Peek v. State
| Decision Date | 29 September 1983 |
| Docket Number | No. 3-1182A309,3-1182A309 |
| Citation | 454 N.E.2d 450 |
| Parties | Steven Mark PEEK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Peter L. Benjamin, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., of Indiana, Lee Cloyd, Deputy Atty . Gen., Indianapolis, for appellee.
Following a jury trial Steven Mark Peek (Peek) was convicted of battery, a Class C felony. 1 Peek appeals, raising the following issues:
(1) Whether Peek's conviction for battery, a Class C felony, as a lesser included offense of robbery, a Class A felony, required proof of an element not alleged in the charging information;
(2) Whether the evidence is sufficient to support Peek's conviction;
(3) Whether the trial court erred in denying Peek's motion for a directed verdict;
(4) Whether the trial court erred in denying Peek's motion to suppress a statement he made to police officers (5) Whether the trial court erred in directing the prosecutor to ask a witness to identify Peek;
(6) Whether the trial court abused its discretion in refusing to release Peek on bond pending appeal.
Reversed and remanded with instructions to modify Peek's conviction and resentence him for the offense of battery, a Class A misdemeanor.
Peek was convicted of battery, a Class C felony, as a lesser included offense of robbery, a Class A felony, the offense charged. He contends that his conviction must be reversed because a conviction for battery, a Class C felony, requires proof of an element which was not alleged in the charging Information.
Peek was charged with robbery under IC 1976, 35-42-5-1 (Burns Code Ed., 1982 Supp.) which provides:
"A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant."
(emphasis added). He was convicted of battery as a Class C felony, pursuant to IC 35-42-2-1 which provides, in pertinent part:
"A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:
(1) a Class A misdemeanor if it results in bodily injury to any other person....
* * *
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(3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon."
(emphasis added). In defining terms used in criminal statutes, our Legislature has established a distinction between "bodily injury" and "serious bodily injury":
IC 1976, 35-41-1-2 (Burns Code Ed., 1982 Supp.).
(Record, p. 14) (emphasis added).
This Information does not allege "serious bodily injury," the element which raises the seriousness of battery from a Class A misdemeanor to a Class C felony. Therefore it does not charge the elements necessary for a conviction of battery, a Class C felony, so Peek's conviction was improper. Garcia v. State (1982), Ind.App., 433 N.E.2d 1207.
Peek asserts that this error requires reversal or a new trial . However, if the defendant was not misled in his defense, the conviction may be modified. Garcia, supra. The jury was instructed, without objection, regarding battery as a Class A misdemeanor and the elements of that crime were alleged in the Information and tried before the jury. Therefore, Peek's conviction may appropriately be modified as a conviction for battery, a Class A misdemeanor. Garcia, supra.
Peek contends that the evidence was not sufficient to support his conviction. He addresses the bulk of his argument to the question whether the evidence supports a determination that he inflicted serious bodily injury or used a deadly weapon. Because we remand this case for modification of the conviction to battery, a Class A misdemeanor, we need only determine whether the record contains sufficient evidence to support his conviction for battery, a Class A misdemeanor.
When reviewing the sufficiency of the evidence, this Court will neither weigh the evidence nor judge the credibility of witnesses. We will consider the evidence most favorable to the State and all reasonable inferences which may be drawn from that evidence. If there is substantial evidence of probative value on each element of the crime, we will not disturb the judgment. Smith v. State (1982), Ind., 429 N.E.2d 956, 957.
The evidence most favorable to the judgment is that, early in the morning of March 8, 1981, Peek and three others beat up Edwin Bromfield in the parking lot of a bar. One of the others hit Bromfield with a stick and stole his wallet. Bromfield was taken to the hospital for treatment of his injuries.
A conviction of battery, a Class A misdemeanor, requires proof that Peek knowingly or intentionally touched Bromfield in a rude, insolent or angry manner and that Bromfield suffered bodily injury as a result. IC 35-42-2-1. The record contains evidence to support each element of this crime. The statements of Peek and Donnie Johnson (Johnson), which were admitted into evidence, support a conclusion that Peek pushed Bromfield down or kicked him. 2 The existence of knowing or intentional conduct may be inferred from the conduct itself and the surrounding circumstances. Capps v. State (1972), 258 Ind. 565, 282 N.E.2d 833. Bromfield testified that he was hit on the head, back and sides and required hospital treatment. Photographs admitted at trial depict his injuries. The evidence introduced at trial is sufficient to sustain a conviction of battery, a Class A misdemeanor.
At the close of the government's case, Peek moved for a directed verdict on the robbery charge. In arguing this motion, defense counsel stated:
"If the Court would consider directing out robbery and letting the matter go to the jury on battery, I would feel that makes all the sense in the world, but there has been no showing that he knowingly or intentionally took property and participated in the taking of the property."
(Record, pp. 531-532). Defense counsel also sought a directed verdict on the grounds that venue had not been shown and that Peek had not been positively identified. After the motion was denied, Peek presented evidence. At the close of all the evidence, Peek renewed his motion and it was again denied.
Peek was convicted of battery; he was not convicted of robbery. Therefore, we see no harm resulting from the trial court's refusal to direct a verdict on the robbery charge.
Peek states in his brief that any failure to prove that the crime took place in Lake County is not reversible error. Therefore he has failed to preserve the error on appeal. See Ind.Rules of Procedure, Appellate Rule 8.3(A). Moreover, a directed verdict of acquittal is appropriate only when the State fails to present evidence on an essential element. Proctor v. State (1979), Ind., 397 N.E.2d 980. Venue is not an element of the crime and does not go to the guilt or innocence of the accused. Hatton v. State (1982), Ind., 439 N.E.2d 565; Smith v. State (1980), Ind.App., 408 N.E.2d 614. Although direct evidence of venue is preferred, circumstantial evidence may be sufficient to prove venue by a preponderance of the evidence. Hatton v. State, supra; Morris v. State (1980), Ind., 409 N.E.2d 608. In this case, the street address of the bar was given. Lake County police investigated the incident and one of them described the boundaries of the territory he was assigned to on the night of the incident. The jury could reasonably have inferred from this information that the crime occurred in Lake County. The record contains sufficient evidence of venue. Therefore, the trial court did not err in refusing to direct a verdict.
Peek's third basis for his motion was that no positive identification of him had been made. 3 During cross-examination, Johnson, who testified for the State, identified Peek as the man present at the beating. Peek's contention was erroneous; therefore the trial judge did not err in denying the motion for directed verdict.
Peek contends that the trial court erred in admitting the statement he made to the police shortly after the incident, alleging that the statement was not...
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