





ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                     JEFFREY A. MODISETT
Vonderheide & Knecht, P.C.              Attorney General of Indiana
Lafayette, Indiana
                                        ARTHUR THADDEUS PERRY
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA


JERYL BASSIE,                           )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )
                                        )    79S00-9804-CR-236
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                APPEAL FROM THE TIPPECANOE SUPERIOR COURT II
                     The Honorable George J. Heid, Judge
                        Cause No.  79D02-9712-CF-116


                              ON DIRECT APPEAL

                               March 23, 2000

RUCKER, Justice


After a trial by jury  Jeryl  Bassie  was  found  guilty  of  one  count  of
kidnapping as a Class A felony, and two counts of  criminal  confinement  as
Class B felonies.  He was also adjudged  a  habitual  offender.   The  trial
court sentenced Bassie to forty years for kidnapping which was  enhanced  by
thirty years for the habitual offender adjudication.  The trial  court  also
sentenced Bassie to fifteen years on one  count  of  confinement  with  five
years suspended, and ordered the sentences to be served  consecutively.   No
sentence was imposed on the  remaining  count  of  confinement.   Ultimately
Bassie received a total executed term  of  eighty  years  imprisonment.   In
this direct appeal Bassie contends (1) the evidence was  not  sufficient  to
sustain his conviction for kidnapping, and (2) his forty-year  sentence  for
kidnapping is excessive and should be  reduced  to  the  presumptive  thirty
years.  We disagree with both contentions and therefore affirm.
      The record shows that after consuming a quantity of alcohol and drugs,
Bassie and an accomplice, Nashid Muhammad, decided to steal a car  owned  by
Kim Garrett.  Reaching the conclusion that  it  would  be  better  first  to
obtain keys to the car, Bassie and  Muhammad  proceeded  to  the  home  that
Garrett shared with his girlfriend, Jennifer  Stout.   Muhammad  knocked  on
the door while Bassie  stayed  out  of  view.   Alone  with  her  two  small
children, Stout peered through a window advising Muhammad that  Garrett  was
not present but agreeing to  provide  him  with  a  telephone  number  where
Garrett could  be  contacted.   She  then  proceeded  to  telephone  one  of
Garrett’s relatives.  With the receiver off the hook, Stout returned to  the
door to communicate  further  with  Muhammad.   At  that  point  Bassie  and
Muhammad forced their way into her home and ordered  Stout  to  lie  on  the
floor.  Bassie was armed with a twelve-gauge shotgun.  The  person  to  whom
Stout was talking called  the  police.  Using  duct  tape,  the  pair  bound
Stout’s hands and taped her mouth.  They also bound the hands and taped  the
mouth of one of Stout’s small children.   The  men  demanded  the  keys  and
title to Garrett’s  car.   After  Bassie  searched  for  the  items  without
success, both men proceeded to walk up the  stairs  inside  the  house  with
Stout leading the way.  Bassie was pointing the shotgun at Stout’s head.  As
they walked up the stairs, Bassie noticed police officers in the back  yard.
In fact police had surrounded the house.  Using Stout as  a  shield,  Bassie
began to walk out the front door, but was ordered back  inside.   Attempting
to find a means of escape, Bassie walked back and forth  between  the  front
and back doors of the home continuing to point the shotgun at  Stout’s  head
and using her as a shield.
      In the meantime, while Bassie and Muhammad were  distracted  near  the
front of the house, a police officer approached the rear of  the  house  and
managed to grab one of  the  children.   Eventually,  a  SWAT  team  hostage
negotiator convinced Bassie to release the other child and to surrender  his
weapon.  Bassie complied.  Ultimately both men were arrested and Bassie  was
charged with one count of kidnapping and two counts of confinement.   Bassie
was also charged as a habitual offender.  After a jury trial, he  was  found
guilty as charged and  also  adjudged  a  habitual  offender.   This  appeal
followed.
                                     I.
      Challenging only his conviction for kidnapping,  Bassie  contends  the
evidence is insufficient  to  sustain  the  conviction.   More  specifically
Bassie  claims  the  State  failed  to  rebut   his   claim   of   voluntary
intoxication.[1]  When a defendant  raises  the  intoxication  defense,  the
State bears the burden of negating the defense in relation to the  mens  rea
of the offense.  Powers  v.  State,  540  N.E.2d  1225,  1227  (Ind.  1989).
Whether a defendant was so intoxicated that he could not form the  mens  rea
required for the crime is a question for  the  trier  of  fact.   Barnes  v.
State, 693 N.E.2d 520, 522 (Ind. 1998).  The conviction will be affirmed  if
there was substantial evidence of probative value that  would  have  allowed
the fact finder to conclude beyond a reasonable  doubt  that  the  defendant
formed the required mental element.  Id.  Evidence of capacity to  form  the
requisite criminal intent includes the ability to "devise  a  plan,  operate
equipment, instruct the behavior of  others  or  carry  out  acts  requiring
physical skill."  Id. (citing Terry v. State, 465 N.E.2d  1085,  1088  (Ind.
1984)).  If the defendant was able to form the required  mental  element  of
the crime, the degree of intoxication is immaterial.  Id.
      A person who knowingly or intentionally confines another  person  with
the intent to use the person  confined  as  a  shield  or  hostage,  commits
kidnapping, a Class A felony.  Ind. Code § 35-42-3-2.  “A person engages  in
conduct ‘intentionally’ if, when he  engages  in  the  conduct,  it  is  his
conscious objective to  do  so.”   Ind.  Code  §  35-41-2-2(a).   "A  person
engages in conduct 'knowingly' if, when he engages in  the  conduct,  he  is
aware of a high probability that he is doing  so."   Ind.  Code  §  35-41-2-
2(b).
      The record shows an abundance of evidence from which  the  jury  could
have reasonably concluded that Bassie knowingly and  intentionally  confined
Stout with the conscious objective of using Stout  as  a  shield.   Bassie’s
capacity to form the intent to kidnap Stout was  shown  by  his  ability  to
formulate the plan to steal Garrett’s car, including  purchasing  tape  used
during the crime, retrieving the shotgun, and  devising  a  scheme  to  gain
access into Stout’s home where he could obtain the keys  and  title  to  the
car.  Bassie also performed acts of dexterity  during  the  ordeal.   Bassie
climbed up and down a flight of stairs; walked back and  forth  between  the
front and rear of the home while keeping Stout in front of him  and  holding
a shotgun to her head.  Bassie  handled  a  shotgun  throughout  the  affair
without incident, and of his own accord, removed the  shells  from  the  gun
before  surrendering  it  to  police.   Further,  Bassie’s   own   testimony
indicated that he understood his actions  in  utilizing  Stout  as  a  human
shield.  Bassie testified that he kept Stout in front of him  to  keep  from
getting shot.  R. at 557.  In sum, Bassie’s claim that  the  State  did  not
rebut his claim of voluntary intoxication amounts to an invitation for  this
court to reweigh the evidence.  We decline.  The evidence was sufficient  to
sustain the conviction.

                                     II

      Bassie next challenges his forty-year  sentence  for  kidnapping.   He
concedes the trial court did not abuse its  discretion  in  sentencing  him.
Indeed the trial court  enhanced  Bassie’s  sentence  from  the  presumptive
thirty years because of Bassie’s extensive criminal  history  and  his  gang
affiliation.  Nonetheless, citing Beatty v. State,  567  N.E.2d  1134  (Ind.
1991), Bassie contends his sentence should be  reduced  to  the  presumptive
term because he did not harm his hostages.
      The defendant in Beatty was convicted of three counts of kidnapping as
Class A felonies.  Like Bassie, the defendant did not physically injure  his
hostages.  The trial  court  sentenced  Beatty  to  the  maximum  fifty-year
sentence on each count and ordered the sentences to run  consecutively.   On
appeal, a majority of this Court  held  that  Beatty’s  sentence  should  be
revised:
      A conviction for the offense of kidnapping is punished as  a  Class  A
      felony, regardless of whether bodily injury is  inflicted  during  the
      commission of the crime.  Ind. Code § 35-42-3-2.  The absence of  such
      injury does not diminish the severity of the  penalty  range  to  that
      prescribed for Class B felonies.  It is only  through  the  sentencing
      process that distinctions may be made.  While  we  find  no  abuse  of
      discretion by the trial court in its determination  of  the  sentence,
      appropriate use of Article 7 Section 4 of the Constitution of Indiana,
      granting to this Court the power to review  and  revise  sentences  in
      criminal cases, may provide an incentive that might discourage  future
      hostage-takers  from  injuring  innocent  people.   Considering  these
      factors, we elect to exercise our constitutional authority  to  review
      and revise the sentences for  counts  I,  II  and  III  [the  Class  A
      kidnapping convictions].  We now order that the defendant be sentenced
      to 45 years on each of counts I, II, and III, with the sentences under
      counts II and III to run concurrently with each other and  consecutive
      to the sentence on count I, for an aggregate sentence of 90  years  on
      these counts.

Beatty, 567 N.E.2d at 1138.
      Contrary to Bassie’s apparent argument, Beatty does not stand for  the
proposition that this court will exercise its  constitutional  authority  to
review and revise sentences in every instance where a hostage taker has  not
injured innocent people.  Rather, the exercise of such  authority  in  those
instances  is  fact  sensitive.   And   the   facts   in   this   case   are
distinguishable from those  in  Beatty.   Although  in  both  instances  the
kidnapping  defendants  refrained  from   injuring   their   hostages,   the
similarity ends there.  In Beatty the defendant received the maximum  fifty-
year sentence for each kidnapping offense.  Here, Bassie received  a  forty-
year sentence, which is ten years less than the maximum sentence.  See  Ind.
Code § 35-50-2-4.  Also, though  both  defendants  Bassie  and  Beatty  were
involved in a single episode of criminal conduct, defendant Beatty  received
an executed sentence of 150 years,  which  is  nearly  double  the  sentence
Bassie received.  Finally, and most importantly, the  trial  court  in  this
case specifically  stated  that  it  was  taking  “into  consideration”  the
mitigating factor that Bassie had not injured  his  hostages.   R.  at  692.
Thus, the trial court  insured  that  Bassie  was  the  beneficiary  of  the
incentive this court announced in Beatty.  Under the facts of this  case  we
decline Bassie’s invitation to  exercise  our  constitutional  authority  to
revise his sentence.
      Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  In 1997, our  legislature  enacted  Ind.  Code  §  35-41-2-5  and
amended Ind. Code § 35-41-3-5, the intoxication statute.  Ind. Code § 35-41-
2-5 provides, "Intoxication is  not  a  defense  in  a  prosecution  for  an
offense  and  may  not  be  taken  into  consideration  in  determining  the
existence of a mental state that is an element of  the  offense  unless  the
defendant meets the requirements of IC 35-41-3-5."  The  amendment  to  Ind.
Code  §  35-41-3-5   eliminated   voluntary   intoxication,   limiting   the
intoxication defense to cases where " the  intoxication  resulted  from  the
introduction of a substance into [the defendant’s] body:   (1)  without  his
consent; or (2) when  he  did  not  know  that  the  substance  might  cause
intoxication."  The legislature’s changes to the intoxication  defense  took
effect on July 1, 1997, five months before Bassie committed the  crimes  for
which he was charged and ultimately convicted.  See  Ind.  Code  §  1-1-3-3.
As such, a question arises  as  to  whether  voluntary  intoxication  was  a
viable defense in Indiana at the time of Bassie’s trial.   The  trial  court
recognized  the  legislative  amendments,  but  in  light  of  our  previous
decision in Terry v. State, 465 N.E.2d 1085 (Ind. 1984), wherein we  adopted
former Chief Justice Given’s concurrence in Sills v. State, 463  N.E.2d  228
(Ind. 1984) (majority opinion overruled in part on other grounds  in  Wright
v. State, 658 N.E.2d 563, 570 (Ind. 1995)), chose to give an instruction  on
the defense.  In  Terry  we  held  that  a  previous  version  of  Indiana’s
intoxication statute, which limited the defense  to  certain  offenses,  was
void and without effect  stating,  “[t]he  attempt  by  the  legislature  to
remove the factor of voluntary intoxication, except  in  limited  situations
goes against [a] firmly  ingrained  principle  [that  such  factors  may  be
offered to negate the capacity to formulate intent] . . . .  A defendant  in
Indiana can offer a defense of  intoxication  to  any  crime.”   Terry,  465
N.E.2d at 1088; but see Montana v. Egelhoff, 518 U.S. 37,  56,  116  S.  Ct.
2013, 2024, 135 L. Ed. 2d 361 (1996) (holding that the  Due  Process  Clause
of the Fourteenth Amendment does  not  require  states  to  allow  voluntary
intoxication as a defense); see also State v. VanCleave, 674  N.E.2d   1293,
1302-03 n.15 (Ind. 1996) (noting  that  the  Egelhoff  decision  meant  that
Terry was no longer  good  law  only  to  the  extent  Terry  suggested  the
previous version of Ind. Code § 35-41-3-5(b)  (1993)  violated  federal  due
process guarantees).  Though the State noted the legislative  amendments  in
objecting to a voluntary intoxication  instruction  at  trial,  it  has  not
raised the issue on appeal in response to  Bassie’s  claim  that  the  State
failed to carry its burden of negating the defense.  Therefore,  we  do  not
address the issue.

