Lampitok v. State

• Citation: 817 N.E.2d 630
• Decision Date: 16 November 2004
• Docket Number: No. 79A05-0212-CR-626.,79A05-0212-CR-626.
• Parties: Ronald J. LAMPITOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

817 N.E.2d 630

Ronald J. LAMPITOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A05-0212-CR-626.

Court of Appeals of Indiana.

November 16, 2004.

Rehearing Denied January 14, 2005.

Michael B. Troemel, Lafayette, IN, Attorney for Appellant.

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

OPINION

KIRSCH, Chief Judge.

Following a jury trial, Ronald J. Lampitok appeals his conviction for carjacking,¹ a Class B felony, raising the following restated issues:

I. Whether the State's manner of charging Lampitok with multiple charges stemming from one incident deprived him of due process.

II Whether the prosecutor's comments in his opening statement constituted misconduct and prejudiced Lampitok.

III. Whether evidence that Lampitok and his nephew, Dominic Fuller, flagged down a motorist in a park, forced that driver to the backseat, and, after releasing the victim, drove the vehicle to Illinois was sufficient to support Lampitok's carjacking conviction.

IV. Whether the trial court erroneously limited Lampitok's cross-examination of the victim and deprived him of presenting his defense.

V. Whether the trial court erred when it admitted into evidence alleged hearsay testimony that Fuller instructed Lampitok's girlfriend to locate and dispose of a gun.

VI. Whether Lampitok was deprived of a fair trial because the trial judge either fell asleep or appeared to do so by having his eyes shut during a portion of defense counsel's closing argument.

VII. Whether the jury rendered inconsistent verdicts when it found Lampitok guilty of carjacking and Class C felony robbery, but acquitted him of kidnapping and criminal confinement.

VIII. Whether Lampitok's eighteen-year executed sentence for carjacking was inappropriate.

The State cross-appeals, claiming that it proved two prior unrelated felonies as defined by IC XX-XX-X-X, and, therefore, the trial court erred when it granted Lampitok's motion for a directed verdict on the habitual offender charge.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the conviction are that during the afternoon of December 21, 2001, Lampitok and Fuller flagged down a vehicle driven by Jeremy Martin as he drove through a park in Lafayette, Indiana. Martin stopped, and Fuller asked Martin for a cigarette. Lampitok, armed with a gun, then told Martin that they "wanted [his] car too." Appellant's Appendix at 136. Lampitok and Fuller made a demand for money, but Martin told them he had none. They ordered him to the backseat of the vehicle. After looking in Martin's wallet, they made remarks to Martin that they knew where he lived and that he should not call the police. They told Martin that they would return the vehicle, which belonged to Martin's then-fiancee, to the park the next day. Eventually, they released Martin at a shopping plaza, giving him a couple of dollars to get home. Martin entered a fast food restaurant and telephoned his fiancee and the police to report the incident.

Meanwhile, Lampitok and Fuller drove to Sullivan, Illinois, where Lampitok's girlfriend, Jackie Claypool, had driven days earlier to be with her parents. Upon Martin's report, police began an investigation and, that same day, located Martin's vehicle, with Martin's wallet and jacket in it, "hung up" on a railroad tie in a trailer park in Sullivan. Appellant's Appendix at 239, 296. The police also found and arrested Lampitok as he spoke to Claypool in her parents' trailer.² The State charged Lampitok with four counts: (1) kidnapping, a Class A felony; (2) carjacking, a Class B felony; (3) robbery while armed with a deadly weapon, a Class B felony; and (4) criminal confinement, a Class B felony. The State later filed an habitual offender charge against Lampitok.

The jury found Lampitok guilty of carjacking and Class C felony robbery, a lesser-included offense of the armed robbery charge. At the habitual offender phase of trial, Lampitok moved for a directed verdict, alleging that one of the two prior unrelated felonies upon which the State relied to obtain the habitual offender finding was not eligible for consideration under IC XX-XX-X-X, Indiana's habitual offender statute. IC XX-XX-X-X(d)(3). The trial court agreed and granted Lampitok's motion for directed verdict on this charge. Subsequently, at the sentencing hearing, the trial court vacated Lampitok's robbery conviction under double jeopardy principles and sentenced him to eighteen years for the carjacking conviction.

On appeal, Lampitok claims trial error in a number of respects, and the State cross-appeals the trial court's directed verdict ruling on the habitual offender charge. Additional facts are supplied as necessary.

DISCUSSION AND DECISION

I. Charging Informations

The State charged Lampitok with kidnapping, carjacking, robbery with a deadly weapon, and criminal confinement based upon the December 21, 2001 incident. Relying on Article 1, Section 13 of the Indiana Constitution, which requires that an accused shall have the right to demand the nature and cause of the accusations against him, Lampitok asserts that he was denied due process because of "confusing, overlapping counts." Appellant's Brief at 15. We disagree.

It is well-established that when two criminal statutes "overlap" such that more than one statute appears to define the acts of a defendant, the State may prosecute under either statute so long as doing so does not discriminate against any class of defendants. Kibbey v. State, 733 N.E.2d 991, 996 (Ind.Ct.App.2000). The decisions whether to prosecute and what charges to file are within the prosecutor's discretion. Id.

The gist of Lampitok's claim appears to be that he was unable to discern "exactly what he allegedly did to constitute a crime." Appellant's Appendix at 15. Initially, we note that Lampitok has waived any challenge to the charging informations by failing to raise the issue to the trial court. Buzzard v. State, 712 N.E.2d 547, 551 (Ind.Ct.App.1999), trans. denied (any challenge to adequacy of an information must be made by a motion to dismiss prior to the arraignment, and failure to do so is waiver).

Regardless of waiver, Lampitok's claim fails. An information that enables an accused, the court, and the jury to determine the crime for which conviction is sought satisfies due process. Grant v. State, 623 N.E.2d 1090, 1093 (Ind.Ct.App.1993), trans. denied (1994). Here, each of the four charges sets forth the specific facts and circumstances that support it. Furthermore, separate jury instructions defined each crime. Lampitok prepared and presented a defense, which the jury chose not to believe. We cannot say that the manner in which Lampitok was charged precluded him from knowing the nature of the charges he faced.

To the extent that Lampitok's argument suggests some form of double jeopardy violation, we reject it. Here, although Lampitok was convicted of Class C felony robbery and carjacking, the trial court vacated the robbery conviction and sentenced Lampitok only on the carjacking conviction. Lampitok was not deprived of due process by the manner in which he was charged. See, e.g., Smith v. State, 770 N.E.2d 290, 297 (Ind.2002) (explaining in larceny context that State has unrestricted discretion to file alleged repetitive charges so long as defendant not convicted and sentenced more than once for same offense).

II. Prosecution's Opening Statement

Lampitok asserts that at trial the prosecutor made inappropriate comments during his opening statement and that, consequently, he was denied a fair trial. When reviewing a charge of prosecutorial misconduct, we employ a two-step analysis. First, we consider whether the prosecutor engaged in misconduct, and, second, we consider all the circumstances of the case to determine whether such misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Ratliff v. State, 741 N.E.2d 424, 428-29 (Ind.Ct.App.2000), trans. denied (2001). The latter is measured not by the degree of impropriety of the misconduct, but by the probable persuasive effect of the misconduct on the jury's decision and whether there were repeated examples of misconduct that would evince a deliberate attempt to unfairly prejudice the defendant. Id.

Lampitok challenges the prosecutor's opening remarks in three aspects. First, Lampitok alleges that the prosecutor improperly "referred to inadmissible hearsay" when the prosecutor referenced a telephone call that Fuller made to Claypool about "a gun." Appellant's Brief at 14; Appellant's Appendix at 112. Once the prosecutor mentioned the telephone call about a gun, defense counsel objected to the commentary as inadmissible hearsay. Although the prosecutor maintained it was not hearsay because the substance of Fuller's call to Claypool constituted a directive or a command to Claypool, the trial court sustained the objection "for opening statements," but noted, "we'll listen to the evidence and see just where we get to on that." Appellant's Appendix at 113. The prosecutor proceeded in his opening statement to explain to the jury what Claypool did after she spoke with Fuller, namely locate the gun near the area where the vehicle was found and throw it down a ravine.

When Claypool later testified during trial, the court permitted her, over Lampitok's hearsay objection, to recount a telephone call she received from Fuller, in which he instructed Claypool to find the gun and "get rid of it." Id. at 364-65. There followed further testimony concerning what Claypool did in response to Fuller's call, which was consistent with the prosecutor's opening comments. We discern no prosecutorial misconduct in this regard.

Second, Lampitok claims that the prosecutor improperly lectured the jury "in a professorial manner" regarding the hearsay rule and the four charges brought against Lampitok. Appellant's Brief at...