Justices order retrial due to deficient jury instruction

The Indiana Supreme Court found that a final jury instruction in a woman’s trial for receiving stolen property did not correctly state the law, and it remanded for a new trial.

In Lisa J. Kane v. State of Indiana, 30S04-1206-CR-372, Lisa Kane appealed her Class D felony conviction on the basis that the trial court abused its discretion in giving final instruction No. 12 on accomplice liability. At trial, her attorney objected to proposed instruction No. 8 on accomplice liability, which said, “You are instructed that when two or more persons combine to commit a crime, each is responsible for the acts of his confederate(s) committed in furtherance of the common design, the act of one being the act of all.”  

After a discussion between Kane’s attorney and the court, the proposed instruction was eventually included in final instruction No. 12 and mirrored the instruction used in Harrison v. State, 269 Ind. 677, 382 N.E.2d 920 (1978). It said, “Where two or more persons combine to commit a crime, each is criminally responsible for the acts of his or her confederates committed in furtherance of common design, the act of each being the act of all.”

A split Court of Appeals affirmed her conviction. Judge Michael Barnes dissented, finding that the final instruction was “outdated and woefully inadequate” and did not include the mental state requirement for accomplice liability.

The justices agreed with Barnes, overturning Kane’s conviction and ordering a retrial. They found the instruction was an incorrect statement of the law as it seemed to impose strict liability on Kane for the unlawful acts of her ex-boyfriend Sam Rifner whether she knew about them or not.

Due to economic reasons, Rifner and Kane had to move back in with their parents. At one point, Rifner’s mom noticed some items in her home were missing and Rifner admitted pawning some of them. Kane’s signature was on two of the pawn tickets. Kane maintained she didn’t know Rifner didn’t have permission to sell the items.

The justices found the error was not harmless because they couldn’t say the verdict would be the same if the jury had been properly instructed as to the knowledge requirement of the offense.