Scruggs v. State, 3--1173A156

CourtCourt of Appeals of Indiana
Citation161 Ind.App. 672,317 N.E.2d 800
Docket NumberNo. 3--1173A156,3--1173A156
PartiesAaron Bernard SCRUGGS, Appellant, v. STATE of Indiana, Appellee.
Decision Date16 October 1974

Robert S. Bechert, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Aaron Scruggs and his wife were involved in an altercation at the Maier-Northcrest store in Fort Wayne, Indiana. Several store employees and a bystander were injured. Store merchandise was damaged. Aaron Scruggs was charged with one count of malicious trespass and four counts of assault and battery. He was found guilty of malicious trespass and on three of the four counts of assault and battery. 1 His appeal to this Court raises the following issues:

Issue One: Sufficiency of the Evidence

Issue Two: Invalid Waiver of Jury Trial

Issue Three: Erroneous Sentence

Issue Four: Abuse of Discretion in Setting Appeal Bond

Upon our review of Issue One, we conclude that the evidence was sufficient to support the convictions. As to Issues Two and Four, we conclude that there was a valid waiver of jury trial and no abuse of discretion in setting appeal bond. However, under Issue Three, we conclude that Aaron Scruggs was erroneously sentenced, and we remand with instructions.

I. Sufficiency of the Evidence

Before considering Aaron Scruggs's assertion of insufficient evidence, we point out that when sufficiency of the evidence is raised on appeal, this Court will not weigh the evidence or determine the credibility of the witnesses. We will consider only that evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. The conviction will be affirmed if, from that point of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Nicholas v. State (1973), Ind., 300 N.E.2d 656; Carpenter v. State (1974), Ind.App., 307 N.E.2d 109.

In the late afternoon of March 17, 1973, Arlene Scruggs and Wilma Diana Lewis were looking at coats in the Maier-Northcrest store in Fort Wayne, Indiana. Terry Werling, store manager, approached them and asked if he could be of assistance. A short time later, Aaron Scruggs approached Terry Werling and accused him of making 'a pass' at Arlene. Aaron Scruggs pushed Terry Werling into a rack of trousers whereupon Terry Werling squirted Aaron Scruggs with a penlight mace device. During the ensuing fracas, John C. Smeltzley, a store employee who came to Mr. Werling's aid, was struck on the head by Aaron Scruggs with a Master Charge card machine. The cut on Werling's head required seventeen stitches. Later, as Aaron and Arlene Scruggs were leaving the store, Aaron Scruggs struck Stephen Hermann, store employee, on the head with a Master Charge card machine. Stephen Hermann's head injury required ten stitches. Finally, Virginia Dolk, a bystander, was struck a blow to the mouth by a man leaving the Maier store. However, neither Virginia Dolk nor any of the store employees could identify Aaron Scruggs as the man who struck the blow.

Aaron Scruggs's first contention of insufficient evidence involves his conviction for malicious trespass. 2 Aaron Scruggs was charged with maliciously injuring a man's suit, a glass decanter and two umbrellas belonging to Maier's Gentlemen's Attire, Inc. He was convicted of malicious trespass under I.C.1971, 35-1-66-1; Ind.Ann.Stat. § 10-4509 (Burns 1956) which provides:

'Whoever maliciously or mischievously injuries (sic) or causes to be injured any property of another, or any public property, is guilty of a malicious trespass, and, on conviction, may be fined a sum equal to two fold the value of the damage done, or a fine of not less than five dollars ($5.00) nor more than one hundred fifty dollars ($150.00), or imprisonment in the county jail or penal farm not more than twelve (12) months.'

The evidence most favorable to the State clearly establishes that Aaron Scruggs threw a glass decanter into a rack of men's suits. Both Terry Werling and John Smeltzley testified that they saw Aaron Scruggs throw the glass decanter and that the shattering glass from the decanter ruined a man's suit. However, Aaron Scruggs does not contest the sufficiency of the evidence to support malicious injury, but he contends that ownership of the injured property was not proved. 3 Store manager, Terry Werling, specifically testified that the damaged merchandise belonged to Mr. Maier. This is sufficient evidence of ownership, and we affirm Aaron Scruggs's conviction of malicious trespass.

In relation to the malicious trespass conviction, Aaron Scruggs contends that his sentence was improper in that there was no evidence of the amount of damage done to the injured property to support a fine of $250.00. 4 We agree that Aaron Scruggs's sentence was improper but for different reasons. The trial court sentenced Aaron Scruggs to ninety days on the Indiana State Farm plus a $250.00 fine. This sentence is erroneous on its face since under I.C.1971, 35-1-66-1, supra, the court cannot impose both a fine and imprisonment. This Court cannot ignore a fundamental error which is apparent on the face of the record such as the incorrect sentence in this case. Kleinrichert v. State (1973), Ind., 297 N.E.2d 822.

Aaron Scruggs's second contention of insufficient evidence involves the charge of assault and battery upon John Smeltzley. On appeal, Aaron Scruggs urges this Court to accept his allegation of self-defense even though the trier of fact clearly rejected it. John Smeltzley testified as follows:

'Q. Now, you've testified here, this day, that each of you struck some blows and continued contact.

'A. That's right.

'Q. Does this mean you were coming up on Mr. Scruggs as he was engaged in this fight with Mr. Werling?

'A. After Mr. Werling was pushed into the suits, Mr. Scruggs was approaching and I come around. As I went to grab him, I was struck in the face and then we wrestled around, and then, it come to the glass jug, it was thrown. . . .

'Q. Okay. You were going after him when he struck you, is that correct?

'A. I walked between Mr. Werling had fell.

'Q. Had you touched Mr. Scruggs at this time?

'A. No, I did not.

'Q. You were just standing there and then he hit you?

'A. Right.'

Aaron Scruggs's assertion that he felt threatened by Mr. Smeltzley and was merely acting in self-defense is refuted by Mr. Smeltzley's testimony. Additionally, there is testimony that Aaron Scruggs started the initial altercation with Mr. Werling and that Mr. Smeltzley was coming to Mr. Werling's aid. Although the trier of fact must look at the factual circumstances from a defendant's viewpoint as to whether that defendant has acted in self-defense, the trier of fact is not bound to accept the defendant's rendition. Williams v. State (1974), Ind., 316 N.E.2d 354; Lytle v. State (1968), 251 Ind. 413, 241 N.E.2d 366; McCauley v. State (1974), Ind.App., 307 N.E.2d 885. Whether the evidence is sufficient to rebut a claim of self-defense is a question of ultimate fact to be decided by the trier of fact. Miller v. State (1974), Ind.App., 307 N.E.2d 889; Marine v. State (1973), Ind.App., 301 N.E.2d 778; Bonds v. State (1973), Ind.App., 303 N.E.2d 686. We conclude that there is substantial evidence of probative value from which the trier of fact could reasonably infer that Aaron Scruggs was not acting in self-defense and that he was guilty of assault and battery upon John Smeltzley. 5

II. Waiver of Jury Trial

Aaron Scruggs contends that his right to jury trial was waived by his attorney and that I.C.1971, 35-1-34-1; Ind.Ann.Stat. § 9-1803 (Burns 1956) requires his personal or written consent to waiver of jury trial before such waiver can be valid. 6 Regardless of the validity of this argument, the record negates Scruggs's contention. It specifically shows that Aaron Scruggs waived his right to jury trial, not Aaron Scruggs by counsel. As an appellant, Aaron Scruggs has the burden to provide this Court with a proper record disclosing error. This Court cannot consider matters outside the record. Dunbar v. State (1974), Ind.App., 311 N.E.2d 447; Glenn v. State (1972), Ind.App., 290 N.E.2d 103. Error alleged but not disclosed by the record is not a proper subject for review. Cooper v. State (1972), Ind., 284 N.E.2d 799.

There is no indication in the record that Aaron Scruggs attempted to withdraw his waiver of jury trial or that he objected to his trial before the court prior to raising this issue on appeal. See Larkin v. State (1959), 240 Ind. 160, 162 N.E.2d 515 and Bramlett v. State (1949), 227 Ind. 662, 87 N.E.2d 880. We find no error.

III. Erroneous Sentence

At the close of his trial by the court, Aaron Scruggs was sentenced as follows:

'Alright, Mr. Scruggs, there will be a finding of guilty on counts one, two, and three of 2569. On count one, Malicious Trespass, there will be a finding of guilty, $250.00 and costs, ninety days in the Allen, ninety days in the Indiana State Farm. On Count Two, Assault and Battery against Jerry, against Terry, Werling, there will be a finding of guilty, $1,000.00 fine and costs, six months at the Indiana State Farm. Count Three Assault and Battery, against John Smeltzley, finding of guilty, $500.00 fine and costs, ninety days at the Indiana State Farm, all of these days consecutive. On Count Four, Assault and Battery on Virginia Dolk, there will be a finding of not guilty because of no identification of the assailant. On the case of Aaron Scruggs 2898, Assault and Battery against Stephen Hermann, there will be a finding of guilty, $1,000.00 fine and costs, and six months at the Indiana State Farm. . . .'

Aaron Scruggs contends that the trial court committed reversible error by imposing consecutive sentences of ninety days for malicious trespass, six months for assault and battery of Terry Werling and ninety...

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