MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Nov 24 2015, 9:30 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
Victoria L. Bailey                                      Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Brian Reitz
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel Hoskin,                                          November 24, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1405-CR-192
        v.                                              Appeal from the Marion County
                                                        Superior Court
State of Indiana,                                       The Honorable Marc Rothenberg
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49G02-1211-MR-078411



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015    Page 1 of 11
                                          Case Summary
[1]   Daniel Hoskin (“Hoskin”) was convicted of Murder, a felony,1 and sentenced to

      fifty years imprisonment. He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Hoskin raises two issues for our review. We restate these as:

                   I.     Whether the State withheld material evidence in violation
                          of Brady v. Maryland, 373 U.S. 83 (1963), so that Hoskin is
                          entitled to a new trial; and


                  II.     Whether there was sufficient evidence presented at trial to
                          sustain Hoskin’s conviction.


                                   Facts and Procedural History
[4]   On September 24, 2012, Charles Ray (“Ray”; Ray was sometimes called

      “Cosmo”), who was wheelchair-bound, and John Byrd (“Byrd”) were both at

      home in an apartment on the bottom floor of a house on North Illinois Street in

      Indianapolis; they shared the apartment as roommates. Ray and Byrd had been

      drinking that day, and at some point Byrd had gone to a nearby liquor store to

      purchase some beer.




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 2 of 11
[5]   At around 8:30 p.m., three men, whom Byrd knew as “Lil Will,” “Nitra,” and

      “Bill Bill” (the name by which Byrd knew Hoskin) walked up to the front door

      of the residence and knocked on the door. Byrd opened the door, and the three

      said they were there to talk to Ray. Byrd decided to take the beer he was

      drinking outside, and sat down on the back porch of the home; Lil Will

      followed Byrd to the back of the home. As Byrd walked out of the apartment,

      he heard one of the men saying something about shooting Ray.


[6]   Byrd and Lil Will were near a porch behind the apartment for a few minutes,

      when Byrd heard a gunshot. At that moment, Lil Will began to walk back

      toward the front of the home. A few moments later, Byrd saw Hoskin and

      Nitra run from the front of the home toward the back alley; the two then ran

      north up the alley. Byrd returned to the front of the home, entered, and found

      Ray on the floor of his room with a gunshot wound to his head. Byrd called 9-

      1-1. Police and medical personnel arrived, but Ray could not be revived.


[7]   Subsequent investigation by police, including a court-ordered statement from

      Byrd and interviews with Byrd’s neighbors, led to the arrest of Hoskin and an

      individual whom Byrd identified as Nitra, Rodmitrell Jackson (“Jackson”). On

      November 16, 2012, the State charged Hoskin and Jackson with Murder.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 3 of 11
[8]    A joint jury trial was conducted on February 24, 25, and 26, 2014. At the

       conclusion of the trial, the jury found Hoskin guilty of Murder, as charged.2

       Hoskin initiated an appeal.


[9]    On September 4, 2014, Hoskin filed a motion under Appellate Rule 37 and

       Post-Conviction Rule 2(2),3 whereby he requested a stay of his appeal pending

       the filing with the trial court of a belated motion to correct error with respect to

       alleged violations of Brady v. Maryland. This Court granted that motion.


[10]   On October 23, 2014, Hoskin filed with the trial court his verified belated

       motion to correct error. In his motion, Hoskin designated as exhibits probable

       cause affidavits from a number of cases in which Ray, the victim in the instant

       case, had assisted police by serving as a confidential informant (“CI”) in

       numerous controlled buys of narcotics. Hoskin argued that the State’s failure to

       disclose this information was a violation of Brady, and that this information was

       material to his case such that, had it been known, a different result was

       reasonably probable. The trial court disagreed, and denied the motion to

       correct error.


[11]   This appeal proceeded.




       2
           The jury found Jackson not guilty.
       3
         This procedure, the Davis/Hatton procedure, is authorized by Ind. App. R. 37 “‘to develop an evidentiary
       record for issues that with reasonable diligence could not have been discovered before the time for filing a
       motion to correct error or a notice of appeal has passed.’” Peaver v. State, 937 N.E.2d 896, 899 (Ind. Ct. App.
       2010) (quoting Schlabach v. State, 842 N.E.2d 411, 418 (Ind. Ct. App. 2006), trans. denied), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015            Page 4 of 11
                                 Discussion and Decision
                                    Motion to Correct Error
[12]   For his first contention on appeal, Hoskin argues that the trial court abused its

       discretion when it denied his belated motion to correct error. “A trial court has

       discretion to grant or deny a motion to correct error and we reverse its decision

       only for an abuse of that discretion.” Hayden v. State, 830 N.E.2d 923, 930 (Ind.

       Ct. App. 2005), trans. denied. An abuse of discretion occurs when the trial

       court’s decision is against the logic and effect of the facts and circumstances

       before it, or when the court has misinterpreted the law. Id.


[13]   Hoskin’s motion to correct error, and his argument on appeal, rely on the U.S.

       Supreme Court’s ruling in Brady v. Maryland, and upon Brady’s progeny. In

       Brady, the Supreme Court held that “suppression by the prosecution of evidence

       favorable to an accused upon request violates due process where the evidence is

       material either to guilt or to punishment, irrespective of the good faith or bad

       faith of the prosecution.” 373 U.S. at 87. To prevail in a Brady claim, the

       defendant must establish (1) that the prosecution suppressed evidence; (2) that

       the evidence was favorable to the defense; and (3) that the evidence was

       material to an issue at trial. Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App.

       2012), trans. denied.


[14]   Evidence is material within the meaning of Brady “only if there is a reasonable

       probability that, had the evidence been disclosed to the defense, the result of the

       proceeding would have been different. A ‘reasonable probability’ is a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 5 of 11
       probability sufficient to undermine confidence in the outcome.” United States v.

       Bagley, 473 U.S. 667, 682 (1985). Evidence relevant to impeachment is within

       the scope of evidence that may fall within the Brady rule. Banks v. Dretke, 540

       U.S. 668, 675-76 (2004) (“When police or prosecutors conceal significant

       exculpatory or impeaching material in the State’s possession, it is ordinarily

       incumbent on the State to set the record straight.”).


[15]   In support of his argument that Ray’s role as a CI could have been used to

       impeach Byrd, Hoskin contends that the trial court abused its discretion when it

       found that information concerning the work performed by Ray as a CI on

       behalf of Indianapolis police was not material to Hoskin’s defense. The State

       argues that Hoskin waived this issue because, despite Hoskin’s arguments

       concerning the purported materiality of the information concerning Ray’s work

       as a CI, “impeachment was not mentioned at all.” State’s Br. at 14.


[16]   We first address the State’s contention that Hoskin waived this argument.

       Hoskin’s verified motion to correct error states, in part, “knowledge that Mr.

       Ray was a CI … creates a huge pool of potential, alternative suspects. It also

       would have given Mr. Hoskin arguments as to why Mr. Byrd would have lied to

       police and falsely accused Mr. Hoskin of this crime.” App’x at 240 (emphasis

       added). The motion to correct error addressed issues related to impeachment of

       Byrd, and we accordingly find no waiver.


[17]   Turning to the question of materiality, the evidence presented by Hoskin in

       support of the motion to correct error showed Ray’s involvement as a CI in a


       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 6 of 11
       large number of criminal investigations, and the State does not dispute that this

       information was not provided to Hoskin in advance of trial. That does not

       settle the question of materiality, however. The question on that point is

       whether there was a reasonable probability that, had the State disclosed

       information regarding Ray’s activity as a CI, a different result would likely have

       obtained at trial if Hoskin could have made effective use of the information

       regarding Ray’s activities to impeach Byrd.


[18]   Our review of the record reveals that, even without the information concerning

       Ray’s work as a CI, Byrd’s testimony was not given significant weight by the

       jury. Hoskin was tried together with a co-defendant, Jackson. Hoskin was

       placed at the scene not only by Byrd’s testimony, but also by testimony from a

       neighbor, Harry Nunn, and by means of cellular phone records. The sole

       source of evidence connecting Jackson to the commission of the murder of Ray

       was Byrd’s testimony; the jury found Jackson not guilty. The jury seems to

       have given relatively little weight to Byrd’s testimony; it is unclear how further

       impeachment of Byrd would have aided Hoskin’s defense.


[19]   Further, Hoskin does not explain how Ray’s work as a CI would have aided in

       efforts to impeach Byrd. Hoskin directs us to no information indicating that

       Byrd was aware of Ray’s work as a CI, let alone how Byrd’s knowledge of that

       information would have tended to make less plausible his testimony concerning

       Hoskin’s role in Ray’s murder.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 7 of 11
[20]   We thus cannot conclude that the information concerning Ray’s work as a CI

       was material to the question of effective impeachment of Byrd. In light of the

       facts and circumstances before it, and based upon our review of the record at

       trial, we cannot conclude that the trial court abused its discretion when it

       denied Hoskin’s motion to correct error on the basis of a Brady violation.


                                  Sufficiency of the Evidence
[21]   We turn now to Hoskin’s second contention on appeal, that there was

       insufficient evidence to support his conviction for Murder. Our standard of

       review in such cases is well settled. We 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 the credibility of witnesses or reweigh

       evidence. Id. We will 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)). “The evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.

       2001)).


[22]   Here, Hoskin was charged with Murder. To convict Hoskin of Murder, as

       charged, the State was required to prove beyond a reasonable doubt that Hoskin

       knowingly killed Ray by shooting him with a gun, thereby inflicting mortal

       injuries upon Ray such that he died. See I.C. § 35-42-1-1(1); App’x at 39.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 8 of 11
[23]   Here, the evidence that favors the verdict is that on September 24, 2012, Hoskin

       and two other men arrived at the apartment Ray and Byrd shared. Nunn, one

       of Ray’s and Byrd’s neighbors, saw the three men arrive, and recognized one of

       them as Hoskin. Byrd testified that the three men knocked on the door of the

       apartment, and when Byrd answered the door they asked to see Ray. As Byrd

       and one of the men stepped outside, Byrd heard either Hoskin or the other man

       with him mention something about shooting Ray. Within a few minutes, Byrd

       heard a gunshot come from inside the apartment; the man with Byrd walked

       away, and Byrd saw Hoskin and another man running away from the home.

       Byrd immediately reentered his apartment, where he found Ray lying

       unresponsive on the floor with a gunshot wound to his head. A neighbor, Mark

       Brownlow (“Brownlow”), testified to hearing the gunshot, and testified to

       seeing fast-moving shadows running near his home, following the course Byrd

       saw Hoskin take.


[24]   Hoskin argues that this is insufficient evidence from which to conclude that he

       was the shooter and thus committed Ray’s murder. Assuming arguendo that

       Hoskin’s argument on that point is correct, nevertheless there is sufficient

       evidence to establish the requirements of accomplice liability. The Indiana

       Code provides that “[a] person who knowing or intentionally aids, induces, or

       causes another person to commit an offense commits that offense, even if the

       other person … (3) has been acquitted of the offense.” I.C. § 35-41-2-4. Mere

       presence at the scene of a crime is insufficient to make one an accomplice.

       Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct. App. 2014). However, the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 9 of 11
       presence of an individual at a crime scene may be considered in conjunction

       with other factors that tend to show a defendant acted as an accomplice to a

       crime. Id. These factors are: (1) presence at the scene; (2) companionship with

       another at the scene; (3) failure to oppose commission of the crime; and (4)

       course of conduct before, during, and after occurrence of the crime. Id.


[25]   Here, Hoskin was present at a crime scene, in companionship with two other

       men. Hoskin and the two other men arrived at the apartment specifically

       looking for Ray, Byrd overheard either Hoskin or another individual saying

       they would shoot Ray, and Hoskin and the other individual remained in the

       apartment while Byrd and another man left the home. Finally, not only did

       Hoskin arrive with the men looking for Ray, Hoskin remained in the apartment

       with one other individual and Ray, and was seen fleeing the scene with that

       individual after Ray’s murder.


[26]   Taken together, this is sufficient evidence from which a jury could reasonably

       conclude that Hoskin either shot Ray or was an accomplice to the murder and

       thus equally liable for the offense as charged. We accordingly affirm Hoskin’s

       conviction.



                                              Conclusion
[27]   The trial court did not abuse its discretion when it denied Hoskin’s motion to

       correct error on Brady grounds. There was sufficient evidence to sustain

       Hoskin’s conviction for Murder.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 10 of 11
[28]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-CR-192 | November 24, 2015   Page 11 of 11
