Burgess v. State

Decision Date17 April 1984
Docket NumberNo. 982S333,982S333
Citation461 N.E.2d 1094
PartiesDarrel Loyd BURGESS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Ihor N. Boyko, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Darrel Loyd Burgess, was convicted by a jury of attempted murder a Class A felony, Ind.Code Sec. 35-42-1-1(1) (Burns 1979 Repl.), Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.), and of carrying a handgun without a license, a Class A misdemeanor, Ind.Code Sec. 35-23-4.1-3 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for a term of thirty years. His direct appeal to this Court raises the following eight issues:

1. Whether defendant's conviction must be vacated because the charging information fails to allege that defendant shot the victim intentionally;

2. Whether the evidence was sufficient to establish proper venue;

3. Whether there was sufficient evidence to sustain defendant's conviction of attempted murder and carrying a handgun without a license;

4. Whether the trial court erred in not postponing defendant's trial due to the absence of a defense witness;

5. Whether the trial court erred in restricting the scope of defense counsel's cross-examination of a state's witness;

6. Whether defendant was denied a fair trial by the prosecutor's use of the word "confession" in describing a statement made by defendant;

7. Whether the trial court erred in refusing to accept defendant's tendered final instruction No. 4; and

8. Whether defendant's sentence of thirty years for attempted murder is manifestly unreasonable.

A summary of the facts from the record most favorable to the state shows that on July 25, 1981, defendant and a friend, Donald Bailey, were camping at the Gosport Fishing Club near Gosport, Indiana. Upon hearing what appeared to be gunshots coming from a nearby campsite, they decided to investigate the source of the sounds. Before leaving, however, defendant armed himself with a .25 caliber Baretta automatic pistol and a single shot .22 caliber Savage rifle. Bailey also armed himself with a .25 caliber Titan automatic pistol and a .22 caliber lever-action Marlin rifle. Both men then proceeded to walk to a nearby campsite where the shots appeared to originate from. Upon their arrival, two other men approached them and asked if there was some problem. Defendant told the men that the gunshots were upsetting several members of his group and that they should stop the shooting immediately. One of the two men, Kenny Patton, the victim, replied that the sounds defendant heard were merely firecrackers and should cause no alarm. Patton further explained that his party had paid rent for the lot, were bothering no one, and that defendant should "get the hell off" [the land]. Patton continued to shout at defendant. Patton had noticed that both defendant and Bailey were heavily armed and told defendant that he would take the rifle and shove it down his throat and that he would take the other rifle and shove it "up his ass." Defendant then turned, came up with his right hand and a shot rang out from the handgun striking Patton in the head and causing Patton extremely serious bodily injury. Defendant then left for a nearby tavern from where he notified the authorities about the shooting.


Defendant first contends that his conviction for attempted murder should be vacated because the charging information merely alleges that defendant "knowingly" shot Patton and fails to allege that defendant "intentionally" shot Patton. It is true that in Indiana the crime of attempted murder is a specific intent crime and that a conviction will not stand unless there is some evidence that the crime was committed intentionally. Norris v. State, (1981) Ind., 419 N.E.2d 129.

However, defendant concedes that this issue was not raised prior to trial or in his Motion to Correct Errors. Nevertheless, he urges that review of this alleged error is appropriate under the fundamental error doctrine. He cites Moon v. State, (1977) 267 Ind. 27, 366 N.E.2d 1168, in support of his contention. The defendant in Moon, pursuant to a plea agreement had pleaded guilty to armed kidnapping. After he was sentenced, he appealed, seeking credit against his sentence for time spent in prison on a sentence for a separate conviction which he was serving at the time of the crime to which he pleaded guilty. We observed, however, that no such crime as armed kidnapping was possible under Indiana's statutory scheme. We therefore vacated defendant's sentence, stating that a conviction of a nonexistent crime constitutes fundamental error. Defendant's reliance on Moon is entirely misplaced. Unlike the defendant in Moon, defendant here was charged with and convicted of an existent crime, attempted murder. Merely because each and every element of a particular offense might be absent from the information does not render the crime itself nonexistent. Defendant's contention in effect is a challenge to the sufficiency of the charging information. As such, the issue is governed by our decision in Brown v. State, (1982) Ind., 442 N.E.2d 1109, where we held that in Indiana a challenge to the sufficiency of an indictment or information is governed by statutory provisions and must be made by a motion to dismiss prior to arraignment and plea or any error in this regard is waived. Ind.Code Sec. 35-3.1-1-4(a)(9) (Burns 1979 Repl.). Again we note that defendant here raises this issue for the first time on appeal. We therefore find that the sufficiency of the charging information is not before us on this appeal.


Defendant next contends that the state failed to establish proper venue in Owen County, Indiana. The record discloses that defendant did not raise the question of venue until he did so in his Motion to Correct Errors. In Reynolds v. State, (1970) 254 Ind. 478, 260 N.E.2d 793, we held that a civil procedure statute was applicable and that an allegation of improper venue made for the first time in the motion for a new trial was not timely. We stated in Reynolds, 260 N.E.2d at 795:

"It is well settled that the question as to which of two courts of general jurisdiction should try a crime does not involve the jurisdiction of the subject matter, but only the place of trial. It is a question of venue and it may be waived by the defendant."

Even though the particular statute relied upon by this Court in Reynolds has been repealed, the rationale of that decision is still applicable to the venue provisions in effect at the time of this case. See, e.g., Scalf v. State, (1981) Ind.App., 424 N.E.2d 1084; Spoonmore v. State, (1980) Ind.App., 411 N.E.2d 146. Accordingly, because defendant failed to raise the venue issue by appropriate motion at trial, it is waived.


Defendant here alleges that there was insufficient evidence to sustain his conviction of attempted murder and carrying a handgun without a license. He asserts there was no evidence to support the conclusion that he acted with the specific intent to commit murder. His challenge to the conviction for carrying a handgun without a license is predicated on the argument that he carried the weapon in his place of abode and therefore did not violate the statute.

It is well settled that when the Court is confronted with a challenge to the sufficiency of the evidence, we may not weigh the evidence nor judge the credibility of witnesses. Rather, we are required as an appellate tribunal to examine the evidence most favorable to the fact-finder's conclusion, together with reasonable inferences which may be drawn therefrom. If, from that viewpoint, there is substantial evidence of probative value to support the fact-finder's conclusion that defendant was guilty beyond a reasonable doubt, it will not be disturbed. Easley v. State, (1981) Ind., 427 N.E.2d 435; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. We apply this standard whether the evidence is direct or circumstantial in nature. Easley v. State, 427 N.E.2d at 437; Ruetz v. State, (1978) 268 Ind. 42, 373 N.E.2d 152.

In two separate statements to police officers, defendant claimed that the shooting was an accident. He maintained that he raised the gun to Patton's head only to scare him and that the gun fired accidentally. Donald Bailey testified that defendant had the handgun for some time and was familiar with using it. There also was testimony from Robert Conley, a firearms expert with the Indiana State Police, that the handgun used by defendant in this incident could only be fired by pulling back on the trigger with a force in excess of six pounds. He further stated that his examination and testing of the handgun revealed no functional defects in the weapon.

This evidence is sufficient to support the jury's conclusion that defendant was guilty of attempted murder. The use of a weapon in a manner likely to cause death or great bodily harm may be sufficient to establish a defendant's intent to commit murder. Scott v. State, (1980) Ind., 413 N.E.2d 902; Zickefoose v. State, (1979) 270 Ind. 618, 388 N.E.2d 507. The jury was not bound to accept defendant's theory that the gun fired accidentally. Furthermore, it is well established that dependent upon the circumstances the intent to murder may occur as instantaneously as successive thoughts. Morris v. State, (1979) 270 Ind. 245, 384 N.E.2d 1022; Rogers v. State, (1979) 270 Ind. 189, 383 N.E.2d 1035. The evidence is sufficient to support the jury's conclusion that defendant's possession and use of a handgun constituted a substantial step toward the commission of murder which was coupled with the intent requisite to the crime.

We also find the evidence sufficient to support the defendant's conviction for carrying a handgun without a license. Defendant...

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11 cases
  • Duffitt v. State
    • United States
    • Indiana Appellate Court
    • February 17, 1988
    ...his objection regarding venue at any time during the trial, or in his motion to correct errors, and thus it is waived. Burgess v. State (1984), Ind., 461 N.E.2d 1094; Scalf v. State (1981), Ind.App., 424 N.E.2d 1084. Additionally, the State may prove venue by circumstantial evidence. Boze v......
  • Wethington v. State
    • United States
    • Indiana Appellate Court
    • August 31, 1995
    ...attempted murder was completed with first thrust of defendant's knife). Attempted murder requires an intent to kill. Burgess v. State (1984), Ind., 461 N.E.2d 1094, 1097 (attempted murder is a specific intent crime and conviction will not stand absent some evidence the crime was committed i......
  • Komyatti v. State
    • United States
    • Indiana Supreme Court
    • March 25, 1986
    ...Since Appellants did not specifically request a continuance, the trial court commits no error in failing to grant one. Burgess v. State (1984), Ind., 461 N.E.2d 1094, 1099, reh. denied (1984); see also Sidener v. State (1983), Ind., 446 N.E.2d 965, 968. Even had moved for a continuance, how......
  • Jones v. State, 49S00-8611-CR-958
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    • June 1, 1988
    ...weapon in a manner likely to cause death. Id. citing Jackson v. State (1978), 267 Ind. 501, 371 N.E.2d 698. See also Burgess v. State (1984), Ind., 461 N.E.2d 1094, 1099. Clearly, the injuries sustained by both victims, particularly Quarles, indicate the heavy wooden stick wielded in the ma......
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