Daron Gary v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Dec 12 2017, 9:24 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daron Gary, December 12, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1708-CR-1739
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff Judge
The Honorable Stanley Kroh,
Magistrate
Trial Court Cause No.
49G03-1702-F3-7686
Altice, Judge.
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Case Summary
[1] Daron Gary appeals following his convictions for Level 3 felony aggravated
battery and Level 6 felony strangulation. On appeal, Gary argues that the State
presented insufficient evidence to support his aggravated battery conviction.
[2] We affirm.
Facts & Procedural History
[3] In early 2017, Larhonda Myers worked at an Indianapolis fast food restaurant
with Brian Tuggle, Gary, and Gary’s sister, Shontrell Gary (Shontrell). Myers
was not scheduled to work on February 22, 2017, but she received a call late in
the evening asking her to come in to help clean and close the restaurant.
Arrangements were made for Gary to pick Myers up and drive her to work, and
Myers also planned to give Gary some money she had previously agreed to lend
him when he arrived. When Gary arrived at Myers’s house, Tuggle and
Shontrell were in the car. Before taking Myers to work, Gary drove to
Shontrell’s house. During the drive, Myers and Shontrell got into an argument,
and when they arrived at Shontrell’s house, everyone except Myers got out of
the car. Myers was sitting in the front passenger seat when Gary returned to the
vehicle, opened the rear passenger side door, and appeared to be looking for
something. When Myers turned to ask if Gary needed help, he pulled her into
the back seat and started hitting her. Gary asked about the money she was
going to lend him, and Myers felt the car start to move. Myers also heard Gary
mumbling to Tuggle, who was driving.
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[4] When the car came to a stop, Gary started choking Myers and she blacked out
for a few seconds. When she regained consciousness, Gary was pushing her
out of the car. Myers tried to run, and Gary yelled for Tuggle to “[g]et that
bitch[.]” Transcript Vol. 2 at 59. Tuggle then ran up to Myers and stabbed her
repeatedly in the neck and chest and slashed her throat. Tuggle and Gary then
left, and Myers was able to limp to some nearby houses for help. One of the
residents called 911, and Myers was transported to the hospital. Myers was
found to have suffered fourteen stab wounds, a lacerated liver, and a partially
collapsed lung, and her left eye was swollen shut.
[5] As a result of these events, the State charged Gary with Level 2 felony
attempted robbery, Level 3 felony aggravated battery, and Level 6 felony
strangulation. A jury trial was held on June 22, 2017, at the conclusion of
which Gary was acquitted of attempted robbery, but found guilty of aggravated
battery and strangulation. Gary received an aggregate sentence of fourteen
years executed. Gary now appeals.
Discussion & Decision
[6] Gary argues that the State presented insufficient evidence to support his
aggravated battery conviction. The standard of review for sufficiency claims is
well settled; this court will neither reweigh the evidence nor judge the credibility
of witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). Rather, we will
consider only the evidence favorable to the judgment and all reasonable
inferences therefrom. Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).
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The uncorroborated testimony of a single witness is sufficient to support a
conviction, even where the witness in question is the victim. Ferrell v. State, 565
N.E.2d 1070, 1072-73 (Ind. 1991).
[7] The State maintains that the evidence was sufficient to support the challenged
conviction under a theory of accomplice liablity, on which the jury was
instructed. In order to convict Gary of aggravated battery as an accomplice, the
State was required to prove that Gary knowingly or intentionally aided,
induced, or caused another person—namely, Tuggle—to commit aggravated
battery. See Ind. Code § 35-41-2-4. Gary does not dispute that Tuggle
committed aggravated battery by stabbing Myers repeatedly and slashing her
throat. See Ind. Code § 35-42-2-1.5 (providing that “[a] person who knowingly
or intentionally inflicts injury on a person that creates a substantial risk of
death” commits aggravated battery). Rather, Gary argues that the State
presented insufficient evidence to show that he aided, induced, or caused
Tuggle to commit the crime.
[8] A person who aids another in committing a crime is just a guilty as the actual
perpetrator. Lothamer v. State, 44 N.E.3d 819, 822 (Ind. Ct. App. 2015), trans.
denied. The State need not establish that the accomplice personally participated
in each element of the offense. Id. “Moreover, 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.’” Anthony v.
State, 56 N.E.3d 705, 714 (Ind. Ct. App. 2016) (quoting Griffin v. State, 16
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N.E.3d 997, 1003 (Ind. Ct. App. 2014)), trans. denied. “There is no bright line
rule in determining accomplice liability; the particular facts and circumstances
of each case determine whether a person was an accomplice.” Castillo v. State,
974 N.E.2d 458, 466 (Ind. 2012) (quoting Vitek v. State, 750 N.E.2d 346, 353
(Ind. 2001)). Although mere presence at the scene of a crime is insufficient to
establish accomplice liability, presence may be considered along with the
defendant’s relation to the one engaged in the crime and the defendant’s actions
before, during, and after the commission of the crime. Lothamer, 44 N.E.3d at
822.
[9] The State presented ample evidence to support Gary’s aggravated battery
conviction under a theory of accomplice liability. Gary initiated the attack
against Myers by pulling her into the backseat of the car and beating her before
choking her into unconsciousness. Gary then pushed Myers out of the car and
told Tuggle to “[g]et that bitch[.]” Transcript Vol. 2 at 59. After Tuggle stabbed
Myers repeatedly, Gary left the scene without attempting to get help for Myers.
Whether Gary intended for Tuggle to stab Myers is not the relevant question;
rather, the issue is whether the stabbing was a natural and probable
consequence of the brutal attack Gary initiated. We have no difficulty
concluding that it was. Gary’s aggravated battery conviction was supported by
the evidence.
[10] Judgment affirmed.
[11] May, J. and Vaidik, C.J., concur.
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