A jury trial resulted in the conviction of appellant of Felony Murder and Robbery, a Class A felony. He received consecutive sentences of sixty (60) years and forty (40) years, respectively.
The facts are: On August 27, 1986, appellant, Don Linneman and Daryl Fritts were drinking heavily in an Ohio tavern when appellant talked the other two into going in with him on a burglary in Indiana. Linneman, driving his pickup truck, dropped off the other two at the home of Edward Losekamp and then went to visit Toby Littleton at his home near Lawrence-burg, where he arrived extremely intoxicated around ten o'clock and stayed for about an hour.
Edward Losekamp was virtually confined to a hospital bed and was in bed that night when shortly before ten o'clock appellant, his face covered with a bandanna, kicked open the front storm door, confronted Ruth Losekamp, Edward's niece, and demanded money. Accompanied by Fritts, appellant began smashing furniture and Ruth went into her uncle's bedroom and obtained some money. Threatening Edward with a knife, appellant demanded more money and when Ruth replied there was no more, appellant threw her to the floor, fracturing her hip. Appellant picked her up from the floor and threw her onto her uncle's legs as he lay on his bed. Fritts covered her head with a pillow and proceeded to sexually molest her by fondling her breasts and genitals; appellant then forced her to fondle his. Appellant and Fritts smashed the rest of the furniture in the house, closed the door to the bedroom and blocked it with the stove and refrigerator, loaded their loot including guns, coins, and a gold pocket watch into Ruth's car, and made their getaway. Appellant, however, immediately lost control of the car and ran off the road. They abandoned the car and went on foot to Linneman's truck. He drove them back to the wrecked car to retrieve some of the stolen items.
The victims spent that night on Edward's bed, unable to move. The next morning, a county highway worker noticed their car off the road and went to their house to render assistance. The victims were transported to the hospital where Ruth was treated for bruises, abrasions, vaginal bleeding, and a fractured hip which required replacement. Edward was examined, treated and released the same day. He went to stay in the home of another niece, where he remained bedfast. His condition steadily deteriorated until he died three weeks after the robbery. An autopsy revealed portions of a blood clot in his leg had broken off and traveled to his pulmonary arteries. The embolism had blocked the flow of blood between his lungs and heart, straining the latter and causing his death. The Hamilton County, Ohio Coroner testified that having Ruth thrown onto his lower legs and remaining there had caused the clotting responsible for the pulmonary embolism, and accordingly, the cause of death was listed as a homicide.
The day Edward died, appellant approached his girlfriend and two of her friends, claiming he needed money to leave town because he had injured a man in a bar fight and was afraid he would die. His girlfriend obtained cash, and appellant used it to travel to Florida. One of her friends, fearing appellant had been involved in *851 some illegal activity, notified her uncle, a police officer, of appellant's story. In a statement given in Florida, appellant admitted the burglary and robbery but denied any sexual molestation. At trial, three witnesses testified that appellant had sold them guns, coins, and a pocket watch identified as similar to those stolen from the Losekamps. Daryl Fritts testified he and appellant had perpetrated the burglary and robbery.
Appellant contends the trial court committed fundamental error in violating the prohibition against double jeopardy by imposing sentence on both the felony murder and the robbery. The jury found appellant guilty of felony murder/robbery, felony murder/burglary, robbery, and burglary. The trial court merged the felony murder counts into one conviction for felony murder and entered sentences for felony murder and robbery, the sentences to run consecutively.
Noting the charging information included one count of robbery naming both Lo-sekamps as victims, appellant argues it was double jeopardy to punish him twice for the same robbery by imposing separate sentences for that offense and the felony murder based upon that same offense. He correctly cites Swafford v. State (1986), Ind.,
Here, the trial court was careful to specify its entry of judgment was for the Class A robbery of the victim Ruth Losekamp; the robbery of her uncle thus remained to serve as the predicate for the felony murder/robbery conviction. In his reply brief, appellant cites King v. State (1988), Ind.,
Appellant contends the trial court erred in imposing both aggravated and consecutive sentences totalling 100 years and in ordering them served consecutive to insufficiently specified sentences on Ohio convictions. In its sentencing statement, the court noted appellant had been sentenced to a term of from 6 to 25 years on his guilty plea in Hamilton County, Ohio to charges of aggravated burglary of the home of a 92-year-old man on August 20, 1986, six days before the instant crime. The court noted as well that the mitigating factors were outweighed by the aggravating factors, which it discussed at some length, and then rendered aggravated consecutive sentences to be served consecutive to "the sentences which the defendant is presently serving in the State of Ohio."
Appellant argues the sentencing order, by merely making reference to the one sentence in Ohio, thus was overly vague as to the date service of the instant sentence was to commence, in violation of Ind.Code § 35-38-3-2(d), which states "[a] term of imprisonment begins on the date sentence is imposed, unless execution of the sentence is stayed according to law." The State concedes the order fails to specify which Ohio sentences are to be completed before service of the instant one, but goes on to argue appellant is in the best position to know his Ohio discharge date, and argues setting a specific date would be unrealistic, considering the potential for *852 changes in good time credit, eg., and that no authority exists requiring it.
In the case at bar, the record reveals the trial court was fully apprised by the probation officer who conducted the presentence investigation of the nature and circumstances of the Ohio burglary conviction and includes State's Exhibit No. 2, a copy of appellant's judgment of conviction for that offense, Case No. B863916, aggravated burglary, for which he was sentenced on January 27, 1987 to a term of from 6 to 25 years in the Ohio Reformatory. As appellant points out, courts may not withhold judgment nor indefinitely postpone sentencing, Robison v. State (1977),
Appellant argues his 100-year sentence is manifestly unreasonable. He cites his youthful age of nineteen at the time of the crime, his ingestion of controlled substances, the lack of any intent to kill, his childhood in a severely dysfunctional, alcoholic home, and his despondency over the death of his older brother as circumstances the trial court could have bal anced in mitigation. He cites Fointno v. State (1986), Ind.,
Here, however, by contrast, no such "stacking" of ancillary offenses occurred; indeed, no counts of sex offenses, confinement, or theft, eg., while colorable, were even charged, and the burglary conviction .was not sentenced; the only offenses to receive aggravated sentences thus were the primary counts of the felony murder of one victim and the robbery resulting in serious bodily injury to the other victim. Fointnro thus is inapposite here. Moreover, the trial court emphasized the advanced age and helplessness of the victims here. This compared to the aggravated burglary of the 92-year-old man in Ohio. The court also noted the closeness in time of that episode to this one, the gratuitous nature of the injuries inflicted, and the lack of any attempts at rehabilitation by appellant, that appellant was in need of correctional treatment best provided by commitment to a penal facility, that the crime was heinous in nature, and that imposition of a reduced sentence would depreciate the seriousness of the crime. Only one valid ag-gravator is needed to sustain an enhanced sentence, Shields v. State (1988), Ind.,
The State here urges us to remand for sentencing on the burglary conviction. As discussed in the preceding issue, however, it appears the trial court imposed judgment on a single count of felony murder/robbery and /burglary and allowed the underlying burglary offense to merge into that felony murder conviction to allow separate sentencing on the robbery count. *853 It thus was proper to impose no sentence on the burglary conviction. There was no error in sentencing appellant.
Appellant contends the trial court erred in allowing the Hamilton County, Ohio Coroner, Dr. Frank Cleveland, to testify that Edward Losekamp's death was homicide and in admitting the coroner's report in evidence. At trial, Dr. Cleveland testified, over appellant's objection, that Losekamp's historical background indicated that there should be a post-mortem examination.
The autopsy was performed by Dr. Ross Zumwalt, whose report indicated the cause of death to be pulmonary embolism resulting from phlebothrombosis, the formation of blood clots in peripheral veins in the victim's lower right leg. In a cover sheet appended to the autopsy report, admitted over appellant's objection, the witness propounded his coroner's finding that the victim's manner of death was homicide and gave testimony to that effect.
Appellant argues allowing the coroner to recite his opinion as to the manner of death was improper because it was based upon information from an unknown source outside the autopsy report, thus was hearsay admitted in violation of his confrontation rights; he moreover maintains it was not based upon facts observed so as properly to form the basis of an expert opinion, citing McFarland v. State (1978),
The facts that the robbery had occurred, however, and that Edward had been assaulted and his niece had been thrown upon his lower legs, were not in dispute and were evident from other sources, including police witnesses and the niece herself; even assuming it constituted inadmissible hearsay, such information as elicited also from Dr. Cleveland thus was not prejudicial to appellant. McCovens v. State (1989), Ind.,
Dr. Zumwalt opined that his findings, that blood clots originating in the victim's lower leg had moved to his lungs and caused his death, were consistent with having been initiated by the weight of his niece's body resting on his legs the night of the robbery some three weeks prior to death; he also opined they were consistent with having resulted from natural causes including the victim's arteriosclerosis and congestive heart failure. In his trial testimony, Dr. Cleveland also acknowledged the victim could have died from the same causes even in the absence of any trauma from the robbery. A defendant's reference to or use of an erroneously admitted line of evidence cures or waives any error. United States v. Silvers (7th Cir.1967),
*854 There was no reversible error in the admission of Dr. Cleveland's testimony.
Appellant contends there was insufficient evidence to show his actions caused the death of Edward Losekamp. He maintains the evidence failed to show the victim suffered any injury due to the robbery that caused the thrombosis that killed him. In support, he points out that Edward's niece was found with her legs hanging off the left side of the bed and thus her weight must have been on his left leg, not on his swollen right leg; that most of the medical personnel did not report any bruising on the victim's legs when he was examined and released the day after the crime; and that Dr. Zumwalt's external and internal examination of the swollen right leg revealed no sign of trauma, although he testified any signs could have dissipated during the intervening three weeks. Appellant also points out the testimony that Edward remained entirely bedfast during that period, that the corresponding reduction in circulation increased the chances of clotting, and that the stasis-dermatitis on his legs indicated he had suffered from bad circulation for an extended period of time.
Claiming that Edward's "conscious decision" to remain totally immobilized after the incident was an intervening cause, appellant argues that the cause of Edward's death was so extraordinary and attenuated from the events of the crime, that the death was in no way related to the result intended or hazarded by the robbers, and that it would be unfair to hold him responsible for Edward's death, citing Ford v. State (1988), Ind.,
Upon sufficiency review, this Court looks only to the probative evidence and reasonable inferences supporting the verdict to see, without reweighing the evidence or judging witness credibility, whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Braswell v. State (1990), Ind.,
Even were Edward's death due to his immobilization following the robbery incident, under our prior cases it still would be chargeable to appellant. In Thomas v. State (1982), Ind.,
A case even more on point is Pittman v. State (1988), Ind.,
In the case at bar, it is clear that whether Edward died as a result of his niece being thrown on him or as a result of his bedfast debilitation following the crime, the robbery was the mediate or immediate cause of the clotting leading to his death. "It has never been a defense that the vie-tim would not have died from the wounds inflicted on him had it not been for his weakened physical condition." Id. at 69-70. Given the victim's advanced age here and the evidence that appellant threw his niece upon him in bed, we cannot say the variation between the result hazarded and the result actually achieved was so extraordinary as to make it unfair to hold appellant responsible for the result. Ford, supra.
The evidence was sufficient to support appellant's conviction of felony murder.
Appellant contends the trial court erred in instructing the jury. Noting the testimony that appellant and his companions had ingested three fifths of whiskey and four cases of beer the night of the crime, he first argues his intoxication defense was undercut and the jury misled by the court's failure to give his Tendered Instructions Nos. 1 and 2 while giving the State's Instruction No. 9. We note at the outset that the manner of instructing the jury lies within the sound discretion of the trial court, whose ruling will not be reversed unless an instruction error is such that, taken as a whole, the charge to the jury misstates the law or otherwise misleads the jury. Concepcion v. State (1991), Ind.,
The gist of appellant's argument here is that the State's instruction, which was given as modified and told the jury that it must find appellant not guilty if he was too intoxicated to form the specific intent to commit the crime, went too far in cautioning the jury as per Terry v. State (1984), Ind.,
We cannot agree, however, that the court's final instruction on intoxication left the jury with an improper perspective on that defense. The court's preceding instructions defined "knowingly" and "intentionally," and the one at issue stated, in pertinent part: "If you find the defendant was intoxicated to such an extent that you have a reasonable doubt as to whether he was capable of knowingly or intentionally committing the act charged, then you should find the defendant not guilty of the offenses of robbery and burglary." Appellant's tendered instructions differed only in their use of the wording "specific intent;" their import, that if, after considering appellant's state of intoxication, they "have a reasonable doubt whether" he formed "the specific intent to commit robbery and burglary" they must find him not guilty, is the same. -He cites no authority for his proposition that the cautionary language given from Terry, supra is overstated and misleading. The trial court did not err in giving its intoxication instruction.
Appellant argues the court erred in telling the jury in its Instruction No. 6 that flight could be considered as evidence of guilt and in its Instruction No. 4 that appellant could be held responsible for the victim's death even if other factors contributed to its cause. At trial, however, appellant never objected to No. 6 and objected to No. 4 on only the general basis that it was
*856
misleading; without more, this was insufficient to preserve error for review. See Survance v. State (1984),
The trial court did not err in instructing the jury.
Appellant contends the trial court erred in failing to grant his motion for continuance made after codefendant Daryl Fritts agreed to plead guilty and turn State's evidence a few days before trial began. At that time, appellant moved for a week's continuance to prepare to meet the previously unexpected testimony of Fritts, whose counsel had been sharing work product with appellant's. When the trial court denied that motion, appellant filed a motion in limine requesting the court to exclude any statements or testimony of Fritts pertaining to appellant. The court took this motion under advisement until during trial, when appellant again raised the issue during the testimony of Deputy Sheriff Henry Schaefer. When Schaefer testified his investigation of Linneman and Fritts had led him to appellant, defense counsel objected. The prosecutor noted the witness had been directed to avoid any statements from code-fendants, and the court, noting the witness had repeated none, overruled the objection.
Appellant maintains he was denied due process of law by being forced to defend against Deputy Schaefer's remarks connecting him to Fritts and Linneman and against Fritts' trial testimony, which alone placed him in the Losekamps' house actively engaged in the robbery, without adequate time to prepare. He cites Butler v. State (1978),
As the State points out, however, to obtain a continuance based on want of preparation, because such continuances are not favored, good cause must be shown. Baxter v. State (1988), Ind.,
The trial court did not err in denying appellant's motions.
Appellant contends the trial court erred in admitting over his objection and motion to suppress the testimony of Detective Jerry Diersing concerning oral statements appellant made to him while in custody. On October 8, 1986, Detective Diers-ing and another officer from Ohio went to the Valusha County Jail in Daytona Beach, Florida to question him. Detective Diers-ing testified he informed appellant of his Miranda rights, appellant acknowledged them, then stated he only wanted to "set the record straight" about the events in Indiana but would not discuss any crimes *857 in Ohio and proceeded to state, "I didn't touch the old lady, Fritts did."
At the suppression hearing, appellant testified he was never advised of his rights, that he requested counsel which request was denied, that he felt he had no choice but to speak to the officers, and that at any rate he told them nothing. He now maintains admission of the detective's remarks concerning his statements violated his Fifth and Sixth Amendment rights, and noting the absence of any signed waiver form, contends the State failed to carry its burden of proving beyond a reasonable doubt his "confession" was voluntary, citing Burton v. State (1973),
The State argues the trial court's decision to believe the detective instead of the defendant in concluding the remarks were voluntary was a question of fact not to be reweighed by this Court on review. In reply, appellant argues the State has waived argument on this issue by failing to set forth pertinent authority. Nevertheless, in his original argument, appellant himself states the correct standard that in determining admissibility, the reviewing court will "consider only the evidence which supports the court's ruling and any unrefuted evidence in the defendant's favor," citing Russell v. State (1984), Ind. App.,
Denial of appellant's motion to suppress was not error .
Appellant contends the trial court erred in admitting hearsay testimony from Steve Schalk concerning silver coins he bought from appellant. When the witness was asked if appellant had said where he had obtained the coins, appellant made his hearsay objection which was overruled. Schalk went on to relate that subsequent to the sale, appellant advised him he had obtained them in the break-in of the Losek-amp home. Appellant now maintains the court's ruling here put him in a position of having to surrender his Fifth Amendment right to not testify in order to examine the declarant of the hearsay, and that while numerous exceptions exist to the hearsay rule, the failure of the State to mention any in response to his objection left no foundational basis for admission of the testimony.
The appellant cites no authority for his proposition and we find none. The trial court's ruling was correct, for while until recently third-party hearsay admissions against penal interest were generally imad-missible, see Thomas v. State (1991), Ind.,
The admission of Schalk's testimony regarding appellant's remarks was not error.
Appellant contends the trial court erred in allowing the State to ask leading questions during the testimony of its first witness, the victim Ruth Losekamp, and in allowing responses consisting of hearsay. In bringing out the events of the robbery, she was asked, "Were you thrown with some great force?", and after the court overruled appellant's objection, she continued her narration of events. Her relation of remarks heard during the course of the robbery was held admissible over appellant's hearsay objection as coming under the res gestae exception, but when she went into remarks made by her rescuers, they were excluded as being too remote in time from the res gestae.
Appellant acknowledges he must show he suffered substantial injury to demonstrate reversible error, citing Hedges v. State (1982), Ind.,
Appellant's assertion, however, that the alleged "harm transcended the content of the individual questions" at issue, has been resolved against him in previous cases. Trial irregularities which standing alone do not amount to error do not gain the stature of reversible error when taken together. Stonebraker v. State (1987), Ind.,
Appellant contends the trial court erred in admitting over his objection the testimony of Indiana State Trooper Lyman Conley that he was asked by a female life squad attendant "if I had been told that Ms. Losekamp had been sexually abused." Because the unidentified attendant never testified at trial, appellant argues the remark as related by Trooper Conley was hearsay and prejudiced him because it was a characterization of Ruth's injuries.
As the State points out, however, the attendant's remark was a question, not an assertion of truth, thus was not hearsay. "Testimony of a police officer which merely relates to an investigation of alleged crimes and establishes only that information was received within the officer's own knowledge is not objectionable hearsay." Sharp v. State (1989), Ind.,
Appellant contends the trial court erred in admitting over his objection the testimony of Toby Littleton, who testified that in the spring of 1986 he went on a rock hunting trip to a creek located on the Lo-sekamp property and at the residence spoke to an elderly man. When he testified he was accompanied by appellant, defense counsel objected that the testimony was too remote in time to be relevant to the events in question. When the State responded it was being offered to show appellant's knowledge of the Losekamp household, the trial court overruled the objection. Appellant now maintains that because no evidence was introduced to show he was made aware of the victims' condition or advanced age, the testimony was irrelevant yet highly prejudicial because it implied he somehow had gained such information.
As appellant acknowledges, however, evidence tending to prove a material fact is admissible, even though that tendency is exceedingly slight; the trial court has wide discretion in ruling on the relevance of evidence. Goodloe v. State (1982), Ind.,
Appellant contends the trial court erred in admitting over his objection certain items of physical evidence without a foundation showing connection to the crime and a proper chain of custody. State's Exhibits 42 and 48 were two gold coins identified by codefendant Daryl Fritts as having been taken from the Losekamp residence and recovered by police from coin buyer Thomas Schalk. Citing Hooper v. State (1983), Ind.,
In the same vein appellant argues State's Exhibits 46, 49 and 51, which were a .22 caliber rifle stock, the rest of the rifle, and a shotgun, respectively, were admitted erroneously due to insufficient connection to the robbery. However, David Carr, a tenant farmer of the Losek-amp property, testified he recognized the firearms as ones owned by Edward Losek-amp. Appellant's argument that they were not identified with enough particularity to distinguish them from the others produced by the same manufacturer must fail, as must his contention they were inadmissible due to lack of a showing of chain of custody. The less susceptible an exhibit is to fungibility, alteration or tampering, the less strictly is the chain of custody rule applied. Wray v. State (1989), Ind.,
An exhibit is admissible once it is shown it is relevant and material, it is properly identified, and it is in substantially the same condition as at the time of the crime. Fletcher v. State (1970),
Appellant contends the trial court erred in admitting over his objection State's Exhibits 18 through 40 and 60, still photographs and a videotape of the interior of the Losekamp residence after the commission of the crime. These exhibits depicted the vandalism done to the home, and because they served to prove no element of any of the charged offenses, appellant maintains that, especially considering the cumulative effect of 23 exhibits, their probative value was outweighed by their prejudicial effect, thus their admission was error, citing Bates v. State (1977),
A trial court has wide discretion in the admission of photographs and will be reversed only upon a showing of abuse resulting in prejudice. Buck v. State (1983), Ind.,
The trial court did not err in admitting the photographs and videotape.
Appellant contends the trial court erred in refusing to grant his challenge for cause to Juror Arnold, who after testifying some of her uncles had been police officers, stated she would give more credibility to police officers than to other witnesses. Prior to deliberations, Ms. Arnold was replaced by an alternate juror due to a death in her family. Appellant maintains the court's failure to strike her for cause nevertheless was error because it implied to the other jurors tacit approval of granting police officers more credibility than other witnesses.
Ruling on a challenge for cause is within the trial court's discretion, which will not be reversed absent a showing of abuse. Woolston v. State (1983), Ind.,
The trial court is affirmed.