Opinion
No. 38A05-1008-CR-510
09-15-2011
ADDISON PIJNAPPLES, Appellant- Defendant, v. STATE OF INDIANA, Appellee- Plaintiff
ATTORNEY FOR APPELLANT : MARK SMALL Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
MARK SMALL
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE JAY CIRCUIT COURT
The Honorable Brian D. Hutchison, Judge
Cause No. 38C01-0809-MR-0004
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB , Chief Judge
Case Summary and Issue
Following a jury trial, Addison Pijnapples appeals her conviction for murder, a felony. The sole issue for review is whether sufficient evidence was presented to sustain her conviction. Concluding that sufficient evidence was presented, we affirm.
Ms. Pijnapples's name is spelled differently in various parts of the appellate record. In this opinion, we follow the spelling used in her notice of appeal. Appellant's Appendix at 1. Neither the spelling of her name nor her identity is at issue.
Facts and Procedural History
Pijnapples was one of five people involved in the killing of Shawn Buckner and attempted cover-up of the crime. On September 7, 2008, Pijnapples, her husband, Tina Whiting, and two other men drank heavily and used prescription pills while watching a football game on television at Whiting's apartment. When they ran out of pills, Whiting told the group she could get more pills from Shawn Buckner. The group agreed to a plan to lure Buckner to Whiting's apartment, beat him up, and take the pills.
Whiting and Pijnapples left in search of Buckner, soon found him, and successfully lured him to Whiting's apartment with promises of sex. Once inside, Pijnapples repeated a pre-determined code phrase, and the three men jumped out and attacked Buckner. They repeatedly punched Buckner in the face, kicked him in the ribs, and stomped on his head. The men continued to hit and kick Buckner all over his body, until Buckner stopped moving and lay on the kitchen floor. When Buckner began calling out, the men began kicking him again. One of the men attempted to strike Buckner in the head with a statue, but redirected the statue mid-air when the others protested; the statue only grazed Buckner's head. Whiting encouraged the men to continue the attack by yelling that she knew Buckner had pills. The men removed Buckner's shoes and pants, which Pijnapples and Whiting searched and found twenty dollars but no pills. Buckner was moaning and swaying on the floor, and one of the men put a beanbag-type object in his mouth to quiet him. As the group thought of ways to quiet Buckner, Pijnapples suggested choking him. The men attempted to strangle Buckner with a blanket.
At some point, the group decided to move Buckner from the apartment. One of the men requested a knife, but did not take the large knife that Whiting provided. The men wrapped his badly beaten body in a blanket and placed him in the back of a car. Whiting and Pijnapples then left with Buckner's twenty dollars to purchase more beer and cigarettes for the group. The men left in a different direction, and planned to leave Buckner outside a bar. The men continued to punch Buckner while they drove until they turned down a gravel road to a cornfield. They removed Buckner from the car, stabbed him multiple times in the torso, and slit his throat several times with a fillet knife that they took from Whiting's home. The men returned to Whiting's apartment and began a massive clean-up to eliminate evidence of the attack. Pijnapples and Whiting returned to Whiting's apartment with beer and cigarettes and joined the clean-up effort. The group burned some items, drank the beer, and smoked the cigarettes. A couple of days later, Pijnapples accompanied her husband and one of the other men to move Buckner's body from the cornfield and bury it in a shallow grave behind a friend's barn.
The State charged Pijnapples with murder and robbery resulting in bodily injury, and the jury found her guilty of both charges. The trial court found that double jeopardy principles precluded Pijnapples's conviction of both charges, entered a judgment of conviction only as to murder, and sentenced Pijnapples, following a hearing, to fifty-five years in prison. Pijnapples now appeals her conviction.
The charging information and final jury instructions refer to the statutory number and elements of felony murder, that is, a murder resulting from the commission of an underlying felony, here robbery. The abstract of judgment, however, erroneously refers to the statutory paragraph of intentional murder. We remand this case for the trial court to correct its error and enter a judgment of conviction as to felony murder, under Indiana Code section 35-42-1-1(2). While this has no bearing on the conviction or sentence, it does shape our discussion below.
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Discussion and Decision
I. Standard of Review
When reviewing the sufficiency of the evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of witnesses. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). When confronted with conflicting evidence, we consider it in a light most favorable to the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We must affirm the conviction if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find all elements of the crime proven beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
II. Accomplice Liability for Murder
Pijnapples was convicted of murder as an accomplice pursuant to Indiana Code section 35-42-1-1, relating to murder, and section 35-41-2-4, relating to accomplice liability. Under Indiana law, an accomplice is liable for all actions by confederates which were probable and natural consequences of a common plan. Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000). Pijnapples implicitly concedes a murder occurred, but challenges the sufficiency of the evidence as to her accomplice liability for Buckner's murder.
In determining whether a person aided another in the commission of a crime, our supreme court has long considered the following four factors:Berry v. State, 819 N.E.2d 443, 450 (Ind. Ct. App. 2004), trans. denied.
(1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant's conduct before, during, and after the occurrence of the crime.
Pijnapples was not present when Buckner was actually killed, but she was present at Whiting's apartment, which is part of the scene of this crime. Pijnapples executed the group's plan by luring Buckner to Whiting's apartment, and watching and contributing to the severe beating. Pijnapples was also present at Whiting's apartment while they all cleaned up to cover-up Buckner's killing. In any event, our supreme court has held that one may be held liable as an accomplice even if not present during a murder committed by another. Wieland v. State, 736 N.E.2d 1198, 1203 (Ind. 2000).
As to companionship with others engaged in criminal activity, Pijnapples's husband was one of the three men who severely beat Buckner and eventually slit his throat. The only way that Pijnapples attempts to distance herself from her husband is by stating that she was reluctant to return to the field where her husband and others left Buckner's dead body two days earlier. But this purported reluctance does not mean she lacked "companionship" with her husband. The reluctance could stem from regret over what she or others did or did not do, fear of incriminating herself by visiting the scene of the murder, simple disgust with seeing and smelling Buckner's body, or any other reason.
In addition, Pijnapples was a friend and companion to the other three involved in the murder. The group drank heavily and used prescription pills together prior to approaching Buckner that evening and apparently were companions before and after the killing.
Pijnapples next argues that she did not fail to oppose the crime, and in fact attempted to stop the men from attacking Buckner. But Pijnapples gave the signal for the men to jump out and begin the beating. Pijnapples encouraged the men to continue by yelling that Buckner had pills in his pants. When the men removed Buckner's pants, Pijnapples searched them for pills. As the group was thinking of ways to silence Buckner's shouting, Pijnapples suggested choking him. She also stomped on his face and chest several times, and later used the little money that she found in his pants to purchase beer. In this context, and viewing the evidence in a light most favorable to the conviction, sufficient evidence was presented that, at the very least, Pijnapples failed to oppose the crime. While Pijnapples highlights some testimony to the contrary, we do not reweigh evidence and the only issue before us is whether sufficient evidence was presented to sustain the conviction.
As to Pijnapples's conduct before, during, and after the crime, we reiterate what we have noted already - Pijnapples was involved in the group's planning beforehand to physically harm Buckner and steal pills from him, she was the one who signaled for the men to jump out and begin beating Buckner, she yelled that the pills were in Buckner's pants and searched those pants when removed, she participated in the beating of Buckner, and after his killing she participated in cleaning the apartment and moving the body to cover-up the crime.
Reviewing the facts in terms of the four factors for determining accomplice liability, we conclude that sufficient evidence of Pijnapples's liability as an accomplice to murder was presented, and as a result, her conviction of murder should be sustained.
Pijnapples also argues the murder did not occur during her perpetration of a felony because the men killed Buckner while Pijnapples was on her way to get more beer. Our supreme court addressed the same argument in Mauricio v. State, 476 N.E.2d 88 (Ind. 1985). In Mauricio, the defendant rode away on a stolen snowmobile and was not present when his compatriot shot and killed the owner of the snowmobile. Our supreme court concluded that the "robbery and shooting were so closely connected in point of time, place and continuity of action as to constitute one continuous scheme or transaction," and therefore affirmed his murder conviction. Id. at 92.
Here too, we conclude that the robbery and killing of Buckner were so closely connected to constitute one continuous scheme. Although Pijnapples and Whiting took Buckner's money and left, Pijnapples knew that the men wrapped Buckner in a blanket, grabbed a knife even though Buckner was badly beaten and near defenseless, and headed in a different direction with plans to meet Pijnapples and Whiting at the apartment again soon.
Pijnapples argues that the change of plans from leaving Buckner at a bar to killing him in a cornfield with a knife separate the robbery from the murder and absolve Pijnapples of liability for murder. We disagree. The following portion of a handwritten statement to police by Whiting reveals Pijnapples's extensive involvement and sufficiently supports the conclusion that the robbery and murder were part of one continuous scheme:
. . . then [Pijnapples] stomped on him, chest face, with her foot 3-4 Times. Someone Asked for A blanket. blood was every were. . . . [Pijnapples] was saying choke him out . . . . 3 guys struck [Buckner] some more. Hitting And Kicking then Asked me for A Knife I said I didn't have one then I remberred I had A big Knife in the bedroom but thay Did'nt want it.Exhibits, State's Exhibit 87 at 4-6.
thay Said thay were going to take care of him when thay got him where thay were takeing him. . . . [A]fter that I left the guys told us to leave After thay give us 20 dollars . . . .
Although all elements of robbery were met when Pijnapples and Whiting left, Pijnapples's compatriots killed Buckner soon thereafter and the circumstances indicate the crimes occurred as part of one continuous scheme. Therefore, Pijnapples was an accomplice to felony murder.
Conclusion
Sufficient evidence was presented to sustain Pijnapples's conviction, and therefore we affirm. We remand, however, for the trial court to correct the abstract of judgment to reflect Pijnapples's conviction pursuant to Indiana Code section 35-42-1-1(2).
Affirmed and remanded. BARNES, J., and BRADFORD, J., concur.