Miller v. State

726 N.E.2d 349, 2000 Ind. App. LEXIS 439, 2000 WL 337518

• Court: Indiana Court of Appeals
• Decided: March 31, 2000
• Docket: 49A02-9904-CR-289
• Status: Published

Opinions

OPINION

MATTINGLY, Judge

Dayon M. Miller was charged with three counts of attempted murder (Counts I, II and III); two counts of robbery (Counts IV and V); four counts of criminal confinement (Counts VI, VII, VIII and IX); one count of auto theft (Count X); and three counts of resisting law enforcement (Counts XI, XII and XIII). After a trial to the court, he was found guilty as charged on Counts TV through XIII, and guilty of three counts of criminal recklessness as to Counts I, II and III. On appeal Miller raises two issues, which we restate as:

1. Whether Miller was properly convicted of three counts of resisting law enforcement when all three counts arose from his actions while he was fleeing police after a bank robbery; and

2. Whether the trial court properly found Miller guilty of three counts of criminal recklessness as lesser included offenses of attempted murder.

Miller should have been convicted of only one count of resisting law enforcement. We thus reverse as to Miller’s convictions of three counts of resisting law enforcement and remand for vacation of two of those three charges. We also reverse Miller’s convictions of criminal recklessness as lesser included offenses of attempted murder. However, as we are unable to reach a consensus as to the proper further disposition of those charges, we respectfully request that our supreme court resolve this conundrum.¹

Reversed and remanded in part, and affirmed in part.

FACTS AND PROCEDURAL HISTORY

On April 30, 1998, the People’s Bank College Park branch in Indianapolis was robbed. Miller, wearing dark clothing and a black ski mask over a red bandanna that covered his nose and mouth, displayed a black handgun to the bank staff and demanded money. During the course of the robbery, Miller placed three bank employees in the vault. Robert Ware, a bank customer using the drive-up window, became suspicious, left his vehicle in the drive-up lane and entered the bank. Miller demanded Ware’s wallet and ordered him into the vault. Miller fled with $10,-145.00 of the bank’s money and with Ware’s wallet, which contained an additional $500.00.

Kevin Stickford, a Marion County Deputy Sheriff, heard a dispatch that the robbery was in progress and proceeded toward the bank. As he approached the branch, he saw a man jogging. The man was wearing dark clothing and a black ski mask, carrying a bag in his left hand and a gun in his right hand. Deputy Stickford was in uniform and driving a brown and tan unmarked police car. Deputy Stick-ford stopped his car, got out, told Miller he was a police officer and ordered Miller to drop his weapon. Miller looked at Deputy Stickford and ran away. Deputy Stickford shot at Miller and Miller fired back. Miller ran back to the bank, where he stole Ware’s Cadillac and drove away with Deputy Stickford in pursuit. Several other police vehicles joined the chase, including an unmarked police vehicle driven by Detective Mark Hess of the Indianapolis Police Department and a Marion County Sheriffs vehicle driven by Deputy Ronald Knight.

After running two or three red lights at speeds in excess of 85 miles per hour, Miller abandoned the Cadillac and ran into a wooded area with Deputy Stickford in pursuit. Detective Hess, driving his police vehicle with red lights and siren activated, tried to cut Miller off, but Miller fired a gun at him. Detective Hess then joined Deputy Stickford in the foot pursuit of Miller. Detective Hess yelled several times at Miller “stop, police, drop the gun.” (R. at 150.) Miller and the police exchanged gunfire on several more occasions.

Detective Hess and Deputy Stickford were joined in the foot pursuit by Deputy Knight. Miller fired at Deputy Knight several times. Miller also shot at Detective Hess again, hitting a tree in front of Hess and knocking some bark into Detective Hess’ face. After being hit by several bullets, Miller finally fell to the ground. Detective Hess tried to handcuff him but he resisted. Deputy Stickford then assisted Detective Hess in handcuffing Miller.

In addition to the other counts, Miller was charged with the attempted murder of Deputies Stickford and Knight (Counts I and II) and Detective Hess (Count III). Miller was also charged with three counts of resisting law enforcement as Class D felonies for fleeing officers after the officers had identified themselves as police officers by visible or audible means and ordered Miller to stop. Count XI charged Miller with resisting Deputy Stickford; Count XII charged Miller with resisting Deputy Knight; and Count XIII charged Miller with resisting Detective Hess.

After a trial to the court on January 7, 1999, the trial judge took Counts I, II and III under advisement and found Miller guilty as charged of Counts IV through XIII. In ruling on the attempted murder charges (Counts I, II and III), the trial court found Miller guilty of criminal reek-lessness as a Class D felony on each count.²

DISCUSSION AND DECISION

1. Resisting Law Enforcement

Miller argues that the charged act of fleeing was a single, continuous incident, and thus he can be convicted of only one count of resisting law enforcement. We agree, and order the trial court to vacate two of Miller’s three convictions of resisting law enforcement.

A person who knowingly or intentionally flees from a law enforcement officer after the officer has by visible or audible means ordered the person to stop and who draws or uses a deadly weapon commits resisting law enforcement, a Class C felony. Ind. Code § 35-44-3-3. In Armstead v. State, 549 N.E.2d 400, 402 (Ind.Ct.App.1990), the defendant, in the course of resisting a search, struggled with three officers, hitting one of them in the nose. We held that unless there was more than one incident, only one charge of resisting law enforcement could be lodged against a person:

The offenses set forth in title 35, art. 44, ch. 3 do not constitute crimes against the person. Rather, they are interferences with governmental operations constituting offenses against public administration. A person who violates IND. CODE 35-44-3-3 harms the peace and dignity of the State of Indiana and its law enforcement authority. The harm caused by one incident is the same regardless of the number of police officers resisted. It is the act of resisting duly constituted authority which the statute prohibits, not resisting individual representatives of that authority.

Id. at 401.

The State concedes that one of the three resisting law enforcement charges was improper. However, it urges us to affirm the other two and find that Miller’s acts of fleeing Deputy Stiekford and Detective Hess after having been told to stop were two separate incidents. We declined to accept similar reasoning in Touchstone v. State, 618 N.E.2d 48 (Ind.Ct.App.1993). In Touchstone, the State urged that we find separate incidents of resisting law enforcement when Touchstone was originally placed under arrest and again when police and Touchstone arrived at the police station. We found “[t]he facts disclose a single incident although Touchstone apparently ceased resisting during the drive to the police station, or a portion of it.” Id. at 49.

Miller’s acts in resisting law enforcement after he exited the bank and during the ensuing chase similarly arose from a single incident. As a result, we remand and order the trial court to vacate two of Miller’s three convictions of resisting law enforcement.

2. Criminal Recklessness as Lesser Included Offense of Attempted Murder

Miller was charged with three counts of attempted murder. Count I alleged that:

DAYON M. MILLER, on or about APRIL 30, 1998, did attempt to commit the crime of Murder, which is to knowingly or intentionally kill another human being, that is: KEVIN STICKFORD, by engaging in conduct, that is: firing a handgun at and toward the person of KEVIN STICKFORD, with the intent to kill KEVIN STICKFORD, which conduct constituted a substantial step toward the commission of said crime of Murder[.]

(R. at 29.) Counts II and III are identical except for the names of the police officers involved.

Miller contends that the trial court committed reversible error when it found him guilty of three counts of criminal recklessness as lesser included offenses of attempted murder. The majority of this panel agrees that the trial court erred when it found Miller guilty of criminal recklessness as lesser included offenses of attempted murder.³

Our supreme court has repeatedly held that criminal recklessness is not inherently a lesser included offense of attempted murder. See Wilson v. State, 697 N.E.2d 466, 477 (Ind.1998), reh’g denied; Tunstall v. State, 451 N.E.2d 1077, 1079 (Ind.1983); Humes v. State, 426 N.E.2d 379, 383 (Ind. 1981). “[T]he offense of recklessness is not a lesser included offense of the crime of attempted murder and, further ... there can be no crime of ‘attempted recklessness.’ ” Humes, 426 N.E.2d at 383.

Neither was criminal recklessness a factually included lesser offense of all three counts charging Miller with attempted murder. The State argues:

The charging informations reveal that the manner and means used to commit the essential elements of attempted murder include all of the elements of criminal recklessness. See Shoup v. State, 570 N.E.2d 1298, 1303 (Ind.Ct.App.1991) (citing Jones v. State, 519 N.E.2d 1233, 1234 (Ind.1988)). Criminal recklessness is a[sic] factually included in a count of attempted murder when the charging instrument reflects a substantial risk of bodily injury and facts that show the defendant knowingly or intentionally attempted to kill another human being by firing a handgun at or toward that person. See Shoup, 570 N.E.2d at 1303.

(Br. of Appellee at 8.)

The State’s reliance on Shoup is misplaced. We noted in Shoup that in order for criminal recklessness to be a factually lesser included offense of battery, the charging instrument must allege facts that show the touching was done with a disregard of the harm that might occur. There, the charging instruments alleged that Shoup knowingly touched a child in a rude, insolent or angry manner when he struck the child on the child’s legs with a belt and when he struck the child on the buttocks. We found a requested instruction on criminal recklessness was properly refused because “[tjhere is nothing in these charges which indicate^] a disregard for the consequences .... To the contrary, they imply that recognition or knowledge of probable consequences was present.” 570 N.E.2d at 1305.

The attempted murder charges against Miller alleged that Miller attempted to knowingly or intentionally kill each of the officers by firing a handgun at each with intent to kill each. Like the charges in Shoup, these charges imply that recognition or knowledge of probable consequences was present. Criminal recklessness thus is not a factually lesser included offense of the attempted murder charges against Miller and the trial court erred in entering convictions of criminal recklessness as a Class D felony on the three counts of attempted murder.

Although we have decided that the trial court erred in finding Miller guilty on three counts of criminal recklessness as lesser included offenses of attempted murder, there is disagreement among the panel as to the further disposition of this case. The majority agrees that Miller cannot be retried for attempted murder, as the trial judge’s ruling implicitly found him not guilty of attempted murder. The majority also agrees that Miller should not have been convicted of criminal recklessness, as criminal recklessness is not a lesser included offense of attempted murder. However, I believe that the trial court could resentence Miller to a proper lesser included offense.⁴

Our supreme court held in Ritchie v. State, 243 Ind. 614, 618, 189 N.E.2d 675, 576 (1963) that where, under the evidence as found by the court or jury, the accused should have been adjudged guilty of a lesser included offense, an appellate court may modify the judgment by reducing the conviction to that of the lesser included offense and thus avoid a new trial.⁵ See also Nuerge v. State, 677 N.E.2d 1043, 1047 (Ind.Ct.App.1997). The court noted in Ritchie the general rule that a “reviewing court, in a proper case, may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged, or of a lesser crime included therein, where the errors do not affect the conviction of the lesser offense.” 243 Ind. at 619, 189 N.E.2d at 577, quoting 5 Am.Jur.2d Appeal and Error § 938. We have followed the Ritchie approach in a number of subsequent decisions. In Anderson v. State, 674 N.E.2d 184, 185-86 (Ind.Ct.App.1996), the defendant was found guilty of aggravated battery as a lesser included offense of attempted murder. On appeal, the aggravated battery conviction was vacated, and the case was remanded “with instructions to enter judgment and sentence on the offense of battery with a deadly weapon, a class C felony, a lesser included offense of attempted murder.”

In Lane v. State, 175 Ind.App. 543, 548, 372 N.E.2d 1223, 1225-27 (1978), the defendant was charged with first degree burglary and convicted of the included offense of theft of property with a value of $100 or more. On appeal, defendant’s sufficiency of the evidence claim was found meritorious, and the cause was “remanded to the trial court with instructions to vacate the judgment and sentence as to the offense of theft of property valued in excess of $100, to enter judgment upon the necessarily lesser included verdict of guilty for the offense of theft of property valued at less than $100, and to impose sentence accordingly.” See also Nunn v. State, 601 N.E.2d 334, 339-40 (Ind.1992) (“[W]e remand this case to the trial court with instructions to vacate the judgment and sentence to the offense of murder, to enter judgment upon the lesser included offense of involuntary manslaughter, and to impose sentence on the involuntary manslaughter conviction.”); Johnson v. State, 594 N.E.2d 817, 820-21 (Ind.Ct.App.1992) (reversing conviction of dealing in cocaine and remanding with instructions to enter a judgment of conviction on the lesser included offense of possession of cocaine); Isom v. State, 589 N.E.2d 245, 248 (Ind.Ct.App.1992) (reversing conviction of dealing in cocaine, and remanding with instructions to enter judgment of conviction of possession of cocaine); Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987) (reversing conviction of attempted burglary, and remanding with instructions to enter a conviction on the lesser included offense of attempted criminal trespass).

In Martin v. State, 714 N.E.2d 1140 (Ind.Ct.App.1999), Martin was charged with attempted murder and found guilty after a bench trial of criminal recklessness. In a memorandum decision, we vacated Martin’s conviction of criminal recklessness as an improper lesser included offense of attempted murder and remanded for resentencing. On resentencing, Martin was found guilty of attempted battery with a deadly weapon, a proper lesser included offense of attempted murder. Martin appealed, arguing that double jeopardy was implicated. We disagreed, and noted that in determining whether Martin had been properly resentenced, we would look to the elements of the crime originally charged (attempted murder) rather than the crime of which he was convicted (criminal recklessness).

Here, as in Martin, the elements of the crimes Miller committed fall within the ambit of attempted battery with a deadly weapon. The elements of that crime are 1) the commission of a substantial step toward 2) knowingly or intentionally 3) touching another person 4) in a rude, insolent or angry manner 5) by means of a deadly weapon. Matthews v. State, 476 N.E.2d 847, 849 (Ind.1985). Based on the evidence presented at trial, Miller could be resentenced to three convictions of attempted battery with a deadly weapon, a Class C felony, without any violation of Miller’s double jeopardy protections.⁶

Thus, while a majority agrees that Miller’s convictions of three counts of criminal recklessness were error, a consensus cannot be reached with respect to the further disposition of the case. The consequence of this lack of consensus in such a situation appears to be a question of first impression in Indiana.

We believe the correct resolution is that articulated in Smith v. United States, 30 U.S. (5 Pet.) 292, 303, 8 L.Ed. 130 (1831). Under the Smith approach, where a majority of the judges votes that a judgment should be reversed the judgment will be reversed, even though there are several opinions presented which state different grounds for reversal and even though no majority favors any one of the opinions. See Federal Procedure, Lawyers Edition § 3:790 (1994). The effect of a reversal in that situation is to annul the judgment below. The reversal is an adjudication only of the matters expressly discussed and decided — the matters that are decided on appeal become the law of the case in future proceedings on remand and re-appeal. Id. § 3:792. In Smith, a majority of the Court found no error with regard to each individual allegation of error. However, “on the question of reversal, the minorities unite, and constitute a majority of the court.” 30 U.S. at 303. The Court reversed the judgment below and remanded for further proceedings in conformity with its opinion.

We acknowledge that some state courts follow an opposite approach, holding that when a majority concludes there is prejudicial error but no majority agrees on some specific ground of error fatal to the judgment, the judgment must be affirmed. E.g., State v. Gustafson, 121 Wis.2d 459, 359 N.W.2d 920 (1985).

We decline to follow the Gustafson approach for two reasons. First, that approach can, in some' cases, lead to a fundamentally unfair result where a court majority can declare that there was unfairness below, but can at the same time refuse to do anything about it. Id. at 924 n. 2 (Abrahamson, J., dissenting). Second, the Gustafson approach would be inappropriate in the case before us because here, a majority does agree on the specific nature of the trial court error. It is unable to agree only on the further disposition of Miller’s case in light of that error.

BAKER, J., and BAILEY, J., concurring in part and dissenting in part.

1 . Miller does not appeal his convictions and sentences for Counts IV through X.

2 . Judgments of conviction on Counts I, II and III were entered on January 8, 1999. Although the record includes no transcript reflecting the trial judge’s comments at the time these judgments were entered, the judge's comments during sentencing make it clear that the convictions of criminal recklessness were thought to be lesser included offenses of attempted murder. (R. at 340.)

3 . In his dissenting opinion, Judge Baker finds no error on this issue.

4 . Judge Bailey, as indicated in his accompanying opinion, would vacate the convictions of criminal recklessness. He would find that the "trial court found insufficient evidence to support the charges of attempted murder, and evidently, any of the inherently included lesser offenses of attempted murder.” (Op. at 357). Further, he believes the language contained in the charging informations prevents Miller from being tried on recklessness charges unless new charges alleging criminal recklessness are filed by the prosecutor.

5 . The Ritchie court found that its discretion to so modify sentences was premised upon Burns' Ann. St. § 9-2321, which provided in pertinent part that "[o]n appeal, the court may reverse, modify, or affirm the judgment appealed from, and may, if necessary or proper, order a new trial. In any case, the cause must be at once remanded to the trial court, with proper instructions....” Similar provisions are now included in Ind. Appellate Rule 15(N). However, the Ritchie court noted that "[tjhere are a number of states without any constitutional or statutory authority specifically authorizing modification or alteration of judgments on appeal in criminal cases; yet the high courts of those states have found that they have inherent discretion to do so.” 243 Ind. at 622, 189 N.E.2d at 578.

6 . Ind. Appellate Rule 15(N) authorizes this court, upon reversal of the trial court's judgment, to order entry of final judgment or correction of a judgment subject to correction. "The court shall direct final judgment to be entered or shall order the error corrected without a new trial unless such relief is shown to be impracticable or unfair to any of the parties or is otherwise improper." This rule reflects a policy that a reviewing court should direct a final judgment on a pure question of law or a mixed question of law and fact. Cooper v. State, 540 N.E.2d 1216, 1221 (Ind.1989).