Zachary L. Ray v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Nov 19 2015, 8:54 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
Kurt A. Young Gregory F. Zoeller
Nashville, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
IN THE
COURT OF APPEALS OF INDIANA
Zachary L. Ray, November 19, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1504-CR-209
v. Appeal from the Marion Superior
Court, Criminal Division 2
State of Indiana, The Honorable Marc Rothenberg,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G02-1308-MR-52125
Altice, Judge.
Case Summary
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[1] Zachary L. Ray appeals his conviction of Murder,1 a felony. Relying on the
doctrine of incredible dubiosity, Ray contends that the evidence was insufficient
to support his conviction.
[2] We affirm.
Facts & Procedural History
[3] On April 8, 2013, Lori McKinney went to a friend’s home on the south side of
Indianapolis. Ray and Richard Mays were inside using crack cocaine. This
was McKinney’s first time meeting Ray. The men asked McKinney to help
them “hit a lick”, and Ray outlined the plan. Transcript at 54. In exchange for
five Vicodin pills, McKinney agreed to lure a man out of a bar for Ray and
Mays to rob.
[4] The trio drove in McKinney’s truck to a local bar, the Colonial Inn, that
evening. McKinney backed into the parking spot and then went inside, while
Mays and Ray waited outside. McKinney encountered Mark Putnam in the
bar, and he bought her a beer. Putnam eventually left the bar with McKinney,
and his friend, Tony Ventura, exited at the same time. Before Putnam entered
McKinney’s truck to leave with her, he noticed two men hiding in the bed of
the truck. He immediately refused to go with McKinney and, instead, went to
1
Ind. Code § 35-42-1-1.
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Ventura’s vehicle for a ride home. After Ventura circled around the bar, he
noticed that McKinney’s truck was gone.
[5] Indeed, McKinney, Ray, and Mays had moved the truck to a parking lot across
the street. Ray instructed McKinney to go back inside the bar and try again.
When she expressed hesitation, Ray threatened, “Bitch, you’re going back in.”
Id. at 60. McKinney went back into the bar and eventually began conversing
with Michael Campbell. At one point, McKinney observed Ray and Mays
standing at each entrance. McKinney eventually asked Campbell if he wanted
to go to another nearby bar with her, and he agreed.
[6] Upon exiting the bar after midnight, McKinney walked in front of Campbell as
she led him to her truck. Mays and Ray approached Campbell from behind,
and Mays punched Campbell in the back of the head. Campbell fell to the
ground without moving and Ray started kicking him. Mays and Ray then went
through Campbell’s pockets, removing his wallet and cell phone. McKinney
entered her truck and Mays and Ray followed. Mays had Campbell’s phone,
and Ray had his wallet. McKinney drove them away from the scene, as the
men expressed disappointment with the amount of money obtained.
[7] Shortly thereafter, a police officer patrolling the area discovered Campbell, who
was lying on the ground unconscious with his pockets inside out. Campbell
remained in a coma and died on May 13 as a result of the blunt force trauma to
his head that he sustained during the attack. In addition to a skull fracture to
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the back of his head and a broken jaw, Campbell had contusions on his body
that were consistent with being kicked or punched.
[8] The police investigation led to the arrest of McKinney on April 19. At that
time, she provided a statement to police, denying involvement and indicating
that she had witnessed three unknown men attack Campbell outside the bar.
[9] On June 11, Ray was arrested on an unrelated matter and volunteered
information regarding this case while being interrogated by police. He
indicated that he knew about Richard Mays robbing and killing a man about
two months earlier in a parking lot at the Colonial Inn. Ray stated that Mays
punched the man in the head before robbing him of about thirty dollars, and
that a girl named Lori was in jail for the robbery. Ray explained that he
witnessed the robbery while sitting with Lori in her truck.
[10] Thereafter, on July 24, McKinney gave another statement to police in which
she implicated both Mays and Ray. McKinney agreed to testify for the State in
exchange for a favorable plea agreement.
[11] The State charged Ray and Mays with felony murder and class A felony
robbery on August 9, 2013. Ray’s jury trial commenced on February 23, 2015.
The State called a number of witnesses, including McKinney, Putnam, Ventura,
and John Cline. Cline testified regarding conversations he had with Ray while
they were incarcerated together. Ray asked Cline for advice and shared
significant details with Cline regarding the robbery. These details, to which
Cline testified, aligned in large part with McKinney’s account and implicated
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Ray in the planning and execution of the robbery. Additionally, the State
admitted into evidence a photograph of McKinney leaving the bar with the
victim shortly before the attack and Ray’s June 11 statement.
[12] The jury found Ray guilty of murder and robbery as charged. At the sentencing
hearing on March 18, 2015, the trial court vacated the robbery conviction and
sentenced Ray to sixty-three years in prison for Campbell’s murder.
Discussion & Decision
[13] Ray contends that the evidence is insufficient to sustain his conviction for
murder. More specifically, he contends that McKinney’s testimony is
incredibly dubious and should not be credited.
[14] Our Supreme Court has recently reiterated the limited scope of the incredible
dubiosity rule, which requires that there be: “1) a sole testifying witness; 2)
testimony that is inherently contradictory, equivocal, or the result of coercion;
and 3) a complete absence of circumstantial evidence.” Moore v. State, 27
N.E.3d 749, 756 (Ind. 2015). While the standard is not impossible to meet, it is
difficult and “one that requires great ambiguity and inconsistency in the
evidence.” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In
other words, the sole witness’s testimony “must be so convoluted and/or
contrary to human experience that no reasonable person could believe it.” Id.
(quoting Edwards, 753 N.E.2d at 622).
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[15] There was nothing about McKinney’s testimony that was equivocal or
inherently contradictory. She consistently testified regarding the attack and
robbery of Campbell. Further, the inconsistencies between her trial testimony
and her initial statement to police did not render her trial testimony incredibly
dubious. See Stephenson v. State, 742 N.E.2d 463 (Ind. 2001).
[16] Moreover, the State presented additional witnesses and circumstantial evidence
that supported McKinney’s detailed testimony. This included Ray’s own
statement to police, pictures of McKinney leaving the bar with Campbell, and
the testimony of Putnam, Ventura, and Cline.
[17] The incredible dubiosity rule is simply not applicable here, and it was within the
jury’s prerogative to believe McKinney’s trial testimony. Accordingly, we reject
Ray’s invitation to reweigh the evidence and judge witness credibility. See
Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000) (“[i]t is the function
of the trier of fact to resolve conflicts in testimony, and to determine the weight
of the evidence and the credibility of the witnesses”), trans. denied. Ray’s
conviction was supported by sufficient evidence.
[18] Judgment affirmed.
[19] Riley, J., and Brown, J., concur.
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