Rutherford v. State
| Decision Date | 25 May 2007 |
| Docket Number | No. 49A04-0608-CR-462.,49A04-0608-CR-462. |
| Citation | 866 N.E.2d 867 |
| Parties | Michael RUTHERFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Rutherford appeals his convictions and six-year sentence for one count of Class C felony attempted battery with a deadly weapon and one count of Class D felony criminal recklessness. We affirm in part, reverse in part, and remand.
The issues before us are:
I. whether there is sufficient evidence to support Rutherford's convictions;
II. whether double jeopardy concerns preclude him from being convicted of both attempted battery and criminal recklessness; and
III. whether his sentence is appropriate.
On September 21, 2005, Annie Dancy drove her niece, Claudette Sanders-Brown, to her apartment in the Colonial Square complex in Indianapolis so she could pick up some items and spend the night with Dancy. Accompanying Dancy and Sanders-Brown were Dancy's two daughters, Bianca and Briana, her infant granddaughter, and her ex-husband, Michael Wilson, Sr. Dancy's son, Michael Wilson, Jr., was accused of having recently murdered Demetrius Nance, who had several friends who either lived or gathered at the Colonial Square apartment complex. When Dancy arrived at the complex, several persons were congregated outside on the steps of Sanders-Brown's apartment and the one next door.
Bianca, Briana, and Sanders-Brown collected some items from Sanders-Brown's apartment and put them in the car. Bianca and Briana got back into the car, and Bianca told Dancy to start the car because she was feeling nervous about being in the complex. Sanders-Brown had to return to her apartment for one more thing, however. Before she did so, Javon Cushenberry walked in front of Dancy's vehicle and after doing so said, "you better ride the f* * * out right now." Tr. p. 70. Soon thereafter, Cushenberry drew a handgun and fired a shot at Dancy's vehicle. Sanders-Brown then ran or crawled up the steps to her apartment while Dancy attempted to drive away quickly. While running or crawling up the steps, Sanders-Brown saw two other individuals to her left firing shots at Dancy's vehicle as it fled the apartment complex. She identified these men as Rutherford and Jovan Stewart. Dancy's vehicle was struck by at least three bullets. One shot shattered the rear passenger window, which caused cuts to Briana. Another shot lodged in the back of the passenger seat directly behind the infant's car seat. A third penetrated the vehicle above the right rear tire. There is conflicting evidence as to how many shots in total were fired at the vehicle.
The State charged Rutherford, along with Cushenberry and Stewart, with one count of Class A felony attempted murder, two counts of Class D felony criminal recklessness, and one count of Class D felony intimidation. The trial court conducted a bench trial on July 11, 2006. At the conclusion of the State's evidence, the trial court granted Rutherford's motion for judgment on the evidence with respect to the intimidation charge and one of the criminal recklessness charges. The trial court also ruled that Rutherford could not be convicted of attempted murder, but that it would proceed on that charge of the information as a lesser-included offense of Class C felony attempted battery. After the defense rested, the trial court found Rutherford guilty of Class C felony attempted battery and Class D felony criminal recklessness. It also entered judgments of conviction for both counts. It sentenced Rutherford to six years for the attempted battery conviction, with two years suspended and two years of probation; it also sentenced Rutherford to 547 days for the criminal recklessness conviction, to be served consecutive to the six-year Class C felony sentence.1 Rutherford now appeals.2
Rutherford first claims there is insufficient evidence that he was one of the individuals who fired a shot or shots at Dancy's vehicle. When considering a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Trimble v. State, 848 N.E.2d 278, 279 (Ind.2006). If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.
Rutherford specifically claims that the testimony of Sanders-Brown, who was the only witness to identify him as a shooter, was unreliable. A single eyewitness's testimony is sufficient to sustain a conviction. Badelle v. State, 754 N.E.2d 510, 543 (Ind.Ct.App.2001), trans. denied. Any inconsistencies in identification testimony go only to the weight of that testimony, as it is the task of the fact-finder to weigh the evidence and determine the credibility of the witnesses. Id. We do not weigh the evidence or resolve questions of credibility when determining whether the identification evidence is sufficient to sustain a conviction. Id.
Sanders-Brown testified that she knew Rutherford personally because she had gone to high school with him. On the day after the shooting, she picked Rutherford out of a police photo lineup as being one of the shooters; Rutherford does not contend that the lineup was unduly suggestive or performed improperly. At trial, Sanders-Brown stood by her identification of Rutherford as being one of the shooters. She also stated that although it was evening and getting dark outside, a nearby streetlight allowed her to see him and that she had no doubt that he was one of the shooters. Rutherford suggests that Sanders-Brown would not have been able to see who was shooting because of the lighting conditions and the chaos of her running up the stairs trying to seek safety. However, the fact-finder, in this case the trial court, had the exclusive responsibility to decide whether to believe Sanders-Brown's identification testimony, after observing her first-hand and considering reasons to believe or not believe her. We will not interfere with the trial court's decision to believe her. There is sufficient evidence to support Rutherford's convictions.
Next, Rutherford contends that his convictions for both attempted battery and criminal recklessness violate the Indiana Constitution's Double Jeopardy Clause. That Clause, found in Article 1, Section 14 of the Indiana Constitution, "was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression." Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). Two or more offenses are the "same offense" in violation of the Indiana Double Jeopardy Clause, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id. Under the "actual evidence" test, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish all of the essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). To determine what facts were used, we consider the evidence, charging information, final jury instructions (if there was a jury), and arguments of counsel. Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct.App.2005).
To convict Rutherford of Class C felony attempted battery with a deadly weapon, the State was required to prove that he (1) engaged in the commission of a substantial step toward (2) knowingly or intentionally (3) touching another person (4) in a rude, insolent or angry manner (5) by means of a deadly weapon. See Matthews v. State, 476 N.E.2d 847, 849 (Ind. 1985) (citing Ind.Code §§ 35-42-2-1 and 35-41-5-1). The requisite culpability for attempted battery with a deadly weapon exists if the defendant's conscious objective is to shoot another person, or where the defendant is at least aware of a high probability that, by his or her conduct of shooting, one of the bullets would strike another person. Id. at 849-50. By comparison, to convict Rutherford of Class D felony criminal recklessness as charged here, the State was required to prove that he recklessly, knowingly, or intentionally performed an act that created a substantial risk of bodily injury to another person while armed with a deadly weapon. I.C. § 35-42-2-2(b)(1) and (c)(2)(A). Although the elements of these offenses are not identical, there clearly is substantial overlap between them.
This overlap is continued in the wording of the charging information the State filed. The original attempted murder charge against Rutherford alleged that he knowingly shot a deadly weapon into a vehicle occupied by Dancy, her granddaughter, Michael Wilson, Sr., Briana, and Bianca, with intent to kill them. The criminal recklessness charge alleged that Rutherford while armed with a deadly weapon recklessly performed an act that created a substantial risk of bodily injury to Dancy, her granddaughter, Michael Wilson, Sr., Briana, and Bianca, and specified that the act was firing into the occupied vehicle. Clearly, Rutherford's act of firing into Dancy's vehicle was what the State intended to rely on to support both the attempted murder/battery charge and the criminal recklessness charge.
On appeal, the State posits that there was separate evidence supporting the two charges: namely, that the attempted...
To continue reading
Request your trial
-
Ramon v. State
...jury instructions ... and arguments of counsel.'" Smith v. State, 872 N.E.2d 169, 177 (Ind.Ct.App.2007) (quoting Rutherford v. State, 866 N.E.2d 867, 871 (Ind.Ct.App. 2007)), trans. Rape is a class A felony when it is committed using or threatening the use of deadly force or it results in s......
-
Brown v. State
...trial court's sentencing decision, we recognize the unique perspective a trial court brings to such determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). Moreover, we observe that Brown bears the burden of persuading this court that his sentence is inappropriate. Ruthe......
-
Kedrowitz v. State
...decision, "we understand and recognize the unique perspective a trial court brings to its sentencing decisions." Rutherford v. State , 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The trial court sentenced Kedrowitz to fifty years of incarceration for each of his murder convictions and ordered......
-
Sanjari v. State
...decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). As previously mentioned, the trial court sentenced Sanjari to an aggregate ten years of incarceration. The nature of S......