ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glenn A. Grampp Jeffrey A. Modisett
Evansville, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RICKY W. JESTER, )
)
Appellant (Defendant Below), )
)
v. )Cause No. 82S00-9806-CR-371
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
________________________________________________________________
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Richard L. Young
Cause No. 81C01-9704-CF-350
February 18, 2000
SHEPARD, Chief Justice.
Appellant Ricky Jester was convicted of murder and conspiracy to
commit murder in connection with the death of his wife. The trial court
sentenced him to consecutive terms of sixty years for murder and fifty
years for conspiracy. Jester appeals on the following issues:
I. Whether the evidence was sufficient to support his conviction
for murder,
II. Whether the evidence was sufficient to support his conviction
for conspiracy to commit murder,
III. Whether the trial court erred in denying his motions
to sever the murder and conspiracy counts,
IV. Whether the trial court violated the hearsay rule by admitting
statements attributed to his late wife,
V. Whether the trial court properly instructed the jury on
accomplice liability.
In the early morning hours of July 3, 1996, Ricky Jester called the
Evansville police to inform them that he had discovered his wife Teresa
Jester dead, lying on the kitchen floor in a pool of blood. Teresa died
from multiple gunshot wounds to her head, face, and neck.
I. Sufficiency of the Evidence for Murder
Jester first asserts that there was insufficient evidence to convict
him 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 therefrom that support the verdict.
“If from that perspective there was evidence of probative value from which
the reasonable trier of fact could conclude that appellant was guilty
beyond a reasonable doubt, we will affirm the conviction.” Hazzard v.
State, 642 N.E.2d 1368, 1369 (Ind. 1994).
The record reveals that Teresa and Ricky Jester were having marital
problems for at least two years before Teresa’s murder. Teresa told both
Rebecca Blackburn and Judy Carr that she thought Jester was having an
affair, and that she contemplated leaving him. Teresa also told Jeremy
Blackburn she believed that Jester was having an affair, specifically with
Lisa Fisher. Indeed, Lisa Fisher testified at trial that such an affair
had occurred.
The week before Teresa’s murder, several people observed altercations
between Teresa and Jester. Tina Bunker, Teresa’s sister, testified that
she saw Teresa and Jester arguing two days before Teresa’s murder. Sherry
Morris also testified that Jester and Teresa had an argument shortly before
Teresa’s murder, during which Jester called Teresa a “f---ing bitch.” (R.
at 755.)
About six months or a year before Teresa’s death, Jester befriended
James Koutz and asked Koutz to kill Teresa. Specifically, Jester told
Koutz that he would give him $15,000 and a motorcycle to kill her. In
February 1995 and again in the fall of 1995, Jester asked another friend,
Mark Williams, to kill Teresa. Jester told Williams that Teresa was going
to Louisville for a nursing seminar and asked Williams to follow her to
Louisville and kill her. Jester gave Williams a handgun, and $300, and
told him to be sure that Teresa’s body was found (for insurance purposes).
Jester also assured Williams that he would receive an additional $20,000
once the insurance proceeds were distributed.
Around 1:03 a.m. on July 3, 1996, Jester called the police and told
them that he had come home to find his wife Teresa dead, lying in a pool of
blood. Officer Keller arrived at Jester’s home two minutes later to
investigate. There was no sign of a break-in or an attempted break-in and
none of the outbuildings showed evidence of entry or attempted entry. An
autopsy of her body later revealed that she had been shot in the head and
neck approximately six times at very close range.
About 1 p.m., the police let Jester back into his home, at which time
Jester immediately began looking through a group of insurance policies.
Later that day, Jester also called a car dealership requesting information
about transferring the title of a recently purchased Jeep Grand Cherokee.
In April 1997, the State charged Jester with murder and conspiracy.
While in jail awaiting trial, Jester spoke to a cellmate, Willie Joe
Freeman, and asked Freeman to kill Mark Williams. Jester told Freeman to
“mak[e] it look like a robbery” or “like an overdose of drugs.” (R. at
1277-78.) Jester also made arrangements with another friend to lend
Freeman $400 to help Freeman make bond. Again, in July 1997, Jester asked
another cellmate, Johnny Whitledge, if he knew anyone who could keep
Williams from testifying or “make sure that he did not show up.” (R. at
1314.)
In making his sufficiency claim, Jester points to the circumstantial
nature of the evidence against him and to evidence supporting his alibi
defense. It is well-settled, however, that a murder conviction may be
based entirely on circumstantial evidence. Kriner v. State, 699 N.E.2d 659
(Ind. 1998). Although each piece of evidence viewed in isolation may seem
insufficient, in a conviction based on circumstantial proof, “the evidence
in the aggregate may point to guilt where individual elements of the
State’s case might not.” Id. at 664. This is certainly true here.
Jester’s assertion that the State was unable to overcome his alibi
defense is without merit. Jester contends that the evidence “clearly
established that [he] could not have been at his home at the time that
Teresa Jester was killed.” (Appellant’s Br. at 10.)
James Terry, a Schnuck’s store manager, saw Jester at Schnuck’s around
8:45 p.m. (R. at 777.) When Terry left the store at 10:00 p.m., he saw
what he believed to be Jester’s truck driving away from the store. (R. at
780.) A friend of Jester’s, Dan Hufford, and Hufford’s girlfriend, Valerie
Arnold, testified that Jester came to Hufford’s house around 10 p.m. and
left fifteen or twenty minutes later. (R. at 810-11, 849.) Videotapes
from a store security camera establish that Jester was at the Schnuck’s
store sometime between 10:30 and 10:41 p.m. cashing a check. (R. at 924-
28.) The next known time for his whereabouts was provided by Tammy
Thornton who, in her police statement, said that Jester arrived at her
house between 10:30 and 11:00 p.m. (R. at 1008-09.) At trial, however,
Thornton testified that Jester arrived at her house between 11:15 and 11:30
p.m.[1] (R. at 994.)
Despite this alibi evidence, the jury could reasonably have concluded
that Jester murdered his wife. Assuming that Jester was at Hufford’s home
until 10:15 or 10:20 p.m., this visit only accounts for his time before he
went to Schunck’s at 10:30 p.m. If Jester left Schnuck’s at 10:41 p.m., as
the security cameras indicate, and arrived at Tammy Thornton’s house
sometime between 10:30 and 11:30 p.m., as her testimony indicates, there
was still a significant window of opportunity for Jester to return home and
shoot Teresa.[2]
This assumes, however, that the jury chose to believe Hufford and
Arnold, which it was not required to do. If the jury chose not to believe
them, or decided that they might have been mistaken, then there was a
window of opportunity before Jester returned to Schnuck’s at 10:30 p.m.
In short, Jester asks us to reweigh the evidence, which is not our
prerogative on appeal. Based on the foregoing, the evidence viewed as a
whole and most favorably to the judgment supports the murder conviction.
II. Sufficiency of the Evidence for Conspiracy
Jester next contends that there was insufficient evidence to support
his conviction for conspiracy to commit murder.
Conspiracy to commit a felony requires three elements: 1) the intent
to commit a felony, 2) an agreement with another person to commit a felony,
and 3) an overt act, performed by either the defendant or the person with
whom the defendant has entered into the agreement. Ind. Code Ann. § 35-41-
5-2 (West 1998). Jester challenges his conspiracy conviction on the basis
of the second element, arguing that there was no evidence that he entered
into an agreement with Mark Williams because Williams never explicitly
agreed to murder Teresa. (Appellant’s Br. at 14.)
To prove the agreement element of conspiracy, the State need not
prove the existence of a formal, express agreement. Rather, the conspiracy
may be proved solely on the basis of circumstantial evidence. Vance v.
State, 640 N.E.2d 51 (Ind. 1994).
In support of the conspiracy charge, the State offered the testimony
of Mark Williams, with whom Jester allegedly conspired. Williams testified
that Jester approached him in February 1995, and again in the spring of
1995, and asked Williams to kill Teresa. (R. at 1167.) Williams did not
make any “firm plans” with Jester, but testified “I said I’d do it, I just
didn’t say when or how.” (R. at 1168.) Williams also said he was “open
for suggestions.” (Id.) Later, Jester made more specific plans with
Williams, telling him that the body “couldn’t turn up missing . . . and . .
. had to be found for insurance purposes.” (R. at 1169.) Jester also gave
Williams a .38 caliber pistol and $300. (R. at 1170-71.)
Later, Williams began “putting [Jester] off” and was unsure about
carrying through with the murder. (R. at 1168.) Jester contends that this
uncertainty establishes a lack of agreement. The jury was entitled to
disagree. At some point, Williams did agree to participate in Teresa’s
murder, even if he later changed his mind. Thus, the evidence was
sufficient to prove the existence of an agreement to support Jester’s
conviction for conspiracy to commit murder.
III. Motion to Sever
Jester next asserts that the trial court erred in denying his motions
to sever the murder and conspiracy counts.
Indiana Code § 35-34-1-9(a) provides:
Two (2) or more offenses may be joined in the same indictment or
information, with each offense stated in a separate count, when the
offenses:
1) are of the same or similar character, even if not part of a
single scheme or plan;
2) are based on the same conduct or on a series of acts connected
together or constituting parts of a single scheme or plan.
Indiana Code § 35-34-1-11(a) grants a defendant an absolute right to
severance for offenses that have been joined “solely on the ground that
they are of the same or similar character.”
Jester argues that his motions to sever should have been granted
because the charges were joined solely because they were of the same or
similar character. In addressing this argument, we find Davidson v. State,
558 N.E.2d 1077 (Ind. 1990), instructive. Davidson was convicted of two
counts of murder for the drowning deaths of two of her children. Id. at
1081-82. Because the drownings occurred several years apart and involved
two different children, Davidson argued that she was entitled to separate
trials. Id. at 1082. This Court disagreed and stated:
In the case at bar, a pattern is evident of insuring an infant’s life
prior to the infant’s suspicious drowning; the common modus operandi,
as well as the same motive, serve to connect the crimes sufficiently
to justify joinder for trial over the defendant’s motion for
severance.
Id. at 1083.
In the present case, the evidence demonstrates that the charges arose
out of several acts driven by a single motive: to be rid of Teresa and
collect her insurance proceeds. Moreover, the charges were not unduly
complex. The trial court did not err in ordering them tried together.
IV. Hearsay
Jester says the trial court erred in admitting testimony from
witnesses who related statements made by Teresa Jester before her death.
Jester argues that these statements were inadmissible hearsay under Ind.
Evidence Rule 403.
Several witnesses, including Judy Carr, Tina Bunker, and Rebecca
Blackburn, testified that Teresa had told them of her belief that Jester
was having an affair with Lisa Fisher, (R. at 607-08, 665-66, 682, 715),
and that she considered leaving Richard, (R. at 609, 1040-41, 1074). In
each instance, the defense objected to the admission of the statements as
hearsay and as inadmissible under Rule 403.[3]
We accord the trial court substantial discretion in ruling on
evidentiary issues and will only reverse a hearsay ruling for abuse of
discretion. Light v. State, 547 N.E.2d 1073, 1081 (Ind. 1989). Moreover,
we will sustain the trial court if it can be done on any legal ground
apparent in the record. Id.
Only relevant evidence is admissible, and relevant evidence is any
evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Ind. Evidence Rule 401.
A victim’s state of mind is relevant where it has been put at issue by the
defendant. Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995). For example,
in Vehorn v. State, 717 N.E.2d 869 (Ind. 1999), the victim’s statements
regarding her “stormy relationship” with the defendant were admissible to
contradict the defendant’s attempts to downplay their difficulties and his
assertions that their problems not “uncommon” given the “on-again, off-
again” nature of the relationship. Id. at 873-74.
Jester, however, did not put his relationship with Teresa in issue.
In fact, during its case in chief, the defense offered as its only evidence
two docket sheets from cases involving Mark Williams. Thus, the court
erred in allowing Teresa’s statements regarding her relationship with
Jester into evidence.
An error is not reversible, however, unless it affects the
substantial rights of a party. Fleener v. State, 656 N.E.2d 1140 (Ind.
1995). Here, the hearsay evidence was merely cumulative of other evidence
properly admitted. See Hicks v. State, 690 N.E.2d 215, 223 (Ind. 1997).
There was ample evidence that Teresa and Jester had often and recently
argued. Moreover, Lisa Fisher testified that she and Jester had in fact
been romantically involved. (R. at 1061-65.) Therefore, the admission of
hearsay evidence was cumulative and is not grounds for reversal.
V. Lesser Included Offense Instruction
Finally, Jester contends that the court erred in instructing the jury
regarding aiding or inducing a crime. He says there was no evidence to
support the instruction. (Appellant’s Br. at 12.)
Under Ind. Code § 35-41-2-4, “[a] person who knowingly or
intentionally aids, induces, or causes another person to commit an offense
commits that offense.” Aiding, inducing or causing an offense is not a
separate offense in itself, but is, in fact, the basis of liability for the
underlying offense of murder. Thacker v. State, 556 N.E.2d 1315, 1322
(Ind. 1990). Additionally, a “defendant may be convicted on evidence of
aiding or inducing even though the State charged the defendant as the
principal.” Whitener v. State, 696 N.E.2d 40, 44 (Ind. 1998).
“An instruction is proper only if there is some evidence of probative
value to support it.” Wisehart v. State, 693 N.E.2d 23, 51 (Ind. 1998),
cert. denied, 119 S. Ct. 1338 (1999). Here, there was such evidence. The
State introduced evidence that Jester twice attempted to induce someone
else to kill his wife, approaching both Mark Williams and James Koutz.
Even if Jester was acquitted of Teresa’s murder, the jury could have found
that he induced a third person to kill her. Thus, the trial court did not
abuse its discretion by instructing the jury on accomplice liability.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] This time period is significant because the coroner examined Teresa’s
body for rigor mortis at approximately 11:40 a.m. on the after her death
and determined that she had been deceased for approximately ten or twelve
hours. (R. at 651–53.) Additionally, a friend of Teresa’s testified that
she spoke with Teresa on the phone around 10:15 p.m. on July 2, 1996. (R.
at 687-90.) Teresa’s nephew, however, tried to call her between 10:30 and
10:40 p.m. and received a busy signal. (R. at 733.)
[2] According to Evansville police Officer Taylor, the driving route from
the Schnuck’s store to the Jester residence would take between eight
minutes and five seconds to eight minutes and forty-eight seconds while the
driving route from the Jester residence to the Thornton residence would
take between two minutes and twenty-eight seconds to three minutes and
thirty-four seconds. (R. at 938-42.)
[3] In making his argument, Jester points to the statements of twelve
witnesses. (Appellant’s Br. at 17.) We find that the testimony of each of
the witnesses is sufficiently similar such that it all falls under the same
analysis.