Small v. State

531 N.E.2d 498, 1988 Ind. LEXIS 356, 1988 WL 137396

• Court: Indiana Supreme Court
• Decided: December 19, 1988
• Docket: 71S00-8712-CR-1135
• Status: Published

Opinions

DeBRULER, Justice.

Appellant was convicted, following a jury trial, of Robbery, a class A felony, for which he received a thirty year sentence. Two issues are raised for consideration: (1) whether an instruction on accomplice liability was erroneous and therefore reversible error; and (2) whether the evidence was sufficient to support the verdict.

These are the facts pertinent to this review. Dennis K. Fuller was a high school student working at a part-time pizza delivery job in South Bend, Indiana. On the night of March 3,1987, Fuller attempted to deliver a pizza to 1601 Florence. Upon discovery that no one in the house had ordered a pizza, he turned to leave. As he walked to his car, he saw two men jump out from behind a bush. He later identified appellant as one of the men. Appellant demanded “Give me your money” and struck Fuller in the right eye with a brick. Fuller fell to the ground and in the course of the robbery appellant struck Fuller several more times in the eye with the brick. Fuller’s glasses broke and lacerated his skin. The bone beneath his right eye was also broken. Some time during the robbery, or at least prior to Fuller’s receiving assistance, he was shot. However, he does not remember hearing a gunshot or being shot.

I.

Instruction No. 5 read:

Indiana law provides that: A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense.. It is also the law that a Defendant is responsible for the acts of his codefendants as well as his own acts. Any act of one is attributable to them all.

This was the only instruction explaining accomplice or accessory criminal liability. It should therefore have been a correct one.

The format of this instruction is such that the introductory phrase located half way through it, “It is also the law that ...”, provides the last portion of the instruction with a weight and character which is separate and independent of the first portion of the instruction. Within the context of this instruction, the introductory phrase invites the listener to consider that which follows it as a source of liability which is separate and distinct from that which went before it, namely the statutory definition of aiding in an offense. I.C. § 36-41-2-4. There is in law no such separate basis for criminal liability; rather, the theory of aiding in an offense includes the accomplice theory. Moredock v. State (1987), Ind., 514 N.E.2d 1247. Most importantly, however, criminal liability here, under whatever legal theory, requires proof of voluntary conduct in violation of a criminal statute. The last and separate part of Instruction No. 5 does not satisfy this basic requirement. This instruction is therefore an erroneous statement of the law, as it states that appellant could be found responsible for the shooting, without regard to whether that act occurred while he was acting in concert in carrying out the robbery. It requires only that appellant and the person who inflicted the gunshot wound have the relationship of codefend-ants. Clearly this is erroneous. Moreover, appellant was charged alone, and there were no codefendants.

This error could be deemed harmless except for the fact that the State alleged in its charge that the victim sustained both an eye injury and a gunshot wound, and sought to prove both. There is direct evidence that appellant inflicted the eye injury in the course of the robbery; however, the point in time at which the gunshot wound was inflicted and the identity of the person who inflicted it is wholly circumstantial and very much in question. The verdict of guilty may well have been arrived at without a determination that the gunshot wound was inflicted while appellant was engaged in carrying out the robbery scheme. As the instruction relieved the jury of making this crucial decision in arriving at its verdict of guilty, the case must be reversed and remanded for a new trial, or in the discretion of the prosecution, a reduction in sentence to the class B felony level.

II.

Appellant also contends that the evidence was insufficient on the issue of identity to support the conviction. Even though we have ordered reversal and remand due to the erroneous instruction, appellant’s allegation that the evidence was insufficient must still be addressed. On appeal we will not reweigh the evidence nor judge the credibility of the witnesses. Rather, we look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact the verdict will not be overturned. Bowen v. State (1985), Ind., 478 N.E.2d 44.

Appellant urges that Fuller’s identification was unreliable because Fuller was dazed and in pain and had also admitted he had been wrong about identifying people he knew. These circumstances go to the weight of the testimony concerning identification and not the sufficiency. Fuller had ample opportunity to view his assailant and his identification of appellant as that assailant was not inherently unreliable. The evidence presented was sufficient to support the conviction.

This case is reversed and remanded to the trial court for a new trial, or in the alternative, at the discretion of the prosecution, a reduction to class B felony level.

SHEPARD, C.J., and DICKSON, J., concur. PIVARNIK, J., dissents with opinion in which GIVAN, J., concurs.