the Martin court held:
“Even when conspiracy is not charged, if the evidence shows that more than one person acted in concert to commit a crime, the acts of an accomplice are chargeable to others acting in concert to establish that all of the elements of the offense were committed; thus, the instructions provide correct statements of the law. Further, the first instruction was expressly approved in Williams v. State, (1976) 265 Ind. 190, 203-204, 352 N.E.2d 733, 744 and Bailey v. State, (1982) Ind.App., 438 N.E.2d 22, 24, (transfer denied), and both instructions were approved, in essence, in Banks v. State, (1976) 265 Ind. 71, 93, 351 N.E.2d 4, 18, cert. denied 429 U.S. 1077, 97 S.Ct. 821, 50 L.Ed.2d 797 and Pulliam v. State, (1976) 264 Ind. 381, 391-392, 345 N.E.2d 229, 238. Neither do we find the instructions to be confusing or misleading.” Martin, 457 N.E.2d at 1088 (emphasis supplied) (citations omitted).

Based upon the authority of Martin, we also reject Proffit’s claims that the jury instructions at issue here were improper. Proffit attempts to distinguish his case from Martin and Williams v. State, 265 Ind. 190, 352 N.E.2d 733 (1976), cited by Martin, because in neither of those cases, Proffit argues, did the instructions “relate to the crime of conspiracy.” Appellant’s Brief at 41. It does not appear that in Martin or Williams that the jury was given the statutory definition of conspiracy, as was done in the present case. However, the very argument of the defendant in Martin was that the instructions amounted to a charge of conspiracy, an uncharged crime, and the Court found no reversible error. 457 N.E.2d at 1088.
We also find important that although the jury here was instructed regarding the definition of the uncharged crime of conspiracy, it was not given the option of convicting Proffit of conspiracy. The jury was given only the options of convicting Proffit of murder/voluntary manslaughter and robbery. Considering the jury instructions as a whole and in reference to each other, we cannot conclude that the jury instructions misstate the law or otherwise misled the jury.
Proffit also contends that final instructions numbers eleven and twelve unduly emphasize one evidentiary fact. Specifically, he claims that by instructing the jury regarding conspiracy, the trial court unduly emphasized the one State witness, Kenneth Beavers, who Proffit claims was the only witness who testified to the conspiracy. Proffit, however, never made this argument to the trial court when objecting to these instructions. Instead, he objected to instruction number eleven upon the grounds that conspiracy was not charged and that the instructions would “not relate to the issues of this case and . . . will distract the jury from the true issues.” Tr. at 698. The objection to instruction number twelve was substantially the same. By not objecting to the instructions upon the grounds he now argues upon appeal, Proffit has waived this claim of error. See footnote See Luna v. State, 758 N.E.2d 515, 518 (Ind. 2001) (where defendant failed at trial to state the ground for her objection which she asserted upon appeal, she waived her ability to raise it upon appeal). In summary, Proffit has not established that the trial court abused its discretion in instructing the jury.
The judgment of the trial court is affirmed.
NAJAM, J., and BARNES, J., concur.