Tancil v. State

• Citation: 956 N.E.2d 1204
• Decision Date: 21 November 2011
• Docket Number: No. 45A03–1101–CR–10.,45A03–1101–CR–10.
• Parties: Adron Herschel TANCIL, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

956 N.E.2d 1204

Adron Herschel TANCIL, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1101–CR–10.

Court of Appeals of Indiana.

Nov. 21, 2011.

Thomas W. Vanes, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Monika Prekopa Talbot, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Adron Herschel Tancil had a disagreement with his girlfriend, Tracey Johnson. He broke her sunglasses, chased her down the street, and threatened to kill her. He caught up with her and pushed and hit her. Tancil then carried the much smaller Johnson into some pitch-black woods and repeatedly punched her head, face, and body for what seemed to her “like a real long time.” Tr. at 183. Two nearby residents heard Tancil tell Johnson to shut up or he would kill her, and they called 911. When the police officers finally found Tancil and Johnson, Johnson appeared to be dead. Tancil told the officers, “I know I am going away for a long time.” Id. at 323. Johnson suffered significant facial injuries and a traumatic brain injury and was hospitalized for three days, after which she suffered from dizziness, hearing loss, and blurred vision. The State charged Tancil with attempted murder, aggravated battery, battery, and three counts of criminal confinement. A jury found him guilty as charged. Tancil filed a motion for a new trial on the attempted murder count, claiming that the verdict was against the weight of the evidence. The trial court denied the motion, and Tancil now appeals that ruling. Finding no abuse of discretion, we affirm.

Facts and Procedural History¹

In May 2010, Tancil and Johnson were in the process of ending their relationship. On the evening of May 15, 2010, Johnson came home to find Tancil waiting for her. The two had a disagreement. Tancil broke Johnson's sunglasses and prevented her from entering her home. Johnson walked away from the house, down the street, and toward a neighbor's walkway. When she reached the end of the block, she saw Tancil running after her. Tancil told Johnson, “Don't run in there. I am going to kill you. Just keep walking.” Id. at 176. Johnson began to run. Tancil caught up with her and pushed and hit her. Johnson broke free and ran down the street. Tancil caught up with Johnson again, and she fell. Tancil picked her up and carried her approximately sixty feet into some pitch-black woods. Two nearby residents heard Tancil shout, “Shut the [f* *k] up or I will kill you,” and “[C]an you accept that [?]” Id. at 143. Those residents called 911. The six-foot, 200–pound Tancil repeatedly punched the five-foot-two Johnson in the head, face, and body. According to Johnson, “[i]t seemed like [the beating lasted] a real long time.” Id. at 183. Tancil told Johnson, “When they see you, I am going to be gone for a long time.” Id. at 185.

Police officers arrived and unsuccessfully searched the woods with flashlights. When the officers emerged from the woods, one of the residents who had called 911 pointed them in the direction from which the shouting had come. The officers re-entered the woods and found Tancil lying on top of Johnson, who appeared to be dead. Tancil told the officers, “I know I am going away for a long time. And I f* * *ed up. You all might as well just do me right here. Just go and put two in my head.” Id. at 323.

Johnson was taken to the hospital. She suffered what Dr. Ruby Long, her attending physician, characterized as a “brain injury consistent with traumatic brain injury,” that is, an “injury to the head that is associated with pain, altered mental status, [and] loss of consciousness.” Id. at 303. Her face was significantly swollen and bruised, and she received stitches in her forehead and staples in her mouth. Johnson's hair extensions had been pulled out, along with some of her own hair. She did not suffer any broken bones, however, and a CAT scan was negative for intracranial swelling or bleeding. Johnson spent three days in the hospital, after which she suffered from dizziness, earaches, hearing loss, blurred vision, pain, and swelling.

On May 17, 2010, the State charged Tancil with attempted murder, aggravated battery, battery, and three counts of criminal confinement. A jury trial was held on November 1 and 2, 2010. During a hearing outside the presence of the jury, the trial court remarked sua sponte, “Maybe I am missing something. But this sounds like a battery. The only thing in the evidence to suggest that there may have been an intent to kill would have been the [nearby resident's testimony] that if you don't shut up, I am going to kill you.” Id. at 234. The jury ultimately found Tancil guilty as charged.

On November 17, 2010, Tancil filed a motion for a new trial on the attempted murder charge pursuant to Indiana Trial Rule 59(J), claiming that the verdict was against the weight of the evidence. On December 14, 2010, the trial court denied Tancil's motion, entered judgment of conviction only on the attempted murder count and one of the criminal confinement counts, and sentenced Tancil to concurrent terms of thirty years and ten years, respectively. Tancil now appeals the denial of his motion for a new trial on the attempted murder charge.

Discussion and Decision

Trial Rule 59(J)(1) authorizes a trial court to grant a new trial “if it determines that prejudicial or harmful error has been committed.” “In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence.” Ind. Trial Rule 59(J)(7). Our supreme court has held that “a trial judge, in ruling upon a motion to correct errors, has the duty to examine the evidence to ascertain whether or not there is evidence beyond a reasonable doubt to support the verdict of the jury.” Moore v. State, 273 Ind. 268, 271, 403 N.E.2d 335, 336 (1980).² “When ruling on a motion to correct error where the request is for a new trial, the trial court acts as a thirteenth juror and, as such, may weigh the evidence and judge the witnesses' credibility.” Jones v. State, 697 N.E.2d 57, 59 (Ind.1998); see also Weida v. Kegarise, 849 N.E.2d 1147, 1152 (Ind.2006) (“When asked to determine if a new trial is warranted because the verdict is against the weight of the evidence, the trial judge acts as juror rather ‘than a mere umpire’ and fulfills the judicial role having ‘ke[pt] his eyes and ears open to what was going on during the trial [in order to] pass upon the purely legal questions involved in the case, as well as determine the weight and sufficiency of the evidence to sustain the verdict.’ ”) (quoting Bailey v. Kain, 135 Ind.App. 657, 663–64, 192 N.E.2d 486, 488–89 (1963)).

At oral argument, the State asserted that a trial court must employ a sufficiency-of-the-evidence standard when ruling on a motion for a new trial. We disagree with this assertion, chiefly because that standard is geared for appellate review of jury verdicts and specifically prohibits weighing evidence and judging witness credibility. See, e.g., Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind.2010) (“In considering challenges to the sufficiency of the evidence, we neither reweigh the evidence nor judge witness credibility.”). Based on our reading of the relevant cases, we believe that when ruling on a motion for a new trial pursuant to Trial Rule 59(J)(7) in a criminal case, a trial court must evaluate the evidence and witnesses subjectively, in keeping with its role as the so-called thirteenth juror, and then make an objective determination whether, based on the probative and credible evidence, a reasonable juror could find the defendant guilty beyond a reasonable doubt.³See, e.g., Mem'l Hosp. of South Bend, Inc., v. Scott, 261 Ind. 27, 33, 300 N.E.2d 50, 54 (1973) (“On consideration of the granting of a new trial, the trial judge has an affirmative duty to weigh conflicting evidence. The trial judge sits as a ‘thirteenth juror’ and must determine whether in the minds of reasonable men a contrary verdict should have been reached.”) (citations omitted). This analytical framework best preserves the discrete functions and constitutional prerogatives of juries, trial courts, and appellate courts,⁴ while ensuring that “substantial justice will be done in every case.” Christy v. Holmes, 57 Ind. 314, 316 (1877).

On appeal, we review a trial court's ruling on a motion for a new trial for an abuse of discretion. Jones, 697 N.E.2d at 59.⁵ “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court.” Butler v. State, 951 N.E.2d 641, 645 (Ind.Ct.App.2011). “After an approved verdict, this court can only consider whether there is any evidence which, if believed, will support the verdict.” Harvey v. State, 541 N.E.2d 556, 559 (Ind.Ct.App.1989) (citing Moore ), trans. denied; Lowery v. State, 196 Ind. 316, 322, 148 N.E. 197, 197 (1925).

To reiterate, Tancil requested a new trial on the attempted murder charge on the basis that the jury's verdict was against the weight of the evidence. Murder is the knowing or intentional killing of another human being. Ind.Code § 35–42–1–1. “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” Ind.Code § 35–41–5–1(a). “An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.” Id. Here, the State alleged that Tancil, “while acting with the intent to kill, did intentionally attempt to kill Tracey Johnson by beating and punching her in the face, head and body.” Appellant's App. at 33.

Tancil makes the following argument:

The evidence here indicated no conduct...