ATTORNEY FOR APPELLANT
Jeffrey D. Stonebraker
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JWAN A. CRAWFORD, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 10S00-0007-CR-456
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Jr., Judge
Cause No. 10D01-9912-CF-078
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
September 26, 2001
BOEHM, Justice.
Jwan Crawford was convicted of attempted murder, robbery as a Class A
felony, false informing, and of contributing to the delinquency of a minor.
He was sentenced to sixty-five years imprisonment. In this direct appeal,
Crawford contends that the trial court erred in denying his motion to
suppress. He also contends that the trial court’s enhancement of his
sentence for attempted murder because of the use of a firearm violates the
Sixth and Fourteenth Amendments of the United States Constitution under
Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm the conviction for
attempted murder, but reverse the enhancement without addressing the
Apprendi issue because attempted murder is not among the crimes eligible
for enhancement.
Factual and Procedural Background
On December 10, 1999, Loren Johnson was at work at Uncle Miltie’s
Pawn Shop in Jeffersonville when Crawford entered his store followed by two
other men. Crawford stated, “This is a hold-up,” and shot Johnson in the
throat. Crawford yelled at Johnson to get down while the other two took
between $1300 and $1500 from the cash register. All three then smashed the
glass cases in the shop and stole jewelry and handguns.
Sergeant Tim Deeringer learned of the robbery by radio and was told
that the suspects had fled to the alley behind the store. He proceeded to
the alley where he found six to eight people. Some of the group were
repairing vehicles, and three others—Darius Smith, Corey Parker, and
Crawford—were standing nearby. When questioned by Deeringer, Crawford
claimed the three had been in the alley about an hour. Antonio Ritchie,
one of the workers, told Deeringer that Crawford and the others had been in
the alley only a few minutes. After Deeringer repeated the question to
Crawford, and Crawford again stated that he had been there for an hour,
Deeringer arrested the three for false informing.
Parker later admitted that the three had committed the robbery and
told police that he had given Crawford the gun shortly before Crawford
entered the store and shot Johnson. Johnson was able to identify Crawford
as the shooter from a photo array.
Crawford was convicted of attempted murder, robbery as a Class A
felony, contributing to the delinquency of a minor, and false informing.
He was sentenced to an enhanced sentence of fifty years for attempted
murder, and an additional five years for use of a firearm in the commission
of a violent felony. He also received ten years for robbery as a Class B
felony, to run consecutive to the attempted murder conviction, one year for
contributing to the delinquency of a minor and 180 days for false
informing, both to run concurrently with the robbery sentence.
I. Motion to Suppress
Crawford first claims that the trial court erred by denying his
motion to suppress evidence obtained as a result of his arrest for false
informing. Deeringer arrived in the alley shortly after the shooting in
full police uniform and driving a marked police car. Deeringer approached
the men and asked if they had heard shots fired or seen anyone running. He
then asked Crawford how long he had been in the alley. Crawford responded
one hour. Deeringer then asked Ritchie how long Crawford had been in the
alley and Ritchie responded fifteen minutes. Deeringer requestioned
Crawford as to how long he had been in the alley and when Crawford again
responded one hour, Deeringer arrested him for false informing.
Crawford does not contest the sufficiency of the evidence of this
conviction, but rather argues that there was no probable cause to arrest
him for false informing. Therefore, he argues, the arrest was in violation
of his search and seizure rights under the Fourth Amendment and Article I,
Section 13 of the Indiana Constitution, and all the evidence obtained after
he was taken to the Clark County Jail should be suppressed.[1]
A warrantless arrest is permissible if a misdemeanor is committed in
an officer’s presence. Chandler v. State, 581 N.E.2d 1233, 1238 (Ind.
1991). Probable cause exists when, at the time of the arrest, the
arresting officer has knowledge of facts and circumstances that would
warrant a person of reasonable caution to believe that the suspect had
committed a criminal act. Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996).
The amount of evidence necessary to meet the probable cause requirement is
determined on a case-by-case basis. Peterson v. State, 674 N.E.2d 528, 536
(Ind. 1996).
A person is guilty of false informing if he “gives false information
in the official investigation of the commission of a crime, knowing the
report or information to be false.” Ind. Code § 35-4-2-2 (1998). In this
case, Crawford does not contest that he gave false information, but alleges
that he did not know Deeringer was involved in “the official investigation
of the commission of a crime.” Deeringer approached the alley in his
uniform and marked car asking if anyone had heard shots or seen people
running. He then asked Crawford about his whereabouts. It is reasonable
to assume that Deeringer was investigating some criminal activity based on
his questions and appearance and that Crawford should have realized this.
Crawford’s contention that he had no basis to assume Deeringer was
investigating a crime is without merit. He does not contend that Richie’s
statement was insufficiently reliable to constitute probable cause.
Accordingly, his arrest was not unlawful, and the trial court did not err
in denying the motion to suppress.
II. Sentence Enhancement for Use of a Firearm
Crawford contends that his right to due process and to a jury trial
was violated when his sentence for attempted murder was enhanced by five
years based on the trial court’s finding beyond a reasonable doubt that he
had used a firearm in the commission of this offense. Crawford bases his
argument on Apprendi v. New Jersey, 530 U.S. 466, 491-97 (2000), in which
the United States Supreme Court held that the Sixth and Fourteenth
Amendments of the United States Constitution are violated where a
defendant’s sentence is enhanced beyond the statutory range based on a fact
not found beyond a reasonable doubt by a jury. We need not address this
issue because the statute allowing an additional sentence for use of a
firearm by its terms is inapplicable to this case.
Indiana Code section 35-50-2-11 allows the trial court to enhance a
sentence by five years if the defendant used a firearm in the commission of
“an offense.” An offense is defined as “a felony under IC 35-42 that
resulted in death or serious bodily injury.”[2] In this case, the State
charged that Crawford “did knowingly or intentionally use a firearm in the
commission of said Attempted Murder.” No part of Chapter 42 defines the
crime of attempted murder. Because attempted murder is not “an offense” as
the statute defines that term, an enhancement may not be attached to it.
Attempted crimes are defined in Indiana Code section 35-41-5-1:
A person attempts to commit a crime when, acting with the culpability
required for commission of the crime, he engages in conduct that
constitutes a substantial step toward commission of the crime. An
attempt to commit a crime is a felony or misdemeanor of the same class
as the crime attempted. However, an attempt to commit murder is a
Class A felony.
In Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000), this Court held that
attempted murder was not a “crime of violence” for purposes of Indiana Code
section 35-50-1-2. The Court reasoned that “‘[c]rimes of violence’ is a
defined term, a straightforward list, including such crimes as murder and
attempted battery. It does not include attempted murder.” Id. Although
this writer dissented from Ellis, stare decisis requires that the same
reasoning applies here. The enhancement statute identifies a specific list
of crimes that may be enhanced by reference to Chapter 42 of Title 35.
Because attempted murder is not a crime found in Indiana Code 35-42, it is
not “an offense” eligible for the five-year enhancement pursuant to Indiana
Code section 35-50-2-11.[3] Because the statute by its terms is
inapplicable, we do not address the Apprendi issue Crawford raises.
Conclusion
The judgment of the trial court is affirmed as to the conviction and
reversed as to the enhancement. The sentence for attempted murder is
reduced to fifty years to run consecutively with the ten year robbery
sentence for a total of sixty years. The concurrent sentences for
contributing to the delinquency of a minor and false informing are
affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] This includes clothing taken from Crawford, his fingerprints, glass
fragments taken from his shoes, and statements he made.
[2] Also included as offenses are kidnapping and criminal confinement as a
Class B felony, neither of which is relevant here.
[3] Presumably the trial court could have enhanced robbery as a Class A
felony by five years if the State had charged it.