MEMORANDUM DECISION Apr 30 2015, 10:06 am 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 Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Tibbs, April 30, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1409-CR-675 v. Appeal from the Marion Superior State of Indiana, Court The Honorable Lisa Borges, Judge Appellee-Plaintiff, Cause No. 49G04-1305-MR-30563
Robb, Judge.
Case Summary and Issues [1] Following a jury trial, Robert Tibbs was convicted of murder, a felony, and
carrying a handgun without license, a Class A misdemeanor. Tibbs raises two
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 1 of 7 issues on appeal: (1) whether there was sufficient evidence to support his
conviction of murder; and (2) whether the trial court abused its discretion by
instructing the jury on accomplice liability. Concluding the State presented
sufficient evidence and that the trial court did not abuse its discretion, we
affirm.
Facts and Procedural History [2] On May 6, 2013, Tyron Woods was spending the day at an apartment with his
girlfriend, Leeasha Taylor, and Nickia Walker. That day, Woods had a
conversation with Rayshawn Turnstill outside of the apartment. After the
conversation, Turnstill left, but he returned approximately a half-hour later with
Tibbs and David Burnett. The three men approached Woods, and Tibbs told
Woods that Turnstill “wants to bump,” which meant that Turnstill wished to
fight Woods. Transcript at 85. Woods agreed to fight.
[3] Woods was carrying a firearm and handed it to Taylor. Tibbs and Burnett
stood nearby and urged Turnstill to start the fight. Meanwhile, Taylor
remained close by, holding Woods’s gun behind her back. Tibbs told Taylor to
put the gun down, but she refused, believing that Tibbs, Burnett, or Turnstill
might pick it up. When Taylor refused to relinquish the gun, Tibbs pulled out
his own handgun and pointed it at Taylor’s head. Woods smacked the gun
away from Taylor’s face, and Woods and Tibbs began fighting. While Tibbs
and Woods tussled, Burnett came up behind Taylor and grabbed Woods’s gun
away from her. He pointed the gun at Woods, and Woods ran toward the
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 2 of 7 apartment. Burnett shot Woods in the back, but Woods was still able to make
it inside the apartment. Taylor followed Woods inside. As Taylor entered the
apartment, she saw Burnett standing at the front porch and Tibbs standing at a
side window—both men were pointing their firearms into the apartment. After
Taylor entered the apartment behind Woods, she heard “maybe five”
additional gunshots, tr. at 129, which were fired by both Burnett and Tibbs.
[4] Indianapolis Metropolitan Police Department Officer Dewey Runnels was
patrolling in the area, heard the gunshots, and quickly arrived on scene. He
entered the apartment and found Woods and Taylor inside. Officer Runnels
requested medical assistance for Woods, but Woods died approximately thirty
minutes later as a result of his gunshot wound.
[5] Several witnesses outside the apartment identified Tibbs and Burnett as
suspects. Officers examined the scene and discovered five bullet holes, two
shell casings outside, and three spent bullets inside. The side window at which
Tibbs had stood was broken and a possible bullet hole was found in the blinds.
A forensic scientist for the Marion County Crime Lab determined that two
different guns fired two sets of bullets found at the crime scene. No guns were
ever recovered and linked to the bullets or shell casings found at the scene.
[6] On May 9, 2013, the State charged Tibbs with murder, a felony, and carrying a
handgun without license, a Class A misdemeanor. A two-day jury trial
commenced on July 2, 2014, at the end of which the jury found Tibbs guilty as
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 3 of 7 charged.1 The trial court sentenced Tibbs to an aggregate term of sixty years
imprisonment. This appeal followed.
Discussion and Decision I. Sufficiency of Evidence [7] Tibbs claims there was not sufficient evidence to prove he committed the crime
of murder, either as the principal actor or as Burnett’s accomplice. When
reviewing a defendant’s claim of insufficient evidence, we will neither reweigh
the evidence nor judge the credibility of the witnesses, and we must respect “the
jury’s exclusive province to weigh conflicting evidence.” McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005) (citation omitted). We consider only the probative
evidence and reasonable inferences supporting the verdict. Id. A conviction
will be affirmed “if the probative evidence and reasonable inferences drawn
from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.” Id. (citation omitted).
[8] In Indiana, there is no distinction between the criminal liability of a principal
and an accomplice “who knowingly or intentionally aids, induces, or causes
another person to commit an offense . . . .” See Wise v. State, 719 N.E.2d 1192,
1198 (Ind. 1999) (quoting Ind. Code § 35-41-2-4). Factors used to determine
1 Tibbs and Burnett where tried as codefendants, and Burnett was also found guilty of murder and carrying a handgun without a license.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 4 of 7 whether a person aided another in commission of a crime include “(1) presence
at the scene of the crime; (2) companionship with another engaged in criminal
activity; (3) failure to oppose the crime; and (4) a defendant’s conduct before,
during, and after the occurrence of the crime.” Garland v. State, 788 N.E.2d
425, 431 (Ind. 2003).
[9] Here, the evidence is sufficient for a reasonable jury to conclude Tibbs acted as
Burnett’s accomplice in murdering Woods. Armed with a handgun for which
he did not own a license, Tibbs rode with Burnett to confront Woods. Once
there, Tibbs encouraged his friend to fight with Woods. Unprovoked by any
act of violence by Taylor, Tibbs drew his sidearm and pointed it at Taylor’s
head. Tibbs then fought with Woods while Burnett wrestled Woods’s gun
away from Taylor. When Burnett shot at Woods, Tibbs did not run away or
attempt to stop Burnett; rather, he went to the apartment window and fired two
bullets inside the apartment in which Woods attempted to hide. Tibbs then fled
the scene—presumably with Burnett—before police arrived only moments later.
[10] Tibbs suggests that he cannot be found guilty under an accomplice liability
theory because there is no evidence that he “shared a common design or
purpose with Burnett to shoot Woods” and that Tibbs’s stated purpose for being
at the apartment was for a fistfight. Brief of Appellant at 8.
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MEMORANDUM DECISION Apr 30 2015, 10:06 am 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 Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Tibbs, April 30, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1409-CR-675 v. Appeal from the Marion Superior State of Indiana, Court The Honorable Lisa Borges, Judge Appellee-Plaintiff, Cause No. 49G04-1305-MR-30563
Robb, Judge.
Case Summary and Issues [1] Following a jury trial, Robert Tibbs was convicted of murder, a felony, and
carrying a handgun without license, a Class A misdemeanor. Tibbs raises two
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 1 of 7 issues on appeal: (1) whether there was sufficient evidence to support his
conviction of murder; and (2) whether the trial court abused its discretion by
instructing the jury on accomplice liability. Concluding the State presented
sufficient evidence and that the trial court did not abuse its discretion, we
affirm.
Facts and Procedural History [2] On May 6, 2013, Tyron Woods was spending the day at an apartment with his
girlfriend, Leeasha Taylor, and Nickia Walker. That day, Woods had a
conversation with Rayshawn Turnstill outside of the apartment. After the
conversation, Turnstill left, but he returned approximately a half-hour later with
Tibbs and David Burnett. The three men approached Woods, and Tibbs told
Woods that Turnstill “wants to bump,” which meant that Turnstill wished to
fight Woods. Transcript at 85. Woods agreed to fight.
[3] Woods was carrying a firearm and handed it to Taylor. Tibbs and Burnett
stood nearby and urged Turnstill to start the fight. Meanwhile, Taylor
remained close by, holding Woods’s gun behind her back. Tibbs told Taylor to
put the gun down, but she refused, believing that Tibbs, Burnett, or Turnstill
might pick it up. When Taylor refused to relinquish the gun, Tibbs pulled out
his own handgun and pointed it at Taylor’s head. Woods smacked the gun
away from Taylor’s face, and Woods and Tibbs began fighting. While Tibbs
and Woods tussled, Burnett came up behind Taylor and grabbed Woods’s gun
away from her. He pointed the gun at Woods, and Woods ran toward the
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 2 of 7 apartment. Burnett shot Woods in the back, but Woods was still able to make
it inside the apartment. Taylor followed Woods inside. As Taylor entered the
apartment, she saw Burnett standing at the front porch and Tibbs standing at a
side window—both men were pointing their firearms into the apartment. After
Taylor entered the apartment behind Woods, she heard “maybe five”
additional gunshots, tr. at 129, which were fired by both Burnett and Tibbs.
[4] Indianapolis Metropolitan Police Department Officer Dewey Runnels was
patrolling in the area, heard the gunshots, and quickly arrived on scene. He
entered the apartment and found Woods and Taylor inside. Officer Runnels
requested medical assistance for Woods, but Woods died approximately thirty
minutes later as a result of his gunshot wound.
[5] Several witnesses outside the apartment identified Tibbs and Burnett as
suspects. Officers examined the scene and discovered five bullet holes, two
shell casings outside, and three spent bullets inside. The side window at which
Tibbs had stood was broken and a possible bullet hole was found in the blinds.
A forensic scientist for the Marion County Crime Lab determined that two
different guns fired two sets of bullets found at the crime scene. No guns were
ever recovered and linked to the bullets or shell casings found at the scene.
[6] On May 9, 2013, the State charged Tibbs with murder, a felony, and carrying a
handgun without license, a Class A misdemeanor. A two-day jury trial
commenced on July 2, 2014, at the end of which the jury found Tibbs guilty as
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 3 of 7 charged.1 The trial court sentenced Tibbs to an aggregate term of sixty years
imprisonment. This appeal followed.
Discussion and Decision I. Sufficiency of Evidence [7] Tibbs claims there was not sufficient evidence to prove he committed the crime
of murder, either as the principal actor or as Burnett’s accomplice. When
reviewing a defendant’s claim of insufficient evidence, we will neither reweigh
the evidence nor judge the credibility of the witnesses, and we must respect “the
jury’s exclusive province to weigh conflicting evidence.” McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005) (citation omitted). We consider only the probative
evidence and reasonable inferences supporting the verdict. Id. A conviction
will be affirmed “if the probative evidence and reasonable inferences drawn
from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.” Id. (citation omitted).
[8] In Indiana, there is no distinction between the criminal liability of a principal
and an accomplice “who knowingly or intentionally aids, induces, or causes
another person to commit an offense . . . .” See Wise v. State, 719 N.E.2d 1192,
1198 (Ind. 1999) (quoting Ind. Code § 35-41-2-4). Factors used to determine
1 Tibbs and Burnett where tried as codefendants, and Burnett was also found guilty of murder and carrying a handgun without a license.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 4 of 7 whether a person aided another in commission of a crime include “(1) presence
at the scene of the crime; (2) companionship with another engaged in criminal
activity; (3) failure to oppose the crime; and (4) a defendant’s conduct before,
during, and after the occurrence of the crime.” Garland v. State, 788 N.E.2d
425, 431 (Ind. 2003).
[9] Here, the evidence is sufficient for a reasonable jury to conclude Tibbs acted as
Burnett’s accomplice in murdering Woods. Armed with a handgun for which
he did not own a license, Tibbs rode with Burnett to confront Woods. Once
there, Tibbs encouraged his friend to fight with Woods. Unprovoked by any
act of violence by Taylor, Tibbs drew his sidearm and pointed it at Taylor’s
head. Tibbs then fought with Woods while Burnett wrestled Woods’s gun
away from Taylor. When Burnett shot at Woods, Tibbs did not run away or
attempt to stop Burnett; rather, he went to the apartment window and fired two
bullets inside the apartment in which Woods attempted to hide. Tibbs then fled
the scene—presumably with Burnett—before police arrived only moments later.
[10] Tibbs suggests that he cannot be found guilty under an accomplice liability
theory because there is no evidence that he “shared a common design or
purpose with Burnett to shoot Woods” and that Tibbs’s stated purpose for being
at the apartment was for a fistfight. Brief of Appellant at 8. However, to find a
defendant guilty under an accomplice liability theory, “a preconceived plan
need not be proved: concerted action or participation in illegal acts is
sufficient.” Johnson v. State, 490 N.E.2d 333, 334 (Ind. 1986).
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 5 of 7 [11] Tibbs also questions Taylor’s trial testimony that she saw Tibbs fire his gun
through the apartment window, noting that statements she made to a detective
prior to trial were more equivocal. Any issues as to the credibility of Taylor’s
testimony were for the jury to evaluate, not this court. McHenry, 820 N.E.2d at
126. Moreover, even if Taylor only saw Tibbs standing at the window but did
not actually see him fire his gun, circumstantial evidence and common sense
could have easily led the jury to conclude Tibbs fired two bullets through the
window and into the apartment where Woods had just retreated.2
[12] Viewing the evidence in the light most favorable to the judgment, we conclude
there was sufficient evidence for the jury to find Tibbs was guilty of murder as
an accomplice.
II. Accomplice Liability Instruction [13] Second, Tibbs argues the trial court erred by instructing the jury on accomplice
liability. Instruction of the jury is within the discretion of the trial court and is
reviewed only for an abuse of that discretion. Washington v. State, 997 N.E.2d
342, 345 (Ind. 2013). Whether a given jury instruction was an abuse of
discretion depends upon three considerations: (1) whether the instruction was a
correct statement of the law; (2) whether there was evidence in the record to
2 Although Tibbs only attacks Taylor’s testimony on appeal, Walker—also an eyewitness—testified that she saw Tibbs fire his gun at the apartment. See Tr. at 81.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 6 of 7 support giving the instruction; and (3) whether the substance was covered by
other instructions given. Id. at 345-46.
[14] Tibbs argues only that the evidence at trial did not support giving an instruction
on accomplice liability. Thus, his argument on this issue is practically no
different from his claim that there was insufficient evidence to find him guilty of
murder. For the reasons discussed above, we conclude there was evidence in
the record to support an accomplice liability instruction, and the trial court did
not abuse its discretion.
Conclusion [15] Concluding there was sufficient evidence for the jury to find Tibbs guilty of
murder and that the trial court did not abuse its discretion by giving a jury
instruction on accomplice liability, we affirm.
[16] Affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015 Page 7 of 7