 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any 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:

JILL M. ACKLIN                                       GREGORY F. ZOELLER
Westfield, Indiana                                   Attorney General of Indiana

                                                     RYAN D. JOHANNINGSMEIER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                                   FILED
                               IN THE                                          Mar 13 2012, 9:27 am

                     COURT OF APPEALS OF INDIANA
                                                                                       CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court



ELWIN HART,                                          )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 49A02-1107-CR-583
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                             Cause No. 49G01-1002-MR-13454


                                           March 13, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Elwin Hart appeals his convictions for murdering his girlfriend and her future

daughter-in-law. He argues that the evidence is insufficient to prove that he was the

perpetrator.   Concluding that the evidence shows that Hart indeed committed these

senseless crimes, we affirm.

                               Facts and Procedural History

       In February 2010, Chad Nickle, his girlfriend Elizabeth Newcomer, his mother

Linda Nickle, and Linda’s boyfriend Hart all lived together in a house on the southwest-

side of Indianapolis. Chad and Elizabeth, who were engaged to be married, had recently

moved in with Linda and Hart to help them pay bills. In addition, Linda and Hart had

recently purchased a white Chevy Silverado truck that Hart drove.

       Chad worked out of state for eleven months of the year doing environmental

demolition and was in Milwaukee, Wisconsin, on February 20, 2010. On that morning,

Elizabeth called Chad and told him that she had found a baggie of white powder that she

suspected to be cocaine. Chad instructed Elizabeth and Linda to go to a nearby bike

shop, Thugs Incorporated Choppers, so that his friend Dennis Gibson could test the white

powder. Dennis, who had experimented with cocaine before, tasted the powder and

concluded that it was cocaine. Based on this information, Chad told Elizabeth to tell his

mother that Hart had to move out. Chad directed the women to call him right after they

told Hart the news. Dennis also told the women that if they needed help evicting Hart,

they should call him.




                                            2
       Around 2:00 p.m., Chad still had not heard from his fiancée or mother. Because

Chad was concerned that he could not reach them by phone, he had Dennis and another

bike shop employee go to the house. They knocked on the door, but no one answered.

They spotted Elizabeth’s red truck in the driveway but not Hart’s white truck. Dennis

called Chad to report their findings.

       Around 4:00 p.m., Chad received a concerned call from Elizabeth’s mother

because Elizabeth did not show up at a family event. Chad then contacted a childhood

friend, Daniel Sprouse, and asked him to go to the house. At the time, Daniel and his

wife were in Noblesville at a swim meet. When Daniel arrived at the house, he observed

Elizabeth’s red truck in the driveway and Linda’s car in the garage. Hart’s white truck

was not there. Chad instructed Daniel to ring the doorbell, pound on his mother’s

bedroom window, and beat on the garage door. Chad and Daniel stayed on the phone the

entire time. When there was no response, a frantic Chad instructed Daniel to break in.

Daniel broke a window on a door that led to the garage and entered the house. Upon

entering the living room, Daniel started screaming to Chad over the phone that Elizabeth

and Linda were dead. Both had been shot in the head and were sitting upright with the

television still on. A dropped coffee cup was at Linda’s feet. Elizabeth was shot three

times, and Linda was shot once. Daniel rushed out of the house and told his wife to call

911. While Daniel and his wife were standing in the middle of the street waiting for

emergency responders, they noticed a white Chevy truck that they believed to be Hart’s

parked on the wrong side of the street about 200 feet away. Daniel and his wife called




                                           3
911 again. Fearing for their safety, Daniel and his wife took shelter in their car. The

white truck backed up and disappeared.

          Emergency responders arrived at 5:08 p.m. and confirmed that Elizabeth and

Linda were dead. Their identifications and cell phones were missing, but there were no

other signs of a robbery, as nothing was missing and the house was in a neat and orderly

condition. Police recovered a baggie of white powder from the kitchen, but it was later

determined not to be cocaine.

          In the meantime, Hart called his boss, Victor Fleming, and left two voicemails

saying that he would not be at work on Monday. According to Victor, the first voicemail

stated:

          Victor, it’s me, Elwin Hart. I’m calling you to thank you for the
          opportunity to work with Laker Medical. You are great people and I enjoy
          to work [sic] with you. I hope everything will be better, but I won’t be able
          to come back to work on Monday because something is not – something
          went wrong.

Tr. p. 307, 314. According to Victor, the second voicemail stated:

          Thank you for the opportunity. Thank you for you guys. You guys are
          good people and I appreciate the opportunity to work with your company,
          but I won’t be able to go back to work on Monday since I did something
          very wrong and I’m about to turn myself in to the police.

Id. at 311, 314.1

          Hart then went to Lynhurst Baptist Church, where he had been attending services

for several years. He called 911 from the church at 5:17 p.m. and told the dispatcher that

he was calling to report a double homicide that had occurred at his residence and he

would meet the police at the front door of the church. While inside the church, Hart
          1
          Victor said that both voicemails had been recorded by a detective; however, by the time of trial,
that detective had died and neither the voicemails nor a transcript of the voicemails could be found.
                                                    4
encountered longtime church member Shirley Clements who was there for her

granddaughter’s wedding. The wedding was over, and the wedding party and family had

finished taking pictures and were getting ready to go to the reception. Hart asked Shirley

if he could see the pastor. Shirley said that the pastor had just left. Hart responded that

he wanted to see the pastor “but that he couldn’t wait any longer” because “the police

were on their way out there to arrest him.” Id. at 203. When Shirley asked him “[w]hat

in the world . . . the police [were] going to arrest [him] for,” Hart responded that he had

“shot Linda and her future daughter-in-law” around noon. Id. Hart added that “he wasn’t

going to let them frame him the way they were trying to do.” Id. When Hart explained

that he had come to church to pray with the pastor, Shirley said she would pray with him

instead. Shirley then summoned her nearby husband, and the three of them prayed on the

spot. After the prayer, Hart and Shirley hugged, and Hart said that he was going to wait

for the police outside. Because Shirley had to get to the wedding reception, she had a

church elder, Bruce Litton, wait with Hart. While they were waiting, Hart told Bruce that

Linda had found some white powder in the kitchen and claimed it was his. Linda then

had the white powder tested at a motorcycle shop to see if it was in fact cocaine. Hart

was adamant during his conversation with Bruce that he did not use cocaine. Hart

explained that he and Linda got into an argument over whether the substance was in fact

cocaine, at which point Linda told him to move out. At this point, police pulled up and

ordered Hart to show his hands. When the police asked where the weapon was, Hart

responded that it was in his truck. A search of Hart’s truck revealed a pistol, two

magazines, and a box containing marijuana. The forensic testing from the pistol was


                                            5
“inconclusive,” meaning that the pistol could not be identified or eliminated as the

murder weapon. Id. at 269. Nevertheless, the testing on the bullets recovered from the

victims showed that all four bullets were fired from the same gun.

       Days later, the State charged Hart with two counts of murder, Class A

misdemeanor carrying a handgun without a license, and Class A misdemeanor possession

of marijuana. A three-day jury trial was held in May 2011. The jury found him guilty as

charged, and the trial court sentenced him to an aggregate term of 110 years.

       Hart now appeals his convictions.

                                  Discussion and Decision

       Hart contends that the evidence is insufficient to support his murder convictions.

Hart concedes that although “there is a suspicion of guilt that [he] committed the

murders” and “he undoubtedly had the opportunity to commit the murders,” the evidence

is nevertheless insufficient because the forensic evidence “could not identify [his] gun as

the murder weapon” and other people “could have been motivated to seek drugs from the

house . . . .” Appellant’s Br. p. 10.

       When reviewing the sufficiency of the evidence, appellate courts must consider

only the probative evidence and reasonable inferences supporting the verdict. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). 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. Id. To preserve this structure, when appellate courts are confronted with

conflicting evidence, they must consider it “most favorably to the trial court’s ruling.”

Id. Appellate courts affirm the conviction unless “no reasonable fact-finder could find


                                            6
the elements of the crime proven beyond a reasonable doubt.” Id. at 146-47 (quotation

omitted). It is therefore not necessary that the evidence “overcome every reasonable

hypothesis of innocence.” Id. at 147 (quotation omitted). “[T]he evidence is sufficient if

an inference may reasonably be drawn from it to support the verdict.” Id. (quotation

omitted).

      The evidence is sufficient to sustain Hart’s murder convictions. On appeal, Hart

offers a one-paragraph argument that the forensic evidence did not link Hart’s gun to the

murder weapon and “an unknown perpetrator” could have entered the home to obtain

drugs. Appellant’s Br. p. 11. But this ignores the substantial evidence of Hart’s guilt,

including his confession to fellow church member Shirley. That is, Hart told Shirley that

the police were coming to get him because he shot Elizabeth and Linda around noon that

day. Hart revealed his motive when he told Shirley that Elizabeth and Linda were trying

to frame him for the cocaine. In fact, several witnesses testified that the women told Hart

that very day that he had to move out because they found what they believed to be

cocaine. Hart expressed his frustration to Bruce that he was not a cocaine user.

      Hart was not quiet about what he had done, either. In addition to telling Shirley

that he shot the women, Hart told his supervisor at work, a 911 dispatcher, and a church

elder that he had done something wrong for which the police needed to get him. When

Hart spoke with the 911 operator, he reported a “double homicide” at his house and asked

for the police to come get him. State’s Ex. 63.

      In addition, Hart had access to the locked house where the victims were found.

There was no forced entry other than where Daniel broke a window to enter. Notably,


                                            7
Elizabeth and Linda were found sitting in the living room with the television on, as if

they had not heard or encountered any danger. A spilled coffee cup was found on the

floor by Linda. After Daniel discovered the women’s dead bodies, he and his wife stood

in the middle of the street waiting for emergency responders. They spotted a white truck

about 200 feet away that looked like Hart’s truck, but then it disappeared. Shortly

thereafter, Hart himself called 911 and told the police to pick him up. When the police

arrived at the church and asked Hart where the gun was, he directed them to his truck.

Because the evidence is sufficient to prove that it was indeed Hart who killed Elizabeth

and Linda, we affirm his murder convictions.

      Affirmed.

ROBB, C.J., and NAJAM, J., concur.




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