Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jun 20 2014, 6:31 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. STEPHEN MILLER GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
HARRY WHITE, II, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1312-CR-498 ) STATE OF INDIANA, ) ) Appellee/Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-1306-FA-26
June 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant-Defendant Harry White, II was involved in a six or seven-year romantic
relationship with Carla Cordill. At some point during June of 2013, Cordill attempted to end
the romantic relationship. Soon thereafter, on June 21, 2013, White entered Cordill’s
residence, went into Cordill’s bedroom, and waited for Cordill to return. When Cordill
entered the bedroom, White and Cordill began to fight. White then began stabbing Cordill
with a steak knife that White had taken from a knife set in Cordill’s kitchen. White stabbed
Cordill numerous times before Cordill was able to get the knife away from White. While still
wielding the knife, White threatened to kill Cordill. After losing control of the knife, White
placed his hands around Cordill’s neck and began choking Cordill. Cordill eventually
escaped. Once outside, Cordill saw White drive away from her residence in a vehicle that
was titled to Cordill’s father and driven by Cordill. Neither Cordill nor her father had given
White permission to drive the vehicle.
On June 27, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged White
with attempted murder, Class C felony intimidation, Class D felony strangulation, Class D
felony auto theft, and Class A misdemeanor interference with the reporting of a crime.
Following a two-day trial, the jury found White guilty as charged. The trial court
subsequently imposed an aggregate forty-three-year sentence. On appeal, White contends
that (1) the evidence is insufficient to sustain his intimidation conviction; (2) his convictions
for attempted murder, intimidation, and strangulation violate the prohibitions against double
jeopardy; (3) the charging information relating to the auto theft charge contains a fatal
2 variance; and (4) his aggregate forty-three-year sentence is inappropriate. We affirm.
FACTS AND PROCEDURAL HISTORY
As of June of 2013, White and Cordill had been involved in a six or seven-year
romantic relationship. At some point during the week leading up to June 21, 2013, Cordill
attempted to end the romantic relationship. Cordill spent the night of June 20, 2013, at her
sister’s home taking care of her sister, who was ill. Cordill returned to her residence at
approximately 10:00 a.m. on June 21, 2013.
At some point before Cordill returned home on June 21, 2013, White entered Cordill’s
residence, went into Cordill’s bedroom, and waited for Cordill to return. When Cordill
entered her bedroom, Cordill heard a noise and turned to find White standing in the bedroom.
White and Cordill began to fight. White then began stabbing Cordill with a steak knife that
White had taken from a knife set in Cordill’s kitchen. White stabbed Cordill numerous
times, including in the wrist, inner and outer thigh, upper arm, stomach, and breasts.
Cordill’s fingers and wrist were also cut when she attempted to protect herself and take the
knife away from White. While still wielding the knife, White threatened to kill Cordill,
saying that “if I can’t have you nobody will.” Tr. p. 140. Eventually, Cordill was able to get
the knife away from White.
Cordill and White began to wrestle after Cordill took the knife away from White.
White then placed his hands around Cordill’s neck, pushed her down, and began choking her.
While choking her, White said, “I’m going to prison [b****], I’ll see you in hell” and “Die
[b****].” Tr. pp. 142, 144. Cordill was unable to breathe and was gasping for air. Cordill
3 tore a ligament in her hand when she attempted to defend herself by trying to put her thumbs
under White’s fingers. Unable to stop White from choking her, Cordill eventually passed
out. After Cordill regained consciousness, she ran out of her residence. Cordill ran toward
her mailbox to seek assistance. White did not follow her outside.
Once outside, Cordill encountered Teresa Teders who saw that Cordill’s face was red
from blood. Teders observed that Cordill appeared disoriented; did not walk straight; yelled,
“help me, help me;” and kept saying that “he stabbed [me].” Tr. pp. 122, 126. Cordill’s shirt
was completely soaked, and her arm had a puncture wound that “was really deep.” Tr. p.
124. Teders also noticed other puncture marks on Cordill’s body.
While outside with Teders, Cordill saw White drive away from her residence in her
vehicle. At all times relevant to the instant appeal, Cordill drove a 2013 Toyota Corolla that
was registered to her father, Charles Cordill. Cordill’s father permitted Cordill to drive the
vehicle, and Cordill made the loan payments on the vehicle. Cordill had left the keys to the
vehicle hanging on a wall inside her residence. Neither Cordill nor her father had given
Fort Wayne police offers subsequently recovered the vehicle from White. White was
placed under arrest. White had dried blood on his clothing and shoes at the time of his arrest.
On June 27, 2013, the State charged White with attempted murder, Class C felony
intimidation, Class D felony strangulation, Class D felony auto theft, and Class A
misdemeanor interference with the reporting of a crime. The trial court conducted a two-day
jury trial on October 22-23, 2013. Following the conclusion of trial, the jury found White
4 guilty as charged. The trial court conducted a sentencing hearing on November 22, 2013,
after which it sentenced White to an aggregate term of forty-three years of imprisonment.
This appeal follows.
DISCUSSION AND DECISION
I. Whether the Evidence Is Sufficient to Sustain White’s Conviction for Class C Felony Intimidation
White contends that the evidence is insufficient to sustain his conviction for Class C
felony intimidation.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations
omitted). “In essence, we assess only whether the verdict could be reached based on
reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968
N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not
reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d
433, 435 (Ind. 2002).
Indiana Code section 35-45-2-1 provides as follows:
5 (a) A person who communicates a threat to another person, with the intent: (1) that the other person engage in conduct against the other person’s will; (2) that the other person be placed in fear of retaliation for a prior lawful act; or (3) of: (A) causing: (i) a dwelling, building, or other structure; or (ii) a vehicle; to be evacuated; or (B) interfering with the occupancy of: (i) a dwelling, building, or other structure; or (ii) a vehicle; commits intimidation, a Class A misdemeanor.
(b) However, the offense is a: **** (2) Class C felony if: (A) while committing it, the person draws or uses a deadly weapon.
The term “threat” means “an expression, by words or action, of an intention to: (1)
unlawfully injure the person threatened or another person, or damage property; (2) unlawfully
subject a person to physical confinement or restraint; [or] (3) commit a crime….” Ind. Code
§ 35-45-2-1(d).
On appeal, White claims that his actions did not constitute a threat and that the State
failed to prove that his actions were in retaliation for a prior lawful act, i.e., Cordill
attempting to end their romantic relationship. We disagree. During trial, the State presented
evidence that White waited in Cordill’s bedroom before attacking her with a knife. While
still wielding the knife, White told Cordill that if “I can’t have you nobody will.” Tr. p. 140.
It was reasonable for the jury to infer from this statement that White threatened Cordill by
6 expressing the intention to injure or kill Cordill in retaliation for Cordill’s expressed desire to
end their romantic relationship. As such, we conclude that the evidence is sufficient to
sustain White’s conviction for Class C felony intimidation. White’s claim to the contrary is
merely an invitation to this court to reweigh the evidence, which we will not do. See Stewart,
768 N.E.2d at 435.
II. Whether White’s Convictions Are Barred by the Prohibitions Against Double Jeopardy or the Continuing Crime Doctrine
White next contends that his convictions for attempted murder, Class C felony
intimidation, and Class D felony strangulation are barred by either the prohibitions against
double jeopardy or the continuing crime doctrine. Initially, we note that White does not
appear to fully develop this contention. However, we will examine White’s contention to the
extent possible.
A. Prohibitions Against Double Jeopardy
White claims that his convictions for attempted murder, Class C felony intimidation,
and Class D felony strangulation are barred by the prohibitions against double jeopardy
because the offenses were “the same crimes.” Appellant’s Br. p. 9.
The Indiana Double Jeopardy Clause provides, “No person shall be put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14. We analyze alleged violations of this clause pursuant to our Supreme Court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our Supreme Court held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original).
7 Bunch v. State, 937 N.E.2d 839, 845 (Ind. Ct. App. 2010).
1. Statutory Elements
Two or more offenses are the same offense in violation of Article I, Section 14 of the
Indiana Constitution if the essential statutory elements of one of the challenged offenses also
establishes the essential statutory elements of another challenged offense. See id. (citing
Richardson, 717 N.E.2d at 49). Pursuant to Indiana statutory authority, a person commits
attempted murder if the person knowingly or intentionally attempts to kill another human
being. Ind. Code §§ 35-42-1-1; 35-41-5-1. A person attempts to commit a crime “when
acting with the culpability required for the commission of the crime, [the person] engages in
conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-
41-5-1. A person commits intimidation if a person communicates a threat to another person
with the intent that the other person be placed in fear of retaliation for a prior lawful act. Ind.
Code § 35-45-2-1. The offense is a Class C felony if the person draws or uses a deadly
weapon while communicating the threat. Id. A person commits Class D felony strangulation
if the person “in a rude, angry, or insolent manner, knowingly or intentionally: (1) applies
pressure to the throat or neck of another person … in a manner that impedes the normal
breathing or blood circulation of the other person.” Ind. Code § 35-42-2-9.
In the instant matter, White does not claim, and review of the above-stated statutory
authority does not support a conclusion, that the charges of attempted murder, Class C felony
intimidation, and Class D felony strangulation have the same essential statutory elements. As
such, White’s conviction for each of these crimes does not violate the statutory elements test
8 set forth in Richardson.
2. Actual Evidence
Under the “actual evidence” test, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish all of the essential elements of a second challenged offense. [Richardson, 717 N.E.2d] at 53. “Application of this test requires the court to ‘identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective[.]’” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). Therefore, we consider the essential elements of the offenses, the charging information, the jury instructions, the evidence, and the arguments of counsel. Id. The term “reasonable possibility” “turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions.” Id. at 1236.
Bunch, 937 N.E.2d at 845-46.
During trial, the jury heard evidence that White attempted to kill Cordill. Specifically,
Cordill testified that White stabbed her multiple times with a knife from her kitchen. Cordill
stated that White stabbed her in the wrist, inner and outer thigh, upper arm, stomach, and
breasts.
The jury also heard evidence that White threatened Cordill while drawing or using a
deadly weapon. Specifically, Cordill also testified that while still armed with the knife,
White told her that if “I can’t have you nobody will.” Tr. p. 140. Again, it was reasonable
for the jury to infer from this statement that White threatened Cordill by expressing the
intention to injure or kill Cordill in retaliation for Cordill’s expressed desire to end their
romantic relationship.
In addition, the jury also heard evidence that White strangled Cordill. Specifically,
9 Cordill testified that after she was able to take the knife away from White, White put both of
his hands around her neck, pushed her down hard, and choked her. While White was
choking her, Cordill was unable to breathe and was gasping for air. Unable to stop White
from choking her, Cordill eventually passed out.
Cordill’s above-stated testimony provided separate evidence from which the jury
could determine that White was guilty of attempted murder, Class C felony intimidation, and
Class D felony strangulation. Further, the fact that the intimidation charge was enhanced by
White’s act of drawing or using the same knife that he used to repeatedly stab Cordill does
not, in and of itself, create a double jeopardy violation. See Seide v. State, 784 N.E.2d 974,
979 (Ind. Ct. App. 2003) (providing that the defendant failed to show any sort of double
jeopardy violation for enhancing six different crimes committed with the aid of the same
weapon used six times). As such, we conclude that White has failed to demonstrate that
there is a reasonable possibility that the jury latched on to exactly the same facts for each of
the challenged convictions.
B. Continuing Crime Doctrine
White alternatively claims that his convictions for attempted murder, Class C felony
intimidation, and Class D felony strangulation are barred by the continuing crime doctrine.
The continuing crime doctrine reflects a category of Indiana’s prohibition against double
jeopardy. Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). The continuing crime
doctrine does not apply to factual situations where a defendant is charged with two or more
distinct chargeable crimes. Id. at 737 (citing Firestone v. State, 838 N.E.2d 468, 472 (Ind.
10 Ct. App. 2005)). The continuing crime doctrine applies only to those situations where a
defendant has been charged multiple times with the same offense, which includes two
scenarios. Id. “First, a defendant is charged multiple times with the same offense when he or
she is charged multiple times with one offense.” Id. “Second, a defendant is charged
multiple times with the same offense when he or she is charged with an offense and a lesser
included offense.” Id.
In support of the claim that the challenged convictions are barred by the continuing
crime doctrine, White appears to argue that his actions were all part of the same continuing
crime because they were committed in the same location, over the course of a short period of
time, and facilitated a single purpose. In Walker, the defendant made similar arguments,
claiming that his convictions for burglary, robbery, and criminal confinement were all part of
the same continuing crime because they occurred over the course of a short period of time
and facilitated a single purpose. Id. Upon review, we disagreed and concluded that the
continuing crime doctrine did not apply because the defendant was convicted of three distinct
chargeable crimes and was not faced with multiple charges of one offense or charges of an
offense and a lesser included offense. Id. at 738.
Like in Walker, we similarly conclude that White’s convictions for attempted murder,
Class C felony intimidation, and Class D felony strangulation are not barred by the
continuing crime doctrine. White does not argue, and the record does not support a
conclusion, that he was faced with multiple charges for one offense or charged with an
offense and a lesser included offense. Rather, each of the challenged convictions represents
11 a separate, chargeable crime. The record demonstrates that White attempted to kill Cordill.
He also threatened and strangled her. White’s actions did not constitute a single criminal act
but rather three distinct criminal acts. As such, White’s claim in this regard must fail.
III. Whether the Charging Information Relating to the Auto Theft Charge Contains a Fatal Variance
White next contends that there is a fatal variance in the charging information relating
to the auto theft charge.
“A variance is an essential difference between proof and pleading.” Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997)). A variance does not necessarily require reversal, however. Broude v. State, 956 N.E.2d 130, 135 (Ind. Ct. App. 2011) (citing Mitchem, 685 N.E.2d at 677), trans. denied. The test to determine whether a variance is fatal is: (1) was the defendant mislead by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby; (2) will the defendant be protected in [a] future criminal proceeding covering the same event, facts, and evidence against double jeopardy? Id.
Coy v. State, 999 N.E.2d 937, 945 (Ind. Ct. App. 2013).
With respect to the auto theft charge, the charging information alleged that:
on or about the 21st day of June, 2013, in the County of Allen and in the State of Indiana, said defendant, Harry White, II, did knowingly or intentionally, exert unauthorized control over the motor vehicle of another person, to wit: Charles Cordill, with the intent to deprive Charles Cordill of the vehicle’s value or use, being contrary to the form of the statute in such case made and provided.
Appellant’s App. p. 16.
12 White claims that because theft is a crime which violates the possessory rights of
another person, the charging information contains a fatal variance as it alleged that White
exerted unauthorized control over the vehicle of Cordill’s father rather than Cordill. The
State, for its part, argues that there is no fatal variance in the charging information because
White was not misled by the charging information and also because White will be protected
from a future criminal proceeding covering the same event. We agree with the State.
Review of the record reveals that the vehicle in question was registered to Cordill’s
father, Charles. With Charles’s apparent permission, the vehicle was used mostly, if not
exclusively, by Cordill. Cordill also made loan payments on the vehicle. Although it is
possible that White might not have been aware that the vehicle in question was registered and
belonged to Charles, White knew Charles and was aware of his connection to Cordill.
Further, only one vehicle was involved with White’s criminal acts. White, who had been in a
six or seven-year romantic relationship with Cordill, undoubtedly knew that Cordill drove the
vehicle in question. In addition, White took the key for this vehicle from Cordill’s residence,
without Cordill’s permission, while fleeing Cordill’s residence after attacking and
threatening Cordill. From this evidence, we cannot say that White could have reasonably
been misled by the alleged variance in the charging information.
In addition, White is protected from a future criminal proceeding covering the same
event as any subsequent prosecution would violate the prohibitions against double jeopardy
set forth in Article I, Section 14 of the Indiana Constitution. If the State were to recharge
White with the theft of the vehicle, it would have to use the same evidence against White as
13 was presented during trial below, specifically that White took the vehicle from Cordill’s
residence without Cordill’s permission. Because White cannot reasonably be said to have
been misled by the alleged variance and would be protected from future prosecution for the
theft of the vehicle in question, we conclude that the alleged variance is not fatal and does
not require a reversal of White’s conviction for Class D felony auto theft.
IV. Whether White’s Sentence Is Appropriate
White also contends that his aggregate forty-three-year sentence is inappropriate in
light of the nature of his offenses and his character. Indiana Appellate Rule 7(B) provides
that “The Court may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which the defendant
is being sentenced, and what it reveals about the defendant’s character.’” Paul v. State, 888
N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.
App. 2002), trans. denied). The defendant bears the burden of persuading us that her
sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
With respect to the nature of his offenses, the trial court stated that it found the nature
of White’s crimes to be “despicable.” Sent. Tr. p. 13. The trial court noted that White
attacked Cordill in her home after lying in wait for her to return. White stabbed Cordill
multiple times, threated to kill Cordill in retaliation for Cordill attempting to end the romantic
14 relationship she shared with White, and choked Cordill to the point where she was unable to
breathe. The trial court indicated that it found “what [White] did to [Cordill] was degrading
and humiliating, and there was no need for it.” Sent. Tr. p. 13. As a result of White’s attack,
Cordill suffered serious injuries as well as permanent pain and scaring.
With respect to his character, the trial court acknowledged that Cordill had written a
letter to the court requesting leniency for White, but found that an aggravated sentence was
appropriate in light of White’s criminal history. The trial court noted that White is a multi-
state offender, with criminal convictions from both Florida and Indiana. These convictions
include three misdemeanor convictions and three felony convictions. White’s criminal
history also indicates that prior efforts at rehabilitation have failed. The trial court noted that
while White’s criminal history did not reflect “the most horrible record in the world,” White
has previously had probation and suspended sentences revoked. Sent. Tr. p. 13. The trial
court also indicated that it found that “the escalation of [White’s] criminal conduct is
troubling.” Sent. Tr. p. 13. White’s criminal history and failure to conform his behavior
demonstrates a total disregard for both the law and others. Upon review, we conclude that
White has failed to meet his burden of proving that his forty-three-year sentence is
inappropriate.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.