ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glenn A. Grampp Karen M. Freeman-Wilson
Evansville, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Sonya Hulfachor, a.k.a. )
Sonya L. Neiswinger, )
)
Appellant, (Defendant Below), )
)
v. ) No. 82S00-9903-CR-193
)
State of Indiana, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Maurice C. O’Connor, Judge
Cause No. 82D02-9710-CF-771
September 22, 2000
SHEPARD, Chief Justice.
A jury convicted appellant Sonya Hulfachor of the murder, felony
murder, and robbery of Steven Glaser. It also found her guilty of auto
theft for fleeing the scene in Glaser’s truck. The trial court sentenced
Hulfachor to seventy-three years on the murder and robbery counts.
Facts
On October 8, 1997, Hulfachor called Glaser in Indianapolis to invite
him to Evansville that day. She asked a friend, Leslie Russell, to meet
Glaser at an Evansville diner and to take him to meet her at the 222
Tavern. Russell said, “She told me whenever I picked him up and brought
him to where she was to watch out for the police and make sure there wasn’t
any cops following her.” (R. at 508-09.)
Hulfachor met Glaser at the tavern, and they eventually drove to an
abandoned house. Her co-defendant Mark Duncan also went to the house, but
waited outside. Hulfachor said that she and Glaser began to argue and the
argument became violent. She stated that Duncan burst in and hit Glaser
with a hammer several times. Duncan said that Hulfachor also hit Glaser.
Although they knew Glaser was badly hurt, they did not seek medical
attention for him.
Duncan and Hulfachor took Glaser’s truck and drove south. Police
eventually apprehended them in Oklahoma City.
Meanwhile, back at the abandoned house, two passersby spotted Glaser
in the doorway early on October 9th “with his brains hanging out on the
floor.” (R. at 305-07.) They called 911, and paramedics transported
Glaser to the emergency room. The pathologist testified that the head
trauma Glaser suffered on or about October 9th caused his death.
Procedural History
The State initially charged Duncan and Hulfachor with aggravated
battery and auto theft. After Glaser died, the State amended the battery
charge to murder and eventually added counts for robbery and felony murder.
The jury found Hulfachor guilty on all counts.
At the sentencing hearing, the trial court reduced the robbery from
class A to class C, merged the auto theft into the robbery, and vacated the
felony murder conviction. It sentenced Hulfachor on the class C robbery
and the murder convictions.
I. Sufficiency of the Evidence
Hulfachor first asserts there was insufficient evidence to convict
her of murder. In assessing such claims, we do not reweigh the evidence or
judge the credibility of the witnesses. We look only to the actual
evidence and the reasonable inferences drawn from it that support the
verdict. "If from that perspective there was evidence of probative value
from which a reasonable trier of fact could conclude that the appellant was
guilty beyond a reasonable doubt, we will affirm the conviction." Hazzard
v. State, 642 N.E.2d 1368, 1369 (Ind. 1994).
Hulfachor claims she was not present at the scene of the crime when
the fatal blow was inflicted.[1] In support of this contention, she cites
the testimony of (1) a witness who said the abandoned house seemed secure
at 8 a.m., (2) the emergency technician, who testified that Glaser was
alive upon his arrival at the emergency room at 11:22 a.m. on October 9th,
and (3) the emergency physician, who testified that Glaser could not have
survived more than two to four hours after the injuries were inflicted.
Hulfachor claims that the fatal blow must therefore have been inflicted
between 8 a.m. and 10:30 a.m. on October 9, 1997. She says she was driving
to Oklahoma during those morning hours.
While this is a plausible reading of the evidence, there was other
testimony that could have led the jury to reject Hulfachor’s alibi.
Glaser’s neurosurgeon testified that it is very difficult to tell when a
brain injury was inflicted “in active trauma practice.” (R. at 342.) The
coroner agreed, stating that an injured person can linger before dying for
a few hours or many hours. He said, “I’ve seen cases of open head fracture
that approach twenty-four hours of interval between the injury time and
when they got medical attention.” (R. at 877-78.) As to the timing of
Glaser’s injury, the coroner stated:
My opinion is that he may have survived up to twenty-four hours in a
circumstance of an open skull fracture. It may have been less than
twelve hours. It may have been six hours, but I don’t think that you
can say as the emergency room physician did that he would have
mandatorily had to die in two to four hours.
(R. at 878-79.)
This testimony certainly qualifies as evidence of probative value
from which a reasonable jury could conclude that Hulfachor was guilty of
murder.[2]
II. The Gruesome Photographs Claim
Hulfachor challenges the admission of three photographs taken by the
emergency room physician. She asserts their probative value is
substantially outweighed by the danger of the prejudice they might cause,
and that they are cumulative.
We review the trial court's admission of photographic evidence for an
abuse of discretion. Byers v. State, 709 N.E.2d 1024 (Ind. 1999).
Photographs that depict a victim's injuries are generally relevant and thus
admissible. Harrison v. State, 699 N.E.2d 645 (Ind. 1998). The relevancy
requirement also can be met if the photographs demonstrate or illustrate a
witness' testimony. Id. On the other hand, relevant evidence "may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice." Ind. Evidence Rule 403.
“That photographs depict gory, revolting, or inflammatory details of
the crime is not sufficient basis for reversal, unless they are without
relevance to any material issue.” Perigo v. State, 541 N.E.2d 936, 939
(Ind. 1989). Proving the material issues “cannot be done sometimes without
presenting disagreeable evidence. Revolting crimes generate revolting
evidence.” Id. at 939-40. While the challenged photographs are indeed
disagreeable, they show the nature and severity of Glaser’s injuries, and
they illustrate the deposition testimony of the emergency doctor.
Hulfachor also claims that the photographs are cumulative of each
other, (Appellant’s Br. at 13), “because they demonstrate the same thing,”
(R. at 898). The photographs are a little different, however, each showing
Glaser’s wounds at different angles, focusing on different parts of the
injuries. It is possible that the State could have done the job with just
one or two. Using three is not enough to warrant a new trial.
III. Double Jeopardy
A. Murder and Felony Murder. The jury found Hulfachor guilty of both
murder and felony murder, and the trial court vacated the felony murder
conviction and sentenced her on the murder charge to avoid violating double
jeopardy principles. She now argues the trial court should have vacated
the murder conviction instead.
It is true that Hulfachor cannot be convicted of both murder and
felony murder when both arise from a single homicide. The Court of Appeals
opinion in Fuller v. State, 639 N.E.2d 344 (Ind. Ct. App. 1994), explains
why felony murder was the right conviction to vacate:
[W]hen a defendant stands convicted of murder, felony murder, and an
additional [underlying] felony, the felony murder should be vacated
and the murder conviction should remain. To hold otherwise would
permit a person who commits an intentional murder while committing
another felony to use the felony murder rule to escape punishment for
the underlying felony. This simply cannot be.
Id. at 347-48. The trial court properly vacated Hulfachor’s felony murder
conviction.
B. Felony Murder and Robbery. Hulfachor also asserts that her
convictions for robbery and felony murder violate double jeopardy
principles because the robbery is the underlying felony supporting the
felony murder conviction. This claim illustrates the point of Fuller;
Hulfachor merely seeks to evade punishment on the underlying felony,
robbery. “Because [the trial court] already vacated [Hulfachor]’s felony
murder conviction on other double jeopardy grounds, [however,] this claim
is mooted.” Gregory-Bey v. State, 669 N.E.2d 154, 157 (Ind. 1996),
challenged on other grounds, Grinstead v. State, 684 N.E.2d 482, 485 (Ind.
1997).
C. Murder and Robbery as a Class A Felony. The jury convicted
Hulfachor of both murder and robbery as a class A felony. The robbery was
enhanced from a class C to a class A felony because Glaser suffered serious
bodily injury. (R. at 231.) At the sentencing hearing, the trial court
correctly reduced the robbery to a class C felony, because both the murder
conviction and the enhanced robbery conviction were based on the same
bodily injury. (R. at 1263-64); Hampton v. State, 719 N.E.2d 803, 808
(Ind. 1999).
The trial court did not err in its application of these double
jeopardy principles.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] She claims the evidence is insufficient to support a jury finding “that
she committed the offenses for which she was convicted and subsequently
sentenced,” (Appellant’s Br. at 9), but as she makes no argument on the
evidentiary sufficiency of her robbery conviction, the issue is waived.
Ind. Appellate Rule 8.3(A)(7).
[2] Even though neither Hulfachor nor Duncan expressly state that Hulfachor
hit Glaser with the hammer, “We are satisfied that the evidence of
[Hulfachor]'s intimate association with the crimes was sufficient to permit
the jury to conclude beyond a reasonable doubt that [s]he aided, induced,
or caused [Duncan] to commit murder.” Kilgore v. State, 720 N.E.2d 1155,
1156 (Ind. 1999). Hulfachor lured Glaser to Evansville, led him to the
abandoned house, arranged for Duncan to be at the house, and participated
in the struggle. Glaser’s blood was found on her clothes. She left Glaser
on the floor in need of medical attention, and she fled with Duncan in
Glaser’s truck. This suffices. See id.