Beasley v. State

• Decision Date: 18 March 1983
• Docket Number: No. 282S49,282S49
• Citation: 445 N.E.2d 1372
• Parties: Michael L. BEASLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1372

445 N.E.2d 1372

Michael L. BEASLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 282S49.

Supreme Court of Indiana.

March 18, 1983.

Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Robbery, a Class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1979) and sentenced to fifty (50) years imprisonment. This direct appeal presents the following issues:

(1) Whether there is evidence from which the jury could have found that Defendant took the victim's eyeglasses as charged in the information.

(2) Whether the trial court erred in refusing Defendant's tendered instructions upon lesser included offenses in light of the State's evidence and his alibi defense.

(3) Whether the trial court's failure to give an adequate statement of aggravating circumstances in support of the enhanced sentence is fundamental error.

* * *

ISSUE I

The charge in pertinent part reads as follows:

" * * * did knowingly while armed with a deadly weapon, to wit: A HANDGUN, take from the person or presence of (the victim) property, to-wit: A PAIR OF EYEGLASSES by putting (the victim) in fear * * *."

Defendant contends that there was no evidence whatever that he took the victim's eyeglasses or intended to take them, as charged in the information. In making this argument, however, Defendant ignores the inferences that can be reasonably drawn from the circumstances in evidence and which support the verdict.

The evidence most favorable to the State reveals that Defendant and another assaulted the victim and his friend who were approaching a tavern in Indianapolis. After one of the assailants had fired a pistol and the friend had escaped to the shelter of the tavern, a struggle ensued between the victim and the assailants over possession of the victim's billfold located in his right hip pocket. When the victim's friend returned with help, the assailants fled down an alley, identified by a police officer as "10th Street." The victim, bleeding profusely from a cut to his head which he had sustained in the melee, sought aid in the tavern. He checked to see if anything was missing and discovered that, although he had his billfold, his eyeglasses and case were missing from his shirt pocket. A search of the area around the scene of the attack produced neither the glasses nor the case:

"A. * * * So one of the gentlemen that were with me there aiding me, he said, 'Which way did they run?' I said 'Well, they ran down the alley' and he says, 'What did they get?' I said, 'It's my glass class (sic)' So he said, 'Well, I'll go over there and look ---.' " R. at 190.

The glasses and case were found at a point along the route by which the assailants had escaped and fifteen to twenty feet from the scene of the struggle. The victim testified that he had not given his eyeglasses to anyone.

Defendant argues that the evidence reveals an intent on the part of the assailants to take the victim's billfold but not his eyeglasses and that it does not disclose that

the eyeglasses were ever in the possession of the assailants. The information charged only a "knowing" state of mind, Ind.Code Sec. 35-41-2-2(b) (Burns 1979), and the jury could have found from the evidence that one or the other of the assailants, the Defendant having been identified as an assailant, took the eyeglasses from the victim and, upon discovering what he had taken, discarded them while in flight. The evidence, though circumstantial, was adequate to permit a reasonable man to draw that inference beyond a reasonable doubt, hence it was sufficient to sustain the conviction. Hilligoss v. State, (1970) 253 Ind. 443, 447, 255 N.E.2d 101, 104. See Mitchell v. State, (1977) 172 Ind.App. 294, 297, 360 N.E.2d 221, 223. See also Jackson v. State, (1973) 260 Ind. 61, 64, 291 N.E.2d 892, 893.

ISSUE II

Defendant next assigns error to the trial court's refusal to give three of his tendered instructions, which instructions treated the subject of lesser included offenses.

Defendant's tendered instruction No. 1 contained the following (in part):

"The following may be included under the crime(s) charged:

Attempted Robbery, Theft, Attempted Theft, Attempted Battery, Battery, and Criminal Conversion.

The definitions and material elements of all crime(s) charged and included will be stated in other instructions."

Defendant reasons that the jury could have inferred that the victim's eyeglasses fell out of his pocket during the struggle, inasmuch as there was only circumstantial evidence that either of the assailants had taken them. We acknowledge that the jury could have drawn such inference and that, if it had done so, the defendant would have been entitled to an acquittal upon the charge of Robbery. We also acknowledge that the defendant, upon proper application, would have been entitled to an instruction upon lesser included offenses, but not to the one tendered.

Defendant argues that whenever there is more in question than the identity of the culprit, the accused is entitled to an instruction under which the jury could find him guilty of any of the offenses theoretically included under the statute and the charging instrument, but this is incorrect. To be entitled to an instruction that a particular lesser offense is included in the offense charged, it is not enough that such lesser offense be inherently included in the greater one, as defined by statute or necessarily included in the greater one as charged. Such instruction must also be applicable under the evidence adduced at trial. Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. See Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351.

In Hash, we observed that the jury would have been justified in finding for either the accused or the State, under the evidence, but that it could not discard the evidence and speculate upon a factual situation upon which there was no evidence and, by that process, arrive at a guilty verdict upon a theoretically lesser included offense. Hence, it would have been improper to give an...