ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven L. Bohleber Karen Freeman-Wilson
Evansville, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MARK DUNCAN )
)
Appellant (Defendant Below), )
)
v. ) Cause No.
) 82S00-9812-CR-820
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Maurice C. O’Connor, Judge
Cause No. 82D02-9710-CF-770
September 22, 2000
SHEPARD, Chief Justice.
The appellant Mark Duncan was convicted by jury of murder, felony
murder, robbery, and auto theft, following the death of Steven Glaser. The
trial court sentenced Duncan to a total of seventy-three years on the
murder and robbery counts.
Duncan presents three issues in this direct appeal:
I. Was there sufficient evidence to support the convictions for
murder and robbery?
II. Did the trial court properly admit photographs depicting the
victim’s injuries?
III. Did the court violate Duncan’s right against double jeopardy by
convicting and sentencing him on murder and robbery?
Sufficiency of the Evidence
Duncan claims that there is insufficient evidence to support his
convictions for murder and robbery.
In reviewing a sufficiency claim, we do not reweigh the evidence or
assess the credibility of the witnesses. Instead, “we look to the evidence
and reasonable inferences drawn therefrom that support the verdict and will
affirm the convictions if there is sufficient probative evidence from which
a reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Bonds v. State, 721 N.E.2d 1238, 1241-42 (Ind. 2000).
To convict Duncan of murder, the State was required to prove beyond a
reasonable doubt that Duncan knowingly or intentionally killed Steven
Glaser. Ind. Code Ann. § 35-42-1-1 (West Supp. 1999).
The evidence most favorable to the verdict reveals that Duncan was
involved in a romantic relationship with Sonya Hulfachor, his co-defendant
at trial. Hulfachor had previously been involved romantically with Glaser.
On October 8, 1997, Hulfachor called Glaser in Indianapolis and asked him
to meet her in Evansville. That evening, she met him outside a bar in
Evansville. They drove around in Glaser’s truck for several hours smoking
crack cocaine and eventually arrived at an abandoned house.
After Hulfachor and Glaser entered the house, Duncan arrived through
the back door and struck Glaser several times in the head with a hammer.[1]
Hulfachor and Duncan then left Glaser on the floor of the abandoned house,
took his truck, and fled to Henderson, Kentucky.
An autopsy revealed that Glaser died of a “craniocerebral blunt force
injury.” (Supp. R. at 53.) Blood taken from clothing worn by Duncan and
Hulfachor on the evening of the murder matched blood samples taken from
Glaser.
Duncan argues that the evidence is insufficient because he had an
alibi establishing that he was out of town when Glaser’s fatal injuries
were inflicted. Specifically, he asserts that he and Hulfachor were
driving to Tulsa, Oklahoma at the established time of Glaser’s death. Even
assuming this is true, it does not rule out the possibility, in fact, the
probability, that Glaser died from wounds inflicted several hours earlier.
Indeed, the coroner testified that Glaser could have survived with the
inflicted head wounds for up to twenty-four hours before dying. (R. at 878-
79.) We rely on juries to resolve conflicts in evidence. Here, a
reasonable jury could well conclude that Duncan murdered Glaser.[2]
Admission of Photographs
Several photographs admitted at trial depict Glaser’s head wounds.
Duncan objected to their admission on grounds that the pictures were
cumulative and that they were gruesome.
The admission of cumulative evidence does not itself warrant a new
trial; an appellant must show that unfair prejudice flowing from the
evidence outweighs its probative value. Wagner v. State, 474 N.E.2d 476
(Ind. 1985). Photographs depicting the victim’s injuries or demonstrating
a witness’s testimony are generally admissible and will not be rejected
merely because they are gruesome or cumulative. Harrison v. State, 699
N.E.2d 645 (Ind. 1998). We review the trial court’s ruling for an abuse of
discretion. Id. at 648.
Three photographs are at issue; each shows Glaser’s wounds at a
different angle. Thus, they are not wholly cumulative. The photographs
also establish the cause of death and the manner in which the crime was
committed. This evidence is particularly probative inasmuch as Duncan
tried to establish that, although he struck Glaser in the head with a
hammer, he did not cause Glaser’s death. (Appellant’s Br. at 9-14.) We do
not see an abuse of discretion by the trial court.
Sentencing
Finally, Duncan argues that the trial court improperly failed to apply
principles of double jeopardy when sentencing him. Specifically, Duncan
argues that the trial court erred in convicting and sentencing him on
murder and robbery. Rather, Duncan claims, “all counts in the charge . . .
should have logically and sequentially merged into a single conviction for
felony murder.” (Appellant’s Br. at 18.)
We agree with Duncan that a person cannot be convicted of both murder
and felony murder arising from the same homicide. (Appellant’s Br. at
16.); Robinson v. State, 477 N.E.2d 288 (Ind. 1985). Here, however, the
trial court properly vacated the conviction on felony murder, while
allowing the conviction for murder to stand. Likewise, the trial court
properly sentenced Duncan only on the robbery count, and not the theft
count, because theft is a lesser included offense of robbery. Landers v.
State, 464 N.E.2d 912 (Ind. 1984). Finally, the trial court correctly
reduced the robbery to a class C felony because both the murder conviction
and the original enhanced robbery conviction were based on the same bodily
injury. See Hampton v. State, 719 N.E.2d 803, 808 (Ind. 1999). The trial
court was not required, however, to vacate the robbery conviction
altogether, as Duncan asserts.
We analyze double jeopardy claims under Richardson v. State, 717
N.E.2d 32 (Ind. 1999). In Richardson, this Court developed a two-part test
for determining whether two convictions are permissible. We explained that
two offenses are the “same offense” and thus violate double jeopardy if,
with respect to either the statutory elements of the challenged crimes or
the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Id. at 49.
Duncan makes no claim under the statutory elements test, and we see
none. As for the actual elements test, the facts support convictions for
two separate acts, despite their temporal proximity. Duncan and Hulfachor
struck Glaser, then left him bleeding on the floor. The two then went
outside and “looked at [Glaser’s] truck and went to the truck.” (R. at
1017.) Finding keys in the ignition, the two fled the scene.
Duncan’s convictions for robbery and murder are not the same offense,
and there has been no double jeopardy violation.
Conclusion
Accordingly, we affirm the trial court’s judgment.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Duncan admits this fact. (See R. at 1012, 1013; Appellant’s Br. at 11-
14.)
[2] Duncan challenges the sufficiency of the evidence to support the
robbery conviction but makes no separate argument about it. We imagine he
may have the same contention he makes about the murder. If so, it is
likewise unavailing.