Evans v. State, No. 46S00-8806-CR-00535

Docket NºNo. 46S00-8806-CR-00535
Citation571 N.E.2d 1231
Case DateMay 21, 1991
CourtSupreme Court of Indiana

Page 1231

571 N.E.2d 1231
Daniel Eugene EVANS, Appellant,
v.
STATE of Indiana, Appellee.
No. 46S00-8806-CR-00535.
Supreme Court of Indiana.
May 21, 1991.

Page 1232

W. Jonathan Forker, LaPorte, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted by a jury of kidnapping, a Class A felony, I.C. 35-42-3-2(a)(3), and escape, a Class C felony, I.C. 35-44-3-5. He was given the presumptive sentences of thirty years for the Class A felony and five years for the Class C felony, and the trial court ordered that the sentences be served consecutively. In this direct appeal, appellant argues that the State failed to prove venue, that his kidnapping conviction must be reversed because two final instructions were given in error and because the evidence as to that count was insufficient, and that the trial court erred in ordering that he remain in leg irons during the course of his trial.

The facts adduced at trial which tended to support the determination of guilt show that on March 1, 1987, appellant was incarcerated on the fifth floor of the LaPorte County Jail awaiting sentencing on two counts of burglary to which he had previously entered guilty pleas. During official visiting hours that evening, James Logmann, the officer on duty on the fifth floor, received notification that two visitors had arrived, one for appellant and his brother, Jimmy Evans, and one for another inmate. After summoning the three men, Logmann watched through a small window as they presented themselves at a remote-controlled, sliding security door which led to a holding area, which in turn opened onto the hallway to the visiting room. As Logmann opened the sliding door and Jimmy Evans and the other inmate entered the holding area, appellant put his face up to this window, thereby obscuring Logmann's view, and asked if Logmann was sure the visitor was for him. At that time, two other inmates, Charles Thomas and Rodney Cooper, crept into the holding area undetected by Logmann. After receiving an affirmative answer to his question, appellant entered the holding area and Logmann closed the security door.

Logmann then went to the hallway side of the holding area and opened that door, which must be manually opened with a key. The first inmate exited the holding area and apparently proceeded as anticipated to the visiting room. Then Jimmy Evans emerged and stood next to Logmann by the door. Logmann looked back toward the holding area and saw appellant standing in the doorway. Logmann then turned back around and was shoved by Jimmy Evans and pulled by appellant into the holding area. His feet were knocked out from under him and, when he hit the floor, he saw Cooper and realized what had happened. Logmann was gagged and his hands and feet were bound. After Logmann freed himself and alerted other officers, he discovered that an interior window separating the secured and unsecured portions of the fifth floor had been broken out with a typewriter. A headcount confirmed that appellant, Jimmy Evans, Cooper and

Page 1233

Thomas had escaped. Cooper, Thomas, and Jimmy Evans were apprehended within an hour of the escape. Appellant remained at large for eight days, then turned himself in.

I. Venue

Appellant argues that his convictions cannot stand because the State failed to properly prove venue. Venue "relates to and defines the particular county or territorial area within the state or district in which the cause or prosecution must be brought or tried." Bledsoe v. State (1945), 223 Ind. 675, 678, 64 N.E.2d 160, 161 (quotation and citation omitted). The State must prove proper venue by a preponderance of the evidence, and circumstantial evidence may be sufficient to establish proper venue. Gillie v. State (1987), Ind., 512 N.E.2d 145. Therefore, it was incumbent upon the State to prove by a preponderance of the evidence that the crime charged was committed in LaPorte County, Indiana, where the trial was held.

Appellant maintains that there was no evidence in the record that the charged crimes took place in the State of Indiana. In pertinent fashion, there was testimony from police officers that they were employed by the LaPorte County Sheriff's Office and that the escape was made from the LaPorte County Jail, and one such officer testified that he received training for his jail service at the Indiana State Law Enforcement Academy located "[d]own at Plainfield, Indiana." This testimony and reasonable inferences from it warranted a finding that the conduct constituting these alleged offenses occurred in the State of Indiana. The State sustained its burden of proof on this issue.

II. Validity of Kidnapping Conviction

A. Instructions

In its final charge to the jury, the trial court gave two instructions specific to the crime of kidnapping, quoted in pertinent part as follows:

Final Instruction 9

The Statute defining the offense of Kidnapping which was in force in Indiana at the time of the offense charged, reads as follows:

"A person who knowingly or intentionally confines another person with intent to obtain the release or with intent to aid in the escape, of any person from lawful detention; commits kidnapping, a Class A Felony."

Final Instruction 11

To sustain the charge of kidnapping, the State must prove the following propositions:

First: That the defendant knowingly or intentionally confined James Logmann; and,

Second: That the defendant did so with the intent to obtain the release of any person from lawful detention; or with the intent to aid in the escape of any person from lawful detention.

These were the only final instructions given by the trial court which purported to define the burden which the State had to carry in order to prove guilt beyond a reasonable doubt on the kidnapping charge. The information upon which appellant was charged with kidnapping had been read to the jury in the court's preliminary instructions. The trial court, however, did not repeat the preliminary instructions in its final instructions, nor did it give a final instruction which incorporated the preliminary instructions or which made reference to them in any way. Therefore, the jury did not receive the factual allegations which constituted the kidnapping charge as part of its final instructions.

The information charging appellant with kidnapping read, in pertinent part, as follows:

[O]n or about the 1st day of March, 1987, in the County of LaPorte and the State of Indiana, one Daniel E. Evans ... unlawfully[ ] and knowingly confine[d] Jail Officer James Logmann by tying his hands, his feet, and by placing a gag in his mouth and with intent to obtain the release or intent to aid in the escape of

Page 1234

Jimmy C. Evans, Charles J. Thomas, and Rodney D. Cooper from official custody....

During the hearing at which final instructions were settled, held outside the presence of the jury, appellant lodged a timely objection and argued to the court that, based on the factual allegations in the charging instrument, the giving of Instruction 11 would not be appropriate:

[W]e've already through [Instruction 9] defined what the statute says on Kidnapping; and now we're talking, of course, in [Instruction 11] what the State has to prove, the following propositions. ... My objection to this instruction is now we're getting to the specifics of what appellant has been charged with. And by that, I mean, I object to the language of that paragraph marked, ... "Second," where it says, "any person," in two different places.... If we refer back to the information, your Honor, what [appellant] is charged with is confining James Logmann with the intent to obtain the release, or intent to aid in the escape of Rodney Cooper, Charles Thomas and Jimmy Evans. That's what the information says happened here. And this particular instruction permits the Jury to consider and permits the State to argue[,] ... "[Appellant] escaped, you can use that in the Kidnapping." He's charged with intending to aid or intending to obtain the release ... of three other people, not just any person. So what I'm saying is they're confined in their arguments; they're confined in their instructions to the Jury, that the evidence must show that it was those other three; they're not considering any escape or alleged escape on the part of [appellant] in reaching a decision in the Kidnapping charge. The State specifically drafted that information to tell us what it was they were going to prove.... [T]hey're bound by what they say happened. My concern is [that the language of Instruction 11 is] not conveying to the Jury what he's really charged with....

This objection was overruled by the trial court. Appellant argues that the final instructions given to the jury on the kidnapping charge were deficient because Final Instruction 11 allowed the jury to return a guilty verdict based on findings of fact distinct from those upon which he was charged.

The defendant in Kelley v. State (1936), 210 Ind. 380, 3 N.E.2d 65, was charged with conspiring with others to bomb the home of a named individual, one James Miller. The theory of the State, which was borne out by the evidence, was that this crime constituted part of a larger plan designed by a group of union miners, of which Kelley was a member, to force the closure of a non-union mine in southern Indiana by way of a series of unlawful acts. This plan, of course, was also unlawful, but was not charged. This Court set out the burden of proof which rested upon the State as follows:

[I]n order for the state to make its case, it was necessary to prove that the defendant united with another, or others, for the purpose of committing the felony described in the indictment. The defendant could not have been convicted lawfully by proof that he had united with one or more persons for the purpose of committing a felony other than the one defined in the indictment no matter...

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41 practice notes
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1994
    ...be set up in front of the prosecution and defense tables to block the jury's view of both parties' feet. In Evans v. State (1991), Ind., 571 N.E.2d 1231, this Court The general rule is that a criminal defendant is not to appear before the jury in bonds or shackles; however, certain exceptio......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...The standard of review on appeal would have been abuse of discretion. Bivins v. State, 642 N.E.2d 928, 936 (Ind.1994); Evans v. State, 571 N.E.2d 1231, 1238 (Ind.1991). Accordingly, Stephenson has not established a reasonable probability of a different result from counsel's performance with......
  • Stephenson v. Wilson, No. 09-2924.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2010
    ...Marquez v. Collins, 11 F.3d 1241, 1243-44 (5th Cir.1994); United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986); Evans v. State, 571 N.E.2d 1231, 1238 (Ind.1991); Coates v. State, 487 N.E.2d 167, 168-69 (Ind.App.1985), overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind.App.......
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1997
    ...instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given. Evans v. State, 571 N.E.2d 1231, 1236-37 Defendant objected to Final Instruction No. 22 which was among the instructions on accomplice liability and which provides: "A ju......
  • Request a trial to view additional results
41 cases
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1994
    ...be set up in front of the prosecution and defense tables to block the jury's view of both parties' feet. In Evans v. State (1991), Ind., 571 N.E.2d 1231, this Court The general rule is that a criminal defendant is not to appear before the jury in bonds or shackles; however, certain exceptio......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...The standard of review on appeal would have been abuse of discretion. Bivins v. State, 642 N.E.2d 928, 936 (Ind.1994); Evans v. State, 571 N.E.2d 1231, 1238 (Ind.1991). Accordingly, Stephenson has not established a reasonable probability of a different result from counsel's performance with......
  • Stephenson v. Wilson, No. 09-2924.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2010
    ...Marquez v. Collins, 11 F.3d 1241, 1243-44 (5th Cir.1994); United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986); Evans v. State, 571 N.E.2d 1231, 1238 (Ind.1991); Coates v. State, 487 N.E.2d 167, 168-69 (Ind.App.1985), overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind.App.......
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1997
    ...instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given. Evans v. State, 571 N.E.2d 1231, 1236-37 Defendant objected to Final Instruction No. 22 which was among the instructions on accomplice liability and which provides: "A ju......
  • Request a trial to view additional results

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