Mitchem v. State

Decision Date05 September 1997
Docket NumberNo. 71S00-9604-CR-00294,71S00-9604-CR-00294
Citation685 N.E.2d 671
PartiesTerrance MITCHEM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Jeffrey L. Sanford, South Bend, for Appellant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

On June 14, 1995, defendant Terrance Mitchem was charged with the following: Murder, 1 1 a class A felony; Burglary, 2 a class B felony; three counts of Attempted Murder, 3 two counts of Rape, 4 and one count of Criminal Deviate Conduct, 5 all class A felonies. On December 11, 1995, the defendant was found guilty of all Counts, except for Burglary. Defendant was ordered to a total prison term of 90 years. Defendant contends he was erroneously convicted based upon an inadequate jury instruction and claims that his sentence was improperly enhanced. We affirm the trial court.


On June 12, 1995, defendant and two codefendants, Michael Greer and Dorian Lee, armed with weapons, entered a home occupied by four adults. Defendant raped the two female occupants. Defendant then told the four occupants to line up against the wall with their backs towards defendant, Greer and Lee. Defendant then changed his mind and told the occupants to turn around to face the defendant and to kneel. Greer, Lee, and defendant opened fire on all four occupants. One victim died and the other three survived.


Defendant raises two issues on appeal: (1) whether the trial court erred by failing adequately to instruct the jury that a conviction must be supported by proof of every material allegation contained in the charging information; and (2) whether the trial court erred in its sentencing determination by (a) failing to articulate the reasons why each factor was an aggravating or mitigating circumstance; (b) failing to engage in an evaluative balancing process with respect to the aggravating and mitigating circumstances; and (c) applying an improper factor to justify the enhanced sentence.


Defendant contends that the trial court failed adequately to instruct the jury that a conviction must be supported by proof of every material allegation contained in the charging information. The State charged defendant with the crime of Attempted Murder with a handgun and a shotgun. Evidence at trial suggested that defendant committed the crime of Attempted Murder with a rifle. Defendant asserts that this constituted a fatal variance between the charging information and the proof at trial; that the jury instruction on Attempted Murder should have specified that the State was required to prove all of the material allegations contained in the charging information. 6 Before deciding on the merits of this contention, we determine whether the defendant preserved this error for review.


In order for this Court to consider this issue on appeal, the defendant must have properly objected to the jury instruction, Ind.Trial Rule 51(C), and have proffered a written jury instruction which would correct the error. Clark v. State, 561 N.E.2d 759, 764 (Ind.1990); Raspberry v. State, 275 Ind. 504, 505, 417 N.E.2d 913, 915 (1981); Law v. State, 273 Ind. 624, 627, 406 N.E.2d 1185, 1186 (1980); Corley v. State, 663 N.E.2d 175, 179 (Ind.Ct.App.1996). If the defendant failed to tender an instruction on the issue, the defendant cannot now complain of an incomplete or omitted instruction. Clark, 561 N.E.2d at 764.

The State's proposed instruction on Attempted Murder was as follows:

To convict a defendant of Attempted Murder, a Class A felony, as charged in Count III, the State must prove each of the following elements beyond a reasonable doubt:

1. A defendant, acting alone or with another accomplice,

2. with the intent to kill [name of victim],

3. engaged in conduct which was a substantial step toward the commission of the crime of murder that is, the intentional killing of another human being.

(R. at 102)

Defendant did not tender a written jury instruction for the Attempted Murder charge. However, the trial court did make a notation on the proposed jury instruction regarding defendant's objection. Defendant's objection was as follows:

1. The elements include "acting alone or with another accomplice."

2. Does not have all the elements. that is ... "by shooting at _______ (undecipherable) the body of...."

3. Intentional killing of another human being is covered by element # 2.

(R. 102.)

The trial court granted the first and third objection by striking the particular language objected to, but did not grant the second objection. In his brief, defendant suggests that this second objection "related to the language in each of the three charges that the attempted murder was committed with a handgun and a shotgun." Br. of Appellant at 10. We agree with the State that the trial court's notation referring to defendant's objection to the instruction cannot be construed as a request for an instruction regarding the specific weapon.

Ind.Trial Rule 51(C) requires that a party distinctly state the matter to which the party objects and the grounds of the objection. An objection must be "sufficiently specific to make the trial judge aware of the alleged error before [the judge] reads the instruction to the jury." Terre Haute Regional Hospital v. El-Issa, 470 N.E.2d 1371, 1376 (Ind.Ct.App.1984) trans. denied (citing Scott v. Krueger, 151 Ind.App. 479, 492, 280 N.E.2d 336, 345 (1972)). The purpose of this rule is "to protect the trial court from inadvertent error." Id. (citing Conley v. Lothamer, 150 Ind.App. 356, 361, 276 N.E.2d 602, 605 (1971)). See also Grimes v. State, 170 Ind.App. 525, 535, 353 N.E.2d 500, 508 (1976). Failure to comply with T.R. 51(C) results in waiver of the alleged error. Id. With respect to this particular objection, we do not find that defendant made a sufficiently specific objection to make the trial court aware that what defendant wanted was an instruction which included the weapons alleged in the charge.

On the other hand, defendant did, on another occasion, clearly object to the jury instruction on Attempted Murder. After all the evidence was presented to the trial court, defendant made the following objection:

As to Counts II, IV, and V, the attempted--again, I don't think the instruction is as it should be. The State's specific instruction that was used as part of the attempted murder and not proved my client possessed those weapons. I think there is a variance between the charge and the prove (sic).

(R. 1473.)

While defendant's objection to the instruction was not as well articulated as it could have been, the objection was not lacking in specificity or clarity. See Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 284 (Ind.1983). Clearly, it would have been more appropriate for defendant, at this stage of the trial, to proffer a jury instruction on this issue, or at least inform the court that the error could be corrected by modifying the instruction. However, because the record reflects that throughout the trial defendant objected to the variance, we assume, without deciding, that the objection complied with T.R. 51(C) and thus the error was preserved for appeal. Therefore, we proceed to the merits of the issue.


Defendant argues on appeal that the jury instruction on Attempted Murder was improper because it did not instruct the jury that a conviction requires a finding of every material allegation contained in the charging information. As stated earlier, defendant asserts that there was a fatal variance between the charging information and the proof at trial. A discussion of this issue requires a two part analysis: (1) whether the use of specific weapons were material allegations in the charging information which the state was required to prove; and (2) whether the variance between proof at trial and the charging information was fatal.


The State charged defendant with Attempted Murder. To establish Attempted Murder, the State must prove beyond a reasonable doubt that (1) defendant acted with specific intent to kill and (2) defendant engaged in conduct constituting a substantial step toward commission of the crime. Minter v. State, 653 N.E.2d 1382, 1383 (Ind.1995). "Intent may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm." Johnson v. State, 455 N.E.2d 932, 936 (Ind.1983). "What constitutes a substantial step must be determined from all the circumstances of each case, and the conduct must be strongly corroborative of the firmness of the defendant's criminal intent." Harris v. State, 425 N.E.2d 112, 115-16 (Ind.1981) (quoting Zickefoose v. State, 270 Ind. 618, 622-23, 388 N.E.2d 507, 510 (1979)). The specific weapon used in the commission of the crime of Attempted Murder is not an element of the crime. 7 However, defendant asserts that because the State specified the weapons used in the charging information, it was bound to prove the defendant used such weapons. We disagree.

It is well recognized that "a failure to prove a material allegation descriptive of the offense is fatal." Madison v. State, 234 Ind. 517, 532, 130 N.E.2d 35, 42 (1955) (citing Crouch v. State, 229 Ind. 326, 335, 97 N.E.2d 860, 863 (1951)). However, as stated above, the specific weapon used is not an element of Attempted Murder. In fact, the statute on indictment and information, Ind.Code § 35-34-1-2, does not require the State to allege with specificity the instrumentality used in the crime charged. "The general rule of Indiana criminal procedure is that 'what is unnecessary to allege is automatically unnecessary to prove.' " Powell v. State, 250 Ind. 663, 668, 237 N.E.2d 95, 98 (1968) (citing Marks v. State, 220 Ind. 9, 40 N.E.2d 108 (1942)). "Allegations not essential ... which can be entirely omitted without affecting the sufficiency of the charge against the defendant, are considered as mere surplusage and may be disregarded." Id....

To continue reading

Request your trial
132 cases
  • Wrinkles v. State
    • United States
    • Indiana Supreme Court
    • December 31, 1997
    ...a defendant waives a claim of instructional omission if he fails to object and tender a competing instruction at trial, Mitchem v. State, 685 N.E.2d 671, 674 (Ind.1997), unless the alleged error constitutes fundamental error. Sanchez v. State, 675 N.E.2d 306, 308 (Ind.1996). "In order to ri......
  • Sweeney v. State
    • United States
    • Indiana Supreme Court
    • December 18, 1998
    ..."may be used only when considering the imposition of a sentence of shorter duration than the presumptive sentence." Mitchem v. State, 685 N.E.2d 671, 679 (Ind.1997) (quoting Jones, 675 N.E.2d at 1088; Gregory-Bey v. State, 669 N.E.2d 154, 159 (Ind.1996) (quoting Ector v. State, 639 N.E.2d 1......
  • Helsley v. State
    • United States
    • Indiana Supreme Court
    • May 25, 2004
    ...a timely trial objection clearly identifying both the claimed objectionable matter and the grounds for the objection"); Mitchem v. State, 685 N.E.2d 671, 675 (Ind.1997) (waiving one of defendant's alleged errors where defendant failed to distinctly state his objection and the grounds for it......
  • Wright v. State, 10A01-0106-CR-221.
    • United States
    • Indiana Appellate Court
    • April 29, 2002
    ...and include within the record a statement explaining the rationale behind its sentence. Ind. Code § 35-38-1-3 (1998); Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997). This statement should include an identification of the significant aggravating and mitigating factors, specific facts and r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT