Henderson v. State

Decision Date13 October 1989
Docket NumberNo. 20S00-8612-CR-1069,20S00-8612-CR-1069
Citation544 N.E.2d 507
PartiesJames HENDERSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

June D. Oldham, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant James Henderson was convicted of Burglary, a Class B felony, for which he received a term of fifteen (15) years, and further, was found to have violated probation for a prior conviction for Forgery, a Class C felony, for which he received an executed term of five (5) years. His burglary term was ordered to be served consecutively to the five year term for violation of probation.

Six issues are presented for our review in this direct appeal:

1. error in the giving of final instruction seventeen;

2. impermissible remarks by the prosecutor during Henderson's case in chief;

3. impermissible comment by the prosecutor during final argument on Henderson's right not to testify;

4. insufficiency of the evidence;

5. admission of improper evidence during sentencing; and

6. improper procedure in revoking Henderson's probation status.

The evidence shows that at about 4:45 a.m. on March 2, 1985, victim Steve Kennedy, accompanied by his two brothers-in-law, returned to his apartment in Elkhart. They had left the apartment earlier the evening before, leaving Kennedy's wife alone in the apartment. When she went to bed, she unlocked the sliding glass door to the apartment so her husband and two brothers could get in. Mrs. Kennedy was asleep when her husband and two brothers returned to the apartment. As Steve Kennedy approached the apartment, he noticed the sliding glass door on the patio was open. He ran into the apartment and encountered Henderson in the living room. Henderson had Steve's new pair of tennis shoes under his arm and charged Steve, trying to get past him and out of the apartment. Henderson was known to play basketball as a hobby. A struggle ensued as Steve tried to stop Henderson from leaving the apartment and they fell to the floor. At this time, Steve's brothers-in-law came into the apartment and helped him subdue Henderson. Henderson told them there was another man in the bedroom where Steve's wife was sleeping so the two brothers left Steve with Henderson and went to check on their sister's welfare. Henderson then escaped from Steve but was recaptured by the three outside the apartment and held until police arrived. After Henderson was apprehended, it was discovered that he had on his person a paring knife and a roll of adhesive tape. Henderson told police he had been grabbed as he walked past the apartment and dragged inside.

I

The court's final instruction seventeen was on the subject of Henderson's intent. The language Henderson objects to in the instruction is as follows:

... you may infer that a person is presumed to intend the natural and probable acts, unless the circumstances are such to indicate the absence of such intent.

When an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts.

Record, at 126.

Henderson failed to object to this instruction in the trial court and failed to assert this claim of error in his motion to correct error. Therefore he has waived this issue. Ind.R.Tr.P. 51(C), 59; Davis v. State (1986), Ind., 493 N.E.2d 167.

Henderson claims the giving of this instruction amounted to fundamental error requiring us to review the issue in spite of the fact he failed to object to it at trial and assert it in his motion to correct error. In Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, the United States Supreme Court held it was impermissible to instruct a jury that the law presumes a person intends the ordinary consequences of his voluntary acts, because the instruction may have the effect of impermissibly shifting the burden of proof to the defendant. However, language nearly identical to the present instruction was approved by this Court in Jacks v. State (1979), 271 Ind. 611, 623-26, 394 N.E.2d 166, 174-76. Like the instruction in Jacks, this instruction is not a mandatory one but advises the jury they may infer intent from certain proved acts of the defendant and does not tell them the law presumes that intent. No fundamental error is shown meriting reversal. Jacks, supra; see also Pitman v. State (1982), Ind., 436 N.E.2d 74, 77 (evidence of victims' injuries relevant to prove intent in robbery conviction).

II

During the direct examination of defense witness Vickie Johnson, the prosecutor, while making an objection to the testimony, inferred that Henderson had a responsibility to respond to the State's questions. Henderson claims this was an impermissible comment on the defendant's right not to testify. Vickie Johnson was answering a series of questions about Henderson. Among those questions were the following:

Q. Did you know anything about James being in the Service?

A. Yeah.

Q. How long was he in the Service?

A. I'm not quite sure how long he was in, but he's talked about it quite a bit.

Q. Did he tell you what he did when he was in the Service?

MR. WICKS: I'm going to object to that as being hearsay, Your Honor. We should hear from the defendant on that point.

Record, at 338.

Henderson made no objection at the time the remark was made nor did he ask for any relief from the court regarding it. Furthermore, Henderson did not raise this issue in his motion to correct error. He raises it in this direct appeal, claiming it was fundamental error and should be reviewed by this Court even though he has waived it by not raising it at trial and in his motion to correct error.

We do not find this remark denied Henderson of fundamental due process or his right to a fair trial to the extent it presents fundamental error. Although it did indicate the answer to the question would have to come from Henderson, it merely stated that the testimony would be hearsay as to this witness as Henderson is the only one who could speak on it directly. It involved a subject that had nothing to do with Henderson's guilt or innocence or the facts and circumstances of this case. It referred only to background material about Henderson's activities while in the armed forces. Fundamental error is that which, if not rectified, would deny a defendant fundamental due process. When the record reveals clearly blatant violations of basic and elementary principles and the harm or potential for harm could not be denied, this Court will review an issue not properly raised and preserved. Frith v. State (1983), Ind., 452 N.E.2d 930; Warriner v. State (1982), Ind., 435 N.E.2d 562, 563; Johnson v. State (1979), 271 Ind. 145, 151, 390 N.E.2d 1005, 1010, cert. denied (1979), 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312. Fundamental error is not apparent here.

III

The evidence disclosed that when Henderson was apprehended in the Kennedy's apartment, he had in his pocket a paring knife and a roll of adhesive tape. Further, the evidence showed that the tennis shoes in question were beside Mrs. Kennedy's bed while she slept. She testified they were there when she went to bed and that she stumbled over them when she got up during the night to go to the bathroom. They were next seen in Henderson's possession as he approached the open patio door. During closing argument, the prosecuting attorney made reference to these items, commenting on what reasons Henderson might have had for having these items in his possession. There was also a towel in the jacket pocket. The prosecuting attorney asked the jury why a person breaking into an apartment would want a knife, tape, and a towel. He then stated that perhaps the knife would be used as a weapon to defend himself, the tape to tape the victim's mouth if she cried out, and the towel to wipe off fingerprints. In his rebuttal, the prosecuting attorney commented that there was no way of knowing exactly what led him to that apartment but surmised he might have been attracted to Mrs. Kennedy. Henderson characterized these statements as being comments on facts not in evidence and inferring Henderson was about to commit offenses other than the offense charged. On the contrary, the comments referred to inferences that might be drawn from facts in evidence. They were not comments on facts not in evidence nor did they infer that the prosecuting attorney had personal knowledge of Henderson's guilt not within the knowledge of the jury. Moreover, Henderson again failed to object or ask for any relief from the trial court at the time these statements were made and failed to raise the argument in his motion to correct error. Henderson accordingly has waived the issue. Ind.R.Tr.P. 59; Frith, supra.

IV

Henderson claims there was insufficient evidence to support his conviction for burglary because there was not substantial evidence of probative value that he intended to commit the crime of theft when he entered the apartment. He concedes our standard for reviewing sufficiency claims provides we do not weigh evidence or judge credibility but consider only that evidence most favorable to the State together with all reasonable and logical inferences to be drawn therefrom. Alfaro v. State (1985), Ind., 478 N.E.2d 670, 672.

Henderson concedes he was improperly in the apartment and the evidence supports the conclusion that he broke and entered into it. His only claim of insufficiency is that there is no showing he intended to commit the crime of theft. His contention is not supported by the evidence. Steve Kennedy testified that as he came through the patio door he saw Henderson in possession of his tennis shoes, heading toward the door and, in fact, Henderson tried to get around Kennedy and leave with the shoes. This was sufficient evidence of probative value for the jury to find or infer that Henderson...

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