Herron v. State

• Decision Date: 17 May 2004
• Docket Number: No. 75A04-0306-CR-289.,75A04-0306-CR-289.
• Parties: Ralph HERRON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

808 N.E.2d 172

Ralph HERRON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 75A04-0306-CR-289.

Court of Appeals of Indiana.

May 17, 2004.

David A. Brooks, Lyons, Sullivan & Brooks, Valparaiso, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Ralph Herron was convicted after a jury trial of aiding, inducing, or causing voluntary manslaughter, a Class A felony.¹ He raises two issues on appeal, which we restate as:

1. Whether testimony by the principal that Herron, who has no legs or hands and only one arm, participated in the killing was sufficient evidence to support his conviction; and

2. Whether Herron's sentence was inappropriate.²

We affirm.³

FACTS

The facts most favorable to the judgment are that Herron and Ronald Trent lived together in Medaryville. Herron has no legs, no right arm, and half a palm and no fingers on his left hand. He sometimes wore on his right arm a prosthetic limb with a hook on the end. There was testimony Herron could fish, drive, do car repairs, cook, and clean up after himself.

On November 29, 2002, Herron and Trent were drinking and they visited the home of Cecil Lovely. Cecil's brother Clyde left with Herron and Trent, and after purchasing more liquor the three returned to Herron and Trent's house where they continued drinking at the kitchen table. Lovely began talking about religion and asserted he was the "chosen one" because of where he was from. (Tr. at 390.) Eventually an argument ensued and Lovely attacked Herron. Trent separated the two and Herron went to another room. Lovely continued to discuss religion and the argument resumed.

Herron returned to the kitchen wearing his hook. Lovely again hit Herron, and Trent struck Lovely. Trent kicked Lovely and beat him with a cane as Herron yelled "Hit him again." (Tr. at 393.) Herron hit Lovely with his hook, then he gave Trent some plastic to wrap around Lovely and some cable to tie around the plastic. Trent wrapped Lovely in the plastic and dragged him to a car. Herron helped Trent put Lovely in the trunk, then Trent cleaned up the blood in the kitchen. Herron told Trent to use bleach because it covers DNA.

Herron and Trent drove to the Bogus Ditch Bridge, where Herron told Trent to stop. Trent removed Lovely from the trunk and pushed him over the side of the bridge. Trent left his own clothing at another location and the two returned home. When Lovely did not return home, his mother called Herron. Herron told her he and Trent had dropped Lovely off at an apartment.

Lovely's body was later found submerged in the ditch. Some of his wounds were consistent with being inflicted by a screwdriver or Herron's hook.

DISCUSSION AND DECISION

1. Sufficiency of Evidence

A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person has not been prosecuted for the offense, has not been convicted of the offense, or has been acquitted of the offense. Ind.Code § 35-41-2-4. In determining whether a person aided another in the commission of a crime, we consider: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant's conduct before, during, and after the occurrence of the crime. Garland v. State, 788 N.E.2d 425, 431 (Ind.2003).

In reviewing sufficiency of the evidence, we will affirm a conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, and without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Rogers v. State, 741 N.E.2d 395, 396 (Ind. Ct.App.2000), reh'g denied, trans. denied 753 N.E.2d 16 (Ind.2001). When a conviction is based on circumstantial evidence, we will not disturb the verdict if the factfinder could reasonably infer from the evidence presented that the defendant is guilty beyond a reasonable doubt. Id. We need not find the circumstantial evidence overcomes every reasonable hypothesis of innocence; rather, there must merely be a reasonable inference from the evidence supporting the verdict for us to find the evidence sufficient. Id.

Herron asserts the "incredible dubiosity" rule should apply in his case because his convictions were based on Trent's testimony, which he characterizes as "inherently improbable" and "inherently contradictory." (Appellant's Br. at 6.) Under the "incredible dubiosity" rule, a court will impinge on the jury's responsibility to judge the credibility of the witness only when it has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of "incredible dubiosity." Stephenson v. State, 742 N.E.2d 463, 497 (Ind.2001), cert. denied 534 U.S. 1105, 122 S.Ct. 905, 151 L.Ed.2d 874 (2002). When a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Id. at 497-98. Application of this rule is rare; the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Id. at 498.

The testimony of an accomplice is subject to high scrutiny. However, such testimony is by itself sufficient to sustain a conviction. Id. at 496. The fact that the accomplice may not be completely trustworthy goes to the weight and credibility of his testimony, something that is completely within the province of the jury and cannot be reviewed on appeal. Id. at 497.

Herron characterizes as "incredibly dubious" (Appellant's Br. at 6) Trent's testimony that someone in Herron's physical condition could have helped Trent kill Lovely and load him into the trunk of a car and that Trent needed Herron's help to beat Lovely to death. Herron characterizes as "inherently contradictory,"⁴id., testimony by Trent that he did not use a hammer or screwdriver, when there was evidence that it appeared Lovely was beaten with a hammer and stabbed with a screwdriver. Herron also notes Trent's testimony that Herron had used his hook to strike Lovely. Only Herron's blood was found on the prosthesis, and not Lovely's. Trent testified he cleaned the prosthesis with bleach "apparently cleaning Clyde Lovely's blood off the prosthetic arm, but miraculously leaving Ralph Herron's blood on the prosthetic arm." (Appellant's Reply Br. at 2.)

The "incredible dubiosity" rule does not apply because Trent's testimony was not inherently contradictory and because there was circumstantial evidence of Herron's guilt. While Trent's testimony was inconsistent with medical evidence and Herron's testimony that Lovely was hit with a hammer and stabbed with a screwdriver, those inconsistencies do not render Trent's testimony "inherently contradictory."

Nor was Trent's testimony so improbable no reasonable person could believe it. Herron was present at his trial and the jurors were able to view his physical limitations. There was evidence Herron could, despite his disabilities, change a car battery by himself and put the used battery in the trunk, and that he could leave a car and get into his wheelchair without help. Therefore, we cannot characterize as "improbable" Trent's testimony that Herron beat Lovely with his hook and helped put Lovely in the trunk.

There was evidence in the record that Herron encouraged Trent to beat Lovely, delivered some blows himself, and directed the attempts to cover up the killing. This, without more, is sufficient to show Herron aided in and induced the killing. In Gibbs v. State, 426 N.E.2d 1150 (Ind.Ct.App. 1981), the victim and Gibbs were engaged in a fight. Gibbs' sister saw the fight and became distraught. She obtained a knife from the kitchen and stabbed the victim to death. On appeal, Gibbs argued he was engaged in only a fistfight, which was not lethal behavior. Therefore, his sister bore sole responsibility for the victim's death. We determined a jury could reasonably infer that in the course of the fight, Gibbs solicited the help of his family in defeating the victim. That would constitute inducing or causing others to commit battery on the victim, and Gibbs' continued fighting with the victim would be an aid to that battery. Id. at 1155.

We cannot characterize as "incredibly dubious" the evidence of Herron's involvement in the killing, nor can we say the evidence was insufficient to support his conviction.

2. Herron's Sentencing

Herron asserts his sentence was inappropriate because he received a longer sentence than did Trent despite his lesser involvement in the killing.⁵ In support of that argument he included in his appendix a copy of Trent's guilty plea agreement and sentencing order. The State moved to strike those documents from Herron's appendix because they were not a part of record on appeal.⁶ We agree. As a general rule, matters not contained in the record are not proper subjects for review. See, e.g., Turner v. State, 508 N.E.2d 541, 543 (Ind.1987),reh'g denied. Turner had been charged as an adult. He later pointed out to the court that he was less than sixteen years of age when the crime was committed and moved to dismiss the cause as the Superior Court lacked jurisdiction. The Superior Court dismissed the action and the State brought a delinquency proceeding in juvenile court, which waived jurisdiction. Turner was then convicted in Superior Court and he appealed.

The appendix Turner filed with his Appellant's Brief contained filings and docket sheets from the Superior Court in the action that was dismissed, as well as the actions taken in the Juvenile Court. Our supreme court noted none of those documents and transcripts had been certified by any court, nor was there any showing they were part of the record of...