McIntosh v. State
| Decision Date | 15 August 1994 |
| Docket Number | No. 36A04-9303-CR-81,36A04-9303-CR-81 |
| Citation | 638 N.E.2d 1269 |
| Parties | John McINTOSH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant John McIntosh appeals his convictions on two counts of criminal recklessness, 1 class D felonies, one count of confinement, 2 a class C felony, and one count of theft, 3 a class D felony.
We affirm.
McIntosh presents the following issues for our review:
1. Whether the trial court committed reversible error in failing to give instructions defining terms of art.
2. Whether the trial court committed reversible error in giving instructions which confused the jury, thereby depriving McIntosh of his due process right to a fair trial.
3. Whether the trial court gave an erroneous instruction on the issue of criminal confinement.
4. Whether I.C. 35-42-3-3, as applied to McIntosh, is unconstitutionally vague and overbroad.
5. Whether there was sufficient evidence to support McIntosh's conviction for criminal confinement.
In early August of 1989, Donald Cox and Cheryl Ward rented a house near the residence of Ward's mother, Mary Decker Green. Decker Green left on a trip and gave Ward a key to her house.
On August 8, 1989, Cox drove to Decker Green's residence to pick up some items. When Cox arrived at Decker Green's house, he saw McIntosh, Victor Wood, and Wood's girlfriend sitting in a car in front of the house. McIntosh, who was a recent boyfriend of Ward's, exited the car and demanded that Cox return his personal property that Ward had kept. He emphasized his demand by waving a gun in Cox's face.
After following Cox into Decker Green's house, McIntosh became angry. He shot a bullet into the kitchen floor, damaging the floor tile. He then told Cox that he was going to shoot him in the kneecap. He shot at Cox, but Cox was able to jump out of the way. McIntosh then began searching the house for his property. He finally decided to accompany Cox to the house Cox shared with Ward.
When Cox arrived at his house, he pointed out a table and chair which belonged to McIntosh. He promised McIntosh that he would take the table and chair to him on the next day. As McIntosh exited the house, he observed a television sitting outside. He emptied his gun at the television.
Approximately three or four hours after this incident, McIntosh opened the door to Cox and Ward's house and entered uninvited. He was accompanied by his wife, Lori, and a large dog. He took out a gun and shot it into the air. He also threatened to shoot Cox.
Ward rushed upstairs to get her baby and McIntosh followed her. When Cox entered the room, McIntosh placed the gun between his eyes. Cox grabbed the gun, and managed to wrest it away from McIntosh.
Cox then told Ward to take the baby out to the car because they were leaving. The car, however, would not start. McIntosh confronted Cox with a board, and forced him to run down the road to a neighbor's house. McIntosh then grabbed the baby, and stated, "I have your kid by his feet and I am going to drop him on his head." (R. 383). Ward, who was still in the yard, then ran to the neighbor's house to make sure the police were on their way. Shortly thereafter, McIntosh and Lori drove up to the neighbor's house and Lori handed the baby to Ward. About that time, the police arrived and McIntosh and Lori were arrested for public intoxication. Their car was impounded.
On August 9, Cox and Ward went to Decker Green's house to use her phone. Upon their arrival, they observed that the screen door was open and the glass was busted out. As they walked in, they noticed that a VCR and food were missing. Ward and Cox called the police to report the burglary.
Later that day, the police searched the impounded car that McIntosh had driven to Cox and Ward's house. Inside the vehicle, they found the VCR and miscellaneous food items. The items were later identified by Ward as belonging to Decker Green.
McIntosh was charged with two counts of criminal recklessness for pointing the gun at Cox's body and for later pointing the gun at Cox's head. He was also charged with the confinement of Ward's baby and the burglary of Decker Green's home. Finally, he was charged with the theft of Decker Green's property. He was convicted on all counts.
We affirm.
At McIntosh's trial, the court gave an instruction which informed the jury that:
The crime of criminal recklessness is defined in part by statute as follows:
A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness, a class B misdemeanor. However, the offense is a class D felony if it is committed while armed with a deadly weapon.
To convict the defendant, the State must have proved each of the following elements:
The defendant
1. recklessly, knowingly or intentionally
2. performed an act that created a substantial risk of bodily injury
3. to Donald R. Cox
If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of criminal recklessness, a class B misdemeanor.
If you further find beyond a reasonable doubt that the act was committed while armed with a deadly weapon, you should find the defendant guilty of criminal recklessness, a class D felony.
(R. 137). The trial court gave similar instructions defining the offenses of theft and criminal confinement. The court did not give instructions defining the terms "intentionally," "knowingly," or "recklessly." 4
McIntosh contends the trial court committed error when it did not sua sponte give instructions defining the specific intent terms. McIntosh neither objected to the lack of defining instructions nor tendered instructions of his own. He attempts to avoid waiver by characterizing the court's failure to give the instructions as fundamental error.
In Abercrombie v. State (1985), Ind., 478 N.E.2d 1236, our supreme court was faced with this issue when the trial court failed to define "knowingly" and "intentionally" in a trial for burglary and theft. In deciding the issue, the court first stated that, under our penal code, terms of specific intent are "terms of art ... which have special legal definitions." 478 N.E.2d at 1239 (citing I.C. 35-41-2-2; Smith v. State (1981), Ind., 422 N.E.2d 1179). It further stated that the trial court has "a duty to give [ ] instructions defining words of art." Id. (citing Martin v. State (1974), 262 Ind. 232, 246, 314 N.E.2d 60, 70). The court went on to hold that:
Here, the trial court gave the jury instructions on the offenses of burglary, I.C. § 35-43-2-1, and theft, I.C. § 35-43-4-2; and should have completed them by adding an instruction reciting the statutory definitions of "knowingly" and "intentionally." The instructions as given did however inform the jury that guilt must rest upon a knowing or intentional state of mind. Appellant did not tender a more complete instruction containing the definitions or otherwise raise the incompleteness of instructions to the trial court. No special prejudicial effect of the omission is identified. Under the circumstances we are not persuaded the error in instructions impinged a substantial right warranting reversal.
In the present case, McIntosh attempts to distinguish Abercrombie by establishing the prejudicial effect of the omission.
He initially contends that the lack of defining instructions served to deprive him of a fair trial and fundamental due process. Fundamental error is error which, if not rectified, would deny the defendant fundamental due process. Olson v. State (1990), Ind., 563 N.E.2d 565, 567. McIntosh's contention is merely a restatement of the definition of fundamental error; it does not provide us with a statement of special prejudicial effect
McIntosh attempts to show the special prejudicial effect resulting from the failure to define the specific intent terms used in the instructions pertaining to criminal confinement. The trial court instructed the jury that criminal confinement occurs when "a person [ ] knowingly or intentionally confines another person without that person's consent; or removes another person, by fraud, enticement, force or threat of force, from one (1) place to another." The court further instructed the jury that the State had to prove that McIntosh "1. knowingly or intentionally 2. removed Anthony Randall Ward, by fraud, enticement, force or threat of force, from one place to another." (R. 139).
McIntosh contends that the absence of definitional instructions allowed the jury to convict him of criminal confinement even if it believed his defense. He points out trial testimony by defense witnesses indicating that he did not forcibly remove Ward's child from her, but merely returned the child to her after she had abandoned him in her flight from McIntosh's presence. He argues that the instruction given was confusing "because [he] certainly could have been unaware or unintentionally using 'force' to move the child because the child was incapable of moving itself." Appellant's Brief at 26.
The trial court's failure to give definitional instructions did not have the prejudicial effect claimed by McIntosh. If the jury believed McIntosh's contention that he was merely returning the child to its mother, then it could not find that the child was confined by use of force. The result is the same whether the jury had to resort to common usage to define "knowi...
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