Brasher v. State



Attorney for Appellant

Timothy J. Miller
Indianapolis, IN



Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Priscilla J. Fossum
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


PAUL BRASHER,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



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)     Supreme Court No.
)     49S00-9909-CR-460
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      APPEAL FROM THE MARION COUNTY SUPERIOR COURT
      The Honorable Mark Renner, Judge Pro Tempore
      Cause No.  49G04-9805-CF-074012



                              ON DIRECT APPEAL




                               April 24, 2001

SULLIVAN, Justice.
      Defendant Paul  Brasher  was  convicted  of  murder  and  robbery  for
shooting his friend and taking his money and pager.  We find that the  State
presented sufficient evidence  for  a  jury  to  convict  the  defendant  of
murder.



                                 Background


      The facts most favorable to the verdict indicate that on May 6,  1998,
Defendant Paul Brasher gathered with three of his friends,  Adrian  Coleman,
Johnny  Simpson,  and  the   victim,   Dwayne   Blackmon,   at   Defendant’s
grandmother’s  house.   Defendant  showed  off  two  guns  to  the   others.
Blackmon also had a gun.  Defendant, Coleman, and Blackmon decided to go  to
a nearby park to shoot the guns.  At the park, Defendant  shot  Blackmon  in
the back of the  head.   He  then  took  some  money  and  a  pager  out  of
Blackmon’s pocket.

      The State charged Defendant  with  Murder[1],  Felony  Murder[2],  and
Robbery, a Class A felony.[3]  A jury found Defendant guilty  of  all  three
counts.  The trial court merged the  two  counts  of  murder  and  sentenced
Defendant to concurrent sentences of 55 years for the murder  and  40  years
for the robbery.


                                 Discussion


      Defendant contends that the evidence was insufficient to  convict  him
of  murder.   Appellant’s  Br.  at  7.   Defendant  also  argues  that   the
conviction rested on only one eyewitness, Coleman, and  that  his  testimony
was “incredibl[y] dubious” and “equivocal.”  Id. at 10.

      In reviewing a sufficiency of the evidence claim,  the  Court  neither
reweighs the evidence nor assesses the credibility of the  witnesses.    See
Garland v. State, 719 N.E.2d 1236,  1238  (Ind.  1999).    We  look  to  the
evidence most favorable to  the  verdict  and  reasonable  inferences  drawn
therefrom.  Sanders v. State, 704 N.E.2d 119,  123  (Ind.  1999).   We  will
affirm  the  conviction  if  there  is  probative  evidence  from  which   a
reasonable jury could have found the defendant guilty  beyond  a  reasonable
doubt.  See Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).

      Simpson and Coleman both testified that Defendant  had  two  guns  and
Blackmon had one gun.  Simpson and Coleman also  testified  that  Defendant,
Blackmon, and Coleman were going to  go  to  Solomon  Park  to  shoot  guns.
Coleman testified that at the park, Defendant asked  Blackmon  if  he  could
see his gun, whereupon Blackmon gave his  gun  to  Defendant  and  Defendant
gave it to Coleman  to  hold.   Coleman  further  testified  that  Defendant
pulled out his own gun and pointed it at Blackmon and told Blackmon to  turn
around.  According to Coleman, Defendant shot Blackmon in the  back  of  the
head.   Coleman  testified  that,  at  Defendant’s  direction,   he   helped
Defendant put Blackmon’s body in a nearby stream.


      It is well established that the testimony of a single eye  witness  is
sufficient to sustain a conviction.  Emerson v. State, 724 N.E.2d 605,  609-
10 (Ind. 2000), rehearing denied; Anderson v. State, 469 N.E.2d  1166,  1169
(Ind.  1984),  cert  denied,  469  U.S.  1226  (1985).   There  was  an  eye
witness—Coleman—testifying to the shooting, and the  location  and  physical
evidence were consistent with his story; the State presented  evidence  that
Blackmon was killed by a gunshot to the back of the head.   Blackmon’s  body
was found in the stream near the location  Coleman  testified  that  Brasher
shot Blackmon.  There was sufficient evidence from which a  reasonable  jury
could find the defendant guilty beyond a reasonable doubt.

      Defendant argues  that  Coleman’s  testimony  should  be  disregarded.
Defendant cites Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994),  for  the
proposition that the judge may “‘impinge on  the  jury’s  responsibility  to
judge the credibility of the  witness’”  where  a  “‘sole  witness  presents
inherently contradictory testimony which  is  equivocal  or  the  result  of
coercion and there is a complete lack  of  circumstantial  evidence  of  the
appellant’s guilt.’”  Appellant’s Br. at 10.  (citing Tillman 642 N.E.2d  at
223.)

      Though most of the State’s case rests on  the  testimony  of  Coleman,
there is no evidence that  his  testimony  is  contradictory  or  equivocal.
None of Coleman’s facts conflict, and his testimony is consistent  with  the
story he told to other witnesses and the police.[4]  As  stated  above,  the
location of the body  and  the  nature  of  the  wound  in  the  victim  are
consistent with Coleman’s testimony.

      Reduced to its essentials,  Defendant’s  argument  is  that  Coleman’s
testimony was not credible because he had a motive to lie.  However,  it  is
within the jury’s province to judge the credibility of the  witnesses.   See
Garland, 719 N.E.2d at 1238.  Defendant had the  opportunity  to  make  this
argument to the jury, and did in fact question Coleman’s credibility  during
the trial.  Based on the testimony of  Coleman,  other  witnesses,  and  the
weight of the physical evidence, the jury found Defendant  guilty  beyond  a
reasonable doubt.


                                 Conclusion



      We affirm the judgment of the trial court.

      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.



      -----------------------
      [1]  Ind. Code § 35-42-1-1 (1993).

      [2]   Id.


      [3]   Id. § 35-42-5-1.
      [4]   Lauren Wadsworth testified that on the night  of  the  shooting,
Coleman  told  her  that  Defendant  had  shot  Blackmon.   Wadsworth   also
testified that she  convinced  Coleman  to  tell  his  mother  and  then  an
attorney.  Simpson testified that on the day  after  the  shooting,  Coleman
told him  that  Defendant  shot  Blackmon.   Both  Wadsworth  and  Simpson’s
account of what Coleman told each  of  them  is  consistent  with  Coleman’s
testimony.