Timothy Ware v. State of Indiana ( 2012 )

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 M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
FILED
May 16 2012, 9:20 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
TIMOTHY WARE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1109-CR-495
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1004-MR-32650
May 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Shortly after Jimmy Johnson was gunned down in the doorway of his apartment,
police arrested his ex-roommate Timothy Ware, with whom Johnson had been in a financial
dispute. Eyewitnesses placed Ware at the apartment complex driving a dark Ford Taurus,
arguing with Johnson’s nephew, and threatening a tenant with a handgun. Although no one
witnessed the actual shooting, eyewitnesses observed a dark Ford Taurus speeding away
from the complex immediately thereafter.
A jury convicted Ware of murder and carrying a handgun without a license. Ware
appeals, claiming that the evidence was insufficient to establish his identity as the shooter.
Finding the evidence sufficient to support his convictions, we affirm.
Facts and Procedural History
In the winter of 2010, Ware and Johnson were living in Johnson’s apartment at the
Presidential Estates complex in Indianapolis. Ware moved out after an unresolved
disagreement with Johnson over money and a television. He continued to visit the complex
from time to time because his mother lived there.
On March 5, 2010, Johnson’s apartment was burglarized and the television was stolen.
There were no arrests in connection with the incident.
Sometime between 12:45 and 2:00 a.m. on April 21, 2010, Johnson’s nephew Walter
Johnson (“Walter”) drove Johnson back to his apartment after an evening out. As Walter
was leaving the complex, he encountered Ware driving into the complex. Ware swerved his
2
dark Ford Taurus as if to hit Walter’s vehicle. According to Walter, both vehicles stopped
and the following confrontation ensued:
I asked him—I was like, what’s going on, man? I was like, what’s this you
threatening my uncle? He was like, cause that nigga [sic] owes me some
money. And I like, he don’t owe you nothing. He said, yes he do. I was like,
no he don’t. He’s like, he was supposed to come and holla [sic] at me Friday.
I was like, man, my uncle don’t owe you nothing. He was like, what do you
mean? I was like, all right. He was like, all right what? And I slammed my
door and pulled off.
Tr. at 198. As Walter left, he noticed via his rearview mirror that one of Ware’s brake lights
was broken and taped. Walter immediately phoned Johnson to warn him that he had
encountered Ware in the complex.
Sometime between 1:00 and 2:00 a.m., another resident, Kristopher Whitelow,
stepped outside his apartment and encountered Ware. Whitelow knew Ware as “Slim” and
had seen him in the complex a couple times before. According to Whitelow, Ware pointed a
handgun at him and told him to “keep walking.” Id. at 128.
At 2:06 a.m., a 911 dispatcher received a call from Johnson stating that “Timothy
Ware or Thomas” was knocking on his door, threatening him. State’s Ex. 84. At 2:10 a.m., a
911 dispatcher received a call from one of Johnson’s neighbors reporting that she had heard
two gunshots and had seen Johnson lying motionless on the ground. Seconds later, dispatch
received a report from another neighbor, stating that she heard a pop-pop, went outside, and
saw Johnson lying motionless. Another neighbor reported that she heard the shots, looked
out her window, and saw a purple Ford Taurus “flying out of the complex.” Tr. at 262-63.
Whitelow also reported hearing gunshots and then seeing a sedan that appeared to be purple
3
traveling very fast. When police arrived, they found Johnson’s body lying just outside his
doorway and spent bullet casings nearby. They found other items indicating that a struggle
had taken place. An autopsy determined that Johnson died from multiple gunshot wounds.
The next day, Walter gave a statement to police and identified Ware from a photo
array. The following day, police traced a black Ford Taurus that was registered to Ware’s
girlfriend, and the vehicle had a broken, taped taillight. On April 23, 2010, Whitelow
reported his encounter with Ware to police and identified Ware from a photo array as the man
who had pointed a gun at him shortly before the shooting. Whitelow collected a $1000
Crime Stoppers reward, and the detective who took his statement characterized it as
providing “good information” and facts that were “never published.” Id. at 253-54.
On April 26, 2010, the State charged Ware with murder and class C felony carrying a
handgun without a license. Months later, police found a handgun in a retention pond nearby
and matched it to the casings found at the scene of the crime. A jury subsequently convicted
Ware of murder and class A misdemeanor carrying a handgun without a license. Ware now
appeals. Additional facts will be provided as necessary.
Discussion and Decision
Ware challenges the sufficiency of evidence supporting his convictions. When
reviewing a sufficiency of evidence claim, we neither reweigh evidence nor assess witness
credibility; rather, we consider only the probative evidence and reasonable inferences most
favorable to the verdict. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We will affirm if
no reasonable factfinder could conclude that the elements of the crime have been proven
4
beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). A conviction
may be based on circumstantial evidence alone. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), trans. denied.
Ware asserts that the evidence establishes only that he was present at the complex, not
that he was Johnson’s shooter. The defendant’s mere presence at the crime scene with the
opportunity to commit a crime is not sufficient to support a conviction, but when his presence
is combined with other circumstances tending to indicate participation, such evidence may be
sufficient to support a conviction. Pratt v. State, 744 N.E.2d 434, 436 (Ind. 2001).
Here, the evidence goes well beyond demonstrating presence and an opportunity to
commit a crime. Two eyewitnesses interacted with Ware in Johnson’s complex just before
the shooting. Walter’s testimony about his encounter with Ware provided a motive for
Johnson’s murder, and Whitelow’s testimony placed a gun in Ware’s hand. Moreover, just
before his death, Johnson told the 911 dispatch operator that Ware was knocking on his door
and threatening him. Finally, Whitelow and another neighbor reported seeing a purple Ford
Taurus speeding away shortly after the shots were fired. The vehicle was the same make and
model as the one driven by Ware at the time he confronted Walter, and the taped brake light
was consistent with the taped taillight on a black Ford Taurus registered to Ware’s girlfriend.
Ware argues that he was present at the complex to visit relatives, that there was a
discrepancy between the color of his vehicle and the vehicle that sped away after the
shooting, that the handgun recovered from the pond was never linked to him, and that
Whitelow’s collection of reward money tainted his testimony. These arguments amount to an
5
invitation to reweigh evidence and judge witness credibility, which we may not do. The jury
heard this evidence and made its factual and credibility determinations accordingly. We
conclude that the evidence and inferences most favorable to the verdict are sufficient to
support his convictions. Consequently, we affirm.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
6