Kelly v. State
| Decision Date | 17 March 1989 |
| Docket Number | No. 85-S00-8607-CR-692,85-S00-8607-CR-692 |
| Citation | 535 N.E.2d 140 |
| Parties | Jason T. KELLY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Thomas J. Mattern, Wabash, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Jason T. Kelly appeals his convictions for theft, a class D felony, and criminal confinement, a class B felony. Our disposition of this case requires that we address two issues: 1) whether the trial court erred in giving final instructions, over the defendant's timely objection, allowing the jury to convict the defendant of a crime for which he was not charged; and 2) whether the evidence was insufficient to support the criminal confinement conviction.
The criminal confinement charge alleged violation of Ind.Code Sec. 35-42-3-3(a):
(a) A person who knowingly or intentionally:
(1) Confines another person without his consent; or
(2) Removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;
commits criminal confinement, a Class D felony. However, the offense is a Class C felony if the other person is under fourteen (14) years of age and is not his child, and a Class B felony if it is committed while armed with a deadly weapon or results in serious bodily injury to another person.
It is evident that the above statute, framed in the disjunctive, includes two distinct types of criminal confinement by encompassing both confinement by non-consensual restraint in place and confinement by removal. Addis v. State (1980), Ind.App. 404 N.E.2d 59, 60. In Addis, Judge Chipman persuasively reasoned as follows:
Under section one of the statute, the act of nonconsensual confinement is prohibited, irrespective of any intent to remove the individual to another location; thus, the elements of the first type of confinement would be:
(3) without their consent.
But lack of consent is not an element of confinement under section two. Instead, it would be necessary to show the accused:
(3) by fraud, or enticement, force, or threat of force.
Clearly different acts and elements are required to be proven in each section, and the defensive posture would not be the same under the respective sections since the prosecution would necessarily proceed under different theories and proof....
... In view of the dissimilarity between the elements of proof under IC 35-42-3-3(a)(1) and (2), we believe the two sections present two separate crimes.
404 N.E.2d at 61 (citation omitted). We agree that the statutory sections define two separate criminal offenses.
The information alleging the criminal confinement for which the defendant was eventually convicted charged that on August 14, 1985, the defendant "did knowingly confine Todd Gates without his consent and while armed with a deadly weapon." The information did not charge the offense of confinement by removal.
The trial court, over the defendant's timely objection, gave the following instructions:
Final Instruction No. 1
A person who knowingly confines another person or removes another person, by fraud, enticement, force, or threat of force, while armed with a deadly weapon, commits criminal confinement while armed with a deadly weapon. The term "confine" means to substantially interfere with the liberty of another person.
To sustain the charge of criminal confinement while armed with a deadly weapon, the State must prove the following propositions: First: (a) That the Defendant knowingly confined Todd Gates; or (b) Removed Todd Gates, by fraud, enticement, force, or threat of force, from one place to another; and Second: When the Defendant did so he was armed with a deadly weapon. If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt then you should find the defendant guilty. However, if you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.
The defendant argues that the giving of these instructions erroneously enabled the jury to convict him of the offense of confinement by removal under Ind.Code Sec. 35-42-3-3(a)(2), even though he had been charged only with non-consensual confinement under Ind.Code Sec. 35-42-3-3(a)(1). The State argues that the error, if any, was harmless.
Article 1, Section 13 of the Constitution of Indiana entitles a criminal defendant to be advised "the nature and cause of the accusation against him, and to have copy thereof." The information which must be included in an indictment or information alleging a criminal offense is delineated in Ind.Code Sec. 35-34-1-2. Among other requirements, an information must state "the name of the offense in the words of the statute or any other words conveying the same meaning" and must set forth "the nature and elements of the offense charged in plain and concise language without unnecessary repetition." Ind.Code Sec. 35-34-1-2(a)(2), (4). In Abner v. State (1986), Ind., 497 N.E.2d 550, 553, we recently stated In a criminal action, the facts upon which the action is claimed to exist are those facts which constitute the essential elements of the crime charged. These elements and the nature of the offense must be set out in the information.
Deference for an accused's constitutional right to be informed of the nature and cause of the accusation and sufficient detail is required "to enable him to prepare his defense, to prepare in the event of double jeopardy, and to define the issues so that the court will be able to determine what evidence is admissible and to pronounce judgment." Manna v. State (1982), Ind., 440 N.E.2d 473, 475. If there is a reasonable doubt as to what offenses are charged, the doubt should be resolved in favor of the defendant. Belcher v. State (1974), 162 Ind.App. 411, 319 N.E.2d 658.
The information charged the defendant with "confin[ing] Todd Gates without his consent and while armed with a deadly weapon." The final instructions informed the jury that if the State proved beyond a reasonable doubt that the defendant: 1) confined Todd Gates, or 2) removed Todd Gates by fraud, enticement, force, or threat of force, from one place to another; then the jury should find the defendant guilty of confinement. The jury's general verdict indicates that they did find the defendant guilty of confinement, but does not indicate whether the conviction was based upon a violation of Ind.Code Sec. 35-42-3-3(a)(1), non-consensual confinement, as charged in the information, or Ind.Code Sec. 35-42-3-3(a)(2), confinement by removal, as allowed by the instructions but not charged by information.
The evidence, although conflicting, could have permitted the jury to infer the following facts. Sometime in the early morning hours of August 14, 1985, the defendant, a 5'10", 135 pound, twenty-year old male, who walked with a limp because of an earlier partial left leg amputation, approached Todd Gates, a 6'3"', over 200 pound, seventeen-year old male, and at knifepoint, ordered Gates to accompany him to a nearby party to ascertain Gates's true identity. After entering the party with Gates, the defendant determined that Gates was in fact Gates and not one Russell Decker, and then forced Gates at knifepoint to drive a vehicle to Decker's house. After arriving at the Decker residence, Gates sought and gained the protection of the Decker family inside their home.
The trial court's error in giving the contested instruction to the jury makes this case analogous to Shelton v. State (1936), 209 Ind. 534, 199 N.E. 148, and distinguishable from Dixon v. State (1981), Ind.App., 425 N.E.2d 673. In Shelton, the defendant was charged with committing manslaughter while driving under the influence of intoxicants and while driving at a speed greater than was reasonable and prudent. 209 Ind. at 534-35, 199 N.E. at 148. There existed sharp conflicts in the evidence concerning the defendant's intoxication and driving speed, but undisputed evidence indicated the defendant had been operating his truck recklessly. Id. at 536, 199 N.E. at 149. Under the instructions, the jury was permitted to find the defendant guilty if it concluded he had been driving while under the influence or at an unlawful speed or in a reckless manner. Id. at 537-38, 199 N.E. at 149. We reversed the defendant's conviction, concluding:
Under the Bill of Rights, appellant was entitled to know the character of the charge against him.
... The jury may have been convinced appellant was guilty of reckless driving, ... and, under the instruction of the court, returned its verdict of guilty solely upon this ground. It cannot be said therefore that the erroneous instructions above referred to did not...
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