Ludy v. State, No. 49S02-0303-CR-99.

• Docket Nº: No. 49S02-0303-CR-99.
• Citation: 784 N.E.2d 459
• Case Date: March 06, 2003
• Court: Supreme Court of Indiana

784 N.E.2d 459

Mitchell LUDY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee

No. 49S02-0303-CR-99.

Supreme Court of Indiana.

March 6, 2003.

784 N.E.2d 460

Kathleen M. Sweeney, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer

DICKSON, Justice.

The defendant, Mitchell Ludy, was convicted of criminal deviate conduct, criminal confinement, and two counts of battery. In a memorandum decision, the Court of Appeals affirmed. The defendant petitions for transfer, in part challenging the following jury instruction:

A conviction may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes each element of any crime charged beyond a reasonable doubt.

Appellant's App. at 105. We grant transfer and hold that the giving of this instruction is error.

The trial objection to this instruction was that it is "an appellate standard ... rather than something that the jury needs to be instructed about." Tr. at 204.¹ On appeal, the defendant acknowledged that the instruction was upheld in Lottie v. State, 273 Ind. 529, 532-33, 406 N.E.2d 632, 636 (1980), but urged revision in light of the criticism of the instruction presented in Carie v. State, 761 N.E.2d 385 (Ind. 2002) (Dickson, J., dissenting from denial of transfer). On transfer, the defendant invites the Court to reconsider its position.

784 N.E.2d 461

The challenged instruction is problematic for at least three reasons. First, it unfairly focuses the jury's attention on and highlights a single witness's testimony. Second, it presents a concept used in appellate review that is irrelevant to a jury's function as fact-finder. Third, by using the technical term "uncorroborated," the instruction may mislead or confuse the jury

Instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001). See also Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind.1984); Fehlman v. State, 199 Ind. 746, 755, 161 N.E. 8, 11 (1928). "[A]n instruction directed to the testimony of one witness erroneously invades the province of the jury when the instruction intimates an opinion on the credibility of a witness or the weight to be given to his testimony." Pope v. State, 737 N.E.2d 374, 378 (Ind. 2000) (quoting Fox v. State, 497 N.E.2d 221, 225 (Ind.1986)). See also Abbott v. State, 535 N.E.2d 1169, 1172 (Ind.1989) ("An instruction to cautiously scrutinize the testimony of a codefendant is improper because it invades the province of the jury by commenting on the competency or the weight to be given to the testimony of any particular witness.").

When reviewing appellate claims that the evidence is insufficient to support the judgment, reviewing courts frequently confront cases in which most or all of the facts favorable to the judgment derive from the testimony of a single person, often the victim of the crime. In discussing this issue, our appellate opinions observe that a conviction may rest upon the uncorroborated testimony of the victim. See, e.g., Garner v. State, 777 N.E.2d 721, 725 (Ind. 2002); Stewart v. State, 768 N.E.2d 433, 436 (Ind.2002); Carter v. State, 754 N.E.2d 877, 880 (Ind.2001); Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.2000); Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000); Spurlock v. State, 675 N.E.2d 312, 316 n. 4 (Ind.1996); Thompson v. State, 674 N.E.2d 1307, 1311 (Ind.1996); Wooden v. State, 657 N.E.2d 109, 111 (Ind.1995); Brown v. State, 525 N.E.2d 294, 295 (Ind.1988).

But a trial court jury is not reviewing whether a conviction is supported. It is determining in the first instance whether the State proved beyond a reasonable doubt that a defendant committed a charged crime. In performing this fact-finding function, the jury must consider all the evidence presented at trial. See 1 IND. PATTERN JURY INSTRUCTION—CRIMINAL § 1.16 (2d ed. 1991 Supp.1997) ("A reasonable doubt is a fair, actual, and logical doubt that arises in your mind after an impartial consideration of all the evidence and circumstances in the case...."); 1 IND. PATTERN JURY INSTRUCTION—CRIMINAL § 1.01 (2d ed. 1991) ("You should not form or express an opinion during the trial and should reach no conclusion in this case until you...