Marshawn Malik Weems v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Aug 22 2016, 8:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marshawn Malik Weems, August 22, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1602-CR-303
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable J. Jerome Frese,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1503-F2-4
Brown, Judge.
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[1] Marshawn Malik Weems appeals his conviction for robbery as a level 2 felony.
Weems raises one issue which we revise and restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On February 26, 2015, just after 2:00 p.m., William Chaney was in the
driveway of his god-daughter’s house on Elwood Street in South Bend, Indiana,
helping to unload groceries when a young black male approximately twenty
years old and about six-feet tall, wearing dark clothes, approached him from
behind and told Chaney to give him his wallet or that he would shoot. Chaney
turned around and observed that the man had a gun pointed at Chaney’s head,
and he tried convincing the man that he did not have any money and that this
robbery was a “bad idea.” Transcript at 18. The man repeated “your wallet or
I shoot you,” and Chaney, believing that he did not have enough money to
make the assailant happy with just robbing him, threw a jar of jelly at the man’s
head and “hard-charged” him, forcing the man to back-pedal towards the edge
of the alley. Id. at 18-19. The man then fired the gun, hitting Chaney in the
abdomen, and while Chaney was on the ground the man took his wallet and
checkbook. The assailant then ran away.
[3] Officers of the South Bend Police Department responded to the scene, and
Chaney told police upon their arrival that he heard his assailant run away in the
direction towards Brookfield down an alley. Chaney described the attack and
assailant to Officer Samuel Chaput. Officer Nicholas Pogotis located a shell
casing for a .45 caliber bullet at the scene. He and other officers noticed a
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distinctive shoe impression in the snow behind Chaney’s vehicle which
continued in a left foot, right foot pattern proceeding west down the alley,
turning north in the north-south alley on the east side of Brookfield Street, and
then again turning west to the back door of a residence on Brookfield Street.
Based on the length of the strides and the toe indentation, it appeared that the
person making these impressions had been running. Officers secured the
perimeter of the Brookfield residence.
[4] The officers made contact with Marilyn Lumpkin, the current tenant of that
residence, who was the mother of Mario Lumpkin. Marilyn consented to a
police search of the home, and she told the other occupants, including Weems,
Mario, and other female occupants, to come outside. Weems was thin and
between five feet, six inches and five feet, eight inches tall, and Mario was
heavyset and between five feet, two inches and five feet, four inches tall.
Officer David Trout recovered a Ruger .45 caliber handgun from the attic of the
home wrapped in a t-shirt and placed between two pillars or joists and under a
layer of insulation. When officers searched the basement, they discovered dark
clothes in the washing machine in the middle of the wash cycle. Officers also
recovered from the house a pair of shoes with a sole pattern consistent with the
footprints they had followed from the scene of the shooting to the home,
although the shoes were “much smaller” in size than the shoe that had left the
footprints. Id. at 128.
[5] Detective Gery Mullins transported Weems and his mother, Laurie Cotton, to
the South Bend Police Department for questioning. After consulting privately
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with his mother, Weems agreed to talk to the police. Weems told Detective
Mullins that he and Mario had left the house to walk to Martin’s to buy a
frozen pizza but went back to change clothes after “he realized how cold it
was.” Id. at 181. Detective Mullins asked Weems if he knew anything about
guns in the Lumpkins’ home, and he initially denied knowing anything.
Detective Mullins asked Weems if his fingerprints were on the gun, and Weems
stated yes because he and Mario had been handling the guns the night before.
After Detective Mullins explained to Weems that he could compare a shell
casing recovered from the scene of a crime with a particular gun and could
determine whether that gun was used to fire the bullet, Weems told Detective
Mullins that “you’re going to find out that that gun was used in the shooting.”
Id. at 184. Weems did not explain how he knew that the gun was used or how
it had been placed in the attic.
[6] The police confiscated the cell phones of Weems and Mario and obtained a
search warrant. A number of videos were recovered from the phones, including
a video on Weems’s phone recorded within an hour prior to the robbery of
Chaney depicting Weems holding the gun recovered from the house and saying
“get yo f-ckin’ money, ya man . . . ain’t nothin’ to it but to do it man, ain’t
nothin’ to it but to do it” and “I know y’all wonderin’ what the f-ck this is, but
it’s a f-ckin’ 30 b-tch.” State’s Exhibit 40. Another video on Weems’s phone
three days before the robbery depicted Weems walking through an alley, in
which still frames of the left and right shoes he was wearing depicted the Air
Jordan logo, similar to the shoes recovered from the home and matching the
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footprints in the snow after the robbery. A third video on Weems’s phone
shows Weems walking with Mario about thirty minutes after the robbery on
Elwood Street, in which Weems states: “mo-f-ckers ain’t know what the f-ck it
is, we da reason why we got these detectives on that case . . . detectives boy . . .
look at this sh-t . . . y’all finna see us here, we [inaudible] it . . . look at this sh-
t,” and “that’s it bro, that’s it, we the reason why the detectives on the
[inaudible].” State’s Exhibit 41. At the time the video was made, officers had
not yet arrived at the Brookfield residence and were following the footprints in
the snow.
[7] A fourth video, over seven minutes long, recovered from Weems’s phone
depicts Weems staying out of view of police by standing on the stairwell in the
house while Mario speaks with an officer through a storm door, and depicts
Weems trying to whisper answers to Mario. In the video, the officer asks
Mario if anyone else is in the house, and Mario responds that only he, his
younger sister, and his aunt are home. The recording shows Weems sneaking
down the stairs to observe the officers stationed outside through closed window
blinds, and Weems turns the camera to record himself giving the middle finger
towards the direction of the police and stating “f-ck” and “f-ck the law.” State’s
Exhibit 42.
[8] On March 2, 2015, the State charged Weems with robbery as a level 2 felony.
On December 11, 2015, the court held a bench trial at which evidence
consistent with the foregoing was presented. At the trial, Dinay Lloyd, who
came into contact with Weems while they were both being held at the St.
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Joseph County Jail, testified that Weems told him that he was in jail because
“he attempted to rob a person while unloading some groceries,” that “the
person hit him” with “[a] jar of jelly,” and that “he shot him in the leg” and
“ran to his family, his cousin’s house, where they followed him back to -- where
they traced him through -- through the snow.” Transcript at 150-151. Ray
Wolfenbarger, a firearm and tool mark examiner for the South Bend Police
Department, testified that the shell casing found at the scene of the robbery was
fired from the handgun recovered from the Lumpkins’ attic.
[9] The court found Weems guilty as charged and on January 7, 2016, sentenced
him to a term of twenty years.
Discussion
[10] The issue is whether the evidence is sufficient to sustain Weems’s conviction for
robbery as a level 2 felony. When reviewing the sufficiency of the evidence to
support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.
Id. We consider conflicting evidence most favorably to the trial court’s ruling.
Id. We affirm the conviction unless “no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins
v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence
is sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. It is well established that “circumstantial evidence will be deemed
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sufficient if inferences may reasonably be drawn that enable the trier of fact to
find the defendant guilty beyond a reasonable doubt.” Kenney v. State, 908
N.E.2d 350, 352 (Ind. Ct. App. 2009), trans. denied. Identification testimony
need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661
N.E.2d 612, 616 (Ind. Ct. App. 1996). Inconsistencies in identification
testimony impact only the weight of that testimony, because it is the jury’s task
to weigh the evidence and determine the credibility of the witnesses. Gleaves v.
State, 859 N.E.2d 766, 770 (Ind. Ct. App. 2007) (citing Badelle v. State, 754
N.E.2d 510 (Ind. Ct. App. 2001), trans. denied).
[11] The offense of robbery is governed by Ind. Code § 35-42-5-1, which provides
that:
A person who 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 any person;
or
(2) by putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Level 2 felony if it results in serious bodily
injury to any person other than a defendant.
Thus, to convict Weems of robbery as a level 2 felony, the State needed to
prove that he knowingly or intentionally took property from Chaney by using
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or threatening the use of force or by putting Chaney in fear, which resulted in
serious bodily injury.
[12] Weems suggests that the evidence was insufficient to prove that he was the
person who shot Chaney, noting specifically that Cheney did not identify him
at trial and did not precisely remember the clothing worn by the assailant. He
argues that the shoes recovered from the home were too small to make the
footprints leading from the scene to the house and, although a video from
Weems’s phone depicts him wearing Air Jordan shoes, without the actual shoe
owned by Weems there is no way to compare size and tread pattern. Weems
asserts that, “[w]hile officers testified that they did not see anyone enter or leave
the residence on Brookfield from the time that they began their surveillance,
there was a period of time between the shooting and the police arrival at the
home where people came and left” and that the State cannot say there was no
one else at the house who had access to the gun because Weems and Mario left
to purchase a frozen pizza. Appellant’s Brief at 6 (citation omitted). The State
maintains that it presented sufficient evidence to convict Weems.
[13] The evidence most favorable to Weems’s conviction reveals that, on February
26, 2015, a person matching his description robbed Chaney, shot him in the
abdomen, and ran down an alley, leaving a trail of footprints from Air Jordan
shoes. Video recovered from Weems’s phone shows him wearing Air Jordan
shoes three days before the robbery. The footprints led police to a residence on
Brookfield Avenue that was occupied by Weems and his friend Mario
Lumpkin, who was shorter and stockier than Weems, and Weems and Mario
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were the only males at the residence. Upon searching the residence, police
recovered a Ruger .45 caliber handgun, which had been hidden in the attic of
the home wrapped in a t-shirt between two joists and under a layer of
insulation, as well as dark clothes being washed in the washing machine.
Wolfenbarger determined that it was the same handgun that had been used to
shoot Chaney. After first denying any knowledge of the gun, Weems admitted
to Detective Mullins that his fingerprints were on the gun and that the police
would discover that it was indeed the gun used to shoot Chaney, although he
was unable to explain how he knew the gun had been used in the shooting or
why it was hidden in the attic. Another video recovered from Weems’s phone
made one hour prior to the robbery of Chaney depicts Weems holding the same
gun stating “get yo f-ckin’ money, ya man . . . ain’t nothin’ to it but to do it
man, ain’t nothin’ to it but to do it” and “I know y’all wonderin’ what the f-ck
this is, but it’s a f-ckin’ 30 b-tch.” State’s Exhibit 40.
[14] Additionally, a third video recovered from Weems’s phone recorded
approximately thirty minutes following the robbery depicts Weems and Mario
walking on Elwood Street, in which Weems states: “mo-f-ckers ain’t know
what the f-ck it is, we da reason why we got these detectives on that case . . .
detectives boy . . . look at this sh-t . . . y’all finna see us here, we [inaudible] it . .
. look at this sh-t,” and “that’s it bro, that’s it, we the reason why the detectives
on the [inaudible].” State’s Exhibit 41. Another video shot during the police
encounter with Mario at the door of the Brookfield residence depicts Weems
whispering answers to Mario for the police and Weems recording himself
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giving the middle finger towards the direction of the police and stating “f-ck”
and “f-ck the law.” State’s Exhibit 42. Additionally, Dinay Lloyd testified that
Weems admitted to shooting Chaney and recited the circumstances of the
offense consistent with the facts presented at trial.
[15] Based upon the record, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could find beyond a
reasonable doubt that Weems committed the crime of robbery as a level 2
felony. Hill v. State, 773 N.E.2d 336, 347-348 (Ind. Ct. App. 2002) (holding that
the evidence was sufficient to support Hill’s convictions for robbery, criminal
confinement, and carrying a handgun without a license, where the evidence
revealed that “a man, armed with a gun and wearing a white jacket, jean shorts,
white tube socks, and white tennis shoes, shot Barr in the stomach, ordered
Wagner to open the register and lie on the floor, and stole money from the
register at the liquor store,” that the robber drove away and crashed into some
trees and left the car, leaving the gun behind, and ran through a creek and
toward Gale Street, that between Gale Street and the creek police recovered a
beige jacket, that a winded Hill knocked on a door and asked to use the phone
“wearing jean shorts, white socks, and white tennis shoes, and he had to take
his socks off to wring them out because they were soaked with water,” and that
his fingerprint was found on the car that the robber had been driving), reh’g
granted on other grounds, 777 N.E.2d 795 (Ind. Ct. App. 2002), trans. denied, cert.
denied, 540 U.S. 832, 124 S. Ct. 79 (2003); see also Kenney, 908 N.E.2d at 353-
354 (affirming the defendant’s conviction for felony murder based upon
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evidence including the presence of his palm print found outside of the victim’s
car and that the defendant was acquainted with a co-defendant, and noting that
even though an eyewitness was unable to positively identify the defendant he
closely matched the description given).
Conclusion
[16] For the foregoing reasons, we affirm Weems’s conviction for robbery as a level
2 felony.
[17] Affirmed.
Robb, J., and Mathias, J., concur.
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