Marshawn Malik Weems v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 22, 2016
• Docket: 71A03-1602-CR-303
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 22 2016, 8:54 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas P. Keller Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marshawn Malik Weems, August 22, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1602-CR-303 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable J. Jerome Frese, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1503-F2-4

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 1 of 11 [1] Marshawn Malik Weems appeals his conviction for robbery as a level 2 felony.

Weems raises one issue which we revise and restate as whether the evidence is

sufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] On February 26, 2015, just after 2:00 p.m., William Chaney was in the

driveway of his god-daughter’s house on Elwood Street in South Bend, Indiana,

helping to unload groceries when a young black male approximately twenty

years old and about six-feet tall, wearing dark clothes, approached him from

behind and told Chaney to give him his wallet or that he would shoot. Chaney

turned around and observed that the man had a gun pointed at Chaney’s head,

and he tried convincing the man that he did not have any money and that this

robbery was a “bad idea.” Transcript at 18. The man repeated “your wallet or

I shoot you,” and Chaney, believing that he did not have enough money to

make the assailant happy with just robbing him, threw a jar of jelly at the man’s

head and “hard-charged” him, forcing the man to back-pedal towards the edge

of the alley. Id. at 18-19. The man then fired the gun, hitting Chaney in the

abdomen, and while Chaney was on the ground the man took his wallet and

checkbook. The assailant then ran away.

[3] Officers of the South Bend Police Department responded to the scene, and

Chaney told police upon their arrival that he heard his assailant run away in the

direction towards Brookfield down an alley. Chaney described the attack and

assailant to Officer Samuel Chaput. Officer Nicholas Pogotis located a shell

casing for a .45 caliber bullet at the scene. He and other officers noticed a Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 2 of 11 distinctive shoe impression in the snow behind Chaney’s vehicle which

continued in a left foot, right foot pattern proceeding west down the alley,

turning north in the north-south alley on the east side of Brookfield Street, and

then again turning west to the back door of a residence on Brookfield Street.

Based on the length of the strides and the toe indentation, it appeared that the

person making these impressions had been running. Officers secured the

perimeter of the Brookfield residence.

[4] The officers made contact with Marilyn Lumpkin, the current tenant of that

residence, who was the mother of Mario Lumpkin. Marilyn consented to a

police search of the home, and she told the other occupants, including Weems,

Mario, and other female occupants, to come outside. Weems was thin and

between five feet, six inches and five feet, eight inches tall, and Mario was

heavyset and between five feet, two inches and five feet, four inches tall.

Officer David Trout recovered a Ruger .45 caliber handgun from the attic of the

home wrapped in a t-shirt and placed between two pillars or joists and under a

layer of insulation. When officers searched the basement, they discovered dark

clothes in the washing machine in the middle of the wash cycle. Officers also

recovered from the house a pair of shoes with a sole pattern consistent with the

footprints they had followed from the scene of the shooting to the home,

although the shoes were “much smaller” in size than the shoe that had left the

footprints. Id. at 128.

[5] Detective Gery Mullins transported Weems and his mother, Laurie Cotton, to

the South Bend Police Department for questioning. After consulting privately

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 3 of 11 with his mother, Weems agreed to talk to the police. Weems told Detective

Mullins that he and Mario had left the house to walk to Martin’s to buy a

frozen pizza but went back to change clothes after “he realized how cold it

was.” Id. at 181. Detective Mullins asked Weems if he knew anything about

guns in the Lumpkins’ home, and he initially denied knowing anything.

Detective Mullins asked Weems if his fingerprints were on the gun, and Weems

stated yes because he and Mario had been handling the guns the night before.

After Detective Mullins explained to Weems that he could compare a shell

casing recovered from the scene of a crime with a particular gun and could

determine whether that gun was used to fire the bullet, Weems told Detective

Mullins that “you’re going to find out that that gun was used in the shooting.”

Id. at 184. Weems did not explain how he knew that the gun was used or how

it had been placed in the attic.

[6] The police confiscated the cell phones of Weems and Mario and obtained a

search warrant. A number of videos were recovered from the phones, including

a video on Weems’s phone recorded within an hour prior to the robbery of

Chaney depicting Weems holding the gun recovered from the house and saying

“get yo f-ckin’ money, ya man . . . ain’t nothin’ to it but to do it man, ain’t

nothin’ to it but to do it” and “I know y’all wonderin’ what the f-ck this is, but

it’s a f-ckin’ 30 b-tch.” State’s Exhibit 40. Another video on Weems’s phone

three days before the robbery depicted Weems walking through an alley, in

which still frames of the left and right shoes he was wearing depicted the Air

Jordan logo, similar to the shoes recovered from the home and matching the

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 4 of 11 footprints in the snow after the robbery. A third video on Weems’s phone

shows Weems walking with Mario about thirty minutes after the robbery on

Elwood Street, in which Weems states: “mo-f-ckers ain’t know what the f-ck it

is, we da reason why we got these detectives on that case . . . detectives boy . . .

look at this sh-t . . . y’all finna see us here, we [inaudible] it . . . look at this sh-

t,” and “that’s it bro, that’s it, we the reason why the detectives on the

[inaudible].” State’s Exhibit 41. At the time the video was made, officers had

not yet arrived at the Brookfield residence and were following the footprints in

the snow.

[7] A fourth video, over seven minutes long, recovered from Weems’s phone

depicts Weems staying out of view of police by standing on the stairwell in the

house while Mario speaks with an officer through a storm door, and depicts

Weems trying to whisper answers to Mario. In the video, the officer asks

Mario if anyone else is in the house, and Mario responds that only he, his

younger sister, and his aunt are home. The recording shows Weems sneaking

down the stairs to observe the officers stationed outside through closed window

blinds, and Weems turns the camera to record himself giving the middle finger

towards the direction of the police and stating “f-ck” and “f-ck the law.” State’s

Exhibit 42.

[8] On March 2, 2015, the State charged Weems with robbery as a level 2 felony.

On December 11, 2015, the court held a bench trial at which evidence

consistent with the foregoing was presented. At the trial, Dinay Lloyd, who

came into contact with Weems while they were both being held at the St.

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 5 of 11 Joseph County Jail, testified that Weems told him that he was in jail because

“he attempted to rob a person while unloading some groceries,” that “the

person hit him” with “[a] jar of jelly,” and that “he shot him in the leg” and

“ran to his family, his cousin’s house, where they followed him back to -- where

they traced him through -- through the snow.” Transcript at 150-151. Ray

Wolfenbarger, a firearm and tool mark examiner for the South Bend Police

Department, testified that the shell casing found at the scene of the robbery was

fired from the handgun recovered from the Lumpkins’ attic.

[9] The court found Weems guilty as charged and on January 7, 2016, sentenced

him to a term of twenty years.

Discussion

[10] The issue is whether the evidence is sufficient to sustain Weems’s conviction for

robbery as a level 2 felony. When reviewing the sufficiency of the evidence to

support a conviction, we must consider only the probative evidence and

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.

Id. We consider conflicting evidence most favorably to the trial court’s ruling.

Id. We affirm the conviction unless “no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins

v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

is sufficient if an inference may reasonably be drawn from it to support the

verdict. Id. It is well established that “circumstantial evidence will be deemed Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 6 of 11 sufficient if inferences may reasonably be drawn that enable the trier of fact to

find the defendant guilty beyond a reasonable doubt.” Kenney v. State, 908

N.E.2d 350, 352 (Ind. Ct. App. 2009), trans. denied. Identification testimony

need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661

N.E.2d 612, 616 (Ind. Ct. App. 1996). Inconsistencies in identification

testimony impact only the weight of that testimony, because it is the jury’s task

to weigh the evidence and determine the credibility of the witnesses. Gleaves v.

State, 859 N.E.2d 766, 770 (Ind. Ct. App. 2007) (citing Badelle v. State, 754

N.E.2d 510 (Ind. Ct. App. 2001), trans. denied).

[11] The offense of robbery is governed by Ind. Code § 35-42-5-1, which provides

that:

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; or

(2) by putting any person in fear;

commits robbery, a Level 5 felony. However, the offense is a Level 3 felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Level 2 felony if it results in serious bodily injury to any person other than a defendant.

Thus, to convict Weems of robbery as a level 2 felony, the State needed to

prove that he knowingly or intentionally took property from Chaney by using

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 7 of 11 or threatening the use of force or by putting Chaney in fear, which resulted in

serious bodily injury.

[12] Weems suggests that the evidence was insufficient to prove that he was the

person who shot Chaney, noting specifically that Cheney did not identify him

at trial and did not precisely remember the clothing worn by the assailant. He

argues that the shoes recovered from the home were too small to make the

footprints leading from the scene to the house and, although a video from

Weems’s phone depicts him wearing Air Jordan shoes, without the actual shoe

owned by Weems there is no way to compare size and tread pattern. Weems

asserts that, “[w]hile officers testified that they did not see anyone enter or leave

the residence on Brookfield from the time that they began their surveillance,

there was a period of time between the shooting and the police arrival at the

home where people came and left” and that the State cannot say there was no

one else at the house who had access to the gun because Weems and Mario left

to purchase a frozen pizza. Appellant’s Brief at 6 (citation omitted). The State

maintains that it presented sufficient evidence to convict Weems.

[13] The evidence most favorable to Weems’s conviction reveals that, on February

26, 2015, a person matching his description robbed Chaney, shot him in the

abdomen, and ran down an alley, leaving a trail of footprints from Air Jordan

shoes. Video recovered from Weems’s phone shows him wearing Air Jordan

shoes three days before the robbery. The footprints led police to a residence on

Brookfield Avenue that was occupied by Weems and his friend Mario

Lumpkin, who was shorter and stockier than Weems, and Weems and Mario

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 8 of 11 were the only males at the residence. Upon searching the residence, police

recovered a Ruger .45 caliber handgun, which had been hidden in the attic of

the home wrapped in a t-shirt between two joists and under a layer of

insulation, as well as dark clothes being washed in the washing machine.

Wolfenbarger determined that it was the same handgun that had been used to

shoot Chaney. After first denying any knowledge of the gun, Weems admitted

to Detective Mullins that his fingerprints were on the gun and that the police

would discover that it was indeed the gun used to shoot Chaney, although he

was unable to explain how he knew the gun had been used in the shooting or

why it was hidden in the attic. Another video recovered from Weems’s phone

made one hour prior to the robbery of Chaney depicts Weems holding the same

gun stating “get yo f-ckin’ money, ya man . . . ain’t nothin’ to it but to do it

man, ain’t nothin’ to it but to do it” and “I know y’all wonderin’ what the f-ck

this is, but it’s a f-ckin’ 30 b-tch.” State’s Exhibit 40.

[14] Additionally, a third video recovered from Weems’s phone recorded

approximately thirty minutes following the robbery depicts Weems and Mario

walking on Elwood Street, in which Weems states: “mo-f-ckers ain’t know

what the f-ck it is, we da reason why we got these detectives on that case . . .

detectives boy . . . look at this sh-t . . . y’all finna see us here, we [inaudible] it . .

. look at this sh-t,” and “that’s it bro, that’s it, we the reason why the detectives

on the [inaudible].” State’s Exhibit 41. Another video shot during the police

encounter with Mario at the door of the Brookfield residence depicts Weems

whispering answers to Mario for the police and Weems recording himself

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 9 of 11 giving the middle finger towards the direction of the police and stating “f-ck”

and “f-ck the law.” State’s Exhibit 42. Additionally, Dinay Lloyd testified that

Weems admitted to shooting Chaney and recited the circumstances of the

offense consistent with the facts presented at trial.

[15] Based upon the record, we conclude that the State presented evidence of a

probative nature from which a reasonable trier of fact could find beyond a

reasonable doubt that Weems committed the crime of robbery as a level 2

felony. Hill v. State, 773 N.E.2d 336, 347-348 (Ind. Ct. App. 2002) (holding that

the evidence was sufficient to support Hill’s convictions for robbery, criminal

confinement, and carrying a handgun without a license, where the evidence

revealed that “a man, armed with a gun and wearing a white jacket, jean shorts,

white tube socks, and white tennis shoes, shot Barr in the stomach, ordered

Wagner to open the register and lie on the floor, and stole money from the

register at the liquor store,” that the robber drove away and crashed into some

trees and left the car, leaving the gun behind, and ran through a creek and

toward Gale Street, that between Gale Street and the creek police recovered a

beige jacket, that a winded Hill knocked on a door and asked to use the phone

“wearing jean shorts, white socks, and white tennis shoes, and he had to take

his socks off to wring them out because they were soaked with water,” and that

his fingerprint was found on the car that the robber had been driving), reh’g

granted on other grounds, 777 N.E.2d 795 (Ind. Ct. App. 2002), trans. denied, cert.

denied, 540 U.S. 832, 124 S. Ct. 79 (2003); see also Kenney, 908 N.E.2d at 353-

354 (affirming the defendant’s conviction for felony murder based upon

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 10 of 11 evidence including the presence of his palm print found outside of the victim’s

car and that the defendant was acquainted with a co-defendant, and noting that

even though an eyewitness was unable to positively identify the defendant he

closely matched the description given).

Conclusion

[16] For the foregoing reasons, we affirm Weems’s conviction for robbery as a level

2 felony.

[17] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-303 | August 22, 2016 Page 11 of 11