MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 19 2017, 10:08 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                         Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Damian M. Coleman,                                      December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        30A01-1705-CR-1034
        v.                                              Appeal from the Hancock Circuit
                                                        Court
State of Indiana,                                       The Honorable Richard D. Culver,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        30C01-1603-MR-411



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017           Page 1 of 6
                                             Case Summary
[1]   Damian M. Coleman appeals his felony murder conviction, asserting that the

      evidence is insufficient to support it. Concluding that the evidence is sufficient,

      we affirm.


                                 Facts and Procedural History
[2]   The evidence most favorable to the verdict shows that in March 2016, Shannon

      Kitchens was at his Fortville home with Shawn Hammons. The men wanted to

      cash Kitchens’s $14,000 disability check and buy crack cocaine. They began

      texting and calling Coleman, from whom they had previously bought drugs, to

      set up a drug deal. In the early afternoon, Hammons drove Kitchens in

      Hammons’s black Ford Explorer to a Check ‘n Go on Pendleton Pike.

      Kitchens went in to cash his check, and Hammons waited in his car and

      finalized the drug deal with Coleman. Because Coleman owed Kitchens

      money, Coleman agreed to sell nine grams of crack cocaine for a reduced price

      of $300, and agreed to meet them in the parking lot. When Coleman arrived,

      he and Hammons took some Adderall, and Hammons drank some beer and

      whiskey. Kitchens joined them to smoke cocaine while his check was being

      processed.


[3]   Around 5:00 p.m., Kitchens got his money and returned to Hammons’s vehicle

      with $3000 in cash. He got in the front passenger seat, and Hammons parked at

      the end of the parking lot. As Kitchens was counting his money, Coleman,

      who was in the back seat, pointed a handgun at him and demanded all the


      Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017   Page 2 of 6
      money. Kitchens tried to grab the gun. As they wrestled over possession of the

      gun, Coleman shot Kitchens. Coleman put his hands up in shock, releasing the

      gun. Kitchens threw the gun out the passenger window, grabbed his side, and

      said, “Oh my God.” Tr. Vol. 2 at 215. Kitchens died almost immediately.

      Hammons started driving, and Coleman opened his door and jumped out of the

      car.


[4]   Hammons was “scared out of [his] mind.” Id. at 217. He turned east on

      Pendleton Pike and “never let off the gas.” Id. Eventually, he found himself on

      46th Street, reaching speeds of seventy or eighty miles an hour. He kept

      looking over at Kitchens and saw “this dead stare of the dead.” Id. He had

      “never seen anybody shot let alone die.” Id. He stopped on the side of the road,

      pulled Kitchens out through the window (the door handle was missing), and

      placed him on the ground beside the vehicle. Hammons was still high and

      scared, so he got back into his car and started driving. Hammons noticed a gun

      magazine and Kitchens’s cell phone on the passenger seat, and he threw them

      out the window. Id. at 221. At approximately 5:35 p.m., Kitchens’s body was

      noticed by passing drivers, and the police were called. The police identified

      Kitchens, observed that he had been shot, and began investigating his death.


[5]   Meanwhile, Hammons arrived at the Fortville home of his ex-girlfriend, Carol

      Skaggs. He parked his car in her driveway, picked up Kitchens’s money from

      the front floorboard, and put it in his wallet. Hammons told Skaggs what

      happened and asked her to drive him to his girlfriend’s house in Anderson. She

      agreed. Hammons left his vehicle in Skaggs’s driveway, and Skaggs and her

      Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017   Page 3 of 6
      boyfriend drove Hammons to Anderson. However, Hammons’s girlfriend,

      Amber Faulk, was not home, the door was locked, and Hammons did not have

      a key. Hammons called her from a neighbor’s, she drove back to her house,

      and she and Hammons went inside. Hammons started coming down off his

      drug high and knew that he was going to be in trouble for pulling Kitchens out

      of the car.


[6]   After a couple hours, Hammons received a call informing him that the police

      were on their way to Faulk’s house. He went outside to wait for them. When

      the police arrived, Hammons approached them and stated that they probably

      wanted to talk to him. He told the police that a scuffle had occurred and that

      Kitchens had been shot. He also told the police that Kitchens’s money was in

      Hammons’s wallet in a kitchen cabinet inside Faulk’s house. After the police

      retrieved the money, they took Hammons to the police department. They read

      him his rights, and he agreed to talk to them. Police found the gun magazine

      and Kitchens’s cell phone on the side of the road where Hammons told them he

      had thrown them. Police also found a spent shell casing in the back seat of

      Hammons’s car.


[7]   That evening, Coleman called his friend Ronald Monday and told him that he

      had set up a robbery with Hammons that did not go as planned. Tr. Vol. 3 at

      200-01. Coleman also told Monday that he had jumped out of Hammons’s car

      and been dragged a short distance.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017   Page 4 of 6
[8]    The State charged Coleman with Count I, felony murder while committing or

       attempting to commit robbery; Count II, felony murder while committing or

       attempting to commit dealing in cocaine; Count III, level 3 felony attempted

       robbery; Count IV, level 3 felony conspiracy to commit robbery; Count V, level

       3 felony attempted dealing in cocaine; and Count VI, level 3 felony conspiracy

       to commit dealing in cocaine. The State also charged Coleman with being an

       habitual offender. The State subsequently dismissed Count IV. A jury found

       Coleman guilty as charged. The trial court entered judgments of conviction on

       Counts I, V, and VI and sentenced Coleman to an aggregate sentence of eighty-

       three years. This appeal ensued.


                                      Discussion and Decision
[9]    Coleman challenges the sufficiency of the evidence supporting his felony

       murder conviction. In reviewing a claim of insufficient evidence, we do not

       reweigh the evidence or judge the credibility of witnesses, and we consider only

       the evidence that supports the verdict and the reasonable inferences arising

       therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm

       if there is substantial evidence of probative value such that a reasonable trier of

       fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Id.


[10]   To convict Coleman of felony murder as charged in Count I, the State was

       required to prove beyond a reasonable doubt that he knowingly killed Kitchens

       while committing or attempting to commit robbery. Ind. Code § 35-42-1-1(2);

       Appellant’s App. Vol. 2 at 39. The State presented evidence through Hammons
       Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017   Page 5 of 6
       that Coleman pointed a gun at Kitchens, demanded his money, and shot him as

       they struggled over the gun. Also, Coleman was sitting in the back seat of

       Hammons’s car, and the police found a spent shell casing in the back seat.

       Coleman argues that, in addition to Hammons’s severe credibility deficiencies,

       Hammons’s version of events is “implausible, if not impossible” and is

       unsupported by probative evidence. Appellant’s Br. at 17. Coleman points out

       unrealistic aspects of Hammons’s story and identifies inconsistencies between

       his testimony and that of other witnesses. However, it “‘is precisely within the

       domain of the trier of fact to sift through conflicting accounts of events. Not

       only must the fact-finder determine whom to believe, but also what portions of

       conflicting testimony to believe.’” Atwood v. State, 905 N.E.2d 479, 484 (Ind.

       Ct. App. 2009) (quoting In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999)),

       trans. denied. Coleman’s argument is merely an invitation to judge witness

       credibility and reweigh evidence, which we must decline. Accordingly, we

       affirm his conviction.


[11]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1705-CR-1034 | December 19, 2017   Page 6 of 6
