MEMORANDUM DECISION FILED Jul 12 2016, 8:25 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Public Defender’s Office Attorney General of Indiana Muncie, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Regina N. Miller, July 12, 2016
Appellant-Defendant, Court of Appeals Case No. 18A02-1511-CR-1938
v. Appeal from the Delaware Circuit Court State of Indiana, The Hon. Linda Ralu Wolf, Judge Trial Court Cause No. 18C03-1112- Appellee-Plaintiff. FC-41
Bradford, Judge.
Case Summary [1] In early December of 2011, Appellant-Defendant Regina Miller was in a
relationship with Terry Rutledge. On the morning of December 2, 2011,
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 1 of 21 Rutledge met up with Tonia Ingram, and the duo were later videotaped
together on a city bus, at a Walmart store, and at a Target store, with the last
recording occurring at around 1:00 p.m. Meanwhile, Miller had gone to work
and, at around 3:30 p.m., received a text message from Rutledge indicating that
he needed help and wanted Miller to secure a truck.
[2] That evening, Rutledge, Miller, and Miller’s friend Erin Harman went out.
During the early morning of December 3, 2011, Antowyn Warren met
Rutledge at a bar in Muncie. A little after 3:00 a.m., Rutledge, Miller, and
Warren returned to Miller’s house, where Ingram’s dead body lay in the
basement. Ingram had died of asphyxia from neck compression. The trio
moved Ingram’s body upstairs.
[3] At approximately 7:45 a.m., Muncie Police were dispatched to the scene of
Ingram’s body on fire alongside the road. At approximately 10:00 a.m., Miller
sent a text message to Kayleigh Rowe, her son’s girlfriend who had spent the
night at Miller’s, telling her to leave and come to Miller’s friend’s house. Miller
told Rowe when she arrived that Rutledge and three other men had killed a
woman in Miller’s basement. At approximately 11:00 a.m., Miller arrived at
Muncie City Hall and spoke with police. Miller admitted to police that she had
helped Rutledge transport, dispose of, and burn Ingram’s body.
[4] Appellee-Plaintiff the State of Indiana charged Miller with Class C felony
assisting a criminal and Class D felony obstruction of justice. Over the next
couple of years, both the State and Miller moved for several continuances. In
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 2 of 21 November of 2014, Miller moved for discharge pursuant to Indiana Rule of
Criminal Procedure 4, which the trial court denied. This court declined to
accept jurisdiction over Miller’s interlocutory appeal. In September of 2015, a
jury trial was held. During trial, the trial court admitted several text messages
sent or received by mobile telephones connected with Miller. After the trial
court quashed Miller’s subpoena of Rutledge, Miller offered a police officer’s
testimony that Rutledge had told him that he had threatened to harm Miller if
she did not help dispose of Ingram’s body. The trial court instructed the jury on
Miller’s defenses of duress and necessity, which nonetheless found Miller guilty
as charged. Miller contends that the trial court erred in denying her motion for
discharge, failed to comply with relevant statutes in quashing her subpoena of
Rutledge, and abused its discretion in admitting certain text messages. Miller
also contends that her convictions for assisting a criminal and obstruction of
justice violate prohibitions against double jeopardy. Because we find Miller’s
double jeopardy argument to have merit, we affirm in part, reverse in part, and
remand with instructions.
Facts and Procedural History I. Facts of the Crimes [5] In the fall of 2011, Miller rented a house on North Hackely Street in Muncie
and was involved in a relationship with Rutledge. Miller’s son was in a
relationship with Rowe. On the morning of December 2, 2011, Rutledge met
up with Ingram, and the duo were videotaped together on a city bus, at a
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 3 of 21 Walmart store, and at a Target store, with the last recording occurring at 1:11
p.m. Meanwhile, Miller had gone to work at a diner and was expecting to
leave work around 6:00 p.m.
[6] At approximately 7:00 to 7:30 p.m., Miller, Harman, and Rutledge were at
Miller’s house, planning on going out for the evening. During the early
morning hours of December 3, 2011, Warren met Rutledge at a Muncie bar,
where an employee also saw Miller at approximately 2:45 a.m. At
approximately 3:00 a.m., Harman saw Miller getting into her vehicle with
Rutledge.
[7] Miller, Rutledge, and Warren ended up back at Miller’s house. The trio went
downstairs to the basement, where Ingram’s dead body lay, and moved it
upstairs. Miller helped Rutledge to clip Ingram’s fingernails, partially strip
Ingram’s body, wrap it in plastic, load it into an SUV that Miller had borrowed,
and drive around in search of a place to dispose of the body. At approximately
7:45 a.m., Muncie Police were dispatched to the intersection of Gavin and
Bunch Roads, where Ingram’s body was on fire. It was determined that Ingram
had suffered some trauma to her head but had died of asphyxiation due to neck
compression.
[8] At approximately 10:00 a.m., Miller sent a text message to Rowe, who had
spent the night at Miller’s house, demanding that she leave and come over to
Miller’s friend’s house. When Rowe arrived at the friend’s house, Miller told
her that Rutledge and three other men had killed a women in her basement.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 4 of 21 Miller also told Rowe that Rutledge had told her, “this is what happens when
b****** talk[.]” Tr. p. 431.
[9] At approximately 11:00 a.m., Miller arrived at City Hall to speak with police.
Miller admitted to police that she had helped Rutledge clip Ingram’s fingernails,
partially strip Ingram’s body, wrap it in plastic, load it into the SUV, drive
around in search of a place to dispose of the body, and drive Rutledge to the
BMW Club to dispose of some bloody clothing. Police collected from Miller a
pair of rubber gloves and a sweatshirt with blood on the sleeves. DNA
collected from the items matched Ingram’s or had a major profile which
matched that of Ingram’s. Fingernail clippings found in the basement of
Miller’s home and material collected from a rubber glove found in the kitchen
matched Ingram’s DNA profile. A purse found in a trash tote in front of
Miller’s house contained personal belongings of Ingram, including an
identification card.
II. Procedural History [10] On December 9, 2011, the State charged Miller with Class C felony assisting a
criminal and Class D felony obstruction of justice. On March 2, 2012, the State
moved for a continuance on the ground that certain evidence was not yet
available, and the trial court rescheduled the jury trial for August 6, 2012. On
July 19, 2012, the State moved for a continuance on the ground that the deputy
prosecutor was unavailable on August 6, 2012, and the trial court rescheduled
trial for November 13, 2012.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 5 of 21 [11] On November 1, 2012, Miller moved for a continuance, and trial was
rescheduled for March 18, 2013. On January 16, 2013, Miller moved for a
continuance, and trial was rescheduled for June 3, 2013. On May 14, 2013,
Miller moved for a continuance, and trial was rescheduled for November 18,
2013. On August 30, 2013, Miller moved for a continuance, and trial was
rescheduled for January 6, 2014. On November 20, 2013, Miller moved for a
continuance, and trial was rescheduled for April 21, 2014. On March 31, 2014,
Miller moved for a continuance, and trial was rescheduled for June 9, 2014.
On May 19, 2014, Miller moved for a continuance, and trial was rescheduled
for October 15, 2014. On September 16, 2014, Milled moved for a
continuance, and trial was rescheduled for October 27, 2014.
[12] On October 27, 2014, the date of the latest trial setting, the State moved for a
continuance on the ground of newly-discovered evidence, to which Miller
objected. Specifically, the State averred that it had received new and previously
unknown information regarding a potential witness on October 24, 2014.
When the trial court granted the State’s motion and set a new trial date of
February 9, 2015, Miller also objected. On November 26, 2014, Miller moved
for discharge pursuant to Criminal Rule 4. On December 15, 2014, the trial
court held a hearing on Miller’s discharge motion. During the hearing, it
became apparent that the State had sought a continuance to investigate the
potential testimony of Jami Holland. The investigator for the Delaware County
Public Defender’s office testified that he had contacted Holland the week before
the hearing and that she indicated she would have been available to testify on
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 6 of 21 October 27, 2014. The prosecutor argued that, regardless of Holland’s
availability, the State did not learn of her potential as a witness until two days
before the latest trial setting, or October 25, 2014.
[13] On December 29, 2014, the trial court issued an order denying Miller’s
discharge motion. Inter alia, the trial court found in its order that the State did
not learn of Holland until on or about October 24, 2014, the State did not have
time to procure the evidence at issue, and Miller did not have time to prepare to
meet it. The trial court certified the issue for interlocutory appeal, but this court
declined to accept jurisdiction. On March 2, 2015, the trial court scheduled
trial for April 13, 2015. On April 1, 2015, Miller moved for a continuance, and
trial was rescheduled for September 21, 2015.
III. Trial [14] At trial, the trial court, over Miller’s objection, admitted certain text messages
sent from or received by mobile telephones connected to Miller. The text
messages fell into two categories: (1) messages sent by Rutledge to Miller and
(2) messages sent by Miller to other persons or received by Miller from other
persons. State’s Exhibits 95 and 96 related to messages sent by Rutledge to
Miller. At 3:29 p.m. on December 2, 2011, Rutledge sent the following text
message to one of Miller’s telephones: “I need u to help me with something
asap can u get the truc what time u going home im with griff[.]” State’s Ex. 95.
At 4:42 p.m., Rutledge texted Miller, “Ur house so hurry we got to get out of
town[.]” State’s Ex. 96.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 7 of 21 [15] State’s Exhibits 102 and 103 related to messages sent between Miller and an
unidentified person. At 7:06 a.m., the person texted Miller, “RE: |K, r u
frontin em to me till I clear up this mess ---------- Pain pills \n[.]” State’s Ex.
102. At 7:51 a.m., Miller responded, “How many you want[?]” State’s Ex.
102. Miller and her correspondent exchanged several more text messages until
9:18 a.m., with the seeming object of arranging a purchase of “pain pills” from
Miller. State’s Exhibit 94 contains a text message to Miller which said, “Why
did u not tell me what went on and on top of it all u told my son not to tell me
\nerin blake\n[.]”
[16] On September 24, 2015, the fourth day of trial, the trial court issued an order
quashing Miller’s subpoena of Rutledge, which Rutledge had requested based
on his Fifth Amendment privilege against self-incrimination. Miller offered
testimony from a police officer, which was admitted, that Rutledge had made
statements to the officer indicating that he had threatened Miller with harm if
she refused to help him dispose of Ingram’s body. The jury was instructed on
Miller’s defenses of duress and necessity. After trial, the jury found Miller
guilty as charged, and the trial court sentenced her to six years of incarceration
for assisting a criminal and eighteen months for obstruction of justice, both
sentences to be served concurrently.
Discussion and Decision I. Speedy Trial [17] Indiana Rule of Criminal Procedure 4(C) provides in relevant part:
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 8 of 21 No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar. [18] Miller was not brought to trial within the aggregate one-year time period.
However,
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged. Ind. Crim. Rule 4(D).
Criminal Rule 4(D) provides that a trial court may grant the State a continuance when it is satisfied that (1) there is evidence for the State that cannot then be had; (2) reasonable effort has been made by the State to procure the evidence; and (3) there is just ground to believe that such evidence can be had within ninety days. [Chambers v. State, 848 N.E.2d 298, 301 (Ind. Ct. App. 2006), trans. denied.] This court has previously stated that any exigent circumstances may warrant a reasonable delay beyond the limitations of Criminal Rule 4. Id. “‘The reasonableness of such delay must be judged in the context of the particular case[.]’” Id. (quoting Smith v. State, 802 N.E.2d 948, 951 (Ind. Ct. App. 2004)). In reviewing Criminal Rule 4 appeals, we employ two standards of review: we review the trial court’s legal conclusions de novo but exercise deference with respect to its
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 9 of 21 factual findings. See Feuston v. State, 953 N.E.2d 545, 548 (Ind. Ct. App. 2011) (resolving differing standards of review in Criminal Rule 4 cases). Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App. 2012), trans. denied. “The
reasonableness of such delay must be judged in the context of the particular
case, and the decision of the trial judge will not be disturbed except for an abuse
of discretion.” Chambers, 848 N.E.2d at 304 (citation and quotation marks
omitted).
[19] Under the circumstances of this case, we cannot conclude that the trial court
abused its discretion in granting the State’s continuance request pursuant to
Criminal Rule 4(D). Indeed, when looked at in the context of the case, the
State did not seem to have a reasonable alternative available to it. The State
learned of Holland’s potential as a witness two or three days before trial on a
weekend. After the prosecutor’s office “tracked down” Holland’s telephone
number, she was contacted and the general nature of her possible testimony
ascertained. Tr. p. 70. The prosecutor’s office then contacted defense counsel
and the trial court. We find no fault in the trial court’s conclusion that two or
three days was simply not enough time for either side to reasonably evaluate
Holland’s potential as a witness. Miller has failed to establish an abuse of
discretion in this regard.
[20] Miller would have us conclude that if it is physically possible to produce a
witness for trial, the State cannot receive a continuance pursuant to Criminal
Rule 4(D), regardless of when the witness was discovered. Put another way,
even though Miller seems to concede that neither the State nor she would have Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 10 of 21 had time to properly evaluate Holland, she essentially argues that that should
not matter. We do not believe that the Rule should be read so rigidly,
especially in light of the Indiana Supreme Court’s holding “that any exigent
circumstances may warrant a reasonable delay beyond the limitations of Ind. R.
Crim. P. 4[.]” Loyd v. State, 398 N.E.2d 1260, 1265 (Ind. 1980) (emphasis
added). Moreover, as the State notes, it is safe to assume that Miller would
have strenuously objected had the State attempted to have Holland testify on
two or three days’ notice, which Miller suggests the State should have been
required to do. We will not read Criminal Rule 4(D) in a way that leaves the
State with such an unreasonable choice.
[21] Finally, Miller argues that Criminal Rule 4(D) does not apply in this case
because the State ultimately did not call Holland to testify against Miller.
Miller argues that Rule 4(D) extensions should only apply to evidence that the
State turns out to need. Such a conclusion would be unreasonable in light of
the trial court’s finding that there was simply not enough time for either side to
evaluate Holland before the scheduled start of trial.
II. Miller’s Subpoena of Rutledge [22] Miller requested that the trial court issue a subpoena for Rutledge, presumably
for the purpose of bolstering her claim that to the extent that she assisted
Rutledge or obstructed justice, she did so under duress. The trial court quashed
Miller’s subpoena, relying on Rutledge’s Fifth Amendment right against
compelled self-incrimination. Miller contends that, because Rutledge had
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 11 of 21 already been tried and convicted for his part in Ingram’s death, he no longer
retained a right against self-incrimination relevant to this case. Miller also
contends that the trial court erroneously failed to hold a hearing pursuant to
Indiana Code section 35-37-3-11 before quashing her subpoena.
[23] We conclude that any error the trial court may have committed in this regard
can only be considered harmless. “Errors in the admission of evidence are to be
disregarded as harmless unless they affect the substantial rights of the
defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “Where
wrongfully excluded testimony is merely cumulative of other evidence
presented, its exclusion is harmless error.” Spaulding v. Harris, 914 N.E.2d 820,
830 (Ind. Ct. App. 2009), trans. denied.
[24] Miller was able to, and did, introduce evidence that Rutledge had, in fact,
threatened Miller with harm, through the testimony of Muncie Police Officer
George Hopper, who testified that he interviewed Rutledge on December 5,
2011. (Tr. 609). Inter alia, Officer Hopper also testified that Rutledge told him
1 Indiana Code section 35-37-3-1 provides as follows:
(a) If a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question or produce any item, the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness’s refusal. After such a hearing, the court shall decide whether the witness is required to answer the question or produce the item. (b) If the prosecuting attorney has reason to believe that a witness will refuse to answer a question or produce an item during any criminal trial, the prosecuting attorney may submit the question or request to the trial court. The court shall hold a hearing to determine if the witness may refuse to answer the question or produce the item.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 12 of 21 that he had threatened Miller and also threatened to kill her children if Miller
did not help him dispose of Ingram’s body. This evidence, if believed, would
have been sufficient to establish Miller’s defenses to the charges against her.
Testimony from Rutledge to this effect, even assuming that it would have been
consistent with his statements to Officer Hopper, would have been merely
cumulative. Any error the trial court may have made in quashing Miller’s
subpoena of Rutledge can only be considered harmless.
III. Text Messages [25] Miller contends that the trial court abused its discretion in admitting certain text
messages to her from Rutledge and between her and unidentified third persons.
We will only reverse a trial court’s decision on the admissibility of evidence
upon a showing of an abuse of that discretion. Curley v. State, 777 N.E.2d 58,
60 (Ind. Ct. App. 2002). An abuse of discretion may occur if the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court, or if the court has misinterpreted the law. Id. The Court of
Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
in the record, even though it was not the reason enunciated by the trial court.
Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005). We do not reweigh
the evidence and consider the evidence most favorable to the trial court’s ruling.
Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006).
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 13 of 21 A. State’s Exhibits 95 and 96 [26] Miller challenges the admission of State’s Exhibits 95 and 96, which are
messages sent by Rutledge to Miller on December 2, 2011: “I need u to help
me with something asap can u get the truc what time u going home im with
griff[,]” State’s Ex. 95, and, “Ur house so hurry we got to get out of town[.]”
State’s Ex. 96. Miller argues that these text messages are inadmissible hearsay
and are irrelevant in any event, see Ind. Evidence Rules 801(a); 403, while the
State argues that they are admissible as statements of Rutledge’s then-existing
state of mind or as present-sense impressions. See Evid. Rs. 803(3); 803(1).
[27] We need not address the admissibility of the evidence in question, as any error
in admitting it can only be considered harmless. “Errors in the admission of
evidence are to be disregarded as harmless unless they affect the substantial
rights of the defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997).
“[A]n error in the admission of evidence is harmless if the erroneously admitted
evidence is cumulative of other evidence appropriately admitted.” Collins v.
State, 826 N.E.2d 671, 679 (Ind. Ct. App. 2005), trans. denied.
[28] For one thing, the text messages are marginally prejudicial, at worst. The State
argues that the messages are relevant to show Miller’s knowledge of Rutledge’s
requests for assistance. However, even if this is true, the messages, which were
not responded to, certainly do not show Miller’s assent. In any event, there is
no dispute that Miller assisted Rutledge and attempted to help him conceal or
destroy evidence of Ingram’s murder. The key question at trial was whether
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 14 of 21 Miller was under duress when she assisted Rutledge, and the text messages
from Rutledge do not touch on that question one way or the other. Any error
the trial court may have committed in admitting State’s Exhibits 95 and 96 can
only be considered harmless.
B. State’s Exhibits 102 and 103 [29] State’s Exhibits 102 and 103 are text messages sent between Miller and an
unidentified person on the morning of December 3: at 7:06 a.m., the person
texted Miller, “RE: |K, r u frontin em to me till I clear up this mess ----------
Pain pills \n[,]” and at 7:51 a.m., Miller responded, “How many you want[?]”
State’s Ex. 102. Miller and her correspondent exchanged several more text
messages until 9:18 a.m., with the seeming object of arranging a purchase of
“pain pills” from Miller. Miller argues that any marginal probative value of the
text messages is substantially outweighed by their prejudicial effect, while the
State argues that are admissible to undercut Miller’s claim that she assisted
Rutledge under duress.
[30] We agree with the State. Evidence Rule 403 provides: “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, or needless presentation of cumulative
evidence.” The text message exchange, with Miller’s participation beginning at
around the time Ingram’s body was discovered aflame, tends to strongly
undercut her claim that she assisted Rutledge under duress. It is a reasonable
inference that Miller would not have exhibited such “business-as-usual” Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 15 of 21 behavior had she just been forced to assist in the disposal of Ingram’s body
through the threat of force to herself and her children. Instead of taking steps to
seek protection for herself and her children, Miller arranged to sell pain pills to
an unidentified third person.
[31] Moreover, although evidence that Miller was selling “pain pills” is somewhat
prejudicial, we cannot say that the danger of unfair prejudice substantially
outweighs the evidence’s probative value. There is no apparent connection
between any crime that could be committed by selling “pain pills” and the
crimes Miller was charged with here. In other words, we believe that any risk
that the jury might have been inclined to convict Miller due to evidence of other
bad acts is very low. Moreover, given the conflicting evidence concerning the
duress issue, the text messages had a particularly high probative value in this
case. Miller has failed to establish an abuse of discretion in this regard.
C. State’s Exhibit 94 [32] State’s Exhibit 94 contains a text message sent to Miller at 10:34 p.m. on
December 3, 2011, while Miller was already in custody, which said, “Why did
u not tell me what went on and on top of it all u told my son not to tell me
\nerin blake\n[.]” While Miller asserts that this text message is “perhaps the
most prejudicial” of the challenged messages, Appellant’s Br. 25, we do not see
how it prejudiced her. Even if one accepts that Miller did not, in fact, tell the
recipient “what went on” and also told the recipient’s son not to tell, we fail to
see how this casts Miller in a negative light or tends to establish her guilt of the
charged crimes. The text message at issue gives no indication of just what the Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 16 of 21 recipient knows about what occurred and indicates that she did not get that
knowledge from Miller in any event. The admission of State’s Exhibit 94, even
if erroneous, can only be considered harmless.
IV. Double Jeopardy [33] Finally, Miller contends that her convictions for Class C felony assisting a
criminal and Class D felony obstruction of justice violate Indiana constitutional
prohibitions against double jeopardy. In Richardson v. State, 717 N.E.2d 32
(Ind. 1999), the Indiana 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 … the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Id. at 49-50.
To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, 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 the essential elements of a second challenged offense. Id. at 53. “In determining the facts used by the fact-finder to establish the
elements of each offense, it is appropriate to consider the charging information,
jury instructions, and arguments of counsel.” Lee v. State, 892 N.E.2d 1231,
1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832 (Ind. 2002);
Richardson, 717 N.E.2d at 54 n.48).
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 17 of 21 [34] In order to convict Miller of Class C felony assisting a criminal, the State was
required to prove that she,
not standing in the relation of parent, child, or spouse to another person who has committed a crime or is a fugitive from justice who, with intent to hinder the apprehension or punishment of the other person, harbor[ed], conceal[ed], or otherwise assist[ed] the person commits assisting a criminal, … a Class C felony if the person assisted has committed murder[.] Ind. Code § 35-44-3-2(2) (2011). In order to convict Miller of Class D felony
obstruction of justice, the State was required to establish that she “alter[ed],
damage[ed], or remove[ed] any record, document, or thing, with intent to
prevent it from being produced or used as evidence in any official proceeding or
investigation[.]” Ind. Code § 35-44-3-4 (2011).
[35] We conclude that Miller’s conviction for obstruction of justice cannot stand, as
it violates the same actual evidence test. While it is true that the charging
information and the trial court’s instructions to the jury laid out the distinct
elements of the two crimes with which Miller was charged, the charges and
instructions were merely recitations of the statutory language and did not
specify which specific allegations supported the charges.
[36] Even more compelling are the evidence presented and arguments made by the
State. Regarding the assisting a criminal charge, there was no dispute that
Miller was not Rutledge’s spouse, parent, or child or that the crime Rutledge
committed was murder. For the remainder of the required proof, the State
presented evidence that Miller helped to move Ingram’s body, clipped her
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 18 of 21 fingernails, drove Rutledge around looking for a place to dispose of the body,
and took Rutledge to the BMW Club where he disposed of bloody clothes. To
support the obstruction of justice charge, the State presented evidence that
Miller altered and removed Ingram’s body, including clipping her nails, loading
her body into the vehicle she had borrowed, and driving her body to a remote
location, much the same evidence used to support some of the essential
elements of the assisting a criminal conviction.
[37] Moreover, the State emphasized essentially the same body of evidence to argue
that it had proved assisting a criminal and obstruction of justice:
First, we have the Assisting a Criminal. Now we know that the defendant is not the parent, child, or spouse of Terry Rutledge. And we know that Terry Rutledge, at the very least, helped carry out the murder of Tonia Ingram. That has not been disputed one bit in all the evidence in this trial. We know that this defendant absolutely assisted Terry Rutledge. She admitted that to the police. She admitted to helping to move Tonia’s body. She admitted to cutting Tonia’s fingernails. She admitted to driving Rutledge around looking for that spot to dump the body. She admitted to taking Rutledge to the BMW Club. Where he tried to dispose of those bloody clothes. And we know all of that was done, all those acts were carried out to try to avoid or hinder at least Rutledge’s arrest and punishment. Tr. pp. 703-04.
Next we have the [obstruction] of justice. Again, the defendant’s statement by itself tells us that the defendant altered, damaged, or moved a record, document or thing. And again, our common sense tells us there was only one reason why that was done. Why Tonia’s fingernails were clipped. Why Tonia’s body was moved. Why Tonia’s body was set on fire and why those bloody Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 19 of 21 clothes were disposed of. It was to keep that evidence from being discovered. Tr. p. 704.
[38] To summarize, there does not seem to be any significant proof produced and
relied on to convict Miller of obstruction of justice that was not also used to
convict her of assisting a criminal. We conclude that Miller has established a
reasonable possibility that the jury relied on the same actual evidence to find
her guilty of both assisting a criminal and obstruction of justice. See, e.g.,
Alexander v. State, 768 N.E.2d 971, 978 (Ind. Ct. App. 2002) (finding violation of
the Richardson same actual evidence test where evidence that defendant
constructively possessed one handgun “was used to prove both an essential
element of the unlawful possession of a firearm by a serious violent felon, i.e.
that Alexander possessed a firearm, and all of the essential elements of carrying
a handgun without a license[,]” case was argued non-specifically, and
defendant was charged generally), trans. denied.
[39] We therefore remand with instructions to vacate Miller’s conviction for Class D
felony obstruction of justice. See Richardson, 717 N.E.2d at 54 (“When two
convictions are found to contravene double jeopardy principles, a reviewing
court may remedy the violation by reducing either conviction to a less serious
form of the same offense if doing so will eliminate the violation. If it will not,
one of the convictions must be vacated.”) (citation omitted).
[40] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 20 of 21 Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016 Page 21 of 21