Ball v. State

Decision Date24 June 1980
Docket NumberNo. 1-280A30,1-280A30
Citation406 N.E.2d 305
PartiesDavid R. BALL, and Jeannette M. Ball, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

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.

STATEMENT OF THE CASE

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 (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.

FACTS

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.

ISSUES

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.

DISCUSSION AND DECISION
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 (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 instruction the case of McAdams v. State, (1948) 226 Ind. 403, 81 N.E.2d 671. However, defendant misrepresents the law as stated in that case in the first paragraph of his tendered instruction. That case says, 'When the evidence before the jury is entirely circumstantial . . . ,' . . . Defendant's instruction prefaces his statement of the law with 'When the evidence before the jury is partially circumstantial . . . .' . . . Defendant's instruction misstates the law."

Faught, supra, finds support in the following cases: Hitch, supra; Beavers v. State, (1957) 236 Ind. 549, 141 N.E.2d 118; McAdams, supra; Wolfe, supra; Sammons v. State, (1979) Ind.App., 397 N.E.2d 289.

Defendants contend that direct evidence was admitted on all issues except the issue of intent and that the only evidence of intent presented by the State was circumstantial and, therefore, they are entitled to the instruction for that issue. Even if this were so, their instruction No. 14 is erroneous. That instruction commences with the phrase "Where evidence necessary for conviction is wholly circumstantial in character . . . ." (Emphasis added.) Faught, supra, clearly denotes that such is an erroneous statement of the law. Defendants cite Inman, supra, Baker, supra, and Manlove, supra, as their authorities. In Baker and Manlove no question of an instruction was involved; the question was sufficiency of the evidence. In Inman the trial court gave the circumstantial evidence instruction and the Supreme Court approved it, but that instruction contained the words "where only circumstantial evidence is involved."

Defendants concede in their brief that they gave direct testimony on the subject of their intent. Therefore, the evidence on the issue of intent was mixed, some circumstantial, some direct, and so this case falls within the general rule as to the issue of intent alone.

However, in the interest of clarity, we are of the opinion that the cases cited above require in order to invoke the necessity of giving the circumstantial evidence instruction reciting the rule as first mentioned above, that all the evidence pertaining to guilt must be of a circumstantial character. Circumstantial evidence is a logical progression of reasoning built upon a premise of direct evidence, the totality of which excludes every reasonable hypothesis of the innocence of the defendant and imports guilt. It would be difficult, if not impossible, for the trier to separate in his mind a conclusion of guilt arrived at by deductive reasoning based upon circumstantial evidence from a conclusion arrived at by resort to direct evidence. It would be even more difficult to fashion an instruction in that regard.

A separate rule exists to guide trial courts and juries in assessing intent, malice, or purpose. Intent, malice, or purpose may be inferred from the voluntary commission of an unlawful act by a defendant. Morris v. State, (1979) Ind., 384 N.E.2d 1022; Inman, supra.

Other jurisdictions have addressed the precise issue raised by Defendants and have found no circumstantial evidence instruction required. Brown v. State, (1967 Del.) 233 A.2d 445; State v. Moehlis, (1977 Iowa) 250 N.W.2d 42; State v. Nortin, (1943) 170 Or. 296, 133 P.2d 252; Schwartz v. State, (1962) 172 Tex.Cr.R. 326, 357 S.W.2d 393; State v. Lapoint, (1913) 87 Vt. 115, 88 A. 523.

The Delaware Supreme Court in Brown, supra, 233 A.2d at 447, said:

"The general rule is that a refusal to give such a charge is reversible only when the State's case is based entirely or very substantially upon circumstantial evidence. 53 Am.Jur. 570; 23A C.J.S. Criminal Law § 1250, P. 610. Particularly is this true where intent is the only element not proven by direct testimony. 23A C.J.S. Criminal Law § 1250, P. 620. Intent must usually be inferred from the acts done, but this fact does not necessarily require that the charge on circumstantial evidence be given."

The Oregon Supreme Court in State v. Nortin, supra, 133 P.2d at 263, observed:

"Motive and...

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