McFarland v. State, 2-177A33

• Citation: 384 N.E.2d 1104,179 Ind.App. 143
• Decision Date: 22 January 1979
• Docket Number: No. 2-177A33,2-177A33
• Parties: Robert Lee McFARLAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 1104

384 N.E.2d 1104

179 Ind.App. 143

Robert Lee McFARLAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-177A33.

Court of Appeals of Indiana, Second District.

Jan. 22, 1979.

Michael T. Conway, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

McFarland was charged by information with the offenses of attempting to commit a felony (to wit: robbery) while armed ¹ and assault with intent to kill. ² The verdict form indicates that he was convicted of armed robbery ³ and assault and battery.

According to the evidence most favorable to the State, William Kirkland was working behind the counter of his brother's record store when McFarland and another man came in, ostensibly to exchange a record they had purchased earlier. McFarland pulled a gun and pointed it at Kirkland. He then jumped over the counter, grabbed Kirkland, pushed him to the back of the store, and held the gun in his back. When Kirkland "hollered" out to a woman who passed by the store, McFarland shot him and threw him to the floor. McFarland and the other man then ran out the door. Although Kirkland had to receive medical treatment as a result of the shot, no bullet actually entered his body, nor was there any deep breaking of the skin. The investigating officers looked for, but did not find, a shell casing, and the gun itself was never recovered.

On appeal, McFarland alleges:

(1) that the verdict is contrary to law and not supported by sufficient evidence;

(2) that the trial court erred in overruling his motion for judgment on the evidence at the conclusion of the State's case-in-chief; and

(3) that newly discovered evidence required the granting of a new trial.

We do not find reversible error based upon any of the specifications alleged, but nevertheless remand the cause to the trial court with instructions to correct portions of the judgment and sentencing as discussed in Part IV of this opinion.

I

McFarland's first specification of error pertains to the sufficiency of the evidence. ⁴ With respect to his armed robbery conviction, he argues that the State failed to prove he was armed with a dangerous or deadly weapon, to wit: a handgun, as set out in the information. McFarland claims that certain testimony from one of the State's witnesses, on cross-examination, established that the gun in question was merely a blank gun, incapable of expelling a projectile.

The transcript discloses the following testimony from Officer O'Connor:

Q. I'd like to ask you concerning part of the narrative in (your initial report on the incident), where you state in there, "that you believe that the weapon was a blank gun" . . . Did you put that in the report?

A. Yes, sir, I did.

Q. Why, if any reason, did you put that in there?

A. We, upon the initial examination of the scene, from the description given to my (sic) by Mr. Kirkland, it appeared to be an automatic type weapon which would discharge a shell casing, which I could not find on the scene. As it stated there was no visible hole in Mr. Kirkland's body as though a bullet had entered; but there were powder burns from close range of firing the shot. It could have been direct, it could have been glancing, you know, I'm not an expert of wounds, or that type of thing. But, it appeared to me, definitely to be a gunshot wound of some type.

Q. That's why you put in "possibly" a blank gun?

A. Yes, sir.

We disagree, however, with appellant's contention that this testimony precluded the jury from finding that a dangerous or deadly weapon was used. There was sufficient evidence from which the jury could infer that the gun as used had the Actual ability to cause harm. ⁵

Officer O'Connor, while acknowledging the "possibility" that the gun could have been a blank gun, also stated that the victim definitely had a gunshot wound of some type, since there were powder burns and bad abrasions, and that it might have been a glancing rather than a direct shot. Elsewhere in his testimony O'Connor explained why the shell casing might not have ejected from the gun. ("The gun could have jammed; automatics are very temperamental weapons. They must be kept extremely clean to operate properly. A bullet could still be discharged, but say, it's sliding mechanism could have jammed, this (sic) preventing it from ejecting. It's happened many times.") Testimony from the victim, who observed the gun from about a foot away, indicates that it was an automatic. ("I though it was a .45 Automatic but I think it was more like a .38, but I know it was an Automatic.") Kirkland also testified that McFarland held the gun against his back and that, when it was fired, he felt pain. The shot burned a "big hole" in his shirt, and the burn left scars on his back which Kirkland displayed to the jury. In Kirkland's opinion, the gun was not a blank gun.

Contrary to Appellant's contention, therefore, the record does not disclose uncontroverted evidence that the gun was only loaded with blanks. But even if the jury had determined that it was a blank gun, they still could have found under these circumstances that it was a dangerous, if not deadly, weapon. ⁶ A blank gun held against the victim's body has the actual ability to cause harm either from its use as a bludgeon or by creating a high flash from the discharge of the blank. People v. Trice, (1970) 127 Ill.App.2d 310, 262 N.E.2d 276. Cf., State v. Luckey, (1974) Ohio App., 69 Ohio Ops.2d 111, 322 N.E.2d 354.

Where differing conclusions might be drawn as to whether or not the object is dangerous or deadly, it is a question of fact for the jury to determine from a description of the weapon, the manner of its use, and the circumstances of the case. See, Kidwell v. State, (1967) 249 Ind. 430, 230 N.E.2d 590, cert. denied 392 U.S. 943, 88 S.Ct. 2326, 20 L.Ed.2d 1405. We hold that there was sufficient evidence on this issue to sustain McFarland's armed robbery conviction.

McFarland's other sufficiency of the evidence argument asserts that the evidence failed to support the charge of assault with intent to kill. McFarland, however, was convicted of assault and battery and the essential elements of that offense are: (1) an unlawful touching, (2) of another human being, (3) in a rude, insolent or angry manner. I.C. 35-1-54-4 (Burns Code Ed. 1975). The victim's testimony that McFarland "grabbed" him, pushed him, held a gun in his back, and threw him on the floor is, indeed, sufficient to support a conviction of assault and battery. Any touching, however slight, may constitute an assault and battery. See, Halligan v. State, (1978) Ind.App., 375 N.E.2d 1151, 1156-57. See also, Part IV of this opinion.

II

McFarland's second specification of error has not been preserved for appeal. Any error in the trial court's overruling his motion for judgment on the evidence at the conclusion of the State's case-in-chief was waived when McFarland elected to proceed with the introduction of evidence in his defense. Barnes v. State, (1978) Ind., 378 N.E.2d 839.

III

McFarland's last specification of error must fail because his claim of newly discovered evidence is not supported by the requisite factual affidavit. Ind.Rules of Procedure, Criminal Rule 16 and Trial Rule 59(D). See also, Sanders v. State, (1977) Ind.App., 370 N.E.2d 966.

IV

This appeal compels us to dispose of two additional issues, although neither was raised at trial or on appeal.

The record plainly discloses that McFarland was convicted of Consummated armed robbery under an information which charged Attempted armed robbery. Error such as this cannot be ignored. ⁷ See, Sanford v. State, (1971) 255 Ind. 542, 265 N.E.2d 701, 703, citing Summers v. State, (1967) 248 Ind. 551, 230 N.E.2d 320.

Conviction of an offense neither charged nor included within the criminal conduct alleged constitutes a denial of due process. See, Hazlett v. State, (1951) 229 Ind. 577, 99 N.E.2d 743, 745. Both the Indiana Constitution and the United States Constitution provide that an accused shall be informed of the charges against him. See, Halligan v. State, (1978) Ind.App., 375 N.E.2d 1151, 1156, n.3. The defendant is deprived of this constitutional protection if he is convicted of a statutory offense that has one or more additional element or elements which differ from those of the alleged statutory offense. In such cases the judgment of conviction is contrary to law and cannot be permitted to stand. As Judge Garrard explained in Belcher v. State, (1974) 162 Ind.App. 411, 319 N.E.2d 658, 660:

(a) an affidavit must charge in direct and unmistakable terms the offense with which the defendant is accused; (b) if there is a reasonable doubt as to what offense(s) are set forth in the affidavit, that doubt should be resolved in favor of the defendant; and (c) where the defendant is convicted of an offense not within the charge, the conviction may not stand for the reason the defendant is entitled to limit his defense to those matters with which he stands accused.

The remedy in a number of cases has been to reverse the conviction and remand the cause for new trial. This result is mandated whenever it appears that the defendant has been misled by the evidence introduced at trial or the issues joined under the information have not been determined. ⁸ Eq., Sanford v. State, (1971) 255 Ind. 542, 265 N.E.2d 701; Bruce v. State, (1952) 230 Ind. 413, 104 N.E.2d 129. ⁹ See also, Pruitt v. State, (1975) Ind.App., 333 N.E.2d 874.

Yet a judgment of conviction which is erroneous in this regard will not always require reversal. Where the defendant has not been misled and it is evident that the issues joined under the charging information have been determined, a simple correction of the judgment, rather than reversal, is the appropriate remedy.

In Belcher v. State, supra, the defendant entered a plea of guilty to the charge of uttering a forged instrument; yet the order book entry of judgment...