ATTORNEY FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
J. Michael Sauer
Deputy Public Defender
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
SUPREME COURT OF INDIANA
WILLIAM C. BURNS, )
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 84S00-9811-CR-734
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael Eldred, Judge
Cause No. 84D01-9712-CF-321
ON DIRECT APPEAL
January 27, 2000
William Burns was convicted of felony murder and sentenced to fifty-five years imprisonment.
In this direct appeal, Burns raises a single issue for review: whether
the evidence was sufficient to convict him of felony murder based on the
underlying felony of robbery. We affirm the trial court.
Factual and Procedural Background
On December 11, 1997, Burns arranged through his friend Kenny Ingle to buy
$500 worth of crank
See footnote from Robert Phillips. Burns examined the product at
the home of Tammy Baggett in the presence of Shaun Seeley and Lester
Hamilton. Hamilton and Seeley agreed with Burns that the crank was too
powdery to be of the promised quality and that Burns had been ripped
off. Burns announced his intention to get his money back. Hamilton
testified that Burns said something akin to, [L]ets go over there and take
that guys shit, meaning robbing him. Burns either asked for or was
offered Seeleys gun and concealed the weapon in the back of his pants.
He then asked Seeley and Hamilton to accompany him to Ingles house
and they agreed.
When Burns, Seeley, and Hamilton arrived, Phillips and Ingle were smoking marijuana on
Ingles waterbed, and Ingles girlfriend and son were in the living room.
Burns, followed by Seeley and Hamilton, entered the bedroom to confront Phillips.
According to Ingle and Seeley, Burns, perhaps referring to the gun, said something
like, [L]ook at what Ive got. Phillips then attempted to push Burns
away from him, and Burns testified that he stuck [the gun] between [Phillips]
eyes. The gun discharged seconds later, killing Phillips. Seeley testified that
Burns then emptied Phillips pockets of as much as $1800 in cash as
well as crank, marijuana, and a wallet. Burns testified that, if anything,
he intended to hit [Phillips] with the gun while the others jumped on
Hamilton left the house after helping Burns and Seeley load Phillips body into
a car trunk. Seeley suggested they could dispose of the body near
Seeleys grandmothers house. Burns and Seeley drove to the site where they unloaded
Phillips body, threw wood on top of it, and set the pile on
fire. When the pile did not burn well, they secured oil from
an all-night convenience store and poured it on the body. Burns threw
the gun into a nearby pond. In the meantime, Ingle had left
the house for Ingles parents home as soon as his girlfriend and their
son could dress. His parents soon convinced Ingle to call the police.
Burns and Seeley later returned briefly to Baggetts where they found Hamilton
and were told that the police were looking for Burns, Seeley, and Hamilton.
Burns, Seeley, and Hamilton then returned to the woods to bury the
body. Hamilton stood watch while Burns and Seeley dismembered the remains, shoveled
them into a duffle bag, and buried them in a shallow grave.
Seeley and Hamilton were apprehended early the next morning before they were able
to leave town. Burns hid out for several weeks, then took a
bus to Wyoming, but was ultimately convinced by his grandfather to return to
Indiana and surrender to the authorities. Before he could complete the trip,
he was arrested in Chicago and brought back to Indiana.
Burns first told police that Seeley had engaged in the drug transaction and
killed Phillips, but, after being confronted with several conflicting statements, confessed to both
the drug transaction and to killing Phillips. Burns was charged with murder
and felony murder, and was convicted of felony murder in a three-day jury
trial in July of 1998.
Sufficiency of the Evidence
Burns argues that the evidence was insufficient to establish beyond a reasonable doubt
that he intended to rob Phillips, and that his conviction for felony murder
must therefore be vacated.
Our standard for reviewing sufficiency of the evidence claims is well settled.
We do not reweigh the evidence or judge the credibility of the witnesses,
Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999), and it lies within
the jurys exclusive province to weigh conflicting evidence, Robinson v. State, 699 N.E.2d
1146, 1148 (Ind. 1998). We will affirm the trial court if the
probative evidence and reasonable inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998).
Burns maintains that his purpose in going to Ingles home was to return
the drug to Phillips and recover his money, not to rob anyone.
He contends he carried the gun at the urging of Seeley and because
Phillips was physically larger than he was. Burns further maintains that he
drew the gun only after Phillips came at him. Although Burns concedes
that he may have taken property from Phillips after the killing, Burns argues
that the evidence that he did so cannot be used to support the
conclusion that the killing took place in the course of a robbery.
Robbery is defined by statute as the knowing or intentional taking of property
of another or in anothers presence by using or threatening the use of
force on any person or by putting any person in fear. Ind.
Code § 35-42-5-1 (1998). Hamilton testified that Burns stated goal was to
take the guys shit, which he understood to mean robbing Phillips. Burns
himself testified that he went to Ingles house to get his money back.
He also testified that he contemplated hitting Phillips with the gun over
the head and that he enlisted the aid of Seeley and Hamilton to
jump on [Phillips]. Although the evidence is disputed as to whose idea
it was for Burns to take the gun with him, Burns testified that
he put the gun in the back of his pants where he could
easily reach it. Both Hamilton and Seeley testified that Burns said, [L]ook
what Ive got, seconds before the gun discharged. From all of this,
a reasonable jury could have concluded that, as Burns said these words, he
drew the gun to force Phillips to give him $500 or more, or
to kill Phillips to get the money.
Furthermore, the jury could have credited Seeleys testimony that Burns removed the contents
of Phillips pockets, and concluded from that testimony that Burns intended to rob
Phillips from the outset. See Mahone v. State, 541 N.E.2d 278, 280
(Ind. 1989) (intent to commit robbery may be inferred from theft that occurs
after the killing if theft and killing are part of one continuous transaction).
Finally, the State argues that Burns cannot escape prosecution for felony murder on
the underlying felony of robbery even if Burns was attempting only to recover
his money. See Sheckles v. State, 501 N.E.2d 1053, 1054-55 (Ind. 1986)
(finding evidence sufficient to uphold felony murder conviction where defendant attempted to collect
debt by force). The recovery of ones own property may raise issues,
but they are not present here. Seeley testified that Burns emptied the
entire contents of Phillips pockets, which contained as much as $1800 in cash.
Burns did more than merely rescind his $500 transaction with Phillips.
The evidence is sufficient to support the conviction for felony murder.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Crank is a methamphetamine that is used as a stimulant.
Alternatively, Burns argues that, at a minimum, his felony murder conviction should
be reduced to the lesser included offense of reckless homicide. We need
not address this argument because there was sufficient evidence to support the felony
murder conviction. Moreover, this is a misstatement of law. Reckless homicide
is not a lesser included offense of felony murder. See Hopkins v.
State, 582 N.E.2d 345, 352 (Ind. 1991).