Jones v. State
Decision Date | 02 April 1979 |
Docket Number | No. 2-1276A453,2-1276A453 |
Citation | 387 N.E.2d 93,180 Ind.App. 126 |
Parties | Robert Edward JONES, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Michael T. Conway, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.
Robert Jones was convicted by jury of Robbery 1 and Commission of a Crime of Violence While Armed with a Firearm. 2 He appeals, presenting the following issues:
(1) Did the trial court err in refusing to give certain instructions on lesser included offenses?
(2) Did the trial court err in giving an instruction concerning factors to be considered by the jury in assessing penalties?
(3) Did the trial court err in sentencing Jones for both robbery and commission of a crime of violence while armed with a firearm?
(4) Was there sufficient evidence to support the verdict?
Jones contends that the trial court erroneously refused certain instructions concerning purported lesser included offenses of robbery.
We, however, need not decide whether the offenses set forth in the tendered instructions were included in the robbery charge. It is proper to submit instructions upon lesser included offenses only where there is some evidence of probative value from which the jury could find the defendant guilty of such offenses. Poindexter v. State (1978) Ind., 374 N.E.2d 509; Hash v. State (1972) 258 Ind. 692, 284 N.E.2d 770. The totality of the evidence here was to the effect that the robbery was committed as charged. The only conceivable issue before the jury was the identity of the robber, not the commission of the robbery.
We acknowledge Jones' cogent argument that, even if all of the evidence indicates the existence of the elements of the greater offense, the jury is nevertheless free to disbelieve any or all of the testimony pertaining to those elements present in the greater but not the lesser offense. We, however, are bound by the numerous decisions rendered by our Supreme Court which hold that the refusal of lesser included instructions presents no error where the evidence supporting the greater offense is uncontradicted. See Pruitt v. State (1978) Ind., 382 N.E.2d 150; Poindexter v. State, supra, 374 N.E.2d 509; Candler v. State (1977) Ind., 363 N.E.2d 1233; Harris v. State (1977) Ind., 366 N.E.2d 186; Hester v. State (1974) 262 Ind. 284, 315 N.E.2d 351; See also Lash v. State (2d Dist. 1977) Ind.App., 367 N.E.2d 10.
No error was committed in the refusal of the tendered instructions.
The trial court gave Instruction 2F to the jury, which reads as follows:
Jones contends that this instruction impermissibly allowed the jury to consider factors upon which no evidence had been submitted and, further, that it called attention to and emphasized parts of the evidence to the exclusion of others.
An almost identical instruction, however, was held proper by our Supreme Court in Brown v. State (1977) Ind., 360 N.E.2d 830. The court stated:
Here, as in Brown, the trial court separately instructed the jury to determine facts only from evidence admitted in open court. No error has been demonstrated.
Jones contends that his convictions for both robbery and commission of a crime of violence while armed with a firearm violate the double jeopardy clauses of the United States and Indiana Constitutions. Jones argues that, under the particular facts here, robbery was a lesser included offense of the commission of a crime of violence while armed with a firearm and, therefore, he could not be convicted of both a greater and lesser included offense.
This argument was effectively eliminated in McFarland v. State (2d Dist. 1979) Ind.App., 384 N.E.2d 1104. There we dismissed the applicability of the double jeopardy clauses to such situations, as follows:
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