Daron Gary v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2017
• Docket: 49A04-1708-CR-1739
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 12 2017, 9:24 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daron Gary, December 12, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1708-CR-1739 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G03-1702-F3-7686

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1739 | December 12, 2017 Page 1 of 5 Case Summary

[1] Daron Gary appeals following his convictions for Level 3 felony aggravated

battery and Level 6 felony strangulation. On appeal, Gary argues that the State

presented insufficient evidence to support his aggravated battery conviction.

[2] We affirm.

Facts & Procedural History

[3] In early 2017, Larhonda Myers worked at an Indianapolis fast food restaurant

with Brian Tuggle, Gary, and Gary’s sister, Shontrell Gary (Shontrell). Myers

was not scheduled to work on February 22, 2017, but she received a call late in

the evening asking her to come in to help clean and close the restaurant.

Arrangements were made for Gary to pick Myers up and drive her to work, and

Myers also planned to give Gary some money she had previously agreed to lend

him when he arrived. When Gary arrived at Myers’s house, Tuggle and

Shontrell were in the car. Before taking Myers to work, Gary drove to

Shontrell’s house. During the drive, Myers and Shontrell got into an argument,

and when they arrived at Shontrell’s house, everyone except Myers got out of

the car. Myers was sitting in the front passenger seat when Gary returned to the

vehicle, opened the rear passenger side door, and appeared to be looking for

something. When Myers turned to ask if Gary needed help, he pulled her into

the back seat and started hitting her. Gary asked about the money she was

going to lend him, and Myers felt the car start to move. Myers also heard Gary

mumbling to Tuggle, who was driving.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1739 | December 12, 2017 Page 2 of 5 [4] When the car came to a stop, Gary started choking Myers and she blacked out

for a few seconds. When she regained consciousness, Gary was pushing her

out of the car. Myers tried to run, and Gary yelled for Tuggle to “[g]et that

bitch[.]” Transcript Vol. 2 at 59. Tuggle then ran up to Myers and stabbed her

repeatedly in the neck and chest and slashed her throat. Tuggle and Gary then

left, and Myers was able to limp to some nearby houses for help. One of the

residents called 911, and Myers was transported to the hospital. Myers was

found to have suffered fourteen stab wounds, a lacerated liver, and a partially

collapsed lung, and her left eye was swollen shut.

[5] As a result of these events, the State charged Gary with Level 2 felony

attempted robbery, Level 3 felony aggravated battery, and Level 6 felony

strangulation. A jury trial was held on June 22, 2017, at the conclusion of

which Gary was acquitted of attempted robbery, but found guilty of aggravated

battery and strangulation. Gary received an aggregate sentence of fourteen

years executed. Gary now appeals.

Discussion & Decision

[6] Gary argues that the State presented insufficient evidence to support his

aggravated battery conviction. The standard of review for sufficiency claims is

well settled; this court will neither reweigh the evidence nor judge the credibility

of witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). Rather, we will

consider only the evidence favorable to the judgment and all reasonable

inferences therefrom. Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1739 | December 12, 2017 Page 3 of 5 The uncorroborated testimony of a single witness is sufficient to support a

conviction, even where the witness in question is the victim. Ferrell v. State, 565

N.E.2d 1070, 1072-73 (Ind. 1991).

[7] The State maintains that the evidence was sufficient to support the challenged

conviction under a theory of accomplice liablity, on which the jury was

instructed. In order to convict Gary of aggravated battery as an accomplice, the

State was required to prove that Gary knowingly or intentionally aided,

induced, or caused another person—namely, Tuggle—to commit aggravated

battery. See Ind. Code § 35-41-2-4. Gary does not dispute that Tuggle

committed aggravated battery by stabbing Myers repeatedly and slashing her

throat. See Ind. Code § 35-42-2-1.5 (providing that “[a] person who knowingly

or intentionally inflicts injury on a person that creates a substantial risk of

death” commits aggravated battery). Rather, Gary argues that the State

presented insufficient evidence to show that he aided, induced, or caused

Tuggle to commit the crime.

[8] A person who aids another in committing a crime is just a guilty as the actual

perpetrator. Lothamer v. State, 44 N.E.3d 819, 822 (Ind. Ct. App. 2015), trans.

denied. The State need not establish that the accomplice personally participated

in each element of the offense. Id. “Moreover, the accomplice is ‘criminally

responsible for everything which follows incidentally in the execution of the

common design, as one of its natural and probable consequences, even though

it was not intended as part of the original design or common plan.’” Anthony v.

State, 56 N.E.3d 705, 714 (Ind. Ct. App. 2016) (quoting Griffin v. State, 16

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1739 | December 12, 2017 Page 4 of 5 N.E.3d 997, 1003 (Ind. Ct. App. 2014)), trans. denied. “There is no bright line

rule in determining accomplice liability; the particular facts and circumstances

of each case determine whether a person was an accomplice.” Castillo v. State,

974 N.E.2d 458, 466 (Ind. 2012) (quoting Vitek v. State, 750 N.E.2d 346, 353

(Ind. 2001)). Although mere presence at the scene of a crime is insufficient to

establish accomplice liability, presence may be considered along with the

defendant’s relation to the one engaged in the crime and the defendant’s actions

before, during, and after the commission of the crime. Lothamer, 44 N.E.3d at

822.

[9] The State presented ample evidence to support Gary’s aggravated battery

conviction under a theory of accomplice liability. Gary initiated the attack

against Myers by pulling her into the backseat of the car and beating her before

choking her into unconsciousness. Gary then pushed Myers out of the car and

told Tuggle to “[g]et that bitch[.]” Transcript Vol. 2 at 59. After Tuggle stabbed

Myers repeatedly, Gary left the scene without attempting to get help for Myers.

Whether Gary intended for Tuggle to stab Myers is not the relevant question;

rather, the issue is whether the stabbing was a natural and probable

consequence of the brutal attack Gary initiated. We have no difficulty

concluding that it was. Gary’s aggravated battery conviction was supported by

the evidence.

[10] Judgment affirmed.

[11] May, J. and Vaidik, C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1739 | December 12, 2017 Page 5 of 5