Blackmon v. State

• Decision Date: 01 November 1983
• Docket Number: No. 982S344,982S344
• Citation: Blackmon v. State, 455 N.E.2d 586 (Ind. 1983)
• Parties: Juan C. BLACKMON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 586

455 N.E.2d 586

Juan C. BLACKMON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 982S344.

Supreme Court of Indiana.

Nov. 1, 1983.

M. Anne Wilcox, Ralph Ogden, J. William DuMond, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Juan C. Blackmon, was convicted of burglary, a Class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1983 Supp.) and for being an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1983 Supp.). The defendant was sentenced to fifty years' imprisonment. On this direct appeal, the defendant raises the following issues:

1. Whether the trial court committed fundamental error in not giving any jury instruction stating each element of the offense charged;

2. Whether the evidence was sufficient to sustain the defendant's conviction for burglary beyond a reasonable doubt;

3. Whether the trial court erred in allowing a sheriff's deputy to give his opinion about the reaction of burglars;

4. Whether the evidence was sufficient to sustain the defendant's conviction as an habitual offender beyond a reasonable doubt; and

5. Whether the court erred in sentencing the defendant to a term of twenty years on the underlying offense.

The facts most favorable to the state show that on September 16, 1981, Cheryl Childress observed a man looking through the front door of her condominium located in Indianapolis. She sent her son, John, to find out who it was. Before John reached the door, the stranger knocked and asked for directions to another residence. This stranger was later identified as the defendant.

A few minutes later a neighbor of the Childresses reported to John that he had seen a man looking into windows of other condominiums in the complex. Thus, before leaving for work, Cheryl Childress locked all of her windows and doors, with the exception of a window in an attached garage. She also did not lock the overhead door to the garage, since the door was off its hinges and difficult to raise.

A few minutes after Cheryl and John left their condominium, a neighbor saw the defendant attempt to raise the door to the Childress's garage. The defendant was unable to do so, and the neighbor then observed the defendant enter through the open window. The neighbor called the police, who arrived shortly thereafter. A sheriff's deputy apprehended the defendant, and the neighbor identified him as the one who had entered the garage.

I.

The defendant's first assertion of error stems from the trial court's Final Instruction Number 4, which stated:

"The crime of burglary is defined by statute as follows:

"A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling.

"To convict the defendant the state must have proved each of the following elements:

"1. Broke and entered

2. The building or structure of another

3. With intent to commit a felony in it.

"If the state failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

"If the state did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of burglary, a Class C felony.

"If the state further proved beyond a reasonable doubt that the burglary was committed while armed with a deadly weapon (or) the building or structure was a dwelling, you should find the defendant guilty of burglary, a Class B felony."

The defendant contends this instruction was insufficient in that it failed to define the term "felony." The defendant argues that the jury could have therefore returned a guilty verdict upon a finding that the defendant broke and entered with the intent to commit any criminal act the jury considered to be a felony. The defendant further contends that the final instructions as a whole were insufficient since they failed to inform the jury that specific intent, rather than general unlawful intent, was required to sustain the conviction of burglary. As a result, the defendant asserts the trial court committed fundamental error by failing to give an instruction stating each element of the offense charged.

We have consistently held that it is up to the discretion of the trial court whether to give an instruction including definitions. Coonan v. State, (1978) 269 Ind. 578, 382 N.E.2d 157; Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727. The above instruction was a correct statement of the law, and the failure to define "felony" was not an error.

Nor is the failure to instruct the jury on specific intent fatal. In Banks v. State, (1976) 265 Ind. 71, 351 N.E.2d 4, we held that use of the word "specific" was not necessary to convey to the jury the definition of burglary. As noted in Banks, the word is not even contained in the statutory definition of burglary. See Ind.Code Sec. 35-43-2-1 (Burns 1983 Supp.). As such, the instructions sufficiently stated the elements required for the offense charged.

Another reason also exists for finding no error. The defendant's allegation of error stems from the instructions given to the jury. Under Ind.R.Tr.P. 51(C), "No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The defendant, however, failed to object to Final Instruction Number 4, nor did he tender any instructions containing a definition of "felony" or stating that specific intent was required. The defendant's Motion to Correct Errors also makes no mention of omissions or insufficiencies in the final instructions. As such, the issues now raised for the first time on appeal would normally be waived. Johnson v. State, (1979) 271 Ind. 145, 390 N.E.2d 1005.

The defendant, however, asserts that the alleged errors were fundamental. It is true that a fundamental error may be considered on appeal even if not raised by proper objection at trial. Kleinrichert v. State, (1973) 260 Ind. 537, 297 N.E.2d 822. "To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively." Nelson v. State, (1980) Ind. 409 N.E.2d 637, 638. The alleged error here is not "blatant." The correct elements of the offense were given in both Final Instruction Number 4 and in preliminary Instruction Number 3, and there was no error in failing to define "felony" or in failing to mention that specific intent was required. The jury was also instructed as to the legal distinction between "intentionally" and "knowingly." Thus, there was no potential for harm. Since there is no fundamental error, the issue has been waived.

II.

The defendant next asserts that there was insufficient evidence on all the elements to sustain the defendant's conviction for burglary beyond a reasonable doubt. The defendant contends that the state failed to prove the defendant intended to commit the felony of theft, as charged in the information.

The standard for reviewing sufficiency of evidence is well established. We will neither reweigh the evidence nor judge the credibility of witnesses. Instead, we look at the evidence most favorable to the state and all reasonable inferences drawn therefrom, Walker v. State, (1982) Ind., 442 N.E.2d 696; Fielden v. State, (1982) Ind., 437 N.E.2d 986.

The state, in this case, needed to prove four elements beyond a reasonable doubt: that the defendant (1) broke; (2) entered; (3) the dwelling of Cheryl Childress; (4) with the intent to commit a felony. Here the state charged an intent to commit theft, and it was required to prove this. The state, however, was not required to prove a completed theft. Instead, the proper focus is whether the evidence was sufficient to prove intent to commit the charged felony. Bush v. State, (1980) Ind.App., 401 N.E.2d 796. Raymer v. State, (1978) 177 Ind.App. 696, 381 N.E.2d 109. This intent may be inferred from the time, force, and manner in which the entry was made. Lisenko v. State, (1976) 265 Ind. 488, 355 N.E.2d 841. The evidence showed that the defendant was in Cheryl Childress's garage without her permission, and that he got there by entering through an unlocked window. While in the garage, the defendant opened a tool box, moved various articles, and unlocked the door between the garage and the condominium. The jury could reasonably infer from this that the defendant was there with the intent to commit theft.

III.

The defendant next contends that the trial court erred when it allowed Deputy Thomas Brewster of the Marion County Sheriff's Department to give expert testimony on the conduct of burglars. The issue stems from the following question during the state's direct examination:

Q. "Uh, Deputy Brewster, in your experience if a burglar enters the residence and hears a noise or commotion inside, what if anything will he do?"

A. "He usually leaves."

Previously, the defendant timely objected to this question on the ground that the jury was qualified to make its own determination. After the objection the trial judge asked that the state establish the witness's expertise as a police officer. Once this was done, the question was allowed over the defendant's renewed objection.

The defendant's contention is essentially that the witness's answer invaded the province of the jury in that it (1) presented an expert opinion in an area where the jurors were as well qualified to form conclusions, (2) allowed the witness to testify on the ultimate question in the case, the guilt or innocence of the defendant, and (3) stated an opinion about the state of mind of the...