Gravens v. State

• Decision Date: 03 November 2005
• Docket Number: No. 01A02-0501-CR-69.,01A02-0501-CR-69.
• Citation: 836 N.E.2d 490
• Parties: David S. GRAVENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

836 N.E.2d 490

David S. GRAVENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 01A02-0501-CR-69.

Court of Appeals of Indiana.

November 3, 2005.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

David Gravens appeals his conviction for Attempted Robbery. Specifically, Gravens argues that the trial court's jury instruction on the defense of abandonment is erroneous and that the evidence is not sufficient to support the jury's finding that Gravens did not voluntarily abandon the attempted robbery. Because the case law language added to the pattern jury instruction is necessary to fully inform the jury of the law applicable to the facts and it neither emphasizes a particular evidentiary fact nor states an appellate standard of review, and because there is evidence that Gravens abandoned the attempted robbery as the result of extrinsic circumstances, we affirm.

Facts and Procedural History

Gravens entered the Fifth Third Banking Center in Decatur, Indiana, and walked up to teller Amber Whitman's window. Whitman asked Gravens how she could help him, and Gravens pulled a piece of paper out of his pocket and slid it across the top of the counter. On the top of the piece of paper was printed the following demand: "Give me money from 2 TELLERS." Tr. p. 191-92. Whitman immediately began to feel nervous and "started getting butterflies in [her] stomach." Id. at 192. There was also writing on the bottom of the piece of paper that Whitman was unable to read. As such, Whitman turned the piece of paper around and said to Gravens, in a voice "a little louder" than what she would normally use with a customer, "I can't read this. Can you tell me what you want?" Id. at 194, 206. When Whitman questioned him, Gravens became "fluster[ed]" and held up two fingers. Id. at 194. Gravens then picked up the note, looked at it, mumbled some words, and finally walked out of the bank.

The State charged Gravens with Attempted Robbery as a Class C felony¹ and filed its Notice of Intent to Seek Habitual Offender Status.² Gravens then filed his Notice of Affirmative Defense, stating that one of his defenses at trial would be Abandonment.³ At trial, Gravens tendered Instruction No. 10.17 of the Indiana Pattern Jury Instructions— Criminal ("Pattern Instruction 10.17"), on abandonment. The State objected to instructing the jury on the defense of abandonment. In the alternative, the State tendered its own proposed instruction on abandonment. Gravens objected to the State's proposed instruction, and the trial court overruled the objection. The court gave the jury the State's proposed instruction on abandonment as Preliminary Instruction No. 9 and Final Instruction No. 8 ("the instruction").

The jury found Gravens guilty as charged, and Gravens pled guilty to being a habitual offender. The trial court sentenced Gravens to a term of four years in prison on the attempted robbery conviction and enhanced the sentence by eight years based on the habitual offender finding, for a total executed sentence of twelve years. Gravens now appeals.

Discussion and Decision

Gravens argues that the trial court abused its discretion by giving the instruction on the defense of abandonment because the instruction is erroneous and therefore prejudiced his substantial rights. Gravens also asserts that there is not sufficient evidence to support the jury's finding that his abandonment of his attempt to rob the bank was not voluntary.

I. Jury Instruction on Abandonment

Gravens first contends that the trial court abused its discretion by adopting the abandonment instruction proposed by the State rather than instructing the jury in accordance with the pattern instruction that he proposed. "The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind.2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004). "Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion." Id. at 1163-64. "In reviewing a trial court's decision to give or refuse tendered jury instructions," this Court "considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given." Guyton v. State, 771 N.E.2d 1141, 1144 (Ind.2002).

Gravens submitted the following proposed instruction on the issue of abandonment:

It is an issue whether the Defendant abandoned his effort to commit the crime charged.

It is a defense to a charge of attempted Robbery that the Defendant voluntarily abandoned his effort to commit the Robbery and voluntarily prevented its commission.

The State has the burden of disproving this defense beyond a reasonable doubt.

This proposed instruction tracks the language of Pattern Instruction 10.17.

The State also tendered its own proposed instruction on the issue of abandonment. The State's tendered instruction was identical to Gravens', with the following additional clause ("Paragraph Three") inserted between the second and third sentences of Pattern Instruction 10.17:

To be considered voluntary, the Defendant's decision to abandon must originate with the Defendant and must in no way be attributable to the influence of extrinsic circumstances. To be considered voluntary, the Defendant's decision to abandon can not be the product of extrinsic factors that increase the probability of detection or make more difficult the accomplishment of the criminal purpose or because of unanticipated difficulties in carrying out the criminal plan at the precise time and place intended.

This additional language is based largely on decisions of the Indiana Supreme Court. See Smith v. State, 636 N.E.2d 124, 127 (Ind.1994); Barnes v. State, 269 Ind. 76, 378 N.E.2d 839, 843 (1978). The trial court gave the instruction proposed by the State, and the jury rejected Gravens' abandonment defense when it found him guilty of attempted robbery.

As a preliminary matter, we must note that the preferred practice is to use the pattern jury instructions. See Cochrane v. Lovett, 166 Ind.App. 684, 337 N.E.2d 565, 570 n. 6 (1975) (noting that the Indiana Pattern Jury Instructions have the "apparent approval of the Indiana Supreme Court as evidenced by the preferred treatment given such instructions in [Indiana Rule of Trial Procedure 51(E)]"); see also Byrd v. State, 579 N.E.2d 457, 463 n. 7 (Ind.Ct.App.1991) (stating that "the preferred instruction on voluntary intoxication may be found" in the Indiana Pattern Jury Instructions). Furthermore, the mere fact that certain language or expressions are used in the opinions of Indiana's appellate courts does not make it proper language for instructions to a jury. Ludy v. State, 784 N.E.2d 459, 462 (Ind.2003). Having said that, "there is no blanket prohibition against the use of appellate decision language" in jury instructions. Hurt v. State, 553 N.E.2d 1243, 1249 (Ind.Ct.App.1990), overruled on other grounds by Ham v. State, 826 N.E.2d 640 (Ind.2005); see also Legue v. State, 688 N.E.2d 408, 411 (Ind.1997); Brook v. St. John's Hickey Mem'l Hosp., 269 Ind. 270, 380 N.E.2d 72, 76 (1978).

Gravens makes two arguments as to why it was improper for Paragraph Three to be included in the instruction. First, Gravens contends that Paragraph Three is an "impermissible judicial comment" on particular evidence or types of evidence that intimates the weight the jury must give to that evidence. Appellant's Br. p. 8. Second, Gravens argues that Paragraph Three expresses an appellate standard of review that is irrelevant to the jury's role as finder of fact under Article I, § 19 of the Indiana Constitution. The State responds that Paragraph Three was necessary to the abandonment instruction because without it, the jury would have been left with the mistaken impression that abandonment caused by extrinsic factors is sufficient to establish the defense of voluntary abandonment. We agree with the State.

We first address Gravens' argument that Paragraph Three is an "impermissible judicial comment" that "unnecessarily emphasiz[es] certain evidentiary facts and instruct[s] the jury what inference it was required to draw from those facts." Id. at 17. Oddly, Gravens does not say which evidentiary fact or facts he believes the instruction as given "unnecessarily emphasized," and he simply directs us to the Indiana Supreme Court's recent decision in Ham v. State, 826 N.E.2d 640 (Ind.2005). In Ham, the defendant was pulled over for suspicion of drunk driving and refused to submit to a chemical breath test. At trial, the court gave the following instruction: "A defendant's refusal to submit to a chemical test may be considered as evidence of intoxication." On appeal, the Court first noted that "[i]nstructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved." Id. at 641. The court then held that the instruction was erroneous, stating:

Whether a defendant's refusal to submit to a chemical test is evidence of intoxication or merely that the defendant refused to take the test is for the lawyers to argue and the jury to decide. An instruction from the bench one way or the other misleads the jury by unnecessarily emphasizing one evidentiary fact.

Id. at 642.

As in Ham, Indiana courts have struck down other instructions that improperly emphasize one evidentiary fact. See Ludy v. State, 784 N.E.2d 459 (Ind.2003) (findin...