Golden v. State

• Decision Date: 19 November 1985
• Docket Number: No. 484S149,484S149
• Citation: 485 N.E.2d 51
• Parties: Robert GOLDEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 51

485 N.E.2d 51

Robert GOLDEN, Appellant, v. STATE of Indiana, Appellee.

No. 484S149.

Supreme Court of Indiana.

Nov. 19, 1985.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Robert Golden was convicted by a jury in the DuBois County Circuit Court of the crime of forgery, a class C felony, and was also found by that jury to be an habitual offender. The trial judge subsequently sentenced him to a term of five years on the forgery conviction, enhanced by thirty years for the habitual offender finding for a total term of thirty-five years.

The six issues presented by Appellant for review in this direct appeal are as follows:

1. errors committed in final instructions to the jury;

2. errors committed in admission of State's exhibits into evidence;

3. sufficiency of the evidence;

4. error in permitting exhibits to be taken into the jury room during deliberation;

5. errors in permitting certain exhibits into evidence during the habitual offender phase of the trial; and

6. ineffective assistance of counsel.

The evidence showed that Nellie Kellems, a seventy-five year old householder, contracted with Appellant, a neighbor, for him to repair the roof and chimney of Kellem's house and to paint some of the trim of the house. The total cost of the work was to be $1,600.00. Kellems paid Appellant by check for half of the agreed amount ($800.00) on March 3, 1983. On March 9, 1983 Kellems paid him $400.00 by check and on March 14, 1983 she paid him $300.00 by check. On March 28, 1983 and March 30, 1983 Kellems paid Appellant with two checks. These two checks are the subject of the forgery charges in the instant cause. Each of these checks was to be for the amount of $50.00 to pay the debt in full. Kellems permitted Appellant to fill out the checks except for her signature. Each check was to be made out for $50.00. However, when they were returned from the bank Kellems discovered that each check was altered to show the amount of $500.00. Both checks showed Appellant as the payee and endorser. Kellems testified the understanding was each check was to be made for $50.00 and she was to sign them. She does not remember whether she signed the checks in blank and then had them filled out by Appellant in her presence or if she signed them after they were filled out. She said that it was definitely understood, however, that each check was to be for $50.00 and not $500.00.

I

Appellant first claims the trial court erred in giving the State's tendered Instruction Number 2 on the subject of reasonable doubt. He claims the instruction is an incorrect statement of the law and that the subject matter was covered adequately by other instructions. Appellant's claim is based on the fact that Instruction Number 2 included in its language, "[T]he mere possibility that the Defendant may be innocent does not raise a reasonable doubt." The instruction in its entirety was a definition of reasonable doubt which advised the jury that in order to convict Appellant each juror must be satisfied of the guilt of the accused beyond a reasonable doubt. It then further instructed them they should not indulge in purely speculative doubts, and that the mere possibility that Appellant may be innocent does not raise a reasonable doubt. The trial court also gave Pattern Instruction 1.21 in the preliminary instructions to further define what a reasonable doubt is. In final instructions the court gave Appellant's tendered instructions that advised the jury: 1) Appellant was presumed innocent throughout the trial until the State carried its burden of showing him guilty beyond a reasonable doubt; 2) all reasonable doubts were to be resolved in favor of Appellant's innocence; 3) there was no burden on Appellant to prove his innocence, rather, the duty was on the State to prove his guilt beyond a reasonable doubt; and 4) proof beyond a reasonable doubt requires more evidence than proof by a preponderance of the evidence.

We have held it is proper to tell a jury in the context of an instruction that a mere possibility that a defendant may be innocent does not raise a reasonable doubt, when the instruction is juxtaposed with an instruction charging the jury not to act upon speculation. Choate v. State (1984), Ind., 462 N.E.2d 1037, 1041; Harrison v. State (1978), 269 Ind. 677, 686, 382 N.E.2d 920, 926, cert. denied (1979) 441 U.S. 912, 99 S.Ct. 2010, 60 L.Ed.2d 384; Carter v. State (1977), 266 Ind. 196, 201, 361 N.E.2d 1208, 1211, cert. denied (1977), 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142. These provisions were contained within the same instruction here. Furthermore, all of the instructions given by the trial court on the subject of reasonable doubt were such that they were not unduly repetitious of each other and fully advised the jury of the definition of reasonable doubt and the State's burden of proof.

Appellant also claims the trial court erred in giving the State's tendered Instructions 5 and 6 over his objections because the subject matter of these instructions was covered by other instructions, and the repetition had the effect of emphasizing one aspect of the evidence over others. State's tendered Instructions 5 and 6 were on the subject of the definition of forgery. Instruction 5 told the jury that where authority is given one to fill in blanks in an instrument, a filling of such blanks in a manner other than authorized constitutes forgery where the other elements of forgery are present. Instruction 6 told the jury that in order to constitute forgery there must be a making of a false instrument for the purpose of creating another's liability with fraudulent intent to injure him. It further stated such a forged instrument may be made in various ways such as by creating it entirely, by editing or adding to it some of its essential terms, or by procuring the signature of a person who had no intention of signing it. The mere fact that these final instructions may be to some degree repetitious or cumulative of other instructions does not necessarily render them improper or prejudicial unless there is a showing of undue emphasis of a particular point or an argumentative presentation of the applicable rules of law. Coleman v. State (1984), Ind., 465 N.E.2d 1130, 1133-1134; Pulliam v. State (1976), 264 Ind. 381, 394, 345 N.E.2d 229, 238-239, reh. denied (1976); Johnson v. State (1972), 258 Ind. 683, 687, 284 N.E.2d 517, 519. In addition to State's tendered Instructions 5 and 6, the trial court gave three additional instructions to the jury on the elements of forgery. Instruction Number 4 defined the term, "make." One of the preliminary instructions, Pattern Jury Instruction 1.09, simply set out the statute defining the offense of forgery. Instruction Number 3 further explained the crime of forgery as defined in the statute by putting the terms in laymen's language, so as to be better understood by members of the jury. None of the instructions on this subject are repetitive of any other and all of them together give a clear understanding to the jury of the definition of the crime of forgery. In Pulliam, this Court held that no error occurs when a trial court includes both an instruction setting forth the statutory language and an instruction explaining the elements of the crime in terms more understandable to laymen. Pulliam, (1976) 264 Ind. at 394, 345 N.E.2d at 238-239. Justice Givan wrote for a unanimous court:

"Certainly all phases of the law cannot be covered in a single instruction. By their very nature there is a certain amount of repetition in the instructions when taken as a whole. It is only when instructions are so repetitious as to place an undue emphasis on a particular point that they become improper." Johnson (1982), 258 Ind. at 687, 284 N.E.2d at 519.

There is no merit to Appellant's contention that any of these instructions were improper and merit a reversal.

II

Appellant claims the trial court erred in admitting into evidence State's Exhibits 1, 2, 3, 4, and 5. These exhibits were five checks that were to pay Appellant $1,600.00 by Mrs. Kellems for work he did on her home and premises. The checks were received into evidence through the testimony of Mrs. Kellems. She testified that she signed the checks but had Appellant fill them out for designated amounts. She authorized Appellant to make each check for a particular amount and then delivered it to him. Three of the checks delivered in that manner totalled $1,500.00; there was an amount of $100.00 remaining when Mrs. Kellems testified she authorized Appellant to write check number 357 and check number 358 for $50.00 each. She did not remember if she signed the checks before Appellant partially filled them out or signed them after they were completed, but she stated each was to be made for the amount of $50.00. One of them was marked "Paid" to indicate the total contract price of $1,600.00 had been paid. When the checks were returned to Mrs. Kellems from the bank they were each made out for an amount of $500.00 and the balance in Mrs. Kellems' account was reduced by $1,000.00 rather than $100.00. Mrs. Kellems identified these checks as the ones that were written by Appellant, signed by her, delivered to Appellant, and returned to her by the bank in the condition she presented them in court. Appellant's objection to the admission of these exhibits is that a proper foundation was not laid for their admission into evidence. At trial Appellant objected to Exhibit 1 on the grounds that Mrs. Kellems could not identify the red markings on the front and the markings on the back of the check, clearly recognizable as markings put there by the bank during its processing of the checks. As to State's Exhibits 2 through 5, Appellant objected:

"I would object to state's exhibit 2 through 5 for any...