MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 19 2017, 10:08 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Damian M. Coleman, December 19, 2017 Appellant-Defendant, Court of Appeals Case No. 30A01-1705-CR-1034 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard D. Culver, Appellee-Plaintiff Judge Trial Court Cause No. 30C01-1603-MR-411
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 1 of 6 Case Summary [1] Damian M. Coleman appeals his felony murder conviction, asserting that the
evidence is insufficient to support it. Concluding that the evidence is sufficient,
we affirm.
Facts and Procedural History [2] The evidence most favorable to the verdict shows that in March 2016, Shannon
Kitchens was at his Fortville home with Shawn Hammons. The men wanted to
cash Kitchens’s $14,000 disability check and buy crack cocaine. They began
texting and calling Coleman, from whom they had previously bought drugs, to
set up a drug deal. In the early afternoon, Hammons drove Kitchens in
Hammons’s black Ford Explorer to a Check ‘n Go on Pendleton Pike.
Kitchens went in to cash his check, and Hammons waited in his car and
finalized the drug deal with Coleman. Because Coleman owed Kitchens
money, Coleman agreed to sell nine grams of crack cocaine for a reduced price
of $300, and agreed to meet them in the parking lot. When Coleman arrived,
he and Hammons took some Adderall, and Hammons drank some beer and
whiskey. Kitchens joined them to smoke cocaine while his check was being
processed.
[3] Around 5:00 p.m., Kitchens got his money and returned to Hammons’s vehicle
with $3000 in cash. He got in the front passenger seat, and Hammons parked at
the end of the parking lot. As Kitchens was counting his money, Coleman,
who was in the back seat, pointed a handgun at him and demanded all the
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 2 of 6 money. Kitchens tried to grab the gun. As they wrestled over possession of the
gun, Coleman shot Kitchens. Coleman put his hands up in shock, releasing the
gun. Kitchens threw the gun out the passenger window, grabbed his side, and
said, “Oh my God.” Tr. Vol. 2 at 215. Kitchens died almost immediately.
Hammons started driving, and Coleman opened his door and jumped out of the
car.
[4] Hammons was “scared out of [his] mind.” Id. at 217. He turned east on
Pendleton Pike and “never let off the gas.” Id. Eventually, he found himself on
46th Street, reaching speeds of seventy or eighty miles an hour. He kept
looking over at Kitchens and saw “this dead stare of the dead.” Id. He had
“never seen anybody shot let alone die.” Id. He stopped on the side of the road,
pulled Kitchens out through the window (the door handle was missing), and
placed him on the ground beside the vehicle. Hammons was still high and
scared, so he got back into his car and started driving. Hammons noticed a gun
magazine and Kitchens’s cell phone on the passenger seat, and he threw them
out the window. Id. at 221. At approximately 5:35 p.m., Kitchens’s body was
noticed by passing drivers, and the police were called. The police identified
Kitchens, observed that he had been shot, and began investigating his death.
[5] Meanwhile, Hammons arrived at the Fortville home of his ex-girlfriend, Carol
Skaggs. He parked his car in her driveway, picked up Kitchens’s money from
the front floorboard, and put it in his wallet. Hammons told Skaggs what
happened and asked her to drive him to his girlfriend’s house in Anderson. She
agreed. Hammons left his vehicle in Skaggs’s driveway, and Skaggs and her
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 3 of 6 boyfriend drove Hammons to Anderson. However, Hammons’s girlfriend,
Amber Faulk, was not home, the door was locked, and Hammons did not have
a key. Hammons called her from a neighbor’s, she drove back to her house,
and she and Hammons went inside. Hammons started coming down off his
drug high and knew that he was going to be in trouble for pulling Kitchens out
of the car.
[6] After a couple hours, Hammons received a call informing him that the police
were on their way to Faulk’s house. He went outside to wait for them. When
the police arrived, Hammons approached them and stated that they probably
wanted to talk to him. He told the police that a scuffle had occurred and that
Kitchens had been shot. He also told the police that Kitchens’s money was in
Hammons’s wallet in a kitchen cabinet inside Faulk’s house. After the police
retrieved the money, they took Hammons to the police department. They read
him his rights, and he agreed to talk to them. Police found the gun magazine
and Kitchens’s cell phone on the side of the road where Hammons told them he
had thrown them. Police also found a spent shell casing in the back seat of
Hammons’s car.
[7] That evening, Coleman called his friend Ronald Monday and told him that he
had set up a robbery with Hammons that did not go as planned. Tr. Vol. 3 at
200-01. Coleman also told Monday that he had jumped out of Hammons’s car
and been dragged a short distance.
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 4 of 6 [8] The State charged Coleman with Count I, felony murder while committing or
attempting to commit robbery; Count II, felony murder while committing or
attempting to commit dealing in cocaine; Count III, level 3 felony attempted
robbery; Count IV, level 3 felony conspiracy to commit robbery; Count V, level
3 felony attempted dealing in cocaine; and Count VI, level 3 felony conspiracy
to commit dealing in cocaine. The State also charged Coleman with being an
habitual offender. The State subsequently dismissed Count IV. A jury found
Coleman guilty as charged. The trial court entered judgments of conviction on
Counts I, V, and VI and sentenced Coleman to an aggregate sentence of eighty-
three years. This appeal ensued.
Discussion and Decision [9] Coleman challenges the sufficiency of the evidence supporting his felony
murder conviction. In reviewing a claim of insufficient evidence, we do not
reweigh the evidence or judge the credibility of witnesses, and we consider only
the evidence that supports the verdict and the reasonable inferences arising
therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm
if there is substantial evidence of probative value such that a reasonable trier of
fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Id.
[10] To convict Coleman of felony murder as charged in Count I, the State was
required to prove beyond a reasonable doubt that he knowingly killed Kitchens
while committing or attempting to commit robbery. Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 19 2017, 10:08 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Damian M. Coleman, December 19, 2017 Appellant-Defendant, Court of Appeals Case No. 30A01-1705-CR-1034 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard D. Culver, Appellee-Plaintiff Judge Trial Court Cause No. 30C01-1603-MR-411
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 1 of 6 Case Summary [1] Damian M. Coleman appeals his felony murder conviction, asserting that the
evidence is insufficient to support it. Concluding that the evidence is sufficient,
we affirm.
Facts and Procedural History [2] The evidence most favorable to the verdict shows that in March 2016, Shannon
Kitchens was at his Fortville home with Shawn Hammons. The men wanted to
cash Kitchens’s $14,000 disability check and buy crack cocaine. They began
texting and calling Coleman, from whom they had previously bought drugs, to
set up a drug deal. In the early afternoon, Hammons drove Kitchens in
Hammons’s black Ford Explorer to a Check ‘n Go on Pendleton Pike.
Kitchens went in to cash his check, and Hammons waited in his car and
finalized the drug deal with Coleman. Because Coleman owed Kitchens
money, Coleman agreed to sell nine grams of crack cocaine for a reduced price
of $300, and agreed to meet them in the parking lot. When Coleman arrived,
he and Hammons took some Adderall, and Hammons drank some beer and
whiskey. Kitchens joined them to smoke cocaine while his check was being
processed.
[3] Around 5:00 p.m., Kitchens got his money and returned to Hammons’s vehicle
with $3000 in cash. He got in the front passenger seat, and Hammons parked at
the end of the parking lot. As Kitchens was counting his money, Coleman,
who was in the back seat, pointed a handgun at him and demanded all the
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 2 of 6 money. Kitchens tried to grab the gun. As they wrestled over possession of the
gun, Coleman shot Kitchens. Coleman put his hands up in shock, releasing the
gun. Kitchens threw the gun out the passenger window, grabbed his side, and
said, “Oh my God.” Tr. Vol. 2 at 215. Kitchens died almost immediately.
Hammons started driving, and Coleman opened his door and jumped out of the
car.
[4] Hammons was “scared out of [his] mind.” Id. at 217. He turned east on
Pendleton Pike and “never let off the gas.” Id. Eventually, he found himself on
46th Street, reaching speeds of seventy or eighty miles an hour. He kept
looking over at Kitchens and saw “this dead stare of the dead.” Id. He had
“never seen anybody shot let alone die.” Id. He stopped on the side of the road,
pulled Kitchens out through the window (the door handle was missing), and
placed him on the ground beside the vehicle. Hammons was still high and
scared, so he got back into his car and started driving. Hammons noticed a gun
magazine and Kitchens’s cell phone on the passenger seat, and he threw them
out the window. Id. at 221. At approximately 5:35 p.m., Kitchens’s body was
noticed by passing drivers, and the police were called. The police identified
Kitchens, observed that he had been shot, and began investigating his death.
[5] Meanwhile, Hammons arrived at the Fortville home of his ex-girlfriend, Carol
Skaggs. He parked his car in her driveway, picked up Kitchens’s money from
the front floorboard, and put it in his wallet. Hammons told Skaggs what
happened and asked her to drive him to his girlfriend’s house in Anderson. She
agreed. Hammons left his vehicle in Skaggs’s driveway, and Skaggs and her
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 3 of 6 boyfriend drove Hammons to Anderson. However, Hammons’s girlfriend,
Amber Faulk, was not home, the door was locked, and Hammons did not have
a key. Hammons called her from a neighbor’s, she drove back to her house,
and she and Hammons went inside. Hammons started coming down off his
drug high and knew that he was going to be in trouble for pulling Kitchens out
of the car.
[6] After a couple hours, Hammons received a call informing him that the police
were on their way to Faulk’s house. He went outside to wait for them. When
the police arrived, Hammons approached them and stated that they probably
wanted to talk to him. He told the police that a scuffle had occurred and that
Kitchens had been shot. He also told the police that Kitchens’s money was in
Hammons’s wallet in a kitchen cabinet inside Faulk’s house. After the police
retrieved the money, they took Hammons to the police department. They read
him his rights, and he agreed to talk to them. Police found the gun magazine
and Kitchens’s cell phone on the side of the road where Hammons told them he
had thrown them. Police also found a spent shell casing in the back seat of
Hammons’s car.
[7] That evening, Coleman called his friend Ronald Monday and told him that he
had set up a robbery with Hammons that did not go as planned. Tr. Vol. 3 at
200-01. Coleman also told Monday that he had jumped out of Hammons’s car
and been dragged a short distance.
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 4 of 6 [8] The State charged Coleman with Count I, felony murder while committing or
attempting to commit robbery; Count II, felony murder while committing or
attempting to commit dealing in cocaine; Count III, level 3 felony attempted
robbery; Count IV, level 3 felony conspiracy to commit robbery; Count V, level
3 felony attempted dealing in cocaine; and Count VI, level 3 felony conspiracy
to commit dealing in cocaine. The State also charged Coleman with being an
habitual offender. The State subsequently dismissed Count IV. A jury found
Coleman guilty as charged. The trial court entered judgments of conviction on
Counts I, V, and VI and sentenced Coleman to an aggregate sentence of eighty-
three years. This appeal ensued.
Discussion and Decision [9] Coleman challenges the sufficiency of the evidence supporting his felony
murder conviction. In reviewing a claim of insufficient evidence, we do not
reweigh the evidence or judge the credibility of witnesses, and we consider only
the evidence that supports the verdict and the reasonable inferences arising
therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm
if there is substantial evidence of probative value such that a reasonable trier of
fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Id.
[10] To convict Coleman of felony murder as charged in Count I, the State was
required to prove beyond a reasonable doubt that he knowingly killed Kitchens
while committing or attempting to commit robbery. Ind. Code § 35-42-1-1(2);
Appellant’s App. Vol. 2 at 39. The State presented evidence through Hammons Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 5 of 6 that Coleman pointed a gun at Kitchens, demanded his money, and shot him as
they struggled over the gun. Also, Coleman was sitting in the back seat of
Hammons’s car, and the police found a spent shell casing in the back seat.
Coleman argues that, in addition to Hammons’s severe credibility deficiencies,
Hammons’s version of events is “implausible, if not impossible” and is
unsupported by probative evidence. Appellant’s Br. at 17. Coleman points out
unrealistic aspects of Hammons’s story and identifies inconsistencies between
his testimony and that of other witnesses. However, it “‘is precisely within the
domain of the trier of fact to sift through conflicting accounts of events. Not
only must the fact-finder determine whom to believe, but also what portions of
conflicting testimony to believe.’” Atwood v. State, 905 N.E.2d 479, 484 (Ind.
Ct. App. 2009) (quoting In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999)),
trans. denied. Coleman’s argument is merely an invitation to judge witness
credibility and reweigh evidence, which we must decline. Accordingly, we
affirm his conviction.
[11] Affirmed.
Robb, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017 Page 6 of 6