ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN C. C. WILD KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
CRAIG FERRELL, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0003-CR-142
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Diane M. Moore, Judge
Cause No. 49G04-9901-CF-009945
ON DIRECT APPEAL
April 11, 2001
RUCKER, Justice
After a trial by jury Craig Ferrell was convicted of murder,
attempted robbery as a Class A felony, aggravated battery as a Class B
felony, and criminal gang activity as a Class D felony for his role in the
stabbing death of Edward Crafter. His only complaint on appeal concerns
the sufficiency of the evidence. We agree the evidence of criminal gang
activity was not sufficient and therefore we reverse this conviction. For
his other convictions, we affirm.
Facts
The facts most favorable to the verdict show that in the evening hours
of January 14, 1999, a group of men attacked and beat Edward Crafter. His
body was found in a field the following morning. At least four of the men
were charged in connection with Crafter’s death, one of whom was Tommy
Thompson. In exchange for his testimony, the State dismissed charges
against Thompson for murder, robbery, and criminal gang activity and
allowed him to plead guilty to aggravated battery. At trial, Thompson
downplayed his own involvement in Crafter’s death and instead blamed
Ferrell and another accomplice, Steven Kilpatrick, who was tried along with
Ferrell as a co-defendant.[1] He testified, for example, that he observed
Kilpatrick strike Crafter in the head with a chunk of ice and that as
Crafter lay on the ground Ferrell and Klipatrick searched Crafter’s
pockets. Thompson also testified that sometime thereafter he observed
Ferrell and Kilpatrick dragging Crafter through the street; that Kilpatrick
stabbed Crafter multiple times in the neck and that
Ferrell stabbed him in the chest; and that both Ferrell and Kilpatrick
dragged Crafter’s body into some bushes. An autopsy revealed that in
addition to abrasions and contusions to his face, Crafter suffered an
injury to the back of his head consistent with being struck with a large
block of ice. The autopsy also revealed that Crafter died as a result of
multiple stab wounds. A jury convicted Ferrell of murder, attempted
robbery, aggravated battery, and criminal gang activity. The trial court
sentenced him to an aggregate term of 100 years imprisonment.[2] This
appeal followed.
Discussion
Ferrell does not contest his conviction for aggravated battery. He
contends, however, that his convictions for murder, attempted robbery, and
criminal gang activity are not supported by sufficient evidence. In
reviewing a sufficiency of the evidence claim, we do not reweigh the
evidence or assess the credibility of witnesses. Brown v. State, 720
N.E.2d 1157, 1158 (Ind. 1999). Rather, we look to the evidence and
reasonable inferences drawn therefrom that support the verdict and will
affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id.
Ferrell’s chief complaint concerns the testimony of Tommy Thompson.
Contending that Thompson was the only witness to testify concerning the
murder and attempted robbery,
Ferrell argues that Thompson’s testimony was self-serving, inherently
contradictory, and inconsistent with virtually all other testimony as well
as with the physical evidence. Thus, according to Ferrell, Thompson’s
testimony was incredibly dubious as a matter of law. Under the “incredible
dubiosity rule,” a court will impinge upon the jury’s responsibility to
judge witness credibility only when confronted with inherently improbable
testimony or coerced, equivocal, wholly uncorroborated testimony of
incredible dubiosity. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994);
Gaddis v. State, 253 Ind. 73, 80-81, 251 N.E.2d 658, 661-62 (1969).
“Application of this rule is limited to cases, such as Gaddis, where a sole
witness presents inherently contradictory testimony which is equivocal or
the result of coercion and there is a complete lack of circumstantial
evidence of the appellant’s guilt.” Tillman, 642 N.E.2d at 223.
In this case, Thompson testified that he arrived on the scene after a
fight between Crafter and several other men had begun and that he hit
Crafter only once. R. at 307, 311. By contrast, two other witnesses
testified that Thompson participated more actively in the beatings. R. at
238, 423. Thompson testified that Ferrell and Kilpatrick beat Crafter but
did not mention anyone else. R. at 309. On the other hand, other
witnesses testified that four or five persons participated in the beating.
R. at 236-37, 391. Thompson said that both Ferrell and Kilpatrick went
through Crafter’s pockets. R. at 313. However, other witnesses testified
that only Kilpatrick did so. R. at 239-40, 412. No witness other than
Thompson testified that Ferrell stabbed Crafter; however, no blood was
found on Ferrell’s clothing, which according to Ferrell, one might expect
given the nature of Crafter’s injuries. On this latter
point, the record shows the clothing that was tested for bloodstains was
clothing Ferrell wore at the time of his arrest three weeks after the
stabbing. R. at 529. Further, Thompson as well as another State’s witness
testified that on the night of the stabbing Ferrell removed the clothes he
was wearing and placed them in a trash bag. R. at 323, 415-16.
In any event, although Thompson’s testimony was inconsistent in
several respects with the testimony of other witnesses, it was not
equivocal and Thompson did not contradict himself on the stand. Rather,
the record shows that even though Ferrell thoroughly cross-examined
Thompson, he nonetheless stuck by his account of the events occurring on
the night of the fatal stabbing. R. at 329-43. See Berry v. State, 703
N.E.2d 154, 160 (Ind. 1998) (declining to apply the “incredible dubiosity
rule” where there were inconsistencies in the testimony among witnesses but
no one witness contradicted himself). It is for the trier of fact to
resolve conflicts in the evidence and to decide which witnesses to believe
or disbelieve. Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993). If the
testimony believed by the trier of fact is enough to support the verdict,
then the reviewing court will not disturb it. Id. In this case the jury
apparently believed Thompson’s testimony. His testimony was sufficient to
support a guilty verdict for murder and attempted robbery. We therefore
affirm Ferrell’s convictions for these offenses.
We have a different view, however, concerning Ferrell’s conviction for
criminal gang activity. In order to convict a defendant of criminal gang
activity, the State must prove beyond a reasonable doubt that the
individual: (1) is an active member of a group with five or more members
which promotes, sponsors, assists in, or participates in or requires as a
condition of membership or continued membership the commission of a felony
or an act that would be a felony if committed by an adult, (2) has
knowledge of the group’s criminal
advocacy, and (3) has a specific intent to further the group’s criminal
goals. See Ind.Code §§ 35-45-9-1, -3.
At the time of his arrest, photographs were taken of Ferrell showing
several tattoos on his arms and chest. A detective assigned to the Metro
Gang Task Force testified that the tattoos were the symbols of a street
gang known as the Vice Lords. In the officer’s opinion, “the individual
with these tattoos would be showing allegiance to the Vice Lord nation.”
R. at 679. The detective also testified concerning the size and illegal
activities of the Vice Lords gang. To sustain a conviction under a
sufficiency of the evidence challenge, there must be sufficient evidence on
each material element of the offense. Grace v. State, 731 N.E.2d 442, 445
(Ind. 2000), reh’g denied. Here, the State presented no evidence that
Ferrell was an “active” gang member. Nor did the State present any
evidence that Ferrell had the specific intent to further the gang’s
criminal goals when he stabbed and attempted to rob Crafter. The State’s
case on this offense consisted only of evidence that Ferrell, at some
point, was a member of a gang that commits criminal offenses. That is not
enough. See Robinson v. State, 730 N.E.2d 185, 195 (Ind. Ct. App. 2000),
trans. denied; Trice v. State, 693 N.E.2d 649, 651 (Ind. Ct. App. 1998)
(both reversing convictions for criminal gang activity where the State
failed to show a nexus between the defendants’ gang membership and the
crimes for which they were charged). We thus conclude the evidence was not
sufficient to support Ferrell’s conviction for criminal gang activity.
Therefore, we are compelled to reverse this conviction.
Conclusion
We reverse Ferrell’s conviction for criminal gang activity. In all
other respects, the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Today, we also decide the case of co-defendant Steven Kilpatrick.
Kilpatrick v. State, Cause No. 49S00-0003-CR-185, ___N.E.2d___ (Ind.
2001).
[2] Specifically, the trial court sentenced Ferrell to consecutive
terms of sixty (60) years for murder and forty (40) years for attempted
robbery. The court also sentenced Ferrell to twenty (20) years for
aggravated battery and three (3) years for criminal gang activity but
merged these sentences into the sentence for attempted robbery.
Ferrell v. State
Combined Opinion