Harris v. State

• Decision Date: 30 November 1978
• Docket Number: No. 478S76,478S76
• Citation: 269 Ind. 672,382 N.E.2d 913
• Parties: Virginia Jo HARRIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 913

382 N.E.2d 913

269 Ind. 672

Virginia Jo HARRIS, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 478S76.

Supreme Court of Indiana.

Nov. 30, 1978.

Thomas G. Krochta, Rice & Vanstone, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Virginia Jo Harris, was convicted of second-degree murder and sentenced to fifteen to twenty-five years' imprisonment.Upon her appeal to this Court, she raises four issues for our review:

1.Did the state produce sufficient evidence to show that the defendant did not act in self defense?

2.Was the evidence sufficient to support the existence of malice?

3.Did the trial court err in refusing to give the defendant's instruction on circumstantial evidence?

4.Did the trial court err in allowing the jury to see and hear certain items of evidence again after deliberations had begun?

The defendant and the deceased, Wilbur Hackner, had dated each other; after about a two-month split-up, Hackner called the defendant on the telephone and told her that he was going to come to her home to pick her up.Hackner did come for the defendant, and she went with him to his apartment.According to the defendant's testimony, an argument ensued in which she was threatened by Hackner.She picked up a gun which was lying on a table in order to keep Hackner away from her; when he continued to come after her, she shot him.

Despite the defendant's allegations that Hackner had beaten her on the day he was killed, defendant was not bruised or injured.And, contrary to her assertions that Hackner had been violent with her in the past, witnesses attested to the defendant's propensities for violence as well as Hackner's demonstrated restraint when he was previously attacked by the defendant.Hackner was a police officer and was skilled in the martial arts.The defendant argues that because of the vast difference in size between Hackner and herself, as well as Hackner's specialized training, the use of a gun in defending against his attack did not constitute unreasonable force.

I.

The defendant first presents two questions which revolve around the allegation that the evidence was insufficient to support the conviction.Because the two questions are related, we shall discuss them together.And, when faced with a sufficiency of the evidence problem upon appeal, we are constrained to consider the facts which support the verdict along with all reasonable inferences which can be drawn from those facts.Baker v. State(1973), 260 Ind. 618, 298 N.E.2d 445.

The defendant asserts that the state did not produce sufficient evidence to show that she did not act in self-defense.It is true that the burden is upon the state to prove the absence of self-defense.Banks v. State(1971), 257 Ind. 530, 276 N.E.2d 155.However, this burden may be accomplished not only by rebuttal but also by an affirmative showing, within the state's case in chief, that the defendant was the probable aggressor and that she had no sufficient basis to believe that she was in danger of death or bodily harm.SeeNelson v. State(1972), 259 Ind. 339, 287 N.E.2d 336.Here the evidence was conflicting as to past confrontations between the defendant and Hackner.There was some testimony that the defendant had attacked Hackner in the past and that Hackner did not return her violence.The resolution of this conflict in the evidence was within the function of the jury.Nelson v. State, supra;Robinson v. State(1962), 243 Ind. 192, 184 N.E.2d 16.Furthermore, a jury is to look to the defendant's viewpoint considering facts relevant to self-defense, but the jury is not required to believe the defendant's evidence.Starkey v. State (1977), Ind., 361 N.E.2d 902;Williams v. State(1974), 262 Ind. 382, 316 N.E.2d 354.The state produced sufficient evidence to support the jury's conclusion that the defendant did not act in self-defense.

Next, the defendant argues that the evidence was insufficient to support the existence of malice, a necessary element in second-degree murder.Malice can be inferred by a jury from the circumstances of the activity involved in the crime, the relation of the parties, and the use of a deadly weapon in a manner likely to cause death.Lindley v. State (1978), Ind.,373 N.E.2d 886;Lawson v. State (1978), Ind., 373 N.E.2d 128;Martin v. State (1978), Ind., 372 N.E.2d 181.A reasonable inference of guilt, sufficient upon which to base a conviction must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.Ruetz v. State (1978), Ind., 373 N.E.2d 152.In addition to the use of the gun, the jury heard evidence of the defendant's jealous attacks upon Hackner in the past.This pattern of conduct provided some probative evidence from which the jury could have inferred malice.Under the circumstances of this case, it cannot be said that the inference of malice could not have been reasonably drawn.Lawson v. State, supra.The defendant relies upon the case of Shutt v. State (1977), Ind., 367 N.E.2d 1376, for the proposition that where the evidence is circumstantial, every hypothesis of innocence must be excluded before the guilty verdict may stand.But, this Court has unanimously held in Jones v. State (1978), Ind., 377 N.E.2d 1349, 1351, that:

"We do not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only whether an inference may reasonably be drawn therefrom tending to support the finding of the trial court.McAfee v. State(1973), 259 Ind. 687, 291 N.E.2d 554."

The evidence was sufficient to support the existence of malice.

II.

Next, the defendant contends that the...