NAJAM, Judge.
Lee Travis Griffin appeals his convictions for robbery, as a Class A felony; burglary, as a Class A felony; and felony murder, following a jury trial. Griffin presents three issues for review:
We affirm.
On the night of December 27, 2012, Tyler Jordan, Autumn Jordan, and Christine Jordan gathered at the home of Kent and Sandra Price ("the home"), who are relatives of the Jordans. Also present at the home was Kent's daughter, Klarisa, and a few of her friends.
At approximately 9:30 p.m., Tyler made his way from the home's second-floor bedroom to the home's first floor kitchen, located at the rear of the home. While there, Tyler heard a knock on the back door, which entered into the kitchen. When Tyler pulled back the door's curtains to see outside, Walter Neely forced open the door and entered the home. Neely grabbed a knife from the kitchen butcher block and cut Tyler's hands before pushing him to the floor. Four other men, including Griffin, then entered the home wearing ski or surgical masks.
After the men entered, one of the men climbed on top of Tyler, placed his hand over Tyler's mouth, and instructed him "to shut up, to be quiet." Tr. at 126 (Sept. 10-11, 2013) (hereinafter "Sept. 10 Tr.").
When Tyler regained consciousness, he "didn't look up" but heard the man searching the basement. Id. at 128. The man noticed that Tyler was awake and asked Tyler whether he or his uncle knew the codes to the Prices' safes. The man then went upstairs, but, before doing so, he pointed his gun at Tyler, cocked it, and commanded him, "[D]on't move or I'll kill you." Id. Tyler could hear screaming and stomping emanating from the home's upper levels.
Thereafter, at least two men — Neely and the man with the gun — "busted through the door" to a second-floor bedroom where everyone but Klarisa and her friends had gathered. Id. at 167. The two men stormed into the room. Kent was knocked down, and Christine, who jumped onto Neely, was "slung" to the ground. Id. Neely swung at both Kent and Christine with the knife. The second man pointed the gun at Christine, threatened her life, and ordered her to the bathroom. He also threatened to kill Sandra.
The men demanded money, jewelry, guns, and the home's safes, and they ransacked
At some point, Klarisa and her friends were able to call 9-1-1. Christine had also managed to call 9-1-1. Officers with the South Bend Police Department responded to the calls and surrounded the home. As the intruders attempted to flee the home, the police apprehended them. Griffin was among those apprehended, and he was still inside the house when the police ordered him out. Griffin, accompanied by another intruder, exited through the home's rear entrance. When officers arrested him, Griffin wore black clothes and a surgical mask but was unarmed.
When the officers entered the home, they discovered Kent and Sandra had sustained serious injuries from knife wounds from Neely's attack. Sandra subsequently died from her injuries, which included a wound to her neck. The officers also found several items of property collected at the rear door of the home and a black duffel bag full of the Prices' property in the dining room.
Officers transported Griffin to the South Bend Police Department. En route, without being prompted or questioned, Griffin repeatedly expressed that he knew he had acted wrongfully and stated that "he messed up, he messed up, he even drug his brothers into this." Id. at 55. While awaiting formal questioning at the station, Griffin talked to himself, and he expressed his belief that no confession would be needed because he and his confederates had been caught, would tell the same story, and he would go to prison.
The following day, the State charged Griffin with two counts of robbery and two counts of burglary, all as Class A felonies. After Sandra died, the State amended its information and charged Griffin with two counts of felony murder, which corresponded to the State's allegations that Griffin had committed robbery and burglary against Sandra. The State's allegations of robbery were based on a theory of accomplice liability.
The court held Griffin's jury trial on September 10 through September 12, 2013. At trial, the State called Dr. Joseph Prahlow, a forensic pathologist, to testify regarding Sandra's cause of death. During the examination, the State offered Exhibits 42, 43, and 44, which were autopsy photographs that depicted the knife wounds to Sandra's face and neck. Griffin objected to the admission of these photographs on the basis that they were gruesome and showed medically-altered wounds. The trial court admitted the photographs over Griffin's objection.
At the close of trial, Griffin proffered to the trial court his Jury Instruction No. 1, which read:
Appellant's App. at 117. The trial court concluded that Griffin's proposed Jury Instruction No. 1 required a prior finding "that the only evidence on the actus reus of the offense was circumstantial," which the court did not consider appropriate. Tr. at 4-5 (Sept. 12, 2013) (hereinafter "Sept. 12 Tr."). Thus, the court refused to give Griffin's proposed instruction.
The jury convicted Griffin on all counts. The trial court entered its judgment of conviction on Count II (robbery of Kent), Count IV (burglary with injury to Tyler), and Count V (felony murder, with the underlying felony being the robbery of Sandra).
Griffin first contends that the State presented insufficient evidence to support his robbery conviction. In essence, Griffin maintains that the evidence shows only that: (1) at best, he was merely present at entry and on the first floor of the home and was not a direct participant in the robberies, which occurred on other floors of the home; and (2) for the same reason, he had no knowledge that the robberies were being perpetrated. Our standard of review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind.2000).
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct.App.2013) (citations omitted) (internal quotation marks omitted).
In order to prove robbery, as a Class A felony, the State was required to show that Griffin knowingly or intentionally took property from another person, or from the presence of another person, by force or threat of force on any person or by putting any person in fear, which resulted in serious bodily injury to someone other than Griffin. Ind.Code § 35-42-5-1. The State charged Griffin as an accomplice, and "[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense...." Ind.Code § 35-41-2-4. Therefore, "[i]t is not necessary that the evidence show the accomplice personally participated in the commission of each element of the offense." Wilson v. State, 455 N.E.2d 1120, 1123 (Ind.1983). "[T]he acts of one accomplice are imputed to all." Collier v. State, 470 N.E.2d 1340, 1342 (Ind.1984). So long as the State shows that one participated in the commission of an offense as an accomplice, the accomplice "is criminally responsible for everything which follows incidentally in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as part of the original design or common plan...." Johnson v. State, 605 N.E.2d 762, 765 (Ind. Ct.App.1992) (citations and quotations omitted), trans. denied.
"The particular facts and circumstances of each case must be considered in determining whether a person participated in the commission of an offense as an accomplice." Peterson v. State, 699 N.E.2d 701, 706 (Ind.Ct.App.1998). For Griffin's conviction to stand, "there must be evidence of [his] affirmative conduct, either in the form of acts or words, from which an inference of a common design or purpose to effect the commission of a crime may be reasonably drawn." Id. "Each participant must knowingly or intentionally associate himself with the criminal venture, participate in it, and try to make it succeed." Cohen v. State, 714 N.E.2d 1168, 1177 (Ind.Ct.App.1999), trans. denied. That said, the State need
While it is true that mere presence at the scene of a crime is insufficient to make one an accomplice, the Court may consider presence in conjunction with other factors that tend to show that one acted as an accomplice to a crime. See Peterson, 699 N.E.2d at 706. There are four factors relevant to this inquiry, each of which Griffin asserts the State failed to show: "(1) presence at the scene of the crime; (2) companionship with another at the scene of the crime; (3) failure to oppose commission of crime; and (4) course of conduct before, during, and after occurrence of crime." Bruno v. State, 774 N.E.2d 880, 882 (Ind.2002).
The evidence shows that Griffin, dressed in black and wearing a mask, broke and entered the home with four other men. He entered only after Neely cut Tyler's hands with a knife and pushed him to the floor. Griffin did not stop this assault or protest Neely's actions. Police apprehended Griffin at the scene, and Griffin was still in the home when the officers arrived. Therefore, it was reasonable for the jury to draw the inference that Griffin was in the home for the entire duration of the invasion.
Still, Griffin contends that "no testimony or evidence plac[ed] [him] on the second or third floor of the home" or connected him to any of the weapons used. Appellant's Br. at 11. This, he concludes, proves that he was not present for the purposes of accomplice liability. But we reject Griffin's request to so limit the meaning of "presence" where distinctions are drawn between the floors of a single-family home. Further, Griffin need not have had direct ties to his confederates' weapons for accomplice liability to attach; through the acts of his confederates, the law imputes that connection to him. See Collier, 470 N.E.2d at 1342.
The State also presented evidence that Griffin entered the home with four other men, who were similarly dressed and concealed, after one of those men attacked Tyler. He was present in the home as one man forced Tyler into the basement, threatened Tyler's life, and searched for safes and when the others went to the second and third floors, where they attacked Kent, Sandra, and Christine with a knife, seriously wounding Kent and murdering Sandra. Tyler could hear the screaming and commotion from the basement, as could Klarisa on the third floor. Griffin was in the home when his confederates ransacked the upper floors looking for valuable property and when they collected that property by the home's rear entrance. Griffin exited the rear of the home accompanied by a confederate, and later volunteered that he "got his brothers into this." Sept. 10 Tr. at 55. Griffin's suggestion that "there is nothing placing [him] at the scene or connecting him as a companion to any of the perpetrators" simply has no merit. Appellant Br. at 12. The State's evidence plainly demonstrates Griffin's companionship with his confederates.
Griffin contends that the evidence does not support his conviction as an accomplice because he was not aware that his confederates were committing a robbery in the home. Thus, he maintains that he cannot be said to have failed to oppose the commission of the robbery. But, again, the evidence shows that Griffin remained in the home for the duration of invasion, and we decline to read Griffin's narrow definition
For all the reasons explained above, the State presented sufficient evidence of Griffin's conduct before, during, and after the crimes to convict him as an accomplice.
We hold that the State presented sufficient evidence to demonstrate that Griffin knowingly or intentionally associated himself with a criminal venture, participated in it, and tried to make it succeed. See Cohen, 714 N.E.2d 1168. Even if Griffin intended for that venture to encompass a burglary only, a robbery and felony murder followed as probable and natural consequences of the burglary. It does not matter whether Griffin personally participated in each element of these offenses; the acts of his confederates are imputed to him. See Collier, 470 N.E.2d at 1342; See Wilson, 455 N.E.2d at 1123. Thus, we affirm on this issue.
Griffin next challenges the admission, over his objection, of State's Exhibits 42, 43, and 44. At trial, Griffin argued that these autopsy photographs were prejudicial because of their gruesome nature and because the wounds depicted had been altered by the pathologist. Sept. 10 Tr. at 205-06. On appeal, Griffin renews his prejudice objection but does so on different grounds. In particular, Griffin contends the photographs have low probative value because the "most probative evidence to be offered against him would be that which would satisfy the [four] requirements [for finding an accomplice relationship] [under] Bruno ..., and [t]hese photographs offer no probative value to those claims." Appellant's Br. at 15. He further asserts that they are prejudicial because Neely, not Griffin, inflicted the wounds to Sandra. Id. He continues, "[T]hey remove the Jury's focus from the apparent lack of evidence connecting Griffin to the murder and focus the jury's attention on the heinous nature of Neely's actions." Id.
Because the grounds raised in support of his objection at trial are substantially different than those he raises on appeal, we agree with the State that Griffin has waived this issue for appeal. However, our decision is grounded in different authority than that cited by the State.
(Emphasis in original; citations and quotations omitted).
Here, the trial court did not have the opportunity to consider the argument that Griffin presents on appeal. At trial, Griffin argued only that the photographs were gruesome and depicted altered wounds. He made no mention of Neely's involvement or why that involvement might be prejudicial to his trial. Thus, we cannot state that the argument Griffin makes here was a question fairly within the issues before the trial court. Even though Griffin objected under the same rule of evidence both at trial and on appeal, because the trial court never had an opportunity to consider the argument Griffin now makes on appeal, the arguments raised here are independent in character and outside the issues before the trial court. Therefore, Griffin waived this issue for appeal.
Waiver notwithstanding, Griffin misstates the law. The Bruno factors provide a starting point for determining an accomplice relationship, but Bruno is not the end of the inquiry. The State still had the burden of proving every element of the offenses charged, including felony murder, beyond a reasonable doubt. Stewart v. State, 945 N.E.2d 1277, 1290 (Ind.Ct.App. 2011), trans. denied. The photographs assisted the State in meeting that burden. They assisted the testimony of the pathologist, Dr. Prahlow, in explaining Sandra's cause of death. Moreover, Dr. Prahlow explained that he and other doctors, not Griffin, were responsible for those alterations. In such instances, Indiana courts have repeatedly upheld the admission of autopsy photographs. See, e.g., Swingley v. State, 739 N.E.2d 132, 133-34 (Ind.2000) (discussing Fentress v. State, 702 N.E.2d 721, 722 (Ind.1998)); Jackson v. State, 973 N.E.2d 1123, 1127-28 (Ind.Ct.App.2012), trans. denied.
Finally, Griffin claims that the trial court abused its discretion when it
Peterson, 699 N.E.2d at 706 (citations omitted).
The decision in Hampton turned on the difference between direct and circumstantial evidence. 961 N.E.2d at 482. Hampton distinguished the two types of evidence as follows:
Id. at 489 (internal citations and quotation marks omitted).
Hampton found a "qualitative difference between direct and circumstantial evidence with respect to the degree of reliability and certainty they provide as proof of guilt." 961 N.E.2d at 486. Consequently, our supreme court held that
Id. at 491 (emphasis in original). Where appropriate, this "reasonable theory of innocence instruction" provides "a safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury's reasoning is sound." Id. at 486. It "informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the defendant is entitled to the benefit of that doubt." Id. (emphasis in original).
We agree with the trial court that Griffin's proposed instruction was not appropriate because the State presented direct evidence to support its allegations. Griffin concedes as much with respect to his burglary conviction. See Appellant's Br. at 17 ("It is arguable that not all of the Counts were based exclusively on circumstantial evidence...."). Indeed, Tyler testified that he saw five men, some clad in black and wearing masks, force entry into the home, and officers apprehended five
However, Griffin contends that his robbery conviction was based exclusively on circumstantial evidence, and "Hampton does not require `all' charged offenses to be based exclusively on circumstantial evidence, merely `a' charged offense." hi But Griffin's argument neglects the principles of accomplice liability in his attempt to apply Hampton to his robbery conviction. Even if the evidence does not show that he participated personally in the commission of each element of the offense, Wilson, 455 N.E.2d at 1123, Griffin is guilty as if he performed the acts himself, see Collier, 470 N.E.2d at 1342. Thus, the direct evidence tending to show the commission of the offense by any accomplice applies equally to all accomplices. In other words, direct evidence against the principals is attributable to Griffin as the accomplice. In contrast, Griffin's application of Hampton would turn nearly every accomplice liability prosecution into one warranting a reasonable theory of innocence instruction, but Hampton itself implicitly rejected such a reading. See 961 N.E.2d at 487-88, 490-91 (quoting Spears v. State, 272 Ind. 634, 401 N.E.2d 331, 335 (1980)) ("To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary confusion would result from such a course.").
As discussed in depth above, the State presented eyewitness testimony, which constitutes direct evidence of a robbery committed by Griffin and his confederates. It does not matter whether Griffin participated personally in every element of the offense; the law imputes the actions of his confederates to him as if he acted out each element individually. Consequently, this evidence applies to Griffin just the same as it does to his confederates.
Because direct evidence supported all charges against him, we affirm the trial court's decision not to issue a reasonable theory of innocence instruction. As a result, we do not reach the distinction Griffin raises regarding Hampton's language.
In sum, we conclude that the State presented sufficient evidence to support Griffin's convictions. We also hold that Griffin waived any error related to the admission of the autopsy photographs but, his waiver notwithstanding, the trial court did not abuse its discretion when it admitted the photographs into the record. And we hold that the trial court did not abuse its discretion when it refused to issue a reasonable theory of innocence instruction on these facts. Thus, we affirm Griffin's convictions.
Affirmed.
BAILEY, J., and PYLE, J., concur.
