Sims v. State
| Decision Date | 28 November 1983 |
| Docket Number | No. 582S181,582S181 |
| Citation | 456 N.E.2d 386 |
| Parties | Willie SIMS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John L. Kelly, Jr., Gary, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana, Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
This appeal arises from Sims' second trial on the events described. His first conviction was overturned by this Court as reported at Sims v. State, (1980) Ind., 413 N.E.2d 556.
Appellant was convicted by a jury of Kidnapping, a Class A felony and was sentenced to twenty (20) years imprisonment.
The facts are these. Robert Pioch and a friend, Charles Mann, were driving Pioch's car in Gary, Indiana. Around midnight they pulled into the parking lot of a taco restaurant in a "red light" district of the city. They met a Larry Wheaton in the lot and inquired of him where the women were. They gave him a ride to a nearby bar which Wheaton entered. He reappeared shortly thereafter and said two women were inside the bar waiting. Pioch and Mann then said they were just joking and Wheaton reentered the car and they drove Wheaton home. On the way, Wheaton offered them marijuana and Mann indicated he would buy $10 worth. At Wheaton's apartment building they entered a basement level apartment. Upon entry they were confronted by two additional men, the appellant and Albert Larkins. The trio of men demanded money and Mann said he would not pay until he saw the marijuana. Appellant then hit Pioch in the head with a baseball bat. Pioch and Mann were forced to remove their shoes and socks and their wallets were taken. Mann was taken into another room of the apartment by Larkins while appellant and Pioch remained in the living room of the apartment. Appellant hit Pioch on several occasions while Larkins assaulted Mann. Knives were drawn on both men.
After a few hours of this treatment, Pioch talked appellant and Larkins into a deal. Appellant and Paul Smith, another resident of the apartment complex, were to take Pioch to his apartment in Portage and obtain from him personal property of value. Larkins was to remain at the apartment with Mann until Smith and appellant returned. A deadline was set so that if appellant and Smith had not returned by 5:00 A.M. Larkins was to inject Mann with battery acid. After arriving at Pioch's apartment, Pioch managed to escape and call the police. Appellant and Smith fled back to Gary where they were apprehended by the police at the apartment. Larkins was also captured then and Mann escaped any further harm.
Appellant contends there was insufficient evidence to support the verdict. This Court will neither reweigh the evidence nor judge the credibility of the evidence. Bray v. State, (1982) Ind., 430 N.E.2d 1162.
The record shows appellant knowingly participated in the confinement of Mann for the purpose of using him as a hostage. Mann was confined in a closet and guarded by Larkins while appellant and Smith went to Portage. It is apparent the purpose of the confinement was to insure the cooperation of Pioch in obtaining the items of value from his residence.
The appellant alleges, because he was not found guilty of the kidnapping of Pioch, it would be unreasonable to conclude he had the intent to hold Mann as a hostage. We disagree. The two events are independent of one another. The jury could have concluded Pioch willingly accompanied Smith and appellant and still believe Mann was being held as an incentive for Pioch's cooperation. Appellant also alleges the decision of Larkins and Smith to hold Mann as a hostage cannot be imputed to him because he was not present when the decision was made. This allegation is erroneous on two grounds. Testimony showed all three men communicated concerning Pioch's plan and that appellant was eager to act upon the plan. The evidence presented indicates appellant knew what was happening even if he did not help plan the kidnapping. Sufficient evidence to support the verdict was presented.
Appellant's second issue concerns his proposed instruction on the possible lesser included offense of criminal confinement. In reaching a decision whether or not to give the instruction, the judge should look to the language of the statute and to the language of the charging information to determine if a lesser crime is included within the greater crime. If a lesser offense exists, then the judge must review the evidence produced at trial to determine if the issues of a lesser included offense have been raised. If no such issues exist, then the instruction should not be given. Alstatt v. State, 455 N.E.2d 323 (1983); Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098; McNary v. State, (1981) Ind., 428 N.E.2d 1248.
The two statutes in question are I.C. Sec. 35-42-3-2 and I.C. Sec. 35-42-3-3 which are as follows:
"35-42-3-2. Kidnapping.--(a) A person who knowingly or intentionally confines another person:
(1) With intent to obtain ransom;
(2) While hijacking a vehicle;
(3) With intent to obtain the release, or intent to aid in the escape, of any person from lawful detention; or
(4) With intent to use the person confined as a shield or hostage; commits kidnapping, a class A felony.
The State at its discretion chose not to file an information alleging the lesser offense. In view of the language of the statute and the evidence produced, the trial judge was justified in finding that no issue of included offense existed. We find the trial court correctly refused to give the instruction.
Appellant's third issue concerns testimony given by Paul Smith, one of the participants in the crime. Smith was used as a rebuttal witness following appellant's testimony in his own behalf. During cross-examination, appellant's counsel sought to examine Smith concerning plea bargain agreements between Smith and the State. The trial court limited the range of cross-examination. Smith had pleaded guilty to two counts of robbery and two counts of kidnapping in the present case and to a count of second degree murder in an unrelated matter. Smith and the State agreed that Smith would testify against his accomplices in the murder and, in return, Smith would serve all five sentences concurrently. Under the agreement Smith was not to testify in appellant's trial. In fact, appellant had already gone to trial the first time on these charges and been convicted. In testimony given out of the hearing of the jury, Smith spoke concerning his understanding of the agreement.
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