Cary v. State

• Decision Date: 15 October 1984
• Docket Number: No. 1182S409,1182S409
• Parties: Steve P. CARY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 459

469 N.E.2d 459

Steve P. CARY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1182S409.

Supreme Court of Indiana.

Oct. 15, 1984.

Ralph Ogden, J. William DuMond, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Armed Robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979) and Kidnapping, a class A felony, Ind.Code Sec. 35-42-3-2(b) (Burns 1979). He was sentenced to concurrent terms of twenty (20) years imprisonment for armed robbery and fifty (50) years imprisonment for kidnapping.

His direct appeal presents nine (9) issues for our review, which we have consolidated into four (4) issues as follows:

(1) Whether the evidence is sufficient to sustain the convictions;

(2) Whether the trial court erred in permitting a witness to testify that the Defendant had raped her, inasmuch as he was not charged with that crime;

(3) Whether the trial court erred in failing to admonish the jury to disregard an allegedly improper question by the prosecutor to one of the witnesses;

(4) Whether the trial court erred when it enhanced the Defendant's sentences.

The record disclosed that on February 22, 1981, S.W. could not get her 1977 "greenish, gold" two-door Datsun F-10 automobile to start when she tried to leave a food store in South Chicago Heights, Illinois. Two men, one of whom she later identified as the Defendant and the other who was identified as Russell Wright, offered assistance and then asked for a ride. She agreed to drop them off; Defendant got into the back seat of the automobile, and Wright got into the front seat.

Wright subsequently grabbed the steering wheel of the automobile and said, "You're taking the day off." He told her that if she did not believe him she should look in the back seat. She did so and saw the Defendant pointing a double-barreled sawed-off shotgun at her. While the automobile was stopped at a traffic light, Wright made her move to the passenger seat, and he drove. While both men rummaged through her purse and took her money she begged them to let her go home to see her baby.

Subsequently, Defendant asked her if she had ever been raped and told her, "You will be." She was then forced to get into the back of the car, where the Defendant told her to remove her clothes and forced her to have sexual intercourse and then to perform felatio. The Defendant and Wright then exchanged places, and Wright raped her.

Subsequently, S.W. noticed that they were near Fish Lake, Indiana. Wright drove back and forth between a store and a gas station in Fish Lake and asked the Defendant, "Do you want to get this place or that one ... do you want to do it or do you want me to?" The Defendant responded that he didn't care, then he said, "I guess" I'll do it, but he did not get out of the automobile.

Wright then left the automobile with a paper bag and the gun. He entered the Fish Lake Market wearing a paper bag over his head with two slits cut out for his eyes. He pointed a sawed-off shotgun at one of the store owners, and she complied with his demand for money from the cash register. He took several hundred dollars, which was later recovered and returned to the owners. She then saw him run toward a green car and called to her husband, telling him that they had been robbed. Her husband followed the green car in his car and saw someone stick a sawed-off shotgun out of the passenger-side window of the car, which he was pursuing.

A high speed chase, with several police vehicles involved, ensued. Ultimately, the automobile driven by Wright struck Officer Swartzlander, who was standing by his squad car with his weapon drawn. S.W.'s automobile veered into a ditch, and the Defendant and Wright were arrested. Officer Swartzlander died at the scene.

ISSUE I

Defendant first argues that the evidence is insufficient to support either the robbery conviction or the kidnapping conviction. Our oft stated standard of review is as follows:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted).

Loyd v. State, (1980) 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Defendant argues that the evidence shows no active participation by the Defendant in either of the crimes and that Russell Wright was solely responsible for the criminal activity. "At best, it shows that he was a passive spectator who made no efforts to either assist or hinder Mr. Wright." (Brief of Defendant, p. 25). We do not agree with Defendant's characterization of the evidence.

With respect to the robbery charge, S.W. testified that Wright drove the car to Fish Lake and asked the Defendant if he wanted to "get this place or that one." The Defendant initially agreed to commit the robbery, but when he did not move to do so, Wright took the gun and did it himself. The Defendant waited in the automobile with S.W. When Wright returned to the vehicle he threw the money to Defendant and drove away. The owner of the grocery store who pursued the robber testified that during the chase he observed a shotgun sticking out of the passenger side of the automobile, and S.W. testified that Defendant occupied that seat during the pursuit.

With respect to the kidnapping charge, the evidence disclosed that after Wright had grabbed the steering wheel of S.W.'s automobile, he told her that she was taking the day off and that she should look in the back seat if she did not believe him. When she turned she saw Defendant pointing a shotgun at her. Subsequently, during S.W.'s entreaties to them to let her go, Defendant ordered her to keep quiet or he would "blow her head off."

Ind.Code Sec. 35-41-2-4 (Burns 1979) provides that one who knowingly or intentionally "aids, induces, or causes another person to commit an offense commits that offense." An accomplice is criminally liable for everything done by his confederates which was a probable and natural consequence of their common plan. Proctor v. State, (1979) 272 Ind. 357, 360, 397 N.E.2d 980, 983. The accessory need not act out each element of the offense with which he is charged; the acts of one accomplice are imputed to all others. Id.; Harris v. State, (1981) Ind., 425 N.E.2d 154, 156. Although mere presence at the scene of the crime, standing alone, is not sufficient to permit an inference that one participated in a crime, such presence may be considered in conjunction with other evidence as one of The evidence here shows that Defendant and Wright acted in concert from the time they kidnapped S.W. until the time they were arrested. Defendant's role in the crimes was that of active participant, not mere bystander. The evidence is clearly sufficient to sustain both convictions.

the factors in the determination of guilt. Griffin v. State, (1980) Ind.App., 413 N.E.2d 293, 295. Other factors to be considered include companionship with one engaged in a crime and the course of conduct before and after the occurrence of the offense. Id.; Harris v. State, 425 N.E.2d at 156.

ISSUE II

Prior to trial, Defendant filed a motion in limine to preclude any testimony that Defendant or Wright had engaged in any sexual acts with S.W. or that S.W. had been forced to remove her clothes. The court granted the motion "with the exception of opening statements by counsel." During the testimony of S.W., however, in a nonresponsive answer to a question posed by the prosecutor, she blurted out that Defendant had raped her. Defense counsel objected, moved to strike her statement, and moved for a mistrial. The court heard arguments by the parties outside the presence of the jury and then ruled: "The court's ruling is that any acts, statements, occurrences and circumstances which occurred in this automobile ride from Chicago to Fish Lake is admissible." He overruled Defendant's objection and denied the mistrial motion. Defendant assigns...