Pursuant to Ind. Appellate Rule 65(D),

                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                       Dec 12 2012, 8:50 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                 CLERK
case.                                                          of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARK SMALL                                      GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, Indiana
                                                NICOLE M. SCHUSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

TYMON BROWN,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1203-CR-233
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Mark D. Stoner, Judge
                           Cause No. 49G06-1101-MR-5972


                                    December 12, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

      Tymon Brown appeals his conviction of felony murder. Ind. Code § 35-42-1-1(2)

(2007). We affirm.

                                        ISSUES

      Brown presents two issues for our review, which we restate as:

      I.     Whether the State’s evidence was sufficient to sustain Brown’s conviction
             of felony murder.

      II.    Whether the trial court abused its discretion by admitting into evidence two
             letters allegedly written by Brown.

                       FACTS AND PROCEDURAL HISTORY

      In January 2011, Brown’s girlfriend, Trachelle Robinson, and Brown’s friend,

Jeramie Seabury, made plans to commit a robbery. On the night of January 26, 2011,

Brown and Robinson picked up Robinson’s cousin, Tia Washum. The three then picked

up Seabury. Prior to that night, planning of the robbery had taken place only between

Robinson and Seabury; however, once the group was in the car together, the robbery plan

was discussed among them all. There is conflicting testimony regarding whether the plan

was to rob the liquor store or the liquor store clerk, Willie Dodd, who was a friend of

both Robinson and Washum. Nevertheless, the plan involved Robinson and Washum

luring Dodd outside the store so that Brown and Seabury could approach and commit the

robbery.

      On that night, Robinson and Washum dropped off Brown and Seabury down the

street from the liquor store and then proceeded to the liquor store. Once they arrived at

the store, Robinson and Washum went in the store, told Dodd they were having car

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trouble, and asked him for help. Dodd exited the store to help them, and, as he began

adding antifreeze to the car, Brown and Seabury, wearing all dark clothing and with their

faces covered, ran up and hit Dodd on the head. After being hit and wrestling himself

free from the hold of Brown and Seabury, Dodd produced a gun and began shooting.

Seabury fired back with a gun that belonged to Brown and that Seabury had previously

borrowed or taken from Brown. Brown and Seabury then fled. During the gunfire,

Robinson, who was seated in the car the group had driven to the liquor store, was shot in

the back of the head. She later died from her injuries.

       Based upon this incident, Brown was charged with felony murder and attempted

robbery. A jury found Brown guilty of both charges. At sentencing, the trial court

merged the attempted robbery charge into the felony murder charge and sentenced Brown

to forty-five years. Brown now appeals his conviction of felony murder.

                             DISCUSSION AND DECISION

                         I. SUFFICIENCY OF THE EVIDENCE

       Brown first contends that there is a lack of evidence with which to convict him of

felony murder. He argues that he did not know that Seabury had a gun the night of the

attempted robbery and that due to his lack of knowledge of this fact, the shooting death of

Robinson was not reasonably foreseeable to him.

       In essence, Brown’s argument is a challenge to the sufficiency of the evidence.

When reviewing claims of insufficient evidence, we neither weigh the evidence nor judge

the credibility of the witnesses. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010).



                                             3
If there is substantial evidence of probative value from which a reasonable trier of fact

could find guilt beyond a reasonable doubt, we will affirm the conviction. Id.

       Brown was charged with felony murder pursuant to Indiana Code section 35-42-1-

1(2), which provides, in pertinent part: “A person who . . . kills another human being

while committing or attempting to commit . . . robbery . . . commits murder, a felony.” In

addressing the application of the felony murder statute, our Supreme Court has held that

the statutory language “kills another human being while committing” does not restrict the

felony murder provision only to instances in which the defendant is the killer, but may

also apply equally when, in committing any of the designated felonies, the defendant,

although not the killer, contributes to the death of any person. Palmer v. State, 704

N.E.2d 124, 126 (Ind. 1999) (affirming defendant’s felony murder conviction for death of

accomplice who was shot and killed by kidnapping victim). Our Supreme Court has

further stated that where the defendant reasonably should have foreseen that his felonious

conduct would likely create a situation which would expose another to the danger of

death, the creation of such a dangerous situation is a medium in bringing about the death

of the victim and the accused may be held accountable. Id. Moreover, in establishing

guilt under the felony murder statute, the State need not prove intent to kill but only the

intent to commit the underlying felony. Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993).

       The evidence presented at trial demonstrates that Brown agreed to participate in a

robbery of either Dodd or the liquor store. He dressed in dark clothes and wore a mask

over his face. Once Dodd was lured out of the store, Brown ambushed him and hit him in

the head in an attempt to subdue him so that Brown and Seabury could rob him or the

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store. When Dodd freed himself from Brown’s grasp, he began shooting. Seabury

returned fire, and, in doing so, shot and killed Robinson. Brown fled from the scene.

       At the time of the robbery, Brown knew that Seabury had borrowed or taken

possession of his gun several weeks to several months prior to the robbery. In addition,

Seabury told police the night of the robbery that Brown, Robinson, and Washum came to

his girlfriend’s house to pick him up in order to “get the gun.” Tr. p. 272. This evidence

leads to an inference that Brown knew that Seabury was armed the night of the robbery.

       Even if Brown was unaware of Seabury’s possession of the gun on that night,

Brown’s conduct created a dangerous situation in which it was a foreseeable possibility

that the victim might resist or that law enforcement would respond, thereby creating a

risk of death to persons present. Our state constitution gives the people a right to bear

arms “for the defense of themselves.” Ind. Const. art. I, § 32. Indeed, “[a] victim of a

forcible felony . . . fighting back with deadly force is such a natural consequence that it

has been justified by our State’s legislature.” Exum v. State, 812 N.E.2d 204, 208 (Ind.

Ct. App. 2004) (citing Ind. Code § 35-41-3-2), trans. denied. Therefore, we conclude

that regardless of whether Brown knew that Seabury was armed, it was reasonably

foreseeable that Brown’s commission of the crime of attempted robbery was likely to

create a situation where the victim of the robbery might defend himself, thus creating a

situation where a death might occur. See id. (affirming conviction of felony murder for

death of co-perpetrator where defendant - who was unarmed, did not physically assault

victims, and fled prior to shooting - reasonably should have foreseen that commission of



                                            5
attempted robbery would create situation which would expose another to danger of

death).

          Additionally, as an accomplice in the attempted robbery, Brown is criminally

liable for the acts of his co-perpetrators, which included using a deadly weapon in an

attempt to commit robbery. See Ind. Code § 35-41-2-4 (1977); Forney v. State, 742

N.E.2d 934, 938 (Ind. 2001) (an accomplice is criminally responsible for all acts

committed by his confederates which are probable and natural consequence of their

common plan). For these reasons, we find there is sufficient evidence to support Brown’s

conviction of felony murder.

                              II. ADMISSION OF EVIDENCE

          Brown argues that the trial court erred by admitting into evidence at trial two

letters purportedly written by him.       In support of his contention, he cites Indiana

Evidence Rule 901, the basis of his objection at trial.

          The trial court is afforded wide discretion in ruling on the admissibility and

relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). On

appeal, evidentiary decisions are reviewed for abuse of discretion and are reversed only

when the decision is clearly against the logic and effect of the facts and circumstances.

Id. Only when the error affects the substantial rights of the moving party does a claim of

error in the exclusion or admission of evidence prevail on appeal. Id.

          Brian Rodgers, mail clerk at the Marion County Jail, testified at trial that Brown

handed him a single envelope as an outgoing piece of mail.            For security reasons,

Rodgers conducts random searches of the mail, and he checked the envelope given to him

                                               6
by Brown. The language of the letters contained in the envelope caused Rodgers to turn

the letters in to the special investigation unit. At trial, Brown objected to the admission

of the letters on the basis of authentication. The trial court admitted the letters into

evidence over Brown’s objection.

       Indiana Evidence Rule 901 provides, in pertinent part:

       (a)     General Provision.       The requirement of authentication or
       identification as a condition precedent to admissibility is satisfied by
       evidence sufficient to support a finding that the matter in question is what
       its proponent claims.

       (b) Illustrations. By way of illustration only, and not by way of
       limitation, the following are examples of authentication or identification
       conforming with the requirements of this rule:

       ******

              (4) Distinctive characteristics and the like. Appearance, contents,
       substance, internal patterns, or other distinctive characteristics, taken in
       conjunction with circumstances.

Brown asserts that the letters should not have been admitted into evidence because they

were not properly authenticated. Particularly, he notes that Rodgers could not positively

identify the handwriting on the letters as Brown’s.

       An item is authenticated when the evidence is “sufficient to support a finding that

the matter in question is what its proponent claims.”        Ind. Evidence Rule 901(a).

Contents, substance, or other distinctive characteristics, taken in conjunction with the

circumstances, may satisfy the requirement of authentication. Evid. R. 901(b)(4). When

evidence establishes a reasonable probability that an item is what it is claimed to be, the

item is admissible. Lockhart v. State, 671 N.E.2d 893, 901 (Ind. Ct. App. 1996).


                                             7
       The record shows the envelope in which the letters were contained and handed to

Rodgers bears a return address for “Tymon Brown, MW, 40 S. Alabama St.” Ex. Vol. p.

246. Further, Rodgers testified that Brown was the person who handed him the envelope

containing the two letters. The first letter, written to “Damon,” refers to “Juju” taking a

plea to testify against the author. Id. At trial, both Washum and Seabury testified that

“Juju” is Seabury’s nickname. Tr. pp. 146, 231. The letter’s author also asks the

recipient for certain testimony regarding “my gun” and about getting “the gun back from

Juju.” Ex. Vol. p. 246. At trial, Seabury testified that he had taken possession of

Brown’s gun prior to the robbery and that it was Brown’s gun that he used that night. Tr.

pp. 239-40. Finally, the first letter was signed “T-man,” which Washum had testified is

Brown’s nickname. Ex. Vol. p. 246; Tr. p. 145.

       The second letter was written to “Josh.” Ex. Vol. p. 247. In the letter, the author

tells the recipient how to testify regarding the author’s gun and discusses the recipient

picking up the author and “Juju” and directs the recipient to testify that only Juju seemed

nervous. Id. Seabury testified at trial that following the attempted robbery, he and

Brown fled to a nearby McDonald’s. Brown then used his cell phone to call for a ride,

and Seabury testified that “Josh” came and picked them up from the McDonald’s. Tr. p.

248. The author of the letter continues by telling the recipient that his testimony won’t

“hurt” Juju because “he already took a plea for about 40 or something to lie against me.”

Ex. Vol. p. 247. Additionally, the letter stated that “Juju want[s] me to go down with him

– he did the shooting and everything – that[’]s why I need you to explain how Juju [is] a

snake.” Id.

                                            8
       The testimony at trial was consistent with the contents of the letters and showed

that the person who authored the letters knew Juju; had knowledge of a shooting

allegedly carried out by Juju; was attempting to regain possession of a gun from Juju;

was being testified against by Juju; and was picked up, with Juju, by Josh. We conclude

there was sufficient evidence to support a finding that Brown authored the letters. Thus,

the State laid an adequate foundation to meet the requirements for authentication, and the

trial court did not abuse its discretion by admitting the letters into evidence.

                                       CONCLUSION

       For the reasons stated, we conclude that the evidence is sufficient to support

Brown’s conviction of felony murder. In addition, the trial court properly exercised its

discretion by admitting the letters into evidence.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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