Emerson v. State
| Decision Date | 11 June 1998 |
| Docket Number | No. 49S02-9703-PC-190,49S02-9703-PC-190 |
| Citation | 695 N.E.2d 912 |
| Parties | Henry G. EMERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
The Court of Appeals reversed a trial court's denial of Henry G. Emerson's petition for post-conviction relief. Having granted transfer, we affirm the post-conviction court.
On July 25, 1986, Henry G. Emerson ("Emerson"), his brother, John Wesley Emerson, and Derrick Jones attacked Robert Brown and his son, Lynn Brown, as the latter two were playing cards in Douglass Park in Indianapolis. The two Emersons and Jones beat Robert with their fists and Lynn with sticks, and Jones stabbed Lynn in the chest with a knife.
A jury convicted Emerson of two counts of Battery 1 and, in a separate proceeding, adjudicated him to be a Habitual Offender. 2 The trial court sentenced Emerson to a term of thirty-five years: five years for class C felony Battery, plus a thirty year enhancement for the habitual offender conviction, and a six month concurrent sentence for class B misdemeanor Battery. This Court affirmed Emerson's convictions and sentence. Emerson v. State, 539 N.E.2d 5 (Ind.1989). On February 14, 1995, Emerson filed an amended petition for post-conviction relief, which the trial court denied on October 3, 1995. On appeal, the Court of Appeals held that the trial court's jury instruction on Battery impermissibly deviated from the charges filed against Emerson, reversed Emerson's convictions and sentence for class C felony Battery and Habitual Offender, and remanded for retrial. Emerson v. State, 675 N.E.2d 721 (Ind.Ct.App.1996). The State petitioned this Court for transfer, which we granted on March 11, 1997.
Emerson presents for our consideration the following issues: (1) whether the trial court committed fundamental error when it instructed the jury on the definition of Battery; (2) whether the trial court erroneously sentenced Emerson on the habitual offender conviction; and (3) whether Emerson received effective assistance of both trial and appellate counsel.
At the trial on his petition for post-conviction relief, Emerson had the burden of establishing any grounds for relief by a preponderance of the evidence. Ind.Post--Conviction Rule 1(5). To the extent the post-conviction court denied relief, Emerson appeals from a negative judgment, and must convince the appeals court that the evidence as a whole led unerringly and unmistakably to a decision opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995) (citing Williams v. State, 508 N.E.2d 1264, 1265 (Ind.1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983)). Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will the reviewing court disturb the decision as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994)).
Emerson prevailed at the Court of Appeals on his claim that the trial court committed fundamental error when it instructed the jury on the crime of Battery as follows: 3
A part of the Statute of the State of Indiana which defines and states the essential elements of the crime of Battery, a Class C felony, with which the defendants are charged in Count Two of the Information, reads as follows:
"A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery ... a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon."
(T.R. at 112; 134 (emphasis added).) 4
The Court of Appeals found that this instruction impermissibly deviated from the charge of class C felony Battery filed against Emerson. Emerson, 675 N.E.2d at 726 (). The charging information read as follows: 5
... HENRY G. EMERSON, on or about the 25th day of July, A.D.1986, at and in the County of Marion and the State of Indiana, did knowingly touch LYNN BROWN in a rude, insolent or angry manner, to-wit: STRUCK, STABBED AND CUT LYNN BROWN, by means of deadly weapons, to-wit: STICKS AND A KNIFE....
(T.R. at 15 (emphasis added).)
In reaching this decision, the Court of Appeals relied heavily on Kelly v. State, 535 N.E.2d 140 (Ind.1989). In Kelly, the defendant was charged with non-consensual criminal confinement, but the court instructed the jury on the statutory definition of criminal confinement, which includes both non-consensual criminal confinement and criminal confinement by removal. 535 N.E.2d at 141. The jury convicted the defendant on a general verdict. On appeal, this Court reversed, holding that the jury instruction constituted prejudicial error because it was impossible to tell on which charge the jury had convicted the defendant.
This Court recently distinguished the Kelly holding from a situation almost identical to Emerson's in Potter v. State, 684 N.E.2d 1127 (Ind.1997), 6 noting that the crux of our decision in Kelly was that the State had not tendered evidence sufficient to prove the crime of confinement as charged, but had offered evidence tending to prove the crime as erroneously instructed. In Potter, this noticeable disparity between the evidence presented and the crime as charged was lacking, and we commented that a finding of prejudicial error requires more than an overly broad jury instruction. 684 N.E.2d at 1132. Prejudice requires harm to the defendant, for example, by misleading the jury as to the applicable law. Dixon v. State, 425 N.E.2d 673, 678 (Ind.Ct.App.1981). There is no prejudicial error if the jury is instructed expressly on the charge against the defendant, and the State offers evidence to prove that charge. Evans v. State, 571 N.E.2d 1231, 1235 (Ind.1991); Dixon, 425 N.E.2d at 678 (). See McIntosh v. State, 638 N.E.2d 1269, 1275 (Ind.Ct.App.1994), trans. denied. Nor is there prejudice if the jury is aware it can convict the defendant only upon the crime as charged. McIntosh, 638 N.E.2d at 1275; Dixon, 425 N.E.2d at 678. See Evans, 571 N.E.2d at 1235.
Emerson's situation is much more like Potter than like Kelly. While Emerson correctly argues that the jury instruction on Battery exceeded the scope of the crime as charged, and that the State presented evidence supporting the uncharged crime, i.e., battery resulting in serious bodily injury, it is also true that the State presented sufficient evidence to prove Emerson committed battery with a deadly weapon. Lynn Brown, Emerson's victim, testified on behalf of the State that Emerson beat him with sticks or "tree limbs." Emerson does not dispute this fact, nor does he challenge the characterization of "tree limbs" as deadly weapons. Furthermore, the definition of "deadly weapon" on which the jury was instructed includes the concept of "serious bodily injury:"
I instruct you that under the law of Indiana, a "deadly weapon" means: (1) A loaded or unloaded firearm; or (2) A weapon, device, equipment, chemical substance or other material that in the manner it is used or could be used, or is intended to be used, is readily capable of causing serious bodily injury.
(T.R. at 115; 137 (emphasis added).)
Therefore, evidence tending to prove that Emerson used an instrument readily capable of inflicting serious bodily injury was necessary to prove that Emerson used a deadly weapon when he battered Lynn.
Moreover, we will find fundamental error in the giving of instructions only if the instructions read together as a whole fail to alleviate any harm that might have occurred from one erroneous instruction. Dixon, 425 N.E.2d at 678. Here, the court instructed the jury on the charges of Battery filed against Emerson; this instruction did not include a charge of Battery resulting in serious bodily injury. The court instructed the jury on the definition of a deadly weapon, which included the concept of serious bodily injury, but not on the definition of serious bodily injury itself. Unlike the jury in Kelly, which received a general verdict form, the jury here received a verdict form which properly delineated the charge of battery. 7 Most importantly, the trial court instructed the jury that it was not to consider any single instruction by itself, but that it should consider all instructions together as a whole. 8 See Dixon, 425 N.E.2d at 678.
We find that, although the instruction on Battery exceeded the scope of the crime with which Emerson was charged, giving it did not constitute fundamental error. Emerson has not demonstrated that without that instruction, the jury would not have convicted him of class C felony Battery. As such, we hold that the Court of Appeals erred in reversing Emerson's convictions and sentence on this claim and affirm the post-conviction court on this issue.
The Court of Appeals found the issue discussed supra dispositive and did not address the merits of Emerson's remaining claims. Because we affirm the post-conviction court on the first issue, we now address the other claims raised by Emerson in his appeal from the denial of post-conviction relief.
Emerson argues that the sentencing judge erroneously believed the thirty year habitual offender enhancement was mandatory and did not know he could reduce Emerson's enhancement by up to ten years. 9
Ind.Code § 35-50-2-8 provides for a mandatory habitual offender enhancement of up to thirty years when the State proves beyond a reasonable doubt...
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