Hoskins v. State

Decision Date12 December 1990
Docket NumberNo. 49S00-8805-CR-00441,49S00-8805-CR-00441
Citation563 N.E.2d 571
PartiesRobert Earl HOSKINS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was tried to a jury and found guilty of attempted murder, a Class A felony, I.C. 35-42-1-1; 35-41-5-1, and he received the presumptive sentence for that crime, which is thirty years, I.C. 35-50-2-4. The jury also acquitted appellant on charges of murder and attempted murder. Appellant now brings this direct appeal, challenging his conviction and sentence on several issues, which have been rearranged and consolidated into the following six: 1) whether the evidence supporting his conviction was sufficient; 2) whether the trial court erred in refusing two of his tendered instructions; 3) whether the State sufficiently disproved his claim of self-defense; 4) whether the verdict rendered in this case represented a compromise verdict; 5) whether the State made an adequate showing that a videotaped confession by appellant was given voluntarily; and 6) whether the trial court committed error in its sentencing procedure.

The uncontradicted evidence at trial showed that on February 16, 1987, Jo Ann Dale and her two adult daughters, Belinda Dale and Janice Todd, were shot by appellant at the residence which he and Belinda shared. Appellant and Belinda's relationship had shown signs of deteriorating, and there had been a confrontation earlier that evening between appellant and the two younger women. The shootings occurred when Belinda, Janice, Jo Ann, and Jo Ann's boyfriend returned to the house later to retrieve some of Belinda's belongings. Jo Ann was killed; Belinda and Janice were seriously wounded, but survived. After the shooting stopped, appellant searched Jo Ann's boyfriend and her purse for a gun, but did not find one. He voluntarily admitted the police when they arrived shortly thereafter.

The evidence regarding the events leading up to the shootings was in sharp conflict. The account given by Belinda and Janice was that, while their mother and her boyfriend waited downstairs, the two of them argued with appellant in the hallway at the top of the stairs. Appellant pushed Janice, pulled a gun out of his pocket, and fired three shots at her. One of the bullets hit Janice in the chest, and one nipped Belinda's nose. Appellant then turned toward the stairwell, aimed, and fired at Jo Ann as she came running up the stairs. Belinda and appellant ran downstairs to look at Jo Ann, then went back upstairs to call for help. Belinda testified that appellant became very upset when the phone did not work and that he put the gun to her head and fired. She staggered to the bathroom, where Janice had dragged herself and gotten into the tub. Appellant followed Belinda into the bathroom and told Janice to get up. When she responded that she could not, he shot her two more times. Both bullets went through her upraised arm and into her jaw. Appellant then picked her up by an arm and a leg and put her on the floor by Belinda.

Appellant testified in his own defense that during the confrontation with Belinda and Janice earlier that evening, Janice made references to a hit man. He testified further that he had phoned the police after the women left, which was substantiated by other evidence. Appellant then began moving loads of furniture and clothing to a friend's house and, upon his return from one such trip, was verbally and physically accosted by Jo Ann, Belinda, and Janice. Jo Ann cursed him and said she had a gun with her. Appellant ran upstairs with the two younger women in pursuit, and Jo Ann and her boyfriend stayed downstairs. The three struggled as appellant tried to phone the police, and he heard footsteps on the stairs and Jo Ann repeating that she had a gun. Appellant broke away from Belinda and Janice, ran to a dresser, pulled out his gun, and fired a warning shot toward the stairs. The two young women set on him again and, in the ensuing struggle, the gun went off several times. Appellant testified that the shooting occurred only in the hallway and that he did not shoot Belinda a few moments later in the bedroom nor did he fire on Janice in the bathroom. Appellant's defense at trial was that he was acting in self-defense.


Appellant's first claim on appeal is that the evidence supporting his conviction is insufficient. It is well established that this Court will neither reweigh the evidence nor judge the credibility of the witnesses, but will affirm the conviction if the evidence most favorable to the verdict and the reasonable inferences to be drawn therefrom provide probative evidence from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. James v. State (1976), 265 Ind. 384, 354 N.E.2d 236. The evidence recited above provides a sufficient basis upon which a reasonable trier of fact could have inferred beyond a reasonable doubt that appellant attempted to murder Janice Todd. In Dorris v. State (1988), Ind., 531 N.E.2d 190, the evidence supporting the defendant's conviction for attempted murder was found to be sufficient despite conflicting evidence on the question of whether the gun was intentionally fired by the defendant, which was the testimony of the victim and four other witnesses, or accidentally discharged during a struggle, which was the testimony of the defendant. Likewise, here, the testimony of the victim, Janice Todd, and another eyewitness, Belinda Dale, that appellant aimed his gun at and shot Janice in the hallway and again in the bathroom is sufficient to support the conviction, notwithstanding appellant's conflicting version of the incident.


Appellant challenges the propriety of the refusal of two of his tendered instructions. He first argues that the trial court erred in refusing his tendered instruction on battery as a lesser included offense. In support of this argument, appellant cites Johnson v. State (1984), Ind., 464 N.E.2d 1309, where this Court found that it was not error for a trial court to give a battery instruction in a prosecution for attempted murder. Appellant points out that, in that case, the victim was shot during an argument and that the defenses raised were accident and self-defense, and he argues that, by analogy, his tender of a battery instruction on the facts of his case was appropriate and that the trial court committed reversible error in refusing it.

Despite the factual similarities of the two cases, appellant's reliance on Johnson is misplaced. In Johnson, we stated that battery is not an inherently included offense of murder and then, by comparing the statutory elements of the lesser offense with the factual allegations set forth in the charge on the greater offense, we determined that the instruction was properly given. This same test for determining the propriety of giving an instruction, first examining the pertinent statutes and the charging instrument and then examining the evidence, was utilized in Wedmore v. State (1988), Ind., 519 N.E.2d 546, where this Court also stated that the State can, through the drafting of the charging instrument, foreclose to the defendant the tactical opportunity to seek conviction for a lesser offense. This is most typically accomplished by closely tracking the statutory definition of the offense and by inserting no additional language which might indicate an intention to charge a lesser offense. Reinbold v. State (1990), Ind., 555 N.E.2d 463.

An examination of the statutes and the charging instrument here shows that the State did, in fact, draft its charge against appellant so as to foreclose to him the possibility of conviction on the lesser charge of battery. The pertinent statutes are the attempt statute, I.C. 35-41-5-1, which states that "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime[,]" and the murder statute, I.C. 35-42-1-1, which states that "[a] person who knowingly or intentionally kills another human being ... commits murder[.]" The information here charged that appellant

did attempt to commit the crime of Murder, which is to knowingly kill another human being, to-wit: JANICE TODD, by engaging in conduct, to-wit: KNOWINGLY SHOOTING A DEADLY WEAPON, to-wit: A HANDGUN, at and against JANICE TODD, which constituted a substantial step toward the commission of said crime of Murder.

The narrow drafting of the information here, which closely tracked the language of the statutes defining the charged crime, is clearly distinguishable from the charge in Johnson, which was drafted sufficiently broadly as to make an instruction on battery appropriate:

The information charging the appellant with attempted murder states that he knowingly or intentionally shot a round of live ammunition from a pistol he held in his hands at the victim and that the round of ammunition struck and wounded the victim. The elements of battery are knowingly or intentionally touching another person in a rude, insolent, or angry manner resulting in serious bodily injury or by the use of a deadly weapon. Ind.Code Sec. 35-42-2-1(3). The information can positively be stated to have put appellant on notice that he was charged with battery because the elements clearly coincide.

Johnson, 464 N.E.2d at 1311. The trial court did not err in refusing appellant's tendered instruction.

Appellant next contends that the trial court erroneously refused his tendered instruction 4 on mistake of fact. I.C. 35-41-3-7 provides:

It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the...

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