Smith v. State, 1-1279A338

Docket NºNo. 1-1279A338
Citation403 N.E.2d 869
Case DateApril 22, 1980
CourtCourt of Appeals of Indiana

Page 869

403 N.E.2d 869
Grace SMITH, Defendant-Appellant,
STATE of Indiana, Plaintiff-Appellee.
No. 1-1279A338.
Court of Appeals of Indiana, First District.
April 22, 1980.

Page 871

Gregory D. Ball, Public Defender, Richmond, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.



Grace Smith (Smith) is appealing from her conviction by jury of battery, a class C felony, and from a six and one-half year sentence to the Indiana Women's Prison.


Justin Funk (Funk) and Sally Ritchey (Ritchey) were neighbors of Smith in Richmond, Indiana, and all resided in a neighborly fashion prior to May 3, 1978. Shortly before this date Funk and Ritchey moved to Modoc, Indiana, and in the process of moving agreed to sell Smith their refrigerator for $10.00. Funk and Ritchey decided to collect either the $10.00 or the refrigerator from Smith on May 3, 1978, and between 8:30 and 9:00 p. m., together with Karen Wallace (Wallace), Mary France (France), and James Shonkwiler (Shonkwiler), drove to the small apartment building where Smith resided. Funk and Wallace proceeded to visit another friend, Fred Diamond (Diamond), who lived in an apartment above and to the rear of Smith's; Ritchey and France went to Smith's for the $10.00. When Ritchey asked Smith for the money or the refrigerator, Smith denied owing her anything and slammed the door in Ritchey's face. Ritchey kicked the door and turned to walk toward Shonkwiler and his car. Smith burst from the house, attacked Ritchey from the rear, and they wrestled momentarily on the ground. France ran to get Funk and Wallace from Diamond's; they arrived in time to see Smith and Ritchey "facing off" on the sidewalk. Ritchey's hair and clothing were dishevelled,

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and she had been scratched. Smith went back into the house saying that she could "lick" Ritchey but not Funk. Funk knocked at Smith's door to find out why Smith had beat up Ritchey. Willie Madden answered the door, and Funk stepped inside. Smith ordered Funk out of her house and came from the back of her apartment with a glass of yellowish liquid in her hand. Funk stepped back out onto the porch and Smith followed him, calling for Ritchey to come back up onto the porch. Wallace suggested to Funk that they leave and settle the debt in court. Smith asked Wallace what she had to do with the matter; Wallace replied, "Nothing." Smith swore at all of the parties, called for Ritchey to come back, and then threw the liquid from the glass at Wallace, Funk, and France. Both Funk and Wallace screamed from burning sensations in their eyes and on their faces. Neighbors called police who were dispatched to the Smith residence for a "fight in progress," but the disturbance was over when the officers arrived. Funk was treated at the Richmond hospital emergency ward for burns and released. Wallace was also given emergency medical treatment at the Richmond hospital, but then was transferred the same night to the Indiana University Medical Center in Indianapolis where she was hospitalized for four (4) days. She suffered second degree burns to her eyes, and at the time of trial the vision in her left eye was limited to perception of light or darkness only. The prognosis was that her vision would never improve, but could deteriorate if the scarred cornea were to perforate.

Smith raises the following issues as grounds for reversal of her conviction:

1. The "reasonable force" standard of IC 35-41-3-2(b) 1 is unconstitutionally vague, has not been defined by the legislature, and in fact defies definition when read in the context of the statute.

2. The battery statute, IC 35-42-2-1, 2 must be read together with the defense of the dwelling statute, IC 35-41-3-2(b), in order to define the crime of battery; thus, the jury rather than the legislature defines the crime of battery.

3. Refusal to give Smith's proposed instruction number 3 resulted in an inadequate instruction to the jury on Smith's right to defend her curtilage and to be afforded great latitude in her choice of force.

4. The "reasonable force" requirement of IC 35-41-3-2(b) offends the equal protection requirements of the Indiana and Federal Constitutions.

5. The codification of Smith's premises defense, IC 35-41-3-2(b), is so literally defective as to invite persons to be ignorant of the law.

6. It was error for the trial court to overrule Smith's objection to the Prosecutor's use of two (2) prior theft convictions as impeaching evidence.

7. It was error for the trial court to admit into evidence over Smith's objection three (3) photographs of Smith's home which had been taken months after the incident charged.

8. The evidence was not sufficient to prove beyond a reasonable doubt that Smith was not engaged in the defense of her dwelling or premises pursuant to IC 35-41-3-2(b).


All eight of appellant's arguments are unconvincing. We affirm.

Page 873

Issues One, Two, Four, and Five

Because the legislature does not define the term "reasonable force" with reference to IC 35-41-3-2(b), the defense of the dwelling statute, appellant finds three constitutional grounds for setting aside her conviction. We shall discuss the constitutional questions as raised in Issues One, Two, Four, and Five of her brief as a group.

In Issues One, Two, and Five appellant's basic contention is that IC 35-41-3-2(b) if unconstitutionally vague, and in Issue Four she contends that it violates the equal protection requirements of both the Indiana and United States Constitutions. While we can appreciate counsel's creative approach to the law, it would appear that he has at least in Issue Two confused the elementary distinction between a crime and a defense, a distinction which he later recognizes and asserts as his reason for not raising the question of the statute's constitutionality by filing a motion to dismiss pursuant to IC 35-3.1-1-6(a)(3). It is clear, as the State points out, that in Indiana the method which a defendant in a criminal case should use to challenge the constitutionality of the statute defining the crime with which she is charged should be by means of a written motion to dismiss filed prior to arraignment and plea and accompanied by a memorandum specifically outlining the legal issues involved. Johnson v. State, (1977) Ind.App., 367 N.E.2d 25; IC 35-3.1-1-6(a)(3); IC 35-3.1-1-4(b). The method to be used in challenging the constitutionality of a statute defining a defense, however, is not so clear. Appellant's use of the motion to correct errors to spell out her objections to the trial court's refusal to give a tendered instruction is certainly one method. An objection to the court's instructions actually given at trial and further argument in the motion to correct errors on this point would be another. Because the function of this court on appeal is to review "the rulings of the trial court involving questions of law properly saved below and shown by the record" 3 and because the burden of overcoming the constitutionality which attaches to all statutes "includes providing a record which makes the claimed constitutional defects apparent," 4 this court cannot be expected to find that the presumption of constitutionality was overcome unless the record is factually and legally complete. Board of Commissioners of Howard County v. Kokomo City Plan Commission, (1975) 263 Ind. 282, 330 N.E.2d 92. While it is true that appellant hinted at the constitutional dimension of the vagueness and equal protection issues involved in the "reasonable force" requirement of IC 35-41-3-2(b) in her motion to correct errors, the issues were raised only tangentially as error upon the court's failure to give appellant's tendered instruction No. 3. Appellant did not even object at trial to the court's own instructions including the verbatim citing of IC 35-41-3-2(b) or the court's definition of reasonable force. Appellant's argument that she could not have been expected to do so because it was the only defense she had is unconvincing. Because this was her only defense, all the more reason she should have availed herself of every possible method to have her version used. Appellant's failure to object to the manner in which the defense was ultimately stated unfortunately precludes the record below from the completeness necessary for an adequate review of the issues raised in One, Two, Four, and Five, except as they are included in Issue Three.

Issue Three

Appellant contends that in refusing to give her tendered instruction No. 3 the trial court erred by failing to instruct the jury adequately on her right to defend her premises. 5 Appellant further contends that since

Page 874

the trial court did not advise the jury that appellant was "afforded great latitude in the use of force" to defend her property against trespassers, the court's instruction on reasonable force "was so circular as to furnish no definition at all."

To determine whether any error has resulted from the refusal to give a tendered instruction, we must consider three issues: (1) whether the tendered instruction is a correct statement of the law, (2) whether there is evidence in the record to support the giving of the instruction, and (3) whether the substance of the tendered instruction is covered by other instructions which were given. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836; Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978. Furthermore, all instructions are to be read together and construed as a whole. Holland

Page 875

v. State, (1976) 265 Ind. 216, 352 N.E.2d 752; Kelsie v. State, (1976) 265 Ind. 363, 354 N.E.2d 219, cert. den. 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 541.

There is no question that appellant's instruction, "You are further instructed that Grace Smith's front porch is part of her premises, upon which that right to defense can...

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