Jones v. State

Citation438 N.E.2d 972
Decision Date19 August 1982
Docket NumberNo. 3-1180A336,3-1180A336
PartiesSammy Lee JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Edward C. Hilgendorf, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Burglary, Ind.Code Sec. 35-43-2-1 (Burns 1979) and sentenced to eight (8) years imprisonment. The Court of Appeals affirmed. Jones v. State, (1981) Ind.App., 421 N.E.2d 15.

We grant Defendant's Petition to Transfer pursuant to Ind.R.App.P. 11(B)(2)(d) in order to clarify and modify a ruling precedent concerning entitlement to instructions upon lesser included offenses.

The statute under which Defendant was charged is as follows:

"A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, * * *." (Emphasis added)

The related statute prohibiting criminal trespass, in relevant part, is as follows:

"A person who: * * * knowingly or intentionally interferes with the possession or use of the property of another person without his consent; * * * commits criminal trespass, * * *." (Emphasis added) Code Sec. 35-43-2-2(a)(4) (Burns 1979).

Defendant tendered the following proposed final instructions, which the trial court refused:

"The defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged. "Included offense" means an offense that:

"... is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged; * * * (or) * * * ... differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person ... or public interest, or a lesser kind of culpability is required to establish its commission."

"There is, included in the offense with which the accused is charged, the offense of Trespass, which is defined as follows:

A person who ... knowingly or intentionally interferes with the possession or use of the property of another person without his consent ... commits criminal trespass, a Class A misdemeanor."

On appeal, the Court of Appeals, Third District, affirmed the conviction over the defendant's assignment of error addressed to the refusal of the tendered instruction. The affirmance was on the authority of Estep v. State, (1979) Ind., 394 N.E.2d 111. In so doing, however, Judges Staton and Garrard, in concurring opinions, were justly critical of our opinion in Estep.

The matter is now before us on Defendant's petition to transfer predicated upon the rationale of the aforementioned criticism of Estep ; and transfer is now granted, as aforesaid, pursuant to Ind.R.App.P. 11(B)(2)(d).

In Estep v. State, (1979) Ind., 394 N.E.2d 111, 113-14 we stated the following:

"The test for determining the existence of a lesser included offense was set forth in Watford v. State, (1957) 237 Ind. 10, 15, 143 N.E.2d 405, 407, where it was stated that '* * * to be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without having first committed the lesser.'

"Although the entry incidental to a burglary may be a trespass, under Ind.Code Sec. 35-43-2-2(a)(1) (Burns) it does not follow, that it must be. One may never have been denied entry to his neighbor's house, he may even have been expressly authorized to enter it at any time. Yet, if he enters by 'breaking,' as that term has been employed in defining burglary, with the intent to commit a felony therein, he commits a burglary--although not a trespass, because the entry was authorized.

"Defendant's claim that a burglary cannot be committed without committing a criminal trespass under subsection (a)(4) of Ind.Code Sec. 35-43-2-2 (Burns) is also erroneous. That subsection renders it a criminal trespass to knowingly or intentionally interfere with the possession or use of another's property without his consent, such interference being the equivalent of the entry proscribed in subsection (a)(1). It is not necessary for the break and the entry proscribed by the burglary statute to interfere with the possession or use of another's property. Obviously if an intent to commit a larceny requisite to a burglary came to fruition, the larceny would be such an interference. However, a burglary is committed when a break and entry is effected with the intent to commit a felony. Whether or not the intended felony is accomplished is immaterial." (citations omitted).

Our language placed a literal interpretation upon the phrase "necessarily included;" in turn, the analysis turned to an examination of the elements of the two offenses, burglary and criminal trespass.

The phrase "necessarily included" crept into our lexicon in 1905, when the Legislature enacted our lesser included offense statute. See Ind.Code Sec. 35-1-39-2 (Burns 1975). See generally, Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098. The term "necessarily" has been omitted from the revised Criminal Code. See Ind.Code Sec. 35-41-1-2 (Burns 1979). For purposes of brevity, suffice it to say that two types of included offenses are found in our case law. First, there exists the necessarily or inherently included offenses; by definition, it is impossible to commit the greater offense without also committing the lesser offense. See e.g., West v. State, (1950) 228 Ind. 431, 92 N.E.2d 852 (rape requires commission of battery); Hitch v. State, (1971) 259 Ind. 1, 284 N.E.2d 783 (robbery includes theft).

Our courts have also recognized that while a particular lesser offense may not be inherent in the greater offense, by definition, it may have been committed by reason of the manner in which the greater offense was committed. See, e.g., Hazlett v. State, (1951) 229 Ind. 577, 99 N.E.2d 743; Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618; Roddy v. State, supra. Depending on the factual allegations contained in the charging instrument, a lesser offense may also be charged and hence "included," as the term is employed.

Estep ignores this latter aspect of our "lesser included offense" case law and, to the extent that it is in conflict with this opinion, it is expressly overruled.

Consistency in this area of our law is imperative, for the very manner in which an information is drafted depends upon the case law. The state may wish to seek conviction of a defendant for a lesser offense, depending upon the ultimate strength of its evidence. By proper drafting, it can preserve the option to seek conviction for the lesser offense, which, if charged within the body of the information, serves the due process guarantee of notice to defendant. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686, appeal dismissed, (1973) 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. By the same token, the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged. Adams v. State, (1974) 262 Ind. 220, 314 N.E.2d 53; Van Hauger v. State, (1969) 252 Ind. 619, 251 N.E.2d 116. Our opinion in Estep ignores this precept, which is the foundation of the two-step inquiry outlined by Justice DeBruler in Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208. See also Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770, Watford v. State, (1957) 237 Ind. 10, 143 N.E.2d 405.

Estep rests upon the overbroad rule that criminal trespass can never be an offense included in burglary. Clearly that is an erroneous proposition, for, a criminal trespass, as defined in Ind.Code Sec. 35-43-2-2(a)(4) ("knowingly or intentionally inferferes with the possession or use of the property of another"), will likely occur in the commission of a burglary. If it does, in fact, the state may opt to draw the information in such manner as to include it.

Of course, the fact that a lesser offense is "included" within the crime charged, as allegedly committed in the charging instrument, does not ipso facto entitle either the state or defendant to an instruction on the lesser and included offense. As per step two of the rationale and methodology outlined in Lawrence v. State, supra, and Roddy v. State, supra, it must also be determined whether the evidence warrants submission of the instruction to the jury. This second step appears to have been first considered and required in Hash v. State, supra, citing Cole v. State, (1921) 192 Ind. 29, 134 N.E. 867. (DeBruler, J., dissenting). In that case we held that although the lesser offense of theft was included in the greater offense of robbery, as charged, the evidence left no doubt but that the defendant was guilty of robbery or of no crime whatsoever. For the jury to have found that Hash had come by the stolen money by theft, rather than by robbery as per the victim's testimony, or by a chance finding of it upon the ground, following a fight with the victim, would have required it to disbelieve the testimony of both Hash and the victim and to speculate upon a third factual situation upon which there was no evidence.

Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351 followed Hash. With DeBruler, J., dissenting, we again held that notwithstanding the inclusion of the lesser offense of robbery in the crime of felony murder, as charged, Hester was not entitled to the tendered instruction because his only defense evidence was that he was insane. Thus, under the evidence he was either guilty of the felony murder or of no offense. There simply was no evidence to which the tendered included offense instruction could be applied, and we said: "For the trial court to have instructed the jury that it could find...

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