Jaske v. State

• Citation: 539 N.E.2d 14
• Decision Date: 01 June 1989
• Docket Number: No. 48S00-8608-CR-782,48S00-8608-CR-782
• Parties: Roger Allen JASKE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

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539 N.E.2d 14 Roger Allen JASKE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 48S00-8608-CR-782. Supreme Court of Indiana. June 1, 1989.

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William D. McCarty, Anderson, for appellant.

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

DICKSON, Justice.

A jury found defendant-appellant Roger Allen Jaske guilty of involuntary manslaughter, a class C felony, Ind.Code Sec. 35-42-1-4, and battery, a class C felony, Ind.Code Sec. 35-42-2-1. In a subsequent proceeding, the same jury found the defendant to be a habitual offender pursuant to Ind.Code Sec. 35-50-2-8. The trial court entered convictions upon the jury's findings and sentenced the defendant to eight years for the involuntary manslaughter conviction, enhanced by thirty years based upon the jury's determination of the defendant's habitual offender status, and eight years for the battery conviction, the sentences to run concurrently. Pursuant to Ind.Code Sec. 35-50-1-2, the trial court ordered the defendant's sentence for the instant case served consecutively to any sentence being served by the defendant at the Indiana Department of Correction. ¹

The following issues presented for review in this direct appeal are regrouped for discussion as follows:

1) sufficiency of the evidence;

2) double jeopardy;

3) testimony of Terry Horn;

4) admissibility of evidence concerning beating of Jeffrey Harmon; and

5) habitual offender determination.

1. Evidence Sufficiency

We first consider the defendant's attack upon the sufficiency of the evidence to sustain his convictions for involuntary manslaughter and battery. In addressing the sufficiency issue, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Kindred v. State (1988), Ind., 524 N.E.2d 279.

The evidence favorable to the trial court's judgment establishes that the victim, Clinton Page; the State's chief witness, Gary Glenn; and Jaske were all inmates at the Indiana Reformatory at the time of the incidents involved in this appeal. Prior to the incidents in question, Jaske had twice initiated Glenn (once in 1982 and again in 1983) into an organization to which Jaske belonged. The second initiation was necessitated because Jaske had lost the results of the first initiation. The initiation ritual involved three parts and was conducted after Jaske tied the initiate's hands and feet to a tree or piece of lumber and covered the initiate's eyes with a scarf or piece of cloth. In part one, Jaske would strike the initiate in the stomach once with his fist, hard enough to knock the breath out of the initiate, and then time how long it took the initiate to regain his breath. In part two, Jaske would again strike the initiate with his fists in the stomach, but this time would continue striking him until the initiate passed out. Jaske would then time how long it took the initiate to regain consciousness. Once the initiate passed the third part of the initiation, he was a member of the organization. Jaske referred to the organization as the "syndicate" and offered initiates opportunities for cash, jobs, and an early release from prison. Glenn also testified to Jaske's prior admission to Glenn that Jaske had given the three-part initiation to another inmate, Bill Gick, who

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almost "didn't make it," and to whom Jaske was forced to give mouth-to-mouth resuscitation "to bring him back."

Glenn testified that Page agreed to be initiated by the defendant in late 1983 after having the initiation ceremony explained to him. Some time after the noon hour on December 12, 1983, Page, Glenn, and Jaske stole away to a relatively unfrequented area of the Reformatory known as the dry kiln, an area where lumber was stored. There, while Glenn acted as lookout, Jaske tied Page by his hands and feet to some lumber, covered Page's eyes with a scarf, and then administered the first of the tests, striking Page in the stomach with his fist. Jaske then began to administer the second part of the initiation. After about the ninth blow, Glenn thought Jaske was hitting Page too hard. Glenn yelled at Jaske, but Jaske told Glenn to "mind his own business," and "that [Jaske] knew what he was doing." Glenn testified that after about three more blows, the beating stopped. When Glenn walked back to Jaske, he was giving Page mouth-to-mouth resuscitation in an effort to revive him. Jaske rejected Glenn's pleas to seek medical attention for Page. Jaske's resuscitation efforts eventually proved unsuccessful, and Jaske and Glenn decided to bury Page's body between several large stacks of lumber located in the dry kiln area. Medical testimony revealed that the cause of death was a blunt force injury to the abdomen with tearing of the major vessels and hemorrhaging. The testimony also revealed binding abrasions on his wrists.

Another witness, Steven Seeley, testified that Jaske admitted getting "carried away" and killing Page by beating him in the stomach during an "initiation into a club or something" after having first tied up the victim's feet and hands.

The defendant's argument that insufficient evidence exists to support his conviction for battery rests upon the contention that Page's initial consent to participate in the initiation acts as a complete defense. The defendant further argues that the victim's consent acts as a defense to the defendant's battery conviction; that the involuntary manslaughter conviction must also fall because, under the defendant's reading of Indiana's involuntary manslaughter statute, ² the only potentially applicable provision is Ind.Code Sec. 35-42-1-4(3); and that if a defense exists to the battery conviction, the defendant cannot properly be convicted of involuntary manslaughter.

We first note that lack of consent is not included among the statutory elements of the offense of battery. Ind.Code Sec. 35-42-2-1. Furthermore, because Ind.Code Sec. 35-38-1-7(c)(3) expressly recognizes a victim's inducement or facilitation of the offense as a mitigating circumstance in sentencing, it is clear that our legislature does not intend a victim's consent to operate as a bar to conviction.

The defendant cites several cases from other jurisdictions, all with sexual overtones, and only one Indiana case, Vanvactor v. State (1888), 113 Ind. 276, 15 N.E. 341, in support of his argument. In Vanvactor, this Court reversed a teacher's assault and battery conviction for disciplining a student, concluding that under the circumstances of that case, insufficient evidence existed to support the conviction. Although noting that the student accepted the punishment as an alternative to leaving school, the decision in Vanvactor was not based on the student's "consent." Rather, it concluded that "a teacher may exact a compliance with all reasonable commands, and may, in a kind and reasonable spirit, inflict corporal punishment upon a pupil for disobedience." 113 Ind. at 280, 15 N.E. at 342. See also Stroud, The Teacher Privilege to Use Corporal Punishment, 11 Ind.L.Rev.

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349, 351 (1978) (policy of the teacher's privilege is to permit such intrusions by a teacher that are reasonably necessary for the proper education and discipline of the student). Such a rationale has no application to the beating to death of one prison inmate by another.

We find pursuasive the reasoning in State v. Fransua (1973), N.M.Ct.App., 85 N.M. 173, 510 P.2d 106, in which the defendant and his victim were drinking together in a bar when they engaged in an argument, during the course of which the defendant stated that if he had a gun, he would shoot the victim. In response to the defendant's statement, the victim went out to his automobile to retrieve a loaded pistol, walked back into the bar, laid the pistol on the bar, and told the defendant to shoot him if he wanted to. The defendant picked up the pistol and shot the victim in the head, was subsequently convicted of aggravated battery, and on appeal raised as a defense the victim's consent to the aggravated battery. The New Mexico Court of Appeals rejected the defendant's argument, reasoning as follows:

It is generally conceded that a state enacts criminal statutes making certain violent acts crimes for at least two reasons: One reason is to protect the persons of its citizens; the second, however, is to prevent a breach of the public peace. [citations omitted] While we entertain little sympathy for either the victim's absurd actions or the defendant's equally unjustified act of pulling the trigger, we will not permit the defense of consent to be raised in such cases. Whether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in preventing and prohibiting acts such as these. We hold that consent is not a defense to the crime of aggravated battery ... irrespective of whether the victim invites the act and consents to the battery.

85 N.M. at 174, 510 P.2d at 107. See also Lyons v. State (1983), Fla.Dist.Ct.App., 437 So.2d 711 (expressly adopting New Mexico Court of Appeals view); Annotation, Consent as Defense to Charge of Criminal Assault and Battery, 58 A.L.R.3d 662 (1974) (noting the general view that in assault cases without sexual overtones, consent is ordinarily not a defense).

Because we hold consent is not a defense to the charge of battery, we need not address the defendant's attack upon his involuntary manslaughter conviction. Sufficient evidence exists to affirm the defendant's convictions for involuntary manslaughter and battery.

2. Double Jeopardy

Although not argued by the defendant in his brief, the State points to a double jeopardy problem in affirming the...