Shon Hudson 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 Nov 13 2019, 10:52 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
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shon Hudson, November 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-583
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila Carlisle,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G03-1801-F3-261
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-583 | November 13, 2019 Page 1 of 7
[1] Shon Hudson appeals his conviction of Level 3 felony armed robbery. 1 He
argues the State presented insufficient evidence to sustain his conviction. We
affirm.
Facts and Procedural History
[2] On November 7, 2017, Kurt Everett dropped his daughter off at school and
stopped at Philadelphia Steak and Fries in Indianapolis for breakfast. Everett
was an auctioneer, and he planned to meet with dealers later in the day to buy
used farm equipment. Everett parked near the front door and walked into the
restaurant. When it was his turn, Everett ordered food and his total came to
$8.12. Everett took out his money clip and asked the cashier if the store took
hundred-dollar bills, and the cashier indicated that he could provide change for
a hundred-dollar bill. Shon Hudson and Teeiana Webster were standing nearby
waiting for their food, and Webster placed change on the counter in order to
cover the twelve-cent portion of Everett’s bill. As Everett stepped to the side to
wait for his food, he noticed Hudson and Webster were staring at him. When
his order was called, Everett got his food and sat at a table by the window to eat
it.
[3] After Everett finished eating, he threw away his trash and went back out to the
parking lot. As Everett sat in his truck preparing to leave, Hudson walked up to
1
Ind. Code § 35-42-5-1.
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Everett’s partially open window and said he needed directions. When Everett
reached over to the middle console to retrieve his phone so that he could give
Hudson directions, Hudson produced a gun. Hudson shoved the gun into
Everett’s chest and said, “Give me those hundreds.” (Tr. Vol. II at 34.) Everett
asked if he could keep his credit cards, and Hudson said, “I’m not f[***]ing
with you.” (Id. at 35.) Everett then gave Hudson $992.00 in cash and Hudson
walked away in the direction of a nearby hotel. Everett called a friend, drove to
a nearby parking lot, and then called 911. Officer Mark Mennonno responded
to Everett’s 911 call, and Everett gave him a description of the robber.
[4] Detective Edward Bottoms of the Indianapolis Metropolitan Police Department
also investigated the robbery. He obtained surveillance video from inside the
Philadelphia Steak and Fries restaurant. From this footage, he was able to
produce a “be on the lookout” (“BOLO”) sheet with still photos of the robbery
suspect and his companion. (Id. at 72.) The BOLO sheet was released to the
public, and an anonymous tip identified the robbery suspect as Shon Hudson
and his companion as Teeiana Webster. The anonymous tip also gave
addresses and telephone numbers for Hudson and Webster. On November 30,
2017, Everett met with Detective Bottoms and discussed the incident.
Detective Bottoms compiled and showed Everett a photo array, and Everett
identified Hudson as the person that robbed him.
[5] Detective Bottoms called the phone number for Hudson on December 4, 2017.
He also called Webster. He left a voicemail message for each, but he did not
receive a return call. On December 5, 2017, Hudson and Webster rode a bus
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from Indianapolis to Atlanta in order to visit with Hudson’s relatives. While in
Atlanta, Webster learned that her picture was on the news. Webster and
Hudson returned to Indianapolis on December 25, 2017.
[6] In the course of his investigation, Detective Bottoms obtained a search warrant
to get information from the phone carrier regarding the telephone number
associated with Hudson. Detective Adam Franklin analyzed the data the
phone carrier produced in response to the search warrant. These records
allowed Detective Franklin to determine which cell phone tower facilitated a
particular call, so that Detective Franklin could determine the general area
where the cell phone was located when it was used. At 8:36 a.m. on November
7, 2017, Hudson’s phone received a call and a phone tower near the crime
scene facilitated the call, and at 9:01 a.m. that day, Hudson made a call from
approximately six miles away from the crime scene.
[7] The State charged Hudson with armed robbery on January 3, 2018, and the
police arrested Hudson on February 10, 2018. The court held a one-day jury
trial on January 17, 2019. At trial, Webster testified that she and Hudson got
food at the Philadelphia Steak & Fries, walked out to a car where their friend,
Alec Guyette, was waiting for them, and they drove off. Guyette also testified
that the three of them went to Philadelphia Steak & Fries, he waited in the car
while Hudson and Webster went inside to pick up their food, and then they
drove off after they got their food. The jury returned a verdict of guilty and the
court entered a judgment of conviction. The court imposed a nine-year
sentence, with three years suspended. The court ordered Hudson to serve the
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first four years of his sentence inside the Indiana Department of Correction,
followed by two years in community corrections.
Discussion and Decision
[8] When reviewing the sufficiency of the evidence to support a conviction, we
look only to the probative evidence and the reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence does
not need to overcome every hypothesis of innocence. Id. at 147. We do not
reweigh the evidence nor do we assess the credibility of the witnesses. Stokes v.
State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied. “The
conviction will be affirmed if there is substantial evidence of probative value to
support the conclusion of the trier of fact.” Id. The testimony of a single
eyewitness is enough to sustain a conviction. Emerson v. State, 724 N.E.2d 605,
609-10 (Ind. 2000), reh’g denied. “It is for the trier of fact to resolve conflicts in
the evidence and to decide which witnesses to believe or disbelieve.” Ferrell v.
State, 746 N.E.2d 48, 51 (Ind. 2001). We will reverse “only when no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” McMiller v. State, 90 N.E.3d 672, 675 (Ind. Ct. App. 2017).
[9] A person commits Level 3 felony armed robbery if he knowingly or
intentionally takes property from another person by using force or threatening
to use force, while armed with a deadly weapon or in a way that causes bodily
injury to another person. Ind. Code § 35-42-5-1. Everett gave a physical
description of Hudson to police. He identified Hudson, both in-court and in a
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photo array, as the person who robbed him. Surveillance footage captured
Hudson in the Philadelphia Steak & Fries at the same time as Everett on
November 7, 2017. Everett observed Hudson walk towards his truck, put a gun
to his chest, and demand money. It was reasonable for the jury to believe
Everett’s testimony and conclude Hudson committed the crime of armed
robbery. Hudson’s presence at the scene of the crime at the time of the crime
along with Everett’s testimony is sufficient evidence to sustain his conviction.
See Hubbard v. State, 719 N.E.2d 1219, 1221 (Ind. 1999) (holding testimony of
the victim, the sole eyewitness, was sufficient to support convictions).
[10] Hudson emphasizes that the State did not produce any witnesses to the crime to
substantiate Everett’s account of the robbery even though the robbery occurred
outside a busy restaurant. Hudson also points out that Everett testified Hudson
and Webster ate inside. However, the surveillance video shows they ordered
take out. Everett testified in a deposition that he saw Hudson drive away from
the restaurant in a silver car. Everett also told 911 he thought the robber may
have fled to a nearby hotel, but the State did not put forth any other evidence to
corroborate these statements. Hudson also notes that Officer Mennonno
recorded Everett describing the suspect as between 6’3” and 6’4” and weighing
between 200 and 220 pounds. However, Hudson is only 5’9” and weighed less
than 200 pounds at the time of the crime. Additionally, Hudson emphasizes his
trip to Atlanta was a preplanned vacation rather than evidence of flight and
notes Everett used a derogatory term to describe Webster to police. To the
extent these facts were relevant to whether Hudson committed armed robbery,
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they were items for the jury to consider during deliberation. It is the province of
the jury to weigh the evidence and resolve any discrepancies or conflicting
testimony. Smedley v. State, 561 N.E.2d 776, 782 (Ind. 1990). We will not
reweigh the evidence or assess the credibility of witnesses. Burns v. State, 91
N.E.3d 635, 640-41 (Ind. Ct. App. 2018). Consequently, we decline Hudson’s
invitation to reweigh the evidence and hold the State presented sufficient
evidence to sustain Hudson’s conviction. See id. at 641 (appellate court cannot
reweigh evidence or judge credibility of witnesses).
Conclusion
[11] The State presented sufficient evidence to support Hudson’s conviction of
armed robbery. A reasonable juror could credit Everett’s testimony over the
testimony of Webster and Guyette. Moreover, restaurant surveillance footage
and cell phone tower records indicate Hudson was near the restaurant at the
time of the crime. Therefore, we affirm.
[12] Affirmed.
Najam, J., and Bailey, J., concur.
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