Johnson v. State

• Decision Date: 22 December 1992
• Docket Number: No. 67A01-9206-CR-176,67A01-9206-CR-176
• Citation: 605 N.E.2d 762
• Parties: Betty Jo JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 762

605 N.E.2d 762

Betty Jo JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 67A01-9206-CR-176.

Court of Appeals of Indiana First District.

Dec. 22, 1992.

Transfer Denied Feb. 17, 1993.

Brent Westerfeld, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Betty Jo Johnson appeals her conviction of burglary, a class A felony. Johnson challenges the sufficiency of the evidence to sustain her conviction, and contends that her conviction, entered upon a general verdict of guilty of burglary, cannot stand because the case was submitted to the jury on an illegal theory.

We affirm.

I.

The evidence of record most favorable to the verdict established that during the early morning hours of August 8, 1991, Johnson was socializing with acquaintances on a porch adjacent to a pub owned by Johnson's friend, Tom Stevens. Johnson met Richard Couch, the decedent, who was intoxicated. Couch requested a ride to his motel room from Johnson. The motel was just a short distance away, so Johnson agreed.

Upon her return to the porch, Johnson reported to Stevens and others there that Couch had drug her into his room and attempted to rape her. Johnson asked Stevens to beat Couch up but Stevens declined. However, Pat Campbell, a bartender whom Johnson had befriended, agreed to go talk to Couch and rounded up some friends to go with him. Johnson told police that she was upset and crying when she told Campbell what happened. "He kind of blew up. He got mad and he told a couple of his buddies of his and he said B.J. we're gona go down and get him." "[A]ll they was supposed to do was just go threaten him ... just threaten him." Johnson elaborated on the plan:

They was just gona go knock on his door and threaten him and tell him to stay away from me and that he had better not to [sic] do what he had done to me and that they did know what he had done whether he wanted me to tell or not.

Johnson testified at trial that Campbell had suggested that "he could go over there and talk to the guy, find out why he did it and make sure that he left me alone after that." Johnson wanted someone to "go ... punch him in the nose, go let him know that he just can't go around doin' that, I mean he shouldn't have got away with what he did to me." "[T]ell him to leave me alone, stay away from me, don't mess with me again, don't bother me again."

There was some discussion about weapons. Johnson advised that she had a rifle and a knife which Stevens had given her for protection. Johnson left the porch to obtain the knife. When she returned, she gave it to Campbell. Campbell explained: "We were gonna see why he did this to Ms. Johnson. We needed the knife or club cause he was a fairly large person, if any trouble broke out we could handle it." Campbell told the jury that they were "gonna at least threaten him." According to Campbell, Couch wasn't the kind of guy who would just sit there and take it.

Campbell called to Johnson from his car to come with them to knock on the door so that the decedent would answer. Johnson got in the back of the car and rode to the motel where she, Campbell and two others, Matt Scheckel and Ron Lowrimore, proceeded to Couch's room. When Couch would not respond to Johnson's calls, the foursome decided to kick in the door.

Johnson and Campbell returned to the car and moved it to the side of the motel. Campbell instructed Johnson to open the door so that Lowrimore could get into the car quickly. Johnson opened the door. Campbell heard a noise, and then Lowrimore returned to the car. On the way back to the porch, Lowrimore told the others that Couch had been "cut." Scheckel returned to the porch on his own, indicating that he had left his cigarettes in Couch's room. Scheckel disposed of the knife while Johnson put Stevens' blackjack club in her car. The foursome then got together on the porch to get their stories straight. By 9:00 a.m., Johnson had decided to go to the police. When she called, she learned that Couch had died.

The State alleged in its information against Johnson that

on or about the 8th day of August, A.D. 1991, at and in the County of Putnam, State of Indiana, [Johnson] did ... knowingly or intentionally aid, induce, or cause Matt Scheckel and Ron Lowrimore to break and enter the residence of another person, to-wit: Richard Couch, with intent to commit a Felony in it, to-wit: one or more of the following:

Murder,

Battery with a Deadly Weapon,

Battery causing serious bodily injury,

Intimidation by Threat of a Forcible Felony, or

Intimidation with a Deadly Weapon,

while armed with a deadly weapon, which resulted in bodily injury or serious bodily injury to the said Richard Couch.

To meet its burden of proving this allegation, it was thus necessary for the State to prove that Johnson aided, induced or caused burglary and that when she so acted, she was aware of a high probability that her behavior was aiding, inducing or causing burglary. Ind.Code 35-41-2-4. The culpability element involves proof of an awareness of a high probability both that Johnson was engaging in the actus reus of the crime, namely aiding, inducing or causing burglary, and that her behavior would facilitate the commission of a breaking and entering with the intent to commit one of the particularly named felonies. I.C. 35-41-2-2(d); Fortson v. State (1979), 270 Ind. 289, 385 N.E.2d 429, 434 (One must intend by his own actions to cause or facilitate commission by the principal offender of the crime charged).

However, under the charge made by the State, it was not necessary for the State to prove that Johnson knew her conduct would necessarily result in murder, that Johnson formally assented to the commission of murder beforehand, id., or that she physically participated in each element of the underlying offense of burglary. Indiana Code 35-41-2-4, the accessory statute, has been construed to impose a form of vicarious liability "for everything ... which follows incidentally in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as part of the original design or common plan," upon a showing that the accomplice acted in concert with those who physically committed the elements of the crime. Fox v. State (1986), Ind., 497 N.E.2d 221, 227; Johnson v. State (1986), Ind., 490 N.E.2d 333, 334.

A criminal conviction of burglary requires proof beyond a reasonable doubt of a specific criminal intent which coincides in time with the acts constituting the breaking and entering. Robinson v. State (1989), Ind., 541 N.E.2d 531, 532. The State need not establish by direct evidence that an individual possessed a specific intent; circumstantial evidence will suffice. See e.g. Corbin v. State (1990), Ind., 563 N.E.2d 86, 88. Typically, the intent to commit a felony can be inferred from the subsequent conduct of the individual inside the premises, see e.g., Eveler v. State (1988), Ind., 524 N.E.2d 9, 11 (subsequent commission of crimes of rape and deviate sexual conduct sufficient to support inference defendant intended to commit a felony when he broke and entered victim's apartment), or by the manner in which the crime was committed. Cash v. State (1990), Ind., 557 N.E.2d 1023, 1024.

Indiana law recognizes that a burglar may possess more than one specific intent at the time he breaks and enters another's dwelling. Eby v. State (1972), 154 Ind.App. 509, 290 N.E.2d 89. See also, Eveler, 524 N.E.2d 9; Quire v. State (1983), Ind., 449 N.E.2d 1083. Indeed, these intents may be alternative intents and conditional. As this court explained in Eby,

[W]hatever may have been [a burglar's] primary intent or purpose, he must have anticipated that confrontation with [a dwelling's] inhabitants was not unlikely and that his presence would not be welcome. If a confrontation then occurs and he does commit an act of violence upon the person he then confronts, the commission of the act is sufficient to justify the inference that he entered with the specific intent to do what he did, provided the occasion arose. That he also had or may have had, a different purpose or reason for breaking and entering would subtract nothing from the reasonability of inferring the concurrent intent to do violence if confronted. Nor would insufficiency of the evidence imply precisely what a defendant's purpose was subtract anything from the reasonableness of inferring intent on entry to do violence, if violence is committed after entry and if there is no reasonable doubt that the purpose for breaking in was not innocent.

290 N.E.2d at 95. The conditional intent to do violence if necessary is specific. Id. at 96.

The State need not prove each of the alternative specific intents it alleges. Bauer v. State (1983), Ind., 456 N.E.2d 414, 415. See also Davis v. State (1985), Ind.App., 476 N.E.2d 127, trans. denied; Layne v. State (1973), 164 Ind.App. 486, 329 N.E.2d 612 (State may properly charge alternative acts). The requirement that the State specify the crime intended in the information is designed to preclude a defendant from being twice convicted for the same offense and to enable the defendant to prepare a defense. Cash v. State (1990), Ind., 557 N.E.2d 1023, 1024.

The State's evidence showed that Johnson performed several acts in furtherance of the burglary. She sought someone to "punch [Couch] in the nose," obtained a weapon and gave it to one of the others, attempted to lure Couch from the room, returned to the car and readied the car door, hid one of the weapons in her car, and participated in discussions on the group's "story." The evidence of Johnson's presence during the discussions about the need for weapons and for breaking into Couch's room, in combination with all the evidence of Johnson's participation, permits an inference that...