Myers v. State, No. 1-1080A276

Docket NºNo. 1-1080A276
Citation422 N.E.2d 745
Case DateJuly 01, 1981
CourtCourt of Appeals of Indiana

Page 745

422 N.E.2d 745
Charles MYERS, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
No. 1-1080A276.
Court of Appeals of Indiana, First District.
July 1, 1981.

Page 747

Carol A. Glass, Indianapolis, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.



Charles Myers appeals his jury conviction of arson. We affirm.


Between 6:30 and 6:40 a. m. on February 8, 1980, the home of 81 year old Leroy Smith, which is located in Mixerville, Indiana, was found burning. Earlier that morning Myers had visited Smith at the home of Smith's daughter and son-in-law, Mildred and Lawrence Handley, located in a trailer park in Oxford, Ohio, about a 10 minutes' drive from Mixerville. Oxford police were called shortly after 6:00 a. m. to remove Myers from the premises because Myers had become abusive to and argumentative with Smith. In the presence of two Oxford, Ohio, police officers at approximately 6:15 a. m. Myers twice threatened to burn down Smith's house. At least two other persons passing by Smith's house on their ways to work at between 6:30 and 6:40 a. m. saw a light grey older model car, matching the description of Myers' car, parked on the road in front of Smith's house. At the scene of the fire about two hours later Myers told Helen Coy, Mildred Handley's sister, that he had "taken care" of the house, and in the presence of the firemen he also stated that he would burn it again for three hundred dollars. Later that same morning Myers detailed his setting the fire in a tearful session with Mildred Handley. Charges of arson were filed against Myers the same day, and trial was held May 27 and 28, 1980, resulting in a guilty verdict.


1. Whether it was error for the trial court to refuse to give Myers' tendered instructions as to criminal mischief, circumstantial evidence, admissions, and intoxication.

2. Whether it was error to admit a police log into evidence and to permit testimony concerning it.

3. Whether Myers' counsel was incompetent.

4. Whether Myers' condition prevented him from obtaining a fair trial.


Issue One

Instruction on Criminal Mischief

Myers alleges that the trial court erred in refusing to give the following instruction which he tendered on criminal mischief: "The defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the Information. Criminal Mischief is an included offense of Arson." We agree with Myers that criminal mischief, Ind.Code 35-43-1-2, 1 is an

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included offense of arson 2 but do not agree that the court erred in refusing to give an instruction to that effect in this case. First, Myers' tendered instruction itself is not good because it fails to define the offense of criminal mischief. Second, the court did not err in refusing to instruct the jury on the included offense of criminal mischief where there was no dispute as to whether or not the distinguishing elements of damage by fire to a dwelling had been established. As pointed out by Judge Staton in Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098 at 1111:

"If the evidence which indicates that the defendant did in fact commit the distinguishing element is uncontroverted, then the instruction on the lesser included offense should not be given to the jury. If, however, ... evidence of probative value raises a 'serious dispute' regarding whether the defendant in fact committed the distinguishing element(s), an instruction and form of verdict on the lesser included offense should be given to the jury." (Citations omitted.)

Here the evidence was uncontroverted that Smith's dwelling had been damaged by fire. Thus, if Myers was the party guilty of damaging Smith's dwelling (property) he was guilty of arson and not criminal mischief.

Instruction on Circumstantial Evidence

Myers asserts that the trial court erred in refusing his tendered instruction number 6:

"In this case some of the evidence relied on by the State for a conviction is purely circumstantial. You are the sole and exclusive judges of the weight of the testimony. The Court has no right in the least to express any opinion concerning the weight of the evidence and will not do so. Yet it is made the duty of the Court to advise you as to the law of the case and upon the question and the measure of proof required. Where the evidence is wholly circumstantial upon any material part, the Court instructs you that the law is that circumstantial evidence is in its nature capable of the highest degree of moral certainty. Yet from its very nature it requires careful and patient consideration. The true test by which to determine the value of circumstantial evidence in respect to its sufficiency to warrant a conviction in a criminal case is not whether the proof establishes circumstances which are consistent or which coincide with the hypothesis of the guilt of the accused, but whether the circumstances satisfactorily established are of a conclusive character and point so surely and unerringly to the guilt of the accused, as to exclude every other reasonable hypothesis of his innocence. The force of circumstantial evidence being exclusive in its character, the mere coincidence of a given number of circumstances with the hypothesis of guilt or that they would concur for or concur with or render possible the guilt of the accused is not a reliable or admissible test, unless the circumstances rise to such degree of cogency and force as in the order of natural cause and effect to exclude a moral certainty, every other hypothesis except the single one of guilt. The proof must not only coincide with the hypothesis of guilt, but it must be inconsistent with every other reasonable conclusion."

The state contends, on the other hand, that the jury was adequately instructed on how to treat circumstantial evidence by the

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court's preliminary instruction on reasonable doubt and final instruction number 9 which reads as follows:

"Direct evidence means evidence that directly proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact.

"Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

"An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts.

"It is not necessary that facts be proved by direct evidence. Both direct evidence and circumstancial evidence are acceptable as a means of proof. Nether (sic) is entitled to any greater weight than the other.

"(When proof of guilt is by circumstantial evidence only, you should not find the defendant guilty, unless the facts and circumstances proved exclude every reasonable theory of innocence.)"

We agree with the state. Myers sums up the crux of his argument in favor of his instruction as follows: "In short, the court's instruction is correct as far as it goes, but Appellant's tendered instruction is a more complete and adequate statement of the law." Appellant's Brief at 23. This court has already held that "(a)n instruction which is correct will not be found to be erroneous merely because it was not an ampler statement of the law." Smith v. State, (1980) Ind.App., 403 N.E.2d 869, 875, trans. denied. We find no error in the trial court's refusal to give Myers' instruction number 6.

Instruction on Admissions

Myers again argues that his tendered instruction number 7 3 was an ampler statement than the court's instruction number 11 4 on admissions and therefore that his should have been given instead of the court's. We have already dealt with this argument above and would point out here in addition that the court properly rejected Myers's instruction because of its argumentative nature. Furthermore, some doubt is raised as to whether Myers's tendered instruction is a correct statement of Indiana law, since his only citation of authority for the instruction is to a Georgia case. The court did not err in refusing Myers's tendered instruction number 7.

Instruction on Intoxication

Myers argues that the trial court erred in refusing to give his tendered instruction number 5 setting out the affirmative defense of voluntary intoxication. He recognizes that at the time of the commission and trial of the offense in Indiana voluntary intoxication was defined by statute as a defense only to the extent that it negated specific intent. Later in 1980, however, Ind.Code 35-41-3-5(b) was amended to read: "Voluntary intoxication is a defense only to the extent that it negates specific intent an element of an offense referred to by the phrase 'with intent

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to' or 'with an intention to.' " Acts 1980, P.L. 205. Had the amended version of the statute been in effect on February 8, 1980, it is clear that voluntary intoxication would not be available to Myers as a defense to arson as it was defined by Ind.Code 35-43-1-1(a)(1) at the time of the offense. 5 Myers contends, however, that arson as so defined is a crime of specific intent because, he asserts, under the current Indiana penal code there are no longer any crimes of general intent and "any time the language 'intentionally' appears in a statute defining a crime, it is appellant's assertion that in effect the state is required to prove a form of specific intent." Appellant's Brief at 31. As authority for his position Myers cites Hooker v. State, (1979) Ind.App., 387 N.E.2d 1354, trans. denied, where Judge Lybrook wrote at 387 N.E.2d 1358, footnote 1:

"Specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. General criminal intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of a subjective desire to have...

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