Ball v. State, No. 1-280A30
| Docket Nº | No. 1-280A30 |
| Citation | 406 N.E.2d 305 |
| Case Date | June 24, 1980 |
| Court | Court of Appeals of Indiana |
Page 305
v.
STATE of Indiana, Plaintiff-Appellee.
Page 306
Michael A. Howard, Smith, Pearce & Howard, Noblesville, Wallace Weakley, Sheridan, Charles C. Engel, Duncan, Engel & Hostetter, Brownsburg, for defendants-appellants.
Theodore L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
NEAL, Judge.
Defendants-appellants David R. Ball and Jeannette M. Ball appeal from a judgment of the Hendricks Circuit Court following a jury determination that they were criminally culpable in the death of their infant son, Shawn D. Ball. Although the original charge against the Balls was murder, the jury found David guilty of the lesser included offense of involuntary manslaughter under Ind.Code 35-42-1-4(1) (Supp.1979):
"A person who kills another human being while committing or attempting to commit:
Page 307
(1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;
commits involuntary manslaughter, a Class C felony. . . . ",
the underlying class D felony being neglect of a dependent under Ind.Code 35-46-1-4(a)(1) (Supp.1979):
"(a) A person having the care, custody, or control of a dependent who knowingly or intentionally:
(1) places the dependent in a situation that may endanger his life or health;
commits neglect of a dependent, a Class D felony."
Jeannette was convicted of the lesser included offense of reckless homicide under Ind.Code 35-42-1-5 (Supp.1979):
"A person who recklessly kills another human being commits reckless homicide, a Class C felony. . . . "
We affirm.
Shawn D. Ball was born at Riverview Hospital in Noblesville, on October 11, 1978, weighing seven pounds and one-half ounce. Jeannette and Shawn were discharged from the hospital on October 14, 1978. From October 14, until November 30, 1978, Shawn lived with David and Jeannette in their apartment and was in their care at all times except for infrequent, short periods during which a relative babysat with him. On November 30, at approximately 3:50 p. m., Shawn was taken by emergency vehicle from his paternal grandmother's home where he and his parents were visiting to Riverview Hospital and was transferred shortly thereafter to Riley Hospital for Children in Indianapolis. He died at approximately midnight. At the time of his death, Shawn weighed five pounds and nine ounces. Cause of death was determined to be severe emaciation and both protein and caloric malnutrition.
Defendants raise three issues for our review:
I. Whether the trial court erred in refusing to give their tendered instruction No. 14;
II. Whether the trial court erred in admitting into evidence post-autopsy photographs of Shawn; and
III. Whether the trial court erred in admitting into evidence a child abuse report.
Issue I.
Defendants contend the trial court erred in refusing to give their tendered instruction No. 14 as follows:
"Where evidence necessary for conviction is wholly circumstantial in character, it must be of such conclusive and persuasive force that it tends to point surely and unerringly to the guilt of the accused, to the extent that it excludes every reasonable hypotheses (sic) of innocence."
They argue not that the evidence as a whole was wholly circumstantial, but that the evidence of one essential element of the offense of involuntary manslaughter and reckless homicide, the mens rea element, was wholly circumstantial, thus requiring the instruction.
The Indiana Supreme Court has announced the rule that where the evidence of guilt before the jury is entirely circumstantial, special rules are established for the jury's guidance. It is not enough that the circumstances be consistent with the hypothesis of guilt; they must be of so conclusive a character, and point so surely and unerringly to the guilt of the accused, as to exclude every reasonable hypothesis of innocence. Inman v. State, (1978) Ind., 383 N.E.2d 820; Baker v. State, (1973) 260 Ind. 618, 298 N.E.2d 445; Hitch v. State, (1972) 259 Ind. 1, 284 N.E.2d 783; Johnson v. State, (1972) 258 Ind. 683, 284 N.E.2d 517; Wheeler v. State, (1970) 255 Ind. 395, 264 N.E.2d 600; Crawford v. State, (1968) 251 Ind. 437, 241 N.E.2d 795; Miller v. State,
Page 308
(1968) 250 Ind. 338, 236 N.E.2d 173; Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874; Christen v. State, (1950) 228 Ind. 30, 89 N.E.2d 445; McAdams v. State, (1948) 226 Ind. 403, 81 N.E.2d 671; White v. State, (1948) 226 Ind. 309, 79 N.E.2d 771; Osbon v. State, (1938) 213 Ind. 413, 13 N.E.2d 223; Wolfe v. State, (1928) 200 Ind. 557, 159 N.E. 545; Landess v. State, (1928) 200 Ind. 440, 164 N.E. 267; Henry v. State, (1925) 196 Ind. 14, 146 N.E. 822; Robinson v. State, (1919) 188 Ind. 467, 124 N.E. 489.The Supreme Court has also stated that where the evidence of guilt is wholly circumstantial, the sufficiency of the evidence is measured and established by the above rule. Inman, supra; Baker, supra; Johnson, supra; Crawford, supra; Miller, supra; Manlove, supra; Christen, supra.
Further, where the evidence of guilt is wholly circumstantial, our Supreme Court has held that failure to give a tendered instruction to the jury on the circumstantial evidence rule as recited above is reversible error. McAdams, supra; Landess, supra; Robinson, supra.
However in Faught v. State, (1979) Ind., 390 N.E.2d 1011, 1017, our Supreme Court said:
" 'Instructions upon circumstantial evidence are not required to be given where the evidence of guilt is direct and positive or where some is direct and some is circumstantial.' . . .
Therefore, the refusal of an instruction regarding circumstantial evidence in the case at bar was not error because of the mixed nature of the evidence which included direct eyewitness testimony.
Second, defendant cites as authority for his tendered...
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