Fisher v. State

• Decision Date: 10 April 1973
• Docket Number: No. 572A218,572A218
• Parties: Penny Jo FISHER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 632

294 N.E.2d 632

156 Ind.App. 18

Penny Jo FISHER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 572A218.

Court of Appeals of Indiana, Second District.

April 10, 1973.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

This is an appeal by defendant-appellant, Penny Jo Fisher (Fisher), from a conviction We affirm.

in a court trial of Attempted Escape From Prison.

FACTS

The facts and evidence most favorable to the State are:

On April 28, 1971, Fisher was convicted of the crime of Prostitution and was sentenced to the Indiana State Women's Prison in Indianapolis for a determinate period of one year.

On the evening of July 24, 1971, while Fisher was still an inmate of the Women's Prison, Annie Smith, an employee of the prison, went to the cottage in which Fisher was housed and found Shirley Burnt, a security officer for that cottage, locked in one of the rooms. A subsequent search disclosed that Fisher was missing.

Approximately twenty to twenty-five minutes later, Grace Kwolek (Kwolek), the Superintendent of the Women's Prison, found Fisher lying in a corn field located between the inner and outer security fences which surround the Women's Prison.

The inside security fence is constructed of chain link and topped with barbed wire. Approximately twenty-five feet to the outside of this inside security fence there is an outside security fence constructed of iron.

By her own admission Fisher climbed the inner security fence and had in her possession keys to the automobile of the cottage security officer.

Kwolek testified that Fisher was not authorized to leave the premises.

Fisher was later charged by Affidavit with the crime of Escape From Prison. Trial resulted in a conviction of the lesser included offense of Attempted Escape.

ISSUE

The sole error assigned by the Motion to Correct Errors is:

Was the evidence sufficient to sustain Fisher's conviction for Attempted Escape? ¹

Fisher contends that the evidence is insufficient to sustain her conviction to Attempted Escape for the reason that she never left the Prison grounds. Moreover, the fact that she was found lying in the corn field between the two security fences indicated that she abandoned any attempt to escape from the Prison.

The State maintains that Fisher is merely seeking to have this court reweigh the evidence. There is ample evidence from the testimony of employees of the Women's Prison, in addition to Fisher's own admissions, to sustain her conviction of Attempted Escape.

DECISION

CONCLUSION--The evidence was sufficient to sustain Fisher's conviction of Attempted Escape.

The mundane question raised by Fisher is whether the evidence is sufficient to sustain her conviction of Attempted Escape.

It is axiomatic that in order to do so it must be determined if there is substantial evidence of probative value sufficient to establish every material element of the crime in question beyond a reasonable doubt. If so, the trial court's finding will not be disturbed. Valentine v. State (Ind.1971), 273 N.E.2d 543; Thomas v. State (Ind.1971), 268 N.E.2d 609; Leitner v. State (1967), 248 Ind. 381, 229 N.E.2d 459; Prather v. State (1969), 252 Ind. 141, 246 N.E.2d 479; Hanrahan v. State (1968), 251 Ind. 235, 241 N.E.2d 143. Thus it becomes necessary to determine the material elements of the crime of Attempted Escape. In so doing the first point of reference is the statute under which Fisher was convicted, being IC 1971, 35--21--7--1, Ind.Ann.Stat. § 10--1816 (Burns Supp.1972). It provides:

'Any person, lawfully confined in any penal institution, prison or jail of the state of Indiana, who attempts to make an escape from such institution, prison or jail, and such attempt meets with failure, shall be guilty of attempted escape * * *.' (Emphasis supplied.) ( § 10--1816 herein.)

Because no Indiana cases in point dealing with the crime of Attempted Escape From Prison or which interpret § 10[156 Ind.App. 21] --1816 are cited by counsel, or revealed by independent research, the language of the statute should be interpreted by giving words and phrases their plain and usual meaning. IC 1971, 1--1--4--1, Ind.Ann.Stat. § 1--201 (Burns 1967).

An Attempted Escape is a frustrated escape. Unless its plain meaning is to be ignored, § 10--1816 creates a crime having three elements:

1. The intent to escape from lawful confinement in any penal institution, prison or jail.

2. The performance of some overt act or acts which is a step or steps toward the commission of the crime of Escape, and

3. The failure of the escape.

This breakdown accords with the rule applicable to 'attempts' in general as recognized by case law and text writers. 22 C.J.S. Criminal Law § 75(1), p. 228; Perkins on Criminal Law, 2d ed., pp. 552--557; Tender v. State (1968), 2 Md.App. 692, 237 A.2d 65; People v. Lardner (1921), 300 Ill. 264, 266, 133 N.E. 375, 376; Lewis v. People (1951), 124 Colo. 62, 235 P.2d 348.

It is also consistent with the Indiana case of Barrick v. State (1954), 233 Ind. 333, 119 N.E.2d 550, which approved the following definition of an attempt:

"Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted, and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense, whatever may be the rule as to his conduct before it reached that stage."

While the view is sometimes expressed that 'failure' to consummate the crime should not necessarily be an essential element of an attempt, the unambiguous language of § 10--1816 requires the inclusion of the element of failure as a necessary part of the specific crime of Attempted Escape. See Perkins on Criminal Law, supra.

Having concluded that the express wording of § 10--1816 requires 'failure' to be a material element of the crime of Attempted Escape, it is pertinent to consider the evidence to ascertain whether sufficient evidence was presented upon each material element of the crime of Attempted Escape. Leitner v. State, supra; Prather v. State, supra; Hanrahan v. State, supra.

Fisher departed without permission from the cottage where she was quartered, climbed the inner security fence, had in her possession automobile keys of the security guard for that cottage who was found locked in one of its rooms, and was taken into custody while she was lying in a corn field between the two security fences within a relatively short period of time after a search was conducted for her. Her escape failed.

Fisher by her conduct and the circumstances surrounding her unauthorized departure from the cottage demonstrated the requisite intent to escape and had progressed to the extent possible to place herself in a position to commit an escape when her progress in that direction was interrupted by an agency over which she had no control, i.e., prison authority.

Lying in the corn field between the two security fences under these circumstances might or might not have indicated an abandonment of any scheme to escape, a fact which the trial court determined adversely to Fisher in weighing the evidence.

Thus there is substantial evidence favorable to the State, circumstantial or direct, which supports each of these three elements.

So far the legal foundation to sustain this conviction appears simple and unassailable; and so it would be were it not for Crump v. State (Ind.1972), 287 N.E.2d 342.

It could be construed as impliedly holding that falure is not necessarily an element of an Attempted Escape.

It should not be so construed. The court in Crump was concerned with determining whether Attempted Arson is a lesser included offense of First Degree Arson. In reaching the conclusion that Attempted Arson is a lesser included offense the court stated that:

'It should make no difference whether the criminal conduct is successful or unsuccessful when determining an included offense.' (Emphasis supplied.)

Inferentially the court is saying that failure to consummate a crime is of no moment when determining whether an attempted crime is a lesser included offense of a greater crime.

Crump is only authority for the proposition that success or failure of the crime is not significant for the purpose of determining whether an attempt is a lesser included offense. It makes no pretense of defining the elements of attempts in general or Attempted Arson in particular.

To read Crump's limited holding as eliminating the element of failure of Attempted Escape is to fly in the face of the express words of § 10--1816. To say, as the court there did, 'that it would be impossible to commit arson without first having attempted it' (and therefore Attempted Arson is a lesser included offense of Arson) does not expressly or impliedly rule out failure as a material element of Attempted Escape as defined by § 10--1816.

This court is duty bound to give force and effect, if possible, to both § 10--1816 and Crump. As each exists conceptually independent of the other, they can be reconciled.

Fisher's conviction is affirmed.

SULLIVAN, J., concurs in result only.

WHITE, J., concurs with separate opinion.

WHITE, Judge (concurring).

Appellant, Penny Jo Fisher, was tried on an affidavit which charged that

'Penny Jo Fisher on or about the 24th day of July, A.D.1971, was a convict confined in the Indiana Women's Prison of said state, then and there situate at 401 North Randolph, duly committed to said prison for the crime of Prostitution, from the county of Marion, in said state, and did then and there, while so confined in said Indiana Women's Prison, feloniously escape and break away from the prison, . . .'

At her trial before the court sitting without a jury there was no evidence from which the court could have found that she actually escaped. There was, however,...