Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                             FILED
                                                           May 21 2012, 9:12 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
law of the case.                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING                               GREGORY F. ZOELLER
Duerring Law Offices                             Attorney General of Indiana
South Bend, Indiana
                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

ALEX GREGORY ROBERTSON,                          )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )      No. 71A05-1109-CR-538
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                       The Honorable Roland W. Chamblee, Jr., Judge
                              Cause No. 71D08-1004-MR-3




                                        May 21, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                   Case Summary and Issue

          Following a jury trial, Alex Gregory Robertson appeals his conviction of murder, a

felony.     On appeal, Robertson presents one issue: whether sufficient evidence was

presented to sustain his conviction of murder. Concluding the evidence is sufficient, we

affirm.

                                 Facts and Procedural History

          In the early morning hours of April 10, 2010, Derick Lockhart was shot and killed

in a parking lot adjacent to a McDonald’s restaurant in Mishawaka, Indiana. Lockhart

and a group of his friends drove to the McDonald’s restaurant for the purpose of meeting

with Robertson and his friends, Kyle Bishop and Mike Villanueva, to fistfight. Bishop

drove Robertson and Villanueva in Bishop’s 1999 white Cadillac to the McDonald’s;

Robertson sat in the front passenger seat and Villanueva sat in the back. Upon arriving at

McDonald’s, Bishop decided to order water from the drive-thru window.

          As the Cadillac approached the pick-up window of the drive-thru lane, Lockhart

and his friends, who had been waiting in the parking lot for Robertson’s arrival, began to

approach the Cadillac on the passenger side while talking and making gestures as if to

“egg on the people in the car.” Transcript Vol. 1 at 305. As a McDonald’s employee

attempted to hand the water to Bishop, she observed Robertson brandish a gun, point it in

the direction of the approaching group, and open fire.            Lockhart and his group

immediately began retreating from the Cadillac and Bishop drove away while Robertson

continued shooting, ultimately striking Lockhart in the head. After fleeing the scene,

Bishop emptied the handgun of its cartridges and along with Robertson, hid the gun in

Bishop’s garage.
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       Officers immediately responded to the scene and paramedics transported Lockhart

to Memorial Hospital, where he was pronounced dead as a result of a single gunshot

wound to the head. Robertson telephoned Bishop’s then-girlfriend Paige Green later

during the day of the shooting and admitted over a speakerphone he “shot someone.” Tr.

Vol. 2 at 229-31. Green’s mother, Officer Kirby Stoner, and Officer James Taylor were

present at Green’s home during the conversation and overheard Robertson’s confession.

Officers recovered the gun from Bishop’s garage and matched it to the bullet found in

Lockhart’s skull and to one found in a building next door to the McDonald’s. The gun

was determined to be a .32 caliber revolver belonging to Bishop; he was subsequently

charged with assisting a criminal.

       At trial, Dr. Joseph Prahlow testified that the autopsy revealed Lockhart was shot

from more than three feet away and with the gun pointed directly at his head. Mark

Lockwood, a customer behind Bishop’s car in the drive-thru lane, testified that while he

could not recognize the front seat passenger in Bishop’s car, “clearly without a doubt the

front seat passenger” and not the driver pulled out a gun and fired shots. Tr. Vol. 1 at 347.

Numerous other witnesses, all of whom were Lockhart’s friends and were present during

the shooting but had been drinking that night, also testified that the front seat passenger

of Bishop’s car was the shooter. One specifically testified that Bishop was the driver,

and another testified that he recognized the car as Bishop’s. Bishop testified on behalf of

the State that the gun used in the shooting belonged to him but that he was driving the car

and Robertson sat in the front passenger seat and was the shooter.

       Robertson was found guilty and convicted of murder, a felony, and carrying a

handgun without a permit, a Class A misdemeanor. He was sentenced to fifty-five years
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with five years suspended for the murder conviction and one year with 494 days credit

for carrying a handgun, with the sentences to be served concurrently. Robertson now

appeals his conviction of murder.

                                Discussion and Decision

                                    I. Standard of Review

      The standard of reviewing a challenge to the sufficiency of evidence supporting a

conviction is well settled: we neither reweigh the evidence nor judge the credibility of

the witnesses. Ware v. State, 859 N.E.2d 708, 724 (Ind. Ct. App. 2007), trans. denied.

We will consider only the evidence favorable to the judgment and reasonable inferences

drawn therefrom. Id. We determine therefrom “whether a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt.” Wilson v. State, 765

N.E.2d 1265, 1267 (Ind. 2002). “The verdict comes before us with a presumption of

legitimacy. We reverse only if, after viewing the evidence in the light most favorable to

the judgment, we are convinced that as a matter of law the facts of the case and

reasonable inferences drawn therefrom do not support the verdict.” Binkley v. State, 654

N.E.2d 736, 737 (Ind. 1995).

      However, “[i]f a sole witness presents inherently improbable testimony and there

is a complete lack of circumstantial evidence,” we may impinge upon a fact finder’s

function to assess the credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind.

2002). “Application of this [incredible dubiosity] rule is very narrow and permitted only

‘where a sole witness presents inherently contradictory testimony that is equivocal or

coerced and there is a lack of circumstantial evidence of guilt.’” Turner v. State, 953


                                             4
N.E.2d 1039, 1059 (Ind. 2011) (quoting Whedon v. State, 765 N.E.2d 1276, 1277 (Ind.

2002)).

                                 II. Evidence of Murder

        “A person who:     (1) knowingly or intentionally kills another human being;

commits murder, a felony.” Ind. Code § 35-42-1-1. “A person engages in conduct

‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”

Ind. Code § 35-41-2-2(a).     “A person engages in conduct ‘knowingly’ if, when he

engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code §

35-41-2-2(b).    “Both intentional and knowing actions may be inferred from the

circumstances.” Ritchie v. State, 809 N.E.2d 258, 270 (Ind. 2004), cert. denied, 546 U.S.

828 (2005).

        Robertson argues that the evidence is insufficient to establish that he was the

person who killed Lockhart. The crux of his argument is that no one, other than Bishop,

a co-defendant who admittedly owned the gun used in the shooting and who arguably

was receiving leniency in his charge of assisting a criminal in exchange for testifying on

behalf of the State, could positively identify Robertson as the passenger in the Cadillac.

Robertson argues that Bishop’s testimony is “inherently improbable” and we should

apply the incredible dubiosity rule in this case to discount his identification of Robertson

as the shooter. As we have previously stated, we will only apply the incredible dubiosity

rule when a sole witness presents inherently contradictory testimony and there is no

circumstantial evidence of guilt. See Turner, 953 N.E.2d at 1059. This is not such a

case.


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      Bishop was not the sole witness, and his testimony was not inherently

contradictory, nor was it equivocal or coerced.      Moreover, circumstantial evidence

supports the jury’s verdict. Several witnesses testified the car belonged to Bishop and

identified Bishop as the driver. Numerous witnesses testified the shooter was the front

seat passenger, and at least two witnesses in addition to Bishop identified Robertson as

the passenger.    Villanueva testified that just before the shooting, Bishop nudged

Robertson and told him “man, let’s not do this,” urging Robertson to put the gun down.

Tr. Vol. 2 at 200. Robertson himself told an acquaintance that he shot someone. Even

excluding Bishop’s testimony that he was driving the car, a reasonable jury could

determine that Bishop was the driver of his own car that morning and not the passenger

and that Robertson was the passenger and the shooter.

      Given that we will only apply the incredible dubiosity rule in extremely limited

circumstances, this is not an instance where application of the rule would be appropriate.

Assuming arguendo that Bishop’s testimony was contradictory or improbable, there was

not a lack of other credible circumstantial evidence from which a jury could reasonably

conclude that Robertson was the passenger of the white Cadillac and thus the shooter of

the bullet which struck Lockhart. The State proved by sufficient evidence that Robertson

committed the crime of murder.

                                       Conclusion

      The testimony of several witnesses and the existence of sufficient circumstantial

evidence to infer guilt beyond a reasonable doubt does not allow application of the

“incredible dubiosity” rule to Robertson’s challenge of Bishop’s testimony. The State


                                            6
proved by sufficient evidence that Robertson committed murder and his conviction is

therefore affirmed.

      Affirmed.

BAILEY, J., and MATHIAS, J., concur.




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