ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT JEFFREY A. MODISETT
Vonderheide & Knecht, P.C. Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
JERYL BASSIE, )
) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT II
The Honorable George J. Heid, Judge
Cause No. 79D02-9712-CF-116
ON DIRECT APPEAL
March 23, 2000
After a trial by jury Jeryl Bassie was found guilty of one count
of kidnapping as a Class A felony, and two counts of criminal confinement
as Class B felonies. He was also adjudged a habitual offender.
The trial court sentenced Bassie to forty years for kidnapping which was enhanced
by thirty years for the habitual offender adjudication. The trial court also
sentenced Bassie to fifteen years on one count of confinement with five years
suspended, and ordered the sentences to be served consecutively. No sentence was
imposed on the remaining count of confinement. Ultimately Bassie received a total
executed term of eighty years imprisonment. In this direct appeal Bassie contends
(1) the evidence was not sufficient to sustain his conviction for kidnapping, and
(2) his forty-year sentence for kidnapping is excessive and should be reduced to
the presumptive thirty years. We disagree with both contentions and therefore affirm.
The record shows that after consuming a quantity of alcohol and drugs, Bassie
and an accomplice, Nashid Muhammad, decided to steal a car owned by Kim
Garrett. Reaching the conclusion that it would be better first to obtain
keys to the car, Bassie and Muhammad proceeded to the home that Garrett
shared with his girlfriend, Jennifer Stout. Muhammad knocked on the door while
Bassie stayed out of view. Alone with her two small children, Stout
peered through a window advising Muhammad that Garrett was not present but agreeing
to provide him with a telephone number where Garrett could be contacted.
She then proceeded to telephone one of Garretts relatives. With the receiver
off the hook, Stout returned to the door to communicate further with Muhammad.
At that point Bassie and Muhammad forced their way into her home
and ordered Stout to lie on the floor. Bassie was armed with
a twelve-gauge shotgun. The person to whom Stout was talking called the
police. Using duct tape, the pair bound Stouts hands and taped her mouth.
They also bound the hands and taped the mouth of one of
Stouts small children. The men demanded the keys and title to Garretts
car. After Bassie searched for the items without success, both men proceeded
to walk up the stairs inside the house with Stout leading the way.
Bassie was pointing the shotgun at Stouts head. As they walked up
the stairs, Bassie noticed police officers in the back yard. In fact police
had surrounded the house. Using Stout as a shield, Bassie began to
walk out the front door, but was ordered back inside. Attempting to
find a means of escape, Bassie walked back and forth between the front
and back doors of the home continuing to point the shotgun at Stouts
head and using her as a shield.
In the meantime, while Bassie and Muhammad were distracted near the front of
the house, a police officer approached the rear of the house and managed
to grab one of the children. Eventually, a SWAT team hostage negotiator
convinced Bassie to release the other child and to surrender his weapon.
Bassie complied. Ultimately both men were arrested and Bassie was charged with
one count of kidnapping and two counts of confinement. Bassie was also
charged as a habitual offender. After a jury trial, he was found
guilty as charged and also adjudged a habitual offender. This appeal followed.
Challenging only his conviction for kidnapping, Bassie contends the evidence is insufficient to
sustain the conviction. More specifically Bassie claims the State failed to rebut
his claim of voluntary intoxication.
See footnote When a defendant raises the intoxication defense,
the State bears the burden of negating the defense in relation to the
mens rea of the offense. Powers v. State, 540 N.E.2d 1225, 1227
(Ind. 1989). Whether a defendant was so intoxicated that he could not
form the mens rea required for the crime is a question for the
trier of fact. Barnes v. State, 693 N.E.2d 520, 522 (Ind. 1998).
The conviction will be affirmed if there was substantial evidence of probative
value that would have allowed the fact finder to conclude beyond a reasonable
doubt that the defendant formed the required mental element. Id. Evidence
of capacity to form the requisite criminal intent includes the ability to "devise
a plan, operate equipment, instruct the behavior of others or carry out acts
requiring physical skill." Id. (citing Terry v. State, 465 N.E.2d 1085, 1088
(Ind. 1984)). If the defendant was able to form the required mental
element of the crime, the degree of intoxication is immaterial. Id.
A person who knowingly or intentionally confines another person with the intent to
use the person confined as a shield or hostage, commits kidnapping, a Class
A felony. Ind. Code § 35-42-3-2. A person engages in conduct
intentionally if, when he engages in the conduct, it is his conscious objective
to do so. Ind. Code § 35-41-2-2(a). "A person engages in
conduct 'knowingly' if, when he engages in the conduct, he is aware of
a high probability that he is doing so." Ind. Code § 354122(b).
The record shows an abundance of evidence from which the jury could have
reasonably concluded that Bassie knowingly and intentionally confined Stout with the conscious objective
of using Stout as a shield. Bassies capacity to form the intent
to kidnap Stout was shown by his ability to formulate the plan to
steal Garretts car, including purchasing tape used during the crime, retrieving the shotgun,
and devising a scheme to gain access into Stouts home where he could
obtain the keys and title to the car. Bassie also performed acts
of dexterity during the ordeal. Bassie climbed up and down a flight
of stairs; walked back and forth between the front and rear of the
home while keeping Stout in front of him and holding a shotgun to
her head. Bassie handled a shotgun throughout the affair without incident, and
of his own accord, removed the shells from the gun before surrendering it
to police. Further, Bassies own testimony indicated that he understood his actions
in utilizing Stout as a human shield. Bassie testified that he kept
Stout in front of him to keep from getting shot. R. at
557. In sum, Bassies claim that the State did not rebut his
claim of voluntary intoxication amounts to an invitation for this court to reweigh
the evidence. We decline. The evidence was sufficient to sustain the
Bassie next challenges his forty-year sentence for kidnapping. He concedes the trial
court did not abuse its discretion in sentencing him. Indeed the trial
court enhanced Bassies sentence from the presumptive thirty years because of Bassies extensive
criminal history and his gang affiliation. Nonetheless, citing Beatty v. State, 567
N.E.2d 1134 (Ind. 1991), Bassie contends his sentence should be reduced to the
presumptive term because he did not harm his hostages.
The defendant in Beatty was convicted of three counts of kidnapping as Class
A felonies. Like Bassie, the defendant did not physically injure his hostages.
The trial court sentenced Beatty to the maximum fifty-year sentence on each
count and ordered the sentences to run consecutively. On appeal, a majority
of this Court held that Beattys sentence should be revised:
A conviction for the offense of kidnapping is punished as a Class A
felony, regardless of whether bodily injury is inflicted during the commission of the
crime. Ind. Code § 35-42-3-2. The absence of such injury does
not diminish the severity of the penalty range to that prescribed for Class
B felonies. It is only through the sentencing process that distinctions may
be made. While we find no abuse of discretion by the trial
court in its determination of the sentence, appropriate use of Article 7 Section
4 of the Constitution of Indiana, granting to this Court the power to
review and revise sentences in criminal cases, may provide an incentive that might
discourage future hostage-takers from injuring innocent people. Considering these factors, we elect
to exercise our constitutional authority to review and revise the sentences for counts
I, II and III [the Class A kidnapping convictions]. We now order
that the defendant be sentenced to 45 years on each of counts I,
II, and III, with the sentences under counts II and III to run
concurrently with each other and consecutive to the sentence on count I, for
an aggregate sentence of 90 years on these counts.
Beatty, 567 N.E.2d at 1138.
Contrary to Bassies apparent argument, Beatty does not stand for the proposition that
this court will exercise its constitutional authority to review and revise sentences in
every instance where a hostage taker has not injured innocent people. Rather,
the exercise of such authority in those instances is fact sensitive. And
the facts in this case are distinguishable from those in Beatty. Although
in both instances the kidnapping defendants refrained from injuring their hostages, the similarity
ends there. In Beatty the defendant received the maximum fifty-year sentence for
each kidnapping offense. Here, Bassie received a forty-year sentence, which is ten
years less than the maximum sentence. See Ind. Code § 35-50-2-4.
Also, though both defendants Bassie and Beatty were involved in a single episode
of criminal conduct, defendant Beatty received an executed sentence of 150 years, which
is nearly double the sentence Bassie received. Finally, and most importantly, the
trial court in this case specifically stated that it was taking into consideration
the mitigating factor that Bassie had not injured his hostages. R. at
692. Thus, the trial court insured that Bassie was the beneficiary of
the incentive this court announced in Beatty. Under the facts of this
case we decline Bassies invitation to exercise our constitutional authority to revise his
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
In 1997, our legislature enacted Ind. Code § 35-41-2-5 and amended
Ind. Code § 35-41-3-5, the intoxication statute. Ind. Code § 35-41-2-5 provides,
"Intoxication is not a defense in a prosecution for an offense and may
not be taken into consideration in determining the existence of a mental state
that is an element of the offense unless the defendant meets the requirements
of IC 354135." The amendment to Ind. Code § 35-41-3-5 eliminated voluntary
intoxication, limiting the intoxication defense to cases where " the intoxication resulted from
the introduction of a substance into [the defendants] body: (1) without his
consent; or (2) when he did not know that the substance might cause
intoxication." The legislatures changes to the intoxication defense took effect on July
1, 1997, five months before Bassie committed the crimes for which he was
charged and ultimately convicted.
See Ind. Code § 1-1-3-3. As such,
a question arises as to whether voluntary intoxication was a viable defense in
Indiana at the time of Bassies trial. The trial court recognized the
legislative amendments, but in light of our previous decision in Terry v. State,
465 N.E.2d 1085 (Ind. 1984), wherein we adopted former Chief Justice Givens concurrence
in Sills v. State, 463 N.E.2d 228 (Ind. 1984) (majority opinion overruled in
part on other grounds in Wright v. State, 658 N.E.2d 563, 570 (Ind.
1995)), chose to give an instruction on the defense. In Terry we
held that a previous version of Indianas intoxication statute, which limited the defense
to certain offenses, was void and without effect stating, [t]he attempt by the
legislature to remove the factor of voluntary intoxication, except in limited situations goes
against [a] firmly ingrained principle [that such factors may be offered to negate
the capacity to formulate intent] . . . . A defendant in
Indiana can offer a defense of intoxication to any crime. Terry, 465
N.E.2d at 1088; but see Montana v. Egelhoff, 518 U.S. 37, 56, 116
S. Ct. 2013, 2024, 135 L. Ed. 2d 361 (1996) (holding that the
Due Process Clause of the Fourteenth Amendment does not require states to allow
voluntary intoxication as a defense); see also State v. VanCleave, 674 N.E.2d
1293, 1302-03 n.15 (Ind. 1996) (noting that the Egelhoff decision meant that Terry
was no longer good law only to the extent Terry suggested the previous
version of Ind. Code § 35-41-3-5(b) (1993) violated federal due process guarantees).
Though the State noted the legislative amendments in objecting to a voluntary intoxication
instruction at trial, it has not raised the issue on appeal in response
to Bassies claim that the State failed to carry its burden of negating
the defense. Therefore, we do not address the issue.