
ATTORNEY FOR APPELLANT

Susan K. Carpenter
Public Defender of Indiana

J. Michael Sauer
Deputy Public Defender
Indianapolis, Indiana


ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Rosemary L. Borek
Deputy Attorney General
Indianapolis, Indiana



      IN THE

      SUPREME COURT OF INDIANA



WILLIAM C. BURNS,                 )
                                  )
      Appellant (Defendant Below),      )
                                  )
            v.                          )     Indiana Supreme Court
                                  )     Cause No. 84S00-9811-CR-734
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )



      APPEAL FROM THE VIGO SUPERIOR COURT
      The Honorable Michael Eldred, Judge
      Cause No. 84D01-9712-CF-321


      ON DIRECT APPEAL


                              January 27, 2000


BOEHM, Justice.

      William Burns was convicted of felony murder and sentenced  to  fifty-
five years imprisonment.  In this  direct  appeal,  Burns  raises  a  single
issue for review: whether the evidence was  sufficient  to  convict  him  of
felony murder based on the underlying felony  of  robbery.   We  affirm  the
trial court.

                      Factual and Procedural Background

      On December 11, 1997, Burns arranged through his  friend  Kenny  Ingle
to buy $500 worth of “crank”[1] from Robert Phillips.   Burns  examined  the
product at the home of Tammy Baggett in the presence  of  Shaun  Seeley  and
Lester Hamilton.  Hamilton and Seeley agreed with Burns that the  crank  was
too powdery to be of the promised quality and that Burns  had  been  “ripped
off.”  Burns announced his  intention  to  get  his  money  back.   Hamilton
testified that Burns said something akin to,  “[L]et’s  go  over  there  and
take that guy’s shit,” meaning “robbing him.”  Burns  either  asked  for  or
was offered Seeley’s gun and concealed the weapon in the back of his  pants.
 He then asked Seeley and Hamilton to accompany him  to  Ingle’s  house  and
they agreed.

      When Burns, Seeley, and Hamilton  arrived,  Phillips  and  Ingle  were
smoking marijuana on Ingle’s waterbed, and Ingle’s girlfriend and  son  were
in the living room.  Burns, followed by Seeley  and  Hamilton,  entered  the
bedroom to  confront  Phillips.   According  to  Ingle  and  Seeley,  Burns,
perhaps referring to the gun, said something  like,  “[L]ook  at  what  I’ve
got.”  Phillips then attempted to  push  Burns  away  from  him,  and  Burns
testified that he “stuck [the  gun]  between  [Phillips’]  eyes.”   The  gun
discharged seconds later, killing Phillips.   Seeley  testified  that  Burns
then emptied Phillips’ pockets of as much  as  $1800  in  cash  as  well  as
crank, marijuana, and a wallet.  Burns testified  that,  “if  anything,”  he
intended to “hit [Phillips] with the  gun”  while  the  others  “jumped  on”
Phillips.

      Hamilton left the house after helping Burns and Seeley load  Phillips’
body into a car trunk.  Seeley suggested they  could  dispose  of  the  body
near Seeley’s grandmother’s house. Burns and Seeley drove to the site  where
they unloaded Phillips’ body, threw wood on top of it, and set the  pile  on
fire.  When the pile did not burn well, they secured oil from  an  all-night
convenience store and poured it on the body.  Burns threw  the  gun  into  a
nearby pond.  In  the  meantime,  Ingle  had  left  the  house  for  Ingle’s
parents’ home as soon as his girlfriend and  their  son  could  dress.   His
parents soon convinced Ingle to call the police.   Burns  and  Seeley  later
returned briefly to Baggett’s where they found Hamilton and were  told  that
the police were looking for Burns, Seeley,  and  Hamilton.   Burns,  Seeley,
and Hamilton then returned to the woods to bury the  body.   Hamilton  stood
watch while Burns and Seeley dismembered the remains, shoveled them  into  a
duffle bag, and buried them in a shallow grave.

      Seeley and Hamilton were apprehended early  the  next  morning  before
they were able to leave town.  Burns hid out for several weeks, then took  a
bus to Wyoming, but was ultimately convinced by his  grandfather  to  return
to Indiana and surrender to the authorities.  Before he could  complete  the
trip, he was arrested in Chicago and brought back to Indiana.

      Burns  first  told  police  that  Seeley  had  engaged  in  the   drug
transaction and killed Phillips, but, after being  confronted  with  several
conflicting statements, confessed  to  both  the  drug  transaction  and  to
killing Phillips.  Burns was charged with murder and felony murder, and  was
convicted of felony murder in a three-day jury trial in July of 1998.

                         Sufficiency of the Evidence

      Burns argues that the evidence was insufficient to establish beyond  a
reasonable doubt that he intended to rob Phillips, and that  his  conviction
for felony murder must therefore be vacated.

      Our standard for reviewing sufficiency of the evidence claims is  well
settled.  We do not reweigh the evidence or judge  the  credibility  of  the
witnesses, Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999), and  it  lies
within  the  jury’s  exclusive  province  to  weigh  conflicting   evidence,
Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998).  We  will  affirm  the
trial court if the probative evidence and reasonable inferences  drawn  from
the evidence could have allowed a reasonable  trier  of  fact  to  find  the
defendant guilty beyond a reasonable doubt.   Bunch  v.  State,  697  N.E.2d
1255, 1257 (Ind. 1998).

      Burns maintains that his purpose in  going  to  Ingle’s  home  was  to
return the drug to Phillips and recover his money, not to  rob  anyone.   He
contends he carried the gun at the urging of  Seeley  and  because  Phillips
was physically larger than he was.  Burns further  maintains  that  he  drew
the gun only after Phillips “came at him.”  Although Burns concedes that  he
may have taken property from Phillips after the killing, Burns  argues  that
the evidence that he did so cannot be used to support  the  conclusion  that
the killing took place in the course of a robbery.

      Robbery is defined by statute as the knowing or intentional taking  of
property of another or in another’s presence “by using  or  threatening  the
use of force on any person” or “by putting any person in fear.”   Ind.  Code
§ 35-42-5-1 (1998).  Hamilton testified  that  Burns’  stated  goal  was  to
“take the guy’s shit,” which  he  understood  to  mean  “robbing”  Phillips.
Burns himself testified that he went to  Ingle’s  house  to  get  his  money
back.  He also testified that he contemplated hitting Phillips with the  gun
over the head and that he enlisted the aid of Seeley and Hamilton  to  “jump
on [Phillips].”  Although the evidence is disputed as to whose idea  it  was
for Burns to take the gun with him, Burns testified that he put the  gun  in
the back of his pants where “he could easily reach it.”  Both  Hamilton  and
Seeley testified that Burns said, “[L]ook what  I’ve  got,”  seconds  before
the gun discharged.   From  all  of  this,  a  reasonable  jury  could  have
concluded that, as Burns  said  these  words,  he  drew  the  gun  to  force
Phillips to give him $500 or more, or to kill Phillips to get the money.

      Furthermore, the jury could  have  credited  Seeley’s  testimony  that
Burns removed the contents of Phillips’ pockets,  and  concluded  from  that
testimony that Burns intended to rob Phillips from the outset.   See  Mahone
v. State, 541 N.E.2d 278, 280 (Ind. 1989) (intent to commit robbery  may  be
inferred from theft that occurs after the killing if theft and  killing  are
part of one continuous transaction).

      Finally, the State argues that Burns  cannot  escape  prosecution  for
felony murder on  the  underlying  felony  of  robbery  even  if  Burns  was
attempting only to recover his money.  See Sheckles  v.  State,  501  N.E.2d
1053, 1054-55 (Ind. 1986) (finding  evidence  sufficient  to  uphold  felony
murder conviction where defendant attempted to collect debt by force).   The
recovery of one’s own property may raise issues, but they  are  not  present
here.  Seeley testified that Burns emptied the entire contents of  Phillips’
pockets, which contained as much as $1800 in  cash.   Burns  did  more  than
merely  rescind  his  $500  transaction  with  Phillips.   The  evidence  is
sufficient to support the conviction for felony murder.[2]

                                 Conclusion

      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
















-----------------------
[1]  Crank is a methamphetamine that is used as a stimulant.
[2] Alternatively, Burns argues  that,  at  a  minimum,  his  felony  murder
conviction should be reduced to the  lesser  included  offense  of  reckless
homicide.  We need not address this argument because  there  was  sufficient
evidence to support the felony  murder  conviction.   Moreover,  this  is  a
misstatement of law.  Reckless homicide is not a lesser included offense  of
felony murder.  See Hopkins v. State, 582 N.E.2d 345, 352 (Ind. 1991).



