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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY L. SANFORD GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana
GARY R. ROM Deputy Attorney General
FILED Indianapolis, Indiana
Apr 11 2012, 9:21 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
PATRICK DEWAYNE CARR, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1105-CR-261 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable R.W. Chamblee, Jr., Judge Cause No. 71D08-0910-FB-127
April 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Patrick Dewayne Carr, Jr. (“Carr”) appeals after a jury trial from his convictions for
one count of robbery1 as a Class B felony, one count of burglary2 as a Class B felony, and one
count of attempted murder3 as a Class A felony. Carr presents the following issue for our
review: whether there is sufficient evidence to support his convictions.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 28, 2009, Shelby Taylor (“Shelby”) made plans with Paige Shields
(“Paige”) to spend some time at Rowland “Roy” Mwaungulu’s (“Roy”) apartment in the
Regency Royal (“Regency”) apartment complex in Mishawaka, Indiana. Paige, who was
seventeen years old, had recently met Roy, who was twenty-six years old but Shelby, who
was eighteen years old, had never met him. Later in the evening, Paige picked up Shelby at
her house. Two men were in the car. One of the men was Martel “Threat” Washington
(“Threat”), who also went by the name Martel Coleman, and who was Paige’s boyfriend.
The other man was known as City. Paige dropped off the two men at another apartment
complex before continuing to drive with Shelby to Roy’s apartment.
When Paige and Shelby arrived at the Regency, Roy buzzed them in. Paige was in
and out of Roy’s apartment while on the phone with Threat because of “baby daddy drama.”
Tr. at 21. Paige left the main door, where Roy had buzzed in the two girls, ajar. Between
1 See Ind. Code § 35-42-5-1. 2 See Ind. Code § 35-43-2-1. 3 See Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1 (murder).
2 8:44 p.m. and midnight, Paige made fourteen outgoing texts or phone calls to Threat. At
9:34 p.m. and 10:04 p.m., she placed phone calls to Carr.
Paige left the apartment, but returned approximately fifteen minutes later. When she
returned, she left the door to Roy’s apartment cracked open, stating that she did that because
she was waiting for a phone call. Three men wearing all black and armed with guns suddenly
kicked in the door to Roy’s apartment. The men started screaming “get on the ground,
m*th*r f*ck*r.” Tr. at 24. Shelby started to go to the floor, but Roy stood up and tried to run
from the intruders. Roy saw Carr holding a gun. The men started shooting at Roy. Shelby
saw Paige run out of the apartment and followed her. Roy ran down a hallway in his
apartment to his bedroom and called 911. He hid in a closet there until police officers
arrived.
Roy discovered that his keys to his apartment and car were missing. Police found
spent .25 caliber and 9mm casings outside and inside Roy’s apartment and saw bullet holes
in the wall and in the door to the apartment. Approximately five minutes after running out of
Roy’s apartment, Shelby and Paige returned to Roy’s apartment. Paige told the officers that
she, too, was missing her car keys to her burgundy Oldsmobile. Based on that information,
officers watched the vehicle to see if anyone would come and pick it up. Vanessa Leal
(“Vanessa”), who was storing her belongings at the apartment of Threat’s sister, Danielle,
saw Threat earlier in the day at Danielle’s apartment with a gun “tucked into his pants.” Id.
at 141. Vanessa left the apartment and returned later in the day. At that time, she saw Threat
there and two of his friends. Vanessa identified Carr as one of the individuals she saw. She
3 said that each of them was wearing dark clothing and described their behavior as being in a
hurry “looking out the window, whispering among themselves, just jittery.” Id. at 144.
After the crimes had occurred, Vanessa gave Carr, Threat, and the other man, a ride
to the Regency to find the keys to Threat’s burgundy Oldsmobile. While at the Regency,
Threat and Carr unsuccessfully searched for the car keys in the parking lot, while the third
man remained in the car. Vanessa then drove the three men back to Danielle’s apartment.
Vanessa offered to walk to the Regency to search for the missing keys. She did so and
successfully found the keys. Vanessa then started to drive Threat’s car back to Danielle’s
apartment when officers pulled the vehicle over. She told the officers that she was driving
Threat’s car, that he and two other men were at Danielle’s apartment, and gave them their
location.
After obtaining a search warrant for Danielle’s apartment, the SWAT team entered
and found Carr in the bedroom and Threat and the other man in the bedroom closet. Officers
recovered .38 caliber bullets and a loaded .25 caliber handgun. Roy’s keys were found in a
bush just outside the apartment.
Later that same evening, Roy identified Threat as one of the intruders from six in
loose photographs. Threat was the only person involved in the break-in whose photograph
was included in that array. Police officers also transported Paige and Shelby to the police
station for questioning. The next day, Roy identified Carr from a set of two photo arrays.
The State charged Carr with one count of robbery as a Class B felony, one count of
burglary as a Class B felony, and one count of attempted murder as a Class A felony. After a
4 jury trial, Carr was found guilty as charged. The trial court sentenced Carr to terms of ten
years executed for each of the Class B felony convictions and to a term of thirty years, with
twenty years executed and ten years suspended for the Class A felony conviction, each to be
served concurrently, followed by a period of probation. Carr now appeals.
DISCUSSION AND DECISION
Sufficiency of the Evidence
Carr challenges the sufficiency of the evidence supporting his convictions. When
reviewing the sufficiency of the evidence, we consider only the probative evidence and
reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct.
App. 2009). We do not reweigh the evidence or reassess witness credibility. Id. We
consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm
the conviction unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. Carr’s attack on the sufficiency of the evidence for each of
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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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY L. SANFORD GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana
GARY R. ROM Deputy Attorney General
FILED Indianapolis, Indiana
Apr 11 2012, 9:21 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
PATRICK DEWAYNE CARR, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1105-CR-261 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable R.W. Chamblee, Jr., Judge Cause No. 71D08-0910-FB-127
April 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Patrick Dewayne Carr, Jr. (“Carr”) appeals after a jury trial from his convictions for
one count of robbery1 as a Class B felony, one count of burglary2 as a Class B felony, and one
count of attempted murder3 as a Class A felony. Carr presents the following issue for our
review: whether there is sufficient evidence to support his convictions.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 28, 2009, Shelby Taylor (“Shelby”) made plans with Paige Shields
(“Paige”) to spend some time at Rowland “Roy” Mwaungulu’s (“Roy”) apartment in the
Regency Royal (“Regency”) apartment complex in Mishawaka, Indiana. Paige, who was
seventeen years old, had recently met Roy, who was twenty-six years old but Shelby, who
was eighteen years old, had never met him. Later in the evening, Paige picked up Shelby at
her house. Two men were in the car. One of the men was Martel “Threat” Washington
(“Threat”), who also went by the name Martel Coleman, and who was Paige’s boyfriend.
The other man was known as City. Paige dropped off the two men at another apartment
complex before continuing to drive with Shelby to Roy’s apartment.
When Paige and Shelby arrived at the Regency, Roy buzzed them in. Paige was in
and out of Roy’s apartment while on the phone with Threat because of “baby daddy drama.”
Tr. at 21. Paige left the main door, where Roy had buzzed in the two girls, ajar. Between
1 See Ind. Code § 35-42-5-1. 2 See Ind. Code § 35-43-2-1. 3 See Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1 (murder).
2 8:44 p.m. and midnight, Paige made fourteen outgoing texts or phone calls to Threat. At
9:34 p.m. and 10:04 p.m., she placed phone calls to Carr.
Paige left the apartment, but returned approximately fifteen minutes later. When she
returned, she left the door to Roy’s apartment cracked open, stating that she did that because
she was waiting for a phone call. Three men wearing all black and armed with guns suddenly
kicked in the door to Roy’s apartment. The men started screaming “get on the ground,
m*th*r f*ck*r.” Tr. at 24. Shelby started to go to the floor, but Roy stood up and tried to run
from the intruders. Roy saw Carr holding a gun. The men started shooting at Roy. Shelby
saw Paige run out of the apartment and followed her. Roy ran down a hallway in his
apartment to his bedroom and called 911. He hid in a closet there until police officers
arrived.
Roy discovered that his keys to his apartment and car were missing. Police found
spent .25 caliber and 9mm casings outside and inside Roy’s apartment and saw bullet holes
in the wall and in the door to the apartment. Approximately five minutes after running out of
Roy’s apartment, Shelby and Paige returned to Roy’s apartment. Paige told the officers that
she, too, was missing her car keys to her burgundy Oldsmobile. Based on that information,
officers watched the vehicle to see if anyone would come and pick it up. Vanessa Leal
(“Vanessa”), who was storing her belongings at the apartment of Threat’s sister, Danielle,
saw Threat earlier in the day at Danielle’s apartment with a gun “tucked into his pants.” Id.
at 141. Vanessa left the apartment and returned later in the day. At that time, she saw Threat
there and two of his friends. Vanessa identified Carr as one of the individuals she saw. She
3 said that each of them was wearing dark clothing and described their behavior as being in a
hurry “looking out the window, whispering among themselves, just jittery.” Id. at 144.
After the crimes had occurred, Vanessa gave Carr, Threat, and the other man, a ride
to the Regency to find the keys to Threat’s burgundy Oldsmobile. While at the Regency,
Threat and Carr unsuccessfully searched for the car keys in the parking lot, while the third
man remained in the car. Vanessa then drove the three men back to Danielle’s apartment.
Vanessa offered to walk to the Regency to search for the missing keys. She did so and
successfully found the keys. Vanessa then started to drive Threat’s car back to Danielle’s
apartment when officers pulled the vehicle over. She told the officers that she was driving
Threat’s car, that he and two other men were at Danielle’s apartment, and gave them their
location.
After obtaining a search warrant for Danielle’s apartment, the SWAT team entered
and found Carr in the bedroom and Threat and the other man in the bedroom closet. Officers
recovered .38 caliber bullets and a loaded .25 caliber handgun. Roy’s keys were found in a
bush just outside the apartment.
Later that same evening, Roy identified Threat as one of the intruders from six in
loose photographs. Threat was the only person involved in the break-in whose photograph
was included in that array. Police officers also transported Paige and Shelby to the police
station for questioning. The next day, Roy identified Carr from a set of two photo arrays.
The State charged Carr with one count of robbery as a Class B felony, one count of
burglary as a Class B felony, and one count of attempted murder as a Class A felony. After a
4 jury trial, Carr was found guilty as charged. The trial court sentenced Carr to terms of ten
years executed for each of the Class B felony convictions and to a term of thirty years, with
twenty years executed and ten years suspended for the Class A felony conviction, each to be
served concurrently, followed by a period of probation. Carr now appeals.
DISCUSSION AND DECISION
Sufficiency of the Evidence
Carr challenges the sufficiency of the evidence supporting his convictions. When
reviewing the sufficiency of the evidence, we consider only the probative evidence and
reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct.
App. 2009). We do not reweigh the evidence or reassess witness credibility. Id. We
consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm
the conviction unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. Carr’s attack on the sufficiency of the evidence for each of
his convictions involves the identification testimony. He argues that without the
identification component of each offense, there is insufficient evidence to support his
convictions for each crime.
In particular, Carr challenges Roy’s identification of him as one of the three men who
broke into his apartment, took his keys, and fired shots at him. At trial, Roy testified that
after he heard the sound from the door being kicked in, he looked up and saw three men. He
identified Carr as the one he took a good look at, that Carr was standing by the door, and that
Roy remembered what Carr’s eyes looked like. Roy gave the police detailed information
5 about the crimes. He also selected Carr’s photograph from a photo array and identified him
in court as one of the intruders. At trial, Roy was questioned extensively about his ability to
see the intruders, the length of time he saw them, and about his initial statements to police
officers that he could not identify the intruders.
Vanessa testified that Carr was among the men who were at Danielle’s apartment on
the night of the crimes and to whom she gave a ride to the Regency in order to look for
missing keys. Officers found Carr in Danielle’s apartment in a bedroom, and Threat and
another male were found hiding in the bedroom closet.
Carr had an expert witness testify about problems with eyewitness identification. That
witness also testified about Department of Justice guidelines regarding the collection of
eyewitness identification. Corporal Michael Dube (“Corporal Dube”) of the Mishawaka
Police Department had testified during the State’s case that he transported Vanessa to the
police station after he and another officer pulled her over while driving Threat’s car.
Vanessa told Corporal Dube that she was returning Threat’s car to him and that he was at
Danielle’s apartment. The name she provided was Threat’s given name, Martel. Corporal
Dube relayed that information to another officer investigating the crimes, and that officer
provided him with several photos, including Threat’s photo, to show to Roy. Corporal Dube
further testified that he had never conducted a photo lineup before, and that he was
unfamiliar with Department of Justice Guidelines for such. He presented the photographs to
Roy as a stack of photographs. Roy selected Threat’s photograph from the stack of photos he
was shown.
6 While the officer’s lack of familiarity with Department of Justice Guidelines for
conducting photo lineups is worrisome, we conclude that the identification evidence was
sufficient nonetheless. Carr’s attorney vigorously cross-examined the witnesses who
identified Carr as one of the intruders and challenged their accounts of the crimes. Further,
Carr’s attorney presented expert testimony about the reliability of eyewitness identification
and the testimony of an officer who asked Roy, Paige, and Shelby if they recognized any of
the suspects. That officer testified that they indicated they did not recognize anyone. Carr
presented evidence to the jury challenging the credibility of the witnesses and the accuracy of
their identification of Carr as one of the intruders. Any challenges to the identification
evidence would be a consideration for the jury in their assessment of the weight to be given
to that testimony. On review, we do not reweigh the evidence or reassess witness credibility.
Mork , 912 N.E.2d at 411. Here, the identification evidence, while not overwhelming, is
sufficient to support the convictions.
Although Carr does not challenge the sufficiency of the evidence in any other regard
than with respect to identification, we nonetheless address the sufficiency of the evidence
supporting Carr’s convictions. The State charged Carr as an accomplice. “Under the theory
of accomplice liability, one who aids or assists in a crime is equally as culpable as the one
who commits the actual crime.” Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App. 2011).
Accomplice liability is a separate basis of liability for the crime charged, but there is no
distinction between the criminal responsibility of a principal and an accomplice. Id.
7 In order to establish beyond a reasonable doubt that Carr committed the offense of
robbery as a Class B felony, the State was required to prove that Carr, while armed with a
deadly weapon, knowingly or intentionally took property from Roy by using or threatening
the use of force, or by putting Roy in fear. Ind. Code § 35-42-5-1. In order to establish
beyond a reasonable doubt that Carr committed the offense of burglary as a Class B felony,
the State was required to prove that Carr, while armed with a deadly weapon, broke and
entered Roy’s apartment with the intent to commit a felony therein. Ind. Code § 35-43-2-1.
In order to establish beyond a reasonable doubt that Carr committed the offense of attempted
murder, the State was required to prove that Carr, while armed with a deadly weapon,
intentionally fired the weapon in a manner likely to cause death or serious injury. Ind. Code
§§ 35-41-5-1; 35-42-1-1.
Here, the evidence most favorable to the jury’s verdict established that Carr, City, and
Threat, while armed with weapons, kicked in the door of Roy’s apartment, fired shots at Roy,
and took the keys to his car and his apartment. Therefore, there was sufficient evidence from
which the jury could convict Carr of these offenses.
Affirmed.
BARNES, J., and BRADFORD, J., concur.