Leggs v. State

• Decision Date: 23 April 2012
• Docket Number: No. 49A02–1105–CR–522.,49A02–1105–CR–522.
• Citation: 966 N.E.2d 204
• Parties: Richard LEGGS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

966 N.E.2d 204

Richard LEGGS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1105–CR–522.

Court of Appeals of Indiana.

April 23, 2012.

Darren Bedwell, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MAY, Judge.

Richard Leggs appeals his conviction of and sentence for two counts of Class B felony criminal confinement¹ and one count each of Class C felony intimidation,² Class C felony criminal recklessness,³ and Class A misdemeanor resisting law enforcement.⁴ He presents five issues for our review:

1. Whether the charging information for the count of Class C felony intimidation was deficient;

2. Whether the State presented sufficient evidence Leggs committed Class C felony intimidation;

3. Whether the enhancement of three convictions based on Leggs' use of a single knife subjected him to double jeopardy; and

4. Whether his two convictions of criminal confinement violated the "continuing crime" doctrine.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY⁵

On February 24, 2010, Leggs and his wife, Kimberly, were home watching television when Leggs got up to go to the kitchen. On his way out of the room, he called Kimberly a "fat bitch." (Tr. at 47.) Leggs returned to the room, walked past the television, and asked Kimberly what she was looking at. Kimberly responded she was looking at the television, to which Leggs replied, "You're gonna die today. I hate you." (Id. at 48.)

Kimberly grabbed her purse and keys, and attempted to leave the residence, but Leggs took them from her. She then tried to use her cell phone to call for help, but Leggs took the cell phone. Leggs again said Kimberly was "gonna die," (id. at 49), and he pulled a kitchen knife from his pocket. Leggs pushed Kimberly on the bed and jumped on top of her. He held the knife over her head and made stabbing motions toward her nose, ear, and temple. Leggs told Kimberly, "I hate you. You don't love me like you used to[,]" (id. at 51), and then he stabbed her twice in the stomach.

Kimberly bit Leggs and was able to push him from atop her. She ran toward the door of the bedroom; Leggs followed her while making slashing motions with the knife, resulting in a cut on Kimberly's leg. Kimberly ran to the dining room, picked up a lamp, and struck Leggs with it. The couple struggled and ended up on the floor. The knife fell out of Leggs' hand, and he told Kimberly she was not "gonna leave there alive." (Id. at 53.)

At the time, Indianapolis Metropolitan Police Officers Scott Childers and Greg Crabtree were in the Leggs' apartment complex investigating a burglary in another unit. Officer Childers heard Kimberly crying and Leggs threatening her, and he knocked on the door of the Leggs' apartment. Kimberly attempted to answer the door, but Leggs pushed her back on the floor and held her there. Officer Childers heard Kimberly say, "let me out," and heard Leggs respond, "No, I'm not letting you out. I'm going to kill you." (Id. at 64.) Officer Childers knocked on the door again, and Leggs told Kimberly to open the door.

Kimberly opened the door and told Officer Childers, "I've been stabbed. Help me." (Id. ) Leggs pushed Kimberly aside and attempted to run down the hall. Officer Childers grabbed Leggs, and a struggle ensued. Officers Childers and Crabtree eventually were able to subdue and handcuff Leggs. Kimberly was transported to the hospital, where she underwent surgery.

The State charged Leggs with two counts of Class B felony criminal confinement, two counts of Class C felony battery,⁶ domestic battery as both a Class A misdemeanor⁷ and Class D felony,⁸ and one count each of Class C felony intimidation, Class C felony criminal recklessness, and Class A misdemeanor resisting law enforcement. For almost a year after he was charged, Leggs was incompetent to stand trial due to cognitive and speech difficulties resulting from a stroke in January 2010. On January 28, 2011, the trial court determined Leggs was competent to stand trial. The State amended the charging information on March 24 to include an allegation Leggs was an habitual offender.⁹

After a bench trial, the trial court entered convictions on all counts, but acquitted Leggs of the habitual offender enhancement. During the sentencing hearing on May 20, the trial court merged the two Class C felony battery counts and the Class D felony domestic battery count¹⁰ into the second count of Class B felony criminal confinement. The State requested the sentences for the two criminal confinement counts run consecutively, while Leggs argued the two counts were part of a continuing course of conduct. The trial court ordered the following four sentences served concurrently: fourteen years for Class B felony criminal confinement, five years for Class C felony intimidation, 545 days for Class D felony criminal recklessness, and 365 days for Class A misdemeanor resisting law enforcement. For the second count of Class B felony criminal confinement, the trial court sentenced Leggs to six years and ordered it served consecutive to his other sentences, for an aggregate sentence of twenty years.

DISCUSSION AND DECISION

1. Charging Information for Intimidation

In charging Leggs with Class C felony intimidation, the State alleged:

Richard Leggs, on or about February 24, 2010, did communicate to Kimberly Leggs, another person, a threat to commit a forcible felony, that is: that Richard Leggs would kill Kimberly Leggs, in retaliation for a prior lawful act, that is: attempting to leave the residence, and while making said threat did draw or use a deadly weapon, that is: pulled a knife from his waistband[.]

(App. at 28–29.) The elements of Class C felony intimidation as charged against Leggs are:

(a) A person who communicates a threat to another person, with the intent:

* * *

(2) that the other person be placed in fear of retaliation for a prior lawful act;

* * *

commits intimidation, a Class A misdemeanor.

(b) However, the offense is a

(1) Class D felony if:

* * *

(A) the threat is to commit a forcible felony;

* * *

(2) Class C felony if, while committing it, the person draws or uses a deadly weapon.

Ind.Code § 35–45–2–1.

Leggs argues the charging information for Class C felony intimidation does not allege that he acted with the intent to place Kimberly in fear. The State argues Leggs has waived this issue for review, because he did not move to dismiss the charge against him. As the State notes: "The proper method to challenge deficiencies in a charging information is to file a motion to dismiss the information, no later than twenty days before the omnibus date." Miller v. State, 634 N.E.2d 57, 60 (Ind.Ct.App.1994) (citing Ind.Code § 35–34–1–4(b)(1) ).

To avoid waiver, Leggs must demonstrate fundamental error. See id. ("Failure to timely challenge the omission ordinarily would result in waiver of the issues, unless the omission was so prejudicial to Miller's rights that fundamental error resulted.") (citations omitted). For error in a charging information to be fundamental, "it must mislead the defendant or fail to give him notice of the charges against him so that he is unable to prepare a defense to the accusation." Id. at 61. Leggs did not argue he did not understand the charges against him or he was unable to formulate a defense. See Wine v. State, 637 N.E.2d 1369, 1374 (Ind.Ct.App.1994) (no fundamental error where Wine did not demonstrate his defense was impeded by the inadequacy of the charging information), trans. denied. Thus, Leggs has not demonstrated fundamental error.

2. Sufficiency of Evidence—Intimidation

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court's decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder's role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the trial court's ruling. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the trial court's decision. Id. at 147.

Leggs argues the State did not prove he had "specific intent to place [Kimberly] in fear for trying to leave the residence," (Br. of Appellant at 13), and Kimberly's attempt to leave was not a prior lawful act as required by Ind.Code § 35–45–2–1. In support of his argument, Leggs relies on Casey v. State, in which we discussed the intent element of intimidation:

[I]t is apparent that the legislature intended to require the State to prove that the victim had engaged in a prior act, which was not contrary to law, and that the defendant intended to repay the victim for the prior lawful act.... [T]he State must establish that the legal act occurred prior to the threat and that the defendant intended to place the victim in fear of retaliation for that act.

676 N.E.2d 1069, 1072 (Ind.Ct.App.1997). Leggs asserts Kimberly's attempt to leave the apartment was not a "prior lawful act" because it did not occur before he threatened to kill her. We disagree.

The State presented evidence Leggs told Kimberly she was "gonna die tonight," (Tr. at 48), and then began stabbing in her direction. He then said, "You don't love me like you used to." (Id. at 51.) The State argues Leggs' actions were retaliation for his perception of Kimberly's feelings towards him, which was a lawful act. As this was a bench trial, we presume the judge knows and will follow the applicable law. Donaldson v. State...