Charles E. Stewart, Jr.
Jeffrey A. Modisett
Arthur Thaddeus Perry
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Charles E. Stewart, Jr.
Jeffrey A. Modisett
Arthur Thaddeus Perry
Ortiz be sentenced to life imprisonment without parole for intentionally killing her while
committing or attempting to commit robbery. The trial court followed the jury's
recommendation. In this direct appeal Ortiz contends that the trial court erred by (1) denying
his motion to suppress his statement to police on the ground that he had been arrested
without probable cause; (2) denying his motion for mistrial based on the State's soliciting
testimony from a police officer about his post-arrest silence; and (3) admitting evidence in
violation of Evidence Rule 404(b). He also contends the evidence was insufficient to support
the jury's guilty verdicts for robbery and felony murder and its finding of eligibility for life
imprisonment without parole based on an intentional killing while committing or attempting
to commit robbery. We affirm the trial court.
questioned by police the following day. He told police that he had argued with his mother
over money, his running up her phone bill with thousands of dollars in 1-900 sex phone calls,
and his pushing back his enlistment date in the military. Other witnesses told police, and
later testified at trial, that Ortiz had previously stolen money from his mother, had stolen her
checks and forged her signature, and had driven her automobile without her permission.
Rebecca's blood was found on the shirt, pants, and shoes that Ortiz was wearing on the night before her body was found. A blood spatter expert concluded that the spatter of blood was consistent with the clothes being worn at the same time that Rebecca was struck with a sledgehammer. A sledgehammer with Rebecca's blood on its head was found in her garage.
crime with which the suspect is ultimately charged. Sears, 668 N.E.2d at 667 n.10.
A police officer testified that, at the time of Ortiz's arrest, the police knew that Rebecca had been found dead and her vehicle was missing; Ortiz, though not permitted to drive the car, had been seen driving the vehicle earlier in the day; Ortiz had been seen purchasing items with a credit card; Rebecca and Ortiz had had an argument or fight on the previous evening; and Rebecca had told Ortiz to be out of the house by Friday of that week. Based on this information, the trial court found that there was enough information to support probable cause under Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). We agree that the police had probable cause to believe that the Ortiz had committed auto theft, if not murder. Accordingly, his arrest was not unlawful, and the trial court did not err in denying the motion to suppress.See footnote 1
defendant's post-Miranda silence. The Court characterized the holding of Doyle as barring
'the use for impeachment purposes' of a defendant's postarrest silence. Id. at 763 (quoting
Doyle, 426 U.S. at 619) (emphasis added by Greer). '[I]t does not comport with due
process to permit the prosecution during the trial to call attention to [the defendant's] silence
. . . .' Doyle, 426 U.S. at 619 (quoting United States v. Hale, 422 U.S. 171, 182-83, 95 S.
Ct. 2133, 45 L. Ed. 2d 99 (1975) (White, J., concurring in judgment)) (emphasis added by
Greer, 483 U.S. at 763-64).
In Greer, the prosecutor asked the defendant during cross-examination, Why didn't you tell this story to anybody when you got arrested? 483 U.S. at 759. Defense counsel objected and moved for a mistrial. The trial court denied the motion, but instructed the jury to ignore [the] question, for the time being. Id. The prosecutor did not pursue the issue further nor did he mention it during closing argument. Because the prosecutor was not 'allowed to undertake impeachment on,' or 'permit[ted] . . . to call attention to,' the defendant's silence, the Court held that his silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case. Id. at 764-65 (quoting Doyle 426 U.S. at 619 & n.10).
The sequence of events here is similar to Greer. The detective offered a single response that, at most, obliquely suggested that Ortiz had exercised his constitutional right to remain silent. Indeed, the detective's testimony was consistent with Ortiz's having spoken on the subject but not having categorically denied guilt. Although the prosecutor then began to ask a question that would have pursued that testimony further, defense counsel promptly
objected. The objection was sustained, the jury was admonished to disregard what had been
said, and the prosecutor asked no further questions on the subject and made no mention of
it during her closing argument. Under these circumstances, there was no Doyle violation and
a mistrial was not required, even if the testimony is taken as suggesting silence on Ortiz's
part. Greer, 483 U.S. at 764-65; see also Cook v. State, 544 N.E.2d 1359, 1363 (Ind. 1989)
(finding no Doyle error or grounds for mistrial based on an isolated statement by a law
1997). Evidence of motive is always relevant in the proof of a crime, and a defendant's prior
actions with respect to the victim are also usually admissible to show the relationship
between the two. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996).
Here, the State offered
this evidence to show the defendant's motive for killing his mother. Although Ortiz
contended at trial, as he does on appeal, that this evidence was admitted to show his bad
character and his propensity to act in conformity with the prior bad acts,See footnote
the trial court
specifically found that the testimony went to motive and intent. This satisfied Rule 404(b).
Moreover, the trial court did not abuse its discretion under Rule 403 by finding its probative
value not substantially outweighed by any potential prejudice that might arise from the
generally unfavorable portrait of Ortiz that arises.
which resulted in serious bodily injury to Rebecca Ortiz . . . . Ortiz does not attack the
sufficiency of evidence that he knowingly or intentionally killed his mother, and the evidence
presented at trial showed that this killing was the result of the use of force. Ortiz's argument
focuses on the sequence of events and the contention that there is no evidence that the use
of force was necessary to obtain possession of the credit cards or automobile.
Although Ortiz secured a lesser included offense instruction for theft, the jury found him guilty of robbery. The only reasonable inference, and the one that supports the verdict, is that the jury believed the use of force was either necessary to take the property or at least facilitated it. See generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.11(d)(1) at 447 (1986) (One may commit robbery by striking his victim with fist or weapon and then, having thus rendered the victim unconscious or dazed or unwilling to risk another blow, taking his property away from him.).
Ortiz also attacks the sufficiency of the evidence to support a taking of property from Rebecca's person or presence as required by the robbery statute. The stolen credit cards were taken from Rebecca's purse, which was found in the kitchen, and her automobile was taken from her garage. Because she was killed in her bedroom, most likely while she slept, Ortiz contends that the property was not taken from her person or presence. The State responds that the credit cards and automobile were under Rebecca's control and that she could have asserted and retained control over them but for Ortiz's brutal attack upon her. We agree that the fact that she was in a different room from the car and the purse does not necessarily remove these items from her presence. In Groce v. State, 250 Ind. 582, 236
N.E.2d 597 (1968), this Court upheld a robbery conviction in which the defendant had taken
a purse left on a dining room table ten to twelve feet from the kitchen where the victim was
attacked at knifepoint. The Court observed that
[t]he words 'from the person of another' contained in the robbery statute are not so strictly construed as to exclude the taking of property from the immediate presence of the person. Taking from another room has been held to be taking from the presence as required by a statute such as ours.
Id. at 585, 236 N.E.2d at 599 (quoting Mahoney v. State, 203 Ind. 421, 424, 180 N.E. 580, 581 (1931).See footnote 3 Similarly, in Paulson v. State, 181 Ind. App. 559, 393 N.E.2d 211, 213 (1979), the Court of Appeals found no merit to a sufficiency challenge in a case in which the victim was attacked and beaten in her automobile, escaped as she was being removed from the automobile but left her purse inside, and returned to find the purse gone. The defendant contended that the evidence supported only a conviction for theft because [t]he only reasonable inference from the testimony is that the appellant [Paulson] removed the purse from the victim's car after the victim left the car. Id. at 562, 393 N.E.2d at 213. The court found sufficient evidence for robbery because the defendant's attack on the victim caused her to flee the car, thereby preventing her from retaining control of her purse. Therefore, the
court held that the subsequent taking of the purse from the victim's car was a 'taking' from
her 'presence' within the meaning of the statute. Id. See also Wash v. State, 408 N.E.2d
634, 637 (Ind. Ct. App. 1980) (The victim's immediate or actual presence to the taking of
the property is not required.); LaFave & Scott, supra § 8.11(c).
Ortiz does not contest that the missing credit cards and automobile were Rebecca's property and were taken from her home. The jury could have reasonably inferred, as the Court of Appeals did in Paulson, that Ortiz's beating of his mother with a sledgehammer prevented her from retaining control over her property. Moreover, Groce makes clear that a sufficiency challenge will not prevail merely because the taking of property and the use of force occurred in different rooms.
Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or assess the credibility of witnesses. 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. Garrett v. State, 714 N.E.2d 618, ___ (Ind. 1999); Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997). Drawing all reasonable inferences in support of the jury's verdict, there is sufficient evidence to support Ortiz's convictions for robbery and felony murder, and the finding that he intentionally killed Rebecca while committing or attempting to commit robbery.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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