Taylor v. State
| Decision Date | 31 January 2008 |
| Docket Number | No. 49A02-0706-CR-472.,49A02-0706-CR-472. |
| Citation | 879 N.E.2d 1198 |
| Parties | Ledon TAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Lisa M. Johnson, Special Assistant, Marion County Public Defender, Appellate Div., Brownsburg, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Seventeen-year-old Ledon Taylor stole a car occupied by two children. When the children's father, Thomas Ardizone, pursued Taylor, Taylor abandoned the car. He removed a purse from the car and shot at Thomas. Taylor was convicted of two counts of kidnapping, Class A felonies;1 two counts of confinement, Class B felonies;2 two counts of auto theft, Class D felonies;3 theft, a Class D felony;4 attempted murder, a Class A felony;5 and dangerous possession of a firearm, a Class A misdemeanor.6
Taylor raises the following issues on appeal: (1) whether there was insufficient evidence of a knowing mental state to support his convictions of kidnapping and confinement; (2) whether there was insufficient evidence of hijacking to support his conviction of kidnapping; (3) whether his convictions of kidnapping and confinement merge; (4) whether his convictions of theft and auto theft merge; (5) whether the jury was improperly instructed on attempted murder; and (6) whether his sentence is inappropriate. Finding his convictions of kidnapping and confinement merge, we affirm in part, reverse in part, and remand for the court to vacate Taylor's convictions and sentences of confinement.
On February 26, 2006, Thomas and Shawn Ardizone pulled out of their garage in their Acura. Their two sons, a seven-year-old and a four-year-old, were sitting in car seats in the back seat of the car. As they exited the garage, they realized they had forgotten a bathing suit. Thomas parked the car and went inside to look for the bathing suit. When he did not return promptly, Shawn went inside. The car was left running with the two front doors open and the children still in the back seat.
While the Ardizones were inside, Taylor and Antonio Glaspy pulled into the Ardizones' subdivision in a Ford Escape7 and saw the Acura running. Taylor stated he was going to take it. He exited the Escape and got into the Acura. The Ardizones came out of their home as Taylor was beginning to back out of the driveway. The Ardizones ran toward the car, yelling repeatedly, (Tr. at 24.) Thomas pounded on the front passenger's side of the Acura and continued yelling for his children. Taylor gave Thomas a "very smug" look. (Id. at 97.)
Thomas retrieved keys to their TrailBlazer and drove off after Taylor while Shawn called 911. Taylor exited the subdivision and drove away at a high rate of speed. Taylor caught up with Glaspy in the Escape. He pulled along side Glaspy and motioned Glaspy to pull over. Taylor pointed to the back seat, indicating there were children in the car.
Taylor pulled the Acura to the side of the road about one mile from the Ardizones' home. Taylor exited the Acura, taking Shawn's purse with him. Thomas pulled up in the TrailBlazer, which he stopped between the Acura and the Escape. As Taylor was getting into the Escape, he pulled a gun out of the waistband of his pants, aimed it directly at Thomas, and ordered Thomas to "get back." (Id. at 184.) Taylor fired a shot, which hit Thomas in the lower back. Taylor fired three or four additional shots, then got in the Escape with Glaspy, who drove away.
A jury found Taylor guilty of the offenses listed above. The trial court found Taylor's age carried some mitigating weight and found two aggravators: Taylor has an extensive juvenile record and the attempted murder was committed in the presence of the Ardizone children. Taylor was sentenced to forty years for attempted murder, forty years for each kidnapping conviction, twenty years for each confinement conviction, three years for one count of auto theft, one and a half years for the other count of auto theft, one and a half years for theft, and one year for dangerous possession of a firearm. His sentences for confinement were to be served consecutively to his sentence for attempted murder, while all other sentences were to be served concurrently, making his aggregate sentence sixty years.
Taylor argues his convictions of kidnapping and confinement cannot stand because there is insufficient evidence he knew the children were in the car when he stole it. In reviewing sufficiency of evidence, we do not reweigh the evidence or judge the credibility of witnesses. Dinger v. State, 540 N.E.2d 39, 39 (Ind.1989). We consider the evidence most favorable to the verdict, along with all reasonable inferences, to determine whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. at 39-40.
Taylor's argument that he abandoned the car soon after realizing the children were in the car is an invitation to reweigh the evidence, which we decline.8 The evidence favorable to the verdict establishes the crime was committed on a sunny day, the windows of the Acura were not tinted, and the Ardizones yelled loudly and repeatedly for their children as Taylor was pulling out of the driveway. Taylor acknowledges he "did not abandon the car the instant he discovered it was occupied." (Appellant's Br. at 8.) Instead, he continued driving away with the children until he had secured his escape. A reasonable trier of fact could conclude Taylor knew there were children in the car as he approached it or almost immediately after he entered it. There was sufficient evidence he knowingly committed the offenses.
Taylor was charged with kidnapping by hijacking: "A person who knowingly or intentionally confines another person ... while hijacking a vehicle ... commits kidnapping, a Class A felony." I.C. § 35-42-3-2(a). Hijacking is the exercise of "unlawful or unauthorized control of a vehicle by force or threat of force upon the vehicle's inhabitants." Zimmerman v. State, 785 N.E.2d 1158, 1161 (Ind. Ct.App.2003) (quoting Clayton v. State, 658 N.E.2d 82, 87 (Ind.Ct.App.1995)), trans. denied 792 N.E.2d 50 (Ind.2003).
Taylor argues there was no evidence he used or threatened to use force. We disagree. Taylor knew the children were in the car and were restrained in car seats. The doors of the Acura locked when Taylor put it in gear. The children could not escape because Taylor drove the car at a high rate of speed.
The danger to the Ardizone children falls squarely within the risk the legislature intended to prevent:
We discern that the legislature had it in mind in enacting this part of the kidnapping statute to prevent persons from being exposed to that special danger, that increased probability of injury or death, which results when one is seized and confined or transported in a commandeered vehicle. The message intended for the would-be wrong doer, is that if you are going to steal or commandeer a vehicle, let the people in it go and don't force people into it against their will.
Wilson v. State, 468 N.E.2d 1375, 1378 (Ind.1984).
When the victims are children, a defendant may need only minimal force to accomplish a hijacking. That the victims are relatively helpless does not absolve the defendant of liability for kidnapping. Taylor took advantage of the fact the children were restrained in car seats and locked in the car. He took further steps to prevent their escape by driving at a high rate of speed.
Taylor compares his case to Smith v. State, 270 Ind. 479, 386 N.E.2d 1193 (1979), and Zimmerman v. State, 785 N.E.2d 1158 (Ind.Ct.App.2003), trans. denied 792 N.E.2d 50 (Ind.2003), where the defendants were found not guilty of kidnapping despite their knowledge the vehicles they entered were occupied. However, the victims in Smith and Zimmerman were adults who were able to remove themselves from the vehicle without injury. Even if the Ardizone children could have gotten out of their car seats and unlocked the doors, they could not have exited the vehicle safely. Therefore, we conclude there was sufficient evidence of hijacking to support Taylor's kidnapping convictions.
Taylor asserts his convictions of kidnapping and confinement merge under the continuing crime doctrine. We agree. The kidnapping and confinement statutes may be violated by confining a person or removing a person. One continuous confinement may result in only one conviction, even if the defendant both confines and removes a person. Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002). "A confinement ends when the victim both feels and is, in fact, free from detention, and a separate confinement begins if and when detention of the victim is re-established." Id.9
Taylor was convicted of kidnapping by confining a person while hijacking a vehicle and of confinement by removing a person. Although they are distinct acts, they are one chargeable offense if the confinement was continuous. The Ardizone children were confined when Taylor took control of the Acura, and they were continuously confined until he abandoned the car and fled the scene. Therefore, there was only one chargeable offense, and his convictions of confinement merge with his convictions of kidnapping. Accordingly, we order the trial court to vacate the confinement convictions and sentences. See id. at 401 ().
Taylor also asserts his convictions of theft and auto theft should merge under the single larceny rule.
The prevailing rule is that when several articles of property are taken at the same time, from...
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