Buttram v. State
| Decision Date | 16 November 1978 |
| Docket Number | No. 1178S261,1178S261 |
| Citation | 269 Ind. 598,382 N.E.2d 166 |
| Parties | Donald E. BUTTRAM, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
James D. Lopp, Sr., James D. Lopp, Jr., Glenn A. Grampp, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION TO TRANSFER
Appellant was charged by indictment with assault and battery with intent to gratify sexual desires pursuant to IC § 35-1-54-4 (Burns 1975). The jury found appellant guilty of assault. He was sentenced to serve six months on the Indiana State Farm and was fined $500 and costs. The Indiana Court of Appeals, in an unpublished opinion rendered on May 16, 1978, reversed the appellant's conviction and remanded his cause for a new trial. Upon petition by the State and for the reasons stated herein, we grant transfer and reinstate the appellant's conviction.
The record shows the appellant picked up the five-year-old prosecuting witness from his babysitter's home on the evening of October 27, 1976. The child was taken to the appellant's home where he was to spend the night. The boy testified that during the night the appellant committed fellatio upon him. The appellant denied this act.
The Court of Appeals found the evidence insufficient to support a conviction for assault. It stated in part:
The State argues that assault is a lesser included offense to assault and battery or assault and battery with intent to gratify sexual desires. The State maintains that by finding sufficient evidence to support the greater offense, the Court of Appeals should have found the evidence sufficient to sustain a conviction for assault. With this contention we must agree.
An includable offense is one which is necessarily committed in the commission of the offense charged. Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797. Assault has traditionally been held to be a lesser included offense of assault and battery. Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618. This is true even though the elements of assault are phrased somewhat differently than those of assault and battery with intent to gratify sexual desires. See Allison v. State, supra.
The Court of Appeals determined that a lack of violence and the child's inability to appreciate the nature of the sex act negated a finding on the element of assault which requires an attempt to "commit a violent injury." It should be noted however that force, consent and knowledge of the perverse nature of the act are not generally germane to the charge of assault in sex offenses in which a child is the victim. Hamilton v. State, (1957) 237 Ind. 298, 145 N.E.2d 391. This rule recognizes that a child will often not have the capacity to resist since he will trust the direction of an adult without question. Further, a violent injury need not always be physical in nature. The mental and emotional scars which accompany exposure to such activity may be more severe than physical injury. We hold this record contains sufficient evidence to support the jury's verdict of guilty on the lesser offense of assault.
We further hold that the Court of Appeals erred in finding that the trial court had improperly instructed the jury on the crime of assault. First, the appellant failed to object at trial to the giving of that instruction. He has therefore waived the issue on appeal. Indiana Rules of Criminal Procedure 8(B); Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. Second, the instruction acted only to the advantage of the appellant since it informed the jury that a lesser verdict could be returned. Finally, the instruction properly stated the law in this jurisdiction.
The appellant alleges that the trial court erroneously denied his motion to dismiss the indictment. He based his motion to dismiss upon the language of the indictment, which stated in part: "Buttram on or about the 27th of October A.D. 1976 at said County did unlawfully and feloniously Do on Steven Davis, a child under the age of twelve (12) years . . . ." (emphasis added.) He argues that the reference to "do on" was vague and failed to give adequate notice of the crime charged. This clause of the indictment should however be read in light of the last clause of the indictment, which stated: "(t)he said Donald E. Buttram did fondle and caress the body of said Steven Davis with the intent to gratify the sexual desires. . . ." Clearly these clauses taken together are sufficient to inform the appellant of the crime for which he was charged.
Appellant also claims the trial court erred in overruling his objection to the State's motion to amend the indictment to substitute the words "do on" with the words "touch one." An indictment may be amended for defects which do not prejudice the substantial rights of the appellant. IC § 35-3.1-1-5(a) (9) (Burns Supp.1978). The appellant has demonstrated no prejudice to his cause. The amendment did not change any theory of the prosecution as originally stated or the identity of the crime charged. It did not attempt to cure a failure to charge or state a crime. IC § 35-3.1-1-5(e) (Burns Supp.1978); State ex rel. Kaufman v. Gould, (1951) 229 Ind. 288, 98 N.E.2d 184. The trial court therefore committed no error in allowing the State's motion to amend.
The appellant also alleges error in the trial court's refusal to instruct the jury pursuant to appellant's tendered instructions numbered 2, 4, 5, 6, 7 and 10. The instruction of the jury is largely within the discretion of the trial court and will be reviewed only for abuse of that discretion. Hackett v. State, (1977) Ind., 360 N.E.2d 1000. Appellant's tendered instructions numbered 2, 5 and 10, dealt with the issue of reasonable doubt. The trial court instructed the jury on the question of reasonable doubt in its instructions numbered 2,...
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