Ricky Davis v. Sate of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 16 2019, 7:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricky Davis, May 16, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2363 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff Rothenberg, Judge Trial Court Cause No. 49G02-1609-MR-36393

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2363 | May 16, 2019 Page 1 of 5 [1] Ricky Davis appeals his conviction for Murder,1 arguing that the evidence is

insufficient. Finding the evidence sufficient, we affirm.

Facts [2] On September 3, 2016, Davis texted Gary Rees, stating that he wanted to

purchase a specific type of marijuana. Rees had sold Davis marijuana in the

past. After negotiating about quantity and price, Davis and Rees agreed to

meet at an abandoned residence. Around 5:30 p.m., Rees arrived on his

motorcycle and parked at a small park with a playground next to the

abandoned home. [3] Khaalid Muhammad, a neighbor who lived nearby, saw Rees park his

motorcycle. Muhammad noticed Rees because he was a white man in a

predominantly Black neighborhood. Muhammad watched as Rees approached

two Black men in the playground area. One of the men sat on a park bench,

was approximately 5’5” to 5’9” tall, had a “slight build,” was “thin,” and

appeared to have something in his lap. Tr. Vol. II p. 16-17, 22-23. He was

wearing a white t-shirt and jeans. The other man was “portly,” “husky,” and

wearing darker clothing. Id. at 17, 29. Rees walked toward the two men and

the thin Black man stood up. Muhammad stopped paying attention and

returned to what he had been doing before he noticed the activity.

1 Ind. Code § 35-42-1-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2363 | May 16, 2019 Page 2 of 5 [4] Then, Muhammad heard “what sounded like a pop,” which drew his attention

back to the playground. Id. at 18. He saw the thin Black male holding a

revolver and heard a second pop. The two Black men retrieved bicycles from a

nearby fence and rode away. Rees screamed, got on his motorcycle, and drove

a short distance before collapsing. Rees, who had been shot three times, died as

a result of the shooting. [5] When law enforcement arrived at the scene, they recovered several pieces of

physical evidence, including a bracelet and a casino card. Later testing revealed

that both objects had DNA that matched Davis’s DNA profile. [6] On September 8, 2016, police interviewed Davis regarding Rees’s death. At

that time, Davis lied, denying any involvement or knowledge of the events that

ended with Rees’s death. He lied, stating that he did not know Rees; he lied,

stating that Rees did not have his phone number; he lied, stating that he had

lost his phone; and he lied, telling the detective that none of his property would

be near the crime scene. He had also instructed his girlfriend to lie to law

enforcement regarding his whereabouts on September 3, 2016. [7] On September 15, 2016, the State charged Davis with murder. A bench trial

took place on July 23-24, 2018. At trial, Muhammad testified about what he

had seen on September 3, 2016. Davis also testified, admitting that he had lied

to law enforcement and admitting that he had been present when Rees was

shot. Davis testified that on that day, he was wearing a t-shirt and jeans; he

also described himself as being approximately 5’7” and a “thin guy.” Tr. Vol.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2363 | May 16, 2019 Page 3 of 5

III p. 133, 135-54. Davis stated that Markell Loritts was the other person

present and testified that Loritts was wearing a bulky, black jacket on the day of

the shooting. [8] On July 30, 2018, the trial court found Davis guilty, noting that Muhammad’s

testimony was “the most vital testimony in this entire trial” and that the trial

court “found Mr. Muhammad to be credible.” Tr. Vol. III p. 96. On

September 4, 2018, the trial court sentenced Davis to sixty years imprisonment.

Davis now appeals.

Discussion and Decision [9] Davis’s sole argument on appeal is that the evidence is insufficient to support

his conviction. When reviewing the sufficiency of the evidence to support a

conviction, we must consider only the probative evidence and reasonable

inferences supporting the conviction and will neither assess witness credibility

nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

will affirm unless no reasonable factfinder could find the elements of the crime

proved beyond a reasonable doubt. Id. To convict Davis of murder, the State

was required to prove beyond a reasonable doubt that he knowingly or

intentionally killed Rees. I.C. § 35-42-1-1(1). [10] Davis does not deny that he was present at the time Rees was murdered. But

he maintains that the evidence does not prove beyond a reasonable doubt that

he was the person who shot Rees. We disagree. A conviction may be sustained

upon the uncorroborated testimony of a single witness. Williams v. State, 700

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2363 | May 16, 2019 Page 4 of 5

N.E.2d 784, 787 (Ind. 1998). Here, Muhammad testified that he observed an

encounter between a white man and two Black men; one of the two Black men

was thin, wearing a t-shirt and jeans, and the other husky, wearing dark-colored

clothes. Muhammad stated that he heard a popping sound, looked up, and saw

the thin Black man holding a revolver pointed at Rees; he then heard a second

popping sound, heard Rees scream, and saw the other two men flee on nearby

bicycles. [11] The trial court explicitly found Muhammad’s testimony to be vital and credible.

This testimony, alone, would suffice to support the conviction. But at trial,

Davis himself corroborated much of Muhammad’s testimony, including the

descriptions of himself and Loritts and their respective clothing. To the extent

that Davis’s testimony conflicts with Muhammad’s, it was for the trial court to

resolve the conflict by assessing the credibility of the witnesses. E.g., Whited v.

State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). Furthermore, at Davis’s

first interview with police, he lied about nearly every salient fact related to

Rees’s death. He also instructed his girlfriend to lie about his whereabouts at

the time of the shooting. It would be reasonable for a factfinder to find that the

inferences drawn from this evidence further supported Davis’s guilt. Davis’s

arguments amount to a request that we reweigh the evidence, which we may

not do. The evidence is sufficient. [12] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2363 | May 16, 2019 Page 5 of 5