Babbs v. State, No. 45A03-9209-PC-288

Docket NºNo. 45A03-9209-PC-288
Citation621 N.E.2d 326
Case DateSeptember 07, 1993
CourtCourt of Appeals of Indiana

Page 326

621 N.E.2d 326
Michele BABBS a/k/a Ivory Young, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 45A03-9209-PC-288.
Court of Appeals of Indiana,
Third District.
Sept. 7, 1993.
Transfer Denied Oct. 28, 1993.

Page 328

Susan K. Carpenter, Public Defender, Kathleen Littell, Deputy Public Defender, Office of Public Defender, Indianapolis, for appellant-petitioner.

Pamela Carter, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-respondent.

HOFFMAN, Judge.

Michele Babbs a/k/a Ivory Young appeals the denial of his petition for post-conviction relief following his convictions for robbery, a Class B felony, and battery, a Class C felony.

As restated, Babbs raises three issues for review:

(1) whether the trial court committed fundamental error in giving an instruction on the defense of voluntary intoxication to the jury;

(2) whether Babbs received effective assistance of trial counsel; and

(3) whether the trial court was justified in imposing enhanced consecutive sentences.

The facts relevant to this appeal disclose that after a jury trial in 1981, Babbs was convicted of the offenses of robbery while armed and battery by means of a deadly weapon. The charges arose from Babbs and his accomplice's robbery of a shoe store in Gary, Indiana. During the course of the robbery, Babbs shot a police officer grazing the officer's arm. Our supreme court affirmed the convictions in Babbs v. State (1983), Ind., 451 N.E.2d 655.

In Babbs' statement to the police and his trial testimony, Babbs stated that he had consumed a half a pint of whiskey one-half hour prior to the robbery and was "tipsy" at the time the offenses were committed. Babbs, however, was able to give a detailed account of the robbery to both the police and the jury. After the completion of the evidence, the trial court showed the parties its proposed final instructions. The jury instructions included an instruction on intoxication

Page 329

as a defense. Babbs' trial counsel did not object to the giving of the intoxication instruction and did not offer any instruction of his own.

On July 28, 1986, Babbs filed a petition for post-conviction relief. The State filed an answer to the petition on August 27, 1986. On April 3 and June 2, 1989, Babbs amended the petition. A post-conviction hearing was held on May 2, 1989. Thereafter the court issued Findings of Fact and Conclusions of Law denying Babbs' petition for post-conviction relief. Babbs now appeals.

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind Post-Conviction Rule 1 Sec. 5; St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Thus, to succeed on appeal from the denial of his petition, Babbs must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. See id. A post-conviction proceeding is not a "super-appeal" which allows the rehashing of prior proceedings regardless of the circumstances surrounding them. Terry v. State (1990), Ind.App., 563 N.E.2d 1301, 1303. Absent a showing by the post-conviction petitioner an issue was unascertainable or unavailable at the time of trial and direct appeal, allegations of error arising therefrom may not be raised in post-conviction proceedings unless they rise to the level of fundamental error. P-C.R. 1(8); Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied.

Fundamental error is error that if not corrected would deny a defendant fundamental due process. Jackson v. State (1991), Ind., 575 N.E.2d 617, 621. An issue not properly raised and preserved will be reviewed only when a blatant violation of basic and elementary principles has occurred, and the harm or prejudice cannot be denied. Ward v. State (1988), Ind., 519 N.E.2d 561, 562.

Babbs contends that fundamental error occurred in the giving of Final Instruction No. 13 concerning intoxication as a defense. Instruction No. 13 reads as follows:

"The defense of intoxication is defined by law as follows:

It is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, if the intoxication resulted from the introduction of a substance into his body, without his consent or when he did not know that the substance might cause intoxication.

Voluntary intoxication is a defense only to the extent that it negates an element of the offense referred to by the phrase 'with intent to' or 'with an intention to.'

Therefore voluntary intoxication is not a defense to Robbery, Count I, or Attempted Murder, Count II or the included offenses in Count II of Battery or Criminal Recklessness."

Babbs did not object to the instruction at trial nor was this challenge raised in his direct appeal. In fact, at the time Babbs was tried, this instruction was a correct statement of law.

See IND.CODE Sec. 35-41-3-5(b) (1982 Ed.); Poe v. State (1983), Ind., 445 N.E.2d 94, 98 (defense of voluntary intoxication applicable only to offenses with either the phrase "with intent to" or "with an intention to" contained within the statutory definition of the crime charged); Smith v. State (1982), Ind.App., 441 N.E.2d 984, 985-986 (voluntary intoxication not available as defense to robbery, since robbery contains the word "intentional," not the phrase "with intent to" or "with an intention to"). Babbs, nevertheless, asserts that giving the instruction constituted fundamental error due to the Indiana Supreme Court's decision in Terry v. State (1984), Ind., 465 N.E.2d 1085. In Terry, our supreme court held that "[a] defendant in Indiana can offer a defense of voluntary...

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11 practice notes
  • Jones v. State, No. 49A02–1204–CR–292.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 2013
    ...combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction of a misdemeanor.” 6621 N.E.2d at 326. In so holding, the Court noted that “fundamental sentencing guidelines with respect to treatment of felonies likewise apply to misdemean......
  • Sanchez v. State, No. 92A03-9908-CR-322.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 2000
    ...out acts requiring physical skill, and therefore, giving defective instruction could not result in error), reh'g denied; Babbs v. State, 621 N.E.2d 326, 330 (Ind.Ct.App.1993) (concluding that there was no error in giving instruction where defendant was not entitled to instruction on volunta......
  • Datzek v. State, No. 30A01-0503-CR-114.
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 2005
    ...to a term of imprisonment of one year with ninety days executed and one year of probation. See, e.g., Ind.Code § 35-50-3-1(c); Smith, 621 N.E.2d at 326 n. 2 (noting that Ind.Code § 35-50-3-1(c) "extends the maximum period of probation under suspended sentence for a misdemeanor only when the......
  • Wethington v. State, No. 49A02-9501-PC-13
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1995
    ...denied. Fundamental error is error that, if uncorrected, would deny a defendant fundamental due process. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied. A defendant may raise a double jeopardy issue in a post-conviction proceeding even if he failed to present the issue ......
  • Request a trial to view additional results
11 cases
  • Jones v. State, No. 49A02–1204–CR–292.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 2013
    ...combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction of a misdemeanor.” 6621 N.E.2d at 326. In so holding, the Court noted that “fundamental sentencing guidelines with respect to treatment of felonies likewise apply to misdemean......
  • Sanchez v. State, No. 92A03-9908-CR-322.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 5, 2000
    ...out acts requiring physical skill, and therefore, giving defective instruction could not result in error), reh'g denied; Babbs v. State, 621 N.E.2d 326, 330 (Ind.Ct.App.1993) (concluding that there was no error in giving instruction where defendant was not entitled to instruction on volunta......
  • Datzek v. State, No. 30A01-0503-CR-114.
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 2005
    ...to a term of imprisonment of one year with ninety days executed and one year of probation. See, e.g., Ind.Code § 35-50-3-1(c); Smith, 621 N.E.2d at 326 n. 2 (noting that Ind.Code § 35-50-3-1(c) "extends the maximum period of probation under suspended sentence for a misdemeanor only when the......
  • Wethington v. State, No. 49A02-9501-PC-13
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1995
    ...denied. Fundamental error is error that, if uncorrected, would deny a defendant fundamental due process. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied. A defendant may raise a double jeopardy issue in a post-conviction proceeding even if he failed to present the issue ......
  • Request a trial to view additional results

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