Opinion
23A-CR-2935
07-15-2024
Leta L. Jasmantas, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Offices Logansport, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Cass Superior Court The Honorable James K. Muehlhausen, Judge Trial Court Cause No. 09D01-2005-F6-118
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Offices Logansport, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Hearing gunshots in the woods behind her house, Leta Jasmantas grabbed her pistol, went outside, and intermittently fired several shots toward the noise. Unknown to Jasmantas, two neighbors and two police officers were in the woods and several bullets struck near them. After Jasmantas admitted to shooting into the woods that day, the State charged her with criminal recklessness, and a jury found her guilty of the crime.
[¶2] Jasmantas now appeals her conviction, arguing that the State was never clear of which reckless act she was accused-shooting near her neighbors or shooting near the police officers. Accordingly, Jasmantas claims her constitutional right to a unanimous verdict was violated. We affirm.
Facts
[¶3] The trouble started when the Englert family saw a "prowler or a peeping tom" peeking into their family home. Tr. Vol. II, p. 104. Andrew and Michael Englert each grabbed a gun and raced outside to the woods behind their home. Believing he saw the unidentified man, Andrew shot toward the tops of some trees. The two headed deeper into the woods to continue their pursuit. As they advanced through the woods, six bullets struck trees near them. The pair ducked for cover and called 911 before returning home. Cass County Sheriff's Deputies John O'Connor and Tyler Hanna arrived 10 minutes later to pick up the prowler's trail.
[¶4] When Deputies O'Connor and Hanna were about ten yards away from where Andrew and Michael had abandoned their pursuit, a bullet hit a tree directly above the deputies' heads. The deputies threw themselves to the ground and vocally identified themselves as law enforcement. Receiving no response, they held their position until backup arrived. Despite using advanced technology, including drones with heat tracking capabilities and a helicopter, no suspect was ever located in the woods.
[¶5] Jasmantas lived about a quarter of a mile from the Englerts. When police eventually interviewed her about the events in the woods, Jasmantas admitted hearing gunshots in the woods north of the Englerts' home. She reported grabbing her loudest gun and firing it six times over a period of about ten minutes. Afterward, Jasmantas heard human voices and began shooting toward them, with four- to five-minute pauses between some of her shots and one-minute pauses between others.
[¶6] Believing that Jasmantas was the cause of the bullets that struck near Andrew, Michael, and Deputies O'Connor and Hanna, the State charged her with criminal recklessness, a Level 6 felony. At first, the charging information alleged that Jasmantas endangered Andrew and Michael. But a week after the information's filing, the State amended it to allege Deputies O'Connor and Hanna as the victims. The State later amended the charging information a second time to remove reference to any specific individual. In its final form, the information simply alleged that Jasmantas "did recklessly, with a deadly weapon, perform an act, that created a substantial risk of bodily injury to another person." App. Vol. II, p. 89.
[¶7] Four days before her jury trial, Jasmantas moved to dismiss the State's case. She alleged that her due process rights were violated because "the information failed to inform her as to who she supposedly endangered." Id. at 114 (cleaned up). The trial court considered the issue at the outset of trial but delayed its ruling until the State had presented its case in chief. When the State rested, the court denied the motion to dismiss. It also denied Jasmantas's motion for a directed verdict, which she brought on similar grounds.
[¶8] Prior to jury deliberations, Jasmantas unsuccessfully objected to the proposed jury instructions, again arguing that it was unclear which individuals were allegedly endangered by her reckless act. But she did not offer any alternative instructions. The jury ultimately found Jasmantas guilty as charged. The trial court imposed a one-year, fully suspended sentence.
Discussion and Decision
[¶9] Jasmantas challenges her conviction, arguing that the State repeatedly refused to specify for which act she was being prosecuted: shooting near her neighbors or shooting near the sheriff's deputies. Jasmantas complains she was deprived of her constitutional right to a unanimous verdict because some jurors may have relied on different evidence than the other jurors in finding her guilty of criminal recklessness.
The State asserts that Jasmantas waived this argument by failing to properly argue it before the trial court. Therefore, according to the State, Jasmantas's appeal should be reviewed only for fundamental error. See Baker v. State, 948 N.E.2d 1169, 1177-78 (Ind. 2011) (reviewing jury unanimity issue for fundamental error where defendant did not properly preserve issue for his appeal). Jasmantas responds by stating that "[o]n five separate occasions, [she] informed the trial court" about her objections on the jury unanimity issue. Reply Br., p. 7 (emphasis in original). Setting aside a few minor errors with Jasmantas's objections, we agree that she ultimately preserved the jury unanimity issue and thus address her appeal on its merits.
I. Jury Unanimity
[¶10] In Indiana, "[i]t is beyond citation" that the jury's verdict, whatever the result, "must be unanimous.” Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973). To that end, a jury must unanimously agree either (1) that the defendant committed the same acts; or (2) that the defendant committed all the acts alleged. Baker v. State, 948 N.E.2d 1169, 1177-78 (Ind. 2011). Typically, the State "designate[s] which specific act or acts" the defendant is being charged with through the charging information. Id. at 1178.
Jasmantas, though, grounds her claim in Article 1, § 12 and Article 1, § 13 of the Indiana Constitution. Appellant's Br., p. 8.
[¶11] But if the State chooses not to specifically delineate the charged acts, the trial court must give a "special" unanimity instruction, which is more detailed than a general unanimity instruction. Baker v. State, 223 N.E.3d 1142, 1144 (Ind.Ct.App. 2023) (describing the jury instruction outlined in Baker, 948 N.E.2d at 1177-79). This special unanimity instruction informs the jurors "that they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all the acts alleged." Id. The State concedes that the unanimity instruction given at Jasmantas's trial did not do this.
This Court of Appeals case bears no relationship to our Supreme Court's Baker decision cited above.
The given unanimity instruction read:
To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only after considering the evidence with the other jurors.... The foreperson should sign and date the verdict to which you each all agree. Do not sign any verdict form for which there is not unanimous agreement.Tr. Vol. II, pp. 166-67.
[¶12] Yet the State contends that no special unanimity instruction was necessary. It seeks shelter under an exception providing that "where multiple similar acts are part of one continuous episode, this special unanimity instruction isn't required." Id. Called the continuous-crime doctrine, the exception applies when "actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind.Ct.App. 2010)).
[¶13] We agree with the State that Jasmantas's acts constitute a single transaction. Jasmantas fired several rounds of gunshots over a period of about twenty minutes. She stated that there was a one-minute pause between some shots and a four- to five-minute pause between others. All the gunshots also stemmed from the same stimulus: voices and other gunshots coming from the woods behind Jasmantas's home. Thus, Jasmantas fired her gun each time with the same purpose, in the same place, and within a compressed period of time.
[¶14] Indeed, this Court has already found a similar scenario to be a continuous event. In Yost v. State, a thirty-minute shooting spree-with intermittent shooting-was held to be continuous conduct. 150 N.E.3d 610 (Ind.Ct.App. 2020). The defendant in Yost, experiencing withdrawal symptoms from his mental health medication, had fired four rounds of gunfire from inside his home. There were about two-minute pauses between some gunshots and gaps of eight to ten minutes between others. This Court found the defendant's actions were a continuous event because they all occurred from the same spot, for the same reason, and in the "relatively short period of time" of twenty minutes. Thus, the "[t]he four rounds of gunfire were a 'connected series of offenses that were closely related in time, place, and circumstance.'" Id. (quoting Purdy v. State, 727 N.E.2d 1091, 1092 (Ind.Ct.App. 2000)); see also Benson v. State, 73 N.E.3d 198, 202-03 (Ind.Ct.App. 2017) (finding a 90-second shooting with two gunshots fired at the same victim to be a continuous event).
We note that Yost was not applying the continuous crime doctrine per se, but rather the definition from the Indiana Code of an "episode of criminal conduct." 150 N.E.3d at 614-615 (citing Ind. Code § 35-50-1-2(b)). The definitions are nearly identical, with an episode of criminal conduct being defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance," id., and the continuous-crime doctrine definition reading "actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction," Walker, 932 N.E.2d at 735.
[¶15] Unconvinced by the similar facts of Yost, Jasmantas points to two other decisions she believes warrant the relief she requests. The first, Baker v. State, involved a defendant charged with three counts of child molestation, one for each of the three victims. But in making its case, the State presented evidence that he molested each girl multiple times on separate occasions over three years. 948 N.E.2d at 1177. Our Supreme Court held that these facts would have required the "special" unanimity instruction, if not for the defendant's waiver of the issue. And in Castillo v. State, this Court reversed a conviction for dealing in cocaine because it was "possible," given the facts, "that some jurors believed [the defendant] committed the earlier dealing crime . . . while other jurors believed [the defendant] committed the dealing violation . . . later that day." 734 N.E.2d 299, 304 (Ind.Ct.App. 2000).
[¶16] Neither Baker nor Castillo supports ruling for Jasmantas. First, Baker and Castillo did not involve the continuous crime doctrine. As already explained by this Court, "When our Supreme Court, in its Baker decision, used the phrase 'a greater number of separate criminal offenses than the defendant is charged with,' it was referring to situations where evidence is presented of entirely separate criminal incidents, each of which could be used to support a conviction." Baker, 223 N.E.3d at 1146 (quoting Baker, 734 N.E.2d at 1175). Similarly, Castillo, decided over a decade before our Supreme Court's decision in Baker, never referenced the continuous crime doctrine. Lastly, as a factual matter, both cases presented conduct that would have failed the test for a continuous act.
[¶17] In sum, because the State presented evidence that Jasmantas engaged in a single continuous act of shooting, the trial court did not err in failing to give a special unanimity instruction.
[¶18] Affirmed.
Mathias, J., and Tavitas, J., concur.