ATTORNEY FOR APPELLANT
Thomas J. LaFountain
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
RICKY TOBAR )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No.71S00-9909-CR-481
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9903-CF-00144
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
December 20, 2000
BOEHM, Justice.
Ricky Tobar was convicted of the murders of Keith Canady, James
Johnson, and Clester Wallace, Jr. and sentenced to consecutive sentences of
sixty-five, fifty-five, and forty-five years, respectively, for a total of
165 years. In this direct appeal, Ricky argues that: (1) the trial court
erred in refusing to give a jury instruction on the defense of duress; (2)
the evidence was insufficient to convict him; and (3) his sentence is
manifestly unreasonable. We affirm the trial court.
Factual and Procedural Background
On March 23, 1999, Ricky was at his residence along with several
family members and acquaintances, including his cousin, William Tobar.
Ricky operated a crack business out of his home and William often acted as
the “security guard” in drug sales. At some point after noon, two men
arrived to purchase crack cocaine. Jovanna Harris, one of Ricky’s friends,
stated that it was “her serve” and proceeded to drive with one of the men
to an ATM to obtain cash for the sale. The other man, Keith Canady,
remained at Ricky’s home. [R. 529] Harris returned a short time later,
crying, and stated that the man had held a gun to her head and taken her
drugs and money.
In response to this news, William punched Canady in the face. Both
William and Ricky kicked Canady as he lay on the floor. William then
dragged Canady down to the basement, hog-tied him, beat him, and, later
that evening, suffocated him by gagging him and securing plastic bags
around his neck. William testified that Ricky wanted to shoot Canady, but
that William dissuaded him because he thought that a gunshot would be heard
by the neighbors. William also testified that Ricky was “hitting [Canady]
and stuff” while Canady was tied in the basement.
Johnson and Wallace arrived about 8:45 p.m. William overpowered
Johnson, pistol-whipped him, and tied his hands behind his back as he lay
on the floor. Johnson, who knew Ricky because he had dated Ricky’s mother,
asked Ricky to intervene. According to William, Ricky then forced Wallace
to lie down on the floor. As a result of William’s beating Johnson with
the gun, the bullets flew out of the gun. Ricky reloaded it at William’s
request. Ricky or William then shot Johnson once in the head and Wallace
in the back and chest. Both were killed. William attempted to conceal the
crimes by turning on the gas stove, extinguishing the pilot lights, and
removing the knobs after pouring kerosene over Canady’s body and setting it
on fire.
Immediately thereafter, Ricky was observed by a neighbor leaving the
house carrying a shoebox and a garbage bag. Ricky convinced a friend to
book him a room at a motel. After two nights, he turned himself in to
authorities. Ricky and William were convicted of the murders of all three
men.
I. Jury Instruction
Ricky argues that the trial court abused its discretion by refusing
his jury instruction on the defense of duress. In reviewing a trial
court’s decision to give or refuse tendered jury instructions, this Court
considers: (1) whether the instruction correctly states the law; (2)
whether there is evidence in the record to support the giving of the
instruction; and (3) whether the substance of the tendered instruction is
covered by other instructions which are given. Cutter v. State, 725 N.E.2d
401, 408 (Ind. 2000).
At trial, the trial court declined to give Ricky’s tendered jury
instruction regarding duress on the ground that there was no evidence of
any imminent threat to Ricky. Ricky urges that the trial court abused its
discretion in failing to consider that William was a large man and former
boxer, that Ricky watched as William beat Canady, and that Ricky knew
William to have used crack cocaine and be “in the throes of a crack-induced
rage.”
Duress is proper as a defense if the person “who engaged in the
prohibited conduct was compelled to do so by threat of imminent serious
bodily injury.” Ind. Code § 35-41-3-8 (1998). Although there was plenty
of evidence attesting to William’s intimidating size, Ricky never expressed
any fear of William to authorities, and there is nothing in the record
suggesting Ricky feared his cousin, much less felt threatened by serious
bodily injury. Indeed, by his own account Ricky left his home during the
course of the crimes to obtain liquor and voluntarily returned. Thus, the
trial court did not abuse its discretion in concluding that there was no
evidence of duress in the record to support the giving of the
instruction.[1]
II. Sufficiency of the Evidence
Ricky argues that the evidence was insufficient to convict him of the
murders of Canady, Johnson, and Wallace, even under an accomplice liability
theory. He urges that the jury could not have reasonably inferred from the
evidence presented at trial that he had anything to do with these murders
other than being “in the wrong place at the wrong time.”
Our standard for reviewing sufficiency of the evidence claims is well
settled. We do not reweigh the evidence or judge the credibility of the
witnesses, Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999), and it lies
within the jury’s exclusive province to weigh conflicting evidence,
Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998). We will affirm the
trial court if the probative evidence and reasonable inferences drawn from
the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Bunch v. State, 697 N.E.2d
1255, 1257 (Ind. 1998).
In order to be found guilty of murder based on accomplice liability,
a jury must find beyond a reasonable doubt that a defendant “knowingly or
intentionally aid[ed], induce[d], or cause[d] another person to commit an
offense.” Ind. Code § 35-41-2-4 (1998). A defendant’s mere presence at
the crime scene, or lack of opposition to a crime, standing alone, is
insufficient to establish accomplice liability. Harris v. State, 425
N.E.2d 154, 156 (Ind. 1981). These factors, however, may be considered in
conjunction with a defendant’s course of conduct before, during, and after
the crime, and a defendant’s companionship with the one who commits the
crime. Id.
Here, the jury was instructed on accomplice liability and the
evidence was sufficient to convict Ricky on that basis. William acted as
the “security guard” at Ricky’s “crackhouse.” There was also at least some
evidence of Ricky’s direct involvement in the killings. One witness
testified that both Ricky and William kicked Canady, and William testified
that Ricky beat Canady in the basement. According to testimony at trial,
six or more hours elapsed between the time Canady arrived at Ricky’s home
and Canady’s body was set on fire in an attempt to cover up the crimes.
Canady was apparently alive for a large portion of that time, but unlike
all the other occupants of the house, Ricky never left the scene except to
go to the liquor store. Although William’s testimony conflicted with his
initial statement to authorities, the jury was entitled to credit William’s
account that he and Ricky discussed how they would kill Canady, and that
Ricky hit Canady and inquired, “Man, he ain’t dead yet?” The jury could
infer that William was acting under Ricky’s instructions. If so, the
ultimate objective of killing all three was “induced or caused” by Ricky.
William testified that it was Ricky who shot Johnson and Wallace. This
testimony also conflicted with William’s initial statement to authorities,
but even if it is discredited, by Ricky’s own admission, he reloaded the
gun after the bullets flew out of it, and told Johnson, whom he had known
since he was thirteen, that there was nothing he could do to help him and
that Johnson had gotten himself into the mess with William. Both William
and another witness testified that the gun belonged Ricky. Finally, after
William attempted to blow up the house, Ricky was seen fleeing the scene
with some clothing and personal belongings from his house. He then
convinced a friend to find a motel room for him and remained there until he
discovered that friends and relatives had spoken to authorities, at which
time he turned himself in.
The question of whose testimony to believe was a difficult one to
resolve in this case, but that is the role of the jury, and we are not free
to supplant the jury’s judgment with our own. William initially took
responsibility for all three murders, then changed his story and admitted
to murdering Canady, but not Johnson and Wallace. Ricky first denied any
involvement in or knowledge of the killings, and then later admitted to
being present, but little more. In his second statement, Ricky admitted
reloading the gun for William, but simultaneously alleged that he had left
before anyone was killed, and believed “[William] was going to whoop [them]
and let them go.” In short, the jury likely found it difficult to believe
both Ricky’s and William’s testimony. Thus, the jury had the unenviable
task of resolving conflicting versions of the truth. Here, the evidence
was sufficient for the jury to conclude that Ricky, even assuming he was
not the killer of any of the three, was guilty beyond a reasonable doubt of
aiding the murders by kicking Canady and loading the gun to shoot the other
two, or ordering or causing the murders by directing William to kill the
victims.
III. Manifestly Unreasonable Sentence
Ricky contends that his sentence is manifestly unreasonable in view
of his limited involvement in the murders, his youth, and lack of criminal
history. Although this Court has the constitutional authority to review
and revise sentences, Ind. Const. art. VII, § 4, it will do so only when
the sentence is “manifestly unreasonable in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 17(B).
This Court’s review under Rule 17(B) is very deferential to the trial
court: “[T]he issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.” Bunch
v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687
N.E.2d 563, 568-69 (Ind. 1997)). This standard is the same irrespective of
whether the defendant is an accomplice or a principal. Johnson v. State,
687 N.E.2d 345, 349 (Ind. 1997). As a general rule, multiple killings
warrant the imposition of consecutive sentences. Noojin v. State, 730
N.E.2d 672, 679 (Ind. 2000).
Here, the trial court imposed consecutive sentences of sixty-five,
fifty-five, and forty-five years for the murders of Canady, Johnson, and
Wallace, respectively. The trial court imposed these sentences based on
the “nature of the offense.” It elevated Ricky’s conviction for Canady’s
murder based upon the beating and torture Canady endured and the subsequent
burning of his body, and imposed the presumptive with regard to Johnson,
noting that Johnson was also subjected to a beating before his death. As
for the “character of the offender,” the trial court noted Ricky’s youthful
age at the time of the offense (nineteen) as well as his limited past
involvement with the law, which consisted of a warning to Ricky when he was
nine years old. However, the trial court also noted that the murders came
about as a direct result of Ricky’s drug business.
We are unable to say that Ricky’s sentence is manifestly unreasonable
considering the “nature of the offense” and the “character of the
offender.” Even if his participation was limited, Ricky aided a triple
homicide, including a brutal torture. And although it is true that Ricky’s
criminal history was negligible, as the trial court noted, this does not
help make the case that Ricky was a law-abiding citizen in view of his
trade as a drug dealer. With regard to Ricky’s limited involvement in the
murders, this Court is not compelled to find a sentence manifestly
unreasonable simply because the weight of the evidence suggests that the
defendant’s role was that of an accomplice and not a principal.
Irrespective of whether Ricky actually pulled the trigger, he reloaded the
gun. When Johnson pleaded with Ricky for help after being beaten and tied
up, Ricky told him that he had to settle his own score with William and
that there was nothing he could do. Moreover, if William’s account is
credited, Ricky impliedly directed the deaths by asking, “Ain’t he dead
yet?” In view of these factors, the imposition of consecutive sentences
and an enhanced sentence is not “clearly, plainly, and obviously”
unreasonable.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs except as to sentence.
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[1] As the State notes, the Indiana Code also explicitly forbids the use
of duress as a defense to an offense against the person, including murder.
Ind. Code § 35-41-3-8(b) (1998). Ricky does not address this issue.