Hopper v. State

• Decision Date: 05 March 1985
• Docket Number: No. 983S346,983S346
• Citation: 475 N.E.2d 20
• Parties: Charles L. HOPPER, Larry L. Wheeler, and Joe Scalf, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 20

475 N.E.2d 20

Charles L. HOPPER, Larry L. Wheeler, and Joe Scalf, Appellants, v. STATE of Indiana, Appellee.

No. 983S346.

Supreme Court of Indiana.

March 5, 1985.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellants were sentenced on six separate counts: Criminal Confinement, Criminal Confinement While Armed with a Deadly Weapon, Conspiracy to Commit Criminal Confinement, two Counts of Attempted Theft and Conspiracy to Commit Kidnapping. Appellants were acquitted on one count of kidnapping. Appellants received thirty (30) years imprisonment on the Conspiracy to Kidnap conviction. The court also sentenced the appellants to various lesser sentences to run concurrently on the other convictions.

The facts are: Alice McIntosh contacted the Indiana State Police with information concerning a series of cattle thefts in Crawford County. McIntosh was privy to this information through her contacts with Lloyd Chadwell and Jerry White. It was through these men she met the appellants. With the knowledge of the police, she convinced the appellants she was interested in acquiring stolen cattle. Appellants White and McIntosh discussed various plans to steal cattle from either a stockyard or from a stock hauling truck. They set out on numerous occasions to carry out these plans; however, they were thwarted by circumstances beyond their control.

On February 22, 1982, McIntosh informed the police an attempt would be made the next day to steal cattle from a truck as it was parked at a rest stop. The police were told the target was a truck driven by John Hampton for the Finchum Trucking Company. The police contacted these parties and secured their cooperation. The police placed two officers in the sleeper cab of the truck. One, Officer Lewis, was dressed to resemble Hampton. The police also placed a body microphone on McIntosh and a tracer on her car.

Appellants' plan for the night in question was as follows. When the driver took his usual break at the rest stop, McIntosh was to lure him from the truck to her car. While the driver was at the McIntosh automobile, Hopper and Wheeler were to accost him and take him to their car. Meanwhile others were to gain control of the truck and to drive it away. The cattle were then to be unloaded and the truck abandoned.

To carry out this mission, appellants White and McIntosh drove three cars to the stockyard at Louisville. They observed the truck being loaded with cattle and its departure. They then followed the truck as it drove through southern Indiana.

When Hampton pulled into a rest stop, as was his customary routine, he slowed the truck to the point he could slide from behind the wheel and permit Lewis to take his place. Lewis parked the truck and then laid across the seat as if taking a nap. McIntosh parked her car near the truck and raised the hood feigning car trouble.

McIntosh, as she was instructed, approached the truck seeking assistance. McIntosh spoke with Lewis. She told him to accompany her to her car and pretend to work on it until appellants approached him. Lewis did so and soon appellants Wheeler and Hopper left their car and walked toward Lewis. They placed their hands on Lewis and demanded that he go with them. Lewis resisted to the point appellants were required to use force to get Lewis to the car. When they reached the car, the door was opened and Lewis was forced partially into the car. He saw appellant Scalf inside the car.

At that time other police officers, who were in various locations about the rest park, interceded and appellants were arrested. At the police station, following the arrest, the police confiscated a small handgun from the jacket of appellant Hopper.

Appellants first argue and the State concedes it was improper to sentence appellants on both the conviction for Criminal Confinement and Criminal Confinement with a Deadly Weapon. There was but one confinement and both convictions flowed from that offense. It is improper to twice sentence for the same offense in a single proceeding. Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893. The two-year concurrent sentence for Criminal Confinement is thus vacated.

Appellants' next issue deals with the various jury instructions tendered by appellants but rejected by the trial court. We first note these instructions were not signed by appellants' counsel as required by Ind.Code Sec. 35-37-2-2(6) (West 1984 Supp.). We have held the failure to strictly comply with the statute is grounds for waiver of any alleged error in refusing to give the tendered instruction. Harding v. State (1984), Ind., 457 N.E.2d 1098; Askew v. State (1982), Ind., 439 N.E.2d 1350. Appellants acknowledge these holdings; however, they contend the statute is in direct conflict with Ind.R.Cr.P. 8(D). The rule provides:

"The instructions will be deemed to be sufficiently identified as having been tendered by the parties or submitted by the court if it appears in the record from an order book entry, bill of exceptions, or otherwise, by whom the same were tendered or submitted."

Appellants assert that when a statute is in conflict with a procedural rule of the court, the rule will prevail. See State ex rel. Gaston v. The Gibson Circuit Court (1984), Ind., 462 N.E.2d 1049. Appellants contend a conflict does exist in the case at bar. We do not agree.

The rule and the statute are not in conflict. To be in compliance with the statute does not require one to violate the rule. While the demands of the statute are more specific than the rule, the statute merely codifies what has been the accepted and required practices under the rule. See Askew, supra for a brief review of the case law requiring the signing and numbering of tendered instructions.

We find no conflict between the rule and the statute and thus no reason to apply the Gaston rule. Appellants failure to sign the tendered instructions constituted a waiver of alleged error relating to those instructions.

Appellants next contend the trial court erred when it permitted the gun recovered from Hopper to be admitted into evidence. The gun was admitted during the testimony of Officer Cutrell. Cutrell was the officer who searched Hopper following his arrest. A two-shot derringer was found in Hopper's jacket pocket. Cutrell admitted none of the customary identification procedures were performed. No marking tags or initials were placed on the gun. Officer Cutrell testified, in his opinion, the gun offered into evidence was the same gun recovered on the evening of the incident. Cutrell indicated the gun recovered had a white grip and the number 66 on the side.

Cutrell was asked the following questions on cross-examination:

"Q. How do you know, Mr. Cutrell or Officer Cutrell, that this is the hand gun you took up?

A. I can remember and from looking at it, it has the number 66 on the left side of it.SU1HIt has white grips like the one that I took. It is chrome plated. I have never seen a hand gun like that before or since then.

Q. It appears to be the same hand gun is what you are saying?

A. Yes, it does.

Q. And you say definitely it is the same gun?

A. To my knowledge it is, yes.

Q. Now there is a big difference, Mr. or Officer Cutrell, is it or does it appear to be?

A. It is my opinion that that is the same hand gun."

Defense counsel then indicated he believed the number on the side of the gun was 55; however, he submitted no proof as to the correct number nor did he make objection on that basis. His attempt to raise that question now is not supported by the record.

An item of physical evidence may be properly admitted as evidence despite the inability of the witness to state for certain the object being shown and the object about which he is testifying are indeed the same object connected with the crime. Jordan v. State (1982), Ind., 432 N.E.2d 9. Such considerations go only to the weight of the evidence and not to its admissibility. Id. In the case at bar the gun was sufficiently identified to permit its introduction into evidence.

Appellants next allege the guilty verdict on the Conspiracy to Commit Kidnapping is inconsistent with the acquittal on the charge of Kidnapping. Appellants acknowledge the concept that an acquittal on the substantive charge is not a bar to a conviction for conspiracy to commit that same crime. See Weekley v. State (1981), Ind.App., 415 N.E.2d 152. Appellants contend this case is illustrative of one of the exceptions to the general principle which was outlined in Weekley. The exception cited exists when the necessary proof of the substantive charge is identical with that required on the conspiracy charge. The Weekley court then cited 16 Am.Jur.2d Conspiracy Sec. 37 (1979):

"Where the substantive offense is the overt act necessary to sustain conviction on the conspiracy count, an acquittal of the substantive offense operates as an acquittal of the conspiracy count, if the acquittal of the substantive offense constitutes a determination that the overt act was not committed." Id. at 157.

In the case at bar the Information alleging Kidnapping set out a series of events, which taken together, constituted the elements of kidnapping. The jury acquitted appellants on this Information. The Information alleging Conspiracy to Kidnap stated:

"COUNT V: On or about the 23rd day of February, 1982, in Spencer County, State of Indiana, Charles L. Hooper, Joe Scalf and Larry L. Wheeler did agree with Jerry W. White and Robert McFarland and among each other for the object and purpose and with the intent to commit a felony, to-wit: Kidnapping, and in furtherance of the agreement, said Charles L. Hooper, Joe Scalf and Larry L. Wheeler did perform an overt act, to-wit: ...."

The Information then listed the acts listed in the Kidnapping Information. Appellants now...