ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID A. BROOKS STEVE CARTER
Lyons, Sullivan & Brooks Attorney General of Indiana
ANDREW A. KOBE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RALPH HERRON, )
vs. ) No. 75A04-0306-CR-289
STATE OF INDIANA, )
APPEAL FROM THE STARKE SUPERIOR COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-0212-FA-7
May 17, 2004
OPINION FOR PUBLICATION
Ralph Herron was convicted after a jury trial of aiding, inducing, or causing
voluntary manslaughter, a Class A felony.
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 Herrons sentence was inappropriate.
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. Cecils brother Clyde left with Herron and Trent,
and after purchasing more liquor the three returned to Herron and Trents 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.
Lovelys body was later found submerged in the ditch. Some of his
wounds were consistent with being inflicted by a screwdriver or Herrons 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 defendants 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), rehg 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 Trents testimony, which he characterizes as inherently improbable and
inherently contradictory. (Appellants Br. at 6.) Under the incredible dubiosity rule,
a court will impinge on the jurys 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 defendants 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
Herron characterizes as incredibly dubious (Appellants Br. at 6) Trents testimony that someone
in Herrons physical condition could have helped Trent kill Lovely and load him
into the trunk of a car and that Trent needed Herrons help to
beat Lovely to death. Herron characterizes as inherently contradictory,
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 Trents testimony that Herron had used his
hook to strike Lovely. Only Herrons blood was found on the prosthesis,
and not Lovelys. Trent testified he cleaned the prosthesis with bleach apparently
cleaning Clyde Lovelys blood off the prosthetic arm, but miraculously leaving Ralph Herrons
blood on the prosthetic arm. (Appellants Reply Br. at 2.)
The incredible dubiosity rule does not apply because Trents testimony was not inherently
contradictory and because there was circumstantial evidence of Herrons guilt. While Trents
testimony was inconsistent with medical evidence and Herrons testimony that Lovely was hit
with a hammer and stabbed with a screwdriver, those inconsistencies do not render
Trents testimony inherently contradictory.
Nor was Trents 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 Trents 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 victims 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.
We cannot characterize as incredibly dubious the evidence of Herrons involvement in the
killing, nor can we say the evidence was insufficient to support his conviction.
Herron asserts his sentence was inappropriate because he received a longer sentence than
did Trent despite his lesser involvement in the killing.
In support of
that argument he included in his appendix a copy of Trents guilty plea
agreement and sentencing order. The State moved to strike those documents from
Herrons appendix because they were not a part of record on appeal.
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), rehg 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 Appellants 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
Trents 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 States motion to strike. Because Trents sentence is not properly
before us, we cannot say Herrons sentence is inappropriate on the ground it
is longer than Trents.
Even if we were to consider Trents sentence, we could not find Herrons
sentence inappropriate because it is longer than Trents.
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:
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), rehg 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 Herrons and Trents sentences be
consistent or identical. We accordingly cannot say Herrons sentence was inappropriate on
The evidence supporting Herrons 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.
Ind. Code § 35-41-2-4 (aiding, inducing, or causing an offense); Ind. Code
§ 35-42-1-3 (voluntary manslaughter).
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 Herrons 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 States motion to strike.
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.
Herron also directs us to the following evidence and testimony as inherently
contradictory (Appellants Br. at 6): 1) none of the victims blood was
found on Herrons clothing: Trent explains that he disposed of Ralph Herrons
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 Herrons
help to put Lovelys 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
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), rehg 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.
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 Herrons case. Therefore, that information could not have been part of
Herrons 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
(Citations omitted.) The record does not reflect Herron sought to bring before
this court by means of an affidavit the evidence the State challenges.
While we grant the States motion to strike, we express our concern
about the quandary that can result for an appellant from the application of
this rule. Trents guilty plea and sentencing materials could not have been
a part of the record of proceedings in Herrons case because of the
sequence of the convictions and sentencing proceedings. The State cites Ind. Appellate
Rule 50(B), which lists the documents an appellants appendix shall contain, if they
exist, and notes Herrons 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 appellees 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 Generals 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.
(Appellants Reply Br. at 4) (emphasis in original).
Because, as explained below, Herrons sentence would not be inappropriate if
measured against Trents, 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.
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 Sanquenettis 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.