MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Oct 23 2019, 10:26 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Delshawn Marshall,                                       October 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-567
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1707-F3-48



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019                 Page 1 of 9
                                Case Summary and Issue
[1]   Following a jury trial, Delshawn Marshall was found guilty of armed robbery, a

      Level 3 felony, and sentenced to thirteen years in the Indiana Department of

      Correction, with three years suspended to probation. Marshall appeals his

      conviction, raising one issue for our review: whether the State presented

      sufficient evidence to support his conviction. Concluding the State produced

      sufficient evidence, we affirm.



                            Facts and Procedural History
[2]   Around 2:30 p.m. on July 18, 2017, Harodd Cureton received a phone call from

      Sha’paris Jordan asking Cureton to sell her marijuana. Having sold her

      marijuana two times previously, Cureton agreed to sell Jordan “half of [an]

      ounce” of marijuana for $120. Transcript, Volume 2 at 17. Originally, Cureton

      and Jordan had agreed to meet in the parking lot of a bowling alley in South

      Bend, Indiana. However, Jordan switched the meeting location to Roosevelt

      Street, which is located in a residential neighborhood. Prior to the meeting,

      Jordan asked Cureton to send her a picture of himself, which was not

      commonplace in their previous transactions. Cureton declined to send the

      picture.


[3]   Around 8:30 p.m., Cureton arrived on Roosevelt Street and parked his red

      Chevrolet Monte Carlo behind Jordan’s Saturn Ion. Cureton requested that

      Jordan come to his car to finalize the transaction, however Jordan insisted that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 2 of 9
      Cureton come to her car. Cureton agreed and sat in Jordan’s passenger seat.

      While sitting in Jordan’s car, Cureton became concerned because in addition to

      having requested his picture earlier, Jordan was now very focused on texting

      someone on her phone and seemed to be attempting to stall the sale. After

      approximately fifteen minutes, Cureton pushed to complete the transaction, but

      Jordan became flirtatious, even putting her leg out of the car’s window and

      offering to have sex with him.


[4]   Around this time, Cureton saw a man, later identified as Marshall, approaching

      the vehicle with a gun “[h]anging out [of] his pants.” Id. at 39. Cureton

      described the gun as black and “like a .45” with a slide on the top. Id. at 26.

      Sensing potential danger, Cureton exited Jordan’s vehicle. When Cureton

      exited the vehicle, Marshall asked Cureton for a cigarette and Cureton obliged.

      Subsequently, Marshall and Jordan engaged in conversation, making it seem

      clear to Cureton that they had a previous connection.


[5]   Now feeling that danger was imminent, Cureton began running, with Marshall

      chasing him soon after. Cureton made it past approximately three houses before

      Marshall caught up to him. Marshall took out his gun and told Cureton to

      empty his pockets. Cureton had in his pockets a single bag of marijuana; a key

      ring that contained the key to his Monte Carlo, a whistle, and a heart charm; an

      LG cell phone; and about $200 cash. Cureton threw these items to the ground

      in compliance with Marshall’s command, and Marshall picked them up and ran

      away.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 3 of 9
[6]   Robert Sigafoose, a Roosevelt Street resident, witnessed the chase and robbery

      from his living room window. He observed a heavy-set male (Cureton) being

      chased by a “tall slinky guy” with a black gun tucked in his belt (Marshall). Id.

      at 50. He then saw Cureton stop and raise his hands while Marshall picked

      something up from the ground and ran away. Near the end of the robbery,

      another neighborhood resident called the police. Shortly thereafter, Cureton

      realized that his car was missing from where he had left it.


[7]   South Bend police arrived at the scene and attempted to gather information

      from Cureton. Initially, Cureton did not admit to police that he intended to sell

      marijuana to Jordan. He stated instead that he had simply stopped to help a

      broken-down car on the side of the road. However, after learning from police

      that he would not be charged with any drug-related offenses if he told the truth,

      Cureton provided police with a description of Marshall and Jordan, details of

      the underlying transaction, and information about his stolen car and

      possessions.


[8]   The police then searched the surrounding area and located Cureton’s red Monte

      Carlo in the parking lot of a nearby apartment complex. Parked directly next to

      the Monte Carlo was a Saturn Ion, with Jordan in the driver’s seat and

      Marshall in the passenger seat.


[9]   Police officers approached the Saturn Ion and instructed Marshall and Jordan

      to exit the vehicle. Marshall and Jordan were then detained and placed in

      handcuffs. Police officers returned to the Saturn Ion and, through an open


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 4 of 9
       window, observed a pistol grip protruding from beneath a white towel that was

       on the floor of the Saturn Ion’s passenger seat where Marshall had been sitting.


[10]   When Jordan was escorted from the Saturn Ion, police could smell a strong

       odor of marijuana coming from her clothing. Officers performed a pat-down

       search of Jordan and found what was later determined to be approximately 8.7

       grams of marijuana packaged in a single bag in her “crotch area[.]” Id. at 81.

       Officers also found a partially burned cigar that was filled with marijuana on

       Jordan’s person during the pat-down search. Jordan admitted the marijuana

       found by officers was the marijuana Cureton intended to sell to her.


[11]   Officers transported Cureton to the location of his Monte Carlo to identify

       Jordan and Marshall. Cureton positively identified Marshall as the man who

       had robbed him. Jordan and Marshall were arrested.


[12]   Officers obtained a search warrant for the Monte Carlo and Saturn Ion and had

       the vehicles towed to the South Bend police department. Forensic technicians

       retrieved the gun from the Saturn Ion. Upon further examination and

       laboratory testing, Marshall’s DNA was found on the gun’s front side and the

       bottom of the magazine. According to the laboratory analysis, the DNA was

       more consistent with someone handling the gun than DNA being transferred to

       the gun from another object. Other items found in the Saturn Ion included a

       key ring containing a whistle, heart charm, and the key to Cureton’s Monte

       Carlo; an LG cell phone; and $28 cash.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 5 of 9
[13]   The State charged Marshall with one count of armed robbery, a Level 3 felony.

       A jury found Marshall guilty as charged, and the trial court imposed a thirteen-

       year sentence with three years suspended to probation. Marshall now appeals.



                                  Discussion and Decision
                                      I. Standard of Review
[14]   When reviewing a conviction for sufficiency of the evidence it is the role of this

       court to consider only the evidence most favorable to the verdict and all

       reasonable and logical inferences to be drawn therefrom. Minter v. State, 653

       N.E.2d 1382, 1383 (Ind. 1995). A conviction will be affirmed if a reasonable

       juror could find a defendant guilty beyond a reasonable doubt when taking all

       the facts and inferences in favor of the conviction. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). We do not reweigh the evidence or judge the credibility

       of witnesses. Wear v. State, 593 N.E.2d 1179, 1179 (Ind. 1992).


                               II. Sufficiency of the Evidence
[15]   Marshall contends that the State failed to produce sufficient evidence to convict

       him of armed robbery. In making his claim, Marshall asks this court to apply

       the “incredible dubiosity rule.” Appellant’s Brief at 9. The incredible dubiosity

       rule allows this court to impinge upon a jury’s responsibility to judge the

       credibility of witnesses only when confronted with inherently improbable

       testimony. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The appropriate

       scope of the incredible dubiosity rule requires that there be: 1) a sole testifying


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 6 of 9
       witness; 2) testimony that is inherently contradictory, equivocal, or the result of

       coercion; and 3) a complete absence of circumstantial evidence. Moore v. State,

       27 N.E.3d 749, 756 (Ind. 2015).


[16]   Marshall acknowledges the State offered the testimony of several witnesses but

       asserts that the “only witness that directly implicated Marshall in the crime

       charged was Cureton.” Appellant’s Br. at 9. He argues Cureton’s testimony was

       inherently improbable, referring to Cureton’s previous statements to the police,

       a lack of detail in his description of Marshall’s clothing, and the suggestive

       nature of his identification of Marshall to police on the day of the crime.

       Marshall asserts that this case turns on Cureton’s testimony alone and that there

       was no basis upon which a reasonable juror could have found him guilty

       beyond a reasonable doubt under the incredible dubiosity rule. We disagree.


[17]   With respect to the first factor, Marshall’s reliance on the incredible dubiosity

       rule is misplaced. “[T]he application of this rule has been restricted to cases

       where there is a single testifying witness.” Moore, 27 N.E.3d at 756 (emphasis

       added). Cureton was not a single testifying witness: Marshall’s conviction was

       based upon the testimony of ten State witnesses.


[18]   As to the second factor, the incredible dubiosity rule applies only to conflicts in

       trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006). In

       other words, the second prong is satisfied “only when the witness’s trial

       testimony was inconsistent within itself, not that it was inconsistent with other

       evidence or prior testimony.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 7 of 9
       Marshall focuses on differences between Cureton’s statements to police after the

       incident and his trial testimony, but Cureton’s testimony at trial was not

       inconsistent or inherently contradictory regarding the elements of the alleged

       crime.


[19]   And as to the third factor, “[i]n a case where there is circumstantial evidence of

       an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” Id.

       at 1222 (quotation omitted). Here, there was a substantial amount of

       circumstantial evidence, including: 1) Sigafoose’s eyewitness account of the

       chase and robbery, 2) the description of the gun used in the robbery matching

       the gun found in Marshall’s possession, 3) Marshall being in possession of

       Cureton’s stolen belongings, 4) Marshall being found sitting in a car next to

       Cureton’s missing Monte Carlo, and 5) Marshall’s DNA being on the handgun.


[20]   In sum, there is no basis for applying the incredible dubiosity rule in this case.

       As such, we now evaluate whether the State presented sufficient evidence to

       support Marshall’s armed robbery conviction. The State was required to prove

       that Marshall knowingly or intentionally took 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; and that he did so while

       armed with a deadly weapon. Ind. Code § 35-42-5-1(a).


[21]   Here, Cureton testified that Marshall chased him down the street, pulled a gun

       on him, and “told [him] to empty everything [he] had in [his] pocket[.]” Tr.,

       Vol. 2 at 23-24. After he complied, Marshall then “picked up everything off the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 8 of 9
       ground and he took off running.” Id. at 24. Sigafoose testified that he saw the

       chase, witnessed a man empty his pockets and raise his hands, and then saw a

       man with a gun pick up the items. Cureton’s key ring, cell phone, and

       marijuana were later found in the Saturn Ion with Jordan and Marshall, which

       was parked next to Cureton’s stolen Monte Carlo. Further, Marshall’s DNA

       was found on a black gun that was located on the floor of the passenger side of

       the Saturn Ion where he was sitting. Despite Marshall’s assertion that there is

       no evidence tying this gun to the crime, the gun matched descriptions given by

       both Cureton and Sigafoose at trial. Moreover, this evidence was corroborated

       by multiple State witnesses including five police officers, two forensic

       technicians, and Jordan.


[22]   Thus, considering only the evidence most favorable to the verdict and all

       reasonable and logical inferences to be drawn therefrom, we conclude the State

       has met its burden.



                                               Conclusion
[23]   For the reasons set forth above, we conclude that the incredible dubiosity rule is

       inapplicable in this case and the victim’s testimony and corroborating evidence

       are sufficient to support Marshall’s conviction. Therefore, we affirm.


[24]   Affirmed.


       Mathias, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-567 | October 23, 2019   Page 9 of 9
