Kingery v. State
| Decision Date | 22 December 1995 |
| Docket Number | No. 49S00-9403-CR-226,49S00-9403-CR-226 |
| Citation | 659 N.E.2d 490 |
| Parties | Charles KINGERY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
After a jury trial, Charles Kingery was convicted of murder and Class A robbery. The trial court sentenced Kingery to fifty-five years for murder and fifteen years for Class B robbery, to be served consecutively. He now brings this direct appeal. We affirm the murder conviction, the murder sentence, and Kingery's conviction on the lesser included offense of Class C robbery. However, because the trial court improperly sentenced Kingery for Class B robbery, we vacate the Class B robbery sentence and remand for a new sentencing on the Class C robbery conviction.
On direct appeal, Kingery raises several issues, which we restate as follows:
I. Whether there was evidence sufficient to support the convictions of murder and robbery.
II. Whether Kingery was denied due process when the trial court instructed the jury that its sole duty was to determine Kingery's guilt or innocence.
III. Whether Kingery was denied due process when the prosecutor referred to Kingery's criminal history.
IV. Whether Kingery's sentence for Class B robbery must be vacated because the jury was not instructed on that offense.
V. Whether Kingery's murder sentence must be vacated because the court allegedly considered invalid aggravating circumstances, failed to consider relevant mitigating evidence, and failed to articulate any balancing process.
Late in the afternoon of April 1, 1991, the victim, George Wildrick, arrived at Van's Tavern, an establishment which Wildrick frequently patronized. Van's Tavern was hosting a pool tournament, and about 7:00 p.m., Charles Kingery and a friend, John Smith, arrived to compete in that tournament. George Wildrick spent several hours in Van's, displaying large amounts of cash, consuming several drinks, and announcing his plan to visit later another tavern, the Goldfinger Lounge. Witnesses who spoke with George Wildrick as he left Van's Tavern at closing, between 2:30 and 3:00 a.m., testified that Wildrick again stated his plan to have another drink at the Goldfinger Lounge, and was looking for someone to join him there.
Kingery and Smith played pool at Van's Tavern until approximately 1:00 a.m. Smith then left for home. Kingery told Smith that he intended to head home shortly. However, Melissa Haynes, the woman with whom Kingery lived, testified that Kingery did not arrive home until more than two hours later, a little after 3:00 a.m.
State's witness Heidi Marter was awake that morning around 3:00 a.m. when she heard, outside her home near the Goldfinger Lounge, three gunshots. Peering out her window, she saw a person, motionless, sitting upright in a large pickup truck parked near the lounge. A man, standing outside the truck, reached inside, opened the driver's side door, lifted the person from inside the truck and placed that motionless individual on the ground. Marter then saw the man look under the truck's seats and wipe down the truck's interior, particularly the passenger area and the steering wheel. He ran his hands up and down the length of the motionless individual's body. Using a rag, the man rolled up the truck's window, left the rag in the window, shut the door and walked toward the Goldfinger Lounge.
Marter left her home and drove over to the scene. She found the victim, George Wildrick, laying on his left side in a pool of blood. She quickly returned home to call the police. After notifying the police, she again looked out her window, and saw that the man whom she had seen earlier had returned. He pulled up next to the body in a small, light-colored pickup truck, got out of the truck, turned the lights of the victim's truck off, wiped down the inside of the victim's truck a second time, returned to his truck, and drove away.
Witness Steven Ross was driving toward the Goldfinger Lounge around 3:30 a.m. when he saw a small white truck speeding in the opposite direction. Finding police at the lounge when he arrived, and discovering that they were looking for a white truck, he told them that he had just seen a white truck speeding away from the Goldfinger.
Arriving at the crime scene at approximately 4:30 that morning, a deputy coroner recovered several items from Wildrick's body, including a pair of sunglasses. These sunglasses were later found to contain a bloody fingerprint which the State demonstrated belonged to Kingery. At the end of an extended investigation, Kingery was charged with murder, felony murder, and robbery. After a jury trial, Kingery was convicted of murder and Class A robbery, but sentenced as if he had been convicted of murder and Class B robbery.
Kingery first argues that the evidence presented at his trial was legally insufficient to support a guilty verdict on either the murder or the robbery charge. When, on appeal, sufficiency of the evidence is challenged, this Court will neither reweigh the evidence nor review the credibility of witnesses. We will "look to the evidence most favorable to verdict together with all reasonable inferences therefrom" and then "determine whether there is substantial evidence of probative value from which the trier of fact might reasonably have found the defendant guilty beyond a reasonable doubt." Landress v. State (1992), Ind., 600 N.E.2d 938, 940. As long as there exists sufficient evidence of each material element of the charge, we will sustain a judgment. Isom v. State (1992), Ind.App., 589 N.E.2d 245, trans. den.
To convict Kingery of murder, the State was required to show that he (1) knowingly or intentionally (2) kill[ed] (3) another human being. Circumstantial evidence alone will support a verdict of murder. Utley v. State (1992), Ind., 589 N.E.2d 232, 241, cert. denied, 506 U.S. 1058, 113 S.Ct. 991, 122 L.Ed.2d 142. It is within the province of the jury to determine facts from evidence presented to it, and judge the credibility of those facts. Furthermore, it is the duty of the jury to draw reasonable inferences from facts established either directly or through circumstantial evidence. Metzler v. State (1989), Ind., 540 N.E.2d 606, 609.
Sufficient evidence was presented at Kingery's trial to permit the jury to reach a guilty verdict on the charge of murder. Kingery was in the same tavern as Wildrick on the night of Wildrick's death; thus, Kingery was in a place where he had an opportunity to see the amount of money which Wildrick had in his wallet. (R. at 401-03, 495, 501). Kingery was in a position to overhear Wildrick announce his intention to travel to another tavern. Wildrick was killed at that tavern. A witness heard shots, saw a man remove Wildrick's body from Wildrick's truck and flee from the scene. After examining Wildrick's body and returning home to call police, that witness saw the same man return to the crime scene in a truck substantially similar to Kingery's truck. The witness noticed that the tailgate was missing or down. Kingery's tailgate was missing. The witness saw the individual who returned to Wildrick's truck wipe down the interior of the truck, as if to destroy any fingerprints in the truck. The witness testified that the individual ran his hands quickly over Wildrick's body, as if searching it.
Additionally, witnesses speeding to the scene in response to the police call noticed a truck substantially similar to Kingery's speeding away from the crime scene. The State presented evidence demonstrating that Kingery owned a gun capable of firing the rounds which killed Wildrick.
Kingery particularly challenges, as insufficient to support his conviction, evidence supporting the State's contention that a thumbprint found on the victim's sunglasses belonged to Kingery. Three forensic experts concluded that the thumbprint was Kingery's. The jury was presented with the fact that the fingerprint experts' first tests were inconclusive, and that additional testing procedures permitted the experts to reach a positive identification. We find that the jury had ample evidence presented to it through which it could infer that the print was that of Kingery.
The State presented ample evidence through which the jury could properly infer that all the requisite elements of murder exist. Because the evidence is sufficient to support the jury's conclusion that Kingery murdered Wildrick, Kingery's conviction on Count I, murder, is affirmed.
Kingery also challenges the sufficiency of the evidence supporting his robbery conviction. Again, the State presented evidence that Wildrick had been robbed, and that Kingery committed the robbery. As mentioned above, Kingery had been in a position to know that Wildrick had a substantial amount of cash on his person. A witness saw the individual whom the jury later determined to be Kingery move his hands up and down Wildrick's body as if searching it, and Wildrick's billfold, which contained over $2000.00, was never recovered. The State presented evidence sufficient to permit the jury to reach a guilty verdict on the robbery charge.
Kingery contends that he was denied due process and his constitutional right to a jury verdict because the trial court gave the following instruction:
Defendant has the presumption of innocence. If the evidence presented has not convinced you beyond a reasonable doubt of the defendant's guilt, you should find the defendant not guilty.
However, if you find that the state has proven beyond a reasonable doubt the material allegations of the charges against the defendant, then you should find the defendant guilty....
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