ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Karen M. Freeman-Wilson
Nashville, Indiana Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
SUPREME COURT OF INDIANA
Guilford Forney, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0001-CR-25 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
February 27, 2001
At the meeting, Matthews and Woods exited Reynolds car and walked over to
the automobile where Bankhead and Cornner sat. (R. at 218-20, 285-86.) Cornner
showed Matthews the marijuana that he intended to sell. (R. at 190-91.)
Cornner then got out of Bankheads car and into the back seat
of Reynolds car, with Matthews on his left and Henderson on his right.
(R. at 288-89, 190-91, 195.)
Reynolds drove the car around the back of the mall and Bankhead followed
in his car. Cornners asked several times, Who wants the marijuana, lets
make the deal. (R. at 201-02.) No one in the car
responded to his question. Instead, Reynolds sped the car away from Bankhead
who was still following them. Forney then instructed Matthews and Henderson to
get the money by saying, [G]et the scrill get the scrill. (R.
Suddenly, Henderson pulled out a gun from between the front passenger seat and
the door. (R. at 204, 213, 291.) He pointed the gun
at Cornners stomach and said, Shut up, empty your pockets. (R. at
204, 292.) Cornner raised his hands and allowed Henderson to search his
pockets for money. (R. at 205-06, 292.) During this time, Forney
mess[ed] with the radio and said, [L]ets go to my house. (R.
at 206, 293.)
Cornner then grabbed Hendersons wrist and hand that held the gun. (R. at
206, 293.) As they struggled, Henderson pulled the trigger and the gun
fired a bullet into Reynolds. (R. at 206-07, 294.) Reynolds
head fell onto the steering column and the car sped through the intersection,
over a median and down a ditch. (R. at 207, 294.)
Cornner, Forney, Matthews and Henderson jumped out of the car, leaving Reynolds in
the driver seat. (R. at 207, 235, 294.) The car then
crashed into the window of a furniture store.
After arriving at the scene, a reserve deputy with the Marion County Sheriffs
Department observed Forney standing in a grassy area between the roadway and the
furniture store. (R. at 146.) Forney was visibly upset and crying.
(R. at 146, 162-63.) Forney told the deputy that his cousin
had been shot. (R. at 147, 163.) Reynolds died from a gunshot
wound to the chest.
On April 7, 1999, the State charged Forney and Matthews with felony murder,
conspiracy to commit robbery and robbery. Forney requested a speedy
trial on May 24, 1999. Due to court congestion, the trial was
set for August 2, 1999. Further court congestion caused a postponement, and
the trial finally began on September 13, 1999.
On the first day of trial the State was permitted to amend its
complaint by removing Matthews as a defendant and by inserting Hendersons name as
the unidentified black male companion of Forney. (R. at 22, 60.)
During trial, the court permitted the State to amend again, by removing the
phrase [l]ets do this shit as one of the overt acts Forney performed
in furtherance of an agreement to rob Cornner. (R. at 60-61, 314-15,
A jury found Forney guilty of felony murder, conspiracy to commit robbery, and
robbery. He was sentenced to concurrent terms of fifty-five years, thirty years,
and thirty years on the respective counts.
When reviewing convictions for sufficiency of the evidence, we look to the evidence
most favorable to the verdict and all of the reasonable inferences that evidence
provides. Baker v. State, 273 Ind. 64, 66, 402 N.E.2d 951, 953
(1980) (citations omitted). We do not reweigh the evidence or determine the
credibility of witnesses. In addressing an insufficiency claim, we determine whether there
was substantive probative evidence to support the judgment. Id. If a
reasonable trier of fact could have found the defendant guilty, we will affirm
the decision of the trial court. Id.
Conspiracy to Commit Robbery. To sustain a conviction for the conspiracy to commit robbery, the evidence must show: 1) the intent to commit a robbery; 2) the agreement with another to commit a robbery; and 3) an overt act performed by the defendant or the person with whom the defendant has entered into the agreement. Ind. Code Ann. § 35-41-5-2 (West 1998). Forney challenges the second element, asserting that there was no evidence that he made an agreement with Henderson to rob Cornner. (Appellants Br. at 10.)
As we recently reiterated, the State need not prove the existence of a
formal, express agreement in order to carry its burden in a conspiracy case.
Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000). Rather, circumstantial
evidence may be sufficient to prove the existence of a conspiracy. Id.
The State supported Forneys conspiracy charge with the testimony of Cornner, the robbery
victim. Cornner met with Forney, Henderson, Reynolds and Matthews in order to
sell marijuana to them. Cornner got into the car with the men
and attempted to begin the transaction. Neither Forney nor the other passengers
responded when Cornner stated, [L]ets make the deal. (R. at 201-02.)
Instead, Reynolds increased the cars speed in order to elude Bankhead, who was
following them. As the car accelerated, Forney stated, Get the scrill, meaning
get the money. (R. at 203.) Upon this instruction, Henderson grabbed
a gun, stuck its barrel in Cornners stomach and demanded his money.
Although Forneys instruction to get the money could have multiple meanings, the jury apparently concluded that it was uttered in furtherance of an agreement by Forney and Henderson to rob Cornner of his cash. This was a reasonable conclusion. Moreover, Cornners testimony revealed that Henderson grabbed a gun from between the front passenger seat and the front door. The jury could have reasonably concluded that Forney handed the gun to Henderson as Forney instructed him to get the money. The evidence was sufficient to establish that Forney conspired to rob Cornner.
Robbery. To convict Forney as charged, the State needed to establish that he knowingly or intentionally took property from Cornner by using or threatening to use force or by putting him in fear, which resulted in serious bodily injury to another. See Ind. Code Ann. § 35-42-5-1 (West 1998). Even if the evidence did not show that Forney himself robbed Cornner, he may nevertheless be convicted for the robbery as an accomplice. See Ind. Code Ann. § 35-41-2-4 (West 1998)(A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense . . . .)
Forney correctly states that mere presence at the crime is not enough.
Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981). Forney, however, was
not merely in the car. Just before the robbery, Forney gave an
instruction to get the [money]. (R. at 203.) After this statement,
Henderson reached for a gun that was located next to Forney. During
the robbery, Forney distracted himself with the car radio and suggested that the
group go to his home.
As we indicated in Wright v. State, 690 N.E.2d 1098, 1106 (Ind. 1997),
[P]resence at the scene, together with evidence as to defendants conduct before, during
and after the crimes which tends to show complicity, can support an inference
of participation in the crimes. A jury can infer participation from a
defendants failure to oppose the crime . . . . Harris, 425
N.E.2d at 156. Consequently, the jury could reasonably infer that Forney participated
in the robbery of Cornner by instructing Henderson to get the money, handing
him a gun, acquiescing in the crime and directing the driver where to
go after the robbery was completed.
As an accomplice, Forney did not have to participate in each and every
element of the robbery in order to be convicted of it. See
McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998) ([A]n accomplice is criminally
responsible for all acts committed by a confederate which are a probable and
natural consequence of their concerted action.)(quoting Vance v. State, 620 N.E.2d 687, 690
Felony Murder. The State charged Forney with kill[ing] another human being, that
is: Jamar Reynolds, while committing or attempting to commit [r]obbery. (R. at 60.)
Similar to the robbery charge, Forneys murder charge was based upon accomplice
liability. The evidence discussed above as adequate to convict Forney of robbery
is also sufficient to convict him of Reynolds murder, which was a natural
and probable consequence of the robbery. Wright, 690 N.E.2d at 1110.
The fact that the robbery resulted in the death of a co-perpetrator does
not save Forney from criminal liability for murder. As we have previously
observed, the felony murder rule
See footnote applies when, in committing any of the designated
felonies, the felon contributes to the death of
any person. Palmer v.
State, 704 N.E.2d 124, 126 (Ind. 1999)(emphasis added); See also Jenkins v.
State, 726 N.E.2d 268, 269 (Ind. 2000)(rejecting defendants contention that felony murder statute
does not impose criminal liability for murder when resulting death is that of
co-perpetrator). Therefore, it matters not whether the death caused is that of
the intended victim, a passerby or even a co-perpetrator.
On the first day of trial the court permitted the State to amend
its complaint by removing Matthews as a co-defendant and by inserting Hendersons name
as the unidentified black male companion of Forney. (R. at 22, 60.)
During the trial, the court permitted the State a second amendment;
it removed the phrase [l]ets do this shit as one of the overt
acts Forney performed in furtherance of an agreement to rob Cornner. (R.
at 60-61, 314-15, 343-44.)
Forney argues that the first amendment was prejudicial because it served to diminish Mr. Matthews role, if any, in the incident, thus buttressing his credibility as a states witness in the eyes of the jurors. (Appellants Br. at 18.) He urges that the amendment prejudiced his defense to the conspiracy charge which relied on Matthews testimony as to a lack of an agreement with Forney.
Forney also asserts that he was prejudiced by the removal of the phrase
describing one of his alleged overt acts. He argues the removal of the
phrase told the jury that the state did not need to prove everything
it alleged against Mr. Forney in order to sustain a conviction. (Id.)
The State may amend an information at any time before, during, or after the trial . . . in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant. Ind. Code Ann. § 35-34-1-5(c)(West 1998).
Forney asserts that removing Matthews name prejudicially strengthened Matthews credibility. Matthews own
testimony, however, revealed that he was a co-defendant and that he had been
given use immunity. (R. at 278-80.) Matthews also testified that
he was with Forney on the night of the robbery to deal in
marijuana. The jury had adequate information to determine what credibility to give
Matthews testimony. The amendment did not prejudice Forneys substantial rights.
The same is true with inserting Henderson in lieu of the description of
an unidentified black male. We held in Radford v. State, 468 N.E.2d
219, 222 (Ind. 1984), that it was not prejudicial to a substantial right
to replace the description of a confidential informant with that informants name, where
the appellant had sought the name in the days prior to the trial.
Forney previously knew of Hendersons involvement. At trial, Forneys counsel stated,
I have no objection with now adding the name Corey Henderson since hes
been apprehended. (R. at 124.)
Finally, the removal of an alleged overt act from Forneys information did not
prejudice his substantial rights. In Haak v. State, 695 N.E.2d 944 (Ind.
1998), the defendant claimed he was prejudiced when the State amended the charging
information by deleting one of the overt acts allegedly taken in furtherance of
the conspiracy. We held there as we do here that [b]ecause
the amendment only reduced the possible grounds on which the jury could find
one element of conspiracy, there was no unfair surprise. Id. at 952.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., is not participating.