ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN C. C. WILD KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
CRAIG FERRELL, )
) Supreme Court Cause Number
v. ) 49S00-0003-CR-142
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Diane M. Moore, Judge
Cause No. 49G04-9901-CF-009945
ON DIRECT APPEAL
April 11, 2001
After a trial by jury Craig Ferrell was convicted of murder, attempted robbery
as a Class A felony, aggravated battery as a Class B felony, and
criminal gang activity as a Class D felony for his role in the
stabbing death of Edward Crafter. His only complaint on appeal concerns the
sufficiency of the evidence. We agree the evidence of criminal gang activity
was not sufficient and therefore we reverse this conviction. For his other
convictions, we affirm.
The facts most favorable to the verdict show that in the evening hours
of January 14, 1999, a group of men attacked and beat Edward Crafter.
His body was found in a field the following morning. At
least four of the men were charged in connection with Crafters death, one
of whom was Tommy Thompson. In exchange for his testimony, the State
dismissed charges against Thompson for murder, robbery, and criminal gang activity and allowed
him to plead guilty to aggravated battery. At trial, Thompson downplayed his
own involvement in Crafters death and instead blamed Ferrell and another accomplice, Steven
Kilpatrick, who was tried along with Ferrell as a co-defendant.
See footnote He testified,
for example, that he observed Kilpatrick strike Crafter in the head with a
chunk of ice and that as Crafter lay on the ground Ferrell and
Klipatrick searched Crafters pockets. Thompson also testified that sometime thereafter he observed
Ferrell and Kilpatrick dragging Crafter through the street; that Kilpatrick stabbed Crafter multiple
times in the neck and that
Ferrell stabbed him in the chest; and that both Ferrell and Kilpatrick dragged
Crafters body into some bushes. An autopsy revealed that in addition to
abrasions and contusions to his face, Crafter suffered an injury to the back
of his head consistent with being struck with a large block of ice.
The autopsy also revealed that Crafter died as a result of multiple
stab wounds. A jury convicted Ferrell of murder, attempted robbery, aggravated battery,
and criminal gang activity. The trial court sentenced him to an aggregate
term of 100 years imprisonment.See footnote This appeal followed.
Ferrell does not contest his conviction for aggravated battery. He contends, however,
that his convictions for murder, attempted robbery, and criminal gang activity are not
supported by sufficient evidence. In reviewing a sufficiency of the evidence claim,
we do not reweigh the evidence or assess the credibility of witnesses.
Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999). Rather, we look
to the evidence and reasonable inferences drawn therefrom that support the verdict and
will affirm the conviction if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Id.
Ferrells chief complaint concerns the testimony of Tommy Thompson. Contending that Thompson
was the only witness to testify concerning the murder and attempted robbery,
Ferrell argues that Thompsons testimony was self-serving, inherently contradictory, and inconsistent with virtually
all other testimony as well as with the physical evidence. Thus, according
to Ferrell, Thompsons testimony was incredibly dubious as a matter of law. Under
the incredible dubiosity rule, a court will impinge upon the jurys responsibility to
judge witness credibility only when confronted with inherently improbable testimony or coerced, equivocal,
wholly uncorroborated testimony of incredible dubiosity. Tillman v. State, 642 N.E.2d 221,
223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 80-81, 251 N.E.2d 658,
661-62 (1969). Application of this rule is limited to cases, such as
Gaddis, where a sole witness presents inherently contradictory testimony which is equivocal or
the result of coercion and there is a complete lack of circumstantial evidence
of the appellants guilt. Tillman, 642 N.E.2d at 223.
In this case, Thompson testified that he arrived on the scene after a
fight between Crafter and several other men had begun and that he hit
Crafter only once. R. at 307, 311. By contrast, two other
witnesses testified that Thompson participated more actively in the beatings. R. at
238, 423. Thompson testified that Ferrell and Kilpatrick beat Crafter but did
not mention anyone else. R. at 309. On the other hand,
other witnesses testified that four or five persons participated in the beating.
R. at 236-37, 391. Thompson said that both Ferrell and Kilpatrick went
through Crafters pockets. R. at 313. However, other witnesses testified that
only Kilpatrick did so. R. at 239-40, 412. No witness other
than Thompson testified that Ferrell stabbed Crafter; however, no blood was found on
Ferrells clothing, which according to Ferrell, one might expect given the nature of
Crafters injuries. On this latter
point, the record shows the clothing that was tested for bloodstains was clothing
Ferrell wore at the time of his arrest three weeks after the stabbing.
R. at 529. Further, Thompson as well as another States witness
testified that on the night of the stabbing Ferrell removed the clothes he
was wearing and placed them in a trash bag. R. at 323,
In any event, although Thompsons testimony was inconsistent in several respects with the
testimony of other witnesses, it was not equivocal and Thompson did not contradict
himself on the stand. Rather, the record shows that even though Ferrell
thoroughly cross-examined Thompson, he nonetheless stuck by his account of the events occurring
on the night of the fatal stabbing. R. at 329-43. See
Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the
incredible dubiosity rule where there were inconsistencies in the testimony among witnesses but
no one witness contradicted himself). It is for the trier of fact
to resolve conflicts in the evidence and to decide which witnesses to believe
or disbelieve. Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993).
If the testimony believed by the trier of fact is enough to support
the verdict, then the reviewing court will not disturb it. Id.
In this case the jury apparently believed Thompsons testimony. His testimony was
sufficient to support a guilty verdict for murder and attempted robbery. We
therefore affirm Ferrells convictions for these offenses.
We have a different view, however, concerning Ferrells conviction for criminal gang activity.
In order to convict a defendant of criminal gang activity, the State
must prove beyond a reasonable doubt that the individual: (1) is an
active member of a group with five or more members which promotes, sponsors,
assists in, or participates in or requires as a condition of membership or
continued membership the commission of a felony or an act that would be
a felony if committed by an adult, (2) has knowledge of the groups
criminal advocacy, and (3) has a specific intent to further the groups criminal
goals. See Ind.Code §§ 35-45-9-1, -3.
At the time of his arrest, photographs were taken of Ferrell showing several
tattoos on his arms and chest. A detective assigned to the Metro
Gang Task Force testified that the tattoos were the symbols of a street
gang known as the Vice Lords. In the officers opinion, the individual
with these tattoos would be showing allegiance to the Vice Lord nation.
R. at 679. The detective also testified concerning the size and illegal
activities of the Vice Lords gang. To sustain a conviction under a
sufficiency of the evidence challenge, there must be sufficient evidence on each material
element of the offense. Grace v. State, 731 N.E.2d 442, 445 (Ind.
2000), rehg denied. Here, the State presented no evidence that Ferrell was
an active gang member. Nor did the State present any evidence that
Ferrell had the specific intent to further the gangs criminal goals when he
stabbed and attempted to rob Crafter. The States case on this offense
consisted only of evidence that Ferrell, at some point, was a member of
a gang that commits criminal offenses. That is not enough. See
Robinson v. State, 730 N.E.2d 185, 195 (Ind. Ct. App. 2000), trans. denied;
Trice v. State, 693 N.E.2d 649, 651 (Ind. Ct. App. 1998) (both reversing
convictions for criminal gang activity where the State failed to show a nexus
between the defendants gang membership and the crimes for which they were charged).
We thus conclude the evidence was not sufficient to support Ferrells conviction
for criminal gang activity. Therefore, we are compelled to reverse this conviction.
We reverse Ferrells conviction for criminal gang activity. In all other respects,
the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Today, we also decide the case of co-defendant Steven Kilpatrick.
Kilpatrick v. State, Cause No. 49S00-0003-CR-185, ___N.E.2d___ (Ind. 2001).
Specifically, the trial court sentenced Ferrell to consecutive terms of sixty
(60) years for murder and forty (40) years for attempted robbery. The
court also sentenced Ferrell to twenty (20) years for aggravated battery and three
(3) years for criminal gang activity but merged these sentences into the sentence
for attempted robbery.