MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 14 2016, 5:55 am 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 Kristin A. Mulholland Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ronald Eric McMahan, March 14, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1507-CR-1037 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1412-MR-10
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 1 of 7 Case Summary and Issue [1] Ronald E. McMahan appeals his convictions for three counts of attempted
robbery and murder in the perpetration of a felony (“felony murder”), arguing
the evidence is insufficient to support his convictions. Concluding the evidence
is sufficient, we affirm.
Facts and Procedural History [2] On December 3, 2014, Anthony Villarreal exchanged text messages with
McMahan and agreed to help McMahan purchase marijuana because
McMahan’s dealer was out of town. Although Villarreal had previously
purchased marijuana from McMahan, Villarreal did not know McMahan’s
name, only his cell phone number.
[3] Villarreal and McMahan arranged to meet at a gas station in Gary, Indiana,
where they had previously conducted marijuana deals. Villarreal, acting as a
middleman, was to collect McMahan’s money, purchase the marijuana, and
bring it back to McMahan. McMahan asked if Villarreal would be bringing
friends or guns to the deal. Villarreal informed McMahan that he would be
bringing “protection” to the deal, meaning other people. Transcript at 239.
Villarreal also implied he would be carrying a gun. In response, McMahan
expressed an interest in purchasing the gun from Villarreal, offering up to $450
for a gun Villarreal said he purchased for $200. Villarreal, who did not really
own a gun, said he liked his gun, but promised to inquire about a gun purchase
on McMahan’s behalf another time. Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 2 of 7 [4] On the way to the deal, Villarreal picked up his girlfriend, A.S., as well as his
friends Michael Warden and Denis Haluska. The group smoked marijuana and
headed to the gas station to meet McMahan. McMahan, accompanied by
JaJuan Harris, arrived late, on foot, and informed Villarreal that they needed a
ride to their house to get the rest of the money for the deal. Villarreal agreed
and the two piled in the backseat.
[5] McMahan and Harris directed Villarreal to a dead end street with a house on
one side and a wooded area on the other. Villarreal pulled into the driveway of
the house. Unknown to Villarreal, neither McMahan nor Harris lived there.
McMahan and Harris exited the car and walked around the side of the house.
At Warden and Haluska’s urging, Villarreal turned the car around so he could
easily drive away if necessary. McMahan and Harris returned shortly
thereafter, and A.S. opened the passenger-side door to let them back into the
car. McMahan approached the passenger side of the car, brandished a gun, and
demanded guns and money. Harris went to the driver’s side of the vehicle and
held a gun in Villarreal’s face. Villarreal pushed his arm away and hit the gas as
several shots were fired.
[6] Villarreal, Warden, and Haluska quickly realized that A.S. was wounded in the
neck. They called 911 and drove to the McDonald’s in Hammond, Indiana,
while trying to stop the bleeding; however, A.S. died on the scene from rapid
blood loss. The bullet passed through her neck from right to left at a downward
angle.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 3 of 7 [7] Upon arrival at the McDonald’s, police observed that Villarreal, Warden, and
Haluska were extremely frightened and covered in blood. Police questioned
them separately, and each provided basically the same account of the
circumstances leading to A.S.’s death. Villarreal gave police McMahan’s phone
number, which they used to find McMahan. Police searched the apartment
where McMahan lived and found a revolver. Using a bullet recovered from
A.S.’s collar bone, the revolver could not definitively be identified as the gun
used to shoot A.S., nor could it be excluded. Warden and Haluska each
identified McMahan from a photo lineup as the shooter on A.S.’s side of the
vehicle. McMahan initially denied everything, but ultimately admitted to firing
at the vehicle. However, he placed himself on the driver’s side and Harris on
A.S.’s side of the vehicle.
[8] The State charged McMahan with murder, felony murder, and four counts of
attempted robbery as Level 2 felonies. Following a jury trial, McMahan was
found guilty of all charges. His motion for judgment notwithstanding the
verdict was denied. At the sentencing hearing, the trial court entered judgment
of conviction on the felony murder count and on three counts of attempted
robbery and sentenced McMahan to sixty-three years in the Indiana
Department of Correction. He now appeals his convictions.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 4 of 7 Discussion and Decision I. Standard of Review [9] “When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.
We will not reweigh the evidence or assess the credibility of the witnesses.
Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). “The conviction will
be affirmed unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id. (citation and internal quotations
marks omitted).
II. Attempted Robbery [10] Under Indiana law, “[a] person attempts to commit a crime when, acting with
the culpability required for commission of the crime, the person engages in
conduct that constitutes a substantial step toward commission of the crime.”
Ind. Code § 35-41-5-1(a). Robbery is committed when a person “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 another person;
or (2) by putting any person in fear . . . .” Ind. Code § 35-42-5-1. A person
engages in conduct knowingly when “he is aware of a high probability that he is
doing so.” Ind. Code § 35-41-2-2(b). A person engages in conduct intentionally
when “it is his conscious objective to do so.” Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 14 2016, 5:55 am 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 Kristin A. Mulholland Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ronald Eric McMahan, March 14, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1507-CR-1037 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1412-MR-10
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 1 of 7 Case Summary and Issue [1] Ronald E. McMahan appeals his convictions for three counts of attempted
robbery and murder in the perpetration of a felony (“felony murder”), arguing
the evidence is insufficient to support his convictions. Concluding the evidence
is sufficient, we affirm.
Facts and Procedural History [2] On December 3, 2014, Anthony Villarreal exchanged text messages with
McMahan and agreed to help McMahan purchase marijuana because
McMahan’s dealer was out of town. Although Villarreal had previously
purchased marijuana from McMahan, Villarreal did not know McMahan’s
name, only his cell phone number.
[3] Villarreal and McMahan arranged to meet at a gas station in Gary, Indiana,
where they had previously conducted marijuana deals. Villarreal, acting as a
middleman, was to collect McMahan’s money, purchase the marijuana, and
bring it back to McMahan. McMahan asked if Villarreal would be bringing
friends or guns to the deal. Villarreal informed McMahan that he would be
bringing “protection” to the deal, meaning other people. Transcript at 239.
Villarreal also implied he would be carrying a gun. In response, McMahan
expressed an interest in purchasing the gun from Villarreal, offering up to $450
for a gun Villarreal said he purchased for $200. Villarreal, who did not really
own a gun, said he liked his gun, but promised to inquire about a gun purchase
on McMahan’s behalf another time. Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 2 of 7 [4] On the way to the deal, Villarreal picked up his girlfriend, A.S., as well as his
friends Michael Warden and Denis Haluska. The group smoked marijuana and
headed to the gas station to meet McMahan. McMahan, accompanied by
JaJuan Harris, arrived late, on foot, and informed Villarreal that they needed a
ride to their house to get the rest of the money for the deal. Villarreal agreed
and the two piled in the backseat.
[5] McMahan and Harris directed Villarreal to a dead end street with a house on
one side and a wooded area on the other. Villarreal pulled into the driveway of
the house. Unknown to Villarreal, neither McMahan nor Harris lived there.
McMahan and Harris exited the car and walked around the side of the house.
At Warden and Haluska’s urging, Villarreal turned the car around so he could
easily drive away if necessary. McMahan and Harris returned shortly
thereafter, and A.S. opened the passenger-side door to let them back into the
car. McMahan approached the passenger side of the car, brandished a gun, and
demanded guns and money. Harris went to the driver’s side of the vehicle and
held a gun in Villarreal’s face. Villarreal pushed his arm away and hit the gas as
several shots were fired.
[6] Villarreal, Warden, and Haluska quickly realized that A.S. was wounded in the
neck. They called 911 and drove to the McDonald’s in Hammond, Indiana,
while trying to stop the bleeding; however, A.S. died on the scene from rapid
blood loss. The bullet passed through her neck from right to left at a downward
angle.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 3 of 7 [7] Upon arrival at the McDonald’s, police observed that Villarreal, Warden, and
Haluska were extremely frightened and covered in blood. Police questioned
them separately, and each provided basically the same account of the
circumstances leading to A.S.’s death. Villarreal gave police McMahan’s phone
number, which they used to find McMahan. Police searched the apartment
where McMahan lived and found a revolver. Using a bullet recovered from
A.S.’s collar bone, the revolver could not definitively be identified as the gun
used to shoot A.S., nor could it be excluded. Warden and Haluska each
identified McMahan from a photo lineup as the shooter on A.S.’s side of the
vehicle. McMahan initially denied everything, but ultimately admitted to firing
at the vehicle. However, he placed himself on the driver’s side and Harris on
A.S.’s side of the vehicle.
[8] The State charged McMahan with murder, felony murder, and four counts of
attempted robbery as Level 2 felonies. Following a jury trial, McMahan was
found guilty of all charges. His motion for judgment notwithstanding the
verdict was denied. At the sentencing hearing, the trial court entered judgment
of conviction on the felony murder count and on three counts of attempted
robbery and sentenced McMahan to sixty-three years in the Indiana
Department of Correction. He now appeals his convictions.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 4 of 7 Discussion and Decision I. Standard of Review [9] “When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.
We will not reweigh the evidence or assess the credibility of the witnesses.
Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). “The conviction will
be affirmed unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id. (citation and internal quotations
marks omitted).
II. Attempted Robbery [10] Under Indiana law, “[a] person attempts to commit a crime when, acting with
the culpability required for commission of the crime, the person engages in
conduct that constitutes a substantial step toward commission of the crime.”
Ind. Code § 35-41-5-1(a). Robbery is committed when a person “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 another person;
or (2) by putting any person in fear . . . .” Ind. Code § 35-42-5-1. A person
engages in conduct knowingly when “he is aware of a high probability that he is
doing so.” Ind. Code § 35-41-2-2(b). A person engages in conduct intentionally
when “it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 5 of 7 [11] Here, McMahan took a substantial step toward intentionally taking property
from the victims through the use of force. McMahan arranged to meet
Villarreal to purchase marijuana, met Villareal and his friends at the gas station,
and led the group to a house on a dead-end street abutting a wooded area under
the false pretext that he lived there. He pointed a gun at the occupants of the
car and demanded their guns and money. Although McMahan claimed in his
statement to police—which was played for the jury—that it was Villarreal who
attempted to rob him, three witnesses said the opposite at trial, and the jury
found the latter witnesses’ accounts more credible. In reviewing the sufficiency
of evidence to support a conviction, we do not reweigh the evidence or assess
the credibility of the witnesses, and we respect “the jury’s exclusive province to
weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)
(citation omitted). Therefore, we hold the evidence was sufficient to support
the jury’s verdict that McMahan intended to commit robbery and engaged in
conduct that constituted a substantial step toward commission of the crime.
III. Felony Murder [12] Murder is committed by a person who “knowingly or intentionally kills another
human being” or who “kills another human being while committing or
attempting to commit . . . robbery . . . .” Ind. Code § 35-42-1-1(1), (2).
McMahan was charged with both murder and felony murder under this statute
and the jury found McMahan guilty of both counts. The trial court entered
judgment of conviction for felony murder only.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 6 of 7 [13] McMahan argues there is insufficient evidence that he knowingly or
intentionally killed A.S.; however, a felony murder conviction requires proof of
intent to commit the underlying felony (in this case, attempted robbery), but not
proof of intent to kill. See Luna v. State, 758 N.E.2d 515, 517 (Ind. 2001).
“[T]he State is not required to prove a knowing or intentional killing in order to
sustain a felony murder conviction, only a killing—even an accidental one.”
Berkman v. State, 976 N.E.2d 68, 73 (Ind. Ct. App. 2012), trans. denied, cert.
denied, 134 S. Ct. 155 (2013). Because there is sufficient evidence to support the
jury’s verdict that McMahan intentionally committed attempted robbery, and
because A.S. was killed in the attempt, his conviction for felony murder is also
supported by sufficient evidence.
Conclusion [14] Concluding there was sufficient evidence to support McMahan’s convictions for
felony murder and three counts of attempted robbery, we affirm.
[15] Affirmed.
Barnes, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-1037 | March 14, 2016 Page 7 of 7