MEMORANDUM DECISION                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Apr 24 2018, 6:27 am

this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court
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
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Drake,                                            April 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2278
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff                                       Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1609-MR-36877



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018            Page 1 of 11
                                          Case Summary
[1]   Robert Drake was convicted of murder and sentenced to a below-advisory term

      of fifty years. He now appeals, arguing that the evidence is insufficient to

      support his conviction and that the trial court abused its discretion in sentencing

      him. We affirm.



                            Facts and Procedural History
[2]   The evidence most favorable to the verdict establishes that in September 2016,

      Joshawa Burge, Cody Abell, Dominique Dunbar, and Joshua Hatfield lived

      together in a house at 1102 North Kealing Avenue in Indianapolis. Cody’s dog

      also lived in the house. Joshawa, Cody, and Dominque knew each other from

      college and had lived in the house for a couple years; Joshua had recently

      moved in. Two additional men, Danny Campbell and Travon Smith, were

      temporarily staying at the house. Drake was “cousins” with Danny and had

      previously visited the house, but it had been “a long time,” at least six months.

      Tr. Vol. II p. 161. As of September 2016, Danny and Drake “weren’t talking

      anymore” because of an argument. Id. at 163.


[3]   James Collier lived across the street from 1102 North Kealing. Although it was

      a high-crime area (James had video-surveillance equipment installed at his

      house), he did not notice a lot of activity at 1102 North Kealing. On Tuesday,

      September 6, 2016, James got home from work a little before 9:00 p.m. and

      heard “a lot of loud talking” and “hustling type stuff” in the front yard of 1102


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 2 of 11
      North Kealing. Tr. Vol. III p. 123. He saw four to six men that he did not

      associate with 1102 North Kealing. According to James, the men were “trying

      to figure out what they were gonna do.” Id. at 124.


[4]   Around the same time, the housemates were playing video games in various

      parts of the house: Joshawa was in the living room; Danny and Travon were in

      the adjacent dining room; Cody was in his bedroom upstairs with the door

      open; and Joshua was in his bedroom upstairs with the door open. Dominque

      was in his bedroom upstairs but had just come downstairs to get a drink.

      Around 9:00 p.m., there was a knock on the front door. Suspecting it was the

      pizza they had ordered, Dominque, who was passing by the front door, went to

      answer it. As Dominique reached for the door handle, the door was pushed in

      from the outside. Joshawa looked up and saw Drake—who he immediately

      recognized as Danny’s cousin—standing in the doorway. Joshawa did not

      expect to see Drake “that night or any other night.” Tr. Vol. II p. 93. Joshawa

      then saw a hand holding a gun come through the doorway behind Drake and

      hit Dominique in the head with the gun, knocking off his glasses.


[5]   Drake entered the house “like he had a purpose.” Id. at 123. As Drake passed

      through the living room on his way to the dining room—where his cousin

      Danny and Travon were—he said, “They’re back here. They’re back here, get

      him.” Id. at 94. From their bedrooms, Cody heard someone (who was not one

      of his housemates) shout “he’s back here,” id. at 151, and Joshua heard a

      commotion followed by someone saying in a loud voice, “He’s in here. Come

      get him,” id. at 191. Danny and Travon got up and ran toward the kitchen. Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 3 of 11
      at 136. Drake “chased them.” Id. at 98. Joshawa—who stayed in the living

      room because Drake had ordered him to “[g]et down”—saw a “scuffle going on

      by the back door in the kitchen.” Id. at 94, 99. Specifically, Drake, Danny, and

      Travon were “wrestling and fighting in the kitchen,” and Danny and Travon

      “were trying to get out the back door, away from” Drake. Id. at 99.


[6]   In the meantime, Dominique pushed the other would-be intruders out the front

      door and onto the porch. Once outside, a shot was fired, striking Dominique in

      the left eye and killing him. Cody and Joshua, accompanied by the dog, ran

      downstairs and out the open front door. They saw Dominique lying at the

      bottom of the porch stairs. As three men were running away from the house,

      the dog chased them to a silver car that was parked across the street. The dog

      grabbed one of the men by the ankle as he was getting into the passenger side of

      the car; several shots were fired, killing the dog. The men drove away in the

      car.


[7]   After the men drove away, Cody was standing in the front yard when he saw a

      man who looked like Drake run behind him. A “frantic” Joshua flagged down

      an Indianapolis Metropolitan Police Department officer. Id. at 71. Homicide

      detectives and crime-scene technicians arrived on the scene shortly thereafter.

      Based on the fired cartridges and the bullets recovered from the bodies of

      Dominique and the dog, it was determined that three guns were fired. Tr. Vol.

      III p. 98.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 4 of 11
[8]   Detective John Breedlove immediately started looking for Drake. On

      September 19, Detective Breedlove received a phone call from a bishop in

      Nashville, Tennessee. The bishop said that Drake was in Nashville and

      “wanted to turn himself in.” Id. at 184. Detective Breedlove drove to Nashville

      to speak with Drake. After being given Miranda warnings, Drake gave a

      videotaped statement. See Ex. 77. Drake said that on the night of September 6

      he went to 1102 North Kealing, alone, to reconcile with Danny, that he did not

      know the three men that came to the house after him, that he did not say

      anything like “get him” when he entered the house, and that he pushed Danny

      and Travon through the house in order to save their lives. When Detective

      Breedlove told Drake that his story was not believable, Drake maintained that

      he did not know the three men and that it was a “coincidence” that they came

      to the house right after him. Id. (Drake describing it as an “ambush”). Drake

      said he left Indianapolis for Nashville the morning after the shooting.


[9]   The State charged Drake with murder (during the commission or attempted

      commission of burglary), Level 1 felony burglary, and Level 5 felony criminal

      confinement (Danny). Before trial, the State dismissed the criminal-

      confinement charge.1 At the jury trial, the State’s theory was that Drake was an

      accomplice. See Tr. Vol. IV p. 30 (prosecutor arguing that Drake did not shoot




      1
        Neither Danny nor Travon testified at trial. The State could not locate Travon, see Tr. Vol. III pp. 163-64,
      and although the State could locate Danny, it decided not to call him as a witness at trial because it believed
      that his testimony would not be truthful, see id. at 243-44; Appellant’s App. Vol. II p. 85 (“State’s Notice of
      Intent to Not Call a Witness at Trial”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018               Page 5 of 11
       Dominique; rather, Drake’s accomplice did). The jury was shown a video from

       James’s surveillance-video system. Drake was convicted of murder and

       burglary.


[10]   At the sentencing hearing, the trial court vacated the burglary conviction due to

       double-jeopardy concerns. The trial court identified the following mitigators:

       Drake did not have a criminal history (this was his first conviction), he was a

       “responsible family man,” and he’s “been employed to the best of [his] ability.”

       Tr. Vol. IV p. 110. As for aggravators, the court found that the crime required

       careful planning and resulted in a dog’s death; however, the court did not give

       the dog’s death “a whole lot of weight.” Id. at 111. Finding that the mitigators

       outweighed the aggravators, the court imposed a below-advisory sentence of

       fifty years. See Ind. Code § 35-50-2-3 (the sentencing range for murder is forty-

       five to sixty-five years, with an advisory sentence of fifty-five years ). The court

       said that this would have been a good case for imposing the minimum sentence

       had Drake “disclos[ed] those who were involved.”2 Tr. Vol. IV p. 111.


[11]   Drake now appeals.




       2
        Detective Breedlove testified at trial that the case was still open as to the unidentified men. See Tr. Vol. III
       pp. 169, 208.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018                 Page 6 of 11
                                  Discussion and Decision
[12]   Drake raises two issues on appeal. First, he contends that the evidence is

       insufficient to support his conviction for murder as an accomplice. Second, he

       contends that the trial court abused its discretion in sentencing him.


                                I. Sufficiency of the Evidence
[13]   Drake contends that the evidence is insufficient to support his conviction for

       murder because he did not act as an accomplice. When reviewing

       the sufficiency of the evidence to support a conviction, appellate courts must

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s

       role, not that of appellate courts, to assess witness credibility and weigh the

       evidence to determine whether it is sufficient to support a conviction. Id. It is

       not necessary that the evidence “overcome every reasonable hypothesis of

       innocence.” Id. (quotation omitted). The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Drane v. State, 867

       N.E.2d 144, 147 (Ind. 2007).


[14]   A person who knowingly or intentionally aids, induces, or causes another

       person to commit an offense commits that offense. Ind. Code § 35-41-2-4. “It

       is well established that a person who aids another in committing a crime is just

       as guilty as the actual perpetrator.” Green v. State, 937 N.E.2d 923, 927 (Ind. Ct.

       App. 2010), trans. denied. It is not necessary for a defendant to have participated

       in every element of the crime to be convicted as an accomplice. Id. There is no

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 7 of 11
       bright line in determining accomplice liability; the particular facts and

       circumstances of each case determine whether a person acted as an accomplice.

       Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). The fact-finder considers

       several factors, including: (1) presence at the scene of the crime; (2)

       companionship with another engaged in a crime; (3) failure to oppose the

       commission of the crime; and (4) the course of conduct before, during, and after

       the occurrence of the crime. Id. That a defendant was present during the

       commission of a crime and failed to oppose the crime is not sufficient, alone, to

       convict him, but it may be considered in conjunction with other factors. Id.


[15]   Drake argues that “[t]he evidence shows that [he] could have been involved,

       but it does not come close to showing beyond a reasonable doubt that he was

       involved.” Appellant’s Br. p. 16. The evidence shows that on the night of

       September 6, Drake went to 1102 North Kealing, where his cousin Danny—

       whom he was not talking to at the time—was staying. Drake had not been to

       the house in at least six months. A little before 9:00 p.m., James, who lived

       across the street from 1102 North Kealing, saw a group of four to six men that

       he did not associate with the house. The men were talking loudly in the front

       yard and trying to figure out what to do. Drake then entered the house “like he

       had a purpose.” A man behind Drake hit Dominque in the head with a gun,

       knocking off his glasses. Joshawa testified that as Drake passed through the

       living room on his way to the dining room (where his cousin Danny and

       Travon were), he said, “They’re back here. They’re back here, get him.” Cody

       and Joshua testified that they heard something similar. Drake ordered

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 8 of 11
       Joshawa, who had since stood up, to “[g]et down.” When Danny and Travon

       ran toward the kitchen, Drake chased them. A fight broke out in the kitchen,

       and Danny and Travon tried to get out the back door away from Drake. While

       this was going on, Dominque pushed the other would-be intruders out the front

       door and was shot in the left eye, killing him. Later, after the three men left in

       the car, Cody was standing in the front yard when he saw a man who looked

       like Drake run behind him. The morning after the shooting, Drake left

       Indianapolis for Nashville, Tennessee. See, e.g., Brown v. State, 563 N.E.2d 103,

       107 (Ind. 1990) (“Evidence of flight may be considered as circumstantial

       evidence of consciousness of guilt.”). The evidence is sufficient to support the

       jury’s verdict that Drake knowingly or intentionally aided, induced, or caused

       the offense.


[16]   Nevertheless, Drake highlights, among other things, that he did not have a gun,

       that he did not leave in the car with the other men, and that the housemates

       provided inconsistent testimony regarding what was said when he entered the

       house (for example, “He’s in here” v. He’s back here”). These, however, are all

       requests for us to reweigh the evidence. The jury was presented with all of this

       evidence, including Drake’s version of events as contained in his videotaped

       statement, and found him guilty. We therefore affirm his conviction for

       murder.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018   Page 9 of 11
                                                 II. Sentencing
[17]   Drake next contends that the trial court abused its discretion in sentencing him

       to fifty years. Sentencing decisions rest within the sound discretion of the trial

       court and are reviewed on appeal for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). An abuse of discretion occurs if the decision is clearly against the logic

       and effect of the facts and circumstances before the court or the reasonable,

       probable, and actual deductions to be drawn therefrom. Id.


[18]   Specifically, Drake argues that the trial court abused its discretion in identifying

       as an aggravator the fact that he did not “disclos[e] those who were involved.”3

       Tr. Vol. IV p. 111 (trial court: “he must know something”). Drake asserts that

       “[t]he record does not support the trial court’s finding that [he] refused to

       disclose the [men’s] names” because there is “no evidence that [he] knew their

       names.” Appellant’s Br. p. 19. Despite Drake’s claim in his videotaped

       statement that he did not know the other men and that it was just a

       “coincidence” that they came to the house around the same time that he did,

       the jury found Drake guilty as an accomplice, and there was evidence that he

       acted in concert with them. Based on this evidence, the court properly found

       that Drake had information that could have helped the police identify the other




       3
        The parties dispute whether the trial court found this as an aggravator or failed to find his remorse as a
       mitigator (based on his failure to disclose). Regardless of how the trial court characterized this, we find no
       abuse of discretion.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018              Page 10 of 11
       men involved in this case.4 Accordingly, the trial court did not abuse its

       discretion in identifying this as an aggravator and in sentencing Drake to a

       below-advisory term of fifty years instead of the minimum term of forty-five

       years.


[19]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       4
        Drake argues that even if the record reflected that he knew the men’s names, “defendants who incriminate
       other individuals are often subjected to violent acts of retaliation.” Appellant’s Br. p. 20. There is no
       evidence that this is the reason why Drake did not disclose the names of the other men. At sentencing, Drake
       made no such claim and continued to assert that he was “in the wrong place at the wrong time.” Tr. Vol. IV
       p. 106.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018         Page 11 of 11
