ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Ursulskis Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
INDIANA SUPREME COURT
ALEXA WHEDON, )
v. ) 49S00-0009-CR-540
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9903-CF-035467
On Direct Appeal
April 16, 2002
The defendant, Alexa Whedon, was convicted of murder
for the 1998 killing of
In this appeal, she presents issues regarding the sufficiency of
the evidence and the language of the sentencing order. The defendant first
contends that the evidence was insufficient to prove beyond a reasonable doubt that
she aided and abetted the murder. In addressing a claim of insufficient
evidence, an appellate court must consider only the probative evidence and reasonable inferences
supporting the judgment, without weighing evidence or assessing witness credibility, and determine therefrom
whether a reasonable trier of fact could have found the defendant guilty beyond
a reasonable doubt. Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000).
Under Indiana's accomplice liability statute, a person "who knowingly or intentionally aids, induces,
or causes another person to commit an offense commits that offense." Ind.Code
§ 35-41-2-4. Factors considered by the fact-finder to determine whether a defendant
aided another in the commission of a crime include: (1) presence at
the scene of the crime; (2) companionship with another engaged in a crime;
(3) failure to oppose the commission of the crime; and (4) the course
of conduct before, during, and after the occurrence of the crime. Edgecomb
v. State, 673 N.E.2d 1185, 1193 (Ind. 1996); Johnson v. State, 490 N.E.2d
333, 334 (Ind. 1986). While the defendant's presence during the commission of
the crime or her failure to oppose the crime are, by themselves, insufficient
to establish accomplice liability, the trier of fact may consider them along with
the factors above to determine participation. Echols v. State, 722 N.E.2d 805,
807 (Ind. 2000); Burkes v. State, 445 N.E.2d 983, 987 (Ind. 1983); Harris
v. State, 425 N.E.2d 154, 156 (Ind. 1981).
Applying the standard of review, the evidence shows that the victim's body was
discovered in a vacant lot, her death resulting from head wounds inflicted with
a heavy, blunt object. Around the time of the murder, one witness
saw the defendant, along with Vanessa Thompson, Malcolm Wilson, and another individual get
out of a pick-up truck at a crack house. In the back
of the truck was something covered by a tarp. The witness saw
a pair of white low top tennis shoes sticking out from the edge
of the tarp. The shoes seemed to be on feet because they
were pointed up. Thompson quickly covered the feet with the tarp.
The victim had been seen wearing the same type of shoes. Several
witnesses testified regarding admissions made by the defendant of her involvement in the
murder. She variously stated that she hit the victim in the head
with a brick, that she held the victim down while Thompson hit her
in the head, that she watched Thompson hold down the victim as a
man named "Darrell" beat the victim in the head with a brick, that
she was just a look-out, and that she helped hide the body.
While the details and extent of the admissions vary, her statements were consistent
that she was involved in the killing.
The defendant argues that the various statements attributed to her show inherent material
contradictions and vacillation. She urges application of the incredible dubiosity rule.
Under this rule, a reviewing court may reverse if it finds "'inherently improbable'
testimony or coerced, equivocal, wholly uncorroborated testimony of 'incredible dubiosity.'" Rodgers v.
State, 422 N.E.2d 1211, 1213 (Ind. 1981)(citations omitted). Application of the rule
is limited, however, to cases where a sole witness presents inherently contradictory testimony
that is equivocal or coerced and there is a lack of circumstantial evidence
of guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999).
In the present case, the supporting evidence comes from the testimony of several
witnesses. Furthermore, even though this evidence primarily consists of the defendant's various
statements to these witnesses, the substance of most of these statements consistently shows
her role in aiding and abetting the murder. This evidence establishes the
defendant's presence at the scene of the crime, her companionship with others engaged
in the crime, her failure to oppose the crime, and her conduct during
We find from the evidence favorable to the judgment that a reasonable fact-finder
could find beyond a reasonable doubt that the defendant either killed or aided
and abetted the killing of the victim.
The defendant also contends that the trial court erred in its sentencing order
when, after finding the defendant indigent, it imposed costs without expressly prohibiting incarceration
for failure to pay those costs. The State argues in response that
the prohibition upon imprisonment for failing to pay fines and restitution does not
apply to court costs.
The trial court judgment stated in part: "The Court imposes as it must
by law, $125 in court costs. The Court finds that you're indigent
as to any other fines, costs or fees in regard to this matter."
Record at 543.
Our cases do not provide a conclusive resolution regarding whether the rule requiring
express prohibition of imprisonment for non-payment of fines applies equally to costs.
In Fry v. State, 447 N.E.2d 569 (Ind. 1983), the trial court sentenced
the defendant to a period of imprisonment and imposed a fine of $500.
We summarily rejected the defendant's claim that the fine was imposed without
the trial court first determining his status as an indigent, noting that the
judgment included the statement: "The Defendant being indigent shall not be imprisoned
for failure to pay any such costs and fine." Id. at 573.
Four years later, in Whitehead v. State, 511 N.E.2d 284 (Ind. 1987),
the defendant alleged error in the imposition of a $1000 fine and ordered
$4,418.32 paid in restitution. Without analyzing the issue, we noted the State's
concession that "when a fine is imposed upon an indigent, the trial court
must expressly state that the defendant shall not be imprisoned for failing to
pay the fine." Id. at 296 (emphasis added). We declared our
agreement, referring to Fry, and remanded the case to the trial court for
the purpose of adding the indicated language. This Court thereafter interpreted Whitehead
to hold "that when fines or costs are imposed upon an indigent, the
trial court must expressly state that the defendant shall not be imprisoned for
failing to pay the fine." Petty v. State, 532 N.E.2d 610, 612
(Ind. 1989)(emphasis added). We found that the trial court "was correct in
stating that she may not suspend or waive the costs, but that she
will not and may not enforce the order of costs against an indigent."
Id. at 612 (emphasis added). We found this expression of "non-enforcement
of the costs" to satisfy the express statement requirement. Id. (emphasis added).
In Lock v. State, 567 N.E.2d 1155 (Ind. 1991), we remanded to
permit the trial court to amend its judgment imposing fines of $10,000 on
each of two convictions, "to state that [the defendant] shall not be imprisoned
for failing to pay the fines assessed." Id. at 1161 (emphasis added).
We likewise remanded for the addition of similar additional language in Ridley
v. State, 690 N.E.2d 177, 182 (Ind. 1997), where the trial court assessed
$30,000 in fines and $10,000 for the cost of representation, finding that the
appointment of pauper appellate counsel indicated the trial court's awareness of the defendant's
Although we note that most of our prior decisions primarily involved the imposition
of fines, we have indicated our approval of the same sentencing language requirement
for court costs as well. See Petty, 532 N.E.2d at 612.
Furthermore, our legislature requires indigency hearings both as to the imposition of fines,
Ind.Code § 35-38-1-18(a), and costs, Ind.Code § 33-19-2-3(a). We conclude that when
fines or costs are imposed upon an indigent defendant, such a person may
not be imprisoned for failure to pay the fines or costs.
We note, however, the dubious origin of the rule declaring that trial courts'
sentencing orders must necessarily recite an express prohibition upon imprisonment for failure to
pay fines or costs. Remanding to insist that this warning be included
in every order sentencing an indigent defendant does not substantially serve defendants or
the just and efficient administration of justice. Moreover, a defendant's financial resources
are more appropriately determined not at the time of initial sentencing but at
the conclusion of incarceration, thus allowing consideration of whether the defendant may have
accumulated assets through inheritance or otherwise. Finding the supporting precedents insufficiently grounded
and the rule lacking sound and substantial purpose, we overrule our precedents declaring
that that sentencing orders must include the prohibition against imprisonment for failure to
pay fines or costs.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
The bench trial and sentencing hearing were conducted by Diane Marger Moore,
Footnote: Ind. Code § 35-42-1-1.
Footnote: The defendant was originally charged along with Malcolm Wilson and Vanessa K.
Thompson for the murder of Shanna Sheese. Following severance upon motion of
the State, each defendant was tried separately.