Rodriguez v. State
| Decision Date | 01 March 1979 |
| Docket Number | No. 2-678A181,2-678A181 |
| Citation | 179 Ind.App. 464,385 N.E.2d 1208 |
| Parties | Ruben Velencia RODRIGUEZ, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
J. Bayne Burton, Anderson, for appellant.
Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
On October 17, 1977, Defendant Rodriguez was charged by Information with the offense of Robbery While Armed with a Deadly Weapon (a knife), a Class B felony, under IC 35-42-5-1 (effective October 1, 1977). On January 12, 1978, after trial by jury a verdict was returned finding the Defendant guilty of "robbery", for which the trial court sentenced him to a term of 10 years.
ISSUE:
The sole issue presented in the Motion to Correct Errors is whether the trial court imposed the correct sentence in conformity with the law and the verdict of the jury. (Defendant also raised this issue in the trial court by his motion to correct the sentence.)
We reverse as to the sentence.
FACTS:
The Information in this case, in pertinent part, read as follows:
The statute upon which the Information was based reads:
All of the instructions given by the trial court by which said court attempted to define the elements of the crime charged were incomplete and erroneous in that they cited only the elements of the lesser offense of simple robbery. 2 (For clarity, we refer herein to the Class C felony of robbery as "simple robbery" and to the more serious Class B felony as "armed robbery".) One instruction, which was given both as a preliminary and a final instruction, Without objection by the State, is set forth below:
"The Statute of the State of Indiana defines the crime of Robbery, So far as is applicable to the information in this cause, as follows:
'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 B felony.' " 3 (our emphasis)
In addition, the court gave the following final instruction which was Tendered by the State :
"The material elements of the offense of Robbery under the information as drawn in this case which must be proved beyond a reasonable doubt by the State of Indiana are:
1. That the defendant knowingly took property;
2. From another person;
3. By using force or threatening the use of force on any person." (our emphasis)
After deliberation, the jury returned a verdict finding the Defendant "guilty of robbery". The court, before entering judgment, conducted a hearing on aggravating and mitigating circumstances and concluded that the aggravating circumstances were "worthy of being set-off" against the mitigating circumstances. It then pronounced the following judgment:
" * * * the jury having returned a verdict of guilty on January 12, 1978, and the Court having heard evidence on aggravating and mitigating circumstances the Court hereby sentences the Defendant to a term of 10 years to the Indiana Department of Corrections. * * * "
The sentence of 10 years imposed by the court was based on a conviction for armed robbery, a Class B felony. IC 35-50-2-5 provides for a penalty for a Class B felony of a fixed term of 10 years with not more than 10 years added for aggravating circumstances or not more than four years subtracted for mitigating circumstances. The penalty for the violation of a Class C felony (simple robbery) is a fixed term of five years with not more than three years added for aggravating circumstances or not more than three years subtracted for mitigating circumstances. IC 35-50-2-6.
DECISION:
The Defendant alleges that the court's sentence was erroneous because it was based on the premise that the Defendant had been convicted of armed robbery when in fact he was convicted of simple robbery. We must agree with the Defendant's assertion.
It appears from the face of the Information that the State probably was attempting to charge the offense of armed robbery. Nevertheless, we are forced to conclude from the record that the Defendant was not prosecuted for that offense but, rather, for the lesser offense of simple robbery. Although the State did not formally move to amend the information to charge simple rather than armed robbery either prior to or during the course of the trial, the instructions given by the court and approved by the State created the same effect.
The jury was advised by the court's instructions both at the outset and at the close of the case of the elements necessary to support a verdict of guilty of the crime charged. These instructions did not include the element of being "armed with a deadly weapon" during the commission of the robbery. Clearly, then, these instructions did not precisely correspond to the charging Information but rather were narrower and served to advise the jury that It need find only the elements of simple robbery to find the Defendant guilty as charged. By failing to object to the court's instructions as being incomplete, erroneous or misleading, and by failing to tender a more comprehensive and accurate instruction covering the elements of armed robbery, the State, in effect, elected to prosecute only for the lesser included offense of simple robbery. The final instruction that was tendered by the State and given by the court, stating the elements of "Robbery under the information as drawn", emphasized to the jury that the Defendant was being prosecuted only for simple robbery. The result was the same as if the State had, pursuant to IC 35-3.1-1-5, specifically moved to amend the information to charge an offense included in the original charge, such an amendment always being permitted, even on the day of trial, if there is no prejudice to the Defendant. Highsaw v. State (1978), Ind., 381 N.E.2d 470.
It is the duty of the trial court to correctly and completely present the applicable law to the jury so that it will not be misled, can adequately understand the case, and arrive at a fair and correct verdict. Mendez v. State (1977), Ind., 367 N.E.2d 1081; Cockrum v. State (1968),250 Ind. 366, 234 N.E.2d 479. Further, the court has a statutory duty to instruct the jury on "all matters of law which are necessary for their information in giving their verdict". IC 35-1-35-1; Thomas v. State (1975), Ind.App., 330 N.E.2d 325.
It is also the responsibility of the State in efficiently prosecuting a Defendant to see that the instructions are tailored to the charge it has undertaken to prove. The State and the Defendant are entitled to object to erroneous or inapplicable instructions and to tender their own special instructions. Ind.Rules of Procedure, Criminal Rule 8.
After considering the duties of the court in conducting a trial and the responsibilities of the State in presenting its case, we must hold that where, as here, an instruction purports to set out all of the elements necessary to be proved to find the accused guilty of the crime charged, and such instruction includes only the elements of the lesser included offense, the prosecution is bound by that instruction. Thus, the jury could not have returned a verdict finding the accused guilty of an offense greater than simple robbery. Since the criminal conduct alleged was effectively "amended" by the jury instructions to simple robbery, a conviction of armed robbery would constitute a denial of the due process afforded a Defendant by the Indiana and United States Constitutions and would be contrary to law. 4 McFarland v. State (1979), Ind.App. 384 N.E.2d 1104; Hazlett v. State (1951), 229 Ind. 577, 99 N.E.2d 743.
Our conclusion that the trial court's erroneous sentence of Defendant requires remand for a proper sentence is supported by Scruggs v. United States (8th Cir., 1971), 450 F.2d 359, cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804, a bank robbery case, wherein the court held that, by omitting an essential element of the crime in an instruction, the District Court committed plain error under Rule 52(b), Federal Rules of Criminal Procedure, and remanded the case for sentencing under the lesser offense, stating as follows:
"The indictment under which appellants were found guilty charged in one count a violation of both Sections (a) and (d) of Title 18 U.S.C. § 2113. The instruction given as to the elements of the crime was as follows:
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