ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven L. Bohleber Karen Freeman-Wilson
Evansville, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
SUPREME COURT OF INDIANA
MARK DUNCAN ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. ) 82S00-9812-CR-820 STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
September 22, 2000
SHEPARD, Chief Justice.
The appellant Mark Duncan was convicted by jury of murder, felony murder, robbery, and auto theft, following the death of Steven Glaser. The trial court sentenced Duncan to a total of seventy-three years on the murder and robbery counts.
Duncan presents three issues in this direct appeal:
Was there sufficient evidence to support the convictions for murder and robbery?
Did the trial court properly admit photographs depicting the victims injuries?
Did the court violate Duncans right against double jeopardy by convicting and sentencing
him on murder and robbery?
In reviewing a sufficiency claim, we do not reweigh the evidence or assess
the credibility of the witnesses. Instead, we look to the evidence and
reasonable inferences drawn therefrom that support the verdict and will affirm the convictions
if there is sufficient probative evidence from which a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Bonds v. State, 721
N.E.2d 1238, 1241-42 (Ind. 2000).
To convict Duncan of murder, the State was required to prove beyond a reasonable doubt that Duncan knowingly or intentionally killed Steven Glaser. Ind. Code Ann. § 35-42-1-1 (West Supp. 1999).
The evidence most favorable to the verdict reveals that Duncan was involved in a romantic relationship with Sonya Hulfachor, his co-defendant at trial. Hulfachor had previously been involved romantically with Glaser. On October 8, 1997, Hulfachor called Glaser in Indianapolis and asked him to meet her in Evansville. That evening, she met him outside a bar in Evansville. They drove around in Glasers truck for several hours smoking crack cocaine and eventually arrived at an abandoned house.
After Hulfachor and Glaser entered the house, Duncan arrived through the back door
and struck Glaser several times in the head with a hammer.
See footnote Hulfachor
and Duncan then left Glaser on the floor of the abandoned house, took
his truck, and fled to Henderson, Kentucky.
An autopsy revealed that Glaser died of a craniocerebral blunt force injury. (Supp. R. at 53.) Blood taken from clothing worn by Duncan and Hulfachor on the evening of the murder matched blood samples taken from Glaser.
Duncan argues that the evidence is insufficient because he had an alibi establishing that he was out of town when Glasers fatal injuries were inflicted. Specifically, he asserts that he and Hulfachor were driving to Tulsa, Oklahoma at the established time of Glasers death. Even assuming this is true, it does not rule out the possibility, in fact, the probability, that Glaser died from wounds inflicted several hours earlier. Indeed, the coroner testified that Glaser could have survived with the inflicted head wounds for up to twenty-four hours before dying. (R. at 878-79.) We rely on juries to resolve conflicts in evidence. Here, a reasonable jury could well conclude that Duncan murdered Glaser. See footnote
The admission of cumulative evidence does not itself warrant a new trial; an
appellant must show that unfair prejudice flowing from the evidence outweighs its probative
Wagner v. State, 474 N.E.2d 476 (Ind. 1985). Photographs depicting
the victims injuries or demonstrating a witnesss testimony are generally admissible and will
not be rejected merely because they are gruesome or cumulative. Harrison v.
State, 699 N.E.2d 645 (Ind. 1998). We review the trial courts ruling
for an abuse of discretion. Id. at 648.
Three photographs are at issue; each shows Glasers wounds at a different angle.
Thus, they are not wholly cumulative. The photographs also establish the
cause of death and the manner in which the crime was committed.
This evidence is particularly probative inasmuch as Duncan tried to establish that, although
he struck Glaser in the head with a hammer, he did not cause
Glasers death. (Appellants Br. at 9-14.) We do not see an
abuse of discretion by the trial court.
We analyze double jeopardy claims under Richardson v. State, 717 N.E.2d 32 (Ind.
1999). In Richardson, this Court developed a two-part test for determining whether
two convictions are permissible. We explained that two offenses are the same
offense and thus violate double jeopardy 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. Id. at 49.
Duncan makes no claim under the statutory elements test, and we see none.
As for the actual elements test, the facts support convictions for two
separate acts, despite their temporal proximity. Duncan and Hulfachor struck Glaser, then
left him bleeding on the floor. The two then went outside and
looked at [Glasers] truck and went to the truck. (R. at 1017.)
Finding keys in the ignition, the two fled the scene.
Duncans convictions for robbery and murder are not the same offense, and there
has been no double jeopardy violation.