Lainhart v. State, 24A01-0904-CR-184.
| Citation | 916 N.E.2d 924 |
| Decision Date | 23 November 2009 |
| Docket Number | No. 24A01-0904-CR-184.,24A01-0904-CR-184. |
| Parties | Marlow J. LAINHART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Stacy R. Uliana, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Marlow Lainhart appeals his conviction for Class A misdemeanor intimidation. Marlow was found guilty of communicating a threat to another person with intent to place the victim in fear of retaliation for a prior lawful act. At trial, the State improperly (1) distinguished the roles of defense and prosecution in criminal cases, (2) discussed the penal consequences of the crime charged, (3) commented on the defendant's failure to produce witnesses in his defense, and (4) vouched for the credibility of the investigating officer. We find these acts of misconduct together constituted fundamental error. We further hold that the State improperly charged alternate crimes in a single count of intimidation. We reverse and remand.
Marlow was twenty-three years old and lived with his grandparents just outside of Laurel, Indiana. His father Kenny lived next door. Marlow used to be good friends with Derek Durham, but for reasons unknown, Marlow and Derek had become bitter archenemies. Marlow also knew three girls from Laurel named Jamie, Ruthy, and Amy. Jamie, Ruthy, and Amy were all friends with Derek.
One evening in October 2007, Jamie was driving Ruthy and Amy around downtown Laurel. Downtown Laurel is laid out roughly as follows:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Ruthy was in the passenger seat of Jamie's car. Amy was sitting in back. Jamie was nine months pregnant, and Amy had undergone gallbladder surgery that day. The girls were heading east toward the Whitewater Bridge when they spotted Derek standing outside the Long Branch Tavern. Jamie stopped the car so they could talk to him. Derek walked up to the passenger-side window but did not enter the vehicle.
Meanwhile Marlow was driving nearby with Amy's brother Josh. Marlow approached from around the corner and saw Jamie, Ruthy, and Amy talking with Derek. Marlow began calling Derek names and then challenged him to a fight. Derek ran behind the Long Branch Tavern. Jamie, Ruthy, and Amy sped off heading south on Dam Road.
The girls proceeded to a dead-end before turning around and driving back toward downtown Laurel. When they reached the north end of Dam Road, they saw Marlow, Josh, and two other associates standing to the right with baseball bats. The girls then heard a loud engine and saw a truck to their left flashing its lights. Marlow's father Kenny was behind the wheel. Jamie turned left to cross the Whitewater Bridge. Kenny rear-ended Jamie's car with his truck and moved forward to pin her car against the bridge guardrail. Kenny then got out of the truck and hit the back of Jamie's car with a baseball bat. Jamie found just enough space between Kenny's truck and the guardrail to accelerate forward and escape.
At this point Amy was scared and upset, so Jamie dropped her off at the Laurel Apartments where Ruthy lived. Amy got out of the car and went inside the apartments. As Jamie and Ruthy were driving out of the complex, Kenny's truck pulled up on their left side. Marlow's car pulled up on the right. Marlow then got out and hit Jamie's car with a bat. He told Ruthy, "[G]et your fat ass out of the car, I'm gonna beat you down." Tr. p. 90. Kenny pointed a shotgun at Jamie and said, "I'll kill the bitch I swear to God, I will kill the bitch." Id. Jamie and Ruthy drove off to find the police.
Witness Tara Wiggens was also exiting the apartment complex at this time. Tara was a longtime Laurel resident and an acquaintance of those involved in these altercations. Kenny stopped Tara and asked her if she had seen Derek. Tara told Kenny that she had seen Derek standing near the apartment dumpsters. Kenny said that Derek had either threatened or hit Marlow.
Marlow and Kenny proceeded inside the complex and tried to force their way into Ruthy's apartment. Ruthy's mom stood at the door pushing them out. Kenny told Ruthy's mom, "[Y]ou know what I'm capable of and your daughter's getting it." Id. at 121. Kenny said to Amy, "[L]ittle boy if you know what's good for ya you'll stay away from Ruthy." Id. Marlow then informed Kenny, "[T]hat's not a boy that's Josh's little sister. ..." Id.
Jamie and Ruthy ultimately found Deputy Sheriff John Roberts and told him what had transpired. Officer Roberts brought them to the police station where they filled out a report and completed written statements. At some point Marlow drove by the station and began yelling profanities outside. Officer Roberts told Marlow to stop, after which Marlow fled. Officer Roberts and Officer Leonard Baker pursued Marlow in their patrol cars. The officers were "closing the gap," id. at 140, when they spotted Kenny driving his truck. Marlow continued to drive away, but Kenny pulled over acknowledging the lights and sirens. The officers stopped to detain Kenny and found an aluminum bat in the back of his vehicle.
The State charged Marlow on October 31, 2007 with Class A misdemeanor intimidation. The charging information alleged that
Marlow J. Lainhart on or about October 18, 2007, at said County of Franklin and State of Indiana, did then and there unlawfully, knowingly or intentionally, communicate a threat to another person, to-wit: Ruth Schreier, Jamie Baker and/or Amy Robertson, with the intent that the other person be placed in fear of retaliation for a prior lawful act.
Appellant's App. p. 9. Marlow was arrested on November 11, 2007, see id. at 1, and brought to trial in February 2009.
At trial the State called Jamie, Ruthy, Amy, Tara, and Officer Roberts to testify to the foregoing events. Defense counsel cross-examined Jamie and Ruthy about their written statements to police, which evidently omitted certain facts to which the girls testified at trial. Jamie's statement did not mention that Amy had been in the car, that the car had been hit with a baseball bat, or even that the car had been rammed. Ruthy's statement likewise did not discuss the collision or mention that Jamie's car had been struck with a bat.
Marlow testified in his own defense. Marlow claimed that on the night in question, he was helping his friend Josh move out of his trailer. At some point Marlow was driving across the Whitewater Bridge when his car battery die d. Shortly thereafter he saw a white car pass by and turn onto Dam Road. Inside the car were Ruthy, Derek and three or four more individuals. Marlow phoned Kenny and told him he was having car trouble. Kenny drove to the bridge with a replacement battery. About fifteen minutes later the white car returned. Marlow testified that Tr. p. 171-72. Marlow allegedly drove straight to his grandmother's house once his car was running again. Marlow further testified that he was not involved in an altercation at the Laurel Apartments and that in fact he was never at the apartment complex that night.
The defense also called two witnesses named Anna Lane and Luther Stanton. Anna and Luther testified that they had seen Ruthy at a get-together in October 2008 and that Ruthy had been talking about an incident on Laurel-Dam Road. Anna testified that Ruthy "was bragging about how she was getting off of some trouble that she was in, making a, she made a statement of how she had a pistol and some Derek Durham dude had a shotgun and was on Laurel-Dam Road causing trouble with some Kenny guy, at the time." Id. at 186. According to Luther, Ruthy was "talking about how she's gonna get out of charges fer [sic] gun possession and throw the charges onto somebody else. ..." Id. at 196. "[S]he said that she and Derek had been driving down Laurel-Dam Road and that she was gonna sh-sh-, she had a, she had a pistol and that Derek had a shotgun and they were gonna try and go after Kenny, that's-that's where it all started, is what they were talking about in the trailer." Id. at 197.
In addition, the defense proffered the testimony of Marlow's former girlfriend Candice Kolb. Candice had received a threatening text message from Ruthy in January 2009. Marlow sought to introduce the text message and Candice's accompanying testimony in order to show Ruthy's bias against Marlow and to attack her credibility. The trial court excluded the text message as irrelevant and potentially confusing to the jury.
The State argued alternate theories at trial: either that Marlow was guilty by reason of his own physical and verbal threats to the girls or that he was culpable for aiding and inducing Kenny's threats. The trial court instructed the jury that "[t]o return a verdict, each of you must agree to it," id. at 231, but the court did not provide a more specific jury unanimity instruction in light of the multiple theories argued. The jury found Marlow "guilty of Intimidation, a Class A misdemeanor." Appellant's App. p. 73; Tr. p. 235. Marlow now appeals.
Marlow raises four issues which we restate and reorder as follows: (1) whether the State committed several acts of prosecutorial misconduct at trial together constituting fundamental error, (2) whether the State presented sufficient evidence to support the guilty verdict, (3) whether the trial court erred by permitting the State to charge and argue alternative victims in a single count of intimidation, and (4) whether the trial court erred by excluding evidence of a complaining witness's bias.
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