Johnson v. State

• Citation: 258 Ind. 683,284 N.E.2d 517
• Decision Date: 29 June 1972
• Docket Number: No. 1071S298,1071S298
• Parties: Richard Eugene JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 517

284 N.E.2d 517

258 Ind. 683

Richard Eugene JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 1071S298.

Supreme Court of Indiana.

June 29, 1972.

Anthony V. Luber, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., of Indiana, Michael Schaefer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant was charged by affidavit in three counts: Count 1. Conspiracy to commit a felony, to-wit: second degree arson; Count 2. Entering to commit a felony; and Count 3. Placing combustibles to destroy property. Trial by jury resulted in a verdict of guilty on Counts 2 and 3. The jury failed to reach a decision on Count 1. Appellant was sentenced to the Indiana State Reformatory for a term of not less than one nor more than ten years on Count 2 and for a term of not less than one nor more than three years on Count 3.

The record reveals the following evidence:

Robert Luchowski, Charles Lehman and Richard Feingold went to a building owned by Indiana University in South Bend, Indiana, at approximately 1:00 A.M. As they entered the parking lot the three men saw a figure standing behind the glass doors of the building. The man they observed was wearing what appeared to be a black silk or nylon mask convering his face from the nose down. He was later identified as George Haynes. The three men entered the building and were confronted by the appellant and his companion, George Haynes, who Lehman recognized. Both the appellant and Haynes were armed, one with a bayonet and the other with a knife, which they brandished in a threatening manner. Haynes asked Lehman 'if we couldn't just forget it.' Cans were noticed containing a combustible petroleum product. When questioned concerning these cans both Haynes and appellant gave evasive answers.

John Philabaum, a student guard at the university, testified that he had checked the rooms in question between 12:45 and 1:00 A.M. and at the time of his check the cans containing the combustibles were not there.

Further investigation by police officers revealed evidence from which the jury was justified in finding that appellant and his companion had entered the building by the use of a ladder to the roof and the opening of a trap door on the roof. Both the appellant and his companion fled the scene before the police arrived.

Appellant first claims the verdict was not sustained by sufficient evidence. With this we do not agree. It is appellant's position the evidence that he and his companion placed the combustible material in the building is merely circumstantial and that circumstantial evidence which merely tends to support the verdict is not sufficient. In support of this contention appellant cites Sharp v. State (1970), Ind., 260 N.E.2d 593, 22 Ind.Dec. 245; Melvin v. State (1968), 249 Ind. 351, 232 N.E.2d 606, 12 Ind.Dec. 473; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, 12 Ind.Dec. 494. However, the case at barymay easily be distinguished from the above cases for in this case the evidence is far greater than merely tending to support the finding of the jury. In the case at bar the appellant and his companion were actually caught inside the building. The cans containing the combustible material were found in the same area. They had not been there a few minutes before when a guard had made his rounds. When approached, the appellant and his companion threatened the three men who had discovered their presence by brandishing weapons. They also attempted to induce the men to forget the incident. They then fled the scene before police officers arrived.

We have previously stated a conviction may be sustained by circumstantial evidence. Vaughn v. State (1971), Ind., 266 N.E.2d 219, 24 Ind.Dec. 554.

Flight and related conduct may be considered by the trier of fact as evidence of guilt. Turner v. State (1970), Ind., 265 N.E.2d 11, 24 Ind.Dec. 146.

The jury was also justified in considering the fact that appellant was armed and acted in a threatening manner as evidence of his guilt. Martin v. State (1957), 236 Ind. 524, 141 N.E.2d 107.

We hold there is sufficient evidence in this record to sustain the verdict of the jury.

Appellant next claims the trial court erred in giving State's Instruction No. 3, which reads as follows:

'Evidence is not to be considered in fragmentary parts and as though each fact or circumstance stood apart from the others, but the entire evidence is to be considered and the weight of the testimony to be determined from the whole body of the evidence. A circumstance considered apart from the other evidence may be weak, if not improbable, but when viewed in connection with the surrounding facts and circumstances may be so well supported as to remove all doubt as to its existence as detailed by the witnesses. Acts considered apart from all other evidence may appear innocent, but when considered with other evidence may import guilt.'

It is appellant's claim that the above instruction was unduly repetitive of State's Instruction No. 2 and places an undue emphasis on the law on circumstantial evidence. We cannot agree with appellant's observations. Certainly all phases of the law cannot be covered in a single instruction. By their very nature there is a certain amount of repetition in the instructions when taken as a whole. It is only when instructions are so repetitious as to place an undue emphasis on a particular point that they become improper. Zimmerman v. State (1921), 190 Ind. 537, 130 N.E. 235; see also Minton v. State (1966), 247 Ind. 307, 214 N.E.2d 380, 7 Ind.Dec. 684. It was certainly proper to give an instruction on circumstantial evidence. Stokes v. State (1954), 233 Ind. 300, 119 N.E.2d 424. We find no error in the giving of State's Instruction No. 3.

Appellant next claims the trial court erred in giving State's Instruction No. 5, which reads as follows:

'The Jury are instructed that in a criminal case the Defendant is presumed to be innocent until his guilt is shown by the evidence beyond a reasonable doubt, and this rule requires that each juror be convinced by the evidence beyond a reasonable doubt, that the Defendant is guilty under the law of the offense charged in the indictment. The Court further instructs you that while it is the duty of each juror to act upon his or her own individual judgment and determine for himself or herself the issue of the guilt or innocence of the Defendant of the crime charged, and that he or she must look solely to the law and evidence in the cause in determining for himself or herself the guilt or innocence of the Defendant, yet, it is likewise the duty of each juror to consult honestly, freely and fairly with his or her fellow jurors and endeavor with them, by a fair consideration of the law and evidence in the cause, to arrive at a just conclusion as to the guilt or innocence of the Defendant. No juror, through carelessness or indifference, should yield his or her own judgment in this cause to the judgment of his or her fellow jurors. Neither should he or she, on the other hand, allow mere pride of personal opinion to prevent him or her from consulting and reasoning and deliberating with his or her fellow jurors in an honest and good-faith effort to arrive at a just verdict in this cause.'

It is appellant's claim that the above instruction is repetitive and unduly emphasizes jury consultation and compromise. An examination of the above instruction, together with other instructions, reveals the only repetition to be the statements concerning reasonable doubt. We can hardly see how a repetition of the law on reasonable doubt could be detrimental to the appellant. The statements concerning the deliberation of the jury correctly state the law and are not unduly repetitive. For the same reasons above cited we hold there was no error in giving State's Instruction No. 5.

Appellant also claims the trial court erred in admitting the testimony of one George Kroppf, an adult probation officer. In the case at bar the appellant had first entered a plea of guilty, following which he had been referred to Mr. Kroppf for interview. This testimony was offered in rebuttal and concerned a conversation the witness had had with the appellant during which the appellant had made certain admissions to the witness. Evidence of this type is not admissible in the state's case in chief as evidence of guilt of the crime charged, but it is admissible on rebuttal for impeachment purposes only. Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.

Appellant...