Waldon v. State
| Decision Date | 14 June 2005 |
| Docket Number | No. 79A02-0401-CR-35.,79A02-0401-CR-35. |
| Parties | Bruce A. WALDON, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Kevin R. O'Reilly, Lafayette, for Appellant.
Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, for Appellee.
Bruce A. Waldon appeals from his convictions for five counts of Burglary as Class C felonies;1 five counts of Theft as Class D felonies;2 one count of Corrupt Business Influence, a Class C felony;3 three counts of Conspiracy to Commit Burglary as Class C felonies;4 and three counts of Contributing to the Delinquency of a Minor, Class A misdemeanors.5 In addition, he was found to be an habitual offender.6 He presents several issues for our review which we restate as:
I. Whether the trial court committed error when it denied his motion for severance of many of the charges;
II. Whether there was sufficient evidence to support Waldon's conviction for Corrupt Business Influence;
III. Whether the prosecutor committed misconduct;
IV. Whether some convictions violate double jeopardy; and
V. Whether his sentence is valid.
We affirm the convictions but remand for resentencing.
During the summer of 2002, Waldon recruited the assistance of three juveniles: D.A., S.K., and his son, J.W. Waldon, S.K., and occasionally J.W. would break and gain entry into businesses in the Lafayette area by prying around the locks on their doors with a screwdriver. Once inside, they would search for cash but would take other property, such as hair care products, when it was available. While they were inside, D.A., who served as the driver, would act as a lookout and communicate with the others via walkie-talkie. After leaving the businesses, Waldon would divide the proceeds, and D.A. would take him home.
After some investigation, Waldon and his associates became suspects in the crimes. The police approached D.A. and asked him to allow them to put a GPS tracking device on his car and for him to wear a wire when the group went out. D.A. agreed. On May 29, 2002, D.A. informed the police that he, Waldon, and S.K. would be going out that night. Officers followed D.A.'s car that night as the three made their way to Carroll County where they attempted to commit burglaries of two businesses. Upon returning to Tippecanoe County, officers stopped the vehicle and the occupants were taken into custody. Waldon was then tried for multiple crimes alleged to have been committed by him and his cohorts.
Two or more offenses may be joined in the same indictment or information when the offenses are (1) of the same or similar character, even if not part of a single scheme or plan, or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Ind.Code § 35-34-1-9 (Burns Code Ed. Repl.1998). If two or more offenses are joined for a trial in the same indictment or information solely upon the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. Ind.Code § 35-34-1-11 (Burns Code Ed. Repl.1998). See also Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind.1997), cert. denied 525 U.S. 1108, 119 S.Ct. 877, 142 L.Ed.2d 777 (1999). In all other cases, upon motion to the trial court, the court shall grant a severance whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense. I.C. § 35-34-1-11; Ben-Yisrayl, 690 N.E.2d at 1145. In so doing, the trial court is to consider (1) the number of offenses charged, (2) the complexity of the evidence to be offered, and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. I.C. § 35-34-1-11; Ben-Yisrayl, 690 N.E.2d at 1145.
Waldon asserts that the trial court erred in denying his motion to sever several of the counts for trial. Waldon's request was that seven trials be held, with each trial limited to charges which related to the alleged crimes committed on a single day. His basis for seeking severance was that the offenses had been joined because they were of the same or similar character. The State responded by asserting that the evidence of all of the crimes would necessarily have to be presented in order to support the charge of Corrupt Business Influence. Furthermore, the State alleged that the crimes were part of a single scheme or plan to burglarize businesses and the crimes were distinctive in nature. The trial court denied the motion to sever upon the ground that the evidence was admissible in order to prove the charge of Corrupt Business Influence.
Upon appeal, the parties focus upon whether the offenses were only of the same or similar character or whether they were part of a single scheme or plan. In Ben-Yisrayl, supra, our Supreme Court reviewed the facts of the case before it and determined that the crimes for which the defendant was charged had the same modus operandi. 690 N.E.2d at 1145. Both shootings involved victims who were clerks and were killed at their place of employment while working between the hours of 6:00 p.m. and 8:00 p.m. The assailant in both shootings drove a white Nissan Sentra. The cash registers were emptied in both crimes, and the victims were shot in the head at close range with a .12 gauge shotgun. The crimes were committed in the same city, two days apart, and the motive was robbery. Consequently, the Court held that the facts were sufficient to show a series of acts connected together and were not joined solely because they were of the same or similar character. Id. at 1146. Thus, severance was not mandated as a matter of right and was a matter within the trial court's discretion, taking into account the three factors listed in I.C. § 35-34-1-11(a)(1)-(3). Id.
In Brown v. State, 650 N.E.2d 304 (Ind.1995), the defendant was charged with seven separate counts, three stemming from acts committed on July 1 and the remaining for acts committed on July 2. The defendant requested that the charges be tried separately based upon the days they were committed. The Supreme Court held that the charges "were not joined because of any perceived similarities in the nature of the crimes but because all crimes occurred during the course of a two-day crime spree." Id. at 305. The Court then stated that it would "reverse the judgment and order new, separate trials if the defendant [could] `show that in light of what actually occurred at trial, the denial of a separate trial subjected him to such prejudice that the trial court abused its discretion in refusing to grant his motion for severance."' Id. at 306. The Court then held that the acts constituted an uninterrupted transaction and as such would be admissible under the rule of res gestae at both trials if separate trials had been held. Id.7 Thus, there was no prejudice in the denial of the motion to sever. Id.
In Harvey v. State, 719 N.E.2d 406 (Ind.Ct.App.1999), this court reviewed a trial court's decision to deny a motion to sever the offenses stemming from two robberies. The robberies took place at approximately the same time of day in the same part of Indianapolis between Ditch Road and Michigan Road on West 86th Street. They occurred four days apart. The suspects in both cases were two black males, one very tall and the other fairly short. The larger suspect wielded a handgun in both crimes and physically manipulated the victims while the smaller suspect, Harvey, assisted. In both instances, the larger suspect pistol-whipped the victim after emptying the cash register. This court noted that while some of these similarities are inherent in many robberies, the facts were sufficient to show a "`series of acts connected together"' induced by a common motive to rob. Id. at 409. Thus, the defendant was not entitled to severance as a matter of right. Id.
In determining whether the trial court abused its discretion in denying the motion to sever, this court noted the principle that the decision is within the discretion of the trial court and will be upheld absent a showing of clear error. Id. To show that the trial court abused its discretion, the defendant must demonstrate in light of what actually occurred at trial that the denial of a separate trial subjected him to prejudice. Id. The court then held that because Harvey was acquitted of all charges stemming from the first robbery, the jury was able to distinguish the evidence and apply the law intelligently to each offense. Id. at 409-10. Additionally, the acquittal of charges from one joined offense makes the misjoinder unavailable for reversal of the judgment. Id. at 410. Consequently, the trial court did not abuse its discretion by denying the motion to sever. Id.
In the case before us, Waldon and his juvenile accomplices would meet around 10:30 or 11:00 p.m. to burglarize businesses in Lafayette. Waldon and at least one other juvenile would break into a business while another individual would wait in the vehicle for them to return. In almost every case, Waldon used a screwdriver to pry the doors to businesses open and then would enter the business and take money. If no money was available, they would take other things such as hair care products. They would also communicate via walkie-talkies. Additionally, the burglaries were committed within the span of a few days. From this evidence, we conclude that the episodes of criminal conduct were more than just of the same or similar character. Rather, the actions show a series of acts which constitute parts of a single scheme or plan with the motive to steal money. Consequently, severance was not available as a matter of right but instead was a matter within the discretion of the trial court.
Waldon argues that he initially faced...
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