ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Karen M. Freeman-Wilson
Nashville, Indiana Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Guilford Forney, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-0001-CR-25
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9904-CF-056827
February 27, 2001
SHEPARD, Chief Justice.
After hearing eyewitness testimony, a jury found Guilford Forney guilty
of felony murder, conspiracy to commit robbery and robbery. In this direct
appeal, he contends that the evidence was insufficient to sustain these
convictions and that the trial court erred when it allowed the State to
twice amend its charging information.
Facts and Procedural History
On April 4, 1999, Mark Bankhead and Michael Cornner met at Lafayette
Square Mall in Indianapolis to sell a pound of marijuana to Chris Matthews.
Jacqueline Woods had arranged the deal. Jamar Reynolds drove Woods and
Matthews to the location planned for the meeting. Reynolds’ cousin,
appellant Forney, rode in the front passenger seat and Corey Henderson rode
in the seat behind him.
At the meeting, Matthews and Woods exited Reynolds’ car and walked
over to the automobile where Bankhead and Cornner sat. (R. at 218-20, 285-
86.) Cornner showed Matthews the marijuana that he intended to sell. (R.
at 190-91.) Cornner then got out of Bankhead’s car and into the back seat
of Reynold’s car, with Matthews on his left and Henderson on his right.
(R. at 288-89, 190-91, 195.)
Reynolds drove the car around the back of the mall and Bankhead
followed in his car. Cornners asked several times, “Who wants the
marijuana, lets make the deal.” (R. at 201-02.) No one in the car
responded to his question. Instead, Reynolds sped the car away from
Bankhead who was still following them. Forney then instructed Matthews and
Henderson to get the money by saying, “[G]et the scrill get the scrill.”
(R. at 203.)
Suddenly, Henderson pulled out a gun from between the front passenger
seat and the door. (R. at 204, 213, 291.) He pointed the gun at Cornner’s
stomach and said, “Shut up, empty your pockets.” (R. at 204, 292.)
Cornner raised his hands and allowed Henderson to search his pockets for
money. (R. at 205-06, 292.) During this time, Forney “mess[ed] with the
radio” and said, “[L]ets go to my house.” (R. at 206, 293.)
Cornner then grabbed Henderson’s wrist and hand that held the gun. (R.
at 206, 293.) As they struggled, Henderson pulled the trigger and the gun
fired a bullet into Reynolds. (R. at 206-07, 294.) Reynolds’ head fell
onto the steering column and the car sped through the intersection, over a
median and down a ditch. (R. at 207, 294.) Cornner, Forney, Matthews and
Henderson jumped out of the car, leaving Reynolds in the driver seat. (R.
at 207, 235, 294.) The car then crashed into the window of a furniture
store.
After arriving at the scene, a reserve deputy with the Marion County
Sheriff’s Department observed Forney standing in a grassy area between the
roadway and the furniture store. (R. at 146.) Forney was visibly upset
and crying. (R. at 146, 162-63.) Forney told the deputy that his cousin
had been shot. (R. at 147, 163.) Reynolds died from a gunshot wound to the
chest.
On April 7, 1999, the State charged Forney and Matthews with felony
murder, conspiracy to commit robbery and robbery. Forney requested a
speedy trial on May 24, 1999. Due to court congestion, the trial was set
for August 2, 1999. Further court congestion caused a postponement, and
the trial finally began on September 13, 1999.
On the first day of trial the State was permitted to amend its
complaint by removing Matthews as a defendant and by inserting Henderson’s
name as the “unidentified black male companion” of Forney. (R. at 22, 60.)
During trial, the court permitted the State to amend again, by removing
the phrase “[l]et’s do this shit” as one of the overt acts Forney performed
in furtherance of an agreement to rob Cornner. (R. at 60-61, 314-15, 343-
44.)
A jury found Forney guilty of felony murder, conspiracy to commit
robbery, and robbery. He was sentenced to concurrent terms of fifty-five
years, thirty years, and thirty years on the respective counts.
I. Sufficiency of the Evidence
Forney first argues that the State did not present sufficient evidence
to convict him of conspiracy to commit robbery, robbery or felony murder.
(Appellant’s Br. at 10-12.)
When reviewing convictions for sufficiency of the evidence, we look to
the evidence most favorable to the verdict and all of the reasonable
inferences that evidence provides. Baker v. State, 273 Ind. 64, 66, 402
N.E.2d 951, 953 (1980) (citations omitted). We do not reweigh the evidence
or determine the credibility of witnesses. In addressing an insufficiency
claim, we determine whether there was substantive probative evidence to
support the judgment. Id. If a reasonable trier of fact could have found
the defendant guilty, we will affirm the decision of the trial court. Id.
Conspiracy to Commit Robbery. To sustain a conviction for the
conspiracy to commit robbery, the evidence must show: 1) the intent to
commit a robbery; 2) the agreement with another to commit a robbery; and 3)
an overt act performed by the defendant or the person with whom the
defendant has entered into the agreement. Ind. Code Ann. § 35-41-5-2 (West
1998). Forney challenges the second element, asserting that there was no
evidence that he made an agreement with Henderson to rob Cornner.
(Appellant’s Br. at 10.)
As we recently reiterated, the State need not prove the existence of a
formal, express agreement in order to carry its burden in a conspiracy
case. Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000). Rather,
circumstantial evidence may be sufficient to prove the existence of a
conspiracy. Id.
The State supported Forney’s conspiracy charge with the testimony of
Cornner, the robbery victim. Cornner met with Forney, Henderson, Reynolds
and Matthews in order to sell marijuana to them. Cornner got into the car
with the men and attempted to begin the transaction. Neither Forney nor
the other passengers responded when Cornner stated, “[L]ets make the deal.”
(R. at 201-02.) Instead, Reynolds increased the car’s speed in order to
elude Bankhead, who was following them. As the car accelerated, Forney
stated, “Get the scrill,” meaning “get the money.” (R. at 203.) Upon this
instruction, Henderson grabbed a gun, stuck its barrel in Cornner’s stomach
and demanded his money.
Although Forney’s instruction to “get the money” could have multiple
meanings, the jury apparently concluded that it was uttered in furtherance
of an agreement by Forney and Henderson to rob Cornner of his cash. This
was a reasonable conclusion. Moreover, Cornner’s testimony revealed that
Henderson grabbed a gun from between the front passenger seat and the front
door. The jury could have reasonably concluded that Forney handed the gun
to Henderson as Forney instructed him to “get the money.” The evidence was
sufficient to establish that Forney conspired to rob Cornner.
Robbery. To convict Forney as charged, the State needed to establish
that he knowingly or intentionally took property from Cornner by using or
threatening to use force or by putting him in fear, which resulted in
serious bodily injury to another. See Ind. Code Ann. § 35-42-5-1 (West
1998). Even if the evidence did not show that Forney himself robbed
Cornner, he may nevertheless be convicted for the robbery as an accomplice.
See Ind. Code Ann. § 35-41-2-4 (West 1998)(“A person who knowingly or
intentionally aids, induces, or causes another person to commit an offense
commits that offense . . . .”)
Forney correctly states that “mere presence at the crime” is not
enough. Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981). Forney,
however, was not merely in the car. Just before the robbery, Forney gave
an instruction to “get the [money].” (R. at 203.) After this statement,
Henderson reached for a gun that was located next to Forney. During the
robbery, Forney distracted himself with the car radio and suggested that
the group go to his home.
As we indicated in Wright v. State, 690 N.E.2d 1098, 1106 (Ind. 1997),
“[P]resence at the scene, together with evidence as to defendant’s conduct
before, during and after the crimes which tends to show complicity, can
support an inference of participation in the crimes.” A jury can “infer
participation from a defendant’s failure to oppose the crime . . . .”
Harris, 425 N.E.2d at 156. Consequently, the jury could reasonably infer
that Forney participated in the robbery of Cornner by instructing Henderson
to “get the money,” handing him a gun, acquiescing in the crime and
directing the driver where to go after the robbery was completed.
As an accomplice, Forney did not have to participate in each and every
element of the robbery in order to be convicted of it. See McGee v. State,
699 N.E.2d 264, 265 (Ind. 1998) (“‘[A]n accomplice is criminally
responsible for all acts committed by a confederate which are a probable
and natural consequence’ of their concerted action.”)(quoting Vance v.
State, 620 N.E.2d 687, 690 (Ind. 1993)).
Felony Murder. The State charged Forney with “kill[ing] another human
being, that is: Jamar Reynolds, while committing or attempting to commit
[r]obbery.” (R. at 60.) Similar to the robbery charge, Forney’s murder
charge was based upon accomplice liability. The evidence discussed above
as adequate to convict Forney of robbery is also sufficient to convict him
of Reynold’s murder, which was a “natural and probable consequence” of the
robbery. Wright, 690 N.E.2d at 1110.
The fact that the robbery resulted in the death of a co-perpetrator
does not save Forney from criminal liability for murder. As we have
previously observed, the felony murder rule[1] applies “when, in committing
any of the designated felonies, the felon contributes to the death of any
person.” Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)(emphasis added);
See also Jenkins v. State, 726 N.E.2d 268, 269 (Ind. 2000)(rejecting
defendant’s contention that felony murder statute does not impose criminal
liability for murder when resulting death is that of co-perpetrator).
Therefore, it matters not whether the death caused is that of the intended
victim, a passerby or even a co-perpetrator.
Amending the Information Twice
Forney next argues that the trial court erred when it allowed the
State to amend its charging information immediately before trial and again
at the close of the State’s case.
On the first day of trial the court permitted the State to amend its
complaint by removing Matthews as a co-defendant and by inserting
Henderson’s name as the “unidentified black male companion” of Forney. (R.
at 22, 60.) During the trial, the court permitted the State a second
amendment; it removed the phrase “[l]et’s do this shit” as one of the
overt acts Forney performed in furtherance of an agreement to rob Cornner.
(R. at 60-61, 314-15, 343-44.)
Forney argues that the first amendment was prejudicial because it
“served to diminish Mr. Matthews’ role, if any, in the incident, thus
buttressing his credibility as a state’s witness in the eyes of the
jurors.” (Appellant’s Br. at 18.) He urges that the amendment prejudiced
his defense to the conspiracy charge which relied on Matthews’ testimony as
to a lack of an agreement with Forney.
Forney also asserts that he was prejudiced by the removal of the
phrase describing one of his alleged overt acts. He argues the removal of
the phrase “told the jury that the state did not need to prove everything
it alleged against Mr. Forney in order to sustain a conviction.” (Id.)
The State may amend an information “at any time before, during, or
after the trial . . . in respect to any defect, imperfection, or omission
in form which does not prejudice the substantial rights of the defendant.”
Ind. Code Ann. § 35-34-1-5(c)(West 1998).
Forney asserts that removing Matthews’ name prejudicially strengthened
Matthews’ credibility. Matthews’ own testimony, however, revealed that he
was a co-defendant and that he had been given use immunity. (R. at 278-
80.) Matthews also testified that he was with Forney on the night of the
robbery to deal in marijuana. The jury had adequate information to
determine what credibility to give Matthews’ testimony. The amendment did
not prejudice Forney’s substantial rights.
The same is true with inserting Henderson in lieu of the description
of an “unidentified black male.” We held in Radford v. State, 468 N.E.2d
219, 222 (Ind. 1984), that it was not prejudicial to a substantial right to
replace the description of a “confidential informant” with that informant’s
name, where the appellant had sought the name in the days prior to the
trial. Forney previously knew of Henderson’s involvement. At trial,
Forney’s counsel stated, “I have no objection with now adding the name
Corey Henderson since he’s been apprehended.” (R. at 124.)
Finally, the removal of an alleged overt act from Forney’s
information did not prejudice his substantial rights. In Haak v. State,
695 N.E.2d 944 (Ind. 1998), the defendant claimed he was prejudiced when
the State amended the charging information by deleting one of the overt
acts allegedly taken in furtherance of the conspiracy. We held there as
we do here that “[b]ecause the amendment only reduced the possible grounds
on which the jury could find one element of conspiracy, there was no unfair
surprise.” Id. at 952.
Conclusion
We affirm the judgment of the trial court.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., is not participating.
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[1] Indiana Code § 35-42-1-1(2)states, “A person who kills another human
being while committing or attempting to commit . . . robbery . . . commits
murder, a felony.”