FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID A. BROOKS STEVE CARTER
Lyons, Sullivan & Brooks Attorney General of Indiana
Valparaiso, Indiana
ANDREW A. KOBE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RALPH HERRON, )
)
Appellant-Defendant, )
)
vs. ) No. 75A04-0306-CR-289
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE SUPERIOR COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-0212-FA-7
May 17, 2004
OPINION – FOR PUBLICATION
MAY, Judge
Ralph Herron was convicted after a jury trial of aiding, inducing, or
causing voluntary manslaughter, a Class A felony.[1] He raises two issues
on appeal, which we restate as:
1. Whether testimony by the principal that Herron, who has no legs
or hands and only one arm, participated in the killing was sufficient
evidence to support his conviction; and
2. Whether Herron’s sentence was inappropriate.[2]
We affirm.[3]
FACTS
The facts most favorable to the judgment are that Herron and Ronald
Trent lived together in Medaryville. Herron has no legs, no right arm, and
half a palm and no fingers on his left hand. He sometimes wore on his
right arm a prosthetic limb with a hook on the end. There was testimony
Herron could fish, drive, do car repairs, cook, and clean up after himself.
On November 29, 2002, Herron and Trent were drinking and they visited
the home of Cecil Lovely. Cecil’s brother Clyde left with Herron and
Trent, and after purchasing more liquor the three returned to Herron and
Trent’s house where they continued drinking at the kitchen table. Lovely
began talking about religion and asserted he was the “chosen one” because
of where he was from. (Tr. at 390.) Eventually an argument ensued and
Lovely attacked Herron. Trent separated the two and Herron went to another
room. Lovely continued to discuss religion and the argument resumed.
Herron returned to the kitchen wearing his hook. Lovely again hit
Herron, and Trent struck Lovely. Trent kicked Lovely and beat him with a
cane as Herron yelled “Hit him again.” (Tr. at 393.) Herron hit Lovely
with his hook, then he gave Trent some plastic to wrap around Lovely and
some cable to tie around the plastic. Trent wrapped Lovely in the plastic
and dragged him to a car. Herron helped Trent put Lovely in the trunk,
then Trent cleaned up the blood in the kitchen. Herron told Trent to use
bleach because it covers DNA.
Herron and Trent drove to the Bogus Ditch Bridge, where Herron told
Trent to stop. Trent removed Lovely from the trunk and pushed him over the
side of the bridge. Trent left his own clothing at another location and
the two returned home. When Lovely did not return home, his mother called
Herron. Herron told her he and Trent had dropped Lovely off at an
apartment.
Lovely’s body was later found submerged in the ditch. Some of his
wounds were consistent with being inflicted by a screwdriver or Herron’s
hook.
DISCUSSION AND DECISION
1. Sufficiency of Evidence
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even if the other
person has not been prosecuted for the offense, has not been convicted of
the offense, or has been acquitted of the offense. Ind. Code § 35-41-2-4.
In determining whether a person aided another in the commission of a crime,
we consider: (1) presence at the scene of the crime; (2) companionship
with another engaged in criminal activity; (3) failure to oppose the crime;
and (4) a defendant’s conduct before, during, and after the occurrence of
the crime. Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003).
In reviewing sufficiency of the evidence, we will affirm a conviction
if, considering only the probative evidence and reasonable inferences
supporting the verdict, and without weighing evidence or assessing witness
credibility, a reasonable trier of fact could conclude the defendant was
guilty beyond a reasonable doubt. Rogers v. State, 741 N.E.2d 395, 396
(Ind. Ct. App. 2000), reh’g denied, trans. denied 753 N.E.2d 16 (Ind.
2001). When a conviction is based on circumstantial evidence, we will not
disturb the verdict if the factfinder could reasonably infer from the
evidence presented that the defendant is guilty beyond a reasonable doubt.
Id. We need not find the circumstantial evidence overcomes every
reasonable hypothesis of innocence; rather, there must merely be a
reasonable inference from the evidence supporting the verdict for us to
find the evidence sufficient. Id.
Herron asserts the “incredible dubiosity” rule should apply in his
case because his convictions were based on Trent’s testimony, which he
characterizes as “inherently improbable” and “inherently contradictory.”
(Appellant’s Br. at 6.) Under the “incredible dubiosity” rule, a court
will impinge on the jury’s responsibility to judge the credibility of the
witness only when it has confronted inherently improbable testimony or
coerced, equivocal, wholly uncorroborated testimony of “incredible
dubiosity.” Stephenson v. State, 742 N.E.2d 463, 497 (Ind. 2001), cert.
denied 534 U.S. 1105 (2002). When a sole witness presents inherently
improbable testimony and there is a complete lack of circumstantial
evidence, a defendant’s conviction may be reversed. Id. at 497-98.
Application of this rule is rare; the standard to be applied is whether the
testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it. Id. at 498.
The testimony of an accomplice is subject to high scrutiny. However,
such testimony is by itself sufficient to sustain a conviction. Id. at
496. The fact that the accomplice may not be completely trustworthy goes
to the weight and credibility of his testimony, something that is
completely within the province of the jury and cannot be reviewed on
appeal. Id. at 497.
Herron characterizes as “incredibly dubious” (Appellant’s Br. at 6)
Trent’s testimony that someone in Herron’s physical condition could have
helped Trent kill Lovely and load him into the trunk of a car and that
Trent needed Herron’s help to beat Lovely to death. Herron characterizes
as “inherently contradictory,”[4] id., testimony by Trent that he did not
use a hammer or screwdriver, when there was evidence that it appeared
Lovely was beaten with a hammer and stabbed with a screwdriver. Herron
also notes Trent’s testimony that Herron had used his hook to strike
Lovely. Only Herron’s blood was found on the prosthesis, and not Lovely’s.
Trent testified he cleaned the prosthesis with bleach “apparently cleaning
Clyde Lovely’s blood off the prosthetic arm, but miraculously leaving Ralph
Herron’s blood on the prosthetic arm.” (Appellant’s Reply Br. at 2.)
The “incredible dubiosity” rule does not apply because Trent’s
testimony was not inherently contradictory and because there was
circumstantial evidence of Herron’s guilt. While Trent’s testimony was
inconsistent with medical evidence and Herron’s testimony that Lovely was
hit with a hammer and stabbed with a screwdriver, those inconsistencies do
not render Trent’s testimony “inherently contradictory.”
Nor was Trent’s testimony so improbable no reasonable person could
believe it. Herron was present at his trial and the jurors were able to
view his physical limitations. There was evidence Herron could, despite
his disabilities, change a car battery by himself and put the used battery
in the trunk, and that he could leave a car and get into his wheelchair
without help. Therefore, we cannot characterize as “improbable” Trent’s
testimony that Herron beat Lovely with his hook and helped put Lovely in
the trunk.
There was evidence in the record that Herron encouraged Trent to beat
Lovely, delivered some blows himself, and directed the attempts to cover up
the killing. This, without more, is sufficient to show Herron aided in and
induced the killing. In Gibbs v. State, 426 N.E.2d 1150 (Ind. Ct. App.
1981), the victim and Gibbs were engaged in a fight. Gibbs’ sister saw the
fight and became distraught. She obtained a knife from the kitchen and
stabbed the victim to death. On appeal, Gibbs argued he was engaged in
only a fistfight, which was not lethal behavior. Therefore, his sister
bore sole responsibility for the victim’s death. We determined a jury
could reasonably infer that in the course of the fight, Gibbs solicited the
help of his family in defeating the victim. That would constitute inducing
or causing others to commit battery on the victim, and Gibbs’ continued
fighting with the victim would be an aid to that battery. Id. at 1155.
We cannot characterize as “incredibly dubious” the evidence of
Herron’s involvement in the killing, nor can we say the evidence was
insufficient to support his conviction.
2. Herron’s Sentencing
Herron asserts his sentence was inappropriate because he received a
longer sentence than did Trent despite his lesser involvement in the
killing.[5] In support of that argument he included in his appendix a copy
of Trent’s guilty plea agreement and sentencing order. The State moved to
strike those documents from Herron’s appendix because they were not a part
of record on appeal.[6] We agree.
As a general rule, matters not contained in the record are not proper
subjects for review. See, e.g., Turner v. State, 508 N.E.2d 541, 543 (Ind.
1987), reh’g denied. Turner had been charged as an adult. He later
pointed out to the court that he was less than sixteen years of age when
the crime was committed and moved to dismiss the cause as the Superior
Court lacked jurisdiction. The Superior Court dismissed the action and the
State brought a delinquency proceeding in juvenile court, which waived
jurisdiction. Turner was then convicted in Superior Court and he appealed.
The appendix Turner filed with his Appellant’s Brief contained filings
and docket sheets from the Superior Court in the action that was dismissed,
as well as the actions taken in the Juvenile Court. Our supreme court
noted none of those documents and transcripts had been certified by any
court, nor was there any showing they were part of the record of the cause
being appealed. The materials therefore were not proper materials to
consider on appeal. Id. The court noted “An appellant must see that the
record of proceedings contains all pleadings, papers, and transcripts of
testimony which disclose and have any bearing on the error he is alleging.
Any error alleged but not disclosed by the record, or any matter not
contained in the record, will not be a proper subject for review.” Id.
(Emphasis supplied.)
Trent’s guilty plea and sentencing proceedings were not part of the
trial record. Accordingly, they are not a proper subject for our review
and we grant the State’s motion to strike. Because Trent’s sentence is not
properly before us, we cannot say Herron’s sentence is inappropriate on the
ground it is longer than Trent’s.
Even if we were to consider Trent’s sentence, we could not find
Herron’s sentence inappropriate because it is longer than Trent’s.[7] The
common law of criminal liability has been superseded by statute in Indiana,
and the legal distinction between a principal and an accessory no longer
exists. Johnson v. State, 687 N.E.2d 345, 349-50 (Ind. 1997). Ind. Code §
35-41-2-4 states “[A] person who knowingly or intentionally aids, induces,
or causes another person to commit an offense commits that offense[.]”
That language is interpreted to mean that an actor who would have been
considered an accessory under the common law now vicariously commits the
actual offense. Id.
Individuals convicted of felonies in Indiana are considered to have
been convicted on the weight of their own actions even if the court or jury
uses the accomplice liability statute to determine guilt. Id. The
standard for reviewing the sentence imposed on an accomplice is thus the
same as it is for principals:[8] whether the sentence is “inappropriate in
light of the nature of the offense and character of the offender.” Id.
(addressing the “manifestly unreasonable” standard for review of sentences
then in effect, now Ind. Appellate Rule 7(B)). The standard provides no
categorical benefit to an actor by virtue of his having been charged as an
accomplice. Each actor is assessed on the facts available. Id.
In Williams v. State, 631 N.E.2d 485, 488 (Ind. 1994), reh’g denied,
Williams received consecutive sentences of 50 years for convictions of
conspiracy to commit murder and aiding in a burglary, with 10 years
suspended. He claimed his sentence was disproportionate, citing the four-
year sentences given each of the other two participants in the crime upon
their guilty pleas and their principal role in the violence that occurred.
Our supreme court noted “when a defendant proceeds to trial and his
accomplice pleads guilty, the sentences need not be identical and there is
no requirement of consistency.” Id. (citations and quotations omitted).
In his sentencing statement, the trial judge noted this was a for-hire
crime that Williams “orchestrated by planning and by driving and by setting
[the victim] up and by disposing of the weapon.” Id. Our supreme court
did not find the sentence to be unconstitutionally disproportionate
considering the nature and gravity of the offense.
Like Williams, Herron chose to proceed to trial. Trent, like
Williams’ accomplices, had a principal role in the crime but decided to
plead guilty. As in Williams, there is no requirement that Herron’s and
Trent’s sentences be consistent or identical. We accordingly cannot say
Herron’s sentence was inappropriate on that ground.
CONCLUSION
The evidence supporting Herron’s conviction was not “incredibly
dubious” and Herron did not show his sentence was inappropriate in light of
his character and the nature of his offense. Accordingly, we affirm.
SHARPNACK, J., and BARNES, J., concur.
-----------------------
[1] Ind. Code § 35-41-2-4 (aiding, inducing, or causing an offense); Ind.
Code § 35-42-1-3 (voluntary manslaughter).
[2] Herron argues in part his sentence was inappropriate because it was
five years longer than the sentence imposed on the person principally
involved in the killing. The State moved to strike materials in Herron’s
Appendix related to the sentence imposed on Ronald Trent, the other
participant in the crime, on the ground that information was not included
in the trial record and is therefore not a proper subject for review. As
explained in more detail below, we grant the State’s motion to strike.
[3] We heard oral argument on April 14, 2004 at Goshen High School. We
thank the school for its hospitality and we commend counsel for the quality
of their oral advocacy.
[4] Herron also directs us to the following evidence and testimony as
“inherently contradictory” (Appellant’s Br. at 6): 1) none of the victim’s
blood was found on Herron’s clothing: “Trent explains that he disposed of
Ralph Herron’s blood stained clothes. Although his own blood stained
clothes were found on a ditch bank in another county where he claims Ralph
Herron told him to put them.” (Id. at 7.); 2) Trent testified he needed
Herron’s help to put Lovely’s body in the trunk of the car, but ordinarily
Herron rode as a passenger when Trent drove, and Trent ordinarily helped
Herron into the car from his wheelchair and put the wheelchair in the
trunk.
The “contradictions” in the above testimony are not apparent, and Herron
does not explain in his brief why that testimony and evidence is
“inherently contradictory.”
[5] A sentence that is authorized by statute will not be revised unless it
is inappropriate in light of the nature of the offense and the character of
the offender. Ind. Appellate Rule 7(B); Kien v. State, 782 N.E.2d 398, 416
(Ind. Ct. App. 2003), reh’g denied, trans. denied. Herron does not offer
on appeal an independent argument that his sentence was inappropriate based
on his character or the nature of his offense.
[6] We note initially that Trent apparently did not enter into the plea
agreement nor was he sentenced until after the trial court proceedings had
ended in Herron’s case. Therefore, that information could not have been
part of Herron’s trial record.
Our supreme court noted in Harris v. State, 427 N.E.2d 658, 662 (Ind.
1981) that in addition to the record available to the trial judge, Ind.
Trial Rule 59 and Ind. Crim. Rule 17 both permitted the filing of
affidavits with a Motion to Correct Error when error is to be based on
matters otherwise outside the record:
A properly verified affidavit thus becomes part of the record under
these rules. If the affidavit is uncontradicted, the appellate court
must accept its contents as true. Thus there is a mechanism available
to a defendant to bring facts dehors the record before the trial court
and the Court of Appeals.
(Citations omitted.) The record does not reflect Herron sought to bring
before this court by means of an affidavit the evidence the State
challenges.
[7] While we grant the State’s motion to strike, we express our concern
about the quandary that can result for an appellant from the application of
this rule. Trent’s guilty plea and sentencing materials could not have
been a part of the record of proceedings in Herron’s case because of the
sequence of the convictions and sentencing proceedings. The State cites
Ind. Appellate Rule 50(B), which lists the documents an appellant’s
appendix “shall” contain, if they exist, and notes Herron’s materials are
not included on that list. Herron asserts the list of documents in the
rule is not a limit on what can be included in an appendix. He also notes
language in App. R. 50(B)(2), which addresses the contents of an appellee’s
appendix and which states “The Appendix may contain additional items that
are relevant to either issues raised on appeal or on cross-appeal.”
It is apparently the position of the Attorney General’s office that as
appellees they can put anything they want into their appendix so long
as it is relevant, but that appealing defendants can only use the
record materials set forth in [App. R. 50(B)(1)] . . . if that
interpretation of the rules were correct, it would create a double
standard that is fundamentally unfair to appealing criminal
defendants.
(Appellant’s Reply Br. at 4) (emphasis in original).
Because, as explained below, Herron’s sentence would not be
“inappropriate” if measured against Trent’s, we express no opinion as to
whether the language of App. R. 50(B)(2) allows appellees, but not
appellants, to include in their appendices materials not included in the
trial record.
[8] See Sanquenetti v. State, 727 N.E.2d 437, 439 (Ind. 2000). Sanquenetti
challenged his conviction of murder on the ground the accomplice liability
statute violated the Privileges and Immunities Clause of the Indiana
Constitution as applied in his case. He argued the statute was
unconstitutional because it allowed him to be convicted of murder for
aiding in the killing even though his accomplice, who Sanquenetti contended
actually killed the victim, was convicted of involuntary manslaughter in a
separate trial. By allowing this result, the statute allowed the
“accessory” to be convicted and punished for a greater offense than the
“principal” and thus impermissibly granted the “principal” the privilege of
being convicted of a lesser crime than the accessory.
Our supreme court rejected Sanquenetti’s constitutional argument, and
Herron makes no such argument in this appeal. The court noted the common
law doctrine of “mandated consistency,” which required that when a
principal and an accessory are tried separately, the accessory cannot be
convicted of a crime greater than that of which the principal is convicted.
Id. at 440. However, it held the accomplice liability statute superseded
the common law of criminal liability, abandoning the common law terms of
principal and accessory, and also superseded the application of the common
law doctrine of mandated consistency when defendants are convicted under
this statute. Id. at 440-41. “Because under the accomplice liability
statute, any accomplice to a crime may be tried and convicted upon
sufficient proof, regardless of whether other accomplices were prosecuted,
convicted, or acquitted, the doctrine of mandated consistency is
inapplicable.” Id. at 441.
