Weyls v. State
| Decision Date | 01 September 1992 |
| Docket Number | No. 06A05-9112-CR-420,06A05-9112-CR-420 |
| Citation | 598 N.E.2d 610 |
| Parties | Scott WEYLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Ronald L. Lehrman, Lebanon, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Scott Weyls appeals his convictions following a jury trial on two counts of robbery, class B felonies, two counts of theft, class D felonies, and one count of vehicle theft, a class D felony. On appeal he raises six issues which we have consolidated and restated as:
1. Whether the trial court erroneously admitted evidence of extrinsic offenses;
2. Whether the evidence is sufficient to support each conviction;
3. Whether the trial court erroneously refused Weyls's tendered instruction on the defense of voluntary intoxication; and
4. Whether the trial court erroneously gave the State's instruction 3 and refused Weyls's tendered instruction 5 on aiding and abetting.
The State brings to our attention an issue not raised by Weyls, but which we must address: Whether the convictions and sentences for the two theft charges (but not the vehicle theft charge) are improper and should merge with the robbery convictions and sentences.
We affirm in part, reverse in part and remand for vacation of the theft convictions.
On the night of January 16, 1991, Weyls and two companions, Gerald Bivins and Ronnie Chambers, were together at Bivins's home in Lafayette. They all left in Bivins's wife's car and went to the Lazarus store in the Tippecanoe Mall. At the Lazarus store, they stole several pairs of jeans and returned to Bivins's home where they divided the jeans among themselves. The three then set out for a Speedway gas station near the Dollar Inn in Lafayette. There, Chambers broke out a window and they waited to see if the police would respond to an alarm. While waiting, Chambers noticed an open door at the Dollar Inn and he and Bivins went to rob the men in the room. Weyls moved into the driver's seat of the car and waited for them to return. Chambers and Bivins returned with two duffel bags containing the items they took from the occupants of the Dollar Inn room. The three then returned to Bivins's home and Weyls and Bivins carried the duffel bags into the house.
Weyls, Bivins and Chambers then proceeded to the Holiday Inn in Lebanon. Weyls waited in the car while Bivins and Chambers went inside. Kevin Hritzkowin, a guest at the Holiday Inn, returned to his room shortly after 11:00 p.m. When he did so, two men with guns accosted him, forced him into his room, tied him up and threatened to kill him. The men put a pillow case over his head and tied him to the handrail in the bathtub. Hritzkowin could hear the men ransacking his room. They took his money, credit cards, keys to his employer's van, and bank card and forced Hritzkowin to tell them his ATM password number. While the room was being ransacked, Hritzkowin heard a third man knock on the door and be admitted to the room. He heard the third man ask what was going on and heard him say "I'll go check out the rest of the hotel." Hritzkowin could not identify Weyls as the third man but did testify that Weyls's voice was similar to the one he had heard. Hritzkowin's company van was discovered missing from the hotel parking lot and was discovered the next day in a parking lot in Lebanon. Several unsuccessful attempts to obtain money with Hritzkowin's bank card at an ATM were made that night.
On their way back to Lafayette, Weyls, Bivins and Chambers stopped at a rest stop along northbound I-65 to use the restroom. Chambers noticed a man with a fat wallet, William Radcliffe, and Chambers and Bivins followed this man back into the restroom. Weyls proceeded to the car. When Bivins and Chambers returned to the car, Bivins told Weyls that someone had died in the restroom. Radcliffe's body was discovered in the restroom and his wallet was missing. Many of the items from his wallet were later discovered in a dumpster behind a grocery store in Rossville and from the landfill where the trash from the dumpster had been taken. One piece of identification was found stuck in a mile marker post on northbound I-65. Weyls, Bivins and Chambers had stopped at this mile marker after leaving the rest stop and had put something in the post.
Weyls was charged with Robbery, Theft, and Vehicle Theft in connection with the events at the Holiday Inn, and with Robbery and Theft in connection with the events at the rest stop. A jury found him guilty on all five counts and the trial judge entered convictions on all counts. Weyls was sentenced to 20 years for the robbery conviction and three years each for the theft convictions stemming from the Holiday Inn occurrence, the sentences to run concurrently, and he was sentenced to 20 years for the robbery conviction and three years for the theft conviction stemming from the rest stop occurrence, the sentences to run concurrently and consecutively to the other sentences.
Prior to trial, the trial court granted Weyls's motion in limine prohibiting the State from introducing certain extrinsic offense evidence, specifically: 1) shoplifting at the Lazarus store in Lafayette, 2) possession of property stolen from the Lazarus store, 3) attempted burglary of the Speedway gas station in Lafayette, 4) robbery at the Dollar Inn in Lafayette, and 5) the murder of William Radcliffe. The State was subsequently allowed to introduce this evidence, with the exception of Radcliffe's murder. Weyls's argues that the trial court improperly allowed this testimony contrary to the motion in limine.
We first note that granting a motion in limine is not a final reviewable order. Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475. The purpose of a motion in limine is "to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to a jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself. Id. Prior to attempting to introduce the extrinsic offense evidence covered by the motion in limine in this case, the State properly sought a ruling during the trial on its admissibility. Thus, the purpose for which the motion in limine was obtained was served. Although Weyls frames the issue in terms of the trial court erroneously acting contrary to the motion, the motion in limine is not reviewable upon appeal. Id.
Weyls did, however, object to the extrinsic offense evidence when it was admitted at trial and has preserved his issue as to its admissibility. Weyls argues that the evidence of the crimes committed in Lafayette was not properly admissible because the evidence did not fall under one of the exceptions to the general rule that evidence of extrinsic offenses is not admissible.
Evidence concerning offenses extrinsic to the one for which a defendant is on trial is generally inadmissible for three reasons: 1) the danger that the jury will convict the defendant because of his general bad character, 2) indiscriminate admission of extrinsic offenses compels a defendant to meet accusations without notice, and 3) extrinsic offenses raise collateral issues that confuse the jury and divert attention away from the charged crimes. Gibbs v. State (1989), Ind., 538 N.E.2d 937; Street v. State (1991), Ind.App., 567 N.E.2d 1180, trans. denied.
Several exceptions to this general rule have developed. For a comprehensive discussion of the exceptions, which need not be repeated here, see Street, supra at 1184-85. One of the exceptions allows evidence of extrinsic offenses if the evidence tends to prove the existence of a preconceived plan which includes the charged offense. Gibbs, supra at 939. Under this "common scheme or plan" exception, the extrinsic offenses must "be so related in character, time and place of commission as to establish some plan which embraced both the prior and subsequent criminal activity and the charged crime." Id. at 939 (quoting Malone v. State (1982), Ind., 441 N.E.2d 1339, 1347).
At trial, the State urged the trial court to admit the extrinsic offense evidence under this "common scheme or plan" exception. We need not discuss, however, whether the evidence was properly admitted under this exception because we conclude it was properly admitted under another theory and we may affirm a trial court's ruling on admissibility on any theory supported by the record.
Quite apart from the rule against the admission of extrinsic offense evidence and the several exceptions thereto, there is another theory under which evidence of uncharged crimes may be admissible. This is the "inseparable crimes" or "res gestae" theory. As is explained in a treatise on Indiana law, Indiana courts use this phrase to describe happenings near the charged crime in time and place, which "complete the story of the crime on trial by proving its immediate context." 12 Miller, Indiana Evidence, Sec. 404.206, at 259 (quoting McCormick, Evidence Sec. 190, at 448 (2d ed. 1972)). Unlike the "common scheme or plan" exception, it is not necessary to establish a preconceived plan involving both the uncharged and the charged crimes. Res gestae includes crimes committed as part of the same transaction as the crime charged, or as part of an uninterrupted series of events of which the crime charged was a part. Wilson v. State (1986), Ind., 491 N.E.2d 537. In precise use, res gestae is not an exception to the general rule, because such evidence is "offered not to show that the defendant has a propensity to act in criminal ways, but to prove and explain the occurrence of a specific, charged crime." Street, supra at 1184, n. 6 (quoting Miller, supra, at 261). Res gestae does not render otherwise irrelevant evidence admissible. It merely...
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