Ledon Taylor 1-31 May
(Judge Mark Stoner, Marion Superior Court 6, affmd in part)
- Because the Kidnapping and Confinement convictions merge under the continuing crime doctrine, the confinement convictions are ordered VACATED.
- Single larceny rule does not dictate merger of auto theft and theft of purse, where defendant grabbed the purse as he abandoned the stolen car.
- Attempted murder instruction was covered, and not confusing on the specific intent to kill element.
FACTS:
In February of 2006, Thomas and Shawn Ardizone pulled out of their garage in their Acura. Their two sons a 7 and 4 yr old were in car seats in the back seat. Because they forgot a bathing suit, Thomas parked and went inside to look for it. Because he did not return promptly, Shawn joined him inside. The Acura was running with the two front doors open with the children in the back seat.
Seventeen year old Ledon Taylor hopped out of a Ford Escape driven by Antonio Glaspy and stole the Acura occupied by the two Ardizone children. The Ardizones came out as Taylor was backing out of the drive. They ran toward the car, and pounding on it they repeatedly yelled “No. No. The kids.” Taylor gave the dad “a very smug look.” Dad pursued in his family’s second car, a TrailBlazer, while Shawn called 9-1-1. The defendant abandoned the Acura, taking Shawn’s purse with him, as Dad pulled his TrailBlazer between the Escape and the Acura. The defendant (Taylor) pulled a gun from his waistband, pointed it at Dad and ordered him to “get back.” He then shot him in the lower back firing an additional 3-4 shots. He then got into the Escape and Glaspy drove away.
A jury found Ledon Taylor guilty and the trial court imposed:
*40 yrs Attempted Murder (fA)
40 yrs for each, but concurrent to each other - Kidnapping (fA) x 2 (two children)
*20 yrs for each - concurrent to each other - but consecutive to attempt murder -Confinement (fB) x 2 (two children) BUT VACATED BY THE APPELLATE COURT
3 yrs Auto Theft (fD)
1 & ½ yrs Theft (fD)
1 yr Dangerous Possession of a Firearm (A misd.)
(Handgun Without License - judgment not entered)
The trial court found the defendant’s age carried some mitigating weight, and found two aggravators. They were the defendant’s juvenile history, and he shot the dad in front of his children. The trial court ran the 40 yr attempted murder sentence consecutive to the 20 yr sentence on confinement. All other sentences were concurrent, making a sixty year aggregate sentence. But after the appellate court vacated the confinement convictions, it left the defendant with a 40 year sentence. And that’s the final answer for now.
DISCUSSION:
- Kidnapping & Confinement Sufficient Evidence of Knowledge.
Evidence is sufficient that the defendant realized the children were in the car as he stole it. It was a clear sunny day, and the windows of the Acura were not tinted. The parents beat on the car, yelled and pointed as the car pulled out of the drive. The defendant did not immediately abandon the car upon discovering the children, and instead secured his escape first.
- Sufficient Evidence of Hijacking as part of the Kidnapping.
“A person who knowingly or intentionally confines another person ..while hijacking a vehicle…commits kidnapping, a Class A felony.” Hijacking is the exercise of unauthorized control of a vehicle by force or threat of force upon the vehicle’s inhabitants.
The idea is: take the vehicle, but let the occupants go. Here the children were restrained in car seats. The doors locked when the Acura was put into gear. The children could not get out due to the car’s high rate of speed. They were forced to go along for the ride. Because the victims are children it took only minimal force to accomplish the hijacking. Even though the force used was minimal, it is sufficient to establish the hijacking.
3. Because the Kidnapping and Confinement convictions merge under the CONTINUING CRIME DOCTRINE the confinement convictions are ordered VACATED.
These two convictions merge under the continuing crime doctrine because the defendant both confined and removed the children during one continuous confinement. The confinement ends when the victim is free from detention. Even though the defendant was convicted for two distinct acts: kidnapping by confining while hijacking a vehicle, and confinement by removing a person, it is only one chargeable offense because the confinement was continuous. The Ardizone children were confined when the defendant took control of the car and they were continuously confined until the defendant abandoned the car and fled the scene. Therefore, there was only one chargeable offense, and the confinement convictions merge with the kidnapping convictions. So, the appellate court ordered the trial court to VACATE the confinement convictions and sentences.
4. SINGLE LARCENY RULE does not dictate merger of auto theft and theft of purse, where defendant grabbed the purse as he abandoned the stolen car. See Raines v. State, 514 N.E.2d 298 300 (Ind. 1987).
Facts here are more like a defendant letting the passenger go, but refusing to let her keep her purse, and less like the single act of taking a truck that just happens to have scuba gear in it. In the former case it’s two acts, in the latter, it’s all part of a single design.
5. Attempted murder instruction was covered.
To be convicted of attempted murder the state must prove the defendant acted with the specific intent to kill. Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001). There was no error in refusing the defendant’s tendered instruction on this point because it was covered by the court’s instructions.
Further, the court’s instructions were not confusing regarding the mens rea element. The court did not attach both a knowing and intentional mens rea charge to this attempted murder count. Rather; the court gave a knowing murder charge and an attempted murder charge that contained specific intent to kill language. Therefore, the instructions taken as a whole were not misleading.
The court’s instructions informed the jury that a person commits murder when he knowingly kills another person. However; the instruction went on to say that a person attempts to commit murder when, acting with the specific intent to kill another person, he engages in conduct that constitutes a substantial step toward killing that person.
To convict the defendant the state must prove each of the following elements:
1. the defendant Ledon Taylor
2. acting with the specific intent to kill Thomas Ardizone
3. engaged in conduct, that is: shooting at and against the person of Thomas Ardizone, by means of a deadly weapon, that is: a handgun,
4. which constituted a substantial step toward the commission of the crime of murder.
The attempted murder charge did contain the word “knowingly” but it was in the following context:
“Ledon Taylor, on or about February 26, 2006, did attempt to commit the crime of Murder, which is to knowingly kill a human being, namely; Thomas Ardizone, by engaging in conduct, that is: by shooting at and against the person of Thomas Ardizone with intent to kill Thomas Ardizone, by means of a deadly weapon, that is: a handgun, which constituted a substantial step toward the commission of said crime of murder.”
The word “knowingly” appears here only in conjunction with the definition of murder.
“Numerous opinions have held it is improper to include the term ‘knowing’ in the mens rea instruction for attempted murder even when the instruction properly states that the ‘specific intent to kill’ is required.” A case will be reversed if the jury is instructed that proof of a “’knowing’ mens rea is sufficient for a conviction of attempted murder.”
In this case, no such thing happened. “Knowingly” was only referenced to the definition for murder. Further, the jury was instructed that a person acts intentionally if when he engages in the conduct it is his conscious objective to do so.
In Clay v State 766 N.E.2d 33 (ia 2002), the attempted murder instruction included the word “knowingly” but was not fundamental error because the instructions as a whole informed the jury that specific intent was required. There the jury was instructed the state must have proved:
The defendant
- acting with the conscious purpose of killing Renee Clay
- knowingly or intentionally stabbed her
- which was conduct constituting a substantial step toward the commission of the intended crime of killing Renee Clay.
Mr. Taylor’s case is even one step removed from the Clay. Taken as a whole the instructions were not misleading and there was no fundamental error.
6. Sentence Appropriate.
The defendant is left with a 40 year sentence. This is appropriate in light of the nature of the offense which was against three separate victims where one was shot. It was also appropriate considering the character of this offender, a 17 year old with an extensive juvenile history that included a prior auto theft true finding. The defendant failed to reform himself and continued to engage in an escalating series of offenses. Therefore, a 40 year sentence is appropriate.