ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT JEFFREY A. MODISETT
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JERYL BASSIE, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. )
) 79S00-9804-CR-236
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT II
The Honorable George J. Heid, Judge
Cause No. 79D02-9712-CF-116
ON DIRECT APPEAL
March 23, 2000
RUCKER, Justice
After a trial by jury Jeryl Bassie was found guilty of one count of
kidnapping as a Class A felony, and two counts of criminal confinement as
Class B felonies. He was also adjudged a habitual offender. The trial
court sentenced Bassie to forty years for kidnapping which was enhanced by
thirty years for the habitual offender adjudication. The trial court also
sentenced Bassie to fifteen years on one count of confinement with five
years suspended, and ordered the sentences to be served consecutively. No
sentence was imposed on the remaining count of confinement. Ultimately
Bassie received a total executed term of eighty years imprisonment. In
this direct appeal Bassie contends (1) the evidence was not sufficient to
sustain his conviction for kidnapping, and (2) his forty-year sentence for
kidnapping is excessive and should be reduced to the presumptive thirty
years. We disagree with both contentions and therefore affirm.
The record shows that after consuming a quantity of alcohol and drugs,
Bassie and an accomplice, Nashid Muhammad, decided to steal a car owned by
Kim Garrett. Reaching the conclusion that it would be better first to
obtain keys to the car, Bassie and Muhammad proceeded to the home that
Garrett shared with his girlfriend, Jennifer Stout. Muhammad knocked on
the door while Bassie stayed out of view. Alone with her two small
children, Stout peered through a window advising Muhammad that Garrett was
not present but agreeing to provide him with a telephone number where
Garrett could be contacted. She then proceeded to telephone one of
Garrett’s relatives. With the receiver off the hook, Stout returned to the
door to communicate further with Muhammad. At that point Bassie and
Muhammad forced their way into her home and ordered Stout to lie on the
floor. Bassie was armed with a twelve-gauge shotgun. The person to whom
Stout was talking called the police. Using duct tape, the pair bound
Stout’s hands and taped her mouth. They also bound the hands and taped the
mouth of one of Stout’s small children. The men demanded the keys and
title to Garrett’s car. After Bassie searched for the items without
success, both men proceeded to walk up the stairs inside the house with
Stout leading the way. Bassie was pointing the shotgun at Stout’s head. As
they walked up the stairs, Bassie noticed police officers in the back yard.
In fact police had surrounded the house. Using Stout as a shield, Bassie
began to walk out the front door, but was ordered back inside. Attempting
to find a means of escape, Bassie walked back and forth between the front
and back doors of the home continuing to point the shotgun at Stout’s head
and using her as a shield.
In the meantime, while Bassie and Muhammad were distracted near the
front of the house, a police officer approached the rear of the house and
managed to grab one of the children. Eventually, a SWAT team hostage
negotiator convinced Bassie to release the other child and to surrender his
weapon. Bassie complied. Ultimately both men were arrested and Bassie was
charged with one count of kidnapping and two counts of confinement. Bassie
was also charged as a habitual offender. After a jury trial, he was found
guilty as charged and also adjudged a habitual offender. This appeal
followed.
I.
Challenging only his conviction for kidnapping, Bassie contends the
evidence is insufficient to sustain the conviction. More specifically
Bassie claims the State failed to rebut his claim of voluntary
intoxication.[1] When a defendant raises the intoxication defense, the
State bears the burden of negating the defense in relation to the mens rea
of the offense. Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989).
Whether a defendant was so intoxicated that he could not form the mens rea
required for the crime is a question for the trier of fact. Barnes v.
State, 693 N.E.2d 520, 522 (Ind. 1998). The conviction will be affirmed if
there was substantial evidence of probative value that would have allowed
the fact finder to conclude beyond a reasonable doubt that the defendant
formed the required mental element. Id. Evidence of capacity to form the
requisite criminal intent includes the ability to "devise a plan, operate
equipment, instruct the behavior of others or carry out acts requiring
physical skill." Id. (citing Terry v. State, 465 N.E.2d 1085, 1088 (Ind.
1984)). If the defendant was able to form the required mental element of
the crime, the degree of intoxication is immaterial. Id.
A person who knowingly or intentionally confines another person with
the intent to use the person confined as a shield or hostage, commits
kidnapping, a Class A felony. Ind. Code § 35-42-3-2. “A person engages in
conduct ‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a). "A person
engages in conduct 'knowingly' if, when he engages in the conduct, he is
aware of a high probability that he is doing so." Ind. Code § 35-41-2-
2(b).
The record shows an abundance of evidence from which the jury could
have reasonably concluded that Bassie knowingly and intentionally confined
Stout with the conscious objective of using Stout as a shield. Bassie’s
capacity to form the intent to kidnap Stout was shown by his ability to
formulate the plan to steal Garrett’s car, including purchasing tape used
during the crime, retrieving the shotgun, and devising a scheme to gain
access into Stout’s home where he could obtain the keys and title to the
car. Bassie also performed acts of dexterity during the ordeal. Bassie
climbed up and down a flight of stairs; walked back and forth between the
front and rear of the home while keeping Stout in front of him and holding
a shotgun to her head. Bassie handled a shotgun throughout the affair
without incident, and of his own accord, removed the shells from the gun
before surrendering it to police. Further, Bassie’s own testimony
indicated that he understood his actions in utilizing Stout as a human
shield. Bassie testified that he kept Stout in front of him to keep from
getting shot. R. at 557. In sum, Bassie’s claim that the State did not
rebut his claim of voluntary intoxication amounts to an invitation for this
court to reweigh the evidence. We decline. The evidence was sufficient to
sustain the conviction.
II
Bassie next challenges his forty-year sentence for kidnapping. He
concedes the trial court did not abuse its discretion in sentencing him.
Indeed the trial court enhanced Bassie’s sentence from the presumptive
thirty years because of Bassie’s extensive criminal history and his gang
affiliation. Nonetheless, citing Beatty v. State, 567 N.E.2d 1134 (Ind.
1991), Bassie contends his sentence should be reduced to the presumptive
term because he did not harm his hostages.
The defendant in Beatty was convicted of three counts of kidnapping as
Class A felonies. Like Bassie, the defendant did not physically injure his
hostages. The trial court sentenced Beatty to the maximum fifty-year
sentence on each count and ordered the sentences to run consecutively. On
appeal, a majority of this Court held that Beatty’s sentence should be
revised:
A conviction for the offense of kidnapping is punished as a Class A
felony, regardless of whether bodily injury is inflicted during the
commission of the crime. Ind. Code § 35-42-3-2. The absence of such
injury does not diminish the severity of the penalty range to that
prescribed for Class B felonies. It is only through the sentencing
process that distinctions may be made. While we find no abuse of
discretion by the trial court in its determination of the sentence,
appropriate use of Article 7 Section 4 of the Constitution of Indiana,
granting to this Court the power to review and revise sentences in
criminal cases, may provide an incentive that might discourage future
hostage-takers from injuring innocent people. Considering these
factors, we elect to exercise our constitutional authority to review
and revise the sentences for counts I, II and III [the Class A
kidnapping convictions]. We now order that the defendant be sentenced
to 45 years on each of counts I, II, and III, with the sentences under
counts II and III to run concurrently with each other and consecutive
to the sentence on count I, for an aggregate sentence of 90 years on
these counts.
Beatty, 567 N.E.2d at 1138.
Contrary to Bassie’s apparent argument, Beatty does not stand for the
proposition that this court will exercise its constitutional authority to
review and revise sentences in every instance where a hostage taker has not
injured innocent people. Rather, the exercise of such authority in those
instances is fact sensitive. And the facts in this case are
distinguishable from those in Beatty. Although in both instances the
kidnapping defendants refrained from injuring their hostages, the
similarity ends there. In Beatty the defendant received the maximum fifty-
year sentence for each kidnapping offense. Here, Bassie received a forty-
year sentence, which is ten years less than the maximum sentence. See Ind.
Code § 35-50-2-4. Also, though both defendants Bassie and Beatty were
involved in a single episode of criminal conduct, defendant Beatty received
an executed sentence of 150 years, which is nearly double the sentence
Bassie received. Finally, and most importantly, the trial court in this
case specifically stated that it was taking “into consideration” the
mitigating factor that Bassie had not injured his hostages. R. at 692.
Thus, the trial court insured that Bassie was the beneficiary of the
incentive this court announced in Beatty. Under the facts of this case we
decline Bassie’s invitation to exercise our constitutional authority to
revise his sentence.
Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] In 1997, our legislature enacted Ind. Code § 35-41-2-5 and
amended Ind. Code § 35-41-3-5, the intoxication statute. Ind. Code § 35-41-
2-5 provides, "Intoxication is not a defense in a prosecution for an
offense and may not be taken into consideration in determining the
existence of a mental state that is an element of the offense unless the
defendant meets the requirements of IC 35-41-3-5." The amendment to Ind.
Code § 35-41-3-5 eliminated voluntary intoxication, limiting the
intoxication defense to cases where " the intoxication resulted from the
introduction of a substance into [the defendant’s] body: (1) without his
consent; or (2) when he did not know that the substance might cause
intoxication." The legislature’s changes to the intoxication defense took
effect on July 1, 1997, five months before Bassie committed the crimes for
which he was charged and ultimately convicted. See Ind. Code § 1-1-3-3.
As such, a question arises as to whether voluntary intoxication was a
viable defense in Indiana at the time of Bassie’s trial. The trial court
recognized the legislative amendments, but in light of our previous
decision in Terry v. State, 465 N.E.2d 1085 (Ind. 1984), wherein we adopted
former Chief Justice Given’s concurrence in Sills v. State, 463 N.E.2d 228
(Ind. 1984) (majority opinion overruled in part on other grounds in Wright
v. State, 658 N.E.2d 563, 570 (Ind. 1995)), chose to give an instruction on
the defense. In Terry we held that a previous version of Indiana’s
intoxication statute, which limited the defense to certain offenses, was
void and without effect stating, “[t]he attempt by the legislature to
remove the factor of voluntary intoxication, except in limited situations
goes against [a] firmly ingrained principle [that such factors may be
offered to negate the capacity to formulate intent] . . . . A defendant in
Indiana can offer a defense of intoxication to any crime.” Terry, 465
N.E.2d at 1088; but see Montana v. Egelhoff, 518 U.S. 37, 56, 116 S. Ct.
2013, 2024, 135 L. Ed. 2d 361 (1996) (holding that the Due Process Clause
of the Fourteenth Amendment does not require states to allow voluntary
intoxication as a defense); see also State v. VanCleave, 674 N.E.2d 1293,
1302-03 n.15 (Ind. 1996) (noting that the Egelhoff decision meant that
Terry was no longer good law only to the extent Terry suggested the
previous version of Ind. Code § 35-41-3-5(b) (1993) violated federal due
process guarantees). Though the State noted the legislative amendments in
objecting to a voluntary intoxication instruction at trial, it has not
raised the issue on appeal in response to Bassie’s claim that the State
failed to carry its burden of negating the defense. Therefore, we do not
address the issue.