ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory Bowes Jeffery A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
STEPHEN CLARK WIELAND, )
Defendant-Appellant, )
)
v. ) 49S00-9908-CR-423
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge[1]
Cause No. 49G04-9802-CF-021548
________________________________________________
On Direct Appeal
October 13, 2000
DICKSON, Justice
The defendant, Stephen Clark Wieland, was convicted of the January 3,
1998, felony murder[2] of Gary Hoffman; robbery, a class A felony;[3]
attempted robbery, a class A felony;[4] conspiracy to commit robbery, a
class A felony;[5] and two counts of criminal confinement, class B
felonies.[6] This appeal raises two issues: sufficiency of the evidence
and double jeopardy.
Sufficiency of the Evidence
Wieland contends that the evidence presented at trial was insufficient
to support his convictions for felony murder, robbery, attempted robbery,
conspiracy to commit robbery, and confinement. He urges that the evidence
did not show that he participated in these offenses any more than to
witness them and fail to prevent them.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor judging
the credibility of the witnesses, we conclude that no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable
doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000); Webster v.
State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d 1246,
1247-48 (Ind. 1997).
Wieland's convictions arise from an episode that occurred at an
Indianapolis Village Pantry convenience store. The principal evidence
consisted of the store surveillance camera videotape recording of the event
and the testimony of the two store clerks present at the time of the
robbery, a passerby who arrived as the crime concluded, a police detective,
and co-defendant Larry Boyce.[7] The facts favorable to the judgment show
that Wieland and his companions, Boyce and Casey Priest, were talking on
Boyce's father's porch. At one point, a discussion of Wieland's loyalties
to Priest took place, and Priest challenged Wieland to steal some popcorn
and a drink from a nearby Village Pantry convenience store. As they walked
across the store parking lot, Priest said: "Watch my back, I'm gonna get
'em." Record at 219. Wieland understood this to mean that Priest intended
to commit a robbery. Wieland and Boyce knew Priest was armed with a
handgun. The three entered the store and selected various items. Then
they approached the checkout counter, and Priest pointed a handgun at
Michael Graham, a store clerk, and told another store employee, Gloria
Wallace, who was facing away from Priest, not to turn around. Then Priest
told Graham that he wanted "all the money." Record at 171. Holding Graham
at gunpoint, Priest walked him over to the cash register, and Graham opened
the register and gave Priest its contents. Wieland and Boyce watched the
robbery, and the three left the store together, with Wieland and Boyce
exiting first with the food they had taken without purchase. As Priest
exited, he encountered a grocery deliveryman, Gary Hoffman, and after
demanding his money at gunpoint, Priest shot and killed him before he
responded. Wieland and Boyce were seen laughing as they began to run after
exiting the store. After returning to Boyce's father's house, the three
men ate the food they had stolen, and Priest gave Wieland and Boyce some of
the money taken from the cash register. Soon thereafter, Priest and Boyce
fled to Illinois.
The State's case was based primarily upon the criminal liability of
Wieland and Boyce as Priest's accomplices. Wieland acknowledges that he
can be held accountable for the acts of others done in furtherance of a
jointly undertaken criminal activity. He points to evidence that he
"wasn't sure really" what Priest meant when he spoke of his intention to
rob the store. Record at 228. Wieland argues that there was no evidence
that he "actively participated" in the crimes, other than his presence, and
that Priest was acting on his own, both as to the robbery of Graham and as
to the attempted robbery and murder of Hoffman.
Under the accomplice liability statute, a person "who knowingly or
intentionally aids, induces, or causes another person to commit an offense
commits that offense." Ind. Code § 35-41-2-4. Factors considered by the
fact-finder to determine whether a defendant aided another in the
commission of a crime include: (1) presence at the scene of the crime; (2)
companionship with another engaged in a crime; (3) failure to oppose the
commission of the crime; and (4) the course of conduct before, during, and
after the occurrence of the crime. Edgecomb v. State, 673 N.E.2d 1185,
1193 (Ind. 1996); Johnson v. State, 490 N.E.2d 333, 334 (Ind. 1986). While
the defendant's presence during the commission of the crime or his failure
to oppose the crime are, by themselves, insufficient to establish
accomplice liability, the trier of fact may consider them along with the
factors above to determine participation. Echols v. State, 722 N.E.2d 805,
807 (Ind. 2000); Burkes v. State, 445 N.E.2d 983, 987 (Ind. 1983); Harris
v. State, 425 N.E.2d 154, 156 (Ind. 1981). Furthermore, accomplice
liability applies to the contemplated offense and all acts that are a
probable and natural consequence of the concerted action, McGee v. State,
699 N.E.2d 264, 265 (Ind. 1998). An accomplice may be held accountable for
a murder performed by another during the person's departure from the crime
scene. See, e.g., Seeley v. State, 544 N.E.2d 153, 156-57 (Ind. 1989)
(conviction for felony murder of victim intentionally killed by accomplice
during escape); Mauricio v. State, 476 N.E.2d 88, 92 (Ind. 1985)
(conviction for felony murder where accomplice killed victim after
defendant had already left scene in snowmobile stolen from victim); but cf.
Kelly v. State, 719 N.E.2d 391, 396 (Ind. 1999) (upholding trial court's
judgment on the evidence notwithstanding a jury verdict finding a defendant
guilty of murder where sole evidence established that the killing was
spontaneous after the defendant had left the scene).
Applying our standard of review, considering only the probative
evidence that supports the judgment, we find that the evidence was
sufficient. As Priest's companion, Wieland accompanied him into the store,
knowing that Priest was armed and intended to rob the store. Wieland did
nothing to oppose the commission of any of the crimes. He did not withdraw
from the enterprise. To the contrary, he entered the store with Priest,
personally took store merchandise, stood nearby Priest and watched as
Priest confined the store employees and committed robbery, left the store
and escaped from the scene in the company of Priest, and later shared in
the money obtained by Priest in the robbery. From this evidence, a
reasonable trier of fact could have determined beyond a reasonable doubt
that Wieland was guilty based on accomplice liability of robbery, felony
murder, attempted robbery, and two counts for confinement.
Wieland also challenges the sufficiency of the evidence supporting his
conviction for conspiracy to commit robbery, arguing that the State did not
show an agreement existed between Priest and Wieland. A person commits the
crime of conspiracy when: (1) with intent to commit a felony; (2) the
person agrees with another person to commit the felony; and (3) an overt
act is performed by the defendant or the person with whom the defendant
made the agreement in furtherance of that agreement. Ind. Code § 35-41-5-
2. In proving the agreement element, the State is not required to show an
express formal agreement, and proof of the conspiracy may rest entirely on
circumstantial evidence. Bailey v. State, 717 N.E.2d 1, 3 (Ind. 1999).
Applying our standard of review, we find the evidence was sufficient
to support Wieland's conviction for conspiracy to commit robbery. Wieland
and Priest agreed to steal food from the store. Knowing that Priest
carried a handgun, Wieland understood Priest's instructions, "Watch my
back, I'm gonna get 'em," to mean that Priest intended to commit robbery.
Wieland did not withdraw from the enterprise, and Priest proceeded to enter
the store while armed to commit the robbery. From these facts, a
reasonable fact-finder could have found beyond a reasonable doubt that
Wieland, with the intent to commit robbery, agreed with Casey Priest to
commit the robbery, in furtherance of which Priest performed the charged
overt act of entering the store armed with a handgun.
Double Jeopardy
Wieland contends that the trial court improperly imposed multiple
punishments for the same offense, contrary to the Double Jeopardy Clause,
Article I, Section 14, of the Indiana Constitution, and thus he cannot be
convicted: (1) of felony murder and either the robbery of Graham or the
attempted robbery of Hoffman; (2) of both conspiracy to commit robbery and
the robbery of Graham; or (3) of both the robbery of Graham and either
confinement count. He also contends that some of his sentencing
enhancements violate double jeopardy principles.
The State concedes that Wieland cannot be sentenced for both felony
murder and the underlying felony, but argues that he can be sentenced for
both the felony murder based on the robbery of Graham and for the attempted
robbery of Hoffman. Having found Wieland guilty on Count 2 (felony murder
of Hoffman in the course of the robbery of Graham) and Count 4 (felony
murder of Hoffman in the course of the robbery of Hoffman), the trial court
declared the latter merged into the former.[8] Thus, Wieland stands
convicted and sentenced on the Count 2 felony murder charge. We accept the
State's concession that Wieland's conviction in Count 3 (robbery of Graham)
must be vacated due to his felony murder conviction in Count 2 based on the
same robbery. Our analysis of Wieland's claim of double jeopardy under the
Indiana Constitution is governed by Richardson v. State, 717 N.E.2d 32
(Ind. 1999), which describes two components, the statutory elements test
and the actual evidence test. Id. at 49. Two offenses are the "same
offense" in violation of Article I, Section 14 of the Constitution if,
"with respect to either the statutory elements of the challenged crimes or
the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense." Id. The defendant argues that the remaining
convictions violate the actual evidence test. To show that two challenged
offenses constitute the same offense under the actual evidence test, "a
defendant must demonstrate a reasonable possibility that the evidentiary
facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a
second challenged offense." Id. at 53.
Wieland urges that, before combining the two felony murder charges,
Counts 2 and 4, we should merge Count 5, the attempted robbery of Hoffman,
with Count 4, felony murder in the course of the Hoffman attempted robbery.
We decline this request and view the trial court's sentencing order
regarding the merger of Count 4 into Count 2 as having the effect of
vacating the conviction for Count 4. This renders moot any claim of double
jeopardy by reason of convictions for Counts 4 and 5. Furthermore,
Wieland's convictions for both the attempted robbery of Hoffman (Count 5)
and the felony murder of Hoffman in the course of the robbery of Graham
(Count 2) do not violate the double jeopardy actual evidence test. Wieland
does not demonstrate that there is a reasonable possibility that the jury
used the same evidentiary facts to establish the essential elements of both
offenses.
Our determination, noted above, that Count 3 (robbery of Graham) must
be vacated due to Count 2 (felony murder in the course of the robbery of
Graham), renders moot Wieland's claimed double jeopardy violation from his
convictions on Count 3 (robbery of Graham) and Count 6 (conspiracy to
commit the robbery of Graham). Although not raised in this appeal, we also
find no double jeopardy violation with respect to Wieland's convictions on
both Count 5 (attempted robbery of Hoffman) and Count 6 (conspiracy to
commit robbery of Graham). Because the case was tried to the bench,
without a jury, the trial judge was guided by the language of the charging
instrument. As to the essential elements of the conspiracy charge, Count 6
alleged that Wieland, Boyce, and Priest agreed with each other to commit
the robbery of Graham and that Priest's entry into the convenience store
while armed with a handgun constituted the requisite overt act in
furtherance of the agreement. The trial evidence used to establish that
Wieland agreed to participate in the convenience store robbery and that
Priest committed the overt act charged does not prove the attempted robbery
of Hoffman. Likewise, the attempted robbery evidence (that Wieland was an
accomplice of Priest who, while exiting the store at the conclusion of the
robbery of Graham, encountered Hoffman, pointed a gun at him, and demanded
his money) does not establish the essential elements of Wieland's
conspiracy to commit the robbery of Graham. We conclude that there is no
reasonable possibility that the evidentiary facts used by the court to
establish the essential elements of one of the two offenses were also used
to establish the other.
Wieland also claims that a violation of double jeopardy results from
his convictions on Counts 7 and 8 (the confinements of Graham and Wallace)
given his convictions on Counts 3 (robbery of Graham) and Count 6
(conspiracy to commit robbery of Graham). As to Count 3, which cannot
stand for other reasons noted above, the claim is moot. With respect to
Count 6, Wieland's argument is that the evidence proving his confinements
of Wallace and Graham was the same evidence used to prove conspiracy to
commit robbery. We note, however, that the evidence used to prove
Wieland's conspiracy to commit robbery did not require that the robbery be
completed. It only required an initial agreement and the overt act of
initial entry into the store. Thus the evidence of the subsequent
confinement was not used to establish the conspiracy. Likewise, the
evidence used to prove the confinements of the store clerks did not
establish the elements of the conspiracy, which concluded when Priest first
entered the store.
Although not expressly presented, we address whether the Indiana
Double Jeopardy Clause's prohibition of multiple punishments for the same
offense is violated by: (a) Wieland's convictions on both Count 6
(conspiracy to commit robbery of Graham) and Count 2 (felony murder in the
course of robbery of Graham), and (b) Wieland's convictions for either
Counts 7 and 8 (the confinements of Graham and Wallace) and also Count 2
(the felony murder of Hoffman based on the robbery of Graham).
Because of the strong probative value of the surveillance videotape in
showing the joint actions of the three men during the crimes in the
convenience store, we conclude that there is no reasonable possibility that
the fact-finder used the evidentiary facts proving the robbery of Graham
(one component of the Count 2 felony murder charge) to also prove the
essential elements of conspiracy. This latter offense was separately
established by the evidence of Wieland's agreement with Priest to commit
the robbery and the overt act of Priest's entry into the store while armed.
It did not rest on the conduct of men inside the store. Likewise, proof
of the conspiracy could not have been used to establish the essential
elements of the completed robbery, as necessary to constitute Count 2
(felony murder).
As to the confinement charges, however, we find that Count 7 is the
same offense under the actual evidence test in violation of the Indiana
Double Jeopardy Clause. The evidence used to prove Count 2 (felony murder
of Hoffman in the course of the robbery of Graham) included Priest's use of
a handgun to walk Graham to the cash register. These evidentiary facts
were also used to establish Count 7 (the confinement of Graham). Count 7
must therefore be vacated. As to Count 8, however, we find no violation of
the Indiana Double Jeopardy Clause. The evidence used to prove Wieland's
accomplice liability for the felony murder based on the robbery of Graham
included Priest's gunpoint demand for money from Graham, which did not
occur until after the confinement of Wallace was completed. Likewise, the
evidence used to prove Priest's confinement of Wallace included Priest's
brandishing a weapon and ordering Wallace not to turn around. But at this
point, there had been no demand for money or property. This evidence thus
did not establish the elements of robbery from which the felony murder
conviction resulted.
Wieland's final state double jeopardy contention is that his
convictions for conspiracy and attempted robbery cannot stand as class A
felonies based on the death of Hoffman, for which he is already being
punished by his conviction and sentence for felony murder. The State
responds that Wieland is correct on this point. We note that Wieland's
convictions on the surviving Counts 5 and 6 were entered as class A
felonies on the basis of resulting serious bodily injury, specifically the
death of Hoffman. We therefore elect to remedy the violation by reducing
these convictions to a less serious form of the same offense shown by the
evidence. See Richardson, 717 N.E.2d at 54. These counts charging the
attempted robbery of Hoffman and the conspiracy to commit robbery of Graham
each constitute a class B felony if committed while armed with a deadly
weapon,[9] which was clearly shown by the evidence. We revise his
convictions on Counts 5 and 6 from class A to class B felonies and order
the presumptive ten year sentence for each conviction.[10] Because the
trial court ordered Count 6 to be served consecutively to Counts 2, 3, 4,
and 5 (which were ordered served concurrently with each other), [11] we do
likewise, and this modification reduces Wieland's aggregate sentence from
95 to 75 years.
Conclusion
We affirm Wieland's convictions in Count 2 (felony murder), Count 5
(attempted robbery), Count 6 (conspiracy to commit robbery), and Count 8
(confinement). We hold that the trial court's merging of Count 4 with
Count 2 operates to vacate the conviction on Count 4, and we vacate
Wieland's conviction on Count 3 (robbery of Graham) and Count 7
(confinement of Graham). We revise his convictions on Counts 5 and 6 from
class A felonies to a class B felonies and impose the presumptive ten year
sentence. In all other respects the judgment of the trial court is
affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The trial and sentencing proceedings were conducted by the
Honorable Diane Marger Moore, Commissioner.
[2] Ind. Code § 35-42-1-1(2); Ind. Code § 35-42-5-1.
[3] Ind. Code § 35-42-5-1.
[4] Ind. Code § 35-41-5-1; Ind. Code § 35-42-5-1.
[5] Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.
[6] Ind. Code § 35-42-3-3.
[7] Boyce and Wieland were tried as co-defendants in the same trial.
Boyce was also convicted, and we decide his direct appeal today. Boyce v.
State, ___ N.E.2d ___ (Ind. 2000).
[8] The sentencing order merely stated that Count 4 "merges with"
Count 2, Record at 287, but the Abstract of Judgment signed by the trial
court specifies, "Count 4 merges into Count 2." Record at 22.
[9] Ind. Code § 35-42-5-1.
[10] Ind. Code § 35-50-2-5.
[11] The defendant asserts that that trial court's sentencing order
directs the sentence in Count 6 to be served concurrently with the
sentences in Counts 2, 3, 4, and 5, but the defendant also notes that the
Chronological Case Summary and Abstract of Judgment direct that the
sentence in Count 6 is to be served consecutively. As to the sentencing
statement, the defendant is incorrect. After explaining its reasons, the
trial court expressly directs that the sentence for Count 6 "shall run
consecutively" to the sentence imposed in Count 2. Record at 287.