Attorney for Appellant
Katherine A. Cornelius
Marion County Public Defenders Office
Indianapolis, Indiana
Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
Indianapolis, Indiana
IN THE
INDIANA SUPREME COURT
LESLIE HAUK,
Appellant (Defendant below)
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-9805-CR-262
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9503-CF-35112
ON DIRECT APPEAL
June 8, 2000
SULLIVAN, Justice.
Defendant Leslie Hauk was convicted of and sentenced for Murder and
Robbery. She appeals, arguing that (1) the trial court improperly refused
her requests to instruct the jury on the crimes of Theft and Assisting a
Criminal, and (2) the trial court improperly excluded evidence of a co-
defendant’s bad character. Finding the trial court’s actions proper, we
affirm the trial court’s judgments.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4(A)(7).
Background
The facts most favorable to the verdict indicate that on March 5,
1995, Defendant Leslie Hauk and her live-in companion, Daniel Sturgeon,
brutally beat James Coffman with a crow bar and stabbed him numerous times
with a kitchen knife. Defendant and Sturgeon stole as much as $1,500 from
Coffman both after he died and during the course of time they spent
drinking with and beating Coffman prior to killing him. After Coffman was
dead, Sturgeon gave Defendant $389 and told her to get rid of the knife.
Defendant left the crime scene, crashed her car soon thereafter, and was
arrested for driving while intoxicated. Prior to suspecting her connection
to Coffman’s murder, the police found the kitchen knife in Defendant’s car
and credited her commissary account with the $389.
Gregory Anderson, a friend of Sturgeon’s, testified that on March 6,
1995, he helped Sturgeon carry Coffman’s body out of the house and they
placed it in the trunk of Coffman’s car. Two days later, Coffman’s son
located Coffman’s car and called for a police officer; the two of them
opened the trunk and discovered Coffman’s body.
On March 13, 1995, the State charged Defendant with Murder,[1] Felony
Murder,[2] and Robbery,[3] a Class B felony. A jury found Defendant guilty
of all three charges, but the trial court merged the Murder and Felony
Murder convictions, sentencing Defendant to 55 years for Murder and 20
years for Robbery, the sentences to be served concurrently. Sturgeon was
also tried, convicted, and sentenced for his part in this matter. See
Sturgeon v. State, 719 N.E.2d 1173 (Ind. 1999).
Additional facts will be provided as necessary.
Discussion
I
Defendant’s principal claim, as best we understand it, is that because
of a series of rulings by the trial court rejecting her requests for
certain jury instructions, she was denied the opportunity to be convicted
of crimes she acknowledged she committed and was convicted of crimes she
did not commit. It was her defense that she bore no culpability for either
the murder or robbery of Coffman — that Sturgeon was solely responsible for
those crimes. But she admits that after Sturgeon had completed the
commission of those crimes, she accepted the $389 and attempted to hide the
knife. As such, she contends that she should have been convicted of
Theft[4] and of Assisting a Criminal,[5] but not of Murder and Robbery.
In furtherance of this defense, Defendant asked the trial court to
instruct the jury on Theft and Assisting a Criminal as lesser-included
offenses of Robbery and Murder, respectively. The trial court denied the
request. Defendant contends in this appeal that the trial court’s denial
constituted reversible error in that she was entitled to the instructions
as a matter of substantive law and, more broadly, the refusal to give the
instructions effectively denied her a fair trial and the opportunity to
present her defense.
Before proceeding to the merits of these claims, we note that Sturgeon
made essentially the same argument in his appeal from his convictions for
the same offenses. That is, he claimed that he bore no culpability for
either the murder or robbery of Coffman — that Defendant was solely
responsible for those crimes and that he was only guilty of assisting her
after the crimes had been completed. See Sturgeon, 719 N.E.2d at 1182-84.
A
Defendant’s argument suggests that she believes there was insufficient
evidence to support a conclusion that she was guilty of Murder and Robbery.
Given the structure of her argument, it is helpful to address that
question first.
Defendant was convicted of Murder and Robbery under an accomplice
liability and aiding and abetting theories.theory. At a minimum, as
evidenced by Defendant’s own admissions and testimony, Defendant stole
money from Coffman, observed his brutal murder, and fled the crime scene to
dispose of one of the murder weapons. Indiana Code § 35-41-2-4 (1993)
allows a defendant to be convicted of a crime based on accomplice
liability, providing that one “who knowing or intentionally aids, induces,
or causes another person to commit an offense commits that offense.”
Also, “[a]n accomplice can be held criminally liable for ‘everything done
by his confederates which was a probable and natural consequence of their
common plan.’” Shane v. State, 716 N.E.2d 391, 396 (Ind. 1999 (quoting
Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981)). A jury may infer
complicity and participation in a crime “‘from defendant’s failure to
oppose the crime, companionship with the one engaged therein, and a course
of conduct before, during, and after the offense which tends to show
complicity.’” Id. “An accomplice is equally as culpable as the one who
commits the actual crime.” Id. (citing Johnson v. State, 687 N.E.2d 345,
349 (Ind. 1997)). If the jury believed nothing but Defendant’s own
testimony, the evidence was sufficient to support her convictions.
B
As to Defendant’s claim that the trial court should have instructed
the jury on Theft as a lesser-included offense of Robbery, we agree with
the trial court.
When a defendant requests a lesser-included offense instruction, the
trial court must apply a three-part analysis: (1) determine whether the
lesser-included offense is inherently included in the crime charged; if
not, (2) determine whether the lesser-included offense is factually
included in the crime charged; and, if either, (3) determine whether a
serious evidentiary dispute exists whereby the jury could conclude that the
lesser offense was committed but not the greater. See Wright v. State, 658
N.E.2d 563, 566-67 (Ind. 1995). The trial court should grant the
defendant’s request for a lesser-included offense instruction if it answers
the third inquiry affirmatively. See id. at 567.
To determine whether a lesser-included offense is inherently included
in a charged crime, the trial court compares the relevant statutes. See
id. at 566. The requested lesser-included offense is inherently included
in the charged crime if (a) the parties could establish commission of the
claimed lesser-included offense by proof of the same material elements or
less than all of the material elements of the charged crime, or (b) the
only feature distinguishing the claimed lesser-included offense from the
charged crime is that a lesser culpability is required to establish
commission of the lesser-included offense. Id. at 566-67 (citations
omitted).
The State agrees that theft is a lesser-included offense of robbery.
Appellee’s Br. at 3; see also Allen v. State, 686 N.E.2d 760, 777 (Ind.
1997) (citing Landers v. State, 464 N.E.2d 912 (Ind. 1984)), cert. denied,
525 U.S. 1073 (1999). Theft requires the knowing or intentional exertion of
unauthorized control over the property of another person with the intent to
deprive the other person of any part of the property’s value or use. Ind.
Code § 35-43-4-2. Robbery requires the same elements, as well as the use
of threat or force. Id. § 35-42-5-1. The State charged Defendant with
robbery, but could have established that Defendant committed theft by
proving the elements of robbery, less the use of force. Therefore, theft
is inherently included in a robbery charge.
Because theft is inherently included in a robbery charge, we must
determine whether a serious evidentiary dispute existed concerning the
element distinguishing the two crimes — use of force — whereby the jury
could have concluded that Defendant committed theft but not robbery. See
Wright, 658 N.E.2d at 567. Defendant asserts that evidence was in dispute
regarding whether she facilitated Sturgeon’s robbery of Coffman or whether
she merely accepted money that Sturgeon stole from Coffman.
Despite Defendant’s claim, there was no dispute but that Coffman was
the victim of force, in the form of a brutal and bloody attack, used to
procure his money. Defendant admittedly witnessed Sturgeon bludgeoning and
stabbing Coffman before taking his money. Whether Defendant facilitated or
participated in the attack goes to the question of whether she is guilty as
an accessory to the crime charged. See Simpson v. State, 628 N.E.2d 1215,
1221 (Ind. Ct. App. 1994) (holding that a defendant is not entitled to an
instruction on theft as a lesser-included offense to robbery where the
defense challenged the State’s allegations that the defendant participated
in the robbery, the only question before the jury was the defendant’s
participation in the crime, and there was no question that all of the
elements of robbery were present), transfer denied. Defendant’s defense
that she personally did not engage in the use of force to take money off of
Coffman’s person does not create an evidentiary dispute regarding whether
force was used in the commission of this crime, and so does not entitle
Defendant to an instruction on theft as a lesser-included offense to her
robbery charge. See Allen, 686 N.E.2d at 777 (holding that a defendant is
not entitled to a theft instruction as a lesser-included offense of a
robbery charge where there is no evidence of simple theft and the victim
was clearly relieved of his or her money in a violent manner).
C
We also agree with the trial court’s decision to reject Defendant’s
request to have the jury instructed on Assisting a Criminal as a lesser-
included offense of Murder. Indiana Code § 35-44-3-2 (1993) defines the
crime of assisting a criminal as follows:
A person not standing in the relation of parent, child, or spouse to
another person who has committed a crime or is a fugitive from justice
who, with intent to hinder the apprehension or punishment of the other
person, harbors, conceals, or otherwise assists the person commits
assisting a criminal . . . .
Assisting a criminal is not an inherently lesser-included offense of
murder or robbery because a comparison of the statutory elements reveals
several differences between the elements in each of the charged crimes and
those of assisting a criminal. See also Wright v. State, 690 N.E.2d 1098,
1108 (Ind. 1997) (holding that assisting a criminal is not an inherently
included lesser offense of murder or felony murder), reh’g denied. Also,
the assisting a criminal statute was intended to apply to people who did
not actively participate in the crime itself, but who did assist a criminal
after he or she committed a crime. See id. (citing Smith v. State, 429
N.E.2d 956, 959 (Ind. 1982); 1 Charles E. Torcia, Wharton’s Criminal Law §
33, at 198 and § 35, at 210 (15th ed.1993)).
Therefore, whether or not Defendant was entitled to an instruction on
assisting a criminal first depends upon whether assisting a criminal is
factually included in murder or robbery as charged in this case. See
Wright, 658 N.E.2d at 566-67. To determine whether an alleged lesser-
included offense is factually included in the crime charged, we must
compare the charging instrument in the specific case with the statute
defining the alleged lesser-included offense. Id. at 567. If the charging
instrument alleges that the means used to commit the crime charged include
all of the elements of the alleged lesser-included offense, then the
alleged lesser-included offense is factually included in the crime charged
and we must proceed to step three of the Wright analysis. Id.
The State charged Defendant with murder by “knowingly kill[ing]
another human being, namely: James Coffman, by stabbing James Coffman
multiple times with a deadly weapon, that is: a knife, at and against the
person of James Coffman, thereby inflicting mortal stab wounds upon James
Coffman, causing James Coffman to die.” (R. at 230.) The State also
charged Defendant with robbery by “knowingly tak[ing] from the person or
presence of James Coffman, property, that is: United States Currency, by
putting James Coffman in fear or by using or threatening the use of force
on James Coffman which resulted in serious bodily injury, that is mortal
stab wounds to the person of James Coffman.” (R. at 231.) And, the State
charged Defendant with felony murder by the same means described in the
murder and robbery counts. Nothing in these charges identifies the
“assistance” element of assisting a criminal. The State would have had to
identify an individual, such as Sturgeon, who committed the underlying
crime, as well as alleged assistance in covering up the crime or avoiding
apprehension by the charged individual, Defendant, to have created a
factually-included offense via the charging informations in this case.
Defendant concedes as much in her brief where she acknowledges that
“the [s]tate’s drafting of the charging information would appear to
preclude instructing on Assisting a Criminal.” Appellant’s Br. at 23.
However, Defendant follows her concession by arguing that the State’s
request for an instruction on accomplice liability “amended and expanded
the factual nature of the charges” against her, thereby broadening its
theory of liability against Defendant, and rendering the crime of assisting
a criminal a factually included offense of the charged crimes. Appellant’s
Br. at 23-24. Defendant claims, without supporting authority, that when
the State broadens its theory of liability in this way, due process demands
that the jury be instructed on her theory that she only assisted a criminal
and did not participate in, or was not an accomplice to, commission of the
underlying crime.
Defendant’s argument is an interesting one and we can conceive of
situations where there could be a genuine factual dispute as to whether
alleged conduct constitutes, on the one hand, aidingor abetting the
commission of an offense, or, on the other hand, assisting a criminal. But
this is not such a situation. As discussed in the preceding paragraph (and
in Sturgeon, where precisely the same argument was made, 719 N.E.2d at 1183-
84), the elements of the crime of Assisting a Criminal do not include the
conduct alleged to have been committed by Defendant.
D
Finally, we address Defendant’s claim that the failure of the trial
court to give the jury the opportunity to convict her of Theft and
Assisting a Criminal deprived her of her constitutional rights to a fair
trial and to present a defense. We reject this contention. Defendant was
free to argue and present evidence to the effect that she was not guilty of
killing or robbing Coffman as either principal orthe perpetrator or his
accomplice and she did so. See Sanquenetti v. State, 727 N.E.2d 437, 439
(Ind. 2000) (“We have noted that the current statute supersedes the common
law of criminal liability and thus that the legal distinction between a
principal and an accessory has ceased to exist.”) (citing Johnson v. State,
687 N.E.2d 345, 349 (Ind. 1997); McKnight v. State, 658 N.E.2d 559, 560-61
(Ind. 1995)). She was also free to argue that she was guilty of crimes for
which she had not been charged rather than crimes for which she was on
trial. The fact that the trial court did not instruct the jury on Theft
and Assisting a Criminal did not impinge in any way on her ability to make
those arguments or present that defense. It merely prevented the jury from
convicting her of the crimes she acknowledged committing rather than crimes
the State had charged she had committed. It is not the prerogative of a
criminal defendant to select the charges on which he or she will be tried.
II
Defendant also argues that the trial court improperly excluded
evidence of Sturgeon’s bad character, thereby prejudicing her defense,
denying her a fair trial, and providing grounds for reversal. The decision
to admit evidence is within the sound discretion of the trial court and is
afforded a great deal of deference on appeal. Bacher v. State, 686 N.E.2d
791, 793 (Ind. 1997) (citing Tynes v. State, 650 N.E.2d 685, 687 (Ind.
1995)). We review evidentiary determinations for abuse of discretion and
will not reverse such decisions unless the decision is “‘clearly against
the logic and effect of the facts and circumstances’ before the court.”
Taylor v. State, 697 N.E.2d 51, 52 (Ind. 1998) (quoting Joyner v. State,
678 N.E.2d 386, 390 (Ind.1997)); see also Minnick v. State, 544 N.E.2d 471,
477 (Ind. 1989), reh’g denied.
The State filed a motion in limine requesting that the trial court
instruct Defendant not to make any reference to the criminal history,
prior bad acts, or character of co-defendant Charles Sturgeon. Defendant
argued that the trial court should permit her to present such evidence on
the theory that it was relevant to her defense and substantiated her
alleged fear of Sturgeon. Defendant testified that she only witnessed
Sturgeon’s murder of Coffman, and fled with the knife and money to get
away from Sturgeon because he intimidated her and she was afraid that he
would hurt her. The trial court ruled that Defendant could present
evidence of Sturgeon’s lies to police and other bad acts regarding this
case, but rejected Defendant’s request to present additional character
evidence on the theory that it was nothing more than propensity evidence,
and therefore disallowed under Ind. Evidence Rule 404.[6] (R. at 878-80.)
The rule is generally written, applying to all persons involved in a
criminal action, including co-defendants, and offers exceptions with
respect to the character of the accused, victims, and witnesses. See Evid.
R. 404(a)(1)-(3). To decide whether character evidence is admissible under
Evid. R. 404, the trial court must: (1) determine whether the evidence of
other crimes, wrongs, or acts is relevant to a matter at issue other than
the person’s propensity to engage in a wrongful act; and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to
Ind. Evidence Rule 403. Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999).
Defendant cites our decision in Joyner v. State, 678 N.E.2d 386 (Ind.
1997), reh’g denied, for the proposition that evidence that another person
may have committed a crime is relevant and admissible. However, the trial
court judge properly distinguished the facts in Joyner from those in this
case, noting that in Joyner the defendant sought to present specific
factual evidence concerning a possible other suspect, the possible other
suspect’s sighting with the victim, and an argument between the possible
other suspect and the victim. See id. at 389-90. In the present case,
Defendant merely wanted to present character evidence to persuade the jury
that it was more likely that Sturgeon murdered and robbed Coffman and that
Defendant did not resist Sturgeon’s actions out of fear. This argument
goes to nothing but propensity. The trial court’s decision to exclude
evidence on Sturgeon’s character is consistent with the Indiana Rules of
Evidence, case law, and was well within the court’s discretion.
Moreover, error in the exclusion of evidence is not a basis for
reversal on appeal, or otherwise modifying a judgment, unless refusal to
take such action is inconsistent with substantial justice. Ind.Trial Rule
61; see also Ind. Evidence Rule 103(a). Trial court error is harmless if
the probable impact of the error on the jury, in light of all of the
evidence, is sufficiently minor such that it does not affect the
substantial rights of the parties. See Miller v. State, 720 N.E.2d 696,
704 (Ind. 1999) (citing Sylvester v. State, 698 N.E.2d 1126, 1129 (Ind.
1998), reh’g denied)). Despite the court’s ruling, Defendant testified
under both direct and cross-examination as to Sturgeon’s bad character and
his criminal history, including the ten years he served in a Nevada State
Penitentiary for robbery. Even assuming that exclusion of the evidence was
improper, there was no prejudice to Defendant because she was allowed to
testify to Sturgeon’s bad character and criminal history, and she fails to
establish how the outcome in her case might have differed had the trial
court allowed additional evidence of Sturgeon’s bad character.
Conclusion
We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1993).
[2] Id.
[3] Id. § 35-42-5-1.
[4] Id. § 35-43-4-2.
[5] Id. § 35-44-3-2.
[6] Evid. R. 404 provides in pertinent part:
a) Character Evidence Generally. Evidence of a person’s character or a
trait of character is not admissible for the purpose of proving action
in conformity therewith on a particular occasion . . . .
b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, provided
that . . . .