Exum v. State

812 N.E.2d 204, 2004 WL 1663171
CourtIndiana Court of Appeals
DecidedJuly 27, 2004
DocketNo. 49A02-0311-CR-977
StatusPublished
Cited by12 cases

This text of 812 N.E.2d 204 (Exum v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Exum v. State, 812 N.E.2d 204, 2004 WL 1663171 (Ind. Ct. App. 2004).

Opinion

OPINION

BAKER, Judge.

Appellant-defendant Johnathan Exum appeals his conviction for Murder,1 a felony, challenging the trial court's application of the felony murder rule, set forth in Indiana Code section 35-42-1-1. Specifically, Exum argues that the death of Lawrence Duff, a co-perpetrator who participated in an attempted robbery, was not reasonably foreseeable to him, and that [206]*206certain jury instructions were misleading, confusing, and incorrect statements of the law. Finding that Exum reasonably should have foreseen that the commission of Attempted Robbery,2 a class B Felony, would create a situation which would expose another to the danger of death, and, thus, he was a mediate or immediate cause of the death within the meaning of the felony murder statute, and that the jury instructions were not misleading, confusing, or incorrect statements of the law, we affirm.

FACTS

Early in the morning of August 10, 2002, Eric Johnson left his apartment at Sear-borough Lake Apartments in Indianapolis, to retrieve a compact dise from his car. Upon exiting the apartment, he left the door ajar. Three men, Exum, Duff, and Bryan Brown, accosted him at gun-point and pushed him back inside his apartment.

Onee inside the apartment, Brown pistol-whipped Johnson with a .45 caliber Ruger semi-automatic pistol, causing a lacerated lip and knot on Johnson's head. Brown demanded money and cocked the pistol in front of Johnson's face. Brown then entered the bedroom where Sonia Rivera was lying in a bed, and tugged at the sheets and asked, "Where's it at?" Tr. p. 45. Brown quickly left the room and placed a taller man at the door to watch her. She could not identify the man because she was not wearing her glasses. Brown returned again, repeating his question, "Where's it at?" Tr. p. 58. This time he hit Rivera on the head with the gun.

In the living room Johnson began wrestling with Duff, broke free, went into the bedroom and began struggling with Brown for control of the gun. Johnson wrestled the gun away from Brown and threw it across the room. Johnson then grabbed his 45 caliber revolver from the dresser and began shooting at Brown and Duff who were fleeing the apartment. Exum had already fled by the time that Johnson was shooting at the co-conspirators.

Johnson shot Duff twice in the left shoulder area, and one bullet penetrated his lung and aorta causing him to bleed to death at the seene. Brown was shot once, but was able to flee the complex with Exum. Johnson and Rivera left the apartment and called 911 from their car. The officers responding to the call saw two men running in the area and eventually caught Exum and Brown.

Johnson was taken for treatment and arrested for an outstanding warrant. While at jail that day, Johnson identified Exum as one of the participants of the attack. Johnson gave consent for the police to search his apartment and the police found 58.7 grams of cocaine, three scales, a bong, and baggie corners. He was charged with dealing and possession of cocaine. He subsequently received immunity for his testimony at Exum's trial.

At trial, Exum was convicted of felony murder, attempted robbery, and resisting law enforcement,3 a class A misdemeanor. Thereafter, the court imposed the minimum sentence of forty-five years, merged count three, attempted robbery, with count one, felony murder, thereby vacating the judgment of the conviction for count three, and sentenced Exum to 365 days for resisting law enforcement, to be served concurrently with the sentence for felony murder. Exum now appeals only the felony murder conviction.

DISCUSSION AND DECISION

Exum argues that the death of Duff was not reasonably foreseeable to him and that [207]*207certain jury instructions were misleading, confusing, and incorrect statements of the law regarding the interpretation and application of the felony murder rule. Specifically, Exum argues that, (1) because his participation in the events that led to the death were limited and that he fled prior to the shooting, he did not create a situation so dangerous that he would be a mediate cause of the death and he could not have reasonably foreseen the death; (2) a jury instruction that explained that "[the language 'kills another human being while committing' does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person" incorrectly impressed upon the jury that a defendant may be legally culpable for any death occurring during the commission of a felony even when he was not the killer, and (8) that an instruction which stated, "[if the State proves beyond a reasonable doubt that the defendant knowingly attempted to commit the felony of Robbery, and the alleged co-defendant's participation in the alleged Attemptfed] Robbery, then you may find the defendant guilty of felony murder," was incorrect for failing to explain that the death must be reasonably foreseeable under the cireumstances. Appellant's Br. p. 15-17.

I. Reasonable Foreseeability

Addressing these arguments separately, Exum first argues that his conviction may not stand because Duffs death was not reasonably foreseeable to him under the circumstances. Specifically, Exum argues that he was not armed, he did not physically assault cither of the victims of the armed robbery, and he had fled prior to the shooting of Duff, and, therefore, the death was not reasonably foreseeable to him. Moreover, Exum maintains that the evidence failed to show that he contributed or was in any way responsible for Duff's death.

In essence, Exum's arguments display a challenge to the sufficiency of the evidence. Our standard of review with regard to sufficiency claims is well settled. We neither weigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence favorable to the verdiet and all reasonable inferences which can be drawn therefrom. Newman v. State, 677 N.E.2d 590, 593 (Ind.Ct.App.1997). If there is substantial evidence of probative value from which a trier of fact could find guilt beyond a reasonable doubt, we will affirm the conviction. Id.

Our legislature has pronounced that "A person who ... kills another human being while committing or attempting to commit . robbery ... commits murder, a felony." Ind.Code § 85-42-1-1(2). In its interpretation of this statute, our supreme court has determined that the State need not prove intent to kill, only the intent to commit the underlying felony. Vance v. State, 620 N.E.2d 687, 690 (Ind.1998). Our supreme court further held in Palmer v. State, 704 N.E.2d 124, 126 (Ind.1999), that the statutory language "kills another human being while committing" does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person. Citing, L.C. § 35-42-1-1(2); see also, Jenkins v. State, 726 N.E.2d 268

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. Warden
N.D. Indiana, 2019
Deante Dalton v. State of Indiana
56 N.E.3d 644 (Indiana Court of Appeals, 2016)
Blake Layman & Levi Sparks v. State of Indiana
42 N.E.3d 972 (Indiana Supreme Court, 2015)
Michael W. Anderson v. State of Indiana
Indiana Court of Appeals, 2014
Anthony P. Sharp, Jr. v. State of Indiana
16 N.E.3d 470 (Indiana Court of Appeals, 2014)
Blake Layman v. State of Indiana Levi Sparks v. State of Indiana
17 N.E.3d 957 (Indiana Court of Appeals, 2014)
Tymon Brown v. State of Indiana
Indiana Court of Appeals, 2012
Nick Khanthamany v. State of Indiana
Indiana Court of Appeals, 2012
Banks v. State
884 N.E.2d 362 (Indiana Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
812 N.E.2d 204, 2004 WL 1663171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exum-v-state-indctapp-2004.