Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2278 | April 24, 2018 Page 1 of 11

MEMORANDUM DECISION

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

Lisa M. Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Drake,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 24, 2018

Court of Appeals Case No.

49A02-1710-CR-2278

Appeal from the Marion Superior 

Court

The Honorable Grant W. 

Hawkins, Judge

Trial Court Cause No.

49G05-1609-MR-36877

Vaidik, Chief Judge.
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Case Summary

[1] Robert Drake was convicted of murder and sentenced to a below-advisory term 

of fifty years. He now appeals, arguing that the evidence is insufficient to 

support his conviction and that the trial court abused its discretion in sentencing 

him. We affirm. 

Facts and Procedural History

[2] The evidence most favorable to the verdict establishes that in September 2016, 

Joshawa Burge, Cody Abell, Dominique Dunbar, and Joshua Hatfield lived 

together in a house at 1102 North Kealing Avenue in Indianapolis. Cody’s dog 

also lived in the house. Joshawa, Cody, and Dominque knew each other from 

college and had lived in the house for a couple years; Joshua had recently 

moved in. Two additional men, Danny Campbell and Travon Smith, were 

temporarily staying at the house. Drake was “cousins” with Danny and had 

previously visited the house, but it had been “a long time,” at least six months. 

Tr. Vol. II p. 161. As of September 2016, Danny and Drake “weren’t talking 

anymore” because of an argument. Id. at 163. 

[3] James Collier lived across the street from 1102 North Kealing. Although it was 

a high-crime area (James had video-surveillance equipment installed at his 

house), he did not notice a lot of activity at 1102 North Kealing. On Tuesday, 

September 6, 2016, James got home from work a little before 9:00 p.m. and 

heard “a lot of loud talking” and “hustling type stuff” in the front yard of 1102 
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North Kealing. Tr. Vol. III p. 123. He saw four to six men that he did not 

associate with 1102 North Kealing. According to James, the men were “trying 

to figure out what they were gonna do.” Id. at 124. 

[4] Around the same time, the housemates were playing video games in various 

parts of the house: Joshawa was in the living room; Danny and Travon were in 

the adjacent dining room; Cody was in his bedroom upstairs with the door 

open; and Joshua was in his bedroom upstairs with the door open. Dominque 

was in his bedroom upstairs but had just come downstairs to get a drink. 

Around 9:00 p.m., there was a knock on the front door. Suspecting it was the 

pizza they had ordered, Dominque, who was passing by the front door, went to 

answer it. As Dominique reached for the door handle, the door was pushed in

from the outside. Joshawa looked up and saw Drake—who he immediately 

recognized as Danny’s cousin—standing in the doorway. Joshawa did not 

expect to see Drake “that night or any other night.” Tr. Vol. II p. 93. Joshawa 

then saw a hand holding a gun come through the doorway behind Drake and 

hit Dominique in the head with the gun, knocking off his glasses. 

[5] Drake entered the house “like he had a purpose.” Id. at 123. As Drake passed 

through the living room on his way to the dining room—where his cousin 

Danny and Travon were—he said, “They’re back here. They’re back here, get 

him.” Id. at 94. From their bedrooms, Cody heard someone (who was not one 

of his housemates) shout “he’s back here,” id. at 151, and Joshua heard a 

commotion followed by someone saying in a loud voice, “He’s in here. Come 

get him,” id. at 191. Danny and Travon got up and ran toward the kitchen. Id.
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at 136. Drake “chased them.” Id. at 98. Joshawa—who stayed in the living 

room because Drake had ordered him to “[g]et down”—saw a “scuffle going on 

by the back door in the kitchen.” Id. at 94, 99. Specifically, Drake, Danny, and 

Travon were “wrestling and fighting in the kitchen,” and Danny and Travon 

“were trying to get out the back door, away from” Drake. Id. at 99.

[6] In the meantime, Dominique pushed the other would-be intruders out the front 

door and onto the porch. Once outside, a shot was fired, striking Dominique in 

the left eye and killing him. Cody and Joshua, accompanied by the dog, ran 

downstairs and out the open front door. They saw Dominique lying at the 

bottom of the porch stairs. As three men were running away from the house, 

the dog chased them to a silver car that was parked across the street. The dog

grabbed one of the men by the ankle as he was getting into the passenger side of 

the car; several shots were fired, killing the dog. The men drove away in the 

car. 

[7] After the men drove away, Cody was standing in the front yard when he saw a 

man who looked like Drake run behind him. A “frantic” Joshua flagged down 

an Indianapolis Metropolitan Police Department officer. Id. at 71. Homicide 

detectives and crime-scene technicians arrived on the scene shortly thereafter. 

Based on the fired cartridges and the bullets recovered from the bodies of 

Dominique and the dog, it was determined that three guns were fired. Tr. Vol. 

III p. 98. 
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[8] Detective John Breedlove immediately started looking for Drake. On 

September 19, Detective Breedlove received a phone call from a bishop in 

Nashville, Tennessee. The bishop said that Drake was in Nashville and 

“wanted to turn himself in.” Id. at 184. Detective Breedlove drove to Nashville

to speak with Drake. After being given Miranda warnings, Drake gave a 

videotaped statement. See Ex. 77. Drake said that on the night of September 6 

he went to 1102 North Kealing, alone, to reconcile with Danny, that he did not 

know the three men that came to the house after him, that he did not say 

anything like “get him” when he entered the house, and that he pushed Danny 

and Travon through the house in order to save their lives. When Detective 

Breedlove told Drake that his story was not believable, Drake maintained that 

he did not know the three men and that it was a “coincidence” that they came 

to the house right after him. Id. (Drake describing it as an “ambush”). Drake 

said he left Indianapolis for Nashville the morning after the shooting. 

[9] The State charged Drake with murder (during the commission or attempted 

commission of burglary), Level 1 felony burglary, and Level 5 felony criminal 

confinement (Danny). Before trial, the State dismissed the criminalconfinement charge.1

 At the jury trial, the State’s theory was that Drake was an 

accomplice. See Tr. Vol. IV p. 30 (prosecutor arguing that Drake did not shoot 

 

1 Neither Danny nor Travon testified at trial. The State could not locate Travon, see Tr. Vol. III pp. 163-64, 

and although the State could locate Danny, it decided not to call him as a witness at trial because it believed 

that his testimony would not be truthful, see id. at 243-44; Appellant’s App. Vol. II p. 85 (“State’s Notice of 

Intent to Not Call a Witness at Trial”).
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Dominique; rather, Drake’s accomplice did). The jury was shown a video from 

James’s surveillance-video system. Drake was convicted of murder and 

burglary. 

[10] At the sentencing hearing, the trial court vacated the burglary conviction due to 

double-jeopardy concerns. The trial court identified the following mitigators: 

Drake did not have a criminal history (this was his first conviction), he was a 

“responsible family man,” and he’s “been employed to the best of [his] ability.” 

Tr. Vol. IV p. 110. As for aggravators, the court found that the crime required 

careful planning and resulted in a dog’s death; however, the court did not give 

the dog’s death “a whole lot of weight.” Id. at 111. Finding that the mitigators 

outweighed the aggravators, the court imposed a below-advisory sentence of 

fifty years. See Ind. Code § 35-50-2-3 (the sentencing range for murder is fortyfive to sixty-five years, with an advisory sentence of fifty-five years). The court 

said that this would have been a good case for imposing the minimum sentence 

had Drake “disclos[ed] those who were involved.”2 Tr. Vol. IV p. 111. 

[11] Drake now appeals. 

 

2 Detective Breedlove testified at trial that the case was still open as to the unidentified men. See Tr. Vol. III 

pp. 169, 208.
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Discussion and Decision

[12] Drake raises two issues on appeal. First, he contends that the evidence is 

insufficient to support his conviction for murder as an accomplice. Second, he 

contends that the trial court abused its discretion in sentencing him.

I. Sufficiency of the Evidence

[13] Drake contends that the evidence is insufficient to support his conviction for 

murder because he did not act as an accomplice. When reviewing 

the sufficiency of the evidence to support a conviction, appellate courts must 

consider only the probative evidence and reasonable inferences supporting the 

verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s 

role, not that of appellate courts, to assess witness credibility and weigh the 

evidence to determine whether it is sufficient to support a conviction. Id. It is 

not necessary that the evidence “overcome every reasonable hypothesis of 

innocence.” Id. (quotation omitted). The evidence is sufficient if an inference 

may reasonably be drawn from it to support the verdict. Drane v. State, 867 

N.E.2d 144, 147 (Ind. 2007).

[14] A person who knowingly or intentionally aids, induces, or causes another 

person to commit an offense commits that offense. Ind. Code § 35-41-2-4. “It 

is well established that a person who aids another in committing a crime is just 

as guilty as the actual perpetrator.” Green v. State, 937 N.E.2d 923, 927 (Ind. Ct. 

App. 2010), trans. denied. It is not necessary for a defendant to have participated 

in every element of the crime to be convicted as an accomplice. Id. There is no 
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bright line in determining accomplice liability; the particular facts and 

circumstances of each case determine whether a person acted as an accomplice. 

Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). The fact-finder considers 

several factors, including: (1) presence at the scene of the crime; (2) 

companionship with another engaged in a crime; (3) failure to oppose the 

commission of the crime; and (4) the course of conduct before, during, and after 

the occurrence of the crime. Id. That a defendant was present during the 

commission of a crime and failed to oppose the crime is not sufficient, alone, to 

convict him, but it may be considered in conjunction with other factors. Id. 

[15] Drake argues that “[t]he evidence shows that [he] could have been involved, 

but it does not come close to showing beyond a reasonable doubt that he was

involved.” Appellant’s Br. p. 16. The evidence shows that on the night of 

September 6, Drake went to 1102 North Kealing, where his cousin Danny—

whom he was not talking to at the time—was staying. Drake had not been to 

the house in at least six months. A little before 9:00 p.m., James, who lived 

across the street from 1102 North Kealing, saw a group of four to six men that 

he did not associate with the house. The men were talking loudly in the front 

yard and trying to figure out what to do. Drake then entered the house “like he 

had a purpose.” A man behind Drake hit Dominque in the head with a gun, 

knocking off his glasses. Joshawa testified that as Drake passed through the 

living room on his way to the dining room (where his cousin Danny and 

Travon were), he said, “They’re back here. They’re back here, get him.” Cody 

and Joshua testified that they heard something similar. Drake ordered
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Joshawa, who had since stood up, to “[g]et down.” When Danny and Travon 

ran toward the kitchen, Drake chased them. A fight broke out in the kitchen, 

and Danny and Travon tried to get out the back door away from Drake. While 

this was going on, Dominque pushed the other would-be intruders out the front 

door and was shot in the left eye, killing him. Later, after the three men left in 

the car, Cody was standing in the front yard when he saw a man who looked 

like Drake run behind him. The morning after the shooting, Drake left 

Indianapolis for Nashville, Tennessee. See, e.g., Brown v. State, 563 N.E.2d 103, 

107 (Ind. 1990) (“Evidence of flight may be considered as circumstantial 

evidence of consciousness of guilt.”). The evidence is sufficient to support the 

jury’s verdict that Drake knowingly or intentionally aided, induced, or caused 

the offense. 

[16] Nevertheless, Drake highlights, among other things, that he did not have a gun, 

that he did not leave in the car with the other men, and that the housemates 

provided inconsistent testimony regarding what was said when he entered the 

house (for example, “He’s in here” v. He’s back here”). These, however, are all 

requests for us to reweigh the evidence. The jury was presented with all of this 

evidence, including Drake’s version of events as contained in his videotaped 

statement, and found him guilty. We therefore affirm his conviction for 

murder. 
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II. Sentencing

[17] Drake next contends that the trial court abused its discretion in sentencing him

to fifty years. Sentencing decisions rest within the sound discretion of the trial 

court and are reviewed on appeal for an abuse of discretion. Anglemyer v. 

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 

2007). An abuse of discretion occurs if the decision is clearly against the logic 

and effect of the facts and circumstances before the court or the reasonable, 

probable, and actual deductions to be drawn therefrom. Id.

[18] Specifically, Drake argues that the trial court abused its discretion in identifying 

as an aggravator the fact that he did not “disclos[e] those who were involved.”3 

Tr. Vol. IV p. 111 (trial court: “he must know something”). Drake asserts that 

“[t]he record does not support the trial court’s finding that [he] refused to 

disclose the [men’s] names” because there is “no evidence that [he] knew their 

names.” Appellant’s Br. p. 19. Despite Drake’s claim in his videotaped 

statement that he did not know the other men and that it was just a 

“coincidence” that they came to the house around the same time that he did, 

the jury found Drake guilty as an accomplice, and there was evidence that he 

acted in concert with them. Based on this evidence, the court properly found

that Drake had information that could have helped the police identify the other 

 

3 The parties dispute whether the trial court found this as an aggravator or failed to find his remorse as a 

mitigator (based on his failure to disclose). Regardless of how the trial court characterized this, we find no 

abuse of discretion. 
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men involved in this case.4 Accordingly, the trial court did not abuse its 

discretion in identifying this as an aggravator and in sentencing Drake to a 

below-advisory term of fifty years instead of the minimum term of forty-five 

years.

[19] Affirmed. 

Barnes, J., and Pyle, J., concur.

 

4 Drake argues that even if the record reflected that he knew the men’s names, “defendants who incriminate 

other individuals are often subjected to violent acts of retaliation.” Appellant’s Br. p. 20. There is no 

evidence that this is the reason why Drake did not disclose the names of the other men. At sentencing, Drake 

made no such claim and continued to assert that he was “in the wrong place at the wrong time.” Tr. Vol. IV 

p. 106.