Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, May 28 2013, 9:43 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KEVIN WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1209-CR-761 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1108-MR-3
May 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
Kevin Williams appeals his conviction for felony murder. He contends that there
is insufficient evidence to sustain his conviction as an accomplice in the crime. Finding
that there is sufficient evidence to sustain his conviction, we affirm.
Facts and Procedural History
The facts most favorable to the verdict follow. On July 28, 2011, Michael Foster
and Dartanyan Porche spent the afternoon together and talked about robbing someone to
get some money. Foster and Porche eventually met up with Foster’s fifteen-year-old
cousin, N.P., and went to Williams’ apartment. Williams and Foster were best friends
and would see each other every day. Foster and Porche continued their conversation
about wanting to rob someone at Williams’ apartment while they waited for Williams to
iron his clothes and get dressed.
The four men spent the evening driving around in Williams’ car, visiting with two
women named Joan and Ashley, and going to another friend, Danielle Tutt’s, apartment.
At some point during the day, Porche received a phone call from Clarence Smith (“Bay
Bay”) who wanted to buy guns. Foster told Porche to tell Bay Bay that they had guns to
sell. Porche arranged for Bay Bay to buy two guns from him for $500; at the time Foster
had only one 9 mm handgun in his possession. They agreed to meet at the apartments at
1840 Summertime Trail in Lafayette, across from where Tutt lived. The plan was then to
lure Bay Bay into the hallway where Foster was hiding and then Foster would come out
with his gun and rob Bay Bay of the $500. According to Foster’s testimony, this plan
was made when he and Porche were alone in a bedroom in Tutt’s apartment and finalized
2 as they walked by themselves to go meet Bay Bay. Tr. p. 81. However, according to
Williams’ testimony, this plan was made when the group was driving around in his car.
State’s Ex. 43a p. 15.
Around 9:00 p.m., the group left to meet Bay Bay at the Summertime Trail
apartments. Foster and Porche walked to the meeting place while Williams and N.P.
moved Williams’ car to the adjacent parking lot, backing the car into a parking spot.
While waiting for the robbery, phone records indicate that Williams talked to Bay Bay on
the phone and “asked him where they wanted um, to meet him at and stuff like that.” Id.
at 17; State’s Ex. 44. Williams initially claimed that he stayed in the car during the
robbery, but he later admitted that he entered the apartment where the robbery occurred
and was returning to his car when Bay Bay showed up. State’s Ex. 43a p. 18, 21-23.
While waiting for Bay Bay, Foster told Williams or N.P. to go start the car, because the
plan was to leave in Williams’ car after the robbery. Tr. p. 84.
Bay Bay arrived at the apartments with two friends, Bianca Sharp and Jessica
Dayhuff. Bay Bay got out of Dayhuff’s car and said that he would be right back. During
the robbery, Bay Bay “ended up not cooperating” so Foster shot him in the back left side.
Id. Police were dispatched to the shooting at 9:16 p.m. Id. at 185. Bay Bay died due to a
cardiac arrhythmia caused by blood loss from the bullet wound.
Williams was returning to his car at the time of the shooting. As he was
approaching his car, he saw Dayhuff’s car and worried that Sharp and Dayhuff would see
him. State’s Ex. 43a p. 23. At that point, Williams heard a gunshot, got into his car, and
drove away with N.P. Williams then picked up Foster and Porche on a nearby street.
3 They drove away from the scene and later became aware that they were being followed
by a police car. Williams pulled the car into a driveway and the police car pulled in
behind them. When the police officer made no immediate effort to apprehend them,
Williams, Foster, and N.P. fled. The three were arrested nearby with the help of a K9
unit. Porche was also arrested in the same area. Foster and Porche had no money with
them at the time of arrest, but Williams had $105. Police later found $472 in a tree where
Williams had parked his car.
The State charged Williams with felony murder, Class A felony robbery, Class C
felony conspiracy to commit robbery, Class D felony theft, and Class B felony possession
of a firearm as a serious violent felon. Foster pled guilty to murder and testified at
Williams’ jury trial. Foster testified that Williams, his best friend, was not involved in
the plan to rob Bay Bay. However, the jury found Williams guilty on all counts. The
trial court entered judgment on the felony-murder conviction only and sentenced
Williams to fifty years in the DOC, with five years suspended to probation.
Williams now appeals.
Discussion and Decision
Williams contends that there is insufficient evidence to sustain his felony-murder
conviction. We disagree.
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence
or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable
4 to the judgment and the reasonable inferences draw therefrom and affirm if the evidence
and those inferences constitute substantial evidence of probative value to support the
judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be
able to form inferences as to each material element of the offense. Id.
Indiana Code section 35-42-1-1 governs felony murder and provides in relevant
part:
A person who: * * * * * (2) knowingly or intentionally kills another human being while committing or attempting to commit . . . robbery . . .; * * * * * commits murder, a felony.
The intent required for felony murder is not for murder, but only that required for the
underlying crime, in this case robbery. Pittman v. State, 885 N.E.2d 1246, 1258 (Ind.
2008). Robbery is governed by Indiana Code section 35-42-5-1, which provides in
relevant part:
A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; . . . commits robbery, a Class C felony. However, the offense is . . . a Class A felony if it results in serious bodily injury to any person other than a defendant.”
Our Supreme Court has held that felony murder can be based on accomplice
liability. Wieland v. State,
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, May 28 2013, 9:43 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KEVIN WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1209-CR-761 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1108-MR-3
May 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
Kevin Williams appeals his conviction for felony murder. He contends that there
is insufficient evidence to sustain his conviction as an accomplice in the crime. Finding
that there is sufficient evidence to sustain his conviction, we affirm.
Facts and Procedural History
The facts most favorable to the verdict follow. On July 28, 2011, Michael Foster
and Dartanyan Porche spent the afternoon together and talked about robbing someone to
get some money. Foster and Porche eventually met up with Foster’s fifteen-year-old
cousin, N.P., and went to Williams’ apartment. Williams and Foster were best friends
and would see each other every day. Foster and Porche continued their conversation
about wanting to rob someone at Williams’ apartment while they waited for Williams to
iron his clothes and get dressed.
The four men spent the evening driving around in Williams’ car, visiting with two
women named Joan and Ashley, and going to another friend, Danielle Tutt’s, apartment.
At some point during the day, Porche received a phone call from Clarence Smith (“Bay
Bay”) who wanted to buy guns. Foster told Porche to tell Bay Bay that they had guns to
sell. Porche arranged for Bay Bay to buy two guns from him for $500; at the time Foster
had only one 9 mm handgun in his possession. They agreed to meet at the apartments at
1840 Summertime Trail in Lafayette, across from where Tutt lived. The plan was then to
lure Bay Bay into the hallway where Foster was hiding and then Foster would come out
with his gun and rob Bay Bay of the $500. According to Foster’s testimony, this plan
was made when he and Porche were alone in a bedroom in Tutt’s apartment and finalized
2 as they walked by themselves to go meet Bay Bay. Tr. p. 81. However, according to
Williams’ testimony, this plan was made when the group was driving around in his car.
State’s Ex. 43a p. 15.
Around 9:00 p.m., the group left to meet Bay Bay at the Summertime Trail
apartments. Foster and Porche walked to the meeting place while Williams and N.P.
moved Williams’ car to the adjacent parking lot, backing the car into a parking spot.
While waiting for the robbery, phone records indicate that Williams talked to Bay Bay on
the phone and “asked him where they wanted um, to meet him at and stuff like that.” Id.
at 17; State’s Ex. 44. Williams initially claimed that he stayed in the car during the
robbery, but he later admitted that he entered the apartment where the robbery occurred
and was returning to his car when Bay Bay showed up. State’s Ex. 43a p. 18, 21-23.
While waiting for Bay Bay, Foster told Williams or N.P. to go start the car, because the
plan was to leave in Williams’ car after the robbery. Tr. p. 84.
Bay Bay arrived at the apartments with two friends, Bianca Sharp and Jessica
Dayhuff. Bay Bay got out of Dayhuff’s car and said that he would be right back. During
the robbery, Bay Bay “ended up not cooperating” so Foster shot him in the back left side.
Id. Police were dispatched to the shooting at 9:16 p.m. Id. at 185. Bay Bay died due to a
cardiac arrhythmia caused by blood loss from the bullet wound.
Williams was returning to his car at the time of the shooting. As he was
approaching his car, he saw Dayhuff’s car and worried that Sharp and Dayhuff would see
him. State’s Ex. 43a p. 23. At that point, Williams heard a gunshot, got into his car, and
drove away with N.P. Williams then picked up Foster and Porche on a nearby street.
3 They drove away from the scene and later became aware that they were being followed
by a police car. Williams pulled the car into a driveway and the police car pulled in
behind them. When the police officer made no immediate effort to apprehend them,
Williams, Foster, and N.P. fled. The three were arrested nearby with the help of a K9
unit. Porche was also arrested in the same area. Foster and Porche had no money with
them at the time of arrest, but Williams had $105. Police later found $472 in a tree where
Williams had parked his car.
The State charged Williams with felony murder, Class A felony robbery, Class C
felony conspiracy to commit robbery, Class D felony theft, and Class B felony possession
of a firearm as a serious violent felon. Foster pled guilty to murder and testified at
Williams’ jury trial. Foster testified that Williams, his best friend, was not involved in
the plan to rob Bay Bay. However, the jury found Williams guilty on all counts. The
trial court entered judgment on the felony-murder conviction only and sentenced
Williams to fifty years in the DOC, with five years suspended to probation.
Williams now appeals.
Discussion and Decision
Williams contends that there is insufficient evidence to sustain his felony-murder
conviction. We disagree.
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence
or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable
4 to the judgment and the reasonable inferences draw therefrom and affirm if the evidence
and those inferences constitute substantial evidence of probative value to support the
judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be
able to form inferences as to each material element of the offense. Id.
Indiana Code section 35-42-1-1 governs felony murder and provides in relevant
part:
A person who: * * * * * (2) knowingly or intentionally kills another human being while committing or attempting to commit . . . robbery . . .; * * * * * commits murder, a felony.
The intent required for felony murder is not for murder, but only that required for the
underlying crime, in this case robbery. Pittman v. State, 885 N.E.2d 1246, 1258 (Ind.
2008). Robbery is governed by Indiana Code section 35-42-5-1, which provides in
relevant part:
A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; . . . commits robbery, a Class C felony. However, the offense is . . . a Class A felony if it results in serious bodily injury to any person other than a defendant.”
Our Supreme Court has held that felony murder can be based on accomplice
liability. Wieland v. State, 736 N.E.2d 1198, 1202-03 (Ind. 2000); Williams v. State, 706
N.E.2d 149, 157 (Ind. 1999) (“All participants in a robbery or attempted robbery which
results in killing by one robber are deemed equally guilty of murder, regardless of which
participant actually killed the victim.”). Indiana’s accomplice liability statute states that a
5 person “who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense . . . .” Ind. Code § 35-41-2-4. Factors that are to
be considered to determine whether a defendant acted as an accomplice include: “(1)
presence at the scene of the crime; (2) companionship with another engaged in a crime;
(3) failure to oppose the commission of the crime; and (4) the course of conduct before,
during, and after the occurrence of the crime.” Wieland, 736 N.E.2d at 1202.
The evidence presented at trial was sufficient to show that Williams was an
accomplice to the robbery and resulting murder of Bay Bay. Williams spent the
afternoon and the evening of the day of the robbery driving around with Foster and
Porche, and Williams’ own statement was that he was present when the plan to rob Bay
Bay was devised.1 State’s Ex. 43a p. 15. Williams also moved his car to the parking lot
adjacent to the Summertime Trail apartments and backed into a parking space, id. at 15-
17, and the plan called for him to be the getaway driver, which is sufficient to support a
robbery conviction. Harvey v. State, 546 N.E.2d 844, 845 (Ind. 1989). After the robbery
Williams fled from the scene, providing circumstantial evidence of his guilt. State’s Ex.
43a p. 18; Gee v. State, 526 N.E.2d 1152, 1158 (Ind. 1988). Williams picked up Foster
and Porche on a nearby street, and he later fled again, this time on foot, when the police
pulled his car over in a driveway. State’s Ex. 43a p. 18, 49-50.
1 The jury was properly instructed that
[m]ere presence of a person where a crime is being committed, even coupled with knowledge by the person that a crime is being committed, or the mere acquiescence by a person in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding, inducing, or causing a crime.
Appellant’s App. p. 51. 6 Finally, Williams was in possession of $105, while Foster and Porche were not
found to have any money in their possession after the robbery. Tr. p. 454-55. Only $472
was found in the yard next to Williams’ car, and the agreed upon price for the guns was
$500, so it was reasonable for the jury to conclude that Williams’ money included some
of the money from the robbery.
All of this evidence, taken together, is sufficient to sustain Williams’ felony-
murder conviction. It was reasonable for the jury to conclude that Williams knowingly or
intentionally aided Foster and Porche in taking Bay Bay’s money that night, thereby
making him an accomplice to the robbery. Because the robbery resulted in Bay Bay’s
murder and a felony-murder conviction can be based on accomplice liability, it was not
unreasonable for the jury to conclude that Williams was guilty of felony murder.
Williams’ argument therefore is merely an attempt for us to reweigh the evidence, which
we will not do. We affirm his conviction.
Affirmed.
KIRSCH, J., and PYLE, J., concur.