Hansford v. State

• Decision Date: 01 April 1986
• Docket Number: No. 384S102,384S102
• Citation: 490 N.E.2d 1083
• Parties: Darrell HANSFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1083

490 N.E.2d 1083

Darrell HANSFORD, Appellant, v. STATE of Indiana, Appellee.

No. 384S102.

Supreme Court of Indiana.

April 1, 1986.

Patrick E. Chavis, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kenneth P. Williams, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

This is a direct appeal from convictions for burglary, a class A felony; robbery, a class A felony; and two counts of confinement, class B felonies. Appellant was sentenced to concurrent terms of imprisonment of thirty years for the burglary and robbery convictions and two consecutive terms of imprisonment of ten years for the confinement convictions.

Hansford has raised nine issues:

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

(2) Whether a letter written by his co-defendant was erroneously admitted into evidence;

(3) Whether the trial court erred by admitting testimony and a letter which evidenced appellant's escape from jail;

(4) Whether a police officer's testimony about defendant's oral confession was properly admitted;

(5) Whether the trial court erroneously prohibited defense counsel from cross-examining two State witnesses about their prior convictions;

(6) Whether the trial court erroneously excluded several exhibits offered by appellant;

(7) Whether the trial court erred by refusing appellant's tendered instructions;

(8) Whether the imposition of presumptive sentences for the burglary and robbery convictions was excessive and manifestly unreasonable, and

(9) Whether a trial court may impose consecutive sentences when it specifically states that it does not find any aggravating circumstances.

These are the facts which tend to support the trial court's judgment. On March 24, 1980, Mr. and Mrs. Cass, both in their seventies, had retired to bed in their separate bedrooms. Two men who wore ski masks kicked open Mrs. Cass's bedroom door and demanded, rather specifically, that she give them her "money, jewelry, diamonds, and pearls." When she stated that she did not have any pearls, one man responded, "Oh, yes, you do. I know you do." Mrs. Cass was lying in bed. One man forcibly turned her onto her stomach, placed his knee on the small of her back, and tied her hands behind her. She sustained three broken ribs.

Mrs. Cass kept cowbells attached to her bedroom door so she would know if anyone opened it. Mr. Cass was awakened by the clanging of these cowbells. One of the men entered Mr. Cass's bedroom and told him not to move or he would shoot. Mr. Cass struggled with the man, who then hit Mr. Cass in the head with a hard object, causing a laceration. The man then bound Mr. Cass' hands and feet and placed a sack over his head. At one point Mr. Cass managed free his hands; however, the man returned and retied them. Cass lay bound on his bed for two and one-half hours. After the men left, Mrs. Cass freed herself and then untied her husband.

Most of the Casses' house had been ransacked. Drawers were open and articles were strewn on the floor. The Casses determined that the property which had been stolen included the wife's antiques, their car, a coin collection, her mink stole, a bracelet-watch, sterling silver plates, an urn and several guns. A total of $150,000 to $250,000 worth of personal property was stolen; only $5,000 to $10,000 worth of this property was recovered by the police and returned.

Co-defendant Kenneth Gibbens had previously worked for the Casses as a housekeeper. While Gibbens was no longer employed by them on the day of the robbery, he had access to the entire house when he worked for them. The place where Mr. Cass kept his box of sterling silver plates would have only been known by someone familiar with the house. One man, who paced back and forth in Mrs. Cass's bedroom, had a skip which she recognized as being very similar to that of Gibbens. When the man finished tying her hands, he reached underneath her pillow and removed her gun. The only persons who knew she kept a gun underneath her pillow were her family and Gibbens.

Michael Ridenour, a friend of appellant, testified that on March 25th, Hansford and Gibbens moved some articles into Ed Haynes' apartment. They claimed that these articles belonged to Gibbens' mother. Ridenour went to Haynes' apartment two days later and saw a mink stole (State exhibit 32), a bracelet-watch (State exhibit 31), and an urn (State exhibit 33) in Haynes' closet. Mrs. Cass identified these same exhibits as items which had been stolen on March 20th and returned to her by the police.

Gibbens was arrested and charged with these crimes on June 5, 1980. After attempting to post bond for Gibbens, Hansford admitted to his friends that he had participated in the crimes. Hansford told Edd Waldo that some of the property which had been taken during the robbery was being stored at a bar which Waldo owned. At the trial, Waldo identified several guns, a sword, and a lamp as some of the items which had been stored at his bar. On June 7th, Hansford expressed his concern to Ridenour that he might also be arrested and related some of the details of the robbery. Hansford also explained to Waldo that the butt of one of the guns cracked when he hit Mr. Cass on his head because he was strong and kept getting up. Hansford told Waldo that they wore ski masks when they robbed the Casses.

On June 24th Hansford again told Ridenour that he was concerned about his potential arrest and that he might leave town. Hansford left the state shortly thereafter. When defendant telephoned later, Ridenour informed him that the police had a warrant for his arrest. Hansford was apprehended in California by an FBI agent who acted under a federal warrant for unlawful flight to avoid prosecution. While incarcerated in the Marion County jail, Hansford escaped and was later apprehended again at a friend's apartment.

Appellant counsel has waived the first six issues presented in his Motion to Correct Errors and listed below. Our review of the case indicates that there is every reason to do so.

I. Sufficiency of the Evidence

Appellant has argued that the evidence is not sufficient to sustain his convictions for the confinement of Mr. and Mrs. Cass.

When a challenge to the sufficiency of the evidence is raised by an appellant, this Court does not weigh the evidence or judge the credibility of the witnesses. Rather, we review only that evidence most favorable to the State and any reasonable inferences which may be drawn therefrom. If there is substantial evidence of probative value to support each element of the offense beyond a reasonable doubt, then the judgment must be affirmed. Wooden v. State (1985), Ind., 486 N.E.2d 441.

Hansford's argument is without merit. The evidence recited above clearly shows that both victims were confined without their consent. Ind.Code Sec. 35-42-3-3 (Burns 1985). Binding the Casses to their bed obviously constitutes a substantial interference with their liberty. Ind.Code Sec. 35-42-3-1 (Burns 1985).

Whether the evidence of injury was sufficient to sustain both class A felonies is a more substantial question. Hansford was convicted of burglary, a class A felony, and robbery, a class A felony. The offenses of burglary and robbery may be enhanced to a class A felony when they result "in either bodily injury or serious bodily injury to any person." Ind.Code Sec. 35-43-2-1 (Burns 1979); Ind.Code Sec. 35-42-5-1 (Burns 1979).

The burglary information alleged that Hansford "did break and enter the building or structure and dwelling of [the Casses] ... with intent to commit the felony of theft ... and said offense resulted in bodily injury to W. Oliver Cass and Sue E. Cass, to-wit: A laceration to the head of W. Oliver Cass and the Breaking of Three of Sue E. Cass's ribs ..." The robbery information alleged that Hansford "did knowingly take from the person or presence of the Casses property, to wit: ... by putting [the Casses] in fear or by using or threatening the use of force ... which resulted in bodily injury to [the Casses], to wit: a laceration to the head of W. Oliver Cass and the breaking of three of Sue E. Cass's ribs ..."

Both the burglary and the robbery charges were enhanced to class A felonies based upon these injuries to the Casses. The imposition of two sentences for the same injurious consequences which were sustained by the same victim and inflicted by the defendant's singular act violatives both federal and state double jeopardy prohibitions. Bevill v. State (1985), Ind., 472 N.E.2d 1247 (stabbing of a victim twenty-seven times found to be an insufficient basis to sustain both the attempted murder and the bodily injury element of the class A burglary); Malott v. State (1985), Ind., 485 N.E.2d 879 (a defendant cannot be sentenced for both attempted murder and class A burglary when the substantive act for the attempted murder and the injury for the class A felony are both based upon the defendant's single act of shooting the victim); Flowers v. State (1985), Ind., 481 N.E.2d 100 (the multiple stabbing of one victim was an insufficient basis to support the substantive act for attempted murder and the class A felony status for burglary, attempted rape, and attempted robbery); Smith v. State (1985), Ind., 475 N.E.2d 27 (separate sentences for attempted murder and class A robbery were appropriate since there were "two separate onslaughts upon the [same] victim", DeBruler, J. concurring opinion, 475 N.E.2d at 31).

In this case, there were two victims and two separate injuries sustained as the result of two separate acts by the defendant. Moreover, the burglary and robbery statute in effect when the crimes were committed allowed the respective offenses to be enhanced when either a bodily injury or serious bodily injury was suffered by any other person. Either Mr. Cass' lacerations or Mrs. Cass' broken ribs would qualify as bodily injury under either the robbery or the burglary statute. Ind.Code Sec....