ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of
Indiana
Lorraine L. Rodts K. C. Norwalk
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
STEVEN BETHEL, )
Defendant-Appellant, )
)
v. ) 71S00-9712-CR-642
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Roland W. Chamblee, Jr., Judge
Cause No. 71D08-9105-CF-224
________________________________________________
On Direct Appeal
June 16, 2000
DICKSON, Justice
The defendant, Steven Bethel, was convicted of two counts of
attempted robbery,[1] two counts of robbery,[2] and four counts of
attempted murder.[3] He was adjudicated a habitual offender.[4] As
imposed, the resulting sentences aggregated to 120 years. In his appeal,
the defendant challenges his convictions in Counts III and VIII, two of the
four attempted murder convictions, alleging insufficiency of evidence and
the erroneous giving of a jury instruction regarding use of a deadly weapon
as evidence of intent to kill. In addition, he challenges the habitual
offender enhancement, claiming that the trial court erred in not giving a
habitual offender phase instruction regarding the jury’s role as judge of
the law and the facts.
Sufficiency of Evidence of Attempted Murder
The defendant contends that the evidence is insufficient to support
his convictions for the attempted murders of Patrizia Robaska and Charles
Flora.[5] He argues that no rational trier of fact could have found beyond
a reasonable doubt that the defendant or his companion, Curtis Crenshaw,
intended to kill Robaska or Flora or, even if the jury found that Crenshaw
intended to kill, that the defendant knowingly or intentionally aided,
induced, or caused Crenshaw to attempt either murder.[6]
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and all reasonable
inferences favorable to the judgment, and neither reweighing the evidence
nor judging the credibility of the witnesses, we conclude that no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Webster v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge
v. State, 688 N.E.2d 1246, 1247-48 (Ind. 1997).
Applying this standard, we find that the evidence establishes that,
on March 5, 1991, the defendant agreed to assist Curtis Crenshaw in
obtaining money and that they went to the J & S Dairy Mart in South Bend,
Indiana, at approximately 11:20 p.m. Armed with handguns, they approached
Robaska and Wrobel, two store employees, as they were closing the store.
The defendant held a gun to Robaska's head, Crenshaw grabbed Wrobel, and
together they forced the two clerks back into the store. The defendant and
Crenshaw tried unsuccessfully to obtain cash from the safe. One of the
robbers threatened to shoot Robaska. They also forced Wrobel to empty his
pockets, but he had no cash. The defendant and Crenshaw then took the two
clerks back outside, told them to lie on the ground behind an ice machine,
and began walking away. Robaska and Wrobel got up and observed the
defendant and Crenshaw. Describing the ensuing events, Wrobel testified:
They were about fifteen feet away, and [Crenshaw] turned around, and
he pointed the gun at us, and I grabbed Patty [Robaska] and pulled her
back down because I knew what comes out of a gun. And we laid there,
and we heard a fire.
Record at 623. There was no testimony as to the length of time that
elapsed between the time Wrobel and Robaska went back down to the ground
and the time the shot was fired.[7] No witnesses testified as to the
position of Crenshaw’s weapon or the direction it was pointed when fired.
There was no injury to either Robaska or Wrobel, nor was there evidence of
bullet damage to the ice machine or surrounding area. No bullet was
recovered.
Approximately ten minutes later, the defendant and Crenshaw entered
the Burger Dairy store in South Bend and found three men inside. They
robbed the three at gunpoint, taking cash from the register and a wallet
from one of the men. During the robbery, Charles Flora attempted to enter
the store, and the defendant pointed a gun at him. Flora ran to his van in
the parking lot and called the police from his van. The defendant and
Crenshaw came out of the store while Flora was still in the lot. The
direct examination of Flora includes the following:
[Prosecutor] Did – before you were shot at, did you see the people
that came out of the store? You said you saw them, right?
[Flora] When they both ran out of the store, they both looked
directly at my van.
[Prosecutor] Did you see whether they had anything in their hands?
[Flora] They had a gun in their hand.
[Prosecutor] Both of them?
[Flora] I’m not sure if both of them did. One I know did.
[Prosecutor] Was the gun pointed at you?
[Flora] When they ran out, no.
[Prosecutor] At some point in time, was it?
[Flora] Yes.
[Prosecutor] When was that?
[Flora] They was partly across the drive lot, and they pointed at my
van, and I heard two or three shots. I know it was more than
one shot.
[Prosecutor] What did you do?
[Flora] Well, I got down in my van and proceeded to go back up onto
the lot because I didn’t know what to do.
Record at 676-77. Neither Flora nor his van was hit, and no bullets were
ever found. Although Flora stated at trial that he did not see and was
"not sure" which of the two men shot at him, record at 681, he testified
that he gave a statement to police within about an hour of the shooting in
which he identified Crenshaw as the person who shot at him.[8] As the
defendant and Crenshaw attempted to flee, they successively encountered two
police officers and fired shots at each officer.
As to the convictions for the attempted murders of Robaska[9] and
Flora, as noted by the trial court in its sentencing statement, the
evidence reflects that the shots were fired by Crenshaw and not by the
defendant. To support the convictions for these counts of attempted
murder, we must first determine whether the evidence was sufficient to
establish that Crenshaw, acting with the intent to kill, took a substantial
step toward killing Robaska and Flora. See McGee v. State, 699 N.E.2d 264,
265-66 (Ind. 1998); Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993). The
intent to kill may be inferred from the deliberate use of a deadly weapon
in a manner likely to cause death or serious injury. Wilson v. State, 697
N.E.2d 466, 476 (Ind. 1998); McEwen v. State, 695 N.E.2d 79, 90 (Ind.
1998). We have found sufficient evidence for conviction when the evidence
indicates that a weapon was fired in the direction of the victim. See,
e.g., Shelton v. State, 602 N.E.2d 1017, 1021 (Ind. 1992) (defendant
pointed handgun at victim and shot him twice from distances of twelve and
thirty feet); Owens v. State, 544 N.E.2d 1375, 1377 (Ind. 1989) (defendants
fired in direction of occupied vehicle and shots passed through
windshield); Brumbaugh v. State, 491 N.E.2d 983, 984 (Ind. 1986) (defendant
fired shotgun at police helicopter and at officer who reported that shot
“whizzed” by his head and landed within twelve feet).
Because the record is devoid of any probative evidence that Crenshaw
was pointing his firearm at Robaska when he fired the weapon, we are
compelled to conclude that Crenshaw’s intent to kill Robaska was not
established beyond a reasonable doubt. There is no evidence as to the
length of time between the moment Crenshaw was seen pointing his weapon at
Robaska and the time the shot was heard. During this time, the sole
testifying witness, Wrobel, had pulled Robaska to the ground, and the
evidence does not permit a reasonable inference that Wrobel was able to
observe Crenshaw continuously or that Crenshaw’s weapon remained pointed at
Robaska during this interval.
In contrast, however, the evidence is sufficient under our standard of
review to establish that Crenshaw fired his weapon in the direction of
Flora and thus deliberately used a deadly weapon in a manner likely to
cause death or serious injury. When Flora attempted to enter the store,
the defendant pointed a gun at him. After running to his van, Flora
observed Crenshaw point a gun at him and then heard two or three shots. It
was after these shots were fired that Flora got down in his van. We find
Flora’s testimony sufficient for a reasonable jury to infer that Crenshaw
fired at and intended to kill Flora.
Because we find sufficient evidence of Crenshaw’s intent to kill
Flora, we must consider the defendant’s claim that the evidence was
insufficient to prove that he knowingly or intentionally aided, induced, or
caused Crenshaw to commit the attempted murder of Flora. The accomplice
liability statute permits a defendant to be found guilty as an accomplice
without the jury finding that the defendant committed every element of the
crime when that defendant "knowingly or intentionally aids, induces, or
causes another person to commit an offense." Ind. Code § 35-41-2-4. For
many crimes, it is sufficient to prove that a defendant either "knowingly"
or "intentionally" performed a prohibited act. It is well settled,
however, that a conviction for attempted murder requires proof of specific
intent to kill. See Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991).
The issue becomes then, what must be proven in order to show that the
defendant "knowingly or intentionally" aided the commission of a crime
requiring specific intent for conviction?
In light of Spradlin's requirement that attempted murder be
established by proof of specific intent to kill, we find that, in order to
establish that a defendant aided, induced, or caused an accomplice to
commit attempted murder, the State must prove that the defendant, with the
specific intent that the killing occur, knowingly or intentionally aided,
induced, or caused his accomplice to commit the crime of attempted murder.
Thus, to convict for the offense of aiding an attempted murder, the State
must prove: (1) that the accomplice, acting with the specific intent to
kill, took a substantial step toward the commission of murder, and (2) that
the defendant, acting with the specific intent that the killing occur,
knowingly or intentionally aided, induced, or caused the accomplice to
commit the crime of attempted murder.
Despite substantial evidence that the defendant was engaged in
protracted criminal activity with Crenshaw, with both men carrying guns,
threatening several people at gunpoint, and robbing or attempting to rob
several people, we find the evidence insufficient to prove that the
defendant had the specific intent to kill Flora or the specific intent that
Crenshaw kill Flora.
Accordingly, we find the evidence insufficient to prove the
defendant's conviction in Count III, the attempted murder of Robaska, and
in Count VIII, the attempted murder of Flora.
Giving Instruction on Use of Deadly Weapon
The defendant next contends that the trial court erred in giving an
instruction permitting the jury to infer intent to commit murder from the
use of a deadly weapon in a manner likely to cause death or great bodily
injury. The defendant did not, however, object to this instruction at
trial and, therefore, may not raise this claim on appeal. Ind. Trial Rule
51(C). See also Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998).
Although procedural default may be avoided if we find a claimed error to be
fundamental, we find no error here, fundamental or otherwise.
Failing to Instruct on Jury’s Right to Determine Law
The defendant seeks retrial as to his habitual offender enhancement
on the ground that, although the trial court instructed the jury in its
preliminary and guilt phase final instructions that the jury has the right
to determine the law and the facts, the court failed to give this
instruction during the habitual offender phase. The defendant, however,
did not tender such an instruction or otherwise request that it be given,
and thus he may not assert on appeal the failure to instruct the jury on
this matter. Clark v. State, 561 N.E.2d 759, 764 (Ind. 1990). This is not
fundamental error. Seay v. State, 698 N.E.2d 732, 737 (Ind. 1998). We
decline the defendant’s request to revisit Seay on this point.
Conclusion
We affirm the convictions and sentences on Counts I, II, IV, V, VI,
and VII, and the habitual offender determination charged in Count IX. We
reverse and vacate the convictions on Counts III and VIII. Because of the
manner in which the trial court imposed concurring and consecutive
sentences, the reversal of Counts III and VIII operates to decrease the
defendant’s total sentence by eighteen years. We affirm the remaining 102-
year aggregate sentence.[10]
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code §§ 35-41-5-1 & 35-42-5-1 (1988).
[2] Ind. Code § 35-42-5-1 (1988).
[3] Ind. Code §§ 35-41-5-1 & 35-42-1-1 (1988).
[4] Ind. Code § 35-50-2-8 (1988).
[5] The defendant asserts error as to Count III, charging the
attempted murder of Patrizia Robaska, and as to Count VIII, charging the
attempted murder of Charles Flora. He does not challenge his convictions
in Counts VI and VII, charging the attempted murders of two police
officers, Gary Jerzak and Richard Powers, or in Counts I, II, IV, and V,
charging the robberies and attempted robberies.
[6] We note initially that the defendant does not intend to raise
questions of sufficiency under state law, but seeks application of the
sufficiency review articulated in Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard is equivalent to the one
we routinely employ in reviewing evidentiary sufficiency. See Williams v.
Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) (“The Indiana Supreme Court
applies a standard similar to the one enunciated in Jackson v. Virginia.”).
[7] By the time of trial, Robaska had left the State and refused to
return to testify. The tape recording of her call to the 911 operator was
admitted at trial with no objection. Record at 666-67.
[8] As between the defendant and Crenshaw, Flora identified the person
who shot at him as "the heavier of the two suspects" and "the heavy set
guy." Record at 681, 683. Other trial testimony established that this
description identified Crenshaw rather than the defendant.
[9] The defendant was not charged with the attempted murder of Wrobel.
[10] The trial court imposed concurrent sentences of sixteen years
each for Counts I and II and of twenty-five years for Count III. It
imposed concurrent sentences of sixteen years each for Counts IV and V and
of twenty-five years for Count VIII. For Count VI, it imposed a sentence
of forty years enhanced by thirty years for the habitual offender finding,
to be served concurrently with a sentence of forty years for Count VII.
The sentences for Counts IV and V were ordered to be served consecutive to
the sentences for Counts I, II, and III, and the sentences for Counts VI
and VII are to be consecutive to the sentences for Counts I through V.
The trial court's sentencing order directed that the sentences for
Count VI and Count VII were to run consecutive to Count I through Count V,
without mentioning whether sentences for Count VI and Count VII were to run
consecutive to Count VIII also. Record at 214-15. The trial court's
abstract of judgment directed that the sentences for Count VI and Count VII
were to run consecutive to Count IV and Count V, without mentioning Count
VIII. Record at 217. It is therefore possible to construe the aggregate
sentence to be either 120 or 111 years. The trial court statement to the
defendant at the conclusion of the sentencing hearing indicated that the
court intended the sentences for Count VI and Count VII to run consecutive
to all other counts. Record at 254-55. Both the defendant and the State
understood that the defendant was sentenced to 120 years. Amended Brief of
Defendant-Appellant at 4; Brief of Appellee at 4. We need not resolve the
ambiguity caused by the sentence on Count VIII in light of our resolution
of the defendant's claims.
We note that, in designating the sentence for application of the
thirty-year habitual offender enhancement, the trial court’s sentencing
order stated that “the sentence as to Count IV, the Attempted Murder of
Gary Jerzak, is further enhanced by an additional term of thirty (30)
years.” Record at 215. This is a scrivener's error. Count VI, charging
the attempted murder of Gary Jerzak, not Count IV, charging robbery,
received the habitual offender enhancement. The trial court’s intention to
apply the habitual offender enhancement to Count VI rather than Count IV is
demonstrated by the Abstract of Judgment, record at 217, and the
defendant’s acknowledgment that a sentence of seventy years was imposed on
Count VI, Amended Brief of Defendant-Appellant at 1, 4.