Stevens v. State

422 N.E.2d 1297, 1981 Ind. App. LEXIS 1536

• Court: Indiana Court of Appeals
• Decided: July 13, 1981
• Docket: 2-280A41
• Status: Published

Opinions

YOUNG, Presiding Judge.

Appellant-defendant Wayne Stevens appeals a conviction of Battery — Class C felony after a trial by jury. He argues that he should not have been convicted of Battery (by means of a deadly weapon) as a Class C felony because it is not a lesser included offense of Robbery Resulting in Bodily Injury — Class A felony as charged in the information filed against him. We agree.

Stevens was charged by information¹ in the following language:-

WAYNE STEVENS late of said Grant County and State of Indiana, ... did then and there, in violation of Burns Indiana Code I.C. 35-42-5-1, did knowingly and intentionally and by using and threatening the use of force on David Hughes, to-wit: striking David Hughes with an axe handle causing bodily injury, take property, to-wit: billfold from the person of David Hughes.

Robbery, as established by the legislature at Ind.Code 35 — 42-5-1, is as follows:

A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting the person in fear; commits Robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person.

Battery, as established by the legislature at Ind.Code 35 — 42-2-1, is as follows:

A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits Battery, a Class B misdemeanor. However, the offense is:

(1) a Class A misdemeanor if it results in bodily injury to any other person . . .

(3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon.

The legislature has distinguished the degree of bodily injury resulting from an offense at Ind.Code 35 — 41-1-2 as follows:

“Bodily injury” means any impairment of physical condition, including physical pain.

“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a body member or organ.

In this case the jury was instructed, in relevant part, as follows:

A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is a Class A misdemeanor if it results in bodily injury to any other person .. . and a Class C felony ... if it is committed by means of a deadly weapon.

If the State proved each of these elements of the crime of battery beyond a reasonable doubt, you should find the defendant guilty of battery, a Class B misdemeanor.

If the State did further prove each of the elements of the crime of battery and further proved beyond a reasonable doubt that the battery resulted in bodily injury, you should find the defendant guilty of battery, a Class A misdemeanor.

If the State did prove each of the elements .of the crime of battery and did further prove beyond a reasonable doubt that the battery was committed by means of a deadly weapon, you should find the defendant guilty of battery, a Class C felony.

Also, they were instructed in the language of the statute (Ind.Code 35 — 41-1-2) defining a deadly weapon as follows:

The term “deadly weapon” is defined by law as meaning:

(a) a loaded or unloaded firearm; or

(b) a weapon, device, equipment, chemical substance, or other material that in the manner it is used, or could ordinarily be or is intended to be used, is readily capable of causing serious bodily injury.

The jury was instructed on the meaning of bodily injury, but no instruction was given defining serious bodily injury.

Appellant’s argument, that Battery committed by means of a deadly weapon, Class C felony, is not a lesser included offense of Robbery, resulting in bodily injury Class A felony, because use of a deadly weapon was not alleged by the information is well taken. The information charging Stevens with Robbery, Class A felony, alleges only use of force, “to-wit: striking with an axe handle” causing bodily injury. Under the instruction given in this case Battery, Class C felony, requires proof of use of a deadly weapon. By definition Robbery requires threatening or using force. The information alleges the use of force. Use of force may or may not be by means of a deadly weapon. Under proper instructions and sufficient allegations in the charging instrument, an axe handle or metal bar might support the requirements of the definition of a deadly weapon.² Giving the words of the information their usual acceptation, the allegation of use of a deadly weapon is not sufficiently made.

[T]he particular language used in the charging instrument reflects the State’s decision to create or avoid the opportunity for the jury to convict the defendant of a lesser offense in lieu of the crime charged. That decision, a power vested exclusively in the State, must be executed by the courts in determining whether a defendant can properly be convicted of a lesser offense.

Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1104. As Judge Garrard explained in Belcher v. State, (1974) 162 Ind.App. 411, 319 N.E.2d 658, 660:

(a) an affidavit must charge in direct and unmistakable terms the offense with which the defendant is accused; (b) if there is a reasonable doubt as to what offense(s) are set forth in the affidavit, that doubt should be resolved in favor of the defendant; and (c) where the defendant is convicted of an offense not within the charge, the conviction may not stand for the reason the defendant is entitled to limit his defense to those matters with which he stands accused.

See also, Lewis v. State, (1980) Ind.App., 413 N.E.2d 1069.

The State argues that the statute defining Robbery Class A contemplates bodily injury inflicted by means of a deadly weapon. We do not believe that is necessarily the case. As is apparent from the statute, the legislature has defined Robbery as a Class C felony. Penalties increase in the nature of felony classification as the harm increases or possibility of harm increases.³ Robbery when committed by use of a deadly weapon is a Class B felony. If bodily injury or serious bodily injury are a result of the Robbery, regardless of the use of a deadly weapon, the offense is a Class A felony. Cape v. State, (1980) Ind., 400 N.E.2d 161, 164. Use of a deadly weapon is a separate element and a defendant must be put on notice that the State is seeking to prove use of a deadly weapon.

The State has the absolute discretionary power to decide under which statutes a defendant will be charged when the act constitutes commission of more than one offense. In particular cases, the State may by the words employed in the information determine whether an offense is a lesser included of the crime charged. Roddy v. State, supra. Here the State chose Robbery Resulting in Bodily Injury, a Class A felony. The State had it chosen to, could have charged defendant with use of a deadly weapon to cause bodily injury.⁴

On this information, the most serious lesser offense of which defendant could be convicted is Battery, a Class A misdemeanor. The elements are knowingly or intentionally touching another person in a rude or insolent manner causing bodily injury. However, the jury was instructed only on use of a deadly weapon as an element of Battery, Class C felony.⁵ To convict defendant of Battery, a Class C felony, the jury must have found defendant used a deadly weapon. They could not have found existence of bodily injury as an element of Battery, Class C felony because they were not so instructed. Therefore, comparing the elements of the verdict returned by the jury within the allegations of the information and the instructions, the defendant could not be convicted of a greater offense than Battery, a Class B misdemeanor.

The remedy when it appears that the defendant has been misled by the evidence introduced at trial or the issues joined under the information have not been determined is to reverse the conviction and remand for a new trial. Where it is evident that defendant has not been misled and the issues joined under the charging information have been determined, modification, rather than reversal is more appropriate. McFarland v. State, (1979) Ind.App., 384 N.E.2d 1104, 1109 and cases cited therein. See also Ritchie v. State, (1963) 243 Ind. 614, 189 N.E.2d 575 (Court has authority to modify judgment of conviction by reducing to that of a lesser included offense which under the evidence, the accused should have been adjudged guilty.); Lane v. State, (1978) Ind.App., 372 N.E.2d 1223 (modification to lesser included because of insufficiency of the evidence on a particular element of crime of which defendant was convicted); Ind.Rules of Procedure, Appellate Rule 15(N). Therefore, we direct that the conviction be modified consistent with this opinion.

We now turn to the issue of whether the evidence is sufficient to support a finding of guilty of Battery, a Class B misdemeanor. The elements of Battery, Class B misdemeanor are knowingly or intentionally touching another person in a rude, insolent or angry manner. Ind.Code 35-42-2-1. Stevens does not argue that a battery was not committed. He argues there is insufficient evidence of his aiding or abetting the commission of the battery. Ind.Code 35-41-2-4 states in relevant part;

A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, ....

With our standard of appellate review in hand, we must determine if there is substantial evidence that defendant knowingly or intentionally aided, induced or caused another person to commit a battery.

Here the record reveals that defendant and three juveniles drove to the victim’s house, parking the car down the street. A girlfriend of the defendant was in the house. Defendant exited the car, and walked around the house peering through the windows into the house. He told the three that one male was asleep in the living room and the girlfriend and another male were in the bedroom. The defendant returned to the car and wanted the three juveniles to enter the house and “teach a lesson” to the person with whom defendant’s girlfriend was visiting. Defendant told the juveniles that one of the male persons inside the house had been paid recently and should have $250 or more in his possession. Evidence was presented that defendant had a gun in his possession when he asked them to go in and while they were inside. Before the three entered the house, they took from the car an axe handle and a metal bar. The three then entered the house. One stood over the male sleeping on the couch and another kicked open the bedroom door. As the male in the bedroom approached the door he was struck upon the head with the metal bar. A wallet was taken from this person. After several minutes inside, the three juveniles exited the house and left with defendant in the car. They returned to where defendant was living at the time. Defendant burned the wallet taken in the above described incident.

We are of the opinion the evidence is sufficient to show that defendant knowingly or intentionally aided or caused another person to commit a battery, Class B misdemeanor. Appellant asserts the evidence shows no more than presence at the scene and no affirmative conduct. In Young v. State, (1978) Ind.App., 373 N.E.2d 1108, 1111, the court states:

While mere presence at the scene of the crime is not itself sufficient to allow an inference of participation, such presence may be considered with other evidence in determining guilt. Thus the trier of fact may infer participation from appellant’s failure to oppose the crime, companionship with another engaged therein, and a course of conduct before and after the offense. In determining whether there is substantial evidence of probative value to support the verdict, each case must be reviewed on its own facts.

(Citations omitted.) We look for affirmative conduct either in the form of words or acts from which reasonable inferences of a common design or purpose might be drawn. Rogers v. State, (1978) 267 Ind. 654, 373 N.E.2d 125, 126.

As well as being present at the house, defendant looked around the house and informed the juveniles as to the whereabouts of the persons inside. Defendant asked the three to go in and “teach them a lesson.” They arrived together and left together. After the incident, upon returning to the place where defendant was living, defendant set fire to the wallet taken from the victim.

Appellant argues the juveniles had no intent to rob or commit battery upon anyone and also, no actions by defendant show that he intended for them to cause a battery to be committed. A reasonable inference could be drawn from defendant’s encouragement that the occupants of the house be taught a lesson and defendant’s failure to oppose the taking of the axe handle and metal bar into the house, he was aware of the probability that a battery might well occur. One who aids or causes a crime to be committed is liable for the acts of the principal, which though not part of their original plan are probable and natural consequences thereof. Pinkler v. State, (1977) 266 Ind. 467, 364 N.E.2d 126.

Even though defendant may not have intended for the victim to be hit on the head with a metal pipe, such is a probable and natural consequence of his plan to teach the occupants of the house a lesson. There was sufficient evidence from which the jury could find defendant knowingly and intentionally caused, aided, or encouraged another to commit a battery, to wit, knowingly or intentionally touch another person in a rude, insolent or angry manner.

The conviction of Battery, Class C felony is reversed. We remand for resentencing for the offense of Battery, a Class B misdemeanor and other proceedings consistent with this opinion.

MILLER, J., concurs. CHIPMAN, J., dissents with opinion.

1 . This was amended at the end of trial to conform to the evidence that a metal bar was used instead of an axe handle.

2 . See n. 4.

3 . This is also reflected in the sentencing provisions for aggravating and mitigating circumstances. Ind.Code 35-4.1-4-7.

4 .In Rodriquez v. State, (1979) Ind.App., 385 N.E.2d 1208, the information alleged the use of a knife and a threat to kill the victim. It was reasonable to construe such language to in-elude use of a deadly weapon because the allegation included the capability of serious bodily injury resulting, i. e. kill. This was not alleged in our case; only bodily injury was alleged. Also as earlier stated in the text, no instruction was given to distinguish serious bodily injury from bodily injury such that the jury could find use of a deadly weapon as defined by I.C. 35-41-1-2 (deadly weapon, part (b)).

5 . The dissent contends Stevens acquiesced in this instruction and the issue has been waived because Stevens failed to object to the instruction. Because, we find the information did not charge use of a deadly weapon, it would be fundamental error to permit a conviction which includes an element with which defendant was not charged. Lewis v. State, (1980) Ind.App., 413 N.E.2d 1069; McFarland v. State, (1979) Ind.App., 384 N.E.2d 1184.