McCombs v. State

• Decision Date: 31 March 1989
• Docket Number: No. 49S00-8805-CR-487,49S00-8805-CR-487
• Citation: 536 N.E.2d 277
• Court: Indiana Supreme Court
• Parties: Douglas W. McCOMBS, Appellant, v. STATE of Indiana, Appellee.

Page 277

536 N.E.2d 277

Douglas W. McCOMBS, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8805-CR-487.

Supreme Court of Indiana.

March 31, 1989.

Rehearing Denied June 1, 1989.

Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lias M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal of convictions for theft, a Class D felony, and the two additional offenses of carrying a handgun without a license and resisting law enforcement, both Class A misdemeanors. The court gave sentences of thirty-two years for the theft and one year each for the two misdemeanors, all sentences to be served concurrently. A thirty year enhancement of the felony sentence was based upon a determination of habitual offender status.

The questions presented are, first, whether an instruction on flight after a crime has occurred was erroneous; second, whether the evidence of resisting law enforcement was sufficient; and third, whether the evidence of habitual offender status was sufficient.

The evidence presented at trial showed that a citizen of Indianapolis drove home after work at 1:00 a.m. In so doing, he noticed a number of police cars clustered together in his neighborhood. Testimony disclosed that they had been engaged in a narcotics arrest. He continued on to his house only to discover that it had been broken into and several of his guns, including a pistol, stolen. Recalling the police foray in the neighborhood, he got back in his truck, returned to where he had seen the police, approached Officer Arkins who was seated in his patrol car filling out a police report, and told him of his misfortune. Arkins went to the house with him; and then Arkins recalled having responded earlier to a call for assistance from Sector Patrol Sergeant Thomas, who was having difficulty arresting a man carrying some guns. Arkins radioed and determined that Thomas was still in the neighborhood. He then drove the victim a few blocks away where he identified several of his guns. He was driven several more blocks where, in an alley, he identified his pistol.

In the earlier incident, Sergeant Thomas was seated in a patrol car parked in the same neighborhood several blocks from where the narcotics foray had occurred and a like distance from where the break-in occurred, when he was approached by a man who inquired whether the officer had seen someone walk by with guns under his coat. He looked up and saw a man "a hundred yards or so away" carrying something. Thomas approached him on foot, placed a hand on the man's shoulder and said stand still, talk to me I've got to know about these guns. The man hit Thomas in the chest, knocking him to the ground. The man then ran. A chase through the neighborhood followed which ended when appellant was seized while situated prone on the ground next to the foundation of a house. The stolen pistol was also on the ground next to the foundation.

The defense tendered an instruction on the subject of evidence of flight from a crime scene and objected to the court's instruction on the same subject. The tendered instruction was refused and the objection overruled. The challenged instruction was:

The flight of a person immediately after the commission of a crime, though not proof of guilt, is evidence of consciousness of guilt and thus of guilt itself and is a circumstance which may be considered by you in connection with all the other evidence to aid you in determining the question of guilt or innocence.

Appellant contends that this instruction violates the rule which condemns instructions which unduly emphasize a particular phase of a case, Burdine v. State (1985), Ind., 477 N.E.2d 544, and was erroneous wherein it employed the phrase, "evidence of consciousness of guilt." Instructions of this class which do not mandate or dictate the weight or value of evidence of flight have been declared consistent with the "no undue emphasis" rule. James v. State (1976), 265 Ind. 384, 354 N.E.2d 236. The challenged phrase, "evidence of consciousness of guilt," when employed in such instructions, tends to ameliorate any harshness to the benefit of the accused by suggesting the possibility that a consciousness of guilt is a general one or one having its source in events unrelated to the charged crime. The instruction was not deficient as contended.

Appellant next contends that the verdict of guilty of resisting law enforcement is not supported by sufficient evidence. A charge brought pursuant to I.C. 35-44-3-3(a)(3) requires proof that the accused knowingly fled from a law enforcement officer, after the officer had identified himself by visible or audible means and given an order to stop. Appellant contends that there is insufficient evidence that Sergeant Thomas identified himself. In resolving this question, we do not weigh evidence nor resolve credibility questions, but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if, from that viewpoint, there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657; Turner v. State (1972), ...