MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Mar 18 2020, 7:48 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kiree Hayes,                                             March 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-758
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G05-1601-MR-2266



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020                   Page 1 of 10
[1]   Kiree Hayes appeals his convictions of felony murder 1 and Level 3 felony

      robbery resulting in bodily injury. 2 He raises one issue for our review, which

      we restate as whether the State presented sufficient evidence to sustain his

      convictions. We affirm.



                                Facts and Procedural History
[2]   On January 15, 2016, Kiree Hayes walked into the Cumberland Express Mart

      at 6:56 p.m. Hayes’ face was uncovered, and he was wearing Lawrence North

      sweatpants and a Michael Kors sweatshirt. Hayes bought a cigar and left the

      store. Brittany Thompson and a friend were in the store with the store clerk,

      Khushwinder Singh. Thompson was about to start working as a clerk at the gas

      station, and when Hayes left the store, she went behind the counter with Singh

      so that he could teach her about the job.


[3]   Shortly after Hayes left the store, two black males wearing hoods and bandanas

      over their faces entered the store. One masked figure pulled out a silver

      revolver, and the other pulled out a handgun partially covered with a surgical

      glove. They announced their intention to rob the gas station. Singh and

      Thompson were behind the counter when the two males entered. Singh, who

      was on the phone, put his phone down as he said something in a foreign




      1
          Ind. Code § 35-42-1-1 (2014).
      2
          Ind. Code § 35-42-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 2 of 10
      language, and one of the masked figures shot him. Singh fell backwards against

      a cigarette case. The masked figures directed Thompson to open the cash

      register. When Thompson responded that she did not know how to open the

      cash register, one of the men said “F[***] this place” and they ran out. (Tr.

      Vol. II at 120.)


[4]   Around this same time, Randall Canter and his fiancé Alicia Demoss were

      walking to the Express Mart to buy cigarettes. As they approached the Express

      Mart, they saw a white Dodge Stratus idling in the middle of the street. Canter

      saw the driver wearing “a red-colored top on [sic] of some sort and I remember

      there [sic] had some kind of braids or twisties or something in their hair[.]” (Id.

      at 130.) They saw two men in dark clothes run past them and get into the

      Dodge Stratus, and then the Dodge Stratus quickly drove away. Canter and

      Demoss tried to go inside the Express Mart, but Thompson told them the gas

      station was closed. Canter and Demoss walked to another gas station. Officers

      and paramedics arrived at the Express Mart, and paramedics pronounced Singh

      dead at the scene. As Canter and Demoss returned to their apartment, they

      walked past the Express Mart and told police what they had witnessed.


[5]   Around 9:20 p.m., two masked individuals walked into a Rich Oil gas station.

      One of the masked men wore a Michael Kors sweatshirt and Lawrence North

      sweatpants. The other masked man had on a black jacket. John Vowell, the

      gas station clerk, was in the back room restocking soda, and he came out of the

      back room when he heard the door chime. Vowell noticed the person in the

      black jacket was standing behind the counter, and Vowell informed the person

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 3 of 10
      that he was not supposed to be there. Vowell proceeded to the front of the

      store, and one of the masked men pointed a gun at him and said “open your

      drawer, I’ll kill you, or somethin’ like that.” (Id. at 184.) The man then hit

      Vowell in the back of the head with the gun. Vowell opened the cash register

      and surrendered approximately seventy dollars from the register, and the two

      men left the store. Vowell locked the store and called the police. Vowell had a

      bleeding laceration on the back of his head from being hit with the gun and

      doctors used three staples to close the wound.


[6]   Just before those events at the Rich Oil gas station, Sheldon Hunter, his wife

      Theresa Hunter, and their two children were driving home after Sheldon picked

      up his paycheck. When they were stopped at a traffic light, Theresa saw two

      men put masks on and run into the Rich Oil gas station. Sheldon drove into the

      gas station parking lot to get a better view. He saw three people, one of which

      appeared to be the store clerk, and he saw the two men hitting the store clerk

      with their guns. Sheldon drove across the street while Theresa attempted to call

      911. Sheldon saw the two men run out of the store and get into the backseat of

      a Dodge Stratus. The Dodge Stratus pulled out of the gas station, and Sheldon

      followed the car. Eventually, Theresa was able to speak with a 911 operator.

      She reported what she saw at the gas station, and the emergency dispatcher told

      her that they did not need to follow the Dodge Stratus. The Hunters ceased

      their pursuit, took their children home, and then returned to the gas station to

      speak with police.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 4 of 10
[7]   Deputy Loran Wilber and Deputy Drew Butner of the Marion County Sheriff’s

      Department were on patrol when they received a report regarding the Rich Oil

      gas station robbery. A description of the vehicle and its direction of travel were

      also relayed over the police radio. The deputies responded at the area and

      found a white Dodge Stratus in a ditch in a residential area. Because no one

      was in the car, the deputies set up a perimeter around where the vehicle was.

      Deputy Wilber and Deputy Butner encountered Hayes and Tyler Miller

      approximately one block southeast of the Dodge Stratus and detained them.

      Deputy Wilber observed Hayes wore his hair in a “short dreads” or “twisties”

      style. (Tr. Vol. III at 56.) Officer Allen Weir of the Indianapolis Metropolitan

      Police Department also responded to the area. Approximately two blocks east

      of the Dodge Stratus, Officer Weir encountered and detained Cobb.


[8]   Officers examined the vehicle and the area around where the Dodge Stratus

      was found. Hayes’ driver’s license was found inside the Dodge Stratus, and

      Hayes had a set of keys to the car when he was detained. Officers found

      footprints near a shed that was close to where the Dodge Stratus was

      abandoned, and underneath the shed, officers found a silver revolver and a dark

      piece of clothing. Officers found a pair of Lawrence North sweatpants and a

      semiautomatic pistol inside a tire located about ten to twelve feet away from the

      shed. Forensic analysis identified the semiautomatic pistol as the gun that fired

      the bullet that killed Singh. Officers showed the abandoned Dodge Stratus to

      Demoss, Canter, and the Hunters. Demoss and Canter identified it as the

      vehicle they saw leaving the Express Mart, and the Hunters identified it as the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 5 of 10
       vehicle they saw driving away from the Rich Oil gas station. The morning after

       the crimes, a property owner near where the Stratus was found contacted police

       because he discovered a Michael Kors sweatshirt on his property.


[9]    The State charged Hayes with murder, 3 felony murder, attempt to commit

       robbery resulting in serious bodily injury, 4 robbery resulting in bodily injury,

       battery by means of a deadly weapon, 5 and carrying a handgun with a prior

       felony conviction. 6 The State dismissed the murder and carrying a handgun

       with a prior felony conviction counts. A jury found Hayes guilty on the

       remaining counts. The trial court entered judgments of conviction for felony

       murder and robbery resulting in bodily injury. The court imposed consecutive

       sentences of fifty years for the murder conviction and fifteen years for the

       robbery conviction, resulting in an aggregate term of sixty-five years.



                                     Discussion and Decision
[10]   Our standard of review in evaluating the sufficiency of the evidence to support a

       conviction is well-settled. We do “not reweigh the evidence or judge the

       credibility of the witnesses, and [we respect] ‘the jury’s exclusive province to

       weigh conflicting evidence.’” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)




       3
           Ind. Code § 35-42-1-1 (2014).
       4
           Ind. Code § 35-42-5-1 (2014).
       5
           Ind. Code § 35-42-2-1 (2014).
       6
           Ind. Code § 35-47-2-1 (2014).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 6 of 10
       (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001)). We “consider only

       the probative evidence and reasonable inferences supporting the verdict.” Id.

       “Regarding circumstantial evidence, such evidence need not overcome every

       reasonable hypothesis of innocence. Reversal is appropriate only when

       reasonable persons would not be able to form inferences as to each material

       element of the offense.” Clemons v. State, 987 N.E.2d 92, 95 (Ind. Ct. App.

       2013) (internal citation omitted).


                                              1. Felony Murder
[11]   Hayes contends there is insufficient evidence to sustain his conviction of felony

       murder because the State merely proved he visited the Express Mart shortly

       before the robbery, not that he was an accomplice. Hayes notes that he was not

       inside the store during the robbery. Further, he argues, “No witness testified

       that they saw Mr. Hayes outside the store during the incident. And no witness

       identified Mr. Hayes as being the person he or she observed in or near the white

       Dodge. Additionally, no forensic evidence linked Mr. Hayes to the crime

       scene.” (Appellant Br. at 25.) Thus, he contends the State did not put forth

       sufficient evidence to prove he was an accomplice.


[12]   Indiana Code section 35-42-1-1 provides: “A person who kills another human

       being while committing or attempting to commit . . . robbery. . . commits

       murder, a felony.” As we have explained before, “under the theory of

       accomplice liability, an individual who aids, induces, or causes the commission

       of a crime is equally as culpable as the person who actually commits the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 7 of 10
       offense.” Brooks v. State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008), reh’g denied.

       An accomplice need not participate in each element of the crime in order to be

       guilty. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans.

       denied. “While mere presence at the scene of the crime is insufficient to

       establish accomplice liability, presence may be considered along with the

       defendant’s relation to the one engaged in the crime and the defendant’s actions

       before, during, and after the commission of the crime.” Alvies v. State, 905

       N.E.2d 57, 61 (Ind. Ct. App. 2009).


[13]   Hayes entered the Express Mart wearing a Michael Kors sweatshirt and

       Lawrence North sweatpants shortly before the robbery, and a Michael Kors

       sweatshirt and Lawrence North sweatpants were found near where officers

       apprehended Hayes. Hayes had short dreadlocks when he was arrested.

       Canter testified that he observed an individual with short dreadlocks sitting in

       the driver’s seat of a white Dodge Stratus idling in front of the Express Mart,

       and Canter observed two masked men jump into the car and the car drive away.

       Further, Canter identified the Dodge Stratus that crashed into a ditch shortly

       after the Rich Oil robbery as the same Dodge Stratus he saw idling in front of

       the Express Mart. Hayes’ driver’s license and his cell phone were found in the

       Dodge, and Hayes told officers the car belonged to his sister. All this evidence

       supports the inference that Hayes aided in the Express Mart robbery by scoping




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 8 of 10
       out the store and serving as a getaway driver. 7 Therefore, the State presented

       sufficient evidence to support Hayes’ conviction of felony murder. See Smithers

       v. State, 385 N.E.2d 466, 469 (Ind. Ct. App. 1979) (holding State presented

       sufficient evidence defendant was the driver of the getaway car and guilty of

       robbery).


                                                      2. Robbery
[14]   Hayes also argues there was insufficient evidence to support his conviction of

       robbery resulting in bodily injury because neither Vowell nor the Hunters

       identified him, no blood was found on his clothing even though Vowell suffered

       a cut to his head, and “no forensic evidence tied Mr. Hayes to the robbery at the

       Rich Oil gas station.” (Appellant Br. at 27.) A person is guilty of Level 3

       felony robbery if the person “knowingly or intentionally takes property from

       another person or from the presence of another person” and the offense results

       in bodily injury to someone other than the defendant. Ind. Code § 35-42-5-1.


[15]   Abundant circumstantial evidence links Hayes to the Rich Oil robbery. Hayes

       wore a Michael Kors sweatshirt and Lawrence North sweatpants in the Express

       Mart surveillance footage; one of the Rich Oil robbers wore a Michael Kors




       7
         Hayes notes Canter testified the driver of the Dodge Stratus wore a red top but the Express Mart
       surveillance video shows Hayes wearing a gray Michael Kors sweatshirt. The State posits “the jury could
       reasonably conclude that [Hayes] removed the hoodie once he was back inside his idling car, which likely
       was heated.” (Appellee Br. at 17 n.2.) However, we need not resolve this apparent inconsistency in the
       evidence, as we consider only whether the evidence most favorable to the judgment supports the jury’s
       determination. See Davis v. State, 791 N.E.2d 266, 269-70 (Ind. Ct. App. 2003) (stating standard of review for
       sufficiency of evidence analysis), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020                     Page 9 of 10
       sweatshirt and Lawrence North sweatpants; and both of those items of clothing

       were found abandoned in the vicinity of the abandoned Dodge Stratus.

       Further, Hayes himself was found in the vicinity of the abandoned Dodge

       Stratus, which Hayes reported was his sister’s car. The Hunters identified the

       Dodge Stratus as the getaway vehicle from the Rich Oil robbery. Hayes’

       personal items were found inside the vehicle, and additional evidence

       associated with both robberies was found abandoned near the car. Hayes’

       arguments regarding types of evidence the State did not present amount to

       requests for us to reweigh the evidence, which we will not do. Therefore, we

       hold the State presented sufficient evidence to support Hayes’ conviction of

       robbery resulting in bodily injury. See Abd v. State, 120 N.E.3d 1126, 1135 (Ind.

       Ct. App. 2019) (holding sufficient evidence supported defendant’s murder

       conviction and defendant’s argument regarding the lack of DNA, fingerprint, or

       hair evidence linking him to the crime merely amounted to a request to reweigh

       the evidence), trans. denied.



                                               Conclusion
[16]   The State presented sufficient evidence to support Hayes’ convictions of felony

       murder and robbery resulting in bodily injury. Therefore, we affirm.


[17]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-758 | March 18, 2020   Page 10 of 10
