Attorney for Appellant
Stanley L. Campbell
Fort Wayne, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
James A. Joven
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
SOVAYDA VASQUEZ,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 02S00-0011-CR-711
)
)
)
)
)
)
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9901-CF-9
ON DIRECT APPEAL
November 16, 2001
SULLIVAN, Justice.
Defendant Sovayda Vasquez and two other women beat and stabbed a man
to death and then stole his property. We find that her prior criminal
history and the circumstances of this crime support the 65-year sentence
for murder imposed by the trial court. And we reject her claims that there
was insufficient evidence to convict her of robbery, residential entry, and
theft, largely on the basis of her own statements.
Background
The facts favorable to the judgment indicate that on December 21,
1998, Defendant Sovayda Vasquez, Lyane Casiano, and Camelia Luna[1] went to
the Fort Wayne home of James Johnson after smoking crack cocaine and
drinking at another house. They spent some time at Johnson’s drinking and
playing cards. As the evening progressed, Johnson and Casiano ended up on
a couch in the living room area with Johnson on top of Casiano. The two
were kissing. At the same time, Defendant and Luna were in the kitchen.
While Casiano and Johnson were kissing on the couch, Defendant came
from behind and hit Johnson on the head with a black, cast iron, skillet.
Casiano ran to a back bedroom where she saw Luna rummaging through the
drawers. When she came out of the bedroom, Casiano saw that the skillet
had broken. Defendant asked her to get another skillet, which Casiano did.
Defendant continued hitting Johnson with the second skillet.
As Defendant beat Johnson, Casiano and Luna loaded stereo equipment,
telephones, and any thing else “they could get their hands on” into a
truck. After Casiano and Luna had loaded their truck, Casiano returned to
the house to find Defendant hollering at her, “Get some knives.” Casiano
retrieved some “old butcher knives” from the kitchen and Defendant began
stabbing Johnson with them.
Defendant, Casiano, and Luna then drove to the home of Chavis Taylor,
Defendant’s boyfriend. The stereo equipment was taken into his apartment
and pawned the next day by Taylor’s cousin. (R. 513.) Taylor kept one
piece of stereo equipment and a VCR.
The next day, Defendant and Taylor returned to Johnson’s home.
Taylor followed Defendant into the house through a side door. Inside the
house he saw the body of a “black guy.” Taylor left the house for the car.
Approximately three minutes later, Vasquez came out of the house with some
liquor bottles.
Defendant was convicted at trial of Murder,[2] Felony Murder,[3]
Robbery, a Class A felony,[4] Residential Entry,[5] and Theft.[6]
Discussion
I
Defendant contends that there was insufficient evidence to maintain
her conviction for robbery.
In reviewing a sufficiency of the evidence claim, the 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 draw reasonable
inferences there from. See Sanders v. State, 704 N.E.2d 119, 123 (Ind.
1999). A conviction will be upheld if there is substantial evidence of
probative value from which a jury could have found the defendant guilty
beyond a reasonable doubt. See Warren v. State, 725 N.E.2d 828, 834 (Ind.
2000).
A
Defendant’s contention that there was not sufficient evidence to
sustain a robbery conviction rests on her claim that “there was no evidence
presented at trial to establish that she took property of the deceased.”
(Appellant’s Br. 7.) She further argues that accomplice testimony “did not
provide any evidence that the Defendant was responsible for the taking of
the stereo equipment.” (Appellant’s Br. 8.)
Defendant was found guilty of robbery, a Class A felony. See Ind.
Code § 35-42-5-1 (1998) (“A person who knowingly or intentionally takes
property from another person or from the presence of another person: (1) by
using or threatening the use of force on any person; or (2) by putting any
person in fear; commits robbery … a Class A felony if it results in serious
bodily injury to any person other than a defendant.”). This can be proven
through the testimony of an accomplice. See Griffin v. State, 501 N.E.2d
1077, 1079 (Ind. 1986); Sumner v. State, 453 N.E.2d 203, 205 (Ind. 1983).
In this case, Defendant acknowledged that she, Casiano, and Luna
sought to steal items such as Johnson’s VCR. Casiano testified that, to
this end, Defendant and Luna, tried to get Johnson drunk so that they could
rob him. Defendant admitted to approaching Johnson from behind and hitting
him on the back of his head with a black, iron, skillet while Casiano was
kissing him. Defendant also stabbed Johnson in the stomach. Further,
Defendant directed Casiano and Luna to take various items from the victim’s
house, and she testified that she noticed Johnson’s coins had made her
purse heavy when she picked it up to leave.
In Sumner v. State, 453 N.E.2d 203 (Ind. 1983), this court found
sufficient evidence to support an armed robbery conviction, absent
testimony that a specific item was taken. In that case, testimony placed
the defendant at the scene of the crime and “there was testimony by a co-
defendant that the [d]efendant participated in the commission of the crime,
shared in the spoils of the crime, and induced another person to commit the
shooting.” Sumner, 453 N.E.2d at 205.
As in Sumner, testimony in this case placed Defendant at the scene of
the crime. Testimony also established that Defendant participated in the
planning and commission of the crime, sought to steal items from Johnson,
and directed others to take items from the house. Defendant’s testimony
further indicates that Johnson’s coins were put in her purse. From this
evidence, the jury could properly infer that Defendant took property from
Johnson’s home.
Even without explicit evidence that Defendant actually took items from
the house, she is still liable for robbery as an accomplice. The Indiana
Code provides: “A person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense, even if
the other person: (1) has not been prosecuted for the offense; (2) has
not been convicted of the offense; or (3) has been acquitted of the
offense.” § 35-41-2-4 (1998).
An accomplice can be held criminally liable for “everything done by
his confederates which was a probable and natural consequence of their
common plan. … In determining accomplice liability, the jury may
infer participation 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.
Shane v. State, 716 N.E.2d 391, 396 (Ind. 1999) (citations omitted); Harris
v. State, 425 N.E.2d 154, 156 (Ind. 1981).
Casiano confessed to “grabbing Johnson’s stereo equipment” and
“loading it onto the truck” as Defendant was stabbing Johnson in the
stomach and yelling to “make sure we get everything out of here.” (R. 770-
71.) This is sufficient evidence from which the jury could reasonably
infer that beyond a reasonable doubt Defendant told Casiano and Luna to
take the stereo equipment as well as the other items the group took, i.e.,
to establish accomplice liability.
B
Defendant also contends that there was insufficient evidence to
support her conviction for residential entry.
Residential entry occurs when “[a] person … knowingly or
intentionally breaks and enters the dwelling of another person.” Ind. Code
§ 35-43-2-1.5 (1998). “The use of the slightest force in pushing aside a
door in order to enter does constitute a breaking through the doorway.”
Passwater v. State, 229 N.E.2d 718, 721 (Ind. 1967).
Taylor testified that on the day after Defendant killed Johnson,
Taylor drove Defendant to a house on Webster Street. Taylor then followed
Defendant as she opened the unlocked side door and entered the house. In
the house, Taylor saw a dead “black guy.” In a videotaped confession,
Defendant corroborated this account and established the house as Johnson’s.
This was sufficient evidence to sustain Defendant’s conviction of
residential entry.
C
Defendant also contends that there was insufficient evidence to
sustain the conviction for theft.
“A person who knowingly or intentionally exerts unauthorized control
over property of another person, with intent to deprive the other person of
any part of its value or use, commits theft.” Ind. Code § 35-43-4-2(a)
(1998).
In her videotaped confession, Defendant stated that she, Casiano, and
Luna had gone to Johnson’s house because they did not have anything to
drink and wanted more. Taylor testified that on the day after the murder,
when Defendant visited Johnson’s house, Defendant took two bottles of
liquor from the house when she left. Defendant admitted that she took a
bottle of liquor and a candy bowl on the day after the murder. From this
evidence a jury could reasonably infer that beyond a reasonable doubt the
liquor Defendant took was Johnson’s. Accordingly, there was sufficient
evidence to sustain the conviction for theft.
II
Defendant contends that the trial court improperly enhanced
Defendant’s sentence for murder. Defendant does not challenge the court’s
consecutive sentencing order.
In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court limited discretion to enhance each
sentence to reflect aggravating circumstances or reduce the sentence to
reflect mitigating circumstances.
When the trial court imposes a sentence other than the presumptive
sentence, this Court will examine the record to insure that the court
explained its reasons for selecting the sentence it imposed. Archer v.
State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d
1250, 1254 (Ind. 1986) reh’g denied). The trial court’s statement of
reasons must include the following components: (1) identification of all
significant aggravating and mitigating circumstances; (2) the specific
facts and reasons that lead the court to find the existence of each such
circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining
the sentence. Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing
Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
Here, the court found three aggravating factors in its sentencing
order: (1) Defendant’s prior criminal record; (2) the nature and
circumstance of the crime; and (3) Defendant’s need for correctional
treatment best provided by a commitment to the Department of Corrections.
It found two mitigating factors: (1) Defendant’s mental state and (2)
Defendant’s remorse. After weighing the aggravating and mitigating
factors, the trial court determined that the aggravating factors outweighed
the mitigating factors.
Defendant only challenges the first two aggravating factors.
Defendant does not challenge, and we therefore do not review, the third
aggravating factor.
With respect to the first factor, the court noted Defendant’s prior
criminal record, consisting of a 1996 conviction for criminal conversion, a
1997 conviction for criminal conversion, suspended on condition of
treatment, and a 1997 conviction for criminal trespass, suspended on
condition of community service. The trial court also found that the
“escalation of violence” gave insight into Defendant’s character.
Relying on Wooley v. State, 716 N.E.2d 919 (Ind. 1999) reh’g denied,
Defendant argues that her three misdemeanor criminal convictions, “when
considered in the context of a murder sentence, are not so significant that
they justify an additional 10 years as an aggravating circumstance.”
(Appellant’s Brief at 13.) Defendant’s reliance on Wooley is misplaced.
In Wooley, this court held that a criminal history comprised of one prior
conviction for driving while intoxicated “is not a significant aggravator”
in the context of determining sentence for a murder conviction. See Wooley
v. State, 716 N.E.2d at 929. In dicta, we further noted, “significance
varies based on the gravity, nature and number of prior offenses as they
relate to the current offense.” Id. at 929 n.4.
This case is distinguishable from Wooley for three reasons. First,
Defendant’s criminal history consisted of three misdemeanor convictions, as
opposed to just one in Wooley. It is not unreasonable for a trial court to
take into account the frequency of Defendant’s criminal activity.
Second, the trial court evaluated the import of the three prior
convictions, determining that the “escalation of violence,” from disregard
for property rights to disregard for life, gave insight into Defendant’s
character. This is not an improper consideration. See Ind. Code § 35-38-1-
7.1(a)(3)(B) (1998) (“In determining what sentence to impose for a crime,
the court shall consider the person’s character.”).
Finally, in Wooley, Defendant’s murder conviction was not determined
to be significantly related to his single conviction for driving while
intoxicated because the murder was not alcohol related. However, “a
criminal history comprised of a prior conviction for operating a vehicle
while intoxicated may rise to the level of a significant aggravator at a
sentencing hearing for a subsequent alcohol-related offense.” 716 N.E.2d
at 929 n.4.
In this case, Defendant’s act of murder was a direct result of her
plan to rob Johnson. Defendant’s two prior convictions for conversion are
relevant in the context of a murder committed for the purpose of robbery as
both crimes involve the taking of property. That Defendant used deadly
force to effectuate the taking of property does not preclude the trial
court from considering Defendant’s prior conversion convictions.
With respect to the second aggravating circumstance, the court
reasoned that the nature and circumstances of the crime were particularly
brutal. Indiana Code § 35-38-1-7.1(a)(2) directs a trial court to consider
the nature and circumstances of the crime committed when determining the
imposition of sentence. “This aggravator is generally thought to be
associated with particularly heinous facts or situations.” Smith v. State,
675 N.E.2d 693, 698 (Ind. 1996) (upholding as a proper aggravating
circumstance that the defendant planned murder two or three days ahead of
time).
Defendant makes two arguments why the trial court improperly applied
this aggravator. First, “that murders, by their very nature, are brutal
crimes.” (Appellant’s Br. at 13.) Second, that the court improperly
considered the fact that Defendant returned to the house and removed some
liquor, in that she had already been convicted and sentenced for these
crimes. (Appellant’s Br. at 13.)
Although elements of a crime cannot be used to enhance a sentence,
particularized circumstances of a criminal act may constitute separate
aggravating circumstances. Morgan, 675 N.E.2d 1067, 1073 (1996) (citing
Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994)). To enhance a sentence
in this manner, the trial court must detail why the defendant deserves an
enhanced sentence under the particular circumstances. Smith v. State, 675
N.E.2d at 698 (citing Wethington v. State, 560 N.E.2d 496, 509 (Ind.
1990)). Here, the trial court noted:
[D]efendant was invited into the victim’s home and was trusted by the
victim. The Defendant repeatedly hit the victim with a cast iron
skillet with enough force to shatter [the skillet] into several
pieces. Defendant then stabbed the victim multiple times after he had
been rendered helpless and unconscious by the beating. He was left to
die while the defendant and her companions rifled through his
belongings, taking property, wiping their fingerprints off anything
they had touched, and then returning to the victim’s home the
following day to take more property.
(R.186.)
The trial court’s decision that the nature and circumstances of the crime
were particularly brutal was within its discretion.
In the present case, the trial court enhanced Defendant's presumptive
sentence based upon valid aggravators. The court specifically stated the
reasons why it found each of the aggravating circumstances, and the court
balanced the aggravating and mitigating circumstances in reaching its
sentencing decision. In light of the nature of the offense and the
evidence, the Appellant's enhanced sentence was not improper.
CONCLUSION
We affirm Defendant’s conviction and sentence.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Luna was tried separately. We also decide her appeal today. See
Luna v. State, 02S00-0012-CR-769 (Ind. November 16, 2001). The fact that
they were tried separately accounts for the minor differences in the
recitation of the facts in the two opinions.
[2] See Ind. Code § 35-42-1-1(1) (1998).
[3] See Ind. Code § 35-42-1-1(2) (1998).
[4] See Ind. Code § 35-42-5-1 (1998).
[5] See Ind. Code § 35-43-2-1.5 (1998).
[6] See Ind. Code § 35-43-4-2 (1998).