MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
court except for the purpose of establishing                          Dec 17 2019, 8:16 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
James Harper                                            Curtis T. Hill, Jr.
Harper & Harper, LLC                                    Attorney General of Indiana
Valparaiso, Indiana
                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nathan Cureton,                                         December 17, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1056
        v.                                              Appeal from the LaPorte Superior
                                                        Court
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff.                                     Bergerson, Judge

                                                        Trial Court Cause No.
                                                        46D01-1810-MR-7



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019              Page 1 of 12
                                          Case Summary
[1]   Following an attempted robbery gone bad, Nathan Cureton was charged with

      and convicted of felony murder and Level 3 felony attempted robbery. Cureton

      was sentenced to a sixty-year term in relation to the murder and a fifteen-year

      term in relation to the attempted robbery. The trial court ordered that the

      sentences run concurrently.


[2]   On appeal, Cureton contends that (1) the evidence is insufficient to sustain his

      murder conviction, (2) his convictions for both murder and attempted robbery

      violate the principles of double jeopardy, and (3) his sixty-year sentence is

      inappropriate. The State concedes that Cureton’s convictions for both murder

      and attempted robbery violate the principals of double jeopardy but argues that

      the evidence is sufficient to sustain Cureton’s murder conviction and that

      Cureton failed to demonstrate that his sixty-year sentence is inappropriate. We

      agree with the State. We therefore affirm in part and vacate in part.



                            Facts and Procedural History
[3]   On October 4, 2018, Cureton and his girlfriend Monica Harden went to the

      Blue Chip Casino where Cureton “lost all of [his] money.” State’s Ex. 38

      14:55–57. In order to make his money back, Cureton decided to commit a

      robbery by “strong arm[ing]” a drug dealer and stealing either money or a large

      amount of marijuana that he could later resell. State’s Ex. 38 1:55:14. Cureton

      contacted Faris Daikhi and asked to purchase marijuana. Daikhi indicated that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 2 of 12
      he was not selling but that Tyler Abbott “ha[d] the weed.” State’s Ex. 38

      1:58:36.


[4]   Daikhi sent Abbott a Snapchat message indicating that Cureton “wanted to buy

      a pound of marijuana.” Tr. Vol. III p. 68. Abbott added Cureton on Snapchat

      and received a message indicating that Cureton “had marijuana to sell.” Tr.

      Vol. III p. 70. After Abbott indicated that he was not interested in purchasing

      marijuana from Cureton, the conversation shifted to Cureton purchasing “a

      pound of marijuana” from Abbott. Tr. Vol. III p. 70. Abbott went to South

      Bend to acquire the marijuana after Cureton agreed to purchase it for $1400.


[5]   At some point, Cureton shared his plan to rob Abbott with Nathaniel Havis.

      Havis indicated that he “wanted in,” but Cureton initially insisted that he

      would act alone. State’s Ex. 38 1:49:28. However, after noticing on Snapchat

      that Abbott was a mixed-martial-arts (“MMA”) fighter, Cureton asked Havis if

      he still wanted to participate in the robbery. Havis responded that “he was

      gonna go get his gun.” State’s Ex. 38 2:01:11. This made Cureton nervous, so

      he instructed Havis not to do “anything crazy” and “not to shoot.” State’s Ex.

      38 2:04:03–07. Cureton instructed Havis to only use the gun to make Abbot

      drop the bag of drugs so that “no one [would] get hurt.” State’s Ex. 38 2:07:52.

      While going over the details of the plan with Havis, Cureton noticed that Havis

      was either high or intoxicated.


[6]   Cureton suggested a location to complete the transaction. Abbott’s friend,

      Ryan, drove him to the location to meet up with Cureton. Before Abbott and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 3 of 12
      Ryan arrived, Cureton suggested a different location. Cureton claims that at

      some point, he informed Abbott that he did not have enough cash to complete

      their transaction but that he had “lean” to give him in exchange for the

      marijuana.1 State’s Ex. 38 2:24:58.


[7]   After arriving at the second location, Cureton hid behind a nearby garage while

      Havis approached Abbott and directed him into an alley. Havis put a gun

      against the back of Abbott’s head and said “don’t move or I’ll f****n’ kill you.”

      Tr. Vol. III p. 79. Abbott “put his hands up” as Havis “grabbed [him] by the

      back of [his] neck” and “[p]roceeded to kind of try to usher [him] down the

      alley.” Tr. Vol. III p. 81. As Havis was ushering Abbott down the alley, he

      kept the gun pointed at Abbott’s midsection and repeated his threat to kill

      Abbott. At some point, Abbott decided to “go for the gun” by turning around

      and grabbing Havis’s wrists. Tr. Vol. III p. 81. A scuffle ensued, with Abbott

      eventually knocking the gun out of Havis’s hand. As Abbott grabbed the gun,

      Havis dove for Abbott’s legs and tried to tackle him. Abbott fired one shot

      before running away. Cureton emerged from his hiding spot after Abbott fled,

      attempted to help Havis, and called 911. Havis later died as a result of the

      gunshot wound.




      1
        Cureton later explained to investigating officers that “lean” was synthetic heroin and that the lean that he
      had was not real.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019                  Page 4 of 12
[8]    While paramedics tended to Havis, responding officers spoke with Cureton.

       Cureton told officers that Havis was purchasing “toochie.”2 State’s Ex. 37

       0:24–30. Cureton said that he was standing next to Havis and something went

       wrong and “the dude shot him.” State’s Ex. 37 3:10. Cureton indicated that he

       did not know who the shooter was. Believing that Cureton was a witness to the

       shooting, officers transported Cureton to the Michigan City Police Department

       to take a statement.


[9]    Once at the police station, Officer Timothy Richardson interviewed Cureton.

       Initially, Cureton denied any knowledge of the identity of the shooter or the

       circumstances surrounding the shooting. After Officer Richardson confronted

       Cureton with the fact that he thought Cureton was not being honest, Cureton

       admitted that he set up the drug deal and planned to rob Abbott with Havis’s

       help.


[10]   On October 5, 2018, the State charged Cureton with felony murder and Level 3

       felony attempted robbery. Following trial, the jury found Cureton guilty as

       charged. The trial court entered judgements of convictions on each count. On

       April 25, 2019, the trial court sentenced Cureton to sixty years for the felony

       murder conviction and fifteen years for the attempted robbery conviction. The




       2
         At trial, “toochie” was described as “fake marijuana,” i.e., “tobacco that is sprayed with multiple different
       chemicals to give the same high as marijuana.” Tr. Vol. IV p. 34.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019                   Page 5 of 12
       trial court ordered that the sentences run concurrently, for an aggregate sixty-

       year sentence.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[11]   Cureton contends that the evidence is insufficient to sustain his felony murder

       conviction. “Our standard of review for challenges to the sufficiency of the

       evidence is well-settled.” Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015).


               We do not reweigh evidence or reassess the credibility of
               witnesses when reviewing a conviction for the sufficiency of the
               evidence. We view all evidence and reasonable inferences drawn
               therefrom in a light most favorable to the conviction, and will
               affirm if there is substantial evidence of probative value
               supporting each element of the crime from which a reasonable
               trier of fact could have found the defendant guilty beyond a
               reasonable doubt.


       Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation

       omitted). This is because the factfinder, and not the appellate court, “is obliged

       to determine not only whom to believe, but also what portions of conflicting

       testimony to believe, and is not required to believe a witness’s testimony[.]”

       Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal quotation and

       brackets omitted).


[12]   “A person who … (2) kills another human being while committing or

       attempting to commit … robbery … commits murder, a felony.” Ind. Code §

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 6 of 12
       35-42-1-1. “A felony murder conviction requires proof of intent to commit the

       underlying felony but not of intent to kill.” Glenn v. State, 884 N.E.2d 347, 355

       (Ind. Ct. App. 2008), trans. denied. “The felony murder rule applies when, in

       committing any of the designated felonies, the felon contributes to the death of

       any person.” Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App. 2016) (internal

       quotations and brackets omitted, emphasis in original). “Thus, it matters not

       whether the death caused is that of the intended victim, a passerby, or even a

       co-perpetrator.” Id. (internal quotation and brackets omitted).


[13]           A person who commits or attempts to commit one of the felonies
               designated in the felony-murder statute is criminally responsible
               for the death of another during the commission of said crime
               when the accused reasonably should have foreseen that the
               commission of or attempt to commit the contemplated felony
               would likely create a situation which would expose another to
               the danger of death. Where the death that occurs could
               reasonably have been foreseen, the creation of such a dangerous
               situation is an intermediary, secondary, or medium in effecting
               or bringing about the death of the victim. There, the situation is
               a mediate contribution to the victim’s killing. The question
               therefore is whether the defendant’s conduct caused or
               contributed to the victim’s death or set in motion a series of
               events that could reasonably be expected and did, in fact, result
               in his death.


       Id. (internal quotations and brackets omitted). “Furthermore, a person is

       subject to conviction for felony murder based on accomplice liability for the

       underlying offense.” Luna v. State, 758 N.E.2d 515, 517 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 7 of 12
[14]   In challenging his conviction, Cureton argues that the evidence is insufficient

       evidence to prove that he could have reasonably foreseen that the attempted

       robbery would expose Havis to a risk of death. We disagree. The Indiana

       Supreme Court has noted that “opinions of this Court are filled with tales of

       drug possession and dealing that spun out of control and erupted into violence.”

       Polk v. State, 683 N.E.2d 567, 571 (Ind. 1997). Likewise, 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.


[15]   The record reveals that despite the fact that Cureton hid behind a garage at the

       time of the attempted robbery and shooting, Cureton was an active participant

       in the encounter. He set up the drug deal, planned the attempted robbery, and,

       after learning that Abbott was a trained MMA fighter, invited Havis to assist

       him in committing the robbery. Cureton also knew that Havis was armed at the

       time of the attempted robbery and claims to have told Havis not to shoot

       Abbott. The fact that Cureton felt the need to tell Havis not to shoot Abbott

       indicates that Cureton understood that violence erupting during the encounter

       was a possibility. As such, we conclude that Cureton should have reasonably

       foreseen that gunfire might breakout during the attempted robbery of Abbott.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 8 of 12
       Cureton’s claim to the contrary amounts to an invitation for this court to

       reweigh the evidence, which we will not do.3 See Walker, 998 N.E.2d at 726.


                                         II. Double Jeopardy
[16]   The State concedes that Cureton’s convictions for both felony murder and

       attempted robbery violate the principals of double jeopardy. As the State

       acknowledges, “[i]t is a violation of double jeopardy principles to convict and

       sentence a defendant for both felony murder and the underlying felony because

       the conviction for felony murder would necessarily require proof of the

       underlying felony.” Stewart v. State, 945 N.E.2d 1277, 1285 (Ind. Ct. App.

       2011), trans. denied. “When we determine that two convictions contravene

       double jeopardy principles, we may eliminate the violation by vacating either

       conviction.” Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000). We therefore

       vacate Cureton’s attempted-robbery conviction. See id. (providing that the court

       may remedy a double jeopardy violation by vacating the conviction that has less

       severe penal consequences).


                             III. Appropriateness of Sentence
[17]   Cureton contends that his sixty-year sentence is inappropriate in light of the

       nature of his offense and his character. Indiana Appellate Rule 7(B) provides



       3
         We are unpersuaded by Cureton’s reliance on Layman v. State, 42 N.E.3d 972 (Ind. 2015). In Layman, a
       group of juveniles committed a burglary during the commission of which one of the co-perpetrators was shot
       and killed by the homeowner. Id. at 974. Layman was charged with felony murder. Notably, unlike in this
       case, none of the co-perpetrators were armed during the commission of the underlying crime. Id. at 979.
       This fact alone is sufficient to distinguish Layman from the instant case.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019              Page 9 of 12
       that “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” In analyzing such claims, we “concentrate less on comparing the

       facts of [the case at issue] to others, whether real or hypothetical, and more on

       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal

       quotation omitted). The defendant bears the burden of persuading us that his

       sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.

       2008).


[18]   Cureton appeals the sentence imposed in relation to his conviction for felony

       murder, an undoubtedly serious crime. While Cureton did not fire the shot that

       killed Havis, Cureton planned to rob a known drug dealer during a purported

       purchase of over $1000 worth of drugs and invited Havis to participate in the

       robbery. In planning the robbery, which was intended to help Cureton recoup

       his recent losses at a casino, Cureton chose to disregard the obvious dangers to

       which he subjected himself, Abbott, and Havis. Cureton knew that Havis was

       armed when Havis approached Abbott and watched as Havis used his weapon

       in his attempt to complete the robbery. He also stood by as Abbott and Havis

       fought over Havis’s gun and watched as Abbott shot Havis.


[19]   As for his character, Cureton has shown a pattern of disdain for the laws of this

       State. Cureton, who was twenty-two at the time of the instant offense, had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 10 of 12
       amassed a lengthy criminal history. He had five referrals to the juvenile court

       and was adjudicated to be a delinquent child in three of those five cases. His

       contact with the criminal justice system continued as an adult with multiple

       arrests, misdemeanor and felony convictions, and probation violations. He had

       also repeatedly failed to appear for court proceedings and, at the time of his

       sentencing, had a felony case pending in Porter County. Cureton did not

       dispute the trial court’s observation that he had been “living in a thug world for

       many, many years.” Tr. Vol. IV p. 143. In addition, the Indiana Risk

       Assessment System labels Cureton as a “VERY HIGH” risk to reoffend.

       Appellant’s App. Vol. II p. 219.


[20]   In arguing that his character warrants a reduced sentence, Cureton relies

       heavily on his assertion that he did not intend for anyone to get hurt during the

       robbery and the fact that he attempted to aid Havis and called 911. While

       Cureton may not have intended for anyone to get hurt during the robbery, he

       moved forward with the robbery knowing that there was a risk that violence

       could erupt. He also initially lied to police about the circumstances

       surrounding the shooting, claiming not to know anything despite being the

       individual who had planned the robbery and set the proverbial wheels in

       motion. He has also displayed violent tendencies and has failed to show

       remorse for his actions. Cureton has failed to convince us that his sixty-year

       sentence is inappropriate.


[21]   The judgment of the trial court is affirmed in part and vacated in part.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 11 of 12
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1056 | December 17, 2019   Page 12 of 12
