Sims v. State, 3-685A160
Court | Court of Appeals of Indiana |
Citation | 482 N.E.2d 1182 |
Docket Number | No. 3-685A160,3-685A160 |
Parties | John Lee SIMS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Decision Date | 26 September 1985 |
Edward C. Hilgendorf, South Bend, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
John Sims was convicted in a jury trial of theft pursuant to IND.CODE Sec. 35-43-4-2(a) which defines theft as knowingly or intentionally exerting unauthorized control over property of another person with intent to deprive that person of any part of its value or use.
On appeal, Sims presents two issues for review:
(1) whether the trial court erred in charging the jury in accordance with State's Instruction No. 3 and
(2) whether there was sufficient evidence to support the verdict of the jury.
Only the first issue will be addressed.
Appellant alleges the trial court erred in instructing the jury in accordance with State's Instruction No. 3 which reads:
Appellant objected to Instruction No. 3 at trial, in his motion to correct error and again on appeal on the grounds it is an State's Instruction No. 3 is taken from Freeman v. State (1967), 249 Ind. 211, 231 N.E.2d 246, as is indicated in the trial record and in the appeal briefs. The appellant correctly states that Instruction No. 3 is only the first part of an instruction approved in Freeman. The second part of the Freeman instruction indicated the evidence presented by both the state and the defendant and instructed the jury as to the necessity of examining all the evidence in making a determination. Freeman v. State, supra, 249 Ind. at 218, 231 N.E.2d at 251. In light of the fact the challenged instruction is not the complete instruction approved in Freeman, and that similar instructions have been frequently considered by the Indiana appellate courts since the 1967 Freeman decision, other case law is more relevant to the issue.
incorrect statement of the law as applied to the present case and is a comment on the evidence. Sims argues that the failure of the instruction to call the jury's attention to the defendant's explanation of possession renders the instruction incorrect, misleading and reversible error.
The approved instruction concerning exclusive possession of stolen goods for cases involving unauthorized control theft, IND.CODE Sec. 35-43-4-2(a), is:
" "
Hughes v. State (1983), Ind.App., 446 N.E.2d 1017, 1019-1020.
This instruction was originally approved by the Supreme Court of Indiana as a correct statement of Indiana law in Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381, reh. denied. This is the only exclusive possession instruction the Supreme Court has actually approved. In Sansom; Murphy v. State (1977), 267 Ind. 33, 366 N.E.2d 1171 ( ), the Court considered an instruction similar to Instruction No. 3. In that case, however, the Court gave no definitive answer on such an instruction, the instruction being neither approved nor disapproved by a majority of the Court. In Sansom a majority held only that the giving of the instruction did not constitute fundamental error and required an objection at trial to preserve the issue for appeal.
State's Instruction No. 3 is a verbatim portion of the instructions challenged and found to be erroneous in Abel v. State (1975), 165 Ind.App. 664, 333 N.E.2d 848, 852; Underwood v. State (1977), 174 Ind.App. 199, 367 N.E.2d 4, reh. denied, modified in part by Sansom; Murphy v. State "The jury, in its deliberations, should consider the evidence offered by State in the light of all the other evidence in the case, giving such credence to witnesses and such weight to the evidence as the jury believes is warranted."
supra, 267 Ind. 33, 366 N.E.2d 1171; 1 and Phillips et al. v. State (1978), 177 Ind.App. 10, 377 N.E.2d 666, 668. The instruction condemned in Underwood was the same as Instruction No. 3 challenged here except there was no reference to the evidence submitted by the State. In that case, the instruction was found to impermissibly shift the burden of proof to the defendant in violation of fundamental due process. The instructions disapproved in Abel and Phillips contained two parts. The first part was the same as Instruction No. 3 in the present case. The second part stated
Abel v. State, supra, 165 Ind.App. at 671, 333 N.E.2d at 852;
Phillips v. State, supra, 177 Ind.App. at 13, 377 N.E.2d at 668.
In Abel the instruction was found to be a comment on the...
To continue reading
Request your trial-
Gamblin v. State
...the instruction by failing to tender a written instruction to correct the error. The State acknowledges the existence of Sims v. State (1985), Ind.App., 482 N.E.2d 1182, reh'g denied, 489 N.E.2d 957, trans. denied (stating objecting to a given instruction is necessary and sufficient to pres......