MEMORANDUM DECISION FILED Mar 28 2017, 9:38 am
Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court regarded as precedent or cited before any 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arlana McDade, March 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1610-CR-2294 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William Nelson, Appellee-Plaintiff. Judge Trial Court Cause No. 49G18-1506-F6-21109
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 1 of 6 Case Summary [1] Arlana McDade appeals her conviction for Class A misdemeanor criminal
recklessness with a deadly weapon. We affirm.
Issue [2] The sole issue before us is whether there is sufficient evidence to sustain
McDade’s conviction.
Facts [3] McDade and Whitney Rogers both were romantically involved with a man
named Steven Reed, nicknamed “Black.” Tr. p. 10. In the early morning hours
of May 31, 2015, Rogers was driving her car in Indianapolis with a passenger,
her cousin, Quintez Tucker. Near the intersection of 34th and Hovey Streets, a
car pulled behind Rogers’s car and its driver blew the horn and flashed its lights.
Rogers pulled over briefly but then drove away. The other car then pulled in
front of Rogers and blocked her in so that she could not drive away. Rogers
recognized the car, a gold Monte Carlo, as belonging to McDade.
[4] McDade and two other women got out of the Monte Carlo and approached
Rogers’s car carrying what Rogers described as “iron bats,” possibly baseball
bats, although it was dark and she could not see precisely what the objects were.
Id. at 15. The women then used what they were carrying to smash out all of the
windows of Rogers’s car except the front window, which was cracked but not
entirely broken. Rogers and Tucker were inside the car while the windows
were smashed. As the windows were being broken, McDade said, “Black told Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 2 of 6 me.” Id. at 16. Rogers was covered with broken glass but uninjured; Tucker
was slightly injured and left the scene after the incident. The incident caused
$1890 in damages to Rogers’s car.
[5] The State charged McDade with Level 6 felony criminal recklessness with a
deadly weapon and Class A misdemeanor criminal mischief. After a bench
trial, the trial court found McDade guilty of both counts as charged. At the
sentencing hearing, the trial court entered judgment of conviction for Class A
misdemeanor criminal recklessness under the alternative misdemeanor
sentencing provisions and did not enter judgment of conviction on the criminal
mischief charge. McDade now appeals.
Analysis [6] McDade challenges the sufficiency of the evidence. When addressing a claim
of insufficient evidence, we must consider only the probative evidence and
reasonable inferences supporting the conviction. Sallee v. State, 51 N.E.3d 130,
133 (Ind. 2016). It is the fact-finder’s role, not ours, to assess witness credibility
and weigh evidence to determine whether it is sufficient to support a conviction.
Id. “It is not necessary that the evidence ‘overcome every reasonable
hypothesis of innocence.’” Id. (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.
1995)). “‘[E]vidence is sufficient if an inference may reasonably be drawn from
it to support the verdict.’” Id. (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007)). However, “[e]vidence sufficient only to establish a mere suspicion of
guilt is not sufficient to support a conviction.” Id. at 135.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 3 of 6 [7] In order to convict McDade as charged, the State was required to prove that she
recklessly, knowingly, or intentionally performed an act that created a
substantial risk of bodily injury to another person while armed with a deadly
weapon. See Ind. Code § 35-42-2-2. The first part of McDade’s argument is
that the State failed to prove use of a deadly weapon. She notes that Rogers
was unable to testify unequivocally as to what was used to smash out her car
windows, due to it being dark at the time of the incident, although she
described the items as “iron bats.” Tr. p. 15.
[8] The statutory definition of “deadly weapon” includes any “weapon, device . . .,
equipment, . . ., or other material that in the manner it (A) is used; (B) could
ordinarily be used; or (C) is intended to be used; is readily capable of causing
serious bodily injury.” I.C. § 35-31.5-2-86(a)(2). Blunt objects of various types
have been found to constitute a “deadly weapon.” See Timm v. State, 644
N.E.2d 1235, 1238 (Ind. 1994) (holding long-handled plastic flashlight was
“deadly weapon” where blow from it broke victim’s glasses and required her to
get thirteen stitches); Corder v. State, 467 N.E.2d 409, 412 (Ind. 1984) (holding
baseball bat was a “deadly weapon”); Barber v. State, 418 N.E.2d 563, 568 (Ind.
Ct. App. 1981) (holding revolver that shot only blanks was “deadly weapon”
because it could be used as a bludgeoning instrument).
[9] Here, even if Rogers could not identify with complete certainty what McDade
and her compatriots possessed, she did believe they were metal bats or bars of
some kind. In any event, the objects were hard enough to smash in all but one
of Rogers’s car windows. It is reasonable to infer that, if the objects had been
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 4 of 6 used with that amount of force on a human being, they easily could have
caused serious bodily injury or death. There is sufficient evidence that McDade
and her compatriots were armed with deadly weapons when they vandalized
Rogers’s car.
[10] McDade also contends that there is insufficient evidence she was one of the
persons who actually vandalized Rogers’s car. She notes that Rogers generally
testified, “They busted out my windows,” without specifying that McDade was
one of the persons who did so. Tr. p. 14. Rogers also testified, however, that
she told police McDade was the one “who messed up my car.” Id. at 19.
[11] Furthermore, as the State points out, a defendant may be charged as a principal
yet convicted on proof that he or she aided another in the commission of a
crime. Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). “In Indiana, the
responsibility of a principal and an accomplice is the same.” Id. “A person
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MEMORANDUM DECISION FILED Mar 28 2017, 9:38 am
Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court regarded as precedent or cited before any 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arlana McDade, March 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1610-CR-2294 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William Nelson, Appellee-Plaintiff. Judge Trial Court Cause No. 49G18-1506-F6-21109
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 1 of 6 Case Summary [1] Arlana McDade appeals her conviction for Class A misdemeanor criminal
recklessness with a deadly weapon. We affirm.
Issue [2] The sole issue before us is whether there is sufficient evidence to sustain
McDade’s conviction.
Facts [3] McDade and Whitney Rogers both were romantically involved with a man
named Steven Reed, nicknamed “Black.” Tr. p. 10. In the early morning hours
of May 31, 2015, Rogers was driving her car in Indianapolis with a passenger,
her cousin, Quintez Tucker. Near the intersection of 34th and Hovey Streets, a
car pulled behind Rogers’s car and its driver blew the horn and flashed its lights.
Rogers pulled over briefly but then drove away. The other car then pulled in
front of Rogers and blocked her in so that she could not drive away. Rogers
recognized the car, a gold Monte Carlo, as belonging to McDade.
[4] McDade and two other women got out of the Monte Carlo and approached
Rogers’s car carrying what Rogers described as “iron bats,” possibly baseball
bats, although it was dark and she could not see precisely what the objects were.
Id. at 15. The women then used what they were carrying to smash out all of the
windows of Rogers’s car except the front window, which was cracked but not
entirely broken. Rogers and Tucker were inside the car while the windows
were smashed. As the windows were being broken, McDade said, “Black told Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 2 of 6 me.” Id. at 16. Rogers was covered with broken glass but uninjured; Tucker
was slightly injured and left the scene after the incident. The incident caused
$1890 in damages to Rogers’s car.
[5] The State charged McDade with Level 6 felony criminal recklessness with a
deadly weapon and Class A misdemeanor criminal mischief. After a bench
trial, the trial court found McDade guilty of both counts as charged. At the
sentencing hearing, the trial court entered judgment of conviction for Class A
misdemeanor criminal recklessness under the alternative misdemeanor
sentencing provisions and did not enter judgment of conviction on the criminal
mischief charge. McDade now appeals.
Analysis [6] McDade challenges the sufficiency of the evidence. When addressing a claim
of insufficient evidence, we must consider only the probative evidence and
reasonable inferences supporting the conviction. Sallee v. State, 51 N.E.3d 130,
133 (Ind. 2016). It is the fact-finder’s role, not ours, to assess witness credibility
and weigh evidence to determine whether it is sufficient to support a conviction.
Id. “It is not necessary that the evidence ‘overcome every reasonable
hypothesis of innocence.’” Id. (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.
1995)). “‘[E]vidence is sufficient if an inference may reasonably be drawn from
it to support the verdict.’” Id. (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007)). However, “[e]vidence sufficient only to establish a mere suspicion of
guilt is not sufficient to support a conviction.” Id. at 135.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 3 of 6 [7] In order to convict McDade as charged, the State was required to prove that she
recklessly, knowingly, or intentionally performed an act that created a
substantial risk of bodily injury to another person while armed with a deadly
weapon. See Ind. Code § 35-42-2-2. The first part of McDade’s argument is
that the State failed to prove use of a deadly weapon. She notes that Rogers
was unable to testify unequivocally as to what was used to smash out her car
windows, due to it being dark at the time of the incident, although she
described the items as “iron bats.” Tr. p. 15.
[8] The statutory definition of “deadly weapon” includes any “weapon, device . . .,
equipment, . . ., or other material that in the manner it (A) is used; (B) could
ordinarily be used; or (C) is intended to be used; is readily capable of causing
serious bodily injury.” I.C. § 35-31.5-2-86(a)(2). Blunt objects of various types
have been found to constitute a “deadly weapon.” See Timm v. State, 644
N.E.2d 1235, 1238 (Ind. 1994) (holding long-handled plastic flashlight was
“deadly weapon” where blow from it broke victim’s glasses and required her to
get thirteen stitches); Corder v. State, 467 N.E.2d 409, 412 (Ind. 1984) (holding
baseball bat was a “deadly weapon”); Barber v. State, 418 N.E.2d 563, 568 (Ind.
Ct. App. 1981) (holding revolver that shot only blanks was “deadly weapon”
because it could be used as a bludgeoning instrument).
[9] Here, even if Rogers could not identify with complete certainty what McDade
and her compatriots possessed, she did believe they were metal bats or bars of
some kind. In any event, the objects were hard enough to smash in all but one
of Rogers’s car windows. It is reasonable to infer that, if the objects had been
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 4 of 6 used with that amount of force on a human being, they easily could have
caused serious bodily injury or death. There is sufficient evidence that McDade
and her compatriots were armed with deadly weapons when they vandalized
Rogers’s car.
[10] McDade also contends that there is insufficient evidence she was one of the
persons who actually vandalized Rogers’s car. She notes that Rogers generally
testified, “They busted out my windows,” without specifying that McDade was
one of the persons who did so. Tr. p. 14. Rogers also testified, however, that
she told police McDade was the one “who messed up my car.” Id. at 19.
[11] Furthermore, as the State points out, a defendant may be charged as a principal
yet convicted on proof that he or she aided another in the commission of a
crime. Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). “In Indiana, the
responsibility of a principal and an accomplice is the same.” Id. “A person
who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense . . . .” I.C. § 35-41-2-4. In order to
convict someone as an accomplice, there must be proof of his or her affirmative
conduct, “‘either in the form of acts or words, from which an inference of a
common design or purpose to effect the commission of a crime may reasonably
be drawn.’” Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014) (quoting
Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998)).
[12] Rogers identified the car that blocked her in on the side of the road as belonging
to McDade. McDade approached Rogers’s vehicle accompanied by two other
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 5 of 6 women, and members of the group proceeded to smash in Rogers’s windows
with heavy objects. During the incident, McDade said, “Black told me.” Tr. p.
16. The reasonable inference to be made from this statement is that the crime
was motivated by the “love triangle” between McDade, Rogers, and Reed.
Even if there is a lack of conclusive proof that McDade wielded a weapon and
smashed in one or more of Rogers’s car windows, there is clearly sufficient
evidence that she aided or induced that crime.
Conclusion [13] There is sufficient evidence to sustain McDade’s conviction for Class A
misdemeanor criminal recklessness. We affirm.
[14] Affirmed.
Kirsch, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2294 | March 28, 2017 Page 6 of 6