Delshawn Marshall v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 23, 2019
• Docket: 19A-CR-567
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 23 2019, 10:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Delshawn Marshall, October 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-567 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1707-F3-48

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 1 of 9 Case Summary and Issue [1] Following a jury trial, Delshawn Marshall was found guilty of armed robbery, a

Level 3 felony, and sentenced to thirteen years in the Indiana Department of

Correction, with three years suspended to probation. Marshall appeals his

conviction, raising one issue for our review: whether the State presented

sufficient evidence to support his conviction. Concluding the State produced

sufficient evidence, we affirm.

Facts and Procedural History [2] Around 2:30 p.m. on July 18, 2017, Harodd Cureton received a phone call from

Sha’paris Jordan asking Cureton to sell her marijuana. Having sold her

marijuana two times previously, Cureton agreed to sell Jordan “half of [an]

ounce” of marijuana for $120. Transcript, Volume 2 at 17. Originally, Cureton

and Jordan had agreed to meet in the parking lot of a bowling alley in South

Bend, Indiana. However, Jordan switched the meeting location to Roosevelt

Street, which is located in a residential neighborhood. Prior to the meeting,

Jordan asked Cureton to send her a picture of himself, which was not

commonplace in their previous transactions. Cureton declined to send the

picture.

[3] Around 8:30 p.m., Cureton arrived on Roosevelt Street and parked his red

Chevrolet Monte Carlo behind Jordan’s Saturn Ion. Cureton requested that

Jordan come to his car to finalize the transaction, however Jordan insisted that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 2 of 9 Cureton come to her car. Cureton agreed and sat in Jordan’s passenger seat.

While sitting in Jordan’s car, Cureton became concerned because in addition to

having requested his picture earlier, Jordan was now very focused on texting

someone on her phone and seemed to be attempting to stall the sale. After

approximately fifteen minutes, Cureton pushed to complete the transaction, but

Jordan became flirtatious, even putting her leg out of the car’s window and

offering to have sex with him.

[4] Around this time, Cureton saw a man, later identified as Marshall, approaching

the vehicle with a gun “[h]anging out [of] his pants.” Id. at 39. Cureton

described the gun as black and “like a .45” with a slide on the top. Id. at 26.

Sensing potential danger, Cureton exited Jordan’s vehicle. When Cureton

exited the vehicle, Marshall asked Cureton for a cigarette and Cureton obliged.

Subsequently, Marshall and Jordan engaged in conversation, making it seem

clear to Cureton that they had a previous connection.

[5] Now feeling that danger was imminent, Cureton began running, with Marshall

chasing him soon after. Cureton made it past approximately three houses before

Marshall caught up to him. Marshall took out his gun and told Cureton to

empty his pockets. Cureton had in his pockets a single bag of marijuana; a key

ring that contained the key to his Monte Carlo, a whistle, and a heart charm; an

LG cell phone; and about $200 cash. Cureton threw these items to the ground

in compliance with Marshall’s command, and Marshall picked them up and ran

away.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 3 of 9 [6] Robert Sigafoose, a Roosevelt Street resident, witnessed the chase and robbery

from his living room window. He observed a heavy-set male (Cureton) being

chased by a “tall slinky guy” with a black gun tucked in his belt (Marshall). Id.

at 50. He then saw Cureton stop and raise his hands while Marshall picked

something up from the ground and ran away. Near the end of the robbery,

another neighborhood resident called the police. Shortly thereafter, Cureton

realized that his car was missing from where he had left it.

[7] South Bend police arrived at the scene and attempted to gather information

from Cureton. Initially, Cureton did not admit to police that he intended to sell

marijuana to Jordan. He stated instead that he had simply stopped to help a

broken-down car on the side of the road. However, after learning from police

that he would not be charged with any drug-related offenses if he told the truth,

Cureton provided police with a description of Marshall and Jordan, details of

the underlying transaction, and information about his stolen car and

possessions.

[8] The police then searched the surrounding area and located Cureton’s red Monte

Carlo in the parking lot of a nearby apartment complex. Parked directly next to

the Monte Carlo was a Saturn Ion, with Jordan in the driver’s seat and

Marshall in the passenger seat.

[9] Police officers approached the Saturn Ion and instructed Marshall and Jordan

to exit the vehicle. Marshall and Jordan were then detained and placed in

handcuffs. Police officers returned to the Saturn Ion and, through an open

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 4 of 9 window, observed a pistol grip protruding from beneath a white towel that was

on the floor of the Saturn Ion’s passenger seat where Marshall had been sitting.

[10] When Jordan was escorted from the Saturn Ion, police could smell a strong

odor of marijuana coming from her clothing. Officers performed a pat-down

search of Jordan and found what was later determined to be approximately 8.7

grams of marijuana packaged in a single bag in her “crotch area[.]” Id. at 81.

Officers also found a partially burned cigar that was filled with marijuana on

Jordan’s person during the pat-down search. Jordan admitted the marijuana

found by officers was the marijuana Cureton intended to sell to her.

[11] Officers transported Cureton to the location of his Monte Carlo to identify

Jordan and Marshall. Cureton positively identified Marshall as the man who

had robbed him. Jordan and Marshall were arrested.

[12] Officers obtained a search warrant for the Monte Carlo and Saturn Ion and had

the vehicles towed to the South Bend police department. Forensic technicians

retrieved the gun from the Saturn Ion. Upon further examination and

laboratory testing, Marshall’s DNA was found on the gun’s front side and the

bottom of the magazine. According to the laboratory analysis, the DNA was

more consistent with someone handling the gun than DNA being transferred to

the gun from another object. Other items found in the Saturn Ion included a

key ring containing a whistle, heart charm, and the key to Cureton’s Monte

Carlo; an LG cell phone; and $28 cash.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 5 of 9 [13] The State charged Marshall with one count of armed robbery, a Level 3 felony.

A jury found Marshall guilty as charged, and the trial court imposed a thirteen-

year sentence with three years suspended to probation. Marshall now appeals.

Discussion and Decision I. Standard of Review [14] When reviewing a conviction for sufficiency of the evidence it is the role of this

court to consider only the evidence most favorable to the verdict and all

reasonable and logical inferences to be drawn therefrom. Minter v. State, 653

N.E.2d 1382, 1383 (Ind. 1995). A conviction will be affirmed if a reasonable

juror could find a defendant guilty beyond a reasonable doubt when taking all

the facts and inferences in favor of the conviction. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009). We do not reweigh the evidence or judge the credibility

of witnesses. Wear v. State, 593 N.E.2d 1179, 1179 (Ind. 1992).

II. Sufficiency of the Evidence [15] Marshall contends that the State failed to produce sufficient evidence to convict

him of armed robbery. In making his claim, Marshall asks this court to apply

the “incredible dubiosity rule.” Appellant’s Brief at 9. The incredible dubiosity

rule allows this court to impinge upon a jury’s responsibility to judge the

credibility of witnesses only when confronted with inherently improbable

testimony. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The appropriate

scope of the incredible dubiosity rule requires that there be: 1) a sole testifying

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 6 of 9 witness; 2) testimony that is inherently contradictory, equivocal, or the result of

coercion; and 3) a complete absence of circumstantial evidence. Moore v. State,

27 N.E.3d 749, 756 (Ind. 2015).

[16] Marshall acknowledges the State offered the testimony of several witnesses but

asserts that the “only witness that directly implicated Marshall in the crime

charged was Cureton.” Appellant’s Br. at 9. He argues Cureton’s testimony was

inherently improbable, referring to Cureton’s previous statements to the police,

a lack of detail in his description of Marshall’s clothing, and the suggestive

nature of his identification of Marshall to police on the day of the crime.

Marshall asserts that this case turns on Cureton’s testimony alone and that there

was no basis upon which a reasonable juror could have found him guilty

beyond a reasonable doubt under the incredible dubiosity rule. We disagree.

[17] With respect to the first factor, Marshall’s reliance on the incredible dubiosity

rule is misplaced. “[T]he application of this rule has been restricted to cases

where there is a single testifying witness.” Moore, 27 N.E.3d at 756 (emphasis

added). Cureton was not a single testifying witness: Marshall’s conviction was

based upon the testimony of ten State witnesses.

[18] As to the second factor, the incredible dubiosity rule applies only to conflicts in

trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006). In

other words, the second prong is satisfied “only when the witness’s trial

testimony was inconsistent within itself, not that it was inconsistent with other

evidence or prior testimony.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 7 of 9 Marshall focuses on differences between Cureton’s statements to police after the

incident and his trial testimony, but Cureton’s testimony at trial was not

inconsistent or inherently contradictory regarding the elements of the alleged

crime.

[19] And as to the third factor, “[i]n a case where there is circumstantial evidence of

an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” Id.

at 1222 (quotation omitted). Here, there was a substantial amount of

circumstantial evidence, including: 1) Sigafoose’s eyewitness account of the

chase and robbery, 2) the description of the gun used in the robbery matching

the gun found in Marshall’s possession, 3) Marshall being in possession of

Cureton’s stolen belongings, 4) Marshall being found sitting in a car next to

Cureton’s missing Monte Carlo, and 5) Marshall’s DNA being on the handgun.

[20] In sum, there is no basis for applying the incredible dubiosity rule in this case.

As such, we now evaluate whether the State presented sufficient evidence to

support Marshall’s armed robbery conviction. The State was required to prove

that Marshall knowingly or intentionally took property from another person or

from the presence of another person: (1) by using or threatening the use of force

on any person; or (2) by putting any person in fear; and that he did so while

armed with a deadly weapon. Ind. Code § 35-42-5-1(a).

[21] Here, Cureton testified that Marshall chased him down the street, pulled a gun

on him, and “told [him] to empty everything [he] had in [his] pocket[.]” Tr.,

Vol. 2 at 23-24. After he complied, Marshall then “picked up everything off the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 8 of 9 ground and he took off running.” Id. at 24. Sigafoose testified that he saw the

chase, witnessed a man empty his pockets and raise his hands, and then saw a

man with a gun pick up the items. Cureton’s key ring, cell phone, and

marijuana were later found in the Saturn Ion with Jordan and Marshall, which

was parked next to Cureton’s stolen Monte Carlo. Further, Marshall’s DNA

was found on a black gun that was located on the floor of the passenger side of

the Saturn Ion where he was sitting. Despite Marshall’s assertion that there is

no evidence tying this gun to the crime, the gun matched descriptions given by

both Cureton and Sigafoose at trial. Moreover, this evidence was corroborated

by multiple State witnesses including five police officers, two forensic

technicians, and Jordan.

[22] Thus, considering only the evidence most favorable to the verdict and all

reasonable and logical inferences to be drawn therefrom, we conclude the State

has met its burden.

Conclusion [23] For the reasons set forth above, we conclude that the incredible dubiosity rule is

inapplicable in this case and the victim’s testimony and corroborating evidence

are sufficient to support Marshall’s conviction. Therefore, we affirm.

[24] Affirmed.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 9 of 9