Goodwin v. State, 981S241

• Decision Date: 07 September 1982
• Docket Number: No. 981S241,981S241
• Citation: 439 N.E.2d 595
• Parties: James R. GOODWIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 595

439 N.E.2d 595

James R. GOODWIN, Appellant, v. STATE of Indiana, Appellee.

No. 981S241.

Supreme Court of Indiana.

Sept. 7, 1982.

David M. Shaw, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, James R. Goodwin, was adjudged guilty of criminal recklessness, Ind. Code Sec. 35-42-2-2, for which he received a sentence of two years; attempted manslaughter, Ind. Code Sec. 35-41-5-1 and Sec. 35-42-1-3, for which he received a sentence of ten years; and of being an habitual offender resulting in an augmentation of sentence of thirty years. This direct appeal raises the following issues:

I. Whether the instruction defining criminal recklessness was erroneous.

II. Whether the evidence was sufficient.

III. Whether it was error to refuse a defense instruction on self-defense.

IV. Whether the court erred in giving the State's instruction on self-defense.

V. Whether newly discovered evidence mandates a new trial.

VI. Whether it was error to deny a defense motion for appointment of an expert witness.

VII. Whether the court erred in refusing to instruct the jury on the penal consequences resulting from a verdict of habitual offender.

VIII. Whether the evidence of prior conviction was sufficient to support the habitual offender determination.

IX. Whether the court erred in denying a motion for mistrial.

I.

In instructing the jury on the lesser and included offenses within the charge of battery upon one Randy Wydicks, the court gave the following instruction defining criminal recklessness:

"The Court instructs you that the offense charged in the Information for Count I also includes the offense of Criminal Recklessness, which the statute of our State defines, as follows:

'(a) A person who recklessly, knowingly or intentionally attempts to perform an act that creates a substantial risk of bodily injury to another person commits attempted criminal recklessness, a Class B misdemeanor. However, the offense is a Class A misdemeanor if the conduct includes the use of a ... deadly weapon.

(b) A person who recklessly, knowingly or intentionally attempts to inflict serious bodily injury on another person commits attempted criminal recklessness, a Class D felony.' "

Objection was made to this instruction upon the basis of its incorporation of the word "attempts". The instruction is clearly incorrect in attributing the definition to the statute. The statute does not use the word "attempt". The general attempt statute, Ind. Code Sec. 35-41-5-1, from which the word derives, does not apply to the class of general intent crimes to which criminal recklessness belongs. Humes v. State, (1981) Ind., 426 N.E.2d 379. Since the jury returned a verdict of guilty for the offense described in this erroneous instruction, the conviction on Count I must be reversed.

II.

The evidence tending to support the verdicts of guilty shows that Steven Vincent was living with Randy and Ellen Wydicks and their two children in an apartment at 1220 Mary in Evansville, Indiana. A group which included Steve Vincent, the Wydicks and appellant had been out drinking and eating in the evening. After their return home, Vincent was sitting on the couch, in his living room when appellant came in the door and started making threats to him. Appellant said he was going to "whip" Vincent and "mess him up." Vincent was unarmed and made no threats to appellant.

Appellant took off his jacket and stepped up to Vincent, whereupon Vincent struck him several times in the face, knocking him to the floor. Randy Wydicks broke up the fight and took Vincent out to the side porch. Ellen Wydicks helped appellant out to the front porch. Appellant then drew a knife from a sheath on his belt and lunged with it, cutting Wydicks on the arm and stabbing Vincent numerous times, saying that he was going to kill him. Appellant chased Vincent from the porch and stabbed him again. Vincent was taken to the hospital with a laceration in his left forehead which penetrated the skull and exhibited or bulged brain tissue. Vincent also had lacerations near his chestbone, on the back of his shoulder, and in the arm. He was in intensive care for ten days.

The offense of attempted manslaughter, a class B felony includes the following elements: (1) a knowing or intentional state of mind, (2) conduct constituting a substantial step toward (3) the killing of (4) a human being. Anthony v. State, (1980) Ind., 409 N.E.2d 632; Palmer v. State, (1981) Ind., 425 N.E.2d 640; Smith v. State, (1981) Ind., 422 N.E.2d 1179. Appellant argues that the testimony of the various witnesses for the State was so inconsistent, contradictory and uncertain that no reasonable man could convict upon it. In determining the sufficiency question we cannot weigh the evidence nor resolve questions of credibility, but must look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. When the evidence presented in this case is viewed in this manner, there emerges a core of consistency, from which a reasonable trier of fact could have concluded the facts to be as recited above, and postulating such facts, it is more than apparent that they as a body have substantial probative value from which a reasonable trier of fact could infer appellant is guilty beyond a reasonable doubt. Appellant thrust a knife repeatedly into an unarmed man saying that he would kill him. The inconsistency between the versions given by the various witnesses was for the jury to deal with.

III.

The court refused to give appellant's Tendered Instruction No. 3 which would have informed the jury that the question of whether conditions existed warranting him to act in self-defense was to be resolved from the standpoint of the defendant at the time and under the existing circumstances as shown by the evidence. Assuming it to be a correct statement of the law, it was covered by other instructions which were given, including defendant's Tendered Instruction No. 2 which informed the jury that he need not have been in actual danger of death or great bodily harm but that he had the right to act on the appearance of things at the time. The refusal to give an instruction cannot result in error if the substance thereof is covered by other instructions which are given. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836.

IV.

The court gave a State's instruction on the defenses of self-defense, defense of others and defense of property derived from Ind. Code Sec. 35-41-3-2 as follows:

"(a) A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary.

(b) A person is justified in using reasonable force, including deadly force, against another person if he reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on his dwelling or curtilage.

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(d) Notwithstanding subsections (a) (b) and (c) of this section, a person is not justified in using force if:

(1) He is committing, or is escaping after the commission of, a crime;

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* * * (3) He has entered into combat with another person or is the initial aggressor, unless he withdraws from the encounter and communicates to the other person his intent to do so and the other person nevertheless continues or threatens to continue unlawful action."

Defendant objected to the instruction as follows:

"The defendant objects to the Court's giving to the jury State's Instruction No. 6 in the following particulars: (1) Sub-section (b) of the instruction is not applicable to the case for two reasons: Firstly, the issue is not whether Steve Vincent was justified in striking the defendant in the apartment but whether or not the defendant was justified in protecting himself outside of the apartment where the stabbing occurred. Secondly, the rightfulness of Steve Vincent's conduct in the apartment was not an issue in this case."

We take the objection to mean that there was no issue presented for resolution by the jury as to whether appellant was justified in drawing his knife and stabbing Vincent because he believed he needed to do so to protect his dwelling or curtilage, and that therefore there was no legal purpose to be served by subsection (b) of the instruction.

The claim was raised that appellant acted in self-defense in drawing his knife and stabbing Vincent while the two were outside the apartment on the porch. The burden was therefore upon the State to negate the defense which it could do by proving that appellant had not acted without fault. White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156. One of the premises of a successful showing in this regard would include proof that the battery of appellant by Vincent in Vincent's apartment, to which the stabbing was a response, was itself justified. According to the challenged subparagraph (b) of the instruction, a battery may be justified if it is to prevent or terminate a person's unlawful entry of or attack on his dwelling or curtilage. There was evidence presented that appellant appeared at the apartment in an angry mood and threw beer on the floor, and left. Within minutes Vincent returned to the apartment and sat down on the couch. Appellant reappeared and while angry re-entered the apartment and confronted Vincent, cursing and threatening him. He was armed with a sheath knife and a gun. He took the gun off and threw it...