ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glenn A. Grampp Karen M. Freeman-Wilson
Evansville, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
SUPREME COURT OF INDIANA
Sonya Hulfachor, a.k.a. ) Sonya L. Neiswinger, ) ) Appellant, (Defendant Below ), ) ) v. ) No. 82S00-9903-CR-193 ) State of Indiana, ) ) Appellee (Plaintiff Below ). )
Hulfachor met Glaser at the tavern, and they eventually drove to an abandoned
house. Her co-defendant Mark Duncan also went to the house, but waited
outside. Hulfachor said that she and Glaser began to argue and the
argument became violent. She stated that Duncan burst in and hit Glaser
with a hammer several times. Duncan said that Hulfachor also hit Glaser.
Although they knew Glaser was badly hurt, they did not seek medical
attention for him.
Duncan and Hulfachor took Glasers truck and drove south. Police
eventually apprehended them in Oklahoma City.
Meanwhile, back at the abandoned house, two passersby spotted Glaser in the doorway early on October 9th with his brains hanging out on the floor. (R. at 305-07.) They called 911, and paramedics transported Glaser to the emergency room. The pathologist testified that the head trauma Glaser suffered on or about October 9th caused his death.
Hulfachor claims she was not present at the scene of the crime when
the fatal blow was inflicted.
See footnote In support of this contention, she cites
the testimony of (1) a witness who said the abandoned house seemed secure
at 8 a.m., (2) the emergency technician, who testified that Glaser was alive
upon his arrival at the emergency room at 11:22 a.m. on October 9
and (3) the emergency physician, who testified that Glaser could not have survived
more than two to four hours after the injuries were inflicted. Hulfachor
claims that the fatal blow must therefore have been inflicted between 8 a.m.
and 10:30 a.m. on October 9, 1997. She says she was driving
to Oklahoma during those morning hours.
While this is a plausible reading of the evidence, there was other testimony that could have led the jury to reject Hulfachors alibi. Glasers neurosurgeon testified that it is very difficult to tell when a brain injury was inflicted in active trauma practice. (R. at 342.) The coroner agreed, stating that an injured person can linger before dying for a few hours or many hours. He said, Ive seen cases of open head fracture that approach twenty-four hours of interval between the injury time and when they got medical attention. (R. at 877-78.) As to the timing of Glasers injury, the coroner stated:
My opinion is that he may have survived up to twenty-four hours in a circumstance of an open skull fracture. It may have been less than twelve hours. It may have been six hours, but I dont think that you can say as the emergency room physician did that he would have mandatorily had to die in two to four hours.
(R. at 878-79.)
This testimony certainly qualifies as evidence of probative value from which a reasonable jury could conclude that Hulfachor was guilty of murder. See footnote
We review the trial court's admission of photographic evidence for an abuse of
Byers v. State, 709 N.E.2d 1024 (Ind. 1999). Photographs that
depict a victim's injuries are generally relevant and thus admissible. Harrison v.
State, 699 N.E.2d 645 (Ind. 1998). The relevancy requirement also can be
met if the photographs demonstrate or illustrate a witness' testimony. Id.
On the other hand, relevant evidence "may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice." Ind. Evidence Rule 403.
That photographs depict gory, revolting, or inflammatory details of the crime is not
sufficient basis for reversal, unless they are without relevance to any material issue.
Perigo v. State, 541 N.E.2d 936, 939 (Ind. 1989). Proving the
material issues cannot be done sometimes without presenting disagreeable evidence. Revolting crimes
generate revolting evidence. Id. at 939-40. While the challenged photographs are
indeed disagreeable, they show the nature and severity of Glasers injuries, and they
illustrate the deposition testimony of the emergency doctor.
Hulfachor also claims that the photographs are cumulative of each other, (Appellants Br.
at 13), because they demonstrate the same thing, (R. at 898). The
photographs are a little different, however, each showing Glasers wounds at different angles,
focusing on different parts of the injuries. It is possible that the
State could have done the job with just one or two. Using
three is not enough to warrant a new trial.
It is true that Hulfachor cannot be convicted of both murder and felony
murder when both arise from a single homicide. The Court of Appeals
opinion in Fuller v. State, 639 N.E.2d 344 (Ind. Ct. App. 1994), explains
why felony murder was the right conviction to vacate:
[W]hen a defendant stands convicted of murder, felony murder, and an additional [underlying] felony, the felony murder should be vacated and the murder conviction should remain. To hold otherwise would permit a person who commits an intentional murder while committing another felony to use the felony murder rule to escape punishment for the underlying felony. This simply cannot be.
Id. at 347-48. The trial court properly vacated Hulfachors felony murder conviction.
B. Felony Murder and Robbery. Hulfachor also asserts that her convictions
for robbery and felony murder violate double jeopardy principles because the robbery is
the underlying felony supporting the felony murder conviction. This claim illustrates the
point of Fuller; Hulfachor merely seeks to evade punishment on the underlying felony,
robbery. Because [the trial court] already vacated [Hulfachor]s felony murder conviction on
other double jeopardy grounds, [however,] this claim is mooted. Gregory-Bey v. State,
669 N.E.2d 154, 157 (Ind. 1996), challenged on other grounds, Grinstead v. State,
684 N.E.2d 482, 485 (Ind. 1997).
C. Murder and Robbery as a Class A Felony. The jury convicted
Hulfachor of both murder and robbery as a class A felony. The
robbery was enhanced from a class C to a class A felony because
Glaser suffered serious bodily injury. (R. at 231.) At the sentencing
hearing, the trial court correctly reduced the robbery to a class C felony,
because both the murder conviction and the enhanced robbery conviction were based on
the same bodily injury. (R. at 1263-64); Hampton v. State, 719 N.E.2d
803, 808 (Ind. 1999).
The trial court did not err in its application of these double jeopardy
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.