Ledo v. State

Attorney for Appellant

Charles F. Leonard
Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Sarah E. Scherrer
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

ULISES LEDO,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 02S00-9904-CR-266
)
)
)
)
)
)

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9703-CF-139

ON DIRECT APPEAL

February 7, 2001

SULLIVAN, Justice.

Defendant Ulises Ledo was convicted of felony murder, two counts of
burglary, and other offenses for killing a man and burglarizing his home.
We find the evidence sufficient to reject Defendant’s challenges to the
murder and one of the burglary convictions. And because there were two
separate burglaries, his convictions on those counts did not violate double
jeopardy.

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 February 24,
1997, Defendant went to Bryan Fitzhugh’s apartment where the two drank and
smoked marijuana. Josh Warner arrived and told them that he had just
returned from Mr. Osterholt’s mobile home where there were guns, a VCR, a
Nintendo, and possibly money. After smoking crack cocaine, Defendant and
Fitzhugh went with Warner and another friend to the mobile home.
Defendant, followed by Fitzhugh, entered the mobile home, hit Mr.
Osterholt, tied his hands, and pushed him onto the bed. Defendant then
ordered Fitzhugh to kill Osterholt, whereupon Fitzhugh shot Osterholt with
a shotgun, killing him. Defendant and Fitzhugh left the mobile home
carrying guns and other items that they had taken from inside. The four
then returned to Fitzhugh’s residence. About one or two hours later,
Defendant and Fitzhugh began discussing their concerns about fingerprints
at the victim’s mobile home. Finally, Defendant and Warner, accompanied by
two different individuals, returned to the mobile home. On this second
trip, Defendant and his new group of companions took more of the victim’s
belongings.

The State charged Defendant with Felony Murder,[1] Robbery,[2] two
counts of Burglary,[3] Criminal Confinement,[4] and with being a habitual
offender.[5] A jury found Defendant guilty on all counts, including
finding him to be a habitual offender. The trial court sentenced Defendant
to a total of 105 years incarceration.

Discussion

I

Defendant contends that the State’s evidence was insufficient to
prove the second count of burglary.

In reviewing a sufficiency of the evidence claim, this Court neither
reweighs the evidence nor assesses the credibility of the witnesses. See
Garland v. State, 719 N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. We
look to the evidence most favorable to the verdict and reasonable
inferences drawn therefrom. See Sanders v. State, 704 N.E.2d 119, 123. We
will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. See Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).

Burglary consists of breaking and entering the building or structure
of another with the intent to commit a felony therein. See Ind. Code § 35-
43-2-1 (1993). It rises to a Class B felony if it is committed with a
deadly weapon or the building or structure is a dwelling. See id.

Defendant asserts that “the State of Indiana failed to prove beyond a
reasonable doubt that Mr. Ledo returned to Mr. Osterholt’s home armed with
a deadly weapon with the intent to commit the offense of theft.”
Appellant’s Br. at 16. We disagree.

The State presented evidence that during the second trip to the
victim’s mobile home Defendant and his companions took music CD’s, a boom
box, meat out of the freezer, and a Sony Playstation among other things.
According to a witness for the State, Defendant also took a file box and a
safety deposit box. A reasonable jury could have concluded that Defendant
intended to commit theft when he broke into and entered the mobile home.
See Gee v. State, 526 N.E.2d 1152, 1154 (Ind.1988) (stating that a jury can
infer from the surrounding circumstances whether a defendant entered a
structure with the intent to commit the felony charged therein); Jewell v.
State, 672 N.E.2d 417, 426-27 (Ind. Ct. App 1996) (holding that although
the fact of breaking and entering is not itself sufficient to prove entry
was made with intent to commit a felony, such intent may be inferred from
subsequent conduct of the defendant inside the premises), transfer denied.

II

Defendant next contends that his convictions on two counts of
burglary violate Indiana’s Double Jeopardy Clause. He states that the acts
of theft were, in fact, part of one continuous act.

“Indiana’s Double Jeopardy Clause was intended to prevent the State
from being able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

Defendant cites Eddy v. State, 496 N.E.2d 24 (Ind. 1986), for the
proposition that “a crime that is continuous in its purpose and objective
is deemed to be a single uninterrupted transaction.” Id. at 28.

Here, however, Defendant and his co-conspirators took the victims
property during two separate acts of burglary. After the first burglary,
Defendant returned with a different group of accomplices and broke and
entered the victim’s mobile home for the second time. In this particular
case, the new accomplices and the lapse of time establish that the second
break-in was a separate act done with a new and distinct intent to commit a
felony.

III

Finally, Defendant argues that the felony murder conviction “is based
upon insufficient evidence” because “no evidence was presented at trial to
establish that [Defendant] was the person who killed Mr. Osterholt.”
Appellant’s Br. at 19-20.

Felony murder occurs when a person “kills another human being while
committing or attempting to commit … burglary.” Ind. Code § 35-42-1-1(2)
(1993). The Murder statute applies where a person “kill[s] another human
being.” Id. § 35-42-1-1. In addition, Indiana Code § 35-41-2-4 (1993)
allows that a “person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense.”
Therefore, one who intentionally aids, induces, or causes another person to
commit Murder is also guilty of Murder.

The State’s evidence was sufficient to find Defendant guilty of Felony
Murder. The State presented evidence that Defendant and Fitzhugh broke
into and entered the victim’s mobile home and took items from it, and
Fitzhugh testified that Defendant tied the victim’s hands behind his back,
pushed him onto the bed, and ordered Fitzhugh to kill the victim. This
amounts to substantial evidence of probative value that Defendant and
Fitzhugh killed the victim while committing burglary. At minimum, a
reasonable jury could infer that Defendant committed Felony Murder by
aiding, inducing, or causing Fitzhugh to kill the victim in the course of
the burglary.

Conclusion

The trial court’s judgment is affirmed.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1 (1993).

[2] Id. § 35-42-5-1.

[3] Id. § 35-43-2-1.

[4] Id. § 35-42-3-3.

[5] Id. § 35-50-2-8 (Supp. 1996).