Gramm v. State, 677S430

• Decision Date: 14 June 1978
• Docket Number: No. 677S430,677S430
• Citation: 268 Ind. 492,376 N.E.2d 1120
• Parties: John W. "Bill" GRAMM, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1120

376 N.E.2d 1120

268 Ind. 492

John W. "Bill" GRAMM, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 677S430.

Supreme Court of Indiana.

June 14, 1978.

Paul T. Cholis, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged with the offense of rape, Ind.Code § 35-13-4-3 (Burns 1975) repealed October 1, 1977, tried by jury found guilty and sentenced by the jury to a term of twenty-one years imprisonment. He raises three issues:

(1) propriety of an instruction on application of the principle of reasonable doubt;

(2) sufficiency of the evidence; and

(3) whether sentencing by the jury under the rape statute impermissibly chills his exercise of the right to be tried by jury.

I.

Appellant's first contention concerns the propriety of State's Instruction No. 2 which reads as follows:

"You are instructed that the doctrine of reasonable doubt applies only to the ultimate question of defendant's guilt or innocence and the essential facts which establish it, and the mere fact that some subsidiary matters are but imperfectly proved does not make it the duty of the jury to acquit, if the ultimate question of the defendant's guilt is established beyond a reasonable doubt."

Appellant argued to the trial court that this instruction was erroneous in that it would have confused the jury and tended by import and suggestion to require the jurors to confine their deliberations to evidence relating to the material elements of the crime and to ignore evidence adduced in support of subsidiary matters. His objection did not prevail and the instruction was given.

The State has relied flatly on the approval given this instruction by the Court of Appeals in Hartwell v. State, (1974) Ind.App., 321 N.E.2d 228. That court in turn relied on this Court's opinion in Ringham v. State, (1974) 261 Ind. 628, 308 N.E.2d 863, which approved of an instruction which informed the jury that "incidental or subsidiary facts" need not be proved by the evidence beyond a reasonable doubt. State's Instruction No. 2 and Gramm's contention in this case are qualitatively different from those considered by the Court in Ringham, supra, and therefore total reliance on that case is not appropriate here.

The principle of law relied upon was stated in Sharp v. State, (1918) 188 Ind. 276, 123 N.E. 161:

"Subsidiary facts need not be proved beyond a reasonable doubt to justify a conviction; it is the facts essentially necessary to constitute the crime which must be so proved; but a reasonable doubt may arise from a consideration of evidence adduced in support of subsidiary facts." (Emphasis added.) 188 Ind. at 281, 123 N.E. at 162.

In Sharp, the court had an instruction under consideration which provided in part:

"And by reasonable doubt is not meant a whim or captious or speculative doubt; it is properly termed a reasonable doubt as distinguished from an unreasonable or speculative doubt, and it must arise from all the evidence relating to some material fact or facts charged in the affidavit, and not spring from mere subsidiary evidence." 188 Ind. at 279, 123 N.E. at 162.

The instruction was declared defective because it erroneously told the jury that a reasonable doubt cannot spring from "mere subsidiary evidence." The court reasoned that the accused has the right to have the whole evidence considered by the jury in determining whether a doubt arises and the instruction impermissibly excluded a part of that evidence from jury consideration, namely, the evidence adduced in support of subsidiary facts. The issue presented by appellant is whether State's Instruction No. 2 suffers from the same defect.

The overall purpose of State's Instruction No. 2 was to inform the jury that the prosecution bore no burden to prove subsidiary facts to their satisfaction beyond a reasonable doubt. Instructions of this general type are not erroneous. Ringham v. State, supra. Gramm contends here that this instruction went beyond any such legitimate purpose and carried with it an unlawful admonition to the jury that it should ignore some of the evidence presented in determining whether a reasonable doubt arose. In deciding this issue we have endeavored to place ourselves in the position of a juror so as to better understand appellant's complaint. Having done so and having considered the language of the instruction we cannot agree that the instruction was a misdirection in this regard.

State's Instruction No. 2 is a guide to the jury. It instructs the jury how to deal with the imperfectly proved subsidiary matter. It does not refer to the manner of considering the proof thereof deemed insufficient. That proof was characterized by the Sharp court as "the evidence adduced in support of subsidiary facts," and the Sharp instruction told the jury to ignore it. We find no reasonable likelihood that the jury would have understood this instruction as directing it to ignore or to give diminished effect to any part of the evidence presented for the purpose of determining whether a reasonable doubt exists. The instruction was not erroneous and would not have misled or misdirected the jury as contended.

II.

Gramm next challenges the sufficiency of evidence to support the jury verdict. In support of this claim he points out several inconsistencies and contradictions in the testimony of the alleged victim and the police officers. The main facts tending to establish guilt were given by the victim. On the day of the offense she went to the house of a friend, John Fisher. She admitted drinking alcohol on this occasion and being tipsy. She left that place with Fisher and...