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Tobar v. State

Court: Indiana Supreme Court
Date filed: 2000-12-20
Citations: 740 N.E.2d 109
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ATTORNEY FOR APPELLANT

Thomas J. LaFountain
South Bend, Indiana





ATTORNEYS FOR APPELLEE

Karen Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

RICKY TOBAR                  )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No.71S00-9909-CR-481
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                      The Honorable Jerome Frese, Judge
                        Cause No. 71D03-9903-CF-00144
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                              December 20, 2000

BOEHM, Justice.
      Ricky Tobar was convicted  of  the  murders  of  Keith  Canady,  James
Johnson, and Clester Wallace, Jr. and sentenced to consecutive sentences  of
sixty-five, fifty-five, and forty-five years, respectively, for a  total  of
165 years.  In this direct appeal, Ricky argues that: (1)  the  trial  court
erred in refusing to give a jury instruction on the defense of  duress;  (2)
the evidence was insufficient to  convict  him;  and  (3)  his  sentence  is
manifestly unreasonable.  We affirm the trial court.

                      Factual and Procedural Background

      On March 23, 1999, Ricky was  at  his  residence  along  with  several
family members and  acquaintances,  including  his  cousin,  William  Tobar.
Ricky operated a crack business out of his home and William often  acted  as
the “security guard” in drug sales.  At  some  point  after  noon,  two  men
arrived to purchase crack cocaine.  Jovanna Harris, one of Ricky’s  friends,
stated that it was “her serve” and proceeded to drive with one  of  the  men
to an ATM to obtain cash  for  the  sale.   The  other  man,  Keith  Canady,
remained at Ricky’s home. [R. 529]  Harris  returned  a  short  time  later,
crying, and stated that the man had held a gun to her  head  and  taken  her
drugs and money.
      In response to this news, William punched Canady in  the  face.   Both
William and Ricky kicked Canady as  he  lay  on  the  floor.   William  then
dragged Canady down to the basement, hog-tied  him,  beat  him,  and,  later
that evening, suffocated him  by  gagging  him  and  securing  plastic  bags
around his neck.  William testified that Ricky wanted to shoot  Canady,  but
that William dissuaded him because he thought that a gunshot would be  heard
by the neighbors.  William also testified that Ricky was  “hitting  [Canady]
and stuff” while Canady was tied in the basement.
      Johnson and Wallace  arrived  about  8:45  p.m.   William  overpowered
Johnson, pistol-whipped him, and tied his hands behind his back  as  he  lay
on the floor.  Johnson, who knew Ricky because he had dated Ricky’s  mother,
asked Ricky to intervene.  According to William, Ricky then  forced  Wallace
to lie down on the floor.  As a result of  William’s  beating  Johnson  with
the gun, the bullets flew out of the gun.  Ricky reloaded  it  at  William’s
request.  Ricky or William then shot Johnson once in the  head  and  Wallace
in the back and chest.  Both were killed.  William attempted to conceal  the
crimes by turning on the gas stove,  extinguishing  the  pilot  lights,  and
removing the knobs after pouring kerosene over Canady’s body and setting  it
on fire.
      Immediately thereafter, Ricky was observed by a neighbor  leaving  the
house carrying a shoebox and a garbage bag.  Ricky  convinced  a  friend  to
book him a room at a motel.  After two  nights,  he  turned  himself  in  to
authorities.  Ricky and William were convicted of the murders of  all  three
men.
                            I.  Jury Instruction
      Ricky argues that the trial court abused its  discretion  by  refusing
his jury instruction on  the  defense  of  duress.   In  reviewing  a  trial
court’s decision to give or refuse tendered jury  instructions,  this  Court
considers: (1)  whether  the  instruction  correctly  states  the  law;  (2)
whether there is evidence in  the  record  to  support  the  giving  of  the
instruction; and (3) whether the substance of the  tendered  instruction  is
covered by other instructions which are given.  Cutter v. State, 725  N.E.2d
401, 408 (Ind. 2000).
      At trial, the trial court  declined  to  give  Ricky’s  tendered  jury
instruction regarding duress on the ground that there  was  no  evidence  of
any imminent threat to Ricky.  Ricky urges that the trial court  abused  its
discretion in failing to consider that William was a large  man  and  former
boxer, that Ricky watched as  William  beat  Canady,  and  that  Ricky  knew
William to have used crack cocaine and be “in the throes of a  crack-induced
rage.”
      Duress is proper as a defense  if  the  person  “who  engaged  in  the
prohibited conduct was compelled to do so  by  threat  of  imminent  serious
bodily injury.”  Ind. Code § 35-41-3-8 (1998).  Although  there  was  plenty
of evidence attesting to William’s intimidating size, Ricky never  expressed
any fear of William to authorities, and  there  is  nothing  in  the  record
suggesting Ricky feared his cousin, much less  felt  threatened  by  serious
bodily injury.  Indeed, by his own account Ricky left his  home  during  the
course of the crimes to obtain liquor and voluntarily returned.   Thus,  the
trial court did not abuse its discretion in concluding  that  there  was  no
evidence  of  duress  in  the  record  to  support   the   giving   of   the
instruction.[1]
                       II. Sufficiency of the Evidence
      Ricky argues that the evidence was insufficient to convict him of  the
murders of Canady, Johnson, and Wallace, even under an accomplice  liability
theory.  He urges that the jury could not have reasonably inferred from  the
evidence presented at trial that he had anything to do  with  these  murders
other than being “in the wrong place at the wrong time.”
      Our standard for reviewing sufficiency of the evidence claims is  well
settled.  We do not reweigh the evidence or judge  the  credibility  of  the
witnesses, Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999), and  it  lies
within  the  jury’s  exclusive  province  to  weigh  conflicting   evidence,
Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998).  We  will  affirm  the
trial court if the probative evidence and reasonable inferences  drawn  from
the evidence could have allowed a reasonable  trier  of  fact  to  find  the
defendant guilty beyond a reasonable doubt.   Bunch  v.  State,  697  N.E.2d
1255, 1257 (Ind. 1998).
      In order to be found guilty of murder based on  accomplice  liability,
a jury must find beyond a reasonable doubt that a  defendant  “knowingly  or
intentionally aid[ed], induce[d], or cause[d] another person  to  commit  an
offense.”  Ind. Code § 35-41-2-4 (1998).  A  defendant’s  mere  presence  at
the crime scene, or lack of  opposition  to  a  crime,  standing  alone,  is
insufficient to  establish  accomplice  liability.   Harris  v.  State,  425
N.E.2d 154, 156 (Ind. 1981).  These factors, however, may be  considered  in
conjunction with a defendant’s course of conduct before, during,  and  after
the crime, and a defendant’s companionship with  the  one  who  commits  the
crime.  Id.
      Here,  the  jury  was  instructed  on  accomplice  liability  and  the
evidence was sufficient to convict Ricky on that basis.   William  acted  as
the “security guard” at Ricky’s “crackhouse.”  There was also at least  some
evidence of  Ricky’s  direct  involvement  in  the  killings.   One  witness
testified that both Ricky and William kicked Canady, and  William  testified
that Ricky beat Canady in the basement.  According to  testimony  at  trial,
six or more hours elapsed between the time Canady arrived  at  Ricky’s  home
and Canady’s body was set on fire in an attempt  to  cover  up  the  crimes.
Canady was apparently alive for a large portion of  that  time,  but  unlike
all the other occupants of the house, Ricky never left the scene  except  to
go to the liquor store.  Although William’s testimony  conflicted  with  his
initial statement to authorities, the jury was entitled to credit  William’s
account that he and Ricky discussed how they would  kill  Canady,  and  that
Ricky hit Canady and inquired, “Man, he ain’t dead  yet?”   The  jury  could
infer that William was  acting  under  Ricky’s  instructions.   If  so,  the
ultimate objective of killing all three was “induced or  caused”  by  Ricky.
William testified that it was Ricky who  shot  Johnson  and  Wallace.   This
testimony also conflicted with William’s initial statement  to  authorities,
but even if it is discredited, by Ricky’s own  admission,  he  reloaded  the
gun after the bullets flew out of it, and told Johnson, whom  he  had  known
since he was thirteen, that there was nothing he could do to  help  him  and
that Johnson had gotten himself into the mess with  William.   Both  William
and another witness testified that the gun belonged Ricky.   Finally,  after
William attempted to blow up the house, Ricky was  seen  fleeing  the  scene
with some  clothing  and  personal  belongings  from  his  house.   He  then
convinced a friend to find a motel room for him and remained there until  he
discovered that friends and relatives had spoken to  authorities,  at  which
time he turned himself in.
       The question of whose testimony to believe was  a  difficult  one  to
resolve in this case, but that is the role of the jury, and we are not  free
to supplant the jury’s  judgment  with  our  own.   William  initially  took
responsibility for all three murders, then changed his  story  and  admitted
to murdering Canady, but not Johnson and Wallace.  Ricky  first  denied  any
involvement in or knowledge of the killings,  and  then  later  admitted  to
being present, but little more.  In his  second  statement,  Ricky  admitted
reloading the gun for William, but simultaneously alleged that he  had  left
before anyone was killed, and believed “[William] was going to whoop  [them]
and let them go.”  In short, the jury likely found it difficult  to  believe
both Ricky’s and William’s testimony.  Thus, the  jury  had  the  unenviable
task of resolving conflicting versions of the  truth.   Here,  the  evidence
was sufficient for the jury to conclude that Ricky,  even  assuming  he  was
not the killer of any of the three, was guilty beyond a reasonable doubt  of
aiding the murders by kicking Canady and loading the gun to shoot the  other
two, or ordering or causing the murders by directing  William  to  kill  the
victims.

                    III. Manifestly Unreasonable Sentence

      Ricky contends that his sentence is manifestly  unreasonable  in  view
of his limited involvement in the murders, his youth, and lack  of  criminal
history.  Although this Court has the  constitutional  authority  to  review
and revise sentences, Ind. Const. art. VII, § 4, it will  do  so  only  when
the sentence is “manifestly unreasonable in  light  of  the  nature  of  the
offense and the character of the  offender.”   Ind.  Appellate  Rule  17(B).
This Court’s review under Rule  17(B)  is  very  deferential  to  the  trial
court:  “[T]he issue  is  not  whether  in  our  judgment  the  sentence  is
unreasonable, but whether it is clearly, plainly, and obviously so.”   Bunch
v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v.  State,  687
N.E.2d 563, 568-69 (Ind. 1997)).  This standard is the same irrespective  of
whether the defendant is an accomplice or a principal.   Johnson  v.  State,
687 N.E.2d 345, 349 (Ind.  1997).  As  a  general  rule,  multiple  killings
warrant the imposition of  consecutive  sentences.   Noojin  v.  State,  730
N.E.2d 672, 679 (Ind. 2000).
      Here, the trial court imposed  consecutive  sentences  of  sixty-five,
fifty-five, and forty-five years for the murders  of  Canady,  Johnson,  and
Wallace, respectively.  The trial court imposed  these  sentences  based  on
the “nature of the offense.”  It elevated Ricky’s  conviction  for  Canady’s
murder based upon the beating and torture Canady endured and the  subsequent
burning of his body, and imposed the presumptive  with  regard  to  Johnson,
noting that Johnson was also subjected to a beating before  his  death.   As
for the “character of the offender,” the trial court noted Ricky’s  youthful
age at the time of the offense  (nineteen)  as  well  as  his  limited  past
involvement with the law, which consisted of a warning to Ricky when he  was
nine years old.  However, the trial court also noted that the  murders  came
about as a direct result of Ricky’s drug business.
      We are unable to say that Ricky’s sentence is manifestly  unreasonable
considering  the  “nature  of  the  offense”  and  the  “character  of   the
offender.”  Even if his participation was  limited,  Ricky  aided  a  triple
homicide, including a brutal torture.  And although it is true that  Ricky’s
criminal history was negligible, as the trial court  noted,  this  does  not
help make the case that Ricky was a  law-abiding  citizen  in  view  of  his
trade as a drug dealer.  With regard to Ricky’s limited involvement  in  the
murders,  this  Court  is  not  compelled  to  find  a  sentence  manifestly
unreasonable simply because the weight of the  evidence  suggests  that  the
defendant’s  role  was  that  of  an  accomplice  and   not   a   principal.
Irrespective of whether Ricky actually pulled the trigger, he  reloaded  the
gun.  When Johnson pleaded with Ricky for help after being beaten  and  tied
up, Ricky told him that he had to settle his  own  score  with  William  and
that there was nothing he could  do.   Moreover,  if  William’s  account  is
credited, Ricky impliedly directed the deaths  by  asking,  “Ain’t  he  dead
yet?”  In view of these factors, the  imposition  of  consecutive  sentences
and  an  enhanced  sentence  is  not  “clearly,  plainly,   and   obviously”
unreasonable.

                                 Conclusion

      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
      SULLIVAN, J., concurs except as to sentence.



-----------------------
[1]  As the State notes, the Indiana Code also explicitly  forbids  the  use
of duress as a defense to an offense against the person,  including  murder.
Ind. Code § 35-41-3-8(b) (1998).  Ricky does not address this issue.