Delshawn Marshall v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 23 2019, 10:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Delshawn Marshall, October 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-567
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1707-F3-48
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019 Page 1 of 9
Case Summary and Issue
[1] Following a jury trial, Delshawn Marshall was found guilty of armed robbery, a
Level 3 felony, and sentenced to thirteen years in the Indiana Department of
Correction, with three years suspended to probation. Marshall appeals his
conviction, raising one issue for our review: whether the State presented
sufficient evidence to support his conviction. Concluding the State produced
sufficient evidence, we affirm.
Facts and Procedural History
[2] Around 2:30 p.m. on July 18, 2017, Harodd Cureton received a phone call from
Sha’paris Jordan asking Cureton to sell her marijuana. Having sold her
marijuana two times previously, Cureton agreed to sell Jordan “half of [an]
ounce” of marijuana for $120. Transcript, Volume 2 at 17. Originally, Cureton
and Jordan had agreed to meet in the parking lot of a bowling alley in South
Bend, Indiana. However, Jordan switched the meeting location to Roosevelt
Street, which is located in a residential neighborhood. Prior to the meeting,
Jordan asked Cureton to send her a picture of himself, which was not
commonplace in their previous transactions. Cureton declined to send the
picture.
[3] Around 8:30 p.m., Cureton arrived on Roosevelt Street and parked his red
Chevrolet Monte Carlo behind Jordan’s Saturn Ion. Cureton requested that
Jordan come to his car to finalize the transaction, however Jordan insisted that
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Cureton come to her car. Cureton agreed and sat in Jordan’s passenger seat.
While sitting in Jordan’s car, Cureton became concerned because in addition to
having requested his picture earlier, Jordan was now very focused on texting
someone on her phone and seemed to be attempting to stall the sale. After
approximately fifteen minutes, Cureton pushed to complete the transaction, but
Jordan became flirtatious, even putting her leg out of the car’s window and
offering to have sex with him.
[4] Around this time, Cureton saw a man, later identified as Marshall, approaching
the vehicle with a gun “[h]anging out [of] his pants.” Id. at 39. Cureton
described the gun as black and “like a .45” with a slide on the top. Id. at 26.
Sensing potential danger, Cureton exited Jordan’s vehicle. When Cureton
exited the vehicle, Marshall asked Cureton for a cigarette and Cureton obliged.
Subsequently, Marshall and Jordan engaged in conversation, making it seem
clear to Cureton that they had a previous connection.
[5] Now feeling that danger was imminent, Cureton began running, with Marshall
chasing him soon after. Cureton made it past approximately three houses before
Marshall caught up to him. Marshall took out his gun and told Cureton to
empty his pockets. Cureton had in his pockets a single bag of marijuana; a key
ring that contained the key to his Monte Carlo, a whistle, and a heart charm; an
LG cell phone; and about $200 cash. Cureton threw these items to the ground
in compliance with Marshall’s command, and Marshall picked them up and ran
away.
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[6] Robert Sigafoose, a Roosevelt Street resident, witnessed the chase and robbery
from his living room window. He observed a heavy-set male (Cureton) being
chased by a “tall slinky guy” with a black gun tucked in his belt (Marshall). Id.
at 50. He then saw Cureton stop and raise his hands while Marshall picked
something up from the ground and ran away. Near the end of the robbery,
another neighborhood resident called the police. Shortly thereafter, Cureton
realized that his car was missing from where he had left it.
[7] South Bend police arrived at the scene and attempted to gather information
from Cureton. Initially, Cureton did not admit to police that he intended to sell
marijuana to Jordan. He stated instead that he had simply stopped to help a
broken-down car on the side of the road. However, after learning from police
that he would not be charged with any drug-related offenses if he told the truth,
Cureton provided police with a description of Marshall and Jordan, details of
the underlying transaction, and information about his stolen car and
possessions.
[8] The police then searched the surrounding area and located Cureton’s red Monte
Carlo in the parking lot of a nearby apartment complex. Parked directly next to
the Monte Carlo was a Saturn Ion, with Jordan in the driver’s seat and
Marshall in the passenger seat.
[9] Police officers approached the Saturn Ion and instructed Marshall and Jordan
to exit the vehicle. Marshall and Jordan were then detained and placed in
handcuffs. Police officers returned to the Saturn Ion and, through an open
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window, observed a pistol grip protruding from beneath a white towel that was
on the floor of the Saturn Ion’s passenger seat where Marshall had been sitting.
[10] When Jordan was escorted from the Saturn Ion, police could smell a strong
odor of marijuana coming from her clothing. Officers performed a pat-down
search of Jordan and found what was later determined to be approximately 8.7
grams of marijuana packaged in a single bag in her “crotch area[.]” Id. at 81.
Officers also found a partially burned cigar that was filled with marijuana on
Jordan’s person during the pat-down search. Jordan admitted the marijuana
found by officers was the marijuana Cureton intended to sell to her.
[11] Officers transported Cureton to the location of his Monte Carlo to identify
Jordan and Marshall. Cureton positively identified Marshall as the man who
had robbed him. Jordan and Marshall were arrested.
[12] Officers obtained a search warrant for the Monte Carlo and Saturn Ion and had
the vehicles towed to the South Bend police department. Forensic technicians
retrieved the gun from the Saturn Ion. Upon further examination and
laboratory testing, Marshall’s DNA was found on the gun’s front side and the
bottom of the magazine. According to the laboratory analysis, the DNA was
more consistent with someone handling the gun than DNA being transferred to
the gun from another object. Other items found in the Saturn Ion included a
key ring containing a whistle, heart charm, and the key to Cureton’s Monte
Carlo; an LG cell phone; and $28 cash.
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[13] The State charged Marshall with one count of armed robbery, a Level 3 felony.
A jury found Marshall guilty as charged, and the trial court imposed a thirteen-
year sentence with three years suspended to probation. Marshall now appeals.
Discussion and Decision
I. Standard of Review
[14] When reviewing a conviction for sufficiency of the evidence it is the role of this
court to consider only the evidence most favorable to the verdict and all
reasonable and logical inferences to be drawn therefrom. Minter v. State, 653
N.E.2d 1382, 1383 (Ind. 1995). A conviction will be affirmed if a reasonable
juror could find a defendant guilty beyond a reasonable doubt when taking all
the facts and inferences in favor of the conviction. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). We do not reweigh the evidence or judge the credibility
of witnesses. Wear v. State, 593 N.E.2d 1179, 1179 (Ind. 1992).
II. Sufficiency of the Evidence
[15] Marshall contends that the State failed to produce sufficient evidence to convict
him of armed robbery. In making his claim, Marshall asks this court to apply
the “incredible dubiosity rule.” Appellant’s Brief at 9. The incredible dubiosity
rule allows this court to impinge upon a jury’s responsibility to judge the
credibility of witnesses only when confronted with inherently improbable
testimony. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The appropriate
scope of the incredible dubiosity rule requires that there be: 1) a sole testifying
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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).
[16] Marshall acknowledges the State offered the testimony of several witnesses but
asserts that the “only witness that directly implicated Marshall in the crime
charged was Cureton.” Appellant’s Br. at 9. He argues Cureton’s testimony was
inherently improbable, referring to Cureton’s previous statements to the police,
a lack of detail in his description of Marshall’s clothing, and the suggestive
nature of his identification of Marshall to police on the day of the crime.
Marshall asserts that this case turns on Cureton’s testimony alone and that there
was no basis upon which a reasonable juror could have found him guilty
beyond a reasonable doubt under the incredible dubiosity rule. We disagree.
[17] With respect to the first factor, Marshall’s reliance on the incredible dubiosity
rule is misplaced. “[T]he application of this rule has been restricted to cases
where there is a single testifying witness.” Moore, 27 N.E.3d at 756 (emphasis
added). Cureton was not a single testifying witness: Marshall’s conviction was
based upon the testimony of ten State witnesses.
[18] As to the second factor, the incredible dubiosity rule applies only to conflicts in
trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006). In
other words, the second prong is satisfied “only when the witness’s trial
testimony was inconsistent within itself, not that it was inconsistent with other
evidence or prior testimony.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015).
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Marshall focuses on differences between Cureton’s statements to police after the
incident and his trial testimony, but Cureton’s testimony at trial was not
inconsistent or inherently contradictory regarding the elements of the alleged
crime.
[19] And as to the third factor, “[i]n a case where there is circumstantial evidence of
an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” Id.
at 1222 (quotation omitted). Here, there was a substantial amount of
circumstantial evidence, including: 1) Sigafoose’s eyewitness account of the
chase and robbery, 2) the description of the gun used in the robbery matching
the gun found in Marshall’s possession, 3) Marshall being in possession of
Cureton’s stolen belongings, 4) Marshall being found sitting in a car next to
Cureton’s missing Monte Carlo, and 5) Marshall’s DNA being on the handgun.
[20] In sum, there is no basis for applying the incredible dubiosity rule in this case.
As such, we now evaluate whether the State presented sufficient evidence to
support Marshall’s armed robbery conviction. The State was required to prove
that Marshall knowingly or intentionally took property from another person or
from the presence of another person: (1) by using or threatening the use of force
on any person; or (2) by putting any person in fear; and that he did so while
armed with a deadly weapon. Ind. Code § 35-42-5-1(a).
[21] Here, Cureton testified that Marshall chased him down the street, pulled a gun
on him, and “told [him] to empty everything [he] had in [his] pocket[.]” Tr.,
Vol. 2 at 23-24. After he complied, Marshall then “picked up everything off the
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ground and he took off running.” Id. at 24. Sigafoose testified that he saw the
chase, witnessed a man empty his pockets and raise his hands, and then saw a
man with a gun pick up the items. Cureton’s key ring, cell phone, and
marijuana were later found in the Saturn Ion with Jordan and Marshall, which
was parked next to Cureton’s stolen Monte Carlo. Further, Marshall’s DNA
was found on a black gun that was located on the floor of the passenger side of
the Saturn Ion where he was sitting. Despite Marshall’s assertion that there is
no evidence tying this gun to the crime, the gun matched descriptions given by
both Cureton and Sigafoose at trial. Moreover, this evidence was corroborated
by multiple State witnesses including five police officers, two forensic
technicians, and Jordan.
[22] Thus, considering only the evidence most favorable to the verdict and all
reasonable and logical inferences to be drawn therefrom, we conclude the State
has met its burden.
Conclusion
[23] For the reasons set forth above, we conclude that the incredible dubiosity rule is
inapplicable in this case and the victim’s testimony and corroborating evidence
are sufficient to support Marshall’s conviction. Therefore, we affirm.
[24] Affirmed.
Mathias, J., and Pyle, J., concur.
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