Murphy v. State

Decision Date31 December 1980
Docket NumberNo. 2-479A93,2-479A93
Citation414 N.E.2d 322
PartiesJeff MURPHY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Jack Quirk, Muncie, for appellant.

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant-Appellant Jeff Murphy (Murphy) was found guilty of attempted burglary after a trial by jury in the Circuit Court of Delaware County. Two issues have been presented for review:

1. whether attempted burglary is an included offense of burglary; and

2. whether the instruction on an included offense was appropriate in light of the evidence presented at trial. We affirm.


Murphy was charged by information and tried by jury for burglary. 1 Included in the Court's final instructions, over Murphy's timely objection, was the State's tendered instruction on attempt:

"A person attempts to commit a crime when, acting with the culpalibility (sic) required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted.

Accordingly, if you find from the evidence in this case that the defendant did not complete the crime charged, but did, with the required intent, engage in conduct constituting a substantial step toward commission of that crime, then you are instructed that you may find the defendant guilty of the included offense of attempted burglary, a Class B felony."

The jury found Murphy guilty of attempted burglary and he was sentenced by the Court to ten years in prison.

Murphy contends the trial court erred in instructing the jury on attempted burglary. In support of this contention he presents several arguments, all of which center on the due process principle that a defendant must be given notice of the crime with which he or she is charged. Ind.Const. art. I, § 13; Blackburn v. State (1973) 260 Ind. 5, 11, 291 N.E.2d 686, 690; see I.C. 35-3.1-1-2 (Burns Code Ed. 1979) (form of charge). Since it is well settled that a conviction for an included offense which is supported by the evidence presents no constitutional problems, e. g., Carter v. State (2d Dist. 1972) 155 Ind.App. 10, 15-16, 291 N.E.2d 109, 112 (and cases cited therein); see Lawrence v. State (1978) 268 Ind. 330, 337-38, 375 N.E.2d 208, 212-13, the validity of Murphy's allegation of error turns upon whether an attempt is an included offense of the consummated crime.

Under the current statute, I.C. 35-41-1-2 (Burns Code Ed. 1979), an "included offense" is defined as an offense that:

"(i) (sic) Is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) Consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) Differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission." 2

In McGairk v. State (1st Dist. 1980) Ind.App., 399 N.E.2d 408, the Court by way of dictum construed I.C. 35-41-1-2 to establish a two-pronged test to determine what constitutes an included offense:

"First, there must be a determination of the material elements involved. These can be either the same elements or less than those required for the offense charged. The second determination is whether the lesser offense consists of an attempt to commit the offense charged or whether the lesser offense differs from that charged only in respect to some less serious harm or risk of harm, or whether a lesser culpability is required for the commission of the lesser offense" (emphasis added). Id. at 411.

We disagree with that interpretation and conclude that the statute defines an "included offense" as any one of the three subdivisions standing alone. See Wallace v. State (1st Dist. 1979) Ind.App., 395 N.E.2d 274, 276; cf. Hardin v. State (1980) Ind., 404 N.E.2d 1354, 1357 (citing Wallace ). 3

The basic principles of statutory construction require a statute to be construed as a whole, considering each section with reference to all other sections. Further, the words of a statute should be accorded their plain and ordinary meaning and due regard should be given to punctuation. Ernst & Ernst v. Underwriters National Assurance Co. (1st Dist. 1978) Ind.App., 381 N.E.2d 897, 900; City of Indianapolis v. Ingram (2d Dist. 1978) Ind.App., 377 N.E.2d 877, 884; Indiana Alcoholic Beverage Commission v. State ex rel. Harmon (1st Dist. 1976) Ind.App., 355 N.E.2d 450, 454.

The definition of an "included offense" contained in I.C. 35-41-1-2 comprises a complete sentence and consists of an introductory phrase and three subdivisions. An "or" follows the penultimate item. The Drafting Manual for the Indiana General Assembly (Drafting Manual) (1976), states this to be the preferred structure for Indiana statutes. Id. at 603-605. An "or" is used to designate when a series is to be read in the disjunctive. Id. at 902, 904. The word "disjunctive" is defined as, "Designating a conjunction ... which denotes an alternative, contrast, or opposition between the ideas it connects." Websters New International Dictionary of the English Language (2d Ed. 1943). See also Sekerez v. Youngstown Sheet & Tube Co. (3d Dist. 1975) 166 Ind.App. 563, 567, 337 N.E.2d 521, 524. Reference to other definitions set forth in I.C. 35-41-1-2, (compare "Governmental entity" and "Law-enforcement officer", 4) in light of the drafting guidelines contained in the Drafting Manual and the use by the legislature of the disjunctive conjunction "or", conclusively establishes that the three subdivisions present alternative definitions for an "included offense".

Turning to the exact issue before us, an attempt has been statutorily designated as an included offense of the offense charged. There was therefore no per se error by the trial court in instructing the jury on attempted burglary.


The second issue is whether the included offense instruction was appropriate in light of the evidence presented at trial.

An instruction is proper only if there is some evidence of probative value to support it. Hash v. State (1972) 258 Ind. 692, 284 N.E.2d 770. An instruction unsupported by evidence encourages a compromise verdict "between jurors who believe the accused guilty of the offense charged and those who believe him not guilty". Lawrence v. State, supra, 375 N.E.2d at 213.

As stated by our Supreme Court in Lawrence, an instruction upon an included offense is proper if:

"... there is 'evidence of probative value from which the jury could properly find the defendant guilty of such lesser included offense.' The trial court is justified in finding the existence of such requisite evidence where upon careful review of the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses, the trial court concludes that such evidence has substantial probative value and is not in serious dispute." 375 N.E.2d at 213.

To the same effect is Rodgers v. State (1979) Ind., 385 N.E.2d 1136. The focus of our examination of the evidence is thus on the element or elements which distinguish the offense charged from the included offense, in order to determine if there is any evidence of probative value that the defendant did not commit the distinguishing element or elements. Roddy v. State (3d Dist. 1979) Ind.App., 394 N.E.2d 1098, 1111 n.27.

Viewed in the light most favorable to the jury's verdict, the Record in the present case discloses the following. On the morning of October 20, 1978, Murphy was observed near the mobile home of Barbara Mann, located at 2421 North Wolfe in Muncie. A neighbor testified she saw Murphy unsuccessfully attempt to pry open the door on the west side of the...

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  • Johnson v. State
    • United States
    • Indiana Supreme Court
    • May 24, 1982
    ...315 N.E.2d 351; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770; Cole v. State, (1922) 192 Ind. 29, 134 N.E. 867; Murphy v. State, (1980) Ind.App., 414 N.E.2d 322; Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098. Notwithstanding Justice DeBruler's renunciation of step two of the Lawrenc......
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    • January 23, 1984
    ...Id. Attempted theft is an included offense of theft. Indiana Code section 35-41-1-16 (formerly Sec. 35-41-1-2). See Murphy v. State, (1980) Ind.App., 414 N.E.2d 322 (defendant charged with burglary; evidence adequate to prove attempt, but not completed crime; instruction on attempted burgla......
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    ...conviction is supported by substantial evidence, as here. Lahrman v. State (1984), Ind.App., 465 N.E.2d 1162. See also Murphy v. State (1980), Ind.App., 414 N.E.2d 322. Affirmed. MILLER and GARRARD, P.JJ., concur with separate opinions. MILLER, Presiding Judge, concurring. Rode moved to sup......
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