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 : JILL M. ACKLIN GREGORY F. ZOELLER Westfield, Indiana Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

ELWIN HART, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A02

- 1107

- CR

- 583 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt M. Eisgruber, Judge Cause No. 49G01

- 1002

- M R

- 13454

March 13, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge2 Case Summary Elwin Hart appeal s his convictions for murdering his girlfriend and her future daughte r - in

- law. He argues that the evidence is insufficient to prove tha t he was the perpetrator. Concluding that the evidence shows that Hart indeed committed these senseless crimes, we affirm. Facts and Procedural History
In February 2010 , Chad Nickle, his girlfriend Elizabeth Newcomer, his mother Linda Nickle, and L inda’s boyfriend Hart all lived together in a house on the southwest

side of Indianapolis. Chad and Elizabeth , who were engaged to be married , had recently
moved in with Linda and Hart to help them pay bills

. In addition, Linda and Hart had recently purc hased a white Chevy Silverado truck that Hart drove

. Chad worked out of state for eleven months of the year doing environmental
demolition and was in Milwaukee, Wisconsin , on February 20, 2010. On that morning,
Elizabeth called Chad and told him that sh e had found a baggie of white powder that she suspected to be cocaine

. Chad instructed Elizabeth and Linda to go to a nearby bike shop , Thugs Incorporated Choppers, so that his friend Dennis Gibson could test the white powder. Dennis , who had experimente d with cocaine before , tasted the powder and
concluded that it was cocaine. Based on this information, Chad told Elizabeth to tell his
mother that Hart had to move out. Chad directed the women to call him right after they
told Hart the news. Dennis also told the women that if they needed help evicting Hart, they should call him.3

A round 2:00 p.m. , Chad still had not heard from his fiancée or mother. Because
Chad was concerned that he could not reach them by phone , he had Dennis and another bike shop em ployee go to the house

. The y knocked on the door, but no one answered. They spotted Elizabeth’s red truck in the driveway but not Hart’s white truck . Dennis called Chad to report their finding s
. Around 4 :00 p.m., Chad received a concerned call from El izabeth’s mother because Elizabeth did not show up at a family event . Chad then contacted a childhood friend, Da n iel Sprouse, and asked him to go to the house

. At the time, Dan iel and his
wife were in Noblesville at a swim meet

. When Dan iel arrived at t he house, he observed Elizabeth’s red truck in the driveway and Linda’s car in the garage

. Hart’s white truck
was not there. Chad instructed Dan iel to ring the doorbell, pound on his mother’s bedroom window, and beat on the garage door. Chad and Dan iel stayed on the phone the
entire time . When there was no response, a frantic Chad instructed Dan iel to break in

. Dan iel broke a window on a door that led to the garage and entered the house . Upon entering the living room, Daniel started screaming to Chad o ver the phone that Elizabeth
and Linda were dead. Both had been shot in the head and were sitting upright with the
television still on

. A dropped coffee cup was at Linda’s feet. Elizabeth was shot three times, and Linda was shot once. Dan iel rushed ou t of the house and told his wife to call
911. While Dan iel and his wife were standing in the middle of the street waiting for emergency responders , they noticed a white Chevy truck that t he y believed to be Hart’s parked on the wrong side of the street abo ut 200 feet away . Dan iel and his wife call ed4

911 again. Fearing for their safety, Dan iel and his wife took shelter in their car. The white truck backed up and disappeared. Emergency responders arrived at 5:08 p.m. and confirmed that Elizabeth and
Linda were dead. Their identifications and cell phones were missing, but there were no other signs of a robbery, as nothing was missing and the house was in a neat and orderly
condition. Police recovered a baggie of white powder from the kitchen, but it was l ater determined not to be cocaine. In the meantime, Hart called his boss , Victor Fleming, and left two voicemails saying that he would not be at work on Monday

. According to Victor , the first voicemail
stated: Victor, it’s me, Elwin Hart. I’m ca lling you to thank you for the opportunity to work with Laker Medical. You are great people and I enjoy to work [sic] with you. I hope everything will be better, but I won’t be able to come back to work on Monday because something is not

– something went wrong. Tr. p. 307 , 314

. According to Victor , the second voicemail stated:
Thank you for the opportunity. Thank you for you guys. You guys are good people and I appreciate the opportunity to work with your company, but I won’t be able to go back to w ork on Monday since I did something very wrong and I’m about to turn myself in to the police.
Id. at 311 , 314

. 1
Hart then w ent to Lynhurst Baptist Church, where h e had been attend ing services for several years. He called 911 from the church at 5:17 p.m. and told the dispatcher that he was calling to report a double homicide that had occurred at his residence and he would meet the police at the front door of the church. While inside the church, Hart

1 Victor said that both voicemails had been recorded by a detective; however, by the time of trial, that detective had died and neither the voicemails nor a transcript of the voicemails could be found.5

encountered longtime church member Shirley Clements who was there for her granddaughter’s wedding. The wedding was over , and the wedding party and family had
finished taking pictures and w ere getting ready to go to the reception. Hart asked Shirley if he could see the pastor. Shirley said that the pastor ha d just left. Hart responded that he wanted to see the pastor “but that he couldn’t wait any longer” because “the police were on their way out there to arrest him.” Id. at 203. When Shirley asked him “[w]hat in the world . . . the police [were] going to arrest [him] for,” Hart responded that he had “shot Linda and her future daughter

- in

- law” around noon. Id. Hart added that “he wasn’t going to let them frame him the way they were trying to do.” Id. When Hart explained
that he had come to church to pra y with the pastor, Shirley said she would pray with him instead. Shirley then summoned her nearby husband, and the three of them prayed on the spot

. After the prayer, Hart and Shirley hugged, and Hart said that he was going to wait for the police outside

. Because Shirley had to get to the wedding reception, she had a church elder, Bruce Litton, wait with Hart. While they were waiting, Hart told Bruce that Linda had found some white powder in the kitchen and claimed it was his. Linda then
had the white powder tested at a motorcycle shop to see if it was in fact cocaine. Hart
was adamant during his conversation with Bruce that he did not use cocaine. Hart explained that he and Linda got into an argument over whether the substance was in fact
cocaine , at which point Linda told him to move out. At this point, police pulled up and ordered Hart to show his hands. When the police asked where the weapon was, Hart responded that it was in his truck. A search of Hart’s truck revealed a pistol, two magazines, and a box containing marijuana. The forensic testing from the pistol was6

“inconclusive,” meaning that the pistol could not be identified or eliminated as the murder weapon. Id. at 269. Nevertheless, the testing on the bullets recovered from the
victims showed that all four bullets were fired from the same gun. Days later , the State charged Hart with two counts of murder, Class A misdemeanor carrying a handgun without a license, and Class A misdemeanor possession of marijuana. A three

- day jury trial wa s held in May 2011. The jury found him guilty as charged, and t he trial court sentenced him to an aggregate term of 110 years. Hart now appeals his convictions.
Discussion and Decision Hart contends that the evidence is insufficient to support hi s murder convictions.
Hart concedes that although “there is a suspicion of guilt that [he] committed the murders” and “he undoubtedly had the opportunity to commit the murders,” the evidence
is nevertheless insufficient because the forensic evidence “coul d not identify [his] gun as the murder weapon” and other people “could have been motivated to seek drugs from the house . . . .” Appellant’s Br. p. 10. When reviewing the sufficiency of the evidence, appellate courts must consider only the probative evide nce and reasonable inferences supporting the verdict

. Drane v.
State , 867 N.E.2d 144, 146 (Ind. 2007). 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. Id. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it “most fa vorably to the trial court’ s ruling.”
Id. Appellate courts affirm the conviction unless “no reasonable fact

- finder could find7

the elements of the crime proven beyond a reasonable doubt.” Id. at 146

- 47 (quotation omitted). It is therefore not necessary that the evidence “overcome every reasonable hypothesis of innocence.” Id. at 147 (quotation omitted). “[T]he evidence is suf ficient if an inference may reasonably be drawn from it to support the verdict .” Id. (quotation omitted). The evidence is sufficient to sustain Hart’s murder convictions. On appeal, Hart
offers a one

- paragraph argument that the forensic evidence did not link Hart’s gun to the murder weapon and “an unknown perpetrator” could have entered the home to obtain drugs. Appellant’ s Br. p. 11. But this ignores the substantial evidence of Hart’s guilt, including his confession to fellow church member Shirley. Th at is, Hart told Shirley that the police were coming to get him because he shot Elizabeth and Linda around noon that day. Hart revealed his motive when he told Shirley that Elizabeth and Linda were trying
to frame him for the cocaine. In fact, several wi tnesses testified that the women t o l d Hart that very day that he had to move out because they found wh at they believed to be cocaine. Hart expressed his frustration to Bruce that he was not a cocaine user.
Hart was not quiet about what he had done , eithe r
. In addition to telling Shirley that he shot the women, Hart told his supervisor at work, a 911 dispatcher, and a church elder that he had done something wrong for which the police needed to get him. When Hart spoke with the 911 operator, he reported a “double homicide” at his house and asked
for the police to come get him

. State’s Ex. 63. In addition, Hart had access to the locked house where the victims were found. There was no forced entry other than where Daniel broke a window to enter. No tably,8

Elizabeth and Linda were found sitting in the living room with the television on, as if they had not heard or encountered any danger. A spilled coffee cup was found on the floor by Linda. After Daniel discovered the women’s dead bodies, he and his wife stood
in the middle of the street w aiting for emergency responders. They spotted a white truck about 200 feet away that looked like Hart’s truck , but then it disappeared. Shortly thereafter, Hart himself called 911 and told the police to pick him u p. When the police
arrived at the church and asked Hart where the gun was, he directed them to his truck. Because the evidence is sufficient to prove that it was indeed Hart who killed Elizabeth and Linda, we affirm his murder convictions.
Affirmed. ROBB, C.J., and NAJAM, J., concur.