James A. Joven
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
November 16, 2001
While Casiano and Johnson were kissing on the couch, Defendant came from behind
and hit Johnson on the head with a black, cast iron, skillet.
Casiano ran to a back bedroom where she saw Luna rummaging through the
drawers. When she came out of the bedroom, Casiano saw that the
skillet had broken. Defendant asked her to get another skillet, which Casiano
did. Defendant continued hitting Johnson with the second skillet.
As Defendant beat Johnson, Casiano and Luna loaded stereo equipment, telephones, and any thing else they could get their hands on into a truck. After Casiano and Luna had loaded their truck, Casiano returned to the house to find Defendant hollering at her, Get some knives. Casiano retrieved some old butcher knives from the kitchen and Defendant began stabbing Johnson with them.
Defendant, Casiano, and Luna then drove to the home of Chavis Taylor, Defendants
boyfriend. The stereo equipment was taken into his apartment and pawned the
next day by Taylors cousin. (R. 513.) Taylor kept one piece
of stereo equipment and a VCR.
The next day, Defendant and Taylor returned to Johnsons home. Taylor followed
Defendant into the house through a side door. Inside the house he
saw the body of a black guy. Taylor left the house for
the car. Approximately three minutes later, Vasquez came out of the house
with some liquor bottles.
Defendant was convicted at trial of Murder,
See footnote Felony Murder,See footnote Robbery, a Class A
See footnote Residential Entry,See footnote and Theft.See footnote
Defendant was found guilty of robbery, a Class A felony. See Ind.
Code § 35-42-5-1 (1998) (A person who knowingly or intentionally takes property from
another person or from the presence of another person: (1) by using or
threatening the use of force on any person; or (2) by putting any
person in fear; commits robbery
a Class A felony if it results
in serious bodily injury to any person other than a defendant.). This
can be proven through the testimony of an accomplice. See Griffin v.
State, 501 N.E.2d 1077, 1079 (Ind. 1986); Sumner v. State, 453 N.E.2d 203,
205 (Ind. 1983).
In this case, Defendant acknowledged that she, Casiano, and Luna sought to steal
items such as Johnsons VCR. Casiano testified that, to this end, Defendant
and Luna, tried to get Johnson drunk so that they could rob him.
Defendant admitted to approaching Johnson from behind and hitting him on the
back of his head with a black, iron, skillet while Casiano was kissing
him. Defendant also stabbed Johnson in the stomach. Further, Defendant directed
Casiano and Luna to take various items from the victims house, and she
testified that she noticed Johnsons coins had made her purse heavy when she
picked it up to leave.
In Sumner v. State, 453 N.E.2d 203 (Ind. 1983), this court found sufficient
evidence to support an armed robbery conviction, absent testimony that a specific item
was taken. In that case, testimony placed the defendant at the scene
of the crime and there was testimony by a co-defendant that the [d]efendant
participated in the commission of the crime, shared in the spoils of the
crime, and induced another person to commit the shooting. Sumner, 453 N.E.2d
As in Sumner, testimony in this case placed Defendant at the scene of
the crime. Testimony also established that Defendant participated in the planning and
commission of the crime, sought to steal items from Johnson, and directed others
to take items from the house. Defendants testimony further indicates that Johnsons
coins were put in her purse. From this evidence, the jury could
properly infer that Defendant took property from Johnsons home.
Even without explicit evidence that Defendant actually took items from the house, she
is still liable for robbery as an accomplice. The Indiana Code provides:
A person who knowingly or intentionally aids, induces, or causes another person
to commit an offense commits that offense, even if the other person: (1)
has not been prosecuted for the offense; (2) has not been
convicted of the offense; or (3) has been acquitted of the offense.
§ 35-41-2-4 (1998).
An accomplice can be held criminally liable for everything done by his confederates
which was a probable and natural consequence of their common plan.
In determining accomplice liability, the jury may infer participation 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.
Shane v. State, 716 N.E.2d 391, 396 (Ind. 1999) (citations omitted); Harris v.
State, 425 N.E.2d 154, 156 (Ind. 1981).
Casiano confessed to grabbing Johnsons stereo equipment and loading it onto the truck
as Defendant was stabbing Johnson in the stomach and yelling to make sure
we get everything out of here. (R. 770-71.) This is sufficient
evidence from which the jury could reasonably infer that beyond a reasonable doubt
Defendant told Casiano and Luna to take the stereo equipment as well as
the other items the group took, i.e., to establish accomplice liability.
Residential entry occurs when [a] person
knowingly or intentionally breaks and enters
the dwelling of another person. Ind. Code § 35-43-2-1.5 (1998). The
use of the slightest force in pushing aside a door in order to
enter does constitute a breaking through the doorway. Passwater v. State, 229
N.E.2d 718, 721 (Ind. 1967).
Taylor testified that on the day after Defendant killed Johnson, Taylor drove Defendant to a house on Webster Street. Taylor then followed Defendant as she opened the unlocked side door and entered the house. In the house, Taylor saw a dead black guy. In a videotaped confession, Defendant corroborated this account and established the house as Johnsons.
This was sufficient evidence to sustain Defendants conviction of residential entry.
A person who knowingly or intentionally exerts unauthorized control over property of another
person, with intent to deprive the other person of any part of its
value or use, commits theft. Ind. Code § 35-43-4-2(a) (1998).
In her videotaped confession, Defendant stated that she, Casiano, and Luna had gone
to Johnsons house because they did not have anything to drink and wanted
more. Taylor testified that on the day after the murder, when Defendant
visited Johnsons house, Defendant took two bottles of liquor from the house when
she left. Defendant admitted that she took a bottle of liquor and
a candy bowl on the day after the murder. From this evidence
a jury could reasonably infer that beyond a reasonable doubt the liquor Defendant
took was Johnsons. Accordingly, there was sufficient evidence to sustain the conviction
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance each sentence to reflect aggravating circumstances or
reduce the sentence to reflect mitigating circumstances.
When the trial court imposes a sentence other than the presumptive sentence, this
Court will examine the record to insure that the court explained its reasons
for selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678,
683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)
rehg denied). The trial courts statement of reasons must include the following
components: (1) identification of all significant aggravating and mitigating circumstances; (2) the specific
facts and reasons that lead the court to find the existence of each
such circumstance; and (3) an articulation demonstrating that the mitigating and aggravating circumstances
have been evaluated and balanced in determining the sentence. Mitchem v. State,
685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084,
1086 (Ind. 1996)).
Here, the court found three aggravating factors in its sentencing order: (1) Defendants prior criminal record; (2) the nature and circumstance of the crime; and (3) Defendants need for correctional treatment best provided by a commitment to the Department of Corrections. It found two mitigating factors: (1) Defendants mental state and (2) Defendants remorse. After weighing the aggravating and mitigating factors, the trial court determined that the aggravating factors outweighed the mitigating factors.
Defendant only challenges the first two aggravating factors. Defendant does not challenge,
and we therefore do not review, the third aggravating factor.
With respect to the first factor, the court noted Defendants prior criminal record, consisting of a 1996 conviction for criminal conversion, a 1997 conviction for criminal conversion, suspended on condition of treatment, and a 1997 conviction for criminal trespass, suspended on condition of community service. The trial court also found that the escalation of violence gave insight into Defendants character.
Relying on Wooley v. State, 716 N.E.2d 919 (Ind. 1999) rehg denied, Defendant
argues that her three misdemeanor criminal convictions, when considered in the context of
a murder sentence, are not so significant that they justify an additional 10
years as an aggravating circumstance. (Appellants Brief at 13.) Defendants reliance
on Wooley is misplaced. In Wooley, this court held that a criminal
history comprised of one prior conviction for driving while intoxicated is not
a significant aggravator in the context of determining sentence for a murder conviction.
See Wooley v. State, 716 N.E.2d at 929. In dicta, we
further noted, significance varies based on the gravity, nature and number of prior
offenses as they relate to the current offense. Id. at 929 n.4.
This case is distinguishable from Wooley for three reasons. First, Defendants criminal
history consisted of three misdemeanor convictions, as opposed to just one in Wooley.
It is not unreasonable for a trial court to take into account
the frequency of Defendants criminal activity.
Second, the trial court evaluated the import of the three prior convictions, determining
that the escalation of violence, from disregard for property rights to disregard for
life, gave insight into Defendants character. This is not an improper consideration.
See Ind. Code § 35-38-1-7.1(a)(3)(B) (1998) (In determining what sentence to impose
for a crime, the court shall consider the persons character.).
Finally, in Wooley, Defendants murder conviction was not determined to be significantly related
to his single conviction for driving while intoxicated because the murder was not
alcohol related. However, a criminal history comprised of a prior conviction for
operating a vehicle while intoxicated may rise to the level of a significant
aggravator at a sentencing hearing for a subsequent alcohol-related offense. 716 N.E.2d
at 929 n.4.
In this case, Defendants act of murder was a direct result of her
plan to rob Johnson. Defendants two prior convictions for conversion are relevant
in the context of a murder committed for the purpose of robbery as
both crimes involve the taking of property. That Defendant used deadly force
to effectuate the taking of property does not preclude the trial court from
considering Defendants prior conversion convictions.
With respect to the second aggravating circumstance, the court reasoned that the nature
and circumstances of the crime were particularly brutal. Indiana Code § 35-38-1-7.1(a)(2)
directs a trial court to consider the nature and circumstances of the crime
committed when determining the imposition of sentence. This aggravator is generally thought
to be associated with particularly heinous facts or situations. Smith v. State,
675 N.E.2d 693, 698 (Ind. 1996) (upholding as a proper aggravating circumstance that
the defendant planned murder two or three days ahead of time).
Defendant makes two arguments why the trial court improperly applied this aggravator.
First, that murders, by their very nature, are brutal crimes. (Appellants Br.
at 13.) Second, that the court improperly considered the fact that Defendant
returned to the house and removed some liquor, in that she had already
been convicted and sentenced for these crimes. (Appellants Br. at 13.)
Although elements of a crime cannot be used to enhance a sentence, particularized
circumstances of a criminal act may constitute separate aggravating circumstances. Morgan,
675 N.E.2d 1067, 1073 (1996) (citing Ector v. State, 639 N.E.2d 1014,
1015 (Ind. 1994)). To enhance a sentence in this manner, the trial
court must detail why the defendant deserves an enhanced sentence under the particular
circumstances. Smith v. State, 675 N.E.2d at 698 (citing Wethington v. State,
560 N.E.2d 496, 509 (Ind. 1990)). Here, the trial court noted:
[D]efendant was invited into the victims home and was trusted by the victim.
The Defendant repeatedly hit the victim with a cast iron skillet with
enough force to shatter [the skillet] into several pieces. Defendant then stabbed
the victim multiple times after he had been rendered helpless and unconscious by
the beating. He was left to die while the defendant and her
companions rifled through his belongings, taking property, wiping their fingerprints off anything they
had touched, and then returning to the victims home the following day to
take more property.
The trial courts decision that the nature and circumstances of the crime were
particularly brutal was within its discretion.
In the present case, the trial court enhanced Defendant's presumptive sentence based upon
valid aggravators. The court specifically stated the reasons why it found each
of the aggravating circumstances, and the court balanced the aggravating and mitigating circumstances
in reaching its sentencing decision. In light of the nature of the
offense and the evidence, the Appellant's enhanced sentence was not improper.