MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        Feb 19 2016, 6:04 am

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
Frederick Vaiana                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michelle Williams,                                       February 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1505-CR-388
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Jeffrey Marchal,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G06-1311-MR-071046



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016       Page 1 of 8
[1]   Following a jury trial, Michelle Williams was convicted of Murder, a felony,1

      and Conspiracy to Commit Robbery, a Class B felony.2 Williams presents one

      issue for our review: Did the trial court abuse its discretion in rejecting

      Williams’s tendered final instruction regarding accomplice liability?


[2]   We affirm.


                                           Facts & Procedural History


[3]   Around 6:20 p.m. on October 19, 2013, David Williamson had his father drop

      him off at Donny Bell’s apartment located in Indianapolis. Bell was

      Williamson’s cousin and he had agreed to let Williamson move in with him.

      Bell returned to his apartment just before 8:00 p.m. that evening and noted that

      the front door was unlocked. There was no sign of forced entry. Bell entered

      his apartment and discovered that it had been ransacked—furniture had been

      turned over and torn up, cabinets and drawers were open throughout, his

      mattress had been moved, and the door to his safe was open. Bell walked

      through the apartment and found Williamson unresponsive and lying in a pool

      of blood on the bathroom floor. Bell called 911. Williamson died as a result of

      a gunshot to the back of the head.




      1
          Ind. Code § 35-42-1-1(2) (felony murder).
      2
        Ind. Code § 35-41-5-2 (conspiracy); I.C. § 35-42-5-1 (robbery). Effective July 1, 2014, this offense was
      reclassified as a Level 2 felony. Because Williams committed this offense prior to that date, it retains its prior
      classification as a Class B felony.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016               Page 2 of 8
[4]   Earlier in the evening, Bell had received a series of text messages from

      Williams. Bell owned a tire shop and had a business driving an ice cream

      truck. Bell also earned a living selling drugs, principally marijuana and

      methamphetamine. Bell was introduced to Williams three to four months prior

      and had supplied her with drugs. Williams knew that Bell would on occasion

      have large sums of money and/or drugs in the safe located in his apartment.


[5]   Williams sent the first text message around 6:16 p.m. stating that she had

      money for him. At 6:19 p.m. Williams sent a second text to Bell indicating that

      she was approximately five minutes away from his apartment. Bell received a

      third text message from Williams at 6:32 p.m. in which Williams said she had

      come to see him and asked Bell to “hit her right back.” Transcript at 64.                    Bell

      received yet another message from Williams at 7:51 p.m. saying that she

      needed “a basket or two,” which Bell explained was a reference to “[a] ball of

      dope, crystal methamphetamines.” Id. at 65. Bell did not respond to any of the

      text messages because he did not see them until much later that night when he

      was talking to a detective who had come to his apartment to investigate the

      shooting.


[6]   Within the same timeframe as Williams’s texts, Bell also received a text

      message at 7:07 p.m. from Williamson stating, “Hey chelles here wnten a

      twenty call me cuz k bub.” State’s Exhibit No. 34. Bell testified that he did not

      know anyone by the name of “chelles” but assumed Williamson was referring

      to “Michelle” Williams, the defendant. Transcript at 75, 76. A few days later,

      Bell discovered that he had received a voice message from Williamson at 7:09

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016   Page 3 of 8
      p.m. on October 19. Bell recognized Williamson’s voice and heard Williams

      talking in the background, saying “[w]e’ve got something for him.” Id. at 80.

      After a short pause, Bell also heard another man’s voice on the voice message.

      Bell shared this information with the investigating detective.


[7]   On October 19, Williams and her boyfriend, Chris West, were staying with

      Tabitha Dickman. Dickman testified that she overheard Williams and West

      talking about “hitting a lick” and how easy it would be. Id. at 172. Dickman

      also heard Williams mention someone by the name of “Don.” Id. After this

      conversation, Williams and West left, and Dickman fell asleep. Later that

      evening, Dickman was awakened when Williams and West came back to the

      home. Dickman overheard them talking about what “had went wrong” and

      that they also talked about a safe. Id. at 161. She also overheard Williams tell

      West to “take a shower” and “to calm down” and to “[w]ash the GSR off your

      hands.” Id. at 166-67. As to their demeanor, Dickman noted that Williams

      and West were “[r]eal nervous and frantic, sweaty, like they done something.”

      Id. at 166.


[8]   On November 1, 2013, the State charged Williams with murder, in two

      separate counts. In Count I, the State alleged a knowing killing. I.C. § 35-42-1-

      1(1). In Count II, the State alleged a felony murder, i.e., a killing in the course

      of a robbery. I.C. § 35-42-1-1(2). The State also charged Williams with

      attempted robbery as a Class A felony, conspiracy to commit robbery as a Class

      A felony, and criminal confinement as a Class B felony. A jury trial was held

      on April 1 and 2, 2015. At the conclusion of the evidence, the trial court

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016   Page 4 of 8
       granted Williams’s motion for a directed verdict on the criminal confinement

       charge, which was ultimately dismissed. The jury found Williams not guilty

       with regard to Count I, but returned guilty verdicts for felony murder,

       attempted robbery, and conspiracy to commit robbery. At a May 5, 2015

       sentencing hearing, the trial court elected not to enter a judgment of conviction

       for attempted robbery based on double jeopardy concerns. The trial court

       entered convictions for felony murder and conspiracy to commit robbery and

       sentenced Williams to an aggregate sentence of fifty-eight years.


                                           Discussion & Decision


[9]    Williams argues that the trial court erred in failing to give her tendered final

       jury instruction regarding accomplice liability. At the conclusion of the

       evidence, Williams tendered the following proposed jury instruction on

       accomplice liability:

               You must not convict the accused of aiding, inducing, or causing
               an offense unless you find beyond a reasonable doubt that the
               accused knowingly or intentionally participated in some conduct
               of an affirmative nature.


               Green v. State, 937 N.E.2d 923 (Ind. Ct. App. 2010).


       Appellant’s Appendix at 88.


[10]   The trial court declined to give Williams’s tendered instruction, finding that the

       court’s final instruction on accomplice liability was an accurate statement of the



       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016   Page 5 of 8
       law and adequately covered that issue. The trial court’s Final Instruction 11,

       which was read to the jury, provided:


               Mere presence at the scene of the crime, coupled with knowledge
               that a crime is being committed is insufficient to establish guilt.
               Further acquiescence in the criminal conduct of others, even with
               guilty knowledge, is not sufficient to establish aiding, inducing,
               or causing a crime.


               To convict . . . a defendant of any crime on an accomplice
               theory, that is aiding, inducing, or causing a crime, the State
               must prove beyond a reasonable doubt that the defendant
               intended by her own voluntary conduct to cause or facilitate
               commission of the particular crime committed by the principal
               offender.


               Proof of a defendant’s failure to oppose the commission of a
               crime, companionship with the person committing the offense,
               and conduct before, during, and after the offense may be
               considered in determining whether aiding may be inferred.


       Id. at 102. Although Williams concedes that the trial court’s instruction was

       “accurate,” she nevertheless argues that it is an incomplete statement of the

       law. Appellant’s Brief at 8.


[11]   The purpose of jury instructions is “‘to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.’” Gravens v. State, 836

       N.E.2d 490, 493 (Ind. Ct. App. 2005) (quoting Overstreet v. State, 783 N.E.2d

       1140, 1163 (Ind. 2003)), trans. denied. The manner of instructing a jury lies


       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016   Page 6 of 8
       largely within the sound discretion of the trial court, and we review the trial

       court’s decision only for an abuse of that discretion. Powell v. State, 769 N.E.2d

       1128, 1132 (Ind. 2002). In reviewing a challenge to a jury instruction, we

       consider: (1) whether the instruction is a correct statement of the law; (2)

       whether there was evidence in the record to support giving the instruction; and

       (3) whether the substance of the instruction is covered by other instructions

       given by the court. Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001).


[12]   In addition, in order to obtain reversal, a defendant must demonstrate that the

       trial court’s decisions regarding jury instructions prejudiced his substantial

       rights. Townsend v. State, 934 N.E.2d 118, 127 (Ind. Ct. App. 2010) (quoting

       Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App. 2008), trans. denied), trans. denied.

       Jury instructions are not to be considered in isolation, but as a whole and with

       reference to each other. Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App.

       1998). Therefore, an error in the instructions does not constitute reversible

       error unless the charge to the jury as a whole misstates the law or otherwise

       misleads the jury. Id.


[13]   Williams asserts that “a successful prosecution of accomplice liability theory

       must be supported by conduct of an affirmative nature.” Appellant’s Brief at 7.

       Williams maintains that the trial court’s Final Instruction 11 on accomplice

       liability informed the jury that Williams had to engage only in voluntary

       conduct, which she claims falls short of requiring a showing of affirmative

       conduct on Williams’s part in the commission of the crime.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016   Page 7 of 8
[14]   It has long been the case that the jury must be instructed that accomplice

       liability requires proof that the defendant engaged in voluntary conduct in

       concert with his accomplice. Carter v. State, 766 N.E.2d 377, 383 (Ind. 2002)

       (citing Small v. State, 531 N.E.2d 498, 499 (Ind. 1988)) (emphasis supplied).

       Further, we have found no case law indicating that a showing of “affirmative”

       conduct is required to establish accomplice liability or explaining that there is a

       difference between affirmative conduct and voluntary conduct.3 We therefore

       conclude that the trial court correctly instructed the jury on accomplice liability

       and did not abuse its discretion when it declined to use Williams’s tendered

       instruction on the same.


[15]   Judgment affirmed.


[16]   Robb, J. and Barnes, J., concur.




       3
          Williams cited to Green as support for her tendered instruction setting forth the notion that accomplice
       liability required “conduct of an affirmative nature.” Appellant’s Appendix at 88. While the accomplice
       liability instruction given in that case referenced “conduct of an affirmative nature,” it also informed the jury
       that the defendant must have intended to cause or facilitate the particular crime by “his own voluntary
       conduct.” Green, 937 N.E.2d at 928, 929 (emphasis supplied). In any event, the issue addressed on appeal
       did not concern use of these terms and does not support Williams’s claim that the instruction given here was
       an incomplete statement of the law.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-388 | February 19, 2016               Page 8 of 8
