ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Monica Foster Jeffrey A. Modisett
Hammerle Foster Allen & Long-Sharp Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
In The
INDIANA SUPREME COURT
)
ENGAI MAUL, )
Defendant-Appellant, )
)
v. ) 49S00-9811-CR-729
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth Reichard, Judge
Cause No. 49G02-9706-CF-089363
________________________________________________
On Direct Appeal
June 30, 2000
DICKSON, Justice
The defendant-appellant, Engai Maul, and his co-defendant, Anthony L.
Houston,[1] were each convicted of the June 9, 1997, murder[2] of Damon
Simpson. In this appeal, the defendant seeks reversal of his conviction on
grounds of insufficient evidence, improper bolstering of a witness's
testimony, and jury instruction errors. We affirm.
Sufficiency of the Evidence
The defendant first argues that the evidence was insufficient to
support his conviction for murder.
Our standard of review for sufficiency claims is well settled. We do
not reweigh evidence or assess the credibility of witnesses; rather, we
look to the evidence and reasonable inferences drawn therefrom that support
the verdict and will affirm the conviction if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000); Ruffin
v. State, 725 N.E.2d 412, 415 (Ind. 2000); Love v. State, 721 N.E.2d 1244,
1245 (Ind. 1999); Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997). A
verdict may be sustained based on circumstantial evidence alone if that
circumstantial evidence supports a reasonable inference of guilt. Warren
v. State, 725 N.E.2d 828, 834 (Ind. 2000); Kriner v. State, 699 N.E.2d 659,
663 (Ind. 1998); Taylor v. State, 676 N.E.2d 1044, 1047 (Ind. 1997); Green
v. State, 587 N.E.2d 1314, 1315 (Ind. 1992). Presence at the crime scene
alone cannot sustain a conviction, but presence when combined with other
facts and circumstances, such as companionship with the one engaged in the
crime, and the course of conduct of the defendant before, during, and after
the offense, may raise a reasonable inference of guilt. Hampton v. State,
719 N.E.2d 803, 807 (Ind. 1999); Wright v. State, 690 N.E.2d 1098, 1106
(Ind. 1997).
The evidence most favorable to the verdict establishes that Houston
and the defendant, Maul, were acquaintances of Simpson. Early on the date
of the murder, both defendants, wearing red shirts or jackets, visited
Simpson at his house. Steven Shepard and Anthony Sparkman, friends of
Simpson, were also present. After Houston and Maul left, Simpson spent the
remainder of the day with Shepard and Sparkman. Shortly after 11:00 p.m.,
Shepard observed a dark-colored van come down the street and park at the
curb a short distance behind Simpson's car, but he did not see anyone get
out of the van. Approximately five minutes later, Houston and Maul knocked
at Simpson's door and were admitted. Maul, who was described as a light-
skinned black man, was wearing a red shirt or jacket. Shepard spoke to
them, but they did not respond, instead going directly to another room to
talk to Simpson. Shepard left about 11:20 p.m., leaving Simpson alone with
the two co-defendants. Around 11:30 p.m., a group of three to five African-
American males walked from Simpson's front door and stood in the street
arguing. A witness recognized Simpson's voice stating that he did not do
what he was being accused of doing. They then saw and heard shots fired
and saw Simpson trying to run away. Unidentified voices yelled that he did
not go down and commanded: "get him." Record at 605. The assailants
pursued Simpson, and more shots were fired. Simpson fell to the ground,
fatally wounded. A voice was heard to say: "they got [him]." Record at
606. Two or three men got into the van on the passenger side, and another,
described as a light-skinned black man wearing a red jacket, ran across a
field toward a nearby interstate highway. The van pulled away quickly
without illuminating its headlights. Sometime during the night, Maul
called his former girlfriend and asked her to go to Indianapolis Avenue and
"see what you see." Record at 739. She went back to sleep, and shortly
afterward he called again, asking her if she was going.
Forensic evidence showed that Simpson had been shot eight times and
that several of the shots would have been fatal. Ballistics experts
testified that at least four guns and possibly six were used in the
shooting, but no weapons were found at the murder scene. Some of the
bullets recovered from Simpson's body could have been fired from a 9mm
pistol or a .38-caliber revolver. Although no one saw either Houston or
Maul carrying a gun on the day of the murder, there was testimony that Maul
had previously been seen at Simpson's home with a long-barreled, older
revolver, similar to the .38 caliber firearm that could have fired some of
the bullets found in Simpson's body.
The police learned that Maul and Houston had been with Simpson shortly
before his death and attempted to question each regarding the evening's
events. Maul was not home when the police called at his residence, but
they left a message asking him to call the investigating officer. Maul
never contacted the police. After police interviewed and arrested
Houston, a warrant was issued for Maul. Two months later, Maul was
apprehended during a traffic stop after a police officer observed a car he
knew to belong to an older resident of the neighborhood being driven
recklessly by a young man. Thinking the car might be stolen, the officer
followed it, and the driver of the car attempted to evade the police.
Eventually, several police cars were involved in the pursuit. When stopped
a short time later, Maul told police that his name was Eugene Washington.
Finding that Maul did not match Washington's description, the officer
checked other records and determined that they had found the defendant.
When the officer asked the defendant if he was Engai Maul, he replied:
"You got me." Record at 1047.
Thus, on the date of the murder, Maul was present at Simpson's home
with Houston, appearing at the door within a few minutes after a dark-
colored van arrived and parked near Simpson's car. Maul and Houston were
with Simpson immediately before he was fatally shot by a small group of
men, most of whom drove off in the dark-colored van. Maul matched the
general description given for the one man who ran from the scene after the
murder: a light-skinned black man wearing a red shirt or jacket. Later on
the night of the murder, Maul placed two phone calls to his former
girlfriend, urging her to go to the locale of the crime to find out what
was happening. During the ensuing two-month period, Maul evaded police,
even using an assumed identity at a traffic stop. Considering the
probative evidence and resulting reasonable inferences favorable to the
verdict, we conclude that a reasonable jury could have found the defendant
guilty beyond a reasonable doubt.
Bolstering Credibility
The defendant claims that the State improperly bolstered Shepard's
credibility on several occasions by using Shepard's prior consistent
statements on direct examination even though Shepard had not been
impeached. He argues that these statements were hearsay and did not fall
within the exception of Indiana Evidence Rule 801(d)(1)(B). The defendant
acknowledges that at trial he did not object to the admission of this
bolstering evidence and that generally such a claim would be forfeited, but
nevertheless he urges that it should be reviewed in this case as
fundamental error. To rise to the level of fundamental error, the error
"'must constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny
the defendant fundamental due process.'" Etienne v. State, 716 N.E.2d 457,
462 (Ind. 1999) (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987)).
See also Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995) (defining
fundamental error as error "so prejudicial to the rights of the defendant
as to make a fair trial impossible"). This is not fundamental error.
Jury Instructions
The defendant contends that the trial court committed instruction
errors with respect to circumstantial evidence and reasonable doubt.
The defendant argues that the trial court failed to instruct the jury
that, when the evidence is wholly circumstantial, it must exclude every
reasonable hypothesis of innocence. The State tendered a circumstantial
evidence instruction that did not refer to the "hypothesis of innocence"
requirement. In its instruction conference with counsel, the trial court
expressed its view that there was direct evidence against Houston, but only
circumstantial evidence against Maul, and suggested that any circumstantial
evidence instruction should only apply with respect to Maul and should
contain the "hypothesis of innocence" qualification. Faced with the
prospect of an instruction that would apply only to Maul, Houston objected.
In response, the State requested that no instruction on circumstantial
evidence be given if its tendered instruction was denied. The trial court
did not give the State's tendered instruction.
The defendant tendered no instruction on circumstantial evidence.
Such a failure to act would normally preclude consideration of the issue on
appeal. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind. 1999); Bunch v.
State, 697 N.E.2d 1255, 1257 (Ind.1998); Sanchez v. State, 675 N.E.2d 306,
308-09 (Ind.1996). Urging exemption from this forfeiture rule, the
defendant argues that the purpose of the rule is to assure that trial
courts have an opportunity "to correct injustice before it occurs." Reply
Brief of Defendant-Appellant at 2. He argues that forfeiture is not
required here because the trial court was fully aware of the issue.
Maul's counsel, however, did not advise the trial court that he
desired the instruction. As a result, not only was the jury not instructed
that "[w]here proof of guilt is by circumstantial evidence only, it must be
so conclusive in character and point so surely and unerringly to the guilt
of the accused as to exclude every reasonable theory of innocence," Ind.
Pattern Jury Instruction (Criminal) No. 12.01 (1991), but it was also not
instructed that "it is not necessary that facts be proved by direct
evidence" and that circumstantial evidence is "an acceptable means of
proof." Id. Maul thus may have benefited from the absence of a jury
instruction expressly authorizing and emphasizing circumstantial evidence
as a proper basis for a guilty verdict. This example further supports our
rule prohibiting the claim of instruction error on appeal absent a
specific, timely objection at trial. Ind. Trial Rule 51(C).
The defendant also attempts to overcome procedural default by
asserting that the trial court's omission constitutes "fundamental error."
It does not. See Franklin, 715 N.E.2d at 1241; Bunch, 697 N.E.2d at 1257;
Whatley v. State, 685 N.E.2d 48, 49-50 (Ind. 1997).
Furthermore, the defendant claims fundamental error in the trial
court's instruction regarding reasonable doubt, notwithstanding the fact
that this Court expressly approved and recommended the instruction in
Winegeart v. State, 665 N.E.2d 893 (Ind. 1996). We have recently
reexamined the issue and affirmed the giving of an identical instruction.
See Williams v. State, 724 N.E.2d 1093, 1097 (Ind. 2000). We decline to
revisit the matter and find no error on this claim.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] We also decide today, in a separate opinion, Houston's appeal.
Houston v. State, No. 49S00-9901-CR-00061 (Ind. June 30, 2000).
[2] Ind. Code § 35-42-1-1.