ATTORNEY FOR APPELLANT
Thomas J. LaFountain
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
RICKY TOBAR )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No.71S00-9909-CR-481
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9903-CF-00144
ON DIRECT APPEAL
December 20, 2000
Ricky Tobar was convicted of the murders of Keith Canady, James Johnson, and
Clester Wallace, Jr. and sentenced to consecutive sentences of sixty-five, fifty-five, and forty-five
years, respectively, for a total of 165 years. In this direct appeal,
Ricky argues that: (1) the trial court erred in refusing to give a
jury instruction on the defense of duress; (2) the evidence was insufficient to
convict him; and (3) his sentence is manifestly unreasonable. We affirm the
Factual and Procedural Background
On March 23, 1999, Ricky was at his residence along with several family
members and acquaintances, including his cousin, William Tobar. Ricky operated a crack
business out of his home and William often acted as the security guard
in drug sales. At some point after noon, two men arrived to
purchase crack cocaine. Jovanna Harris, one of Rickys friends, stated that it
was her serve and proceeded to drive with one of the men to
an ATM to obtain cash for the sale. The other man, Keith
Canady, remained at Rickys home. [R. 529] Harris returned a short time later,
crying, and stated that the man had held a gun to her head
and taken her drugs and money.
In response to this news, William punched Canady in the face. Both
William and Ricky kicked Canady as he lay on the floor. William
then dragged Canady down to the basement, hog-tied him, beat him, and, later
that evening, suffocated him by gagging him and securing plastic bags around his
neck. William testified that Ricky wanted to shoot Canady, but that William
dissuaded him because he thought that a gunshot would be heard by the
neighbors. William also testified that Ricky was hitting [Canady] and stuff while
Canady was tied in the basement.
Johnson and Wallace arrived about 8:45 p.m. William overpowered Johnson, pistol-whipped him,
and tied his hands behind his back as he lay on the floor.
Johnson, who knew Ricky because he had dated Rickys mother, asked Ricky
to intervene. According to William, Ricky then forced Wallace to lie down
on the floor. As a result of Williams beating Johnson with the
gun, the bullets flew out of the gun. Ricky reloaded it at
Williams request. Ricky or William then shot Johnson once in the head
and Wallace in the back and chest. Both were killed. William
attempted to conceal the crimes by turning on the gas stove, extinguishing the
pilot lights, and removing the knobs after pouring kerosene over Canadys body and
setting it on fire.
Immediately thereafter, Ricky was observed by a neighbor leaving the house carrying a
shoebox and a garbage bag. Ricky convinced a friend to book him
a room at a motel. After two nights, he turned himself in
to authorities. Ricky and William were convicted of the murders of all
I. Jury Instruction
Ricky argues that the trial court abused its discretion by refusing his jury
instruction on the defense of duress. In reviewing a trial courts decision
to give or refuse tendered jury instructions, this Court considers: (1) whether the
instruction correctly states the law; (2) whether there is evidence in the record
to support the giving of the instruction; and (3) whether the substance of
the tendered instruction is covered by other instructions which are given. Cutter
v. State, 725 N.E.2d 401, 408 (Ind. 2000).
At trial, the trial court declined to give Rickys tendered jury instruction regarding
duress on the ground that there was no evidence of any imminent threat
to Ricky. Ricky urges that the trial court abused its discretion in
failing to consider that William was a large man and former boxer, that
Ricky watched as William beat Canady, and that Ricky knew William to have
used crack cocaine and be in the throes of a crack-induced rage.
Duress is proper as a defense if the person who engaged in the
prohibited conduct was compelled to do so by threat of imminent serious bodily
injury. Ind. Code § 35-41-3-8 (1998). Although there was plenty of
evidence attesting to Williams intimidating size, Ricky never expressed any fear of William
to authorities, and there is nothing in the record suggesting Ricky feared his
cousin, much less felt threatened by serious bodily injury. Indeed, by his
own account Ricky left his home during the course of the crimes to
obtain liquor and voluntarily returned. Thus, the trial court did not abuse
its discretion in concluding that there was no evidence of duress in the
record to support the giving of the instruction.
II. Sufficiency of the Evidence
Ricky argues that the evidence was insufficient to convict him of the murders
of Canady, Johnson, and Wallace, even under an accomplice liability theory. He
urges that the jury could not have reasonably inferred from the evidence presented
at trial that he had anything to do with these murders other than
being in the wrong place at the wrong time.
Our standard for reviewing sufficiency of the evidence claims is well settled.
We do not reweigh the evidence or judge the credibility of the witnesses,
Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999), and it lies within
the jurys exclusive province to weigh conflicting evidence, Robinson v. State, 699 N.E.2d
1146, 1148 (Ind. 1998). We will affirm the trial court if the
probative evidence and reasonable inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998).
In order to be found guilty of murder based on accomplice liability, a
jury must find beyond a reasonable doubt that a defendant knowingly or intentionally
aid[ed], induce[d], or cause[d] another person to commit an offense. Ind. Code
§ 35-41-2-4 (1998). A defendants mere presence at the crime scene, or
lack of opposition to a crime, standing alone, is insufficient to establish accomplice
liability. Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981). These
factors, however, may be considered in conjunction with a defendants course of conduct
before, during, and after the crime, and a defendants companionship with the one
who commits the crime. Id.
Here, the jury was instructed on accomplice liability and the evidence was sufficient
to convict Ricky on that basis. William acted as the security guard
at Rickys crackhouse. There was also at least some evidence of Rickys
direct involvement in the killings. One witness testified that both Ricky and
William kicked Canady, and William testified that Ricky beat Canady in the basement.
According to testimony at trial, six or more hours elapsed between the
time Canady arrived at Rickys home and Canadys body was set on fire
in an attempt to cover up the crimes. Canady was apparently alive
for a large portion of that time, but unlike all the other occupants
of the house, Ricky never left the scene except to go to the
liquor store. Although Williams testimony conflicted with his initial statement to authorities,
the jury was entitled to credit Williams account that he and Ricky discussed
how they would kill Canady, and that Ricky hit Canady and inquired, Man,
he aint dead yet? The jury could infer that William was acting
under Rickys instructions. If so, the ultimate objective of killing all three
was induced or caused by Ricky. William testified that it was Ricky
who shot Johnson and Wallace. This testimony also conflicted with Williams initial
statement to authorities, but even if it is discredited, by Rickys own admission,
he reloaded the gun after the bullets flew out of it, and told
Johnson, whom he had known since he was thirteen, that there was nothing
he could do to help him and that Johnson had gotten himself into
the mess with William. Both William and another witness testified that the
gun belonged Ricky. Finally, after William attempted to blow up the house,
Ricky was seen fleeing the scene with some clothing and personal belongings from
his house. He then convinced a friend to find a motel room
for him and remained there until he discovered that friends and relatives had
spoken to authorities, at which time he turned himself in.
The question of whose testimony to believe was a difficult one to
resolve in this case, but that is the role of the jury, and
we are not free to supplant the jurys judgment with our own.
William initially took responsibility for all three murders, then changed his story and
admitted to murdering Canady, but not Johnson and Wallace. Ricky first denied
any involvement in or knowledge of the killings, and then later admitted to
being present, but little more. In his second statement, Ricky admitted reloading
the gun for William, but simultaneously alleged that he had left before anyone
was killed, and believed [William] was going to whoop [them] and let them
go. In short, the jury likely found it difficult to believe both
Rickys and Williams testimony. Thus, the jury had the unenviable task of
resolving conflicting versions of the truth. Here, the evidence was sufficient for
the jury to conclude that Ricky, even assuming he was not the killer
of any of the three, was guilty beyond a reasonable doubt of aiding
the murders by kicking Canady and loading the gun to shoot the other
two, or ordering or causing the murders by directing William to kill the
III. Manifestly Unreasonable Sentence
Ricky contends that his sentence is manifestly unreasonable in view of his limited
involvement in the murders, his youth, and lack of criminal history. Although
this Court has the constitutional authority to review and revise sentences, Ind. Const.
art. VII, § 4, it will do so only when the sentence is
manifestly unreasonable in light of the nature of the offense and the character
of the offender. Ind. Appellate Rule 17(B). This Courts review under
Rule 17(B) is very deferential to the trial court: [T]he issue is
not whether in our judgment the sentence is unreasonable, but whether it is
clearly, plainly, and obviously so. Bunch v. State, 697 N.E.2d 1255, 1258
(Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563, 568-69 (Ind. 1997)).
This standard is the same irrespective of whether the defendant is an accomplice
or a principal. Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997).
As a general rule, multiple killings warrant the imposition of consecutive sentences.
Noojin v. State, 730 N.E.2d 672, 679 (Ind. 2000).
Here, the trial court imposed consecutive sentences of sixty-five, fifty-five, and forty-five years
for the murders of Canady, Johnson, and Wallace, respectively. The trial court
imposed these sentences based on the nature of the offense. It elevated
Rickys conviction for Canadys murder based upon the beating and torture Canady endured
and the subsequent burning of his body, and imposed the presumptive with regard
to Johnson, noting that Johnson was also subjected to a beating before his
death. As for the character of the offender, the trial court noted
Rickys youthful age at the time of the offense (nineteen) as well as
his limited past involvement with the law, which consisted of a warning to
Ricky when he was nine years old. However, the trial court also
noted that the murders came about as a direct result of Rickys drug
We are unable to say that Rickys sentence is manifestly unreasonable considering the
nature of the offense and the character of the offender. Even if
his participation was limited, Ricky aided a triple homicide, including a brutal torture.
And although it is true that Rickys criminal history was negligible, as
the trial court noted, this does not help make the case that Ricky
was a law-abiding citizen in view of his trade as a drug dealer.
With regard to Rickys limited involvement in the murders, this Court is
not compelled to find a sentence manifestly unreasonable simply because the weight of
the evidence suggests that the defendants role was that of an accomplice and
not a principal. Irrespective of whether Ricky actually pulled the trigger, he
reloaded the gun. When Johnson pleaded with Ricky for help after being
beaten and tied up, Ricky told him that he had to settle his
own score with William and that there was nothing he could do.
Moreover, if Williams account is credited, Ricky impliedly directed the deaths by asking,
Aint he dead yet? In view of these factors, the imposition of
consecutive sentences and an enhanced sentence is not clearly, plainly, and obviously unreasonable.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs except as to sentence.
As the State notes, the Indiana Code also explicitly forbids the
use of duress as a defense to an offense against the person, including
murder. Ind. Code § 35-41-3-8(b) (1998). Ricky does not address this