Kremer v. State, 10S00-8607-CR-659

• Decision Date: 10 November 1987
• Docket Number: No. 10S00-8607-CR-659,10S00-8607-CR-659
• Citation: 514 N.E.2d 1068
• Parties: Robert L. KREMER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1068

514 N.E.2d 1068

Robert L. KREMER, Appellant, v. STATE of Indiana, Appellee.

No. 10S00-8607-CR-659.

Supreme Court of Indiana.

Nov. 10, 1987.

Rehearing Denied Jan. 26, 1988.

Stephen J. Beardsley, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder and Robbery, a Class A felony. Appellant received a thirty (30) year sentence for Robbery and a forty (40) year sentence for Murder, enhanced by thirty (30) years due to a finding that he was an habitual offender. Appellant's sentence for Robbery is to be served concurrently with his sentence for Murder.

The facts are: Clarence Hartson was a drug dealer who conducted his business from his trailer in a remote area near Otisco, Indiana. He and his live-in girl friend Rhonda Donahue were dependent upon drugs. They would inject cocaine several times a day and would go five or six days at a time without sleeping or eating.

Hartson became appellant's cocaine supplier. For approximately two months, appellant visited Hartson every day to shoot cocaine with Hartson and Donahue. Appellant would either pay Hartson for the drugs as he used them or he would obtain them "on credit."

Hartson had several guns, thousands of dollars and a supply of drugs stashed in his trailer.

On September 16, 1984, appellant and his girl friend, Marilyn Cassidy, visited Hartson to obtain more drugs. At that time, appellant owed Hartson approximately $600 for drugs. Hartson refused to distribute more drugs on credit to appellant, but later he did inject cocaine with him.

On that day, appellant promised Hartson that he would go to the bank the next morning and withdraw money from his father's account to pay his debt to Hartson. Appellant and his girl friend, who was in hiding because she just had escaped from a Kentucky correctional institution, decided it would be best to spend the night in Hartson's trailer. Hartson and appellant planned to go to the bank together the next morning.

Before the two couples retired, Hartson gathered all of the drugs and guns and took them into his bedroom. Donahue testified that he gave her a .357 revolver and told her that if appellant or Cassidy came into the bedroom, she should shoot them. The .357 was placed on the floor next to the bed.

Donahue also testified that during the evening appellant asked her to give him some cocaine without Hartson's knowledge, but she refused. During the night, however, she did place some cocaine in the bathroom for appellant and Cassidy while Hartson was sleeping, but they did not use it.

The next morning Donahue was awakened by a man yelling in the living room. She heard a single gunshot and noticed the .357 was missing. She ran down the hall toward the living room and met appellant, who was wiping the .357 with a rag and holding a bag of cocaine. Appellant said to her, "He's dead. No, Rhonda, he's dead, I killed him."

Appellant asked Donahue where the drugs and money were located. He took about $3,000 from Hartson's wallet and some drugs. After collecting some personal belongings, all three left for Florida.

Upon investigation, police found Hartson's body in the living room of the trailer. The .357 was under his hand and a shotgun was in the kitchen. Expert testimony revealed that Hartson was shot in the head with a .357 Appellant first argues that the evidence is insufficient to support his conviction. He contends the evidence fails to show that he in fact killed the victim.

At trial, Donahue, Cassidy and appellant gave three different accounts of the shooting. Appellant claims that while he was asleep on the floor, Hartson stepped on his arm and said, "Okay, mother fucker, that's enough" and was pointing a shotgun at him. A struggle ensued and the gun discharged accidentally.

Cassidy testified that during the struggle the .357 dropped from Hartson's pocket and she grabbed it and shot Hartson. At the same moment, the shotgun discharged into the ceiling.

The facts reported by Donahue led to appellant's conviction. Appellant contends that the testimony given by Cassidy and him should be adopted as true, thus the evidence is insufficient to support the verdict.

This Court will not reweigh the evidence nor judge the credibility of the witnesses. Hooks v. State (1980), 274 Ind. 176, 409 N.E.2d 618. If part of the evidence standing alone would justify a guilty verdict, we cannot set that verdict aside because of evidence to the contrary. Jackson v. State (1924), 194 Ind. 561, 143 N.E. 625.

The uncorroborated testimony of one witness is sufficient to sustain a conviction. Smith v. State (1982), Ind., 432 N.E.2d 1363. Looking to the facts supporting appellant's conviction, we find that there is substantial evidence of probative value to support the verdict. Harris v. State (1981), Ind., 425 N.E.2d 112.

Appellant also argues that the evidence is insufficient to establish his criminal intent to commit robbery. He concedes that Hartson's property was taken after his death, but he argues that the evidence was insufficient to show that he acted with criminal intent at the time Hartson was killed.

Circumstantial evidence can support the intent necessary for robbery. Ballard v. State (1974), 262 Ind. 482, 318 N.E.2d 798. It is not necessary for this Court to find that the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence. Gary v. State (1980), Ind.App., 400 N.E.2d 215.

Here, the jury heard evidence that appellant owed a debt to Hartson. Appellant asked Hartson and Donahue for more drugs but was refused. Upon the death of Hartson, appellant immediately seized the drugs and money in the trailer. From these facts the jury may reasonably have found that appellant was guilty of robbery.

Appellant next argues that the verdict is contrary to law because the State failed to negate beyond a reasonable doubt his claim of self-defense.

Whether a defendant acted in self-defense is a question of fact for the jury. Bell v. State (1985), Ind., 486 N.E.2d 1001. When the evidence is conflicting, the jury may reasonably accept or reject the claim of self-defense. Martin v. State (1974), 261 Ind. 492, 306 N.E.2d 93. The jury must consider the evidence from the defendant's perspective to determine whether he faced apparent danger which caused him to fear death or great bodily harm. Davis v. State (1983), Ind., 456 N.E.2d 405.

Looking to the facts most favorable to the verdict, it will not be overturned if substantial evidence of probative value exists to support it. Holland v. State (1983), Ind., 454 N.E.2d 409.

We find the verdict is supported by substantial evidence of probative value. The State carried its burden of proof.

Appellant also argues that fundamental error occurred when the jury was given certain documents which contained references to appellant's previous record.

Appellant gave a statement which police recorded on tape. In it references were made to his past criminal record. The tape was played for the jury as they read along with it from a written transcript. The tape was edited so that the references to his past record were omitted, but they remained in the written transcript. The error was noticed before the tape had advanced to that portion of the transcript. The copies of the transcript were immediately taken away from the jury. The tape continued to play and appellant made no objection at that time.

Before they heard the...