Adams v. State

• Decision Date: 29 August 1989
• Docket Number: No. 71A03-8903-CR-84,71A03-8903-CR-84
• Citation: 542 N.E.2d 1362
• Parties: Gerald R. ADAMS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1362

542 N.E.2d 1362

Gerald R. ADAMS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 71A03-8903-CR-84.

Court of Appeals of Indiana Third District.

Aug. 29, 1989.

Aladean M. DeRose, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Gerald R. Adams appeals his conviction of auto theft, a Class D felony, and resisting law enforcement, a Class D felony, presenting the following issues for our review:

I. Whether the evidence supporting Adams' conviction of auto theft was obtained constitutionally?

II. Whether Adams drove the Fiat so as to constitute a "substantial risk of bodily injury to another person"?

III. Whether Adams was found guilty of resisting law enforcement based upon an unconstitutional section of that statute?

IV. Whether a witness's conviction of attempted rape can be used to impeach that witness?

V. Whether Adams was denied the effective assistance of counsel?

VI. Whether the trial court erred by not instructing the jury that all reasonable hypotheses of innocence must be excluded to convict upon circumstantial evidence alone, thus denying Adams of a fair trial?

VII. Whether the trial court erred by giving an instruction on flight as being evidence of the consciousness of guilt, thus denying Adams of a fair trial?

VIII. Whether the trial court erred in not giving an instruction on the culpability required for reckless conduct even though Adams was not charged with reckless conduct?

IX. Whether the trial court erred in giving an instruction which stated that the jurors were to presume that the witnesses were telling the truth?

X. Whether the trial court erred in failing to issue an instruction to cure the prosecutor's misstatement made during closing argument?

Affirmed.

On May 3, 1988, the Elkhart Police Department received a call, which informed them that a Gerald Adams would be driving a stolen brown or blue Fiat in the Central Park that afternoon. Although the department had received no calls concerning a stolen Fiat, and calls made to Elkhart garages by one of the detectives proved fruitless, the information concerning Adams and the stolen Fiat was given to the police radio operator.

Based upon this information, Officer Sherbun was sent to Central Park at approximately 3:30 p.m. This proved fruitless, but after investigating other parks, Sherbun returned to Central Park and saw a sports car near one of the park's entrances. Upon approach, Sherbun noted that it was a blue Fiat having an Elkhart plate. Sherbun also recognized Gerald Adams as the driver.

After trailing Adams for a few blocks, Sherbun decided to stop Adams' vehicle and investigate the situation. Accordingly, Sherbun activated his lights to indicate that Adams was to stop. However, rather than heed Sherbun's "order" to stop, Adams sought to elude the police car; a "chase" resulted in Sherbun's pushing the Fiat off of the road.

Upon approaching the Fiat, Sherbun noticed that the trunk lock was gone, that no key was in the ignition, and that two (2) wires were dangling from the dash. Later, this very Fiat was reported stolen.

Adams was charged with and found guilty of Automobile Theft, a Class D felony, (IC 35-43-4-2.5(b)) (Supp.1988), and Resisting Law Enforcement, a Class D felony (IC 35-44-3-3) (Supp.1988).

I. Auto Theft

Adams argues that at the time Sherbun first activated his squad car lights, directing Adams to stop, Sherbun had no probable cause to stop, i.e., arrest, Adams.

While the trial proceeded on whether Sherbun had the requisite ability to stop and arrest Adams based on the "felony in progress" theory, we need not discuss the propriety of this argument.

[P]robable cause is not needed for an investigatory stop. A police officer may stop a person upon a reasonable suspicion grounded in specific facts that further investigation is necessary. [Citations omitted.] A vehicle fitting the description of one used by the crime suspect provides reasonable suspicion for making an investigatory stop. [Citation omitted.]

Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092.

Here, at the time Sherbun decided to stop Adams and turned on the squad car lights, Sherbun had come close enough to the Fiat to note that Adams was the driver and that the Fiat matched "the description of one used by the crime suspect." Id. Further, although the informant's reliability may have been untested, "probable cause may be established by verification of extrinsic facts which sufficiently demonstrate reliability of the tip." Randall v. State (1983), Ind., 455 N.E.2d 916, 920.

Here, both the vehicle as well as its driver were identified to match the information given by the informant; Sherbun had a reasonable suspicion to make an investigatory stop of Adams' vehicle. Consequently, the evidence seen by Sherbun upon that stop would be constitutionally obtained.

II. Substantial Risk of Bodily Injury

Adams contends that the trial court found that Adams' driving constituted a "substantial risk of bodily injury to another person." Adams argues that "[a] substantial risk is a real and significant one, not simply possible or conjectural." (Appellant's Brief, p. 14). However, this overlooks the noun used--"risk," defined as a "danger; peril; hazard; to expose to danger or possible loss." Webster's Dictionary, 1987, p. 320.

Thus, Adams argues that because "not one vehicle or pedestrian was ever put in actual harm by his driving," (Appellant's Reply Brief, p. 5; emphasis added), no substantial risk occurred. However, no harm need have occurred for the risk of harm, i.e., the possibility of harm, to be present. Indeed, if someone had been seriously injured, the resisting law enforcement charge would have been elevated to a Class C felony pursuant to IC 35-44-3-3(b)(2) (Supp.1988).

When this court reviews for sufficiency of evidence, we neither reweigh the evidence nor judge witness credibility, looking instead to the evidence most favorable to the judgment along with its reasonable inferences; we will reverse only if there is no substantial evidence of probative value supporting the conviction. Litel v. State (1988), Ind., 527 N.E.2d 1114, 1115.

Here, Sherbun testified that Adams drove at speeds up to 80 mph, crossed the center line, and ran stop signs. With no way of knowing that no other traffic would be in the area, let alone pedestrians, we cannot say there is not substantial evidence of probative value to support a finding that such driving constituted operating a vehicle so as to constitute a "substantial risk of bodily harm." The risk was real even if actual harm never materialized.

III. Resisting Law Enforcement Statute

Adams contends that the paragraph of the resisting law enforcement statute under which he was charged is unconstitutional because it does not mandate that the officer be "lawfully engaged in the execution of his duties as an officer" or be "authorized" as required by the other paragraphs of that section. However, because Officer Sherbun was "lawfully engaged in the execution of his duties as an officer" when he attempted to stop Adams, Adams' claim is merely a hypothetical situation which we cannot address.

IV. Attempted Rape Conviction

In Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, our Supreme Court delineated the two types of crimes which are admissible to impeach the character of a witness: certain "heinous" crimes, which by their very nature impair a witness's credibility, and those crimes which actually reflect upon the witness's propensity for telling the truth.

The first prong of Ashton noted that some crimes are so "infamous" in nature that they render a witness incompetent by their very heinousness. The Ashton court concluded:

this court is bound by [the Indiana Code] which permits impeachment by showing prior convictions for crimes which would have rendered a witness incompetent. These crimes are: treason, murder, rape, arson, burglary, robbery [,] kidnapping, forgery and wilful and corrupt perjury.

Ashton, supra, 279 N.E.2d at 217.

The second prong of Ashton held that a witness can also be rendered incompetent by the commission of a crime reflecting upon that person's propensity for telling the truth. Here, the court stated:

[s]imply stated, either the particular criminal conviction reflects on the witness' credibility for truth and veracity, or it does not. If the particular conviction is for a crime which has a tendency to reflect on the individual's credibility for truth and veracity, such evidence should not be excluded; if the prior conviction is for a crime which has no bearing whatsoever on his credibility for truth and veracity, such evidence should not be admitted.

Ashton, supra, 279 N.E.2d at 216.

In the case at hand, although both parties concede that a conviction for the charge of rape would be properly admissible pursuant to the Ashton rule, Adams contends that a conviction for attempted rape should be equated to rape, and thus be admissible pursuant to the Ashton rule.

The Indiana Code defines "attempt" as follows:

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted....

West's A.I.C. Sec. 35-41-5-1(a). However, also pertinent to the definition of "attempt" is that the perpetrator did not complete the crime because of an "involuntary frustration."

Where there have been overt acts preparatory to commission of an offense coupled with specific intent, which may be inferred from certain acts, and it may be reasonably inferred that crime would have been committed but for some form of involuntary frustration, these acts may be deemed an attempt. [Citation omitted.] (Emphasis added.)

Washington v. State (19...