Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
IN THE INDIANA SUPREME COURT
Appellant (Defendant below)
STATE OF INDIANA, Appellee (Plaintiff below ).
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9503-CF-35112
June 8, 2000
Defendant Leslie Hauk was convicted of and sentenced for Murder and Robbery. She appeals, arguing that (1) the trial court improperly refused her requests to instruct the jury on the crimes of Theft and Assisting a Criminal, and (2) the trial court improperly excluded evidence of a co-defendants bad character. Finding the trial courts actions proper, we affirm the trial courts judgments.
We have jurisdiction over this direct appeal because the longest single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
Gregory Anderson, a friend of Sturgeons, testified that on March 6, 1995, he
helped Sturgeon carry Coffmans body out of the house and they placed it
in the trunk of Coffmans car. Two days later, Coffmans son located Coffmans
car and called for a police officer; the two of them opened the
trunk and discovered Coffmans body.
On March 13, 1995, the State charged Defendant with Murder, See footnote Felony Murder,See footnote and Robbery,See footnote a Class B felony. A jury found Defendant guilty of all three charges, but the trial court merged the Murder and Felony Murder convictions, senten cing Defendant to 55 years for Murder and 20 years for Robbery, the sentences to be served concurrently. Sturgeon was also tried, convicted, and sentenced for his part in this matter. See Sturgeon v. State, 719 N.E.2d 1173 (Ind. 1999).
Additional facts will be provided as necessary.
Defendant was convicted of Murder and Robbery under an accomplice liability and
aiding and abetting theories.theory. At a minimum, as evidenced by Defendants own
admissions and testimony, Defendant stole money from Coffman, observed his brutal murder, and
fled the crime scene to dispose of one of the murder weapons.
Indiana Code § 35-41-2-4 (1993) allows a defendant to be convicted of a
crime based on accomplice liability, providing that one who knowing or intentionally aids,
induces, or causes another person to commit an offense commits that offense.
Also, [a]n accomplice can be held criminally liable for everything done by
his confederates which was a probable and natural consequence of their common plan.
Shane v. State, 716 N.E.2d 391, 396 (Ind. 1999 (quoting Harris v.
State, 425 N.E.2d 154, 156 (Ind. 1981)). A jury may infer complicity
and participation in a crime from defendants failure to oppose the crime, companionship
with the one engaged therein, and a course of conduct before, during, and
after the offense which tends to show complicity. Id. An accomplice
is equally as culpable as the one who commits the actual crime.
Id. (citing Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997)). If
the jury believed nothing but Defendants own testimony, the evidence was sufficient to
support her convictions.
When a defendant requests a lesser-included offense instruction, the trial court must apply
a three-part analysis: (1) determine whether the lesser-included offense is inherently included
in the crime charged; if not, (2) determine whether the lesser-included offense is
factually included in the crime charged; and, if either, (3) determine whether a
serious evidentiary dispute exists whereby the jury could conclude that the lesser offense
was committed but not the greater. See Wright v. State, 658 N.E.2d
563, 566-67 (Ind. 1995). The trial court should grant the defendants request for
a lesser-included offense instruction if it answers the third inquiry affirmatively. See
id. at 567.
To determine whether a lesser-included offense is inherently included in a charged crime, the trial court compares the relevant statutes. See id. at 566. The requested lesser-included offense is inherently included in the charged crime if (a) the parties could establish commission of the claimed lesser-included offense by proof of the same material elements or less than all of the material elements of the charged crime, or (b) the only feature distinguishing the claimed lesser-included offense from the charged crime is that a lesser culpability is required to establish commission of the lesser-included offense. Id. at 566-67 (citations omitted).
The State agrees that theft is a lesser-included offense of robbery. Appellees Br. at 3; see also Allen v. State, 686 N.E.2d 760, 777 (Ind. 1997) (citing Landers v. State, 464 N.E.2d 912 (Ind. 1984)), cert. denied, 525 U.S. 1073 (1999). Theft requires the knowing or intentional exertion of unauthorized control over the property of another person with the intent to deprive the other person of any part of the propertys value or use. Ind. Code § 35-43-4-2. Robbery requires the same elements, as well as the use of threat or force. Id. § 35-42-5-1. The State charged Defendant with robbery, but could have established that Defendant committed theft by proving the elements of robbery, less the use of force. Therefore, theft is inherently included in a robbery charge.
Because theft is inherently included in a robbery charge, we must determine whether a serious evidentiary dispute existed concerning the element distinguishing the two crimes use of force whereby the jury could have concluded that Defendant committed theft but not robbery. See Wright, 658 N.E.2d at 567. Defendant asserts that evidence was in dispute regarding whether she facilitated Sturgeons robbery of Coffman or whether she merely accepted money that Sturgeon stole from Coffman.
Despite Defendants claim, there was no dispute but that Coffman was the victim of force, in the form of a brutal and bloody attack, used to procure his money. Defendant admittedly witnessed Sturgeon bludgeoning and stabbing Coffman before taking his money. Whether Defendant facilitated or participated in the attack goes to the question of whether she is guilty as an accessory to the crime charged. See Simpson v. State, 628 N.E.2d 1215, 1221 (Ind. Ct. App. 1994) (holding that a defendant is not entitled to an instruction on theft as a lesser-included offense to robbery where the defense challenged the States allegations that the defendant participated in the robbery, the only question before the jury was the defendants participation in the crime, and there was no question that all of the elements of robbery were present), transfer denied. Defendants defense that she personally did not engage in the use of force to take money off of Coffmans person does not create an evidentiary dispute regarding whether force was used in the commission of this crime, and so does not entitle Defendant to an instruction on theft as a lesser-included offense to her robbery charge. See Allen, 686 N.E.2d at 777 (holding that a defendant is not entitled to a theft instruction as a lesser-included offense of a robbery charge where there is no evidence of simple theft and the victim was clearly relieved of his or her money in a violent manner).
Therefore, whether or not Defendant was entitled to an instruction on assisting a
criminal first depends upon whether assisting a criminal is factually included in murder
or robbery as charged in this case. See Wright, 658 N.E.2d at
566-67. To determine whether an alleged lesser-included offense is factually included in
the crime charged, we must compare the charging instrument in the specific case
with the statute defining the alleged lesser-included offense. Id. at 567.
If the charging instrument alleges that the means used to commit the crime
charged include all of the elements of the alleged lesser-included offense, then the
alleged lesser-included offense is factually included in the crime charged and we must
proceed to step three of the Wright analysis. Id.
The State charged Defendant with murder by knowingly kill[ing] another human being, namely: James Coffman, by stabbing James Coffman multiple times with a deadly weapon, that is: a knife, at and against the person of James Coffman, thereby inflicting mortal stab wounds upon James Coffman, causing James Coffman to die. (R. at 230.) The State also charged Defendant with robbery by knowingly tak[ing] from the person or presence of James Coffman, property, that is: United States Currency, by putting James Coffman in fear or by using or threatening the use of force on James Coffman which resulted in serious bodily injury, that is mortal stab wounds to the person of James Coffman. (R. at 231.) And, the State charged Defendant with felony murder by the same means described in the murder and robbery counts. Nothing in these charges identifies the assistance element of assisting a criminal. The State would have had to identify an individual, such as Sturgeon, who committed the underlying crime, as well as alleged assistance in covering up the crime or avoiding apprehension by the charged individual, Defendant, to have created a factually-included offense via the charging informations in this case.
Defendant concedes as much in her brief where she acknowledges that the [s]tates drafting of the charging information would appear to preclude instructing on Assisting a Criminal. Appellants Br. at 23. However, Defendant follows her concession by arguing that the States request for an instruction on accomplice liability amended and expanded the factual nature of the charges against her, thereby broadening its theory of liability against Defendant, and rendering the crime of assisting a criminal a factually included offense of the charged crimes. Appellants Br. at 23-24. Defendant claims, without supporting authority, that when the State broadens its theory of liability in this way, due process demands that the jury be instructed on her theory that she only assisted a criminal and did not participate in, or was not an accomplice to, commission of the underlying crime.
Defendants argument is an interesting one and we can conceive of situations where there could be a genuine factual dispute as to whether alleged conduct constitutes, on the one hand, aidingor abetting the commission of an offense, or, on the other hand, assisting a criminal. But this is not such a situation. As discussed in the preceding paragraph (and in Sturgeon, where precisely the same argument was made, 719 N.E.2d at 1183-84), the elements of the crime of Assisting a Criminal do not include the conduct alleged to have been committed by Defendant.
Defendant cites our decision in Joyner v. State, 678 N.E.2d 386 (Ind. 1997),
rehg denied, for the proposition that evidence that another person may have committed
a crime is relevant and admissible. However, the trial court judge properly
distinguished the facts in Joyner from those in this case, noting that in
Joyner the defendant sought to present specific factual evidence concerning a possible other
suspect, the possible other suspects sighting with the victim, and an argument between
the possible other suspect and the victim. See id. at 389-90.
In the present case, Defendant merely wanted to present character evidence to persuade
the jury that it was more likely that Sturgeon murdered and robbed Coffman
and that Defendant did not resist Sturgeons actions out of fear. This
argument goes to nothing but propensity. The trial courts decision to exclude
evidence on Sturgeons character is consistent with the Indiana Rules of Evidence, case
law, and was well within the courts discretion.
Moreover, error in the exclusion of evidence is not a basis for reversal on appeal, or otherwise modifying a judgment, unless refusal to take such action is inconsistent with substantial justice. Ind.Trial Rule 61; see also Ind. Evidence Rule 103(a). 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. See Miller v. State, 720 N.E.2d 696, 704 (Ind. 1999) (citing Sylvester v. State, 698 N.E.2d 1126, 1129 (Ind. 1998), rehg denied)). Despite the courts ruling, Defendant testified under both direct and cross-examination as to Sturgeons bad character and his criminal history, including the ten years he served in a Nevada State Penitentiary for robbery. Even assuming that exclusion of the evidence was improper, there was no prejudice to Defendant because she was allowed to testify to Sturgeons bad character and criminal history, and she fails to establish how the outcome in her case might have differed had the trial court allowed additional evidence of Sturgeons bad character.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.