Zimmerman v. State

OPINION

BAKER, Judge.

Appellant-defendant John Zimmerman appeals his conviction for Kidnapping,1 a class A felony, claiming that: (1) the evidence was insufficient to support his conviction; (2) the jury was improperly instructed; and (8) he was improperly sentenced. As to the sufficiency claim, Zimmerman maintains that his conviction must be set aside because the State failed to adequately prove the requisite intent, inasmuch as he never used force or threatened force and he neither harmed nor threatened harm to the vie-tim. Because we agree with Zimmerman that the State failed to sufficiently establish the elements of kidnapping, we reverse the conviction for that offense and need not address the remaining issues.

FACTS

The facts most favorable to the verdict are that on May 14, 2002, Zimmerman and another individual stole a video camera from an Indianapolis Wal-Mart store. Zimmerman then ran from the store, whereupon he noticed Nikki Robertson stopped at a red light. Zimmerman approached Robertson's vehicle, banged on the passenger door and told her that someone was trying to kill him. In response, Robertson unlocked her car door and permitted Zimmerman to enter. Another man approached Robertson and identified himself as a Wal-Mart security guard. Nonetheless, Robertson drove off and the security guard got into another car and began to follow her. Zimmerman then told Robertson to "lose the car" that was following and offered to pay for the ride. Tr. p. 27.

The Wal-Mart security guard eventually drove back to the store but Rob Shaw, another driver, saw Zimmerman enter the car. He also observed that Robertson appeared frightened. As a result, Shaw continued to follow Robertson's vehicle.

At one point during the ride, Robertson told Zimmerman that she wanted him to get out of her car because Zimmerman failed to give her an answer when she asked what had occurred. Zimmerman refused to leave, but he never brandished a weapon and did not threaten Robertson. There was no evidence that Robertson ever believed that Zimmerman was holding her hostage. Although Robertson felt seared, she continued driving, hoping that some other car would hit hers so she could finally stop. Even though Robertson could have stopped her vehicle and exited, she declined to do so because she did not *1160know what Zimmerman would do if she tried to leave.

Shaw continued to follow Robertson's vehicle and contacted the police. He also relayed the license number to the dispatcher and told them of Robertson's location. In response, the police eventually stopped Robertson's car at Thompson Road and State Road 135, whereupon they searched the vehicle and located the stolen Camcorder from Wal-Mart, along with some camera accessories.

Zimmerman was ultimately charged with theft, kidnapping, confinement and being a habitual offender. The information charging Zimmerman with kidnapping provided as follows:

John Zimmerman, II, on or about, May 14, 2001, did knowingly, by fraud, enticement, force, or threat of force, remove Nikki Robertson from one place to another, that is: from the area of U.S. 31 and Hickory Road to the area of State Road 185 and Epler Avenue, while hijacking a vehicle.

Appellant's App. p. 26. Following a jury trial that commenced on February 25, 2002, Zimmerman was found guilty as charged. He was subsequently sentenced to thirty years for kidnapping and to one and one-half years on the theft charge,2 that were ordered to run concurrently. The sentence for the theft conviction was enhanced under the habitual offender count by four years. The sentences were ordered to run concurrently and Zimmerman now appeals.

DISCUSSION AND DECISION

In addressing Zimmerman's challenge to the sufficiency of the evidence, we note that our standard of review for such claims is well-settled. We will not reweigh the evidence or assess the credibility of the witnesses. Smith v. State, 725 N.E.2d 160, 161 (Ind.Ct.App.2000). We consider only the evidence most favorable to the judgment, together with all reasonable inferences that can be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind.Ct.App.2001), trans. denied. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, the conviction will be affirmed. Smith, 725 N.E.2d at 161. Moreover, it is the jury's responsibility to weigh the evidence and decide what to believe and what not to believe. Cohen v. State, 714 N.E.2d 1168, 1179 (Ind.Ct.App.1999), trans. denied.

Our kidnapping statute provides in relevant part that:

(a) A person who knowingly or intentionally confines another person:
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(2) while hijacking a vehicle;
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commits kidnapping, a Class A felony.
(b) A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another:
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(2) while hijacking a vehicle;
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commits kidnapping, a Class A felony.

*1161In accordance with this statute, hijacking is defined as "exercising ... unlawful or unauthorized control of a vehicle by force or threat of force upon the vehicle's inhabitants." Clayton v. State, 658 N.E.2d 82, 87 (Ind.Ct.App.1995). Turning to the cireumstances here, there is no evidence that Zimmerman accosted Robertson or made any threats to her in the event that she refused to continue driving him around town. To the contrary, Robertson unlocked her car door and permitted Zimmerman to enter. Tr. p. 13, 38. Robertson leaned over and unlocked the door because the automatic push button system was broken. Tr. p. 24-25. Moreover, Zimmerman never demanded that Robertson remain in the car, and there is no evidence that he ever prevented her from leaving. Robertson acknowledged that Zimmerman was polite and even thanked her for letting him ride in her vehicle. Tr. p. 26. Zimmerman did not display any weapons. Tr. p. 26. He did not strike her and he never took control of Robertson's vehicle. 'I'r. p. 26-27. To be sure, Robertson never believed that Zimmerman was holding her hostage. Tr. p. 30-31.

The evidence presented by the complaining witness's own testimony never gave rise to a reasonable inference or conclusion that Zimmerman confined Robertson or exercised any force, threat, fraud or enticement that was alleged by the State and necessary to prove under our kidnapping statute. Put another way, there was no evidence that Zimmerman controlled the vehicle by force or threat of force. Thus, there was no hijacking and Zimmerman's kidnapping conviction may not stand. See Clayton, 658 N.E.2d at 88 (holding that a conviction for kidnapping while hijacking a vehicle was not supported by evidence when it was demonstrated that the victim voluntarily removed her daughter from the automobile and that the defendant ordered the victim to remove her son from the automobile, yet there was no evidence showing that the defendant used force to keep the victim's daughter and son in the automobile).

Judgment reversed.

RILEY, J., concurs. MATHIAS, J., dissents with opinion.

. Ind.Code § 35-42-3-2.

. The trial judge specifically stated that she would not enter a judgment against Zimmerman on the confinement charge.