ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey D. Stonebraker Steve Carter
Clark County Public Defender Attorney General of Indiana
Deputy Attorney General
Shawn L. Bald, )
Appellant (Defendant Below), )
v. ) No. 10S00-0101-CR-019
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
April 22, 2002
On September 11, 1999, fire swept through Moores apartment complex. The fire
killed Alan Rumple, Jennifer Steinberger, and the couples infant child. Sharon Brewer
injured herself while rescuing another child from the fire. Investigators determined the
cause of the fire was arson, and the police arrested Bald.
The State charged Bald in thirteen counts, and the jury found him guilty on the three felony murder counts See footnote and the four arson counts. See footnote The court merged three arson findings into the felony murder convictions, leaving one arson count for the injury Brewer sustained. See footnote It sentenced Bald to presumptive consecutive terms totaling one hundred ninety-five years.
In Richardson, we held that double jeopardy analysis requires two separate inquiries:
the statutory elements test and the actual evidence test. 717 N.E.2d at
49. Bald concedes that he has no claim under the statutory elements
test, but asserts that his convictions violate the actual evidence test.
We recently clarified the actual evidence test: [U]nder the Richardson actual evidence
test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts
establishing the essential elements of one offense also establish only one or even
several, but not all, of the essential elements of a second offense.
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002) (emphasis added).
Balds argument fails under this analysis. The evidentiary facts used to establish
felony murder established some, but not all, of the elements of the arson
offense. To find Bald guilty of class A felony arson, the jury
was required to find Brewer was injured as a result of arson.
In finding Bald guilty of each felony murder, the jury was required to
find evidence of a separate victims death. Thus, each conviction required proof
of at least one unique evidentiary fact. Accordingly, Balds convictions do not
violate the Richardson/Spivey actual evidence test.
The record reveals that on August 28, 1999, Bald fought with a man
in an apartment complex near Colonial Park. At one point during the
fight, Bald said, [I]ts finished when I say its done. (R. at
1715.) The man then pulled a gun on Bald, who fled, only
to return later with his own gun. Bald left the scene again
when he realized that his friends daughter was in the apartment with the
man. The court admitted this evidence over Balds objection.
Indiana Evidence Rule 404(b) provides, Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . . This rule serves to prohibit
a jury from making the forbidden inference that because of a defendants criminal
propensity, he committed the charged act. Monegan v. State, 721 N.E.2d 243,
248 (Ind. 1999).
Though the State argues that Balds prior altercation was offered to prove motive, it is clear from the record that the evidence was intended to show Balds propensity for following through with a threat. In arguing the motion at trial, the State said, Thats why were here; thats why [Bald] says its not over and thats why he says you gotta sleep sometime, youre going to burn and thats just in keeping of what he had said . . . just a few hours prior to that  other guy. It only ends when he says it ends . . . . (R. at 1695.) Further, the State said, [The previous fight] goes directly to show why he, how he acts . . . . [T]his needs to go in front of the Jury and let them know this type of person and his motive for doing this . . . . (R. at 1703-04.)
The State used the fight to show Bald followed through with his threats
that it was his character. This is prohibited.
Though this character evidence should have been excluded, the error does not warrant
reversal. Trial court error is harmless if the probable impact of the
error on the jury, in light of all of the evidence, is sufficiently
minor such that it does not affect the substantial rights of the parties.
Hauk v. State, 729 N.E.2d 994, 1002 (Ind. 2000) (citations omitted).
As we discuss below, even without the fight, the evidence was sufficiently strong
that this error did not affect Balds substantial rights.
Lastly, Bald insists that the State failed to present sufficient evidence to support
finding that he was the arsonist.
In reviewing the sufficiency of the evidence, we neither re-weigh the evidence nor
judge the credibility of the witnesses. We look only to the probative
evidence supporting the verdict and the reasonable inferences therefrom to determine whether a
reasonable trier of fact could conclude the defendant was guilty beyond a reasonable
doubt. If there is substantial evidence of probative value to support the conviction
it will not be set aside.
Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997) (citations omitted).
The record supports Balds convictions. It shows that on August 28, 1999,
Bald fought with James Moore, then told Karen they had to sleep and
would burn. A few days later, Bald told a friend about the
fight and said it wasnt over, and that it wouldnt take nothing to
throw a cocktail in the building or to burn the building down.
(R. at 1147.)
In his brief to this Court, Bald concede[s] the State proved the fire
was intentionally set and not accidental. (Appellants Br. at 44.) At
least three witnesses saw Bald near the apartment building around the time it
caught fire. (R. at 1661-65, 1149-51, 1178, 1183, 1888-91.) Bald also
made incriminating comments to several people. Some of his statements, though not
all, seemed to express satisfaction in the tragedy at the apartment building.
(R. at 1151, 1183, 1664, 1890.)
For example, Bald showed up soon after the fire at the apartment of
Jamie Brunner, an acquaintance who lived four or five blocks from Moores complex.
Bald told her about the blaze, saying they was having a marshmallow
roast. (R. at 1890-91.) When Brunner giggled at this, Bald said that
it was not funny. He asked if he could stay at her
place for a little while, and she agreed. She described him at
trial as saying the white people were burning in the fire, and she
guessed they were the marshmallows. (Id.) She admitted that she told
the police that Bald said, I didnt mean for nobody to get hurt,
but declared that Bald didnt say that.
(R. at 1900, 1909.)
Arson is almost always subject to proof solely by circumstantial evidence.
v. State, 671 N.E.2d 1210, 1214 (Ind. Ct. App. 1996) (citation omitted).
Here, the circumstantial facts taken together were sufficient to support Balds conviction as
the arsonist. See id. (defendants motive, presence at the scene, and conduct
before and after the fire, combined with proof that the fire was intentional,
sufficiently supported arson conviction).
A party may not place a witness on the stand for the sole
purpose of presenting otherwise inadmissible evidence cloaked as impeachment. Griffin v. State,
754 N.E.2d 899, 904 (Ind. 2001) (citation omitted). Here, however, Brunner provided other
relevant testimony regarding events surrounding the fire. See Appleton v. State, 740
N.E.2d 122, 125 (Ind. 2001) (reasonable for State to call witness who observed
an attack for reasons other than impeachment). Moreover, unlike the witness in
Griffin who was impeached by the testimony of another witness, Brunner herself admitted
making the prior statement. See Griffin, 754 N.E.2d at 903-04.