Robert Drake v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2018
• Docket: 49A02-1710-CR-2278
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 24 2018, 6:27 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Drake, April 24, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2278 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff Hawkins, Judge Trial Court Cause No. 49G05-1609-MR-36877

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 1 of 11 Case Summary [1] Robert Drake was convicted of murder and sentenced to a below-advisory term

of fifty years. He now appeals, arguing that the evidence is insufficient to

support his conviction and that the trial court abused its discretion in sentencing

him. We affirm.

Facts and Procedural History [2] The evidence most favorable to the verdict establishes that in September 2016,

Joshawa Burge, Cody Abell, Dominique Dunbar, and Joshua Hatfield lived

together in a house at 1102 North Kealing Avenue in Indianapolis. Cody’s dog

also lived in the house. Joshawa, Cody, and Dominque knew each other from

college and had lived in the house for a couple years; Joshua had recently

moved in. Two additional men, Danny Campbell and Travon Smith, were

temporarily staying at the house. Drake was “cousins” with Danny and had

previously visited the house, but it had been “a long time,” at least six months.

Tr. Vol. II p. 161. As of September 2016, Danny and Drake “weren’t talking

anymore” because of an argument. Id. at 163.

[3] James Collier lived across the street from 1102 North Kealing. Although it was

a high-crime area (James had video-surveillance equipment installed at his

house), he did not notice a lot of activity at 1102 North Kealing. On Tuesday,

September 6, 2016, James got home from work a little before 9:00 p.m. and

heard “a lot of loud talking” and “hustling type stuff” in the front yard of 1102

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 2 of 11 North Kealing. Tr. Vol. III p. 123. He saw four to six men that he did not

associate with 1102 North Kealing. According to James, the men were “trying

to figure out what they were gonna do.” Id. at 124.

[4] Around the same time, the housemates were playing video games in various

parts of the house: Joshawa was in the living room; Danny and Travon were in

the adjacent dining room; Cody was in his bedroom upstairs with the door

open; and Joshua was in his bedroom upstairs with the door open. Dominque

was in his bedroom upstairs but had just come downstairs to get a drink.

Around 9:00 p.m., there was a knock on the front door. Suspecting it was the

pizza they had ordered, Dominque, who was passing by the front door, went to

answer it. As Dominique reached for the door handle, the door was pushed in

from the outside. Joshawa looked up and saw Drake—who he immediately

recognized as Danny’s cousin—standing in the doorway. Joshawa did not

expect to see Drake “that night or any other night.” Tr. Vol. II p. 93. Joshawa

then saw a hand holding a gun come through the doorway behind Drake and

hit Dominique in the head with the gun, knocking off his glasses.

[5] Drake entered the house “like he had a purpose.” Id. at 123. As Drake passed

through the living room on his way to the dining room—where his cousin

Danny and Travon were—he said, “They’re back here. They’re back here, get

him.” Id. at 94. From their bedrooms, Cody heard someone (who was not one

of his housemates) shout “he’s back here,” id. at 151, and Joshua heard a

commotion followed by someone saying in a loud voice, “He’s in here. Come

get him,” id. at 191. Danny and Travon got up and ran toward the kitchen. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 3 of 11 at 136. Drake “chased them.” Id. at 98. Joshawa—who stayed in the living

room because Drake had ordered him to “[g]et down”—saw a “scuffle going on

by the back door in the kitchen.” Id. at 94, 99. Specifically, Drake, Danny, and

Travon were “wrestling and fighting in the kitchen,” and Danny and Travon

“were trying to get out the back door, away from” Drake. Id. at 99.

[6] In the meantime, Dominique pushed the other would-be intruders out the front

door and onto the porch. Once outside, a shot was fired, striking Dominique in

the left eye and killing him. Cody and Joshua, accompanied by the dog, ran

downstairs and out the open front door. They saw Dominique lying at the

bottom of the porch stairs. As three men were running away from the house,

the dog chased them to a silver car that was parked across the street. The dog

grabbed one of the men by the ankle as he was getting into the passenger side of

the car; several shots were fired, killing the dog. The men drove away in the

car.

[7] After the men drove away, Cody was standing in the front yard when he saw a

man who looked like Drake run behind him. A “frantic” Joshua flagged down

an Indianapolis Metropolitan Police Department officer. Id. at 71. Homicide

detectives and crime-scene technicians arrived on the scene shortly thereafter.

Based on the fired cartridges and the bullets recovered from the bodies of

Dominique and the dog, it was determined that three guns were fired. Tr. Vol.

III p. 98.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 4 of 11 [8] Detective John Breedlove immediately started looking for Drake. On

September 19, Detective Breedlove received a phone call from a bishop in

Nashville, Tennessee. The bishop said that Drake was in Nashville and

“wanted to turn himself in.” Id. at 184. Detective Breedlove drove to Nashville

to speak with Drake. After being given Miranda warnings, Drake gave a

videotaped statement. See Ex. 77. Drake said that on the night of September 6

he went to 1102 North Kealing, alone, to reconcile with Danny, that he did not

know the three men that came to the house after him, that he did not say

anything like “get him” when he entered the house, and that he pushed Danny

and Travon through the house in order to save their lives. When Detective

Breedlove told Drake that his story was not believable, Drake maintained that

he did not know the three men and that it was a “coincidence” that they came

to the house right after him. Id. (Drake describing it as an “ambush”). Drake

said he left Indianapolis for Nashville the morning after the shooting.

[9] The State charged Drake with murder (during the commission or attempted

commission of burglary), Level 1 felony burglary, and Level 5 felony criminal

confinement (Danny). Before trial, the State dismissed the criminal-

confinement charge.1 At the jury trial, the State’s theory was that Drake was an

accomplice. See Tr. Vol. IV p. 30 (prosecutor arguing that Drake did not shoot

1 Neither Danny nor Travon testified at trial. The State could not locate Travon, see Tr. Vol. III pp. 163-64, and although the State could locate Danny, it decided not to call him as a witness at trial because it believed that his testimony would not be truthful, see id. at 243-44; Appellant’s App. Vol. II p. 85 (“State’s Notice of Intent to Not Call a Witness at Trial”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 5 of 11 Dominique; rather, Drake’s accomplice did). The jury was shown a video from

James’s surveillance-video system. Drake was convicted of murder and

burglary.

[10] At the sentencing hearing, the trial court vacated the burglary conviction due to

double-jeopardy concerns. The trial court identified the following mitigators:

Drake did not have a criminal history (this was his first conviction), he was a

“responsible family man,” and he’s “been employed to the best of [his] ability.”

Tr. Vol. IV p. 110. As for aggravators, the court found that the crime required

careful planning and resulted in a dog’s death; however, the court did not give

the dog’s death “a whole lot of weight.” Id. at 111. Finding that the mitigators

outweighed the aggravators, the court imposed a below-advisory sentence of

fifty years. See Ind. Code § 35-50-2-3 (the sentencing range for murder is forty-

five to sixty-five years, with an advisory sentence of fifty-five years ). The court

said that this would have been a good case for imposing the minimum sentence

had Drake “disclos[ed] those who were involved.”2 Tr. Vol. IV p. 111.

[11] Drake now appeals.

2 Detective Breedlove testified at trial that the case was still open as to the unidentified men. See Tr. Vol. III pp. 169, 208.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 6 of 11 Discussion and Decision [12] Drake raises two issues on appeal. First, he contends that the evidence is

insufficient to support his conviction for murder as an accomplice. Second, he

contends that the trial court abused its discretion in sentencing him.

I. Sufficiency of the Evidence [13] Drake contends that the evidence is insufficient to support his conviction for

murder because he did not act as an accomplice. When reviewing

the sufficiency of the evidence to support a conviction, appellate courts must

consider only the probative evidence and reasonable inferences supporting the

verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s

role, not that of appellate courts, to assess witness credibility and weigh the

evidence to determine whether it is sufficient to support a conviction. Id. It is

not necessary that the evidence “overcome every reasonable hypothesis of

innocence.” Id. (quotation omitted). The evidence is sufficient if an inference

may reasonably be drawn from it to support the verdict. Drane v. State, 867

N.E.2d 144, 147 (Ind. 2007).

[14] A person who knowingly or intentionally aids, induces, or causes another

person to commit an offense commits that offense. Ind. Code § 35-41-2-4. “It

is well established that a person who aids another in committing a crime is just

as guilty as the actual perpetrator.” Green v. State, 937 N.E.2d 923, 927 (Ind. Ct.

App. 2010), trans. denied. It is not necessary for a defendant to have participated

in every element of the crime to be convicted as an accomplice. Id. There is no

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 7 of 11 bright line in determining accomplice liability; the particular facts and

circumstances of each case determine whether a person acted as an accomplice.

Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). The fact-finder considers

several factors, including: (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. Id. That a defendant was present during the

commission of a crime and failed to oppose the crime is not sufficient, alone, to

convict him, but it may be considered in conjunction with other factors. Id.

[15] Drake argues that “[t]he evidence shows that [he] could have been involved,

but it does not come close to showing beyond a reasonable doubt that he was

involved.” Appellant’s Br. p. 16. The evidence shows that on the night of

September 6, Drake went to 1102 North Kealing, where his cousin Danny—

whom he was not talking to at the time—was staying. Drake had not been to

the house in at least six months. A little before 9:00 p.m., James, who lived

across the street from 1102 North Kealing, saw a group of four to six men that

he did not associate with the house. The men were talking loudly in the front

yard and trying to figure out what to do. Drake then entered the house “like he

had a purpose.” A man behind Drake hit Dominque in the head with a gun,

knocking off his glasses. Joshawa testified that as Drake passed through the

living room on his way to the dining room (where his cousin Danny and

Travon were), he said, “They’re back here. They’re back here, get him.” Cody

and Joshua testified that they heard something similar. Drake ordered

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 8 of 11 Joshawa, who had since stood up, to “[g]et down.” When Danny and Travon

ran toward the kitchen, Drake chased them. A fight broke out in the kitchen,

and Danny and Travon tried to get out the back door away from Drake. While

this was going on, Dominque pushed the other would-be intruders out the front

door and was shot in the left eye, killing him. Later, after the three men left in

the car, Cody was standing in the front yard when he saw a man who looked

like Drake run behind him. The morning after the shooting, Drake left

Indianapolis for Nashville, Tennessee. See, e.g., Brown v. State, 563 N.E.2d 103,

107 (Ind. 1990) (“Evidence of flight may be considered as circumstantial

evidence of consciousness of guilt.”). The evidence is sufficient to support the

jury’s verdict that Drake knowingly or intentionally aided, induced, or caused

the offense.

[16] Nevertheless, Drake highlights, among other things, that he did not have a gun,

that he did not leave in the car with the other men, and that the housemates

provided inconsistent testimony regarding what was said when he entered the

house (for example, “He’s in here” v. He’s back here”). These, however, are all

requests for us to reweigh the evidence. The jury was presented with all of this

evidence, including Drake’s version of events as contained in his videotaped

statement, and found him guilty. We therefore affirm his conviction for

murder.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 9 of 11 II. Sentencing [17] Drake next contends that the trial court abused its discretion in sentencing him

to fifty years. Sentencing decisions rest within the sound discretion of the trial

court and are reviewed on appeal for an abuse of discretion. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

2007). An abuse of discretion occurs if the decision is clearly against the logic

and effect of the facts and circumstances before the court or the reasonable,

probable, and actual deductions to be drawn therefrom. Id.

[18] Specifically, Drake argues that the trial court abused its discretion in identifying

as an aggravator the fact that he did not “disclos[e] those who were involved.”3

Tr. Vol. IV p. 111 (trial court: “he must know something”). Drake asserts that

“[t]he record does not support the trial court’s finding that [he] refused to

disclose the [men’s] names” because there is “no evidence that [he] knew their

names.” Appellant’s Br. p. 19. Despite Drake’s claim in his videotaped

statement that he did not know the other men and that it was just a

“coincidence” that they came to the house around the same time that he did,

the jury found Drake guilty as an accomplice, and there was evidence that he

acted in concert with them. Based on this evidence, the court properly found

that Drake had information that could have helped the police identify the other

3 The parties dispute whether the trial court found this as an aggravator or failed to find his remorse as a mitigator (based on his failure to disclose). Regardless of how the trial court characterized this, we find no abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 10 of 11 men involved in this case.4 Accordingly, the trial court did not abuse its

discretion in identifying this as an aggravator and in sentencing Drake to a

below-advisory term of fifty years instead of the minimum term of forty-five

years.

[19] Affirmed.

Barnes, J., and Pyle, J., concur.

4 Drake argues that even if the record reflected that he knew the men’s names, “defendants who incriminate other individuals are often subjected to violent acts of retaliation.” Appellant’s Br. p. 20. There is no evidence that this is the reason why Drake did not disclose the names of the other men. At sentencing, Drake made no such claim and continued to assert that he was “in the wrong place at the wrong time.” Tr. Vol. IV p. 106.

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