Donald Ray Fultz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Donald Ray Fults appeals his conviction for Level 3 felony armed robbery, arguing that the circumstantial evidence presented at trial regarding his identity as the perpetrator is insufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] At approximately 10:00 p.m. on October 24, 2022, Tyler Ripperger was working at his family's Richmond liquor store, The Bottle Shop. A man entered the store dressed in all black. The man did not turn around or talk when Ripperger approached the register and greeted the man. When Ripperger was about five feet away, the man turned and pointed a firearm at Ripperger, leaving him frightened and shaken “to the core.” Tr. Vol. III p. 28. The man demanded that Ripperger “give [him] the money.” Tr. Vol. III p. 28. Afraid that the man might shoot him, after giving the man “all the 20s [he] had,” Ripperger “dropped to the ground” to take cover. Tr. Vol. III p. 28. Sales receipts subsequently indicated that Ripperger had given the man $2305.00.

[3] Ripperger called 911 to report the robbery and indicated to the responding officers that the man had been wearing a red ski mask covering his face, all black with a hood up over his head, and blue latex gloves. While reviewing the store's surveillance recording, responding officers observed that the robber had fled in a northbound direction.

[4] After viewing the surveillance recording, one of the responding officers walked north from the store and found a pair of blue latex gloves on the ground within a “relatively close proximity to the scene where the robbery had occurred.” Tr. Vol. II p. 233. The gloves “were just on the side of the alley not really near anything specific. It appeared that they had been kind of wadded up together and just thrown on the ground.” Tr. Vol. II p. 224. The gloves appeared to be similar to the ones that had been worn during the robbery. Although it was a dry night, “there was some kind of condensation” on the gloves, “almost as if whoever had been wearing them [ ] had been sweating prior to taking them off.” Tr. Vol. II p. 232. There was no other trash or debris near the gloves.

[5] The gloves were sent to a laboratory for DNA analysis. After recovering DNA from the gloves, laboratory testing of the DNA indicated that “[t]he DNA profile is at least 1 trillion times more likely if it originated from [Fultz] than if it originated from an unknown, unrelated individual[,]” providing “very strong support” for the conclusion that the DNA on the gloves belonged to Fultz. Ex. Vol. I p. 25. In addition to the discovery of Fultz's DNA on the gloves, Fultz's build, height, and weight matched the robber as portrayed in the surveillance video.

[6] On November 7, 2023, the State charged Fultz with Level 3 felony armed robbery and alleged that he is a habitual offender. After a jury found Fultz guilty of the robbery charge, Fultz admitted to being a habitual offender. The trial court sentenced Fultz to an aggregate eighteen-year sentence.

Discussion and Decision

[7] Fultz contends that the evidence is insufficient to sustain his conviction for Level 3 felony armed robbery.

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. 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. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. 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, 146–47 (Ind. 2007) (internal brackets, citations, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[8] In order to convict Fultz of Level 3 felony robbery, the State was required to prove that Fultz, while armed with a deadly weapon, “knowingly or intentionally [took] property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear[.]” Ind. Code § 35-42-5-1(a). Fultz asserts that the evidence is insufficient to prove his identity as the individual who had committed the robbery. We disagree.

[9] “It is well established that circumstantial evidence alone may be sufficient to sustain a conviction.” Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App. 2016) (citing C.D.G. v. State, 808 N.E.2d 137, 138 (Ind. Ct. App. 2004)), trans. denied.

In a circumstantial case, no single piece of evidence in isolation—no “smoking gun”—is offered to persuade the jury to convict. Yet a jury may be convinced, beyond a reasonable doubt, by looking at “a web of facts in which no single strand may be dispositive.” Kriner v. State, 699 N.E.2d 659, 664 (Ind. 1998). Indeed, the “evidence in the aggregate may point to guilt where individual elements of the State's case might not.” Id. Just as in the probable cause context, when presented with a sufficiency challenge we look at the “whole picture” without taking a “divide-and-conquer approach” to individual pieces of evidence. See McGrath v. State, 95 N.E.3d 522, 529 (Ind. 2018) (internal citation and quotation marks omitted).

Young v. State, 198 N.E.3d 1172, 1176–77 (Ind. 2022). Further, “[w]hen the evidence of identity is not entirely conclusive, the weight to be given to the identification evidence is left to the determination of the jury, as determining identity is a question of fact.” Harbert, 51 N.E.3d at 275 (citing Whitt v. State, 499 N.E.2d 748, 750 (Ind. 1986)).

[10] In Meehan v. State, 7 N.E.3d 255, 259 (Ind. 2014), the Indiana Supreme Court found that the jury could have reasonably inferred that Meehan was guilty of burglary when a “glove containing Meehan's DNA” was discovered near the scene of the burglary and Meehan was found to have possessed potential burglary tools. Likewise, in Harbert, we concluded that the evidence was sufficient to prove the perpetrators’ identity when they “generally fit the physical descriptions provided by the eye witnesses,” one of the perpetrators’ DNA was found on clothing that had been discarded near the scene of the robbery, and the other's movements “were consistent with the opportunity for both men to complete the robbery.” 51 N.E.3d at 275–76.

[11] In this case, the State introduced sufficient circumstantial evidence to prove Fultz's identity as the individual who had robbed the liquor store. Surveillance recordings indicated that after completing the robbery, the perpetrator had fled northbound. Shortly after the robbery, blue latex gloves matching those worn by the robber were recovered from an alley north of the store, within a “relatively close proximity to the scene where the robbery had occurred.” Tr. Vol. II p. 233. The gloves were not intermingled with any other trash, and the presence of what appeared to be sweat on the gloves indicated that they had been recently worn. Laboratory testing of the DNA recovered from the latex gloves indicated that “[t]he DNA profile is at least 1 trillion times more likely if it originated from [Fultz] than if it originated from an unknown, unrelated individual[,]” providing “very strong support” for the conclusion that the DNA on the gloves belonged to Fultz. Ex. Vol. I p. 25. In addition to the discovery of Fultz's DNA on the gloves, Fultz's build, height, and weight matched the robber as portrayed in the surveillance video.

[12] Given this evidence, considered with Indiana Supreme Court's holding in Meehan and our conclusion in Harbert, we conclude that the jury could have reasonably inferred from the evidence that Fultz was the individual who had committed the robbery. Fultz's assertion to the contrary is nothing more than a request to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958; Drane, 867 N.E.2d at 146.

[13] The judgment of the trial court is affirmed.

Bailey, J., and Foley, J., concur.

Bradford, Judge.

Judges Bailey and Foley concur.