Noble v. State

• Decision Date: 24 March 2000
• Docket Number: No. 82S00-9811-CR-748.,82S00-9811-CR-748.
• Citation: 725 N.E.2d 842
• Parties: Dwayne NOBLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

725 N.E.2d 842

Dwayne NOBLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82S00-9811-CR-748.

Supreme Court of Indiana.

March 24, 2000.

John D. Clouse, John P. Brinson, Evansville, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James A. Garrard, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. SHEPARD, Chief Justice.

Appellant Dwayne Noble appeals his convictions for attempted murder and attempted child molesting. Noble raises four questions:

I. Whether the evidence was sufficient to support his convictions;

II. Whether the court improperly limited his cross-examination of one of the witnesses;

III. Whether the court wrongly denied Noble's tendered instruction on battery as a lesser included offense of attempted murder; and

IV. Whether the court erred in denying Noble's motion for change of judge.

Facts and Procedural History

In January 1998, Dwayne Noble went to the home of Bessie Clark. Clark and Noble had previously dated, and they remained on friendly terms. The two visited for several minutes, then both departed. When Clark left, she told S.J. to lock the door behind her; S.J. was staying with Clark at the time.

Noble later returned to Clark's home, knocked on the door, and asked S.J. if he could come in and retrieve some cigarettes that he had left there. S.J. allowed Noble to enter. S.J. then went into the bathroom. When she came out, Noble was standing outside the bathroom door. Noble picked S.J. up, carried her into the restroom, and sat her on the sink countertop. Noble next unzipped his pants, exposed his penis to S.J., and told her to "open [her] mouth." (R. at 101.) S.J. refused. Noble then began choking S.J. and told her if she told anyone about the incident, he would kill her. S.J. soon lost consciousness.

When S.J. awoke, she was covered in blood and found a knife stuck in her neck. She called her mother and her aunt, and then dialed 911.

The State charged Noble with attempted murder¹ and attempted child molesting² as class A felonies and the jury found him guilty. The trial court sentenced Noble to forty years for attempted murder and added thirty years for Noble's status as an habitual offender. It ordered a consecutive sentence of forty years for attempted child molesting.

I. Sufficiency of the Evidence

Noble's sufficiency claim rests on the fact that the State's forensic specialists found no blood or semen on Noble's clothing following the crimes. (Appellant's Br. at 25.) As Noble's attorney says, "We weigh the scientific evidence against the non-scientific. The first has a huge advantage because it does not forget nor does it lie." Id. at 27.

To establish attempted murder, the State must prove beyond a reasonable doubt that Noble acted with specific intent to kill and took a substantial step toward the commission of the crime. Ind.Code Ann. § 35-41-5-1 (West 1998); Mitchem v. State, 685 N.E.2d 671 (Ind.1997). "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 (Ind.1983).

Likewise, to establish attempted child molesting, the State must prove that Noble knowingly or intentionally attempted to commit child molesting, and engaged in an overt act constituting a substantial step toward the commission of the crime. Richeson v. State, 704 N.E.2d 1008 (Ind. 1998) (specific intent not required in attempt crimes other than murder); Ward v. State, 528 N.E.2d 52, 54 (Ind.1988) (elements of attempted child molesting).

Here, the victim declared that Noble, someone she already knew, was her attacker; she said so in the hospital following the incident, and again at trial. A neighbor also testified that she saw Noble lurking around the house on the evening of the attack after the victim's family had departed. We agree with counsel that the fact that the forensic serologist did not find any of Noble's DNA on the victim or any of the victim's blood on Noble's clothing is worth consideration.³ Like counsel, we trust juries to sort out such evidence in searching for the truth. The evidence was sufficient to sustain their verdict that it was Noble who committed the crimes.

II. Exclusion of Evidence

Noble next contends that the trial court erred in limiting the testimony of Bessie Clark, S.J.'s grandmother. Clark testified for the State. On cross-examination, the defense asked Clark whether her daughter, S.J.'s mother, was married to a man named Cory. Clark responded affirmatively. The defense then asked whether there was "ever any accusation made that Cory had been molesting or messing around with [S.J.'s] sister." (R. at 87.) The State objected before Clark could answer. The defense argued that the "defendant has a right to pursue the line of inquiry that someone else may have committed the crime and that's why we're going in this direction." (Id.) After an unrecorded bench conference, the court sustained the objection without explanation.

Noble asserts that the trial court erred in excluding Clark's testimony about Cory, saying the evidence tended to show that a third party might have committed the crimes charged. (Appellant's Br. at 11.)

We are unable to review this issue because Noble did not make an offer to prove, that is, "an `offer' from counsel regarding what a witness would say if he was allowed to testify." Bradford v. State, 675 N.E.2d 296, 301 (Ind.1996). The Rules of Evidence require that the substance of the evidence be made known to the trial court and that the offer to prove identify the grounds for admission and the relevance of the testimony. Ind. Evidence Rule 103(a); Hilton v. State, 648 N.E.2d 361 (Ind.1995).

Here, the defense gave no indication to the trial court, other than the implication in counsel's question, that Clark would testify that another person committed the crimes charged against Noble. For all that appears, Clark would have answered counsel's question in the negative. As such, the issue is waived. See Roach v. State, 695 N.E.2d 934, 940 (Ind.1998),

modified on other grounds by 711 N.E.2d 1237 (1999).

III. Instruction on Lesser Included Offense

Noble next contends the trial court improperly declined to instruct the jury on battery as a lesser included offense of attempted murder.

To determine whether to instruct the jury on a lesser included offense of a charged crime, the court must employ the three-step test outlined in Wright v. State, 658 N.E.2d 563 (Ind.1995). First, the court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense to determine whether the lesser included offense is "inherently included" in the crime charged. Id. at 566.

If the lesser offense is not inherently included, the court must then proceed to step two and decide whether the offense is "factually included" in the crime charged. Id. at 567. This determination involves comparing the statute defining the alleged lesser included offense with the charging instrument in the case.

Finally, if the court determines that the alleged lesser included offense is either inherently or factually included within the crime charged, then it must evaluate the evidence presented by both parties. If there is a serious evidentiary dispute about the elements distinguishing the greater offense from the lesser offense and "if, in the view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense." Id. If there is no meaningful evidence from which the jury could properly find the lesser offense was committed, however, the court should not give the lesser included offense instruction. Id.

The parties in the instant case agree that the crime of battery is not an inherently included offense of attempted murder. (See Appellant's Br. at 22; Appellee's Br. at 10); see also Leon v. State, 525 N.E.2d 331, 332 (Ind.1988)

. The parties also agree that, under the facts presented here, battery is a factually included offense of attempted murder because the charging information alleged that Noble "stabb[ed] and/or cut[ ]" S.J. (Appellant's Br. at 22; Appellee's Br. at 10-11; R. at 8.) The remaining question is whether there is a serious evidentiary dispute about the elements distinguishing battery from attempted murder.

The trial court made no finding as to whether a serious evidentiary dispute existed, nor did Noble make a specific claim as to the nature of this dispute at trial. Therefore, our standard of review is abuse of discretion. See Brown v. State, 703 N.E.2d 1010, 1020 (Ind.1998)

.

The distinguishing element between battery and attempted murder is intent. Wilson v. State, 697 N.E.2d 466, 475 (Ind.1998). Thus, we examine the evidence to see whether there is a serious evidentiary dispute about what Noble intended to do — kill or batter. See id. (citing Lynch v. State, 571 N.E.2d 537, 539 (Ind.1991)).

In addressing this point, we find Leon, 525 N.E.2d 331, instructive. In Leon, the defendant was tried and convicted of attempted murder. On appeal, he argued that the trial court erred in refusing his tendered instruction on the lesser included offense of battery. Id. at 332. This Court determined that the evidence did not warrant the battery instruction stating:

The distinguishing element between these two offenses is intent to kill. The evidence supporting that element is not in dispute. Had Leon argued that the shooting was an accident or that he fired mere warning shots, the evidence might justify an instruction on battery. Leon's defense, however, was not that he lacked the requisite intent, but that he did not commit the act at all. The evidence thus did not warrant the instruction on battery as a lesser included offense which appellant requested.

Id.

Our...