Phillips v. State, 2-1176A423

• Decision Date: 27 June 1978
• Docket Number: No. 2-1176A423,2-1176A423
• Parties: George PHILLIPS and Lawrence Peterson, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 666

377 N.E.2d 666

177 Ind.App. 10

George PHILLIPS and Lawrence Peterson, Appellants, v. STATE of Indiana, Appellee.

No. 2-1176A423.

Court of Appeals of Indiana,Second District.

June 27, 1978.

Robert W. Hammerle, Timothy J. Burns, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Phillips and Peterson were charged in a single information with two counts of First-degree burglary (Counts I and II) and one count of theft (Count III) arising out of break-ins at two residences. A jury found both guilty on all three counts and judgment was entered accordingly.

We reverse.

The evidence most favorable to the State is that deputy sheriffs responded to a call from a neighbor who had seen one man (Phillips) approach the front door of a nearby house (due to building style he could not see the door) and not reappear, and who, a couple of minutes later, had seen a car that had been parked in the street move into the driveway of that house where the driver got out and disappeared in the direction of the front door. When the police arrived two men attempted to flee on foot, one from the backyard of that house and the other from the yard of an adjacent house. Both were caught and identified as Phillips and Peterson. A watch belonging to the occupants of the house was found in Peterson's pocket. The car contained items taken from a house a few blocks up the street that had been burglarized about an hour earlier. Both houses had been broken into and ransacked in a similar manner.

I.

We find no merit in Peterson's claim that the admission of State's Exhibit 1, a floor plan of the first house burglarized, was error. The diagram was used at trial to illustrate the occupant's explanation of the location of the stolen items prior to the burglary. That testimony was relevant as it tended to show that obtaining possession of those items required entry into the house. Thus the floor plan was merely a visual representation of the witness' verbal description and was properly admitted. See, Dudley Sports Co. v. Schmitt (1972), 151 Ind.App. 217, 232, 279 N.E.2d 266, 277, reh. den., trans. den.

II.

The appellants' claim (pursuant to Ind.Ann.Stat. § 35-3.1-1-11(a) (Burns Code Ed., 1975)) that the three offenses were charged in the same information "solely on the ground that they are of the same or similar character" and that a severance should have been granted as a matter of right is not borne out by the record. Rather it appears that the offenses were joined because they were "based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." Ind.Ann.Stat. § 35-3.1-1-9(a) (2), (Burns Code Ed., 1975). Appellants must, therefore, show that the denial of a severance hindered a fair determination of their guilt or innocence in order to demonstrate reversible error. Lash v. State (1977), Ind.App., 367 N.E.2d 10, 11. This they have not done.

III.

Also asserted as error by appellants is the court's refusal of their tendered instruction on the lesser offense of entering to commit a felony. Where, as here, the evidence shows that the crimes committed, if any, were the ones charged, the court is not required to instruct the jury on lesser offenses. Lash, supra ; Harris v. State (1977), Ind., 366 N.E.2d 186, 188. Therefore, to refuse appellants' instruction was not error.

IV.

Appellants argue that the court erred by giving the following part of Instruction 4P over their objection:

"It is your sworn duty to decide this case upon the evidence produced in open court and reasonable inferences arising therefrom. Beyond this, disregard any suggestion that you speculate as to what might or might not have been."

Their claim that the emphasized portion of this instruction invades the province of the jury is unfounded.

It is well settled that instructions are to be read and considered as a whole. See, e. g., Brannum v. State (1977), Ind., 366 N.E.2d 1180, 1185; James v. State (1976), Ind., 354 N.E.2d 236, 241. Here, the allegedly objectionable part of the instruction was merely a restatement of an earlier part of the same instruction which had properly charged the jury to:

"(d)etermine the facts only from evidence admitted in open court and reasonable inferences arising therefrom."

V.

Finally appellants assign as error the giving of the court's instruction 1F(s)3 over their objection. That instruction undertook to explain what inference might be drawn from the unexplained possession of recently-stolen property. It was, in fact, the same instruction disapproved in Abel v. State (1975), Ind.App., 333 N.E.2d 848, 852- 855, and in Underwood v. State (1977), Ind.App., 367 N.E.2d 4, 5.

In the well-reasoned Abel opinion that instruction was distinguished from the instruction on the same subject approved by our Supreme Court in Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381, and was held to be an improper comment on the defendant's failure to testify. In Underwood the court reversed the judgment because that instruction was given even though the defendant had not objected at trial. The court held that the instruction imposed upon the defendant the burden of proving his innocence and thus violated fundamental due process of law.

Subsequently, in Sansom v. State (1977), Ind., 366 N.E.2d 1171, our Supreme Court impliedly superseded ¹ that portion of Underwood that held that the giving of the instruction constituted fundamental error. Three separate opinions were written in Sansom but all five Justices agreed that the propriety of the instruction could not be considered since the defendant had not objected at trial. Two Justices, however, indicated that were the matter properly before them they would reverse and, in fact, would probably vote to reverse the approval of the Gann instruction. The remaining three Justices held that the instruction approved in Gann was a proper statement of the law and a proper instruction. They made no mention of the instruction that had been actually given and thus neither approved nor disapproved of that instruction.

Since the instruction given in the case at bar has not been approved by the Supreme Court we are free to, and will, follow the decisions of our First District in Abel and Underwood (as modified by Sansom ). Further, we feel that the evidence in the case at bar is not so conclusive of guilt that we can say that the jury's verdict was not influenced by the giving of this instruction over the defendants' timely objections.

The judgment is

Reversed.

STATON, J., participating by designation, concurs.

BUCHANAN, C. J., dissents with opinion.

BUCHANAN, Chief Judge, dissenting.

I dissent to reversing the judgment of conviction because of the giving of instruction 1F(s)3.

Comparing the offending instruction (1F(s)3) with the instruction approved by the Supreme Court in Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381, which is the most recent Supreme Court case on this subject, I can...