993 N.E.2d 1199 (Ind.App. 2013), 74A04-1209-CR-472, Kleaving v. State
| Judge | VAIDIK, J., and PYLE, J., concur. |
| Citation | 993 N.E.2d 1199 |
| Parties | Jane KLEAVING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Docket Number | 74A04-1209-CR-472. |
| Court | Court of Appeals of Indiana |
| Date | 11 September 2013 |
Page 1199
Appeal from the Spencer Circuit Court; The Honorable Jon A. Dartt, Judge; Cause No. 74C01-1111-FA-245.
MEMORANDUM DECISION— NOT FOR PUBLICATION
Following a jury trial, Jane Kleaving (" Kleaving" ) appeals her conviction for conspiracy to commit murder as a Class A felony,1 raising the following three restated issues:
I. Whether the State presented sufficient evidence to support the conviction;
II. Whether the trial court erred when it excluded Kleaving's proffered evidence that she suffered from diminished mental capacity; and
III. Whether Kleaving's thirty-year sentence was proper.
We affirm.
FACTS AND PROCEDURAL HISTORY
Kleaving and her husband, Kevin, are the parents of Laura, who has a daughter, A.K., born in January 2006. A.K.'s father is Kyle McPherson (" McPherson" ). Laura, McPherson, and A.K. lived with Kleaving and Kevin at their home in Tell City, Indiana, for several years, starting in late 2004 or early 2005. McPherson's job as a boilermaker required him to travel and be gone for weeks at a time, and Laura worked and took college courses; while A.K.'s parents were gone, Kleaving was her primary caregiver.
The facts most favorable to the jury's verdict show that in April 2006, a few months after A.K.'s birth, and without McPherson's knowledge, Kleaving and Kevin filed for a temporary guardianship of A.K, which may have been intended for the purpose of acquiring health insurance for the child.2 In any event, relationships deteriorated, and in June 2008, McPherson permanently moved out of Kleaving's residence. McPherson learned about the guardianship proceedings in late 2008 or early 2009. In December 2008, McPherson filed a paternity action to establish his fatherhood of A.K. and establish visitation with her. Extensive litigation ensued, including various allegations that McPherson abused A.K. Multiple allegations of abuse were lodged against McPherson, but they were not substantiated. The trial court ordered that McPherson have supervised visitation with A.K., and McPherson sought to modify the order to gain joint custody.
Kleaving continued to harbor the belief and concern that McPherson was abusive to A.K., and she became increasingly protective and possessive of A.K. In early 2010, Kleaving obtained a psychic reading from a paranormal consultant and life coach named Rich Hayes (" Hayes" ). Hayes told Kleaving he was concerned about A.K. and her safety and, based on his future predictions, if things did not change, A.K. would kill herself before the end of 2012. In an effort to help Kleaving, Hayes introduced Kleaving to Kathy Griepenstroh (" Griepenstroh" ), who was a massage therapist and reflexologist, but who also conducted private investigative work, often at no charge. Kleaving and Griepenstroh became close friends. Kleaving told Griepenstroh that McPherson was abusing A.K., and Griepenstroh agreed to help Kleaving investigate the matter. Griepenstroh began following and videotaping McPherson during his visits with A.K. Kleaving began to convince Griepenstroh that McPherson was abusing A.K., and Griepenstroh increased her involvement on Kleaving's behalf by contacting child protective services, law enforcement, television stations, child advocacy groups, the Governors' offices of Indiana and Kentucky, and Michelle Obama. Kleaving talked with Griepenstroh about the abuse " [a]ll the time" in front of A.K., as well as her dislike for McPherson. Tr. at 1002. At some point, Kleaving told Griepenstroh that she wished McPherson would die.
Eventually, in September 2010, Kleaving asked Griepenstroh to kill McPherson for her. " You love [A.K.], kill [McPherson] for her ." Id. at 1003, 1006. Griepenstroh refused and advised Kleaving that it was " so wrong," but Kleaving stated that she did not care and would talk to other people to accomplish it. Id. at 1003.
At some point, Kleaving contacted a long-time family acquaintance, Jeff Schneider (" Schneider" ), and told him she believed McPherson was abusing A.K. and that a psychic had told her that McPherson was going to make A.K. disappear. Kleaving indicated she would personally make McPherson disappear if she could get away with it. Although he made reference to the idea that she could stage a hunting accident, Schneider encouraged Kleaving to let the court system handle the situation.
Around the same time frame, Kleaving asked Griepenstroh to find a hit man for her. Griepenstroh agreed but privately intended, at this point, to contact the authorities. In order to have cell phones not associated with her name, in September 2011, Kleaving contacted her cousin, who lived in Florida, and asked her to purchase and mail a GoPhone to Griepenstroh, which the cousin did.
On September 13, 2011, Griepenstroh contacted authorities, who upon investigation, determined that Kleaving posed a threat to McPherson. The Jasper Police Department contacted Sergeant Steven Sands (" Sergeant Sands" ) of the Indiana State Police for assistance with the murder-for-hire investigation. Griepenstroh provided the Florida GoPhone to Sergeant Sands, who it was decided would pose as a contract killer, and Griepenstroh provided the authorities with Kleaving's TracPhone number, which had a Texas area code. On Tuesday November 8, Sergeant Sands, using the GoPhone and identifying himself with the fictitious name of " Vic," contacted Kleaving on her TracPhone. Tr. at 529. Kleaving confirmed she was expecting his call. Sergeant Sands suggested that they meet, and Kleaving replied, " where and when?" Id. at 601. Sergeant Sands suggested that they meet two days later, on Thursday, at the Troy Boat Ramp, but Kleaving said that Thursday was not a good day, so Sergeant Sands suggested that they meet on Friday (November 11). He told Kleaving he would need a picture of McPherson and an address for him. When Sergeant Sands suggested that they meet at 9:00 a.m. at the boat ramp, Kleaving asked Sands if he could wait until after the paternity court ruling regarding custody and visitation, and he told Kleaving it was her decision and, in fact, noted she might not have to go through with it if the judge made some sort of ruling. Id. at 603; State's Ex. 12 at 11. Kleaving reiterated that she wanted " him" to go away, never ever come home and never be found. State's Ex. 12 at 12. Later that night, Kleaving talked to Griepenstroh, telling her that she had arranged to meet the hit man on Friday and pay him $500, but she had changed her mind. Griepenstroh told Kleaving she was pleased to hear that Kleaving had changed her mind.
However, on the morning of Friday November 11, Kleaving called Sergeant Sands. She requested to change their meeting location from Troy Boat Ramp to Lincoln Ferry Park at 11:00 a.m. because she was concerned that Kevin was working in the area of the boat ramp. She gave Sergeant Sands directions to Lincoln Ferry Park. At 11:00 a.m. Sergeant Sands proceeded to Lincoln Ferry Park. Kleaving was already there and waiting in her vehicle when he arrived. Sergeant Sands pulled his vehicle next to hers, and he invited Kleaving to sit in his vehicle, which she did. Sergeant Sands had three recording devices in operation. Kleaving handed Sergeant Sands a sealed envelope containing $500 in cash, a photograph of McPherson, and computer printout of information about McPherson. She advised Sergeant Sands where McPherson was working, and she described the vehicle he drove.
Kleaving told Sergeant Sands, " I don't have a lot of money because I've spent it all on investigators," to which Sergeant Sands responded, " [I]t's going to cost you 10, plus the expense money." State's Ex. 13 at 9. Kleaving asked if he could come down in price or even do it for free, and he replied he would not. Kleaving offered her Yukon vehicle as $3,000 partial payment, which was acceptable to Sergeant Sands. She then retrieved the Yukon title and gave it to Sergeant Sands. During the conversation, Sergeant Sands suggested that, to obtain the remaining $6,500, they could stage a burglary at Kleaving's residence, where he would steal items the value of which he would apply toward the remaining money owed. Kleaving could later seek insurance money to cover the theft. Kleaving agreed and stated she would contact him with a date when she was certain no one would be home. She also indicated she would unlock the gun safe in the basement for him so that its contents could easily be accessed.
At one point, Kleaving expressed her thoughts that perhaps they should wait to learn the court's ruling regarding custody and visitation before taking further steps; Sergeant Sands responded that the decision if and how to proceed was hers, but noted he could not wait a month or else it would cost her more since he would need to travel back to Texas and then return to Indiana. Kleaving did not end the meeting or further indicate her desire to terminate the plan. Rather, Kleaving talked at length about her belief that McPherson had abused A.K., that the psychic had said A.K. would commit suicide in the year 2012, and that she was convinced McPherson would eventually harm or kill A.K. While Kleaving stated she did not want to know the details of how McPherson was killed, and just wanted him to go away and never be seen again, she told Sergeant Sands to cut off McPherson's penis and " stick it up his ass" and suggested that McPherson's body could be dumped at the Addison Dam. Id. at 6, 23-26, 30. Their meeting concluded with Sergeant Sands advising Kleaving he would be...
To continue reading
Request your trial