Choate v. State

• Decision Date: 07 May 1984
• Docket Number: No. 183S18,183S18
• Citation: 462 N.E.2d 1037
• Parties: Donald Duane CHOATE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1037

462 N.E.2d 1037

Donald Duane CHOATE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 183S18.

Supreme Court of Indiana.

May 7, 1984.

Randall R. Shouse, Jasper, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Donald Duane Choate, was convicted of receiving stolen property, a Class D felony, Ind.Code Sec. 35-43-4-2(b) (Burns 1983 Supp.), and was found to be a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1983 Supp.). The defendant was sentenced to a term of thirty-two years imprisonment. In this direct appeal the following nine issues have been raised:

1. Whether the trial court erred in giving certain of the state's instructions and in failing to give certain of the defendant's;

2. Whether the trial court erred in admitting certain physical evidence;

3. Whether the trial court erred in admitting hearsay evidence 4. Whether the trial court erred in permitting the jury to take evidence into the jury room;

5. Whether the trial court erred in permitting the state to amend the information shortly before trial;

6. Whether the trial court erred in not admonishing the jury when they separated after the felony portion of the trial;

7. Whether the trial court erred in failing to grant a mistrial or a continuance when a juror became ill;

8. Whether the evidence was sufficient to support a conviction for receiving stolen goods; and

9. Whether the evidence was sufficient to establish the finding that the defendant was a habitual offender.

The facts most favorable to the state reveal that in March of 1980, a Leo Merkley told the defendant that he needed a trailer to use in hauling Merkley's bulldozer. The defendant indicated that he could probably find one. On March 18, 1980, a trailer was stolen from a construction site near Patoka. The defendant had worked for the construction company that owned the trailer. On March 19, the defendant sold a trailer to Merkley for $1,250. Merkley later received a bill of sale dated March 19, 1980, and signed by William Thrash as the seller and notarized by Joseph Akers. The police were unable to confirm that either Thrash or Akers existed. An employee of the construction company later spotted the trailer and notified the State Police. Subsequent investigation established that the serial number on the trailer was the same as the number on the trailer stolen from the construction site.

I.

The defendant claims several errors in respect to the final instructions given to the jury. The first of these stems from an instruction which stated in part that:

"A 'reasonable doubt' is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all the evidence and circumstances in the case. It should be a doubt based on reason and common sense and not a doubt based on imagination or speculation."

The defendant contends that the words "or lack of evidence" should have been inserted after the word "evidence" in the above instruction. The defendant asserts that the failure to modify the instruction gave the impression to the jury that he bore the burden of proving his own innocence and of proving reasonable doubt. We note, however, that another instruction given to the jury stated that "if from the whole evidence or lack of evidence any material fact essential to conviction has not been established to your satisfaction beyond a reasonable doubt, you should acquit the Defendant." Further instructions clearly stated that the state was required to prove its case beyond a reasonable doubt. Instructions to the jury should be read as a whole and are to be construed together. Davidson v. State, (1982) Ind., 442 N.E.2d 1076; Cobb v. State, (1980) Ind., 412 N.E.2d 728. Reading the instructions as a whole, we cannot say the trial judge erred in refusing to modify the instruction.

The defendant also claims the trial court erred in reading state's instruction number 6 to the jury. This instruction, which dealt with reasonable doubt, contained language that the "bare possibility that the defendant may be innocent does not raise a reasonable doubt." The defendant contends that the word "mere" should have replaced the word "bare" and that the failure to make the change once again left the impression with the jury that the defendant had to prove his innocence. We have previously found that similar language in an instruction did not prejudice the defendant when the instruction was juxtaposed with an instruction charging the jury not to act upon speculation. Harrison v. State, (1978) 269 Ind. 677, 382 N.E.2d 920; Carter v. State, (1977) 266 Ind. 196, 361 N.E.2d 1208. The jury in this case was instructed not to act upon speculation. Furthermore, we cannot say that the language used in state's instruction number 6 misled or confused the jury. There was no error in the giving of this instruction.

The next allegation of error concerning instructions stems from state's instruction number 5, which stated:

"You are instructed that the exclusive possession of stolen goods as well as a knowledge that the goods were stolen may be proved by circumstantial evidence."

The defendant asserts that this instruction was essentially the "exclusive possession rule," which does not apply to the offense of receiving stolen property. Strode v. State, (1980) Ind.App., 400 N.E.2d 183; Griffin v. State, (1978) 175 Ind.App. 469, 372 N.E.2d 497. Thus, in Griffin, the Court of Appeals stated:

"It has long been held that mere possession of stolen goods shortly after a theft has occurred is not sufficient circumstantial evidence to sustain a conviction for knowingly receiving or possessing stolen property."

175 Ind.App. at 475, 372 N.E.2d at 501. But state's instruction number 5 does not state that the conviction for receiving stolen property may be sustained solely by mere possession of stolen goods; rather, it allows the possession of the goods and the knowledge that they were stolen to be proved by circumstantial evidence. This is a correct statement of law, and it was not error to give this instruction to the jury.

The defendant next alleges that the trial court improperly refused his tendered instruction number 2, which stated that the terms "innocent" and "not guilty" were not synonymous. While the terms do not necessarily mean the same thing, the trial judge did not exceed his discretion in refusing to give this instruction. The trial judge may well have determined that defendant's tendered instruction number 2 would confuse and mislead the jury, especially since it stated that "you do not have to believe the defendant is innocent in order to return a verdict of not guilty." There was no error in refusing to give this instruction.

In addition to alleged errors in the instruction for the underlying felony portion of the trial, the defendant claims error in the instructions given at the conclusion of the habitual offender portion of trial. The defendant contends that the jury was improperly informed as to its role in the habitual offender phase since the trial judge refused three of the defendant's tendered instructions, numbers 4, 5, and 6. Defendant's tendered instruction number 4 dealt with Indiana's constitutional prohibition against vindictive justice, stating in part that:

"If after considering all of the evidence presented in this case, you find that the habitual offender statute, as applied to the defendant, is not founded on principles of reformation, then you may take that finding into consideration in rendering your verdict."

Defendant's tendered instruction number 5 stated:

"The Constitution of the State of Indiana provides that you are the judges of the law as well as the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves. Although you have the legal right to disagree with the court as to what the law is, still, you should weigh the instructions given to you in this case as you weigh the evidence, and disregard neither without proper reason."

Finally, defendant's instruction number 6 dealt with the constitutional prohibition against cruel and unusual punishment. We find that the refusal to give these instructions is not reversible error. To begin with, we agree with the state that neither instruction number 4 nor number 6 was applicable to this case. But even if they somehow were, the trial judge was quite correct in refusing these instructions. We have previously held that an instruction based on Article 1, Sec. 18 of the Indiana Constitution is improper, since the reformation of convicted felons is a matter to be considered by the legislature, not the jury. Erikson v. State, (1982) Ind., 438 N.E.2d 269; Denson v. State, (1975) 263 Ind. 315, 330 N.E.2d 734. Much the same rationale applies to the cruel and unusual punishment instruction. The jury's function in a habitual offender proceeding is to determine whether the defendant is a habitual offender as defined by statute. The issue of whether the statute infringes upon the Eighth Amendment is not one for the jury. Finally, while defendant's instruction number 5 was refused, the substance of this instruction was contained in another instruction. Thus it was not error to refuse to give the tendered instructions. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836.

The defendant lastly contends that the trial court improperly gave state's instruction number 3, since the defendant believes it contained an incomplete statement of the law. This instruction stated:

"A felony conviction means a conviction, in any jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year."

The defendant contends that the instruction should have been followed by the words "but it does not include a...