      MEMORANDUM DECISION
                                                                   Apr 30 2015, 10:06 am
      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
      Ellen F. Hurley                                          Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Brian Reitz
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Robert Tibbs,                                            April 30, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A02-1409-CR-675
              v.
                                                               Appeal from the Marion Superior
      State of Indiana,                                        Court
                                                               The Honorable Lisa Borges, Judge
      Appellee-Plaintiff,
                                                               Cause No. 49G04-1305-MR-30563




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Robert Tibbs was convicted of murder, a felony, and

      carrying a handgun without license, a Class A misdemeanor. Tibbs raises two

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015     Page 1 of 7
      issues on appeal: (1) whether there was sufficient evidence to support his

      conviction of murder; and (2) whether the trial court abused its discretion by

      instructing the jury on accomplice liability. Concluding the State presented

      sufficient evidence and that the trial court did not abuse its discretion, we

      affirm.



                            Facts and Procedural History
[2]   On May 6, 2013, Tyron Woods was spending the day at an apartment with his

      girlfriend, Leeasha Taylor, and Nickia Walker. That day, Woods had a

      conversation with Rayshawn Turnstill outside of the apartment. After the

      conversation, Turnstill left, but he returned approximately a half-hour later with

      Tibbs and David Burnett. The three men approached Woods, and Tibbs told

      Woods that Turnstill “wants to bump,” which meant that Turnstill wished to

      fight Woods. Transcript at 85. Woods agreed to fight.


[3]   Woods was carrying a firearm and handed it to Taylor. Tibbs and Burnett

      stood nearby and urged Turnstill to start the fight. Meanwhile, Taylor

      remained close by, holding Woods’s gun behind her back. Tibbs told Taylor to

      put the gun down, but she refused, believing that Tibbs, Burnett, or Turnstill

      might pick it up. When Taylor refused to relinquish the gun, Tibbs pulled out

      his own handgun and pointed it at Taylor’s head. Woods smacked the gun

      away from Taylor’s face, and Woods and Tibbs began fighting. While Tibbs

      and Woods tussled, Burnett came up behind Taylor and grabbed Woods’s gun

      away from her. He pointed the gun at Woods, and Woods ran toward the

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      apartment. Burnett shot Woods in the back, but Woods was still able to make

      it inside the apartment. Taylor followed Woods inside. As Taylor entered the

      apartment, she saw Burnett standing at the front porch and Tibbs standing at a

      side window—both men were pointing their firearms into the apartment. After

      Taylor entered the apartment behind Woods, she heard “maybe five”

      additional gunshots, tr. at 129, which were fired by both Burnett and Tibbs.


[4]   Indianapolis Metropolitan Police Department Officer Dewey Runnels was

      patrolling in the area, heard the gunshots, and quickly arrived on scene. He

      entered the apartment and found Woods and Taylor inside. Officer Runnels

      requested medical assistance for Woods, but Woods died approximately thirty

      minutes later as a result of his gunshot wound.


[5]   Several witnesses outside the apartment identified Tibbs and Burnett as

      suspects. Officers examined the scene and discovered five bullet holes, two

      shell casings outside, and three spent bullets inside. The side window at which

      Tibbs had stood was broken and a possible bullet hole was found in the blinds.

      A forensic scientist for the Marion County Crime Lab determined that two

      different guns fired two sets of bullets found at the crime scene. No guns were

      ever recovered and linked to the bullets or shell casings found at the scene.


[6]   On May 9, 2013, the State charged Tibbs with murder, a felony, and carrying a

      handgun without license, a Class A misdemeanor. A two-day jury trial

      commenced on July 2, 2014, at the end of which the jury found Tibbs guilty as




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      charged.1 The trial court sentenced Tibbs to an aggregate term of sixty years

      imprisonment. This appeal followed.



                                  Discussion and Decision
                                   I. Sufficiency of Evidence
[7]   Tibbs claims there was not sufficient evidence to prove he committed the crime

      of murder, either as the principal actor or as Burnett’s accomplice. When

      reviewing a defendant’s claim of insufficient evidence, we will neither reweigh

      the evidence nor judge the credibility of the witnesses, and we must respect “the

      jury’s exclusive province to weigh conflicting evidence.” McHenry v. State, 820

      N.E.2d 124, 126 (Ind. 2005) (citation omitted). We consider only the probative

      evidence and reasonable inferences supporting the verdict. Id. A conviction

      will be affirmed “if the probative evidence and reasonable inferences drawn

      from the evidence could have allowed a reasonable trier of fact to find the

      defendant guilty beyond a reasonable doubt.” Id. (citation omitted).


[8]   In Indiana, there is no distinction between the criminal liability of a principal

      and an accomplice “who knowingly or intentionally aids, induces, or causes

      another person to commit an offense . . . .” See Wise v. State, 719 N.E.2d 1192,

      1198 (Ind. 1999) (quoting Ind. Code § 35-41-2-4). Factors used to determine




      1
        Tibbs and Burnett where tried as codefendants, and Burnett was also found guilty of murder and carrying a
      handgun without a license.

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       whether a person aided another in commission of a crime include “(1) presence

       at the scene of the crime; (2) companionship with another engaged in criminal

       activity; (3) failure to oppose the crime; and (4) a defendant’s conduct before,

       during, and after the occurrence of the crime.” Garland v. State, 788 N.E.2d

       425, 431 (Ind. 2003).


[9]    Here, the evidence is sufficient for a reasonable jury to conclude Tibbs acted as

       Burnett’s accomplice in murdering Woods. Armed with a handgun for which

       he did not own a license, Tibbs rode with Burnett to confront Woods. Once

       there, Tibbs encouraged his friend to fight with Woods. Unprovoked by any

       act of violence by Taylor, Tibbs drew his sidearm and pointed it at Taylor’s

       head. Tibbs then fought with Woods while Burnett wrestled Woods’s gun

       away from Taylor. When Burnett shot at Woods, Tibbs did not run away or

       attempt to stop Burnett; rather, he went to the apartment window and fired two

       bullets inside the apartment in which Woods attempted to hide. Tibbs then fled

       the scene—presumably with Burnett—before police arrived only moments later.


[10]   Tibbs suggests that he cannot be found guilty under an accomplice liability

       theory because there is no evidence that he “shared a common design or

       purpose with Burnett to shoot Woods” and that Tibbs’s stated purpose for being

       at the apartment was for a fistfight. Brief of Appellant at 8. However, to find a

       defendant guilty under an accomplice liability theory, “a preconceived plan

       need not be proved: concerted action or participation in illegal acts is

       sufficient.” Johnson v. State, 490 N.E.2d 333, 334 (Ind. 1986).



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[11]   Tibbs also questions Taylor’s trial testimony that she saw Tibbs fire his gun

       through the apartment window, noting that statements she made to a detective

       prior to trial were more equivocal. Any issues as to the credibility of Taylor’s

       testimony were for the jury to evaluate, not this court. McHenry, 820 N.E.2d at

       126. Moreover, even if Taylor only saw Tibbs standing at the window but did

       not actually see him fire his gun, circumstantial evidence and common sense

       could have easily led the jury to conclude Tibbs fired two bullets through the

       window and into the apartment where Woods had just retreated.2


[12]   Viewing the evidence in the light most favorable to the judgment, we conclude

       there was sufficient evidence for the jury to find Tibbs was guilty of murder as

       an accomplice.


                         II. Accomplice Liability Instruction
[13]   Second, Tibbs argues the trial court erred by instructing the jury on accomplice

       liability. Instruction of the jury is within the discretion of the trial court and is

       reviewed only for an abuse of that discretion. Washington v. State, 997 N.E.2d

       342, 345 (Ind. 2013). Whether a given jury instruction was an abuse of

       discretion depends upon three considerations: (1) whether the instruction was a

       correct statement of the law; (2) whether there was evidence in the record to




       2
         Although Tibbs only attacks Taylor’s testimony on appeal, Walker—also an eyewitness—testified that she
       saw Tibbs fire his gun at the apartment. See Tr. at 81.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR675| April 30, 2015             Page 6 of 7
       support giving the instruction; and (3) whether the substance was covered by

       other instructions given. Id. at 345-46.


[14]   Tibbs argues only that the evidence at trial did not support giving an instruction

       on accomplice liability. Thus, his argument on this issue is practically no

       different from his claim that there was insufficient evidence to find him guilty of

       murder. For the reasons discussed above, we conclude there was evidence in

       the record to support an accomplice liability instruction, and the trial court did

       not abuse its discretion.



                                               Conclusion
[15]   Concluding there was sufficient evidence for the jury to find Tibbs guilty of

       murder and that the trial court did not abuse its discretion by giving a jury

       instruction on accomplice liability, we affirm.


[16]   Affirmed.


       May, J., and Mathias, J., concur.




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