Reas v. State

• Decision Date: 27 February 1975
• Docket Number: No. 1--274A28,1--274A28
• Citation: 323 N.E.2d 274,163 Ind.App. 316
• Parties: Paul M. REAS and Dennis L. Wheeler, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 274

323 N.E.2d 274

163 Ind.App. 316

Paul M. REAS and Dennis L. Wheeler, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--274A28.

Court of Appeals of Indiana, First District.

Feb. 27, 1975.

Michael J. McDaniel, New Albany, for appellants.

Theodore L. Sendak, Atty. Gen. of Ind., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendants-appellants Paul Reas and Dennis Wheeler were tried by jury and found guilty of second degree burglary. Following conviction, Reas petitioned to elect treatment as a drug abuser, which was denied by the trial court. IC 1971, 16--13--7.5--16 and 16--13--7.5--18 (Burns Code Ed.). ¹ Thereafter, appellants were sentenced to terms of imprisonment of not less than two nor more than five years.

This appeal presents the following issues for review:

1. Whether the verdict is supported by sufficient evidence.

2. Whether the trial court erred in its denial of ² Reas' petition to elect treatment as a drug abuser.

At about 5:00 A.M. on the morning of January 25, 1973, the operator of a security alarm service in New Albany, one Ronald Rice, received an alarm from the local Veterans of Foreign Wars Post. Rice notified police and proceeded to the Post where he apprehended both appellants inside the building. Police arrived at the scene, removed Reas and Wheeler to the Police Station, and summoned the club manager to the scene for inspection and inventory. The inspection revealed that entry was gained by forcing two metal doors and that about thirteen dollars ($13.00) in cash was missing.

I.

The material elements of second degree burglary are: (1) breaking (2) and entering (3) into a building or structure other than a dwelling house or place of human habitation (4) with the intent to commit a felony therein. Phillips v. State (1974), Ind.App., 319 N.E.2d 863, Apple v. State (1973), Ind.App., 304 N.E.2d 321, IC 1971, 35--13--4--4, Ind.Ann.Stat. § 10--701 (Burns 1956).

Appellants argue that the ingestion of narcotic drugs immediately prior to the illegal act rendered them incapable of forming the requisite specific intent.

As our Supreme Court stated in Stout v. State (1974), Ind., 319 N.E.2d 123:

'While voluntary intoxication is not a defense in a criminal proceeding, it is, nevertheless, well recognized that the absence of a specific intent, regardless of the cause of such mental state, is a defense to any crime requiring such an intent. To this extent, mental incapacity, although occasioned by the voluntary ingestion of alcohol or drugs, is a defense. The existence of this mental condition or incapacity, however, is a question of fact to be determined by the trier thereof--in this case, the trial judge. Preston v. State (1972), Ind., 287 N.E.2d 347; Daniels v. State (1971), 257 Ind. 376, 274 N.E.2d 702; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696.'

Considering only that evidence and the reasonable inferences therefrom most favorable to the State, we find substantial evidence of probative value from which the jury could have found that appellants possessed sufficient mental capacity to have formed the requisite specific intent at the time of the illegal act.

After being taken to the police station, appellant Wheeler executed a waiver of rights form and signed a written statement. This statement, which was admitted into evidence at trial, stated that appellants were together on the evening of January 24, 1973, at the home of one Daniel Hughes, located directly behind the V.F.W. W. Post. The statement continued that about 2:00 A.M. Wheeler drove to Louisville Post. The statement continued that was thereafter consumed by Wheeler. Wheeler was then told he needed more money for drugs, and it was suggested by another that he and Reas carry out their earlier plan to enter the V.F.W. Post. Finally, Wheeler stated that he and Reas procured crow-bars, entered the Post, and were there apprehended.

At trial, there was conflicting testimony as to the presence of drugs at the Hughes' residence, and as to appellants' consumption of drugs. However, State's witnesses Booth and O'Neil, members of the New Albany Police Department testified, respectively, that Reas was 'cool and calm' while being transported to police headquarters, and that Wheeler looked the same at trial as he did shortly after arrest. Defense witness Hughes testified that to his knowledge there were no narcotic drugs in his residence on January 24, 1973, and that neither Reas nor Wheeler injected any substance into their arms that night.

II.

In an effort to encourage effective treatment and rehabilitation of persons physically or mentally dependent on drugs, the General Assembly enacted the provision found at IC 1971, 16--13--7.5--18, supra, according to certain eligible drug abusers convicted of a crime an election to submit to treatment with the Department of Mental Health. That provision reads, in pertinent part:

'If a court has reason to believe that an individual convicted of a crime is a drug abuser or the individual states that he is a drug abuser and the court finds that he is eligible to make the election provided for under section 16 (16--13--7.5--16), the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department.

If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by the department to determine whether he is a drug abuser and is likely to be rehabilitated through treatment. Within a reasonable time after receiving an order to conduct an examination, the department shall report to the court the results of the examination and recommend whether the individual should be placed on probation and supervision for treatment. If the court, acting on the report and other information coming to its attention, determines that the individual is not a drug abuser, or is a drug abuser not likely to be rehabilitated through treatment, the court shall proceed to pronounce sentence as in other cases. If the court determines that the individual is a drug abuser and is likely to be rehabilitated through treatment, the court may place him on probation and under the supervision of the department for treatment and of the proper probation authorities for probation supervision and may require such progress reports on the individual from the probation officer and the department as the court finds necessary. No individual may be placed under supervision unless the department accepts him for treatment.'

By its terms, the statute becomes operative when either (1) the court has reason to believe that a convicted individual is a drug abuser or (2) the individual states that he is a drug abuser. However, the duties evolving upon the trial court and the procedures to be followed once the statute is operative are not clear. This problem was considered at length in the recent decision Glenn v. State (1975), Ind.App., 322 N.E.2d 106. Therein Judge Staton formulated the following general guidelines:

'Whenever a reason to believe (that an individual convicted of a crime is a drug abuser) exists, the trial court has a duty to make further inquiry in an attempt to establish with certainty whether a convicted defendant is eligible and a drug abuser. If the court can establish with a reasonable degree of certainty that the convicted defendant is an eligible drug abuser, it must explain the election and offer it to the defendant. The purpose of the Indiana Drug Act mandates this procedure.

When a 'reason to believe' cannot be reduced to a reasonable certainty by further inquiries, 'the court may advise' the individual convicted of a crime '. . . that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department. . . .' I.C.1971, 16--13--7.5--18, supra. Any other statutory construction is at war with the express purpose of the Act. People v. Robinson (1973), 12 Ill.App.3d 291, 297 N.E.2d 621. Any other interpretation would be a semantic absurdity. It would permit the trial court to frustrate the express purpose of the Indiana legislature.

Once the election is made by the convicted defendant, the trial court shall order his examination by the department. McNary v. State (1973), Ind.App., 297 N.E.2d 853. The trial court exercises its dispositional discretion after it receives the department's report. . . .

We conclude that an inquiry by the trial court into the convicted defendant's eligibility and status as a drug abuser is mandatory when the trial court has...