Woods v. State

• Decision Date: 18 December 1980
• Docket Number: No. 279S57,279S57
• Citation: 274 Ind. 624,413 N.E.2d 572
• Parties: David A. WOODS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 572

413 N.E.2d 572

274 Ind. 624

David A. WOODS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 279S57.

Supreme Court of Indiana.

Dec. 18, 1980.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a jury trial of conspiracy to commit battery with a deadly weapon, Ind.Code § 35-41- 5-2 (Burns 1979) and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979). He was sentenced to thirty-five (35) years imprisonment. This direct appeal presents six issues relating to jury instructions given and refused, in addition to an assignment that the evidence was insufficient, but because we have determined that there was insufficient evidence from which the jury could find the defendant guilty upon the conspiracy charged, we reverse the judgment, and it is unnecessary for us to address the instructions issues.

The information filed in this case reads in pertinent part:

"On or about the 21st day of January, 1978, in Fountain County, in the State of Indiana, David Woods, Rick Kiger and Larry Kiger, each with intent to commit a felony, to-wit: Touch another in a rude, insolent, or angry manner, with a deadly weapon, to-wit: Clubs, did agree with each other to commit the said felony, namely Battery with a Deadly Weapon, and the said David Woods and Rick Kiger did perform an overt act, to-wit: Exit Wood's (sic) car armed with clubs in furtherance of the agreement, to-wit: To commit battery."

The elements of a charge of conspiracy are an agreement between two or more persons to commit the felony charged, and an overt act performed in furtherance of the agreement. Ind.Code § 35-41-5-2 (Burns 1979); Coughlin v. State (1950) 228 Ind. 393, 395, 92 N.E.2d 718, 719; Johnson v. State (1935) 208 Ind. 89, 95, 194 N.E. 619, 621. The existence of the agreement may be inferred from the conduct of the parties or proved by circumstantial evidence. Patterson v. State (1979) 386 N.E.2d 936, 942, cert. denied (1979) 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194; Robertson v. State (1952) 231 Ind. 368, 369, 108 N.E.2d 711, 712-13. But it cannot be inferred from the commission of the criminal act alone, or from the overt act alone taken pursuant to the criminal activity.

The conspiracy charge arose from a Saturday night gang fight participated in by teen aged boys and young men in Veedersburg. The fight was a culmination of earlier hostilities between Kenny Kiger and Randy Day and between Junior Shumaker and the defendant. Kenny Kiger and Day had had an altercation at school on the preceding day and another earlier Saturday evening at the town skating rink. The defendant, and Rick Kiger had had an unrelated altercation, also at the skating rink, with Junior Shumaker earlier Saturday evening.

During their incident at the skating rink, Day called Kenny a seemingly innocuous name, which apparently was nevertheless, offensive to Kenny. He also struck Kenny twice. Kenny did not fight back but said. "I'll find my older brother (meaning Rick Kiger) and we'll see about that later."

Delilah Rusk, a fourteen or fifteen year old girl, was with Kenny both at the time of the altercation at school and the one at the skating rink.

The only direct evidence of a conspiracy came from her and was as follows:

Following the fight at the rink, Delilah and Kenny left in search of Kenny's brother, Rick. They found him at Delilah's home, where he had just arrived in the company of the defendant and Larry Kiger. The three were in the defendant's automobile. Meanwhile, Day had repaired to a nearby poolroom and joined other young friends there, J. R. Sullivan, Percy Sandlin and Greg Fleck. Apparently this was known to Delilah and Kenny.

Delilah and Kenny got into the defendant's automobile and said that Day was looking for them and that he had struck Kenny. Rick said, "Well, I don't want nobody picking on my little brother," and "Well, let's just go down and get 'em."

Defendant, accompanied by Rick, Larry, Kenny and Delilah drove directly to the poolroom a short distance away. On the way, one of the boys asked how many there were, and Kenny replied, lots of them, to which Rick responded, "Well, we can just go to Cates (a neighboring town) and get enough to take care of them."

The defendant parked the automobile at the front of the establishment, where they could see inside and the occupants of the poolroom could see them. Upon arrival of defendant and his companions, they again became concerned about their being outnumbered by the group inside. The defendant exhibited a chain with a handle attached to it and said, "I got something to take care of that." The others looked about the automobile, as if searching for weapons, but the witness saw no other weapons. Cates was mentioned again, and they considered going there for reinforcements, but no decision was made.

For some ten or fifteen minutes the two adversary groups contented themselves with shouting obscenities and making obscene gestures at each other. Ultimately, Delilah stepped into the poolroom and shouted, to the group, but to no one in particular, "They're ready any time you are!" and returned to the automobile.

Meanwhile, two of the boys inside the pool hall had gone to a nearby truck repair garage and advised Mark Hinote, Junior Shumaker and Daniel Shumaker, that the defendant and his friends were waiting for them in front of the poolroom. Hinote and the Shumakers walked to the scene.

The group inside the poolroom did not respond immediately to Delilah's message, but did so just as Hinote and the Shumakers arrived. They exited from the poolroom, and Rick Kiger upon seeing that they were substantially outnumbered, said "Let's go to Cates. Tell them we'll be back." Simultaneously, the defendant started to drive away.

There was packed snow and ice in the streets, and as the defendant moved the automobile to leave, Randy Day threw a large ice clod or snow ball, which struck the windshield of the automobile. With that, the defendant stopped the vehicle, ¹ saying, "That son of a bitch has had it!" and got out of the car. Rick and Kenny Kiger immediately followed, and a general melee broke out. Delilah and Larry Kiger remained in the automobile. Defendant had an iron rod, also referred to as a "pipe" and as a "bar," identified as an automobile jack handle extension. He was swinging it at the crowd from the poolroom. As they scattered, he went towards Mark Hinote with it, but a spectator interceded and disarmed him before he could strike anybody.

Rick Kiger had a chain to which a handle was attached when he got out of the vehicle. He started swinging it at Kenny Parker, missing him on the first try but hitting him in the head on the second attempt. Parker, however, with assistance from Junior Shumaker, took the chain away from Rick and struck him with it.

Kenny Kiger swung a weapon variously described as a club and as a stick at Randy Day. Day, however, grabbed it and fended the blow. At the same time, Sullivan stabbed Kenny with a knife. Kenny ran up the street yelling that he had been stabbed, and the brawl ended.

It is the State's position that a conspiracy, by Defendant and Rick and Kenneth Kiger, to commit battery with a deadly weapon could be inferred from the circumstances. Its argument is as follows:

"Certainly a conspiracy can be inferred from the prior arguments between the parties, the fact that the younger Kiger went to get his brother before he would fight, the fact that all the co-defendants sat in the car issuing challenges and sent Delilah to report that they were ready to fight. If any occupant of the car had not chosen to become involved in the attack, there was time to leave the car before it began. It was reasonable to infer from their actions that they planned to attack those people in the pool hall. Defendant does not deny that the weapons were 'deadly weapons' as charged in the information. There is also no disputing the fact that Defendant and his co-conspirators committed the necessary 'overt acts' required by statute. Rick Kiger even committed an actual battery which is more evidence than is required to be shown in a conspiracy charge."

We are of the opinion, however, that only an agreement to brawl can be inferred from the evidence most favorable to the State. Although paraphernalia that, in context, can be regarded as deadly weapons were used by the defendant and his companions, we find no evidence from which an agreement among them to do so can be found beyond a reasonable doubt.

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed." (citation omitted). "In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citation omitted). Loyd v. State (1980) Ind., 398 N.E.2d 1260, 1264.

Upon a claim of insufficient evidence, however, it does become our duty to examine the evidence closely, not with a view towards resolving conflicts thereon, but for the purpose of determining whether or not, after resolving all reasonable doubts in favor of the verdict, it may be said that, upon such evidence, a reasonable man could have reached such verdict, beyond a reasonable doubt.

In the leading case in this State establishing the duty of this Court to so review the evidence, Baker v. State (1956) 236 Ind. 55, 138 N.E.2d 641, we said:

"In considering the standard by which we review the evidence where it is challenged as being insufficient to sustain a verdict or finding, this court has often said there must be substantial...