ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glenn A. Grampp Jeffrey A. Modisett
Evansville, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
RICKY W. JESTER, ) ) Appellant (Defendant Below ), ) ) v. )Cause No. 82S00-9806-CR-371 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Richard L. Young
Cause No. 81C01-9704-CF-350
February 18, 2000
Appellant Ricky Jester was convicted of murder and conspiracy to commit murder in
connection with the death of his wife. The trial court sentenced him
to consecutive terms of sixty years for murder and fifty years for conspiracy.
Jester appeals on the following issues:
Whether the evidence was sufficient to support his conviction for murder,
Whether the evidence was sufficient to support his conviction for conspiracy to commit
Whether the trial court erred in denying his motions
to sever the murder and conspiracy counts,
Whether the trial court violated the hearsay rule by admitting statements attributed to
his late wife,
Whether the trial court properly instructed the jury on accomplice liability.
The record reveals that Teresa and Ricky Jester were having marital problems for
at least two years before Teresas murder. Teresa told both Rebecca Blackburn and
Judy Carr that she thought Jester was having an affair, and that she
contemplated leaving him. Teresa also told Jeremy Blackburn she believed that Jester
was having an affair, specifically with Lisa Fisher. Indeed, Lisa Fisher testified
at trial that such an affair had occurred.
The week before Teresas murder, several people observed altercations between Teresa and Jester.
Tina Bunker, Teresas sister, testified that she saw Teresa and Jester arguing
two days before Teresas murder. Sherry Morris also testified that Jester and
Teresa had an argument shortly before Teresas murder, during which Jester called Teresa
a f---ing bitch. (R. at 755.)
About six months or a year before Teresas death, Jester befriended James Koutz
and asked Koutz to kill Teresa. Specifically, Jester told Koutz that he
would give him $15,000 and a motorcycle to kill her. In February
1995 and again in the fall of 1995, Jester asked another friend, Mark
Williams, to kill Teresa. Jester told Williams that Teresa was going to
Louisville for a nursing seminar and asked Williams to follow her to Louisville
and kill her. Jester gave Williams a handgun, and $300, and told
him to be sure that Teresas body was found (for insurance purposes).
Jester also assured Williams that he would receive an additional $20,000 once the
insurance proceeds were distributed.
Around 1:03 a.m. on July 3, 1996, Jester called the police and told
them that he had come home to find his wife Teresa dead, lying
in a pool of blood. Officer Keller arrived at Jesters home two
minutes later to investigate. There was no sign of a break-in or
an attempted break-in and none of the outbuildings showed evidence of entry or
attempted entry. An autopsy of her body later revealed that she had
been shot in the head and neck approximately six times at very close
About 1 p.m., the police let Jester back into his home, at which
time Jester immediately began looking through a group of insurance policies. Later
that day, Jester also called a car dealership requesting information about transferring the
title of a recently purchased Jeep Grand Cherokee.
In April 1997, the State charged Jester with murder and conspiracy. While
in jail awaiting trial, Jester spoke to a cellmate, Willie Joe Freeman, and
asked Freeman to kill Mark Williams. Jester told Freeman to mak[e] it
look like a robbery or like an overdose of drugs. (R. at
1277-78.) Jester also made arrangements with another friend to lend Freeman $400
to help Freeman make bond. Again, in July 1997, Jester asked another
cellmate, Johnny Whitledge, if he knew anyone who could keep Williams from testifying
or make sure that he did not show up. (R. at 1314.)
In making his sufficiency claim, Jester points to the circumstantial nature of the
evidence against him and to evidence supporting his alibi defense. It is
well-settled, however, that a murder conviction may be based entirely on circumstantial evidence.
Kriner v. State, 699 N.E.2d 659 (Ind. 1998). Although each piece
of evidence viewed in isolation may seem insufficient, in a conviction based on
circumstantial proof, the evidence in the aggregate may point to guilt where individual
elements of the States case might not. Id. at 664. This
is certainly true here.
Jesters assertion that the State was unable to overcome his alibi defense is
without merit. Jester contends that the evidence clearly established that [he] could
not have been at his home at the time that Teresa Jester was
killed. (Appellants Br. at 10.)
James Terry, a Schnucks store manager, saw Jester at Schnucks around 8:45 p.m.
(R. at 777.) When Terry left the store at 10:00 p.m.,
he saw what he believed to be Jesters truck driving away from the
store. (R. at 780.) A friend of Jesters, Dan Hufford, and
Huffords girlfriend, Valerie Arnold, testified that Jester came to Huffords house around 10
p.m. and left fifteen or twenty minutes later. (R. at 810-11, 849.)
Videotapes from a store security camera establish that Jester was at the
Schnucks store sometime between 10:30 and 10:41 p.m. cashing a check. (R. at
924-28.) The next known time for his whereabouts was provided by Tammy
Thornton who, in her police statement, said that Jester arrived at her house
between 10:30 and 11:00 p.m. (R. at 1008-09.) At trial, however,
Thornton testified that Jester arrived at her house between 11:15 and 11:30 p.m.
(R. at 994.)
Despite this alibi evidence, the jury could reasonably have concluded that Jester murdered his wife. Assuming that Jester was at Huffords home until 10:15 or 10:20 p.m., this visit only accounts for his time before he went to Schuncks at 10:30 p.m. If Jester left Schnucks at 10:41 p.m., as the security cameras indicate, and arrived at Tammy Thorntons house sometime between 10:30 and 11:30 p.m., as her testimony indicates, there was still a significant window of opportunity for Jester to return home and shoot Teresa. See footnote
This assumes, however, that the jury chose to believe Hufford and Arnold, which
it was not required to do. If the jury chose not to
believe them, or decided that they might have been mistaken, then there was
a window of opportunity before Jester returned to Schnucks at 10:30 p.m.
In short , Jester asks us to reweigh the evidence, which is not our prerogative on appeal. Based on the foregoing, the evidence viewed as a whole and most favorably to the judgment supports the murder conviction.
To prove the agreement element of conspiracy, the State need not prove the
existence of a formal, express agreement. Rather, the conspiracy may be proved
solely on the basis of circumstantial evidence. Vance v. State, 640 N.E.2d
51 (Ind. 1994).
In support of the conspiracy charge, the State offered the testimony of Mark
Williams, with whom Jester allegedly conspired. Williams testified that Jester approached him
in February 1995, and again in the spring of 1995, and asked Williams
to kill Teresa. (R. at 1167.) Williams did not make any
firm plans with Jester, but testified I said Id do it, I just
didnt say when or how. (R. at 1168.) Williams also said
he was open for suggestions. (Id.) Later, Jester made more specific
plans with Williams, telling him that the body couldnt turn up missing .
. . and . . . had to be found for insurance purposes.
(R. at 1169.) Jester also gave Williams a .38 caliber pistol
and $300. (R. at 1170-71.)
Later, Williams began putting [Jester] off and was unsure about carrying through with
the murder. (R. at 1168.) Jester contends that this uncertainty establishes
a lack of agreement. The jury was entitled to disagree. At
some point, Williams did agree to participate in Teresas murder, even if he
later changed his mind. Thus, the evidence was sufficient to prove the
existence of an agreement to support Jesters conviction for conspiracy to commit murder.
Indiana Code § 35-34-1-9(a) provides:
Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
are of the same or similar character, even if not part of a
single scheme or plan;
are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
Indiana Code § 35-34-1-11(a) grants a defendant an absolute right to severance for
offenses that have been joined solely on the ground that they are of
the same or similar character.
Jester argues that his motions to sever should have been granted because the
charges were joined solely because they were of the same or similar character.
In addressing this argument, we find Davidson v. State, 558 N.E.2d 1077
(Ind. 1990), instructive. Davidson was convicted of two counts of murder for
the drowning deaths of two of her children. Id. at 1081-82.
Because the drownings occurred several years apart and involved two different children, Davidson
argued that she was entitled to separate trials. Id. at 1082.
This Court disagreed and stated:
In the case at bar, a pattern is evident of insuring an infants life prior to the infants suspicious drowning; the common modus operandi, as well as the same motive, serve to connect the crimes sufficiently to justify joinder for trial over the defendants motion for severance.
Id. at 1083.
In the present case, the evidence demonstrates that the charges arose out of
several acts driven by a single motive: to be rid of Teresa
and collect her insurance proceeds. Moreover, the charges were not unduly complex.
The trial court did not err in ordering them tried together.
Several witnesses, including Judy Carr, Tina Bunker, and Rebecca Blackburn, testified that Teresa
had told them of her belief that Jester was having an affair with
Lisa Fisher, (R. at 607-08, 665-66, 682, 715), and that she considered leaving
Richard, (R. at 609, 1040-41, 1074). In each instance, the defense objected
to the admission of the statements as hearsay and as inadmissible under Rule
We accord the trial court substantial discretion in ruling on evidentiary issues and
will only reverse a hearsay ruling for abuse of discretion.
State, 547 N.E.2d 1073, 1081 (Ind. 1989). Moreover, we will sustain the
trial court if it can be done on any legal ground apparent in
the record. Id.
Only relevant evidence is admissible, and relevant evidence is any evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would
be without the evidence. Ind. Evidence Rule 401. A victims state
of mind is relevant where it has been put at issue by the
defendant. Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995). For
example, in Vehorn v. State, 717 N.E.2d 869 (Ind. 1999), the victims statements
regarding her stormy relationship with the defendant were admissible to contradict the defendants
attempts to downplay their difficulties and his assertions that their problems not uncommon
given the on-again, off-again nature of the relationship. Id. at 873-74.
Jester, however, did not put his relationship with Teresa in issue. In
fact, during its case in chief, the defense offered as its only evidence
two docket sheets from cases involving Mark Williams. Thus, the court erred
in allowing Teresas statements regarding her relationship with Jester into evidence.
An error is not reversible, however, unless it affects the substantial rights of
a party. Fleener v. State, 656 N.E.2d 1140 (Ind. 1995). Here,
the hearsay evidence was merely cumulative of other evidence properly admitted. See
Hicks v. State, 690 N.E.2d 215, 223 (Ind. 1997). There was ample
evidence that Teresa and Jester had often and recently argued. Moreover, Lisa
Fisher testified that she and Jester had in fact been romantically involved.
(R. at 1061-65.) Therefore, the admission of hearsay evidence was cumulative and
is not grounds for reversal.
Under Ind. Code § 35-41-2-4, [a] person who knowingly or intentionally aids, induces,
or causes another person to commit an offense commits that offense. Aiding,
inducing or causing an offense is not a separate offense in itself, but
is, in fact, the basis of liability for the underlying offense of murder.
Thacker v. State, 556 N.E.2d 1315, 1322 (Ind. 1990). Additionally, a
defendant may be convicted on evidence of aiding or inducing even though the
State charged the defendant as the principal. Whitener v. State, 696 N.E.2d
40, 44 (Ind. 1998).
An instruction is proper only if there is some evidence of probative value
to support it. Wisehart v. State, 693 N.E.2d 23, 51 (Ind. 1998),
cert. denied, 119 S. Ct. 1338 (1999). Here, there was such evidence.
The State introduced evidence that Jester twice attempted to induce someone else
to kill his wife, approaching both Mark Williams and James Koutz. Even
if Jester was acquitted of Teresas murder, the jury could have found that
he induced a third person to kill her. Thus, the trial court
did not abuse its discretion by instructing the jury on accomplice liability.