Defries v. State

• Citation: 264 Ind. 233,342 N.E.2d 622
• Decision Date: 26 February 1976
• Docket Number: No. 975S223,975S223
• Parties: Harold E. DEFRIES, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 622

342 N.E.2d 622

264 Ind. 233

Harold E. DEFRIES, Appellant, v. STATE of Indiana, Appellee.

No. 975S223.

Supreme Court of Indiana.

Feb. 26, 1976.

Ralph Bower, Stephen C. Bower, Kentland, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellant's conviction for aggravated assault was affirmed by the Court of Appeals in an opinion appearing at 319 N.E.2d 837. Appellant petitioned this Court for transfer and oral arguments were heard. A majority of this Court concurs in the result reached by the Court of Appeals, and we now adopt their opinion as follows:

'HOFFMAN, CHIEF JUDGE.

'This appeal arises from a judgment of conviction entered against appellant Harold E. Defries (Defries) upon a charge of aggravated assault and battery. Following trial by a jury, Defries was sentenced to a term of imprisonment for not less than one nor more than five years. Upon the overruling of appellant's motion to correct errors, he perfected this appeal.

'The facts and inferences most favorable to the State in the record establish that at approximately 10:30 P.M. on the night of June 9, 1973, appellant Defries was driving south on Weston Street in a residential area in Rensselaer, Indiana, at a high rate of speed and in an intoxicated condition. At this time, a group of children were playing in or near the west lane of Weston Street south of its intersection with Oak Street; due to a street light at the intersection, the children were visible from a distance of one block. As Defries approached the intersection from the north, he was seen by Jim Osborn (Osborn), who was approaching the intersection on Oak Street. Defries then failed to stop at the intersection, thereby obliging Osborn to stop to avoid him.

'One of the group of children, Jerry Justice (Jerry) had decided a few moments before Defries' arrival at the intersection to leave the group of children, and had crossed to the east side of Weston. Jerry's 9-year old sister, Rhonda, then apparently decided to follow him across the street. When she crossed the street, Rhonda placed herself in the path of Defries' auto as it sped through the intersection straddling the center line. Defries skidded approximately sixty-eight feet before striking Rhonda and throwing her an additional sixty-seven feet from the point of impact. In all, Defries' vehicle skidded ninety-six feet before stopping. His speed as he traveled through the intersection was estimated at from 50 to 60 miles per hour.

'After striking Rhonda, Defries stopped momentarily, turned his headlights off, and then proceeded south to the point where she had come to rest upon the pavement. Defries then hastily left the area and returned to his home, whereupon he picked up a neighbor and returned to the scene of the injury. Once back at the scene, Defries 'On appeal, Defries first challenges the adequacy of the affidavit under which he was charged. This question was presented to the trial court in a motion to quash, ¹

advised Police Officer Robert R. Duncan, 'I'm the one, I hit her', and was placed under arrest.

and has been properly preserved for appeal.

'The standards of specificity of indictments and charging affidavits in effect at the time the appellant herein was charged, and the reasons therefor, are well stated in Blackburn v. State (1973), Ind., 291 N.E.2d 686 at 690:

"In this state, the offense charged in the indictment must be stated with such certainty that the accused, the court, and the jury may determine the crime for which conviction is sought. IC 1971, 35--1--23--25 (Burns' Ind.Stat.Ann. § 9--1126 (1956 Repl.)); Thomas v. State (1968), 251 Ind. 76, 238 N.E.2d 20; rehearing denied; See also Noel v. State (1966), 247 Ind. 426, 215 N.E.2d 539, rehearing denied. The defendant must be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime. Ind.Const. art. I, § 13; See State v. Brown (1935), 208 Ind. 562, 196 N.E. 696. However, certain details may be omitted and a motion to quash may properly be denied unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained. IC 1971, 35--1--23--26 (Burns' Ind.Stat.Ann. § 9--1127 (1956 Repl.)) Kennedy v. State (1935), 209 Ind. 287, 196 N.E. 316 rehearing denied.'

'The affidavit in question charges Defries with the crime of aggravated assault and battery substantially in the language of the statute, IC 1971, 35--13--3--1, Ind.Ann.Stat. § 10--410 (Burns Supp.1974), while also alleging the identity of the victim and the date of the offense. It is appellant's contention that the gravamen of the offense is that Defries operated a motor vehicle in such a wanton and reckless manner that his aggravated injury of anotehr in so doing may be deemed willful. Appellant further asserts that because the crime involves the reckless operation of a motor vehicle, the affidavit must contain:

"(s)pecific allegations of what facts exist which make it appear that the injury (or death) was due to the reckless disregard of the safety of others.' Appellant's brief, p. 19.

'However, the authorities cited by appellant in support of this contention are inapposite in that they pertain to the crimes of reckless homicide and involuntary manslaughter. It is true that the unlawful act or act of reckless driving which proximately caused a death must be alleged in an affidavit charging involuntary manslaughter or reckless homicide because the existence of a proximate relationship between such acts and a death is the gist of these crimes as delineated by their respective statutes. In contrast, the gist of the offense of aggravated assault and battery as delineated by IC 1971, 35--13--3--1, supra, is the willful, unlawful infliction of great bodily harm and disfigurement upon another. The affidavit here at issue stated these elements of the offense plainly and with certainty.

'Appellant's contention on this point must be considered to be that because the State intended to prove his criminal intent by inference from certain of his reckless acts, he is entitled to be advised of such acts through the affidavit by which he is charged. Such contention is erroneous. The existence of criminal intent as a state of mind in an actor is an ultimate fact which may be inferred by the trier of fact from the circumstances surrounding an act as revealed by the evidence.

See: Farno v. State (1974), Ind.App., 308 N.E.2d 724, and cases cited therein. However, the evidentiary facts from which such ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 [264 Ind. 237] Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was inferred by the trier of fact cannot be regarded as improper. Furthermore, Defries has not demonstrated any prejudice to his rights or his defense by reason of such omission to the trial court, in his briefs to this court, or upon oral argument.

'The next issue which must be considered is whether the trial court erred in overruling appellant's motion for mistrial made following a reference by a witness to a breathalyzer test. Defries made a pretrial motion in limine, which was granted by the trial court, prohibiting, in part, reference to his refusal to submit to a breathalyzer test. The testimony objected to occurred during the State's case-in-chief as follows:

"Q. Could you tell the, the jury how you came into contact with the defendant, or where you came in contact with him?

"A. Yes, sir. I came in contact with the, with Mr. Defries at the office of the County Jail. And prior to that I had been on patrol and I was contacted by the Dunes Park Post to go to the jail that there had been a request for a breathalizer operator--

"MR. BOWER: To which I object and move that the counsel be instructed that there is a motion and that he has invaded by this witness and this Court to the prejudice of this defendant. I not only move that the conduct of the counsel but also of the witness, and that that jury be instructed and also request a mistrial.

"THE COURT: Will counsel approach the bench? (Counsel and the Court having a discussion at the bench.)

"THE COURT: The objection is sustained and motion denied.'

'Inasmuch as the appellant's motion in limine requested only that the State not offer evidence '(t)hat the defendant refused to submit to a breathalyzer', it is difficult to perceive how the above quoted testimony invaded the trial court's order thereon. The substance of the testimony admitted was that the officer came into contact with Defries when he came to the jail following a request for a breathalyzer operator. Surely the jury could not have concluded from this statement that the appellant refused to submit to a breathalyzer test. Additionally, it must be noted that there is substantial eyewitness testimony herein showing appellant's intoxication following the injury.

'The granting or denial of a motion for mistrial rests within the sound discretion of the trial court, and its ruling will be overturned only upon a showing of abuse of that discretion. Prather v. State (1973), Ind.App., 301 N.E.2d 667. And, this question must be decided upon the facts of each case. White v. State (1971), 257 Ind. 64, 272 N.E.2d 312. In view of the very slight, or more probably nonexistent, effect of the testimony in question upon the jury, it cannot be said that the trial court abused its discretion in failing to grant appellant's request for a mistrial. Additionally, assuming arguendo, that an error was committed by the trial court, we would be compelled to conclude that the error was harmless.

'The third issue which must receive consideration herein involves the appellant's lack of a valid driver's license at the time of the injury. An additional portion of ...