Owsley v. State
| Decision Date | 30 May 2002 |
| Docket Number | No. 49A04-0108-CR-340.,49A04-0108-CR-340. |
| Citation | 769 N.E.2d 181 |
| Parties | Darwin A. OWSLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kevin C.C. Wild Indianapolis, IN, for appellant.
Steve Carter, Attorney General of Indiana, Scott A. Kreider, Deputy Attorney General Indianapolis, IN, for appellee.
Darwin Owsley appeals his conviction for conspiracy to commit dealing in cocaine, a Class B felony. We reverse and remand.
The sole restated issue before us is whether Owsley's conviction for conspiracy to commit dealing in cocaine is irreconcilable and impermissibly inconsistent with his acquittals for possession of cocaine and dealing in cocaine arising out of the same alleged criminal transaction.
On the evening of October 24, 2000, an IPD narcotics unit was conducting a "buy bust" operation to find and arrest street-level drug dealers. Detective Mike Campbell turned his undercover vehicle onto 26th Street off of Capitol Avenue and parked about one-half block from a gathering of several people. A man later identified as Antwuan Stallworth approached Campbell's vehicle; Campbell asked Stallworth if he could purchase twenty dollars worth of rock cocaine. Campbell testified that an individual later identified as Owsley then walked toward Stallworth at Stallworth's beckoning, and the two had a brief conversation at the rear of Campbell's vehicle. According to Campbell's testimony, Owsley then reached into the waistband of his pants, pulled out some kind of object that Campbell could not see, made a snapping motion with his hand, and then placed something in Stallworth's hand. Stallworth then walked directly to Campbell and gave him a rock of cocaine from that same hand in exchange for a twenty-dollar bill. Almost immediately after this transaction, other officers arrested Stallworth and Owsley. Owsley was found to be in possession of the pre-recorded twenty-dollar bill Campbell had given Stallworth, but a search of Owsley's person and the surrounding vicinity uncovered no cocaine or other contraband.
The State charged both Stallworth and Owsley with conspiracy to commit dealing in cocaine, dealing in cocaine, and possession of cocaine. With respect to the conspiracy charge, the information alleged that "Darwin Owsley performed the following overt act in furtherance of the agreement: provided cocaine to Antwuan Stallworth." Appendix p. 27. This was the only alleged and pled overt act. Stallworth entered into a plea agreement with the State, whereby he would plead guilty to the conspiracy charge and the other charges would be dismissed. At Stallworth's plea hearing, he initially denied that Owsley was involved in the October 24 drug sale, but he changed his story after consultation with his attorney.
A jury trial was conducted on April 23 and 24, 2001. In contrast to the testimony of the IPD officers, Owsley and his sister, mother, and brother offered testimony to the effect that the people on 26th Street observed by Campbell were there for Owsley's nineteenth birthday party, that Stallworth (aka "Pretty Boy") had approached Campbell's vehicle by himself, and that Stallworth then walked back toward the gathering and gave Owsley a twenty-dollar bill, telling him, "happy birthday." Additionally, Stallworth, recanting his previous explanation, testified that Owsley had nothing to do with this drug sale and that he had obtained the cocaine given to Campbell from another person, claiming he had lied at his guilty plea hearing about Owsley's involvement in order to secure his deal. During opening and closing arguments, the State urged that the overt act in furtherance of the conspiracy was Owsley's providing the cocaine to Stallworth, as was alleged in the charging information. The jury returned with verdicts acquitting Owsley of possession of cocaine and dealing in cocaine, but finding him guilty of conspiracy to commit dealing in cocaine. This appeal now follows.
Owsley urges that the verdicts in this case are fatally inconsistent. This court and our supreme court have repeatedly rejected arguments such as this. Our research reveals that no reported Indiana decision has ever reversed a conviction on this basis. Nevertheless, it is plainly the law in Indiana that we will review verdicts for consistency and take corrective action if necessary. See Marsh v. State, 271 Ind. 454, 460, 393 N.E.2d 757, 761 (1979)
. With respect to the conspiracy conviction and possession acquittal in this case, we acknowledge that the verdicts are so wholly inconsistent as to require vacation of the conspiracy conviction. To conclude otherwise would require us to hold that there could never be such a thing as inconsistent verdicts, which would clearly and impermissibly contravene precedent of our supreme court.
The law concerning alleged inconsistencies in criminal verdicts has as one of its key starting points the opinion of Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), authored by Justice Holmes:
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold.... That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.
Id. at 393-94, 52 S.Ct. at 190-91 (internal citations omitted).
Our supreme court, however, has expressly rejected a strict application of the Dunn rule:
While never having reversed a case on the basis of inconsistent verdicts, this Court has consistently evinced concern over the possibility of inconsistent verdicts when faced with the issue by establishing that the verdicts are in fact not necessarily inconsistent.... We therefore conclude that the better, and de facto rule is not a narrow interpretation of Dunn v. United States.... Rather this Court has looked and will continue to look at verdicts to determine if they are inconsistent. While perfectly logical verdicts should not be demanded, extremely contradictory and irreconcilable verdicts warrant corrective action by this Court.
Marsh v. State, 271 Ind. 454, 460, 393 N.E.2d 757, 761 (1979) (internal citations omitted). Marsh is still the law in this state, although the subsequent twenty-three years have not yet produced a reversal based upon inconsistent verdicts. See, e.g., Hodge v. State, 688 N.E.2d 1246, 1248 (Ind.1997)
(quoting Jackson v. State, 540 N.E.2d 1232, 1234 (Ind.1989)) ("Verdicts may be so extremely contradictory and irreconcilable as to require corrective action.").
Until our supreme court expressly directs otherwise, we are compelled to look at verdicts to determine whether they are consistent.
Although we review verdicts for consistency, there is little explicit guidance in Indiana case law as to what will constitute "extremely contradictory and irreconcilable verdicts" that may necessitate "corrective action." Some cases hold that where the trial of one defendant results in acquittal upon some charges and convictions on others, the results ordinarily will survive a claim of inconsistency where the evidence is sufficient to support the convictions. Hodge v. State, 688 N.E.2d 1246, 1249 (Ind.1997) (quoting Jackson v. State, 540 N.E.2d 1232, 1234 (Ind.1989)). As former Chief Judge Ratliff noted some years ago, this proposition seems fundamentally incompatible with the notion that two verdicts on separate counts of an information could ever be inconsistent and would indicate that convictions are simply reviewed for the sufficiency of the evidence, not for consistency with acquittals on other charges. See Sayles v. State, 513 N.E.2d 183, 188 (Ind.Ct.App.1987),
trans. denied.
In practice, however, Indiana courts have routinely made an effort to ensure that opposing verdicts on different counts can be rationally reconciled. Judge Shields provided this test for analyzing whether verdicts are inconsistent:
[D]eterminations are inconsistent only where they cannot be explained by weight and credibility assigned to the evidence. Thus, an acquittal on one count will not result in reversal of a conviction on a similar or related count, because the former will generally have at least one element (legal or factual) not required for the latter. In such an instance, the finder of fact will be presumed to have doubted the weight or credibility of the evidence presented in support of this distinguishing element.
Neuhausel v. State, 530 N.E.2d 121, 123 n. 2 (Ind.Ct.App.1988). Verdicts that initially may seem inconsistent on some level are not legally inconsistent if they can be explained by the fact-finding body's exercise of its power to assign the proper weight to and either accept or reject certain pieces of evidence.1 Thus, for example, in Jackson our supreme court held the defendant's conviction for one count of rape was not inconsistent with his acquittals on another count of rape that allegedly occurred at another time and place, although both counts were allegedly perpetrated against the same victim, because the jury was free to believe some portions of the victim's testimony and reject other portions. 540 N.E.2d at 1234. Also, we held in Edwards v. State that the defendant's conviction for exploitation of an endangered adult was not inconsistent with his acquittal for theft arising from the same set of facts, noting that the exploitation charge required only a mens rea of recklessness but theft required at least knowing or intentional conduct. 730 N.E.2d...
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