Davis v. State

• Decision Date: 04 January 2006
• Docket Number: No. 30A01-0502-CR-94.,30A01-0502-CR-94.
• Citation: 835 N.E.2d 1102
• Parties: Thomas DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintff.
• Court: Indiana Appellate Court

835 N.E.2d 1102

Thomas DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintff.

No. 30A01-0502-CR-94.

Court of Appeals of Indiana.

October 26, 2005.

Transfer Denied January 4, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kimberly S. Robinson, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

CRONE, Judge.

Case Summary

Thomas Davis appeals his convictions and sentence for class B felony robbery and class D felony resisting law enforcement. We affirm.

Issues

Davis raises six issues, which we consolidate and restate as follows:

I. Whether the trial court committed fundamental error when it failed to instruct the jury on the elements of resisting law enforcement;

II. Whether sufficient evidence supports his convictions;

III. Whether the trial court abused its discretion by refusing Davis's tendered jury instruction on the factors used to determine whether an unloaded weapon is deadly or capable of causing serious bodily injury;

IV. Whether his enhanced sentence violates his Sixth Amendment rights; and

V. Whether the trial court abused its discretion by failing to find mitigating circumstances.

Facts and Procedural History

On April 3, 2004, at approximately 11:00 a.m., Adrianne Brasher drove Davis and Andre Bacon to a Bank One branch at Green Meadows Shopping Center in Greenfield, Indiana, in order to rob it. All three wore blue jumpsuits specifically purchased for the robbery. When they arrived at the bank, Davis told Brasher to wait in the car with the engine running. Davis and Bacon each put on a ski mask and entered the bank. Davis and Bacon were armed with BB/CO2 guns that were neither loaded nor equipped with CO2 cartridges, and each carried a blue bag to hold the money.

Approximately eleven customers, three tellers, and one branch manager were present when Davis and Bacon entered the bank. Either Davis or Bacon told everyone to "be calm and stay cool." Tr. at 156. One of them pushed a customer away from one teller's window and demanded that the teller give him all her money. The other approached a teller at a closed window with his gun pointed at her. He threw a dark blue bag over the window and told her to put all her money into the bag. Another teller thought that the gun held by one of the robbers was a "Glock" handgun. Id. at 156. All the tellers were afraid and believed that the robbers were armed with real guns. One teller repeatedly stated, "you're scaring me." Id. at 181. She was so terrified by the robbery that she quit her job as a bank teller later that day. Neither Davis nor Bacon informed anyone in the bank that they were carrying unloaded BB/CO2 guns.

The two tellers that had been directed by Davis and Bacon to put their money in the blue bags did so. Each teller also placed a red dye pack into a blue bag. Davis and Bacon were in the bank branch approximately five minutes and left with over $10,000. They returned to the car Brasher was driving. Davis got into the back seat while Bacon got into the front seat. Brasher drove away from the bank.

One of the Bank One customers, who was leaving the bank as Davis and Bacon were entering it, saw what he believed to be a real handgun and heard one of them say, "this is a stickup." Id. at 216. The customer drove to a nearby restaurant so that his girlfriend could call the police. He stayed in his car and saw the robbers leave the bank and get into a green Pontiac Grand Prix with a Tennessee license plate. He followed the Pontiac to a stoplight, where he saw someone in the car throw out a blue bag with a red substance on it. He continued to follow the vehicle until it was about to enter Interstate 70, where he was able to flag down Greenfield Police Sergeant Terry Austin.

Sergeant Austin spotted the vehicle on Interstate 70 and activated his lights and siren. At least four more police cars with their emergency lights and sirens activated caught up to the vehicle. Brasher repeatedly told Davis that she wanted to stop, but he told her not to stop. Id. at 324. After being pursued for approximately eight miles, Brasher finally stopped the vehicle after it ran over a stop stick that deflated two tires. After the vehicle stopped and the suspects were secured, Sergeant Austin searched the vehicle. He saw what he believed was a semi-automatic Beretta handgun on the front floorboard. He also found a large amount of redstained money in the back seat.

On April 5, 2004, the State charged Davis with class B felony robbery, class D felony resisting law enforcement, and class D felony auto theft. On November 15, 2004, the State filed an amended information for each charge to clarify the factual allegations. On December 7, 2004, a jury trial began. At the close of the State's evidence, the State moved to dismiss the amended auto theft charge, which the trial court granted. On December 9, 2004, the jury convicted Davis of the remaining charges. On January 14, 2005, the trial court sentenced Davis to a twenty-year term for the robbery conviction and a three-year term for the resisting law enforcement conviction, to be served concurrently. Davis appeals.

Discussion and Decision

I. Failure to Instruct Jury on Elements of Resisting Law Enforcement

Davis contends that the trial court committed fundamental error by failing to instruct the jury on the elements of resisting law enforcement.¹ The elements of resisting law enforcement are set forth in Indiana Code Section 35-44-3-3, which provides in relevant part that a person who knowingly or intentionally flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop, commits resisting law enforcement, a class D felony if the person uses a vehicle to commit the offense.

Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. Carter v. State, 738 N.E.2d 665, 677 (Ind.2000). The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. In determining whether a claimed error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). The element of harm is not shown by the fact that a defendant was ultimately convicted. Id. Rather, it depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled. Id. In determining whether fundamental error occurred in the giving of instructions, we consider all the relevant information provided to the jury including that in closing arguments and other instructions. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002). There is no due process violation where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law. Id.

To support his argument that the trial court committed fundamental error, Davis relies on Lacy v. State, 438 N.E.2d 968 (Ind.1982), asserting that it held that a total failure to instruct the jury detailing the elements of a criminal offense warrants reversal. See id. at 970 ("We have no doubt a total failure to give an instruction detailing the elements of the offense would be available as reversible error on appeal absent compliance with the contemporaneous objection requirement."). We disagree that this is Lacy's holding. The statement Davis relies on is arguably dictum, inasmuch as there was no reason for the Lacy court even to consider whether fundamental error occurred because it concluded that the elements of the crime were given as preliminary instructions, and therefore, the trial court had not committed error. Id.; see also Elliott v. State, 450 N.E.2d 1058, 1063 (Ind.Ct.App.1983) (concluding that the Lacy statement discussed above is arguably dictum). Therefore, Lacy is not dispositive here.

The dissent argues that Lacy should control and notes that the Lacy court quoted Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), to support the statement that Davis relies upon.² The language from Screws is powerful indeed; however, it must be understood in context. In Screws, the defendants, a sheriff and police officer, were convicted for "willfully" depriving the victim of his civil rights while acting under color of the law pursuant to Section 20, 18 U.S.C. Section 52 (1940) for beating the victim to death after arresting him.³Id. at 93-94, 65 S.Ct. 1031. The defendants challenged the constitutionality of Section 20 arguing that it contained no ascertainable standard of guilt in violation of the Fourteenth Amendment. Id. at 94, 65 S.Ct. 1031. The constitutionality of the statute turned upon the level of intent that should be ascribed to "willfully." Id. at 101, 65 S.Ct. 1031. The Supreme Court concluded that "willful" must be interpreted to mean more than mere bad purpose or evil intent but rather the specific intent to deprive a person of a federal right. Id. at 103, 65 S.Ct. 1031. This interpretation of "willful" would allow the statute to withstand a charge of unconstitutional vagueness. Id.

The Supreme Court then noted that the level of intent was not submitted to the jury with the proper instructions. Id. at 106-07, 65 S.Ct. 1031. The trial court had instructed the jury that the defendants had "acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner's alleged assault." Id. The Supreme Court held that the trial court should have instructed the jury that "to convict it was necessary for them to find that petitioners defendants had the purpose to deprive the prisoner of a...