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: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER

Marion County Public Defender Attorney General of Indiana

Indianapolis, Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TYMON BROWN, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1203-CR-233

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Mark D. Stoner, Judge

Cause No. 49G06-1101-MR-5972

December 12, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
2

STATEMENT OF THE CASE

Tymon Brown appeals his conviction of felony murder. Ind. Code § 35-42-1-1(2)

(2007). We affirm.

ISSUES

Brown presents two issues for our review, which we restate as:

I. Whether the State’s evidence was sufficient to sustain Brown’s conviction 

of felony murder.

II. Whether the trial court abused its discretion by admitting into evidence two

letters allegedly written by Brown.

FACTS AND PROCEDURAL HISTORY

In January 2011, Brown’s girlfriend, Trachelle Robinson, and Brown’s friend,

Jeramie Seabury, made plans to commit a robbery. On the night of January 26, 2011, 

Brown and Robinson picked up Robinson’s cousin, Tia Washum. The three then picked 

up Seabury. Prior to that night, planning of the robbery had taken place only between 

Robinson and Seabury; however, once the group was in the car together, the robbery plan 

was discussed among them all. There is conflicting testimony regarding whether the plan 

was to rob the liquor store or the liquor store clerk, Willie Dodd, who was a friend of 

both Robinson and Washum. Nevertheless, the plan involved Robinson and Washum 

luring Dodd outside the store so that Brown and Seabury could approach and commit the 

robbery.

On that night, Robinson and Washum dropped off Brown and Seabury down the 

street from the liquor store and then proceeded to the liquor store. Once they arrived at 

the store, Robinson and Washum went in the store, told Dodd they were having car 
3

trouble, and asked him for help. Dodd exited the store to help them, and, as he began 

adding antifreeze to the car, Brown and Seabury, wearing all dark clothing and with their 

faces covered, ran up and hit Dodd on the head. After being hit and wrestling himself 

free from the hold of Brown and Seabury, Dodd produced a gun and began shooting. 

Seabury fired back with a gun that belonged to Brown and that Seabury had previously 

borrowed or taken from Brown. Brown and Seabury then fled. During the gunfire, 

Robinson, who was seated in the car the group had driven to the liquor store, was shot in 

the back of the head. She later died from her injuries.

Based upon this incident, Brown was charged with felony murder and attempted 

robbery. A jury found Brown guilty of both charges. At sentencing, the trial court 

merged the attempted robbery charge into the felony murder charge and sentenced Brown 

to forty-five years. Brown now appeals his conviction of felony murder.

DISCUSSION AND DECISION

I. SUFFICIENCY OF THE EVIDENCE

Brown first contends that there is a lack of evidence with which to convict him of 

felony murder. He argues that he did not know that Seabury had a gun the night of the 

attempted robbery and that due to his lack of knowledge of this fact, the shooting death of 

Robinson was not reasonably foreseeable to him.

In essence, Brown’s argument is a challenge to the sufficiency of the evidence. 

When reviewing claims of insufficient evidence, we neither weigh the evidence nor judge 

the credibility of the witnesses. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). 
4

If there is substantial evidence of probative value from which a reasonable trier of fact 

could find guilt beyond a reasonable doubt, we will affirm the conviction. Id.

Brown was charged with felony murder pursuant to Indiana Code section 35-42-1-

1(2), which provides, in pertinent part: “A person who . . . kills another human being 

while committing or attempting to commit . . . robbery . . . commits murder, a felony.” In 

addressing the application of the felony murder statute, our Supreme Court has held that 

the statutory language “kills another human being while committing” does not restrict the 

felony murder provision only to instances in which the defendant is the killer, but may 

also apply equally when, in committing any of the designated felonies, the defendant, 

although not the killer, contributes to the death of any person. Palmer v. State, 704 

N.E.2d 124, 126 (Ind. 1999) (affirming defendant’s felony murder conviction for death of 

accomplice who was shot and killed by kidnapping victim). Our Supreme Court has 

further stated that where the defendant reasonably should have foreseen that his felonious 

conduct would likely create a situation which would expose another to the danger of 

death, the creation of such a dangerous situation is a medium in bringing about the death 

of the victim and the accused may be held accountable. Id. Moreover, in establishing 

guilt under the felony murder statute, the State need not prove intent to kill but only the 

intent to commit the underlying felony. Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993).

The evidence presented at trial demonstrates that Brown agreed to participate in a 

robbery of either Dodd or the liquor store. He dressed in dark clothes and wore a mask 

over his face. Once Dodd was lured out of the store, Brown ambushed him and hit him in 

the head in an attempt to subdue him so that Brown and Seabury could rob him or the 
5

store. When Dodd freed himself from Brown’s grasp, he began shooting. Seabury 

returned fire, and, in doing so, shot and killed Robinson. Brown fled from the scene.

At the time of the robbery, Brown knew that Seabury had borrowed or taken 

possession of his gun several weeks to several months prior to the robbery. In addition, 

Seabury told police the night of the robbery that Brown, Robinson, and Washum came to 

his girlfriend’s house to pick him up in order to “get the gun.” Tr. p. 272. This evidence 

leads to an inference that Brown knew that Seabury was armed the night of the robbery. 

Even if Brown was unaware of Seabury’s possession of the gun on that night, 

Brown’s conduct created a dangerous situation in which it was a foreseeable possibility 

that the victim might resist or that law enforcement would respond, thereby creating a 

risk of death to persons present. Our state constitution gives the people a right to bear 

arms “for the defense of themselves.” Ind. Const. art. I, § 32. Indeed, “[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. Therefore, we conclude 

that regardless of whether Brown knew that Seabury was armed, it was reasonably 

foreseeable that Brown’s commission of the crime of attempted robbery was likely to 

create a situation where the victim of the robbery might defend himself, thus creating a 

situation where a death might occur. See id. (affirming conviction of felony murder for 

death of co-perpetrator where defendant - who was unarmed, did not physically assault 

victims, and fled prior to shooting - reasonably should have foreseen that commission of 
6

attempted robbery would create situation which would expose another to danger of 

death). 

Additionally, as an accomplice in the attempted robbery, Brown is criminally 

liable for the acts of his co-perpetrators, which included using a deadly weapon in an 

attempt to commit robbery. See Ind. Code § 35-41-2-4 (1977); Forney v. State, 742

N.E.2d 934, 938 (Ind. 2001) (an accomplice is criminally responsible for all acts 

committed by his confederates which are probable and natural consequence of their 

common plan). For these reasons, we find there is sufficient evidence to support Brown’s 

conviction of felony murder.

II. ADMISSION OF EVIDENCE

Brown argues that the trial court erred by admitting into evidence at trial two

letters purportedly written by him. In support of his contention, he cites Indiana 

Evidence Rule 901, the basis of his objection at trial. 

The trial court is afforded wide discretion in ruling on the admissibility and 

relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). On 

appeal, evidentiary decisions are reviewed for abuse of discretion and are reversed only 

when the decision is clearly against the logic and effect of the facts and circumstances.

Id. Only when the error affects the substantial rights of the moving party does a claim of 

error in the exclusion or admission of evidence prevail on appeal. Id.

Brian Rodgers, mail clerk at the Marion County Jail, testified at trial that Brown 

handed him a single envelope as an outgoing piece of mail. For security reasons, 

Rodgers conducts random searches of the mail, and he checked the envelope given to him 
7

by Brown. The language of the letters contained in the envelope caused Rodgers to turn 

the letters in to the special investigation unit. At trial, Brown objected to the admission 

of the letters on the basis of authentication. The trial court admitted the letters into 

evidence over Brown’s objection.

Indiana Evidence Rule 901 provides, in pertinent part:

(a) General Provision. The requirement of authentication or 

identification as a condition precedent to admissibility is satisfied by 

evidence sufficient to support a finding that the matter in question is what 

its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of 

limitation, the following are examples of authentication or identification 

conforming with the requirements of this rule:

******

(4) Distinctive characteristics and the like. Appearance, contents, 

substance, internal patterns, or other distinctive characteristics, taken in 

conjunction with circumstances.

Brown asserts that the letters should not have been admitted into evidence because they 

were not properly authenticated. Particularly, he notes that Rodgers could not positively 

identify the handwriting on the letters as Brown’s.

An item is authenticated when the evidence is “sufficient to support a finding that 

the matter in question is what its proponent claims.” Ind. Evidence Rule 901(a). 

Contents, substance, or other distinctive characteristics, taken in conjunction with the

circumstances, may satisfy the requirement of authentication. Evid. R. 901(b)(4). When 

evidence establishes a reasonable probability that an item is what it is claimed to be, the 

item is admissible. Lockhart v. State, 671 N.E.2d 893, 901 (Ind. Ct. App. 1996). 
8

The record shows the envelope in which the letters were contained and handed to 

Rodgers bears a return address for “Tymon Brown, MW, 40 S. Alabama St.” Ex. Vol. p. 

246. Further, Rodgers testified that Brown was the person who handed him the envelope 

containing the two letters. The first letter, written to “Damon,” refers to “Juju” taking a 

plea to testify against the author. Id. At trial, both Washum and Seabury testified that 

“Juju” is Seabury’s nickname. Tr. pp. 146, 231. The letter’s author also asks the 

recipient for certain testimony regarding “my gun” and about getting “the gun back from 

Juju.” Ex. Vol. p. 246. At trial, Seabury testified that he had taken possession of 

Brown’s gun prior to the robbery and that it was Brown’s gun that he used that night. Tr. 

pp. 239-40. Finally, the first letter was signed “T-man,” which Washum had testified is 

Brown’s nickname. Ex. Vol. p. 246; Tr. p. 145.

The second letter was written to “Josh.” Ex. Vol. p. 247. In the letter, the author 

tells the recipient how to testify regarding the author’s gun and discusses the recipient 

picking up the author and “Juju” and directs the recipient to testify that only Juju seemed 

nervous. Id. Seabury testified at trial that following the attempted robbery, he and 

Brown fled to a nearby McDonald’s. Brown then used his cell phone to call for a ride, 

and Seabury testified that “Josh” came and picked them up from the McDonald’s. Tr. p. 

248. The author of the letter continues by telling the recipient that his testimony won’t 

“hurt” Juju because “he already took a plea for about 40 or something to lie against me.” 

Ex. Vol. p. 247. Additionally, the letter stated that “Juju want[s] me to go down with him 

– he did the shooting and everything – that[’]s why I need you to explain how Juju [is] a 

snake.” Id. 
9

The testimony at trial was consistent with the contents of the letters and showed 

that the person who authored the letters knew Juju; had knowledge of a shooting 

allegedly carried out by Juju; was attempting to regain possession of a gun from Juju; 

was being testified against by Juju; and was picked up, with Juju, by Josh. We conclude 

there was sufficient evidence to support a finding that Brown authored the letters. Thus, 

the State laid an adequate foundation to meet the requirements for authentication, and the 

trial court did not abuse its discretion by admitting the letters into evidence.

CONCLUSION

For the reasons stated, we conclude that the evidence is sufficient to support 

Brown’s conviction of felony murder. In addition, the trial court properly exercised its 

discretion by admitting the letters into evidence.

Affirmed.

BAKER, J., and CRONE, J., concur.