Roddy v. State, No. 3-378A75

• Docket Nº: No. 3-378A75
• Citation: 394 N.E.2d 1098, 182 Ind.App. 156
• Case Date: September 20, 1979
• Court: Court of Appeals of Indiana

Page 1098

394 N.E.2d 1098 182 Ind.App. 156 Roy X. RODDY, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 3-378A75. Court of Appeals of Indiana, Third District. Sept. 20, 1979.

[182 Ind.App. 158]

Page 1100

Charles F. Marlowe, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Roy X. Roddy guilty of the Commission or Attempted Commission of a Felony While Armed with a Deadly Weapon. ¹ He was sentenced to the Indiana Department of Corrections for a period of not less than ten (10) years. In his appeal to this Court, Roddy raises the following issues:

(1) Whether the evidence is sufficient to support his conviction?

(2) Whether the trial court erred in its refusal to instruct the jury on various lesser offenses?

We affirm.

I.

Sufficiency of the Evidence

Roddy challenges his conviction on the basis that the evidence was insufficient to prove two elements of the crime charged. He contends that the evidence does not establish: 1) that he took or attempted to take an article of value from another person; and 2) that he was at least sixteen years of age at the time the offense was committed. IC 1971, 35-12-1-1, Ind.Ann.Stat. § 10-4709 (Burns Code Ed.) ², which defines the offense with which Roddy was charged, provides that the statute is applicable only to those persons who have [182 Ind.App. 159] attained the age of sixteen years. Robbery, the felony which underlies Roddy's conviction, requires the taking of an article of value from another through the use of fear or violence. IC 1971, 35-13-4-6, Ind.Ann.Stat. § 10-4101 (Burns Code Ed.). ³

When the sufficiency of the evidence is raised as an issue on appeal, this Court will examine only the evidence most favorable to the State, together with the reasonable inferences to be drawn therefrom. If, from that viewpoint, there is sufficient evidence of probative value to support the jury's verdict, we will not set the conviction aside. Henderson v. State (1976), 264 Ind. 334, 335, 343 N.E.2d 776, 777.

The evidence most favorable to the State regarding whether Roddy took or attempted to take an article of value from another is as follows. William T. Hall, Jr., a gas station attendant at "J. and J. Shell" service station in Gary, Indiana, testified that at 12:45 a. m. on April 9, 1977, two men in a red Toyota drove into the gas station. According to Hall, after he had filled their tank with gas and collected the purchase price, the driver pulled a shotgun from the car, pointed it at Hall, and said it was "a stick up." Hall retreated to the confines of the garage, where he locked himself behind a steel door. The men then fled the premises without taking anything from the station. Hall, who stated that the incident placed him in fear for his life, testified that he was able to see the man's face in the well-lighted area adjacent to the gasoline pumps. Based on this observation, Hall made an in-court identification of Roddy as the man who had held the shotgun and announced the "stick up".

Roddy argues that this evidence is insufficient to establish that he took or attempted to take an article of value from another. We disagree. Based on the testimony of Hall that Roddy pointed a shotgun at him and announced that a "stick up" was in progress, the jury could have concluded beyond a reasonable doubt that Roddy did attempt to take an article of value from another person and that Roddy's conduct caused Hall to fear for his personal safety. George v. State (1969), 252 Ind. 344, 346, 247 N.E.2d 823, 824; Asocar v. State (1969), 252 Ind. 326, 330, 247 N.E.2d 679, 681.

[182 Ind.App. 160] Roddy has not followed the procedure that was necessary to preserve for

Page 1102

appellate review the question whether he had attained the age required for a conviction of the crime charged. Notwithstanding the fact that the age requirement of sixteen years is a statutory element of IC 1971, 35-12-1-1, Supra, an accused is presumed to have attained the age necessary for a conviction of a crime unless the presumption is challenged through a Motion to Dismiss and supporting memorandum. ⁴ McGowan v. State (1977), Ind., 366 N.E.2d 1164, 1165, Rev'g Ind.App., 355 N.E.2d 276 (1976). Our search of the record reveals that Roddy neither filed a Motion to Dismiss nor otherwise objected to the presumption that he was at least sixteen years old. While Roddy has thus waived his right to assert this contention, we note at the same time that Police Officer Robert Heighsmith testified without objection that Roddy, in the course of an investigatory interview, stated that his age was twenty-four (24) years. Roddy's contention is wholly without merit.

II.

Lesser Included Offenses

The trial court refused Roddy's tendered instructions and forms of verdicts regarding the lesser offenses of: (1) Assault (IC 1971, 35-13-4-7 Ind.Ann.Stat. § 10-402 (Burns Code Ed.)); (2) Assault with Intent to Commit a Felony (IC 1971, 35-1-54-3 Ind.Ann.Stat. § 10-401 (Burns Code Ed.)); and (3) Aiming a Weapon at Another (IC 1971, 35-1-79-5 Ind.Ann.Stat. § 10-4708 (Burns Code Ed.)). ⁵ Roddy contends that the trial court's refusal to submit these instructions and concomitant forms of verdicts to the jury constitutes reversible error.

[182 Ind.App. 161] Roddy's contentions are predicated upon IC 1971, 35-1-39-2 Ind.Ann.Stat. § 9-1817 (Burns Code Ed.) ⁶, which defines the capacity of juries to find defendants guilty of lesser offenses which are included within the crime charged. The statute reads:

"One offense included in another. In all other cases, 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 indictment or information." (Emphasis supplied.).

Id. The simplicity of the language employed in the statute belies the complexities involved in its application. Whether a particular lesser offense is "necessarily included" within a charged crime is a question which has troubled courts since the inception of the statute in 1905. See, e. g., Carter v. State (1972), 155 Ind.App. 10, 291 N.E.2d 109 (Sullivan and White, JJ., concurring with opinions).

The statutory provision that the lesser offense must be "necessarily included in that (offense) with which he is charged in the indictment or information" has indirectly caused much of the difficulty in applying the statute. Id. This statutory provision mandates that the determination of whether a lesser offense is a necessarily included offense depends not merely on the legal definitions of the greater and lesser offenses, But also on the allegations of fact contained in the charging instrument. Lawrence v. State (1978), Ind., 375 N.E.2d 208, 212; Hash v. State (1972), 258 Ind. 692, 696-97, 284 N.E.2d 770, 773; Sullivan v. State (1957), 236 Ind. 446, 451, 139 N.E.2d 893, 895; House v. State (1917), 186 Ind. 593, 596, 117 N.E. 647, 648. Its application has been a case-by-case development of the law. This piecemeal approach to a technical

Page 1103

and multi-faceted question of law, albeit necessary, has in turn precipitated a confusing body of case law, which, in some instances, has the appearance of inconsistency. ⁷ We here attempt to synthesize that case law and to [182 Ind.App. 162] explain the comprehensive methodology for the determination of when a defendant may properly be convicted of a lesser offense.

The foundation for our analysis was established in Lawrence v. State (1978), Ind., 375 N.E.2d 208. There, the Court, relying on its previous holdings in Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770 and Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405, emphasized that the resolution of the question whether a defendant can properly be found guilty of a lesser offense is determined by a two-step inquiry. Lawrence v. State, supra, at 212. The first step focuses solely on the allegations contained in the charging instrument, while the second step concerns the evidence presented at trial. Each step is applied independently of its counterpart to effectuate fundamental principles of criminal law. Consequently, Both steps of the inquiry must be satisfied in order for a defendant to properly be convicted of a lesser offense. ⁸

[182 Ind.App. 163]

Page 1104

STEP ONE

(A) Purpose and Methodology

The first step of the Lawrence inquiry is designed to ascertain whether the requirements of IC 1971, 35-1-39-2, Supra, are satisfied; in other words, whether the lesser offense is "included" within the crime charged. Two fundamental principles of criminal law are at stake in the determination. [182 Ind.App. 164] An examination of these principles precipitates an understanding of the methodological nuances involved in the determination of whether a particular lesser offense is "included" within the crime charged.

First, it is well-established that due process requires that a defendant be given notice of the crime or crimes with which he or she is charged. ⁹ Absent sufficient notice that a particular offense is charged, a defendant cannot be convicted of that crime. Ind.Const. art. 1, § 13; Blackburn v. State (1973), 260 Ind. 5, 11, 291 N.E.2d 686, 690. As effectuated in the law of lesser included offenses, the principle operates to bar a conviction of a lesser offense unless the charging instrument alleges the commission of all essential elements of the lesser offense as part and parcel of the charged crime.

Equally well-settled is the rule that when a defendant allegedly commits an act which constitutes a violation of more than one criminal statute, absolute discretion is vested in the State to decide which statute(s) he or she will be charged with violating. Adams v. State (1974), 262 Ind. 220, 224, 314 N.E.2d 53, 56; Von Hauger v. State (1969), 252 Ind. 619, 623, 251 N.E.2d 116, 118. In particular cases, the State may, by the words it chooses to employ in...