Smith v. State
| Decision Date | 21 March 1979 |
| Docket Number | No. 178S2,178S2 |
| Citation | 386 N.E.2d 1193,270 Ind. 479 |
| Parties | Daniel Joseph SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Kenneth T. Roberts, Sp. Asst. Public Defender, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Daniel Joseph Smith, was convicted by a jury of kidnapping, Ind.Code § 35-1-55-1 (Burns 1975), and exercising unauthorized control over a vehicle, Ind.Code § 35-17-5-9 (Burns 1975). He is currently serving a life sentence on the first count and was assessed a minimum fine on the second count. His direct appeal raises several issues the first of which is the sufficiency of the evidence on all the elements necessary to sustain the conviction of kidnapping. Due to our disposition of the appeal on this issue we do not have to consider the other allegations of error.
An examination of the facts from the record reveals the following. The prosecuting witness, Margo Lynn Werner, was employed by Tidey's Truck Service as a secretary. On the morning of November 1, 1974, she was on an errand for her employer in the employer's truck. As she stopped at a stoplight in the center of downtown South Bend, she observed a pickup truck with two black males in it stopped in another lane. One of the men jumped out of the pickup truck and ran over to her truck. He opened her door and the truck started rolling, so he jumped in. Werner identified the defendant as this man.
As the defendant climbed into the truck he asked Werner why she was so scared and said he wasn't going to hurt her. He also made other comments such as "This is weird" and "I don't know why I'm doing this." Werner did not respond to these comments but moved over to the other side of the truck. She had to climb over several objects that were in the center of the seat. When defendant stopped at another stoplight, Werner jumped out of the truck. There was never any weapon involved. Werner testified that she was afraid, but she also testified that the defendant did not accost her, do anything to her, or make any threats during the time he was in the truck.
The defendant testified that when he first looked over at Werner's truck he thought he recognized the driver as a girl, Sue Pruett, he had known about three years previously. Then when he jumped into the truck he realized he was mistaken in the identity of the driver and tried to reassure Werner that he would not hurt her. Since the stoplight had turned green, he decided to try to catch up to his friend's truck, but his friend had turned a corner. When he stopped at another stoplight, Werner jumped out. The defendant then drove about a half block further but still did not find his friend. He parked Werner's truck, left it undamaged, and walked a few blocks to his house.
Werner immediately reported the incident to the police, and two police officers found the defendant in front of his house talking to a friend about fifteen minutes later. The two officers testified that the defendant did not mention mistaken identity as the reason for the incident. They testified that he told them he had honked at the girl in the truck and she honked back, so he had gone over and gotten in her truck. Defendant testified at the trial that he did not remember making these statements to the police. He also testified he had been drinking that morning and was "loaded." He was drinking a beer at the time the officers apprehended him.
Rose Marie Pruett testified at the trial that she had known the defendant for a few years but hadn't seen him recently. She also testified that she was called Sue by her friends.
The defendant contends that there was insufficient evidence on each element of the kidnapping charge to prove his guilt beyond a reasonable doubt, and that the jury verdict on this count was contrary to law. When the sufficiency of the evidence is challenged on a criminal conviction, we are governed by several precepts which are sometimes difficult to harmonize. Shutt v. State, (1977) Ind., 367 N.E.2d 1376. It is well settled that this Court will not weigh the evidence or determine the credibility of witnesses. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. However, as we have stated before, there is an area within this judicial framework upon which this Court cannot conscientiously close its eyes. Our appellate responsibilities may require a probing and sifting of the evidence to determine whether the residue of facts warrants a conviction; where such residue fails to meet the requirement that each material allegation be supported by substantial evidence of probative value, we must so declare. Shutt v. State, supra; Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658; Liston v. State, (1969) 252 Ind. 502, 250 N.E.2d 739.
In the instant case, the crime charged was kidnapping. This is a Malum in se crime and requires that the element of specific intent be proved beyond a reasonable doubt. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836; Snipes v. State, (1974) 261 Ind. 581, 307 N.E.2d 470. Therefore we must consider what evidence was presented on the element of intent. The act of jumping into the truck, while it might be considered substantial evidence of exerting unauthorized control of a vehicle, is not, by itself, substantial evidence of intent to kidnap. There is no evidence that the defendant used any force or threats to keep the witness in the truck against her will. Werner herself testified that the defendant did not accost her or make any threats to her. The defendant did not tell Werner to stay in the truck nor did he try to prevent her from leaving.
The only evidence which could possibly support the element of intent to kidnap was the testimony of the police officers about defendant's remarks at the time of his apprehension. However, since this indirect evidence was Not supported by the direct testimony of either the defendant or the prosecuting witness, it cannot be considered substantial evidence to prove the element of intent to kidnap beyond a reasonable doubt. In this case, no weapon was involved. There was no robbery or damage to any of the items in the truck or to the truck itself.
Both the witness and the defendant testified to several remarks defendant made which showed that he was confused about the reason for the incident. These remarks are consistent with defendant's theory of mistaken identity. This theory was also supported by defendant's witness, Rose Marie Pruett. Most significant is the fact that the victim herself testified that no threats were made to her and she was not accosted or harmed in any way.
The existence of intent to kidnap must be found objectively in the light of the surrounding circumstances, and the standard is the reasonableness of such a determination under the circumstances. While an inference of an intent to kidnap might arise from defendant's act of jumping into the truck, coupled with the police officers' testimony, this inference is counterbalanced by unrefuted evidence that the defendant made no effort to keep the victim confined in the truck or to harm her. It is not necessary for us to invade the exclusive province of the jury to determine the weight of the evidence and the credibility of the witnesses, since any possible inference of intent has been counterbalanced by much unrefuted evidence and therefore does not have sufficient force to be the substantial evidence of probative value necessary to prove the element of intent beyond a reasonable doubt.
Liston v. State, supra, 252 Ind. at 511-512, 250 N.E.2d at 743-744.
The charge of kidnapping is not made out unless it is shown beyond a reasonable doubt that the accused intended to do the prohibited thing, to forcibly or fraudulently carry off a person from any place within the state. Davis v. State, supra; White v. State, (1963) 244 Ind. 199, 191 N.E.2d 486; Boatman v. State, (1956) 235 Ind. 623, 137 N.E.2d 28. We would therefore conclude that defendant's conviction of kidnapping is not sustained by sufficient evidence and should be reversed.
While the defendant has raised several other assignments of error in this appeal, most of them are directed to...
To continue reading
Request your trial
-
Briscoe v. State
...at 743, further explained our duty as an appellate court in a passage recently repeated, in part, by Justice Hunter in Smith v. State, (1979) Ind., 386 N.E.2d 1193, 1196: "We recognize the rule that we may not weigh the evidence and may only review that evidence most favorable to the state ......
-
Pavey v. State, 2-584A129
...(1970) 254 Ind. 645, 261 N.E.2d 852. Where specific intent is required, it may be inferred from all of the circumstances. Smith v. State, (1979) , 386 N.E.2d 1193." 418 N.E.2d at In the instant case the testimony as to the touching and fondling of the victim was alone sufficient to support ......
-
Cornell v. State
...We do hold Mr. Brummett's affirmative response to the prosecutor's question is Not evidence of probative value. See, Smith v. State, (1979) Ind., 386 N.E.2d 1193; Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658.Indeed, in its brief the State alleges the pick-up "was actually sitting twe......
-
Nautilus Ins. Co. v. Sunset Strip, Inc.
...("Although Baker drank two beers during the scope of the two to three hour interview, he was not drunk."); Smith v. State, 270 Ind. 479, 486, 386 N.E.2d 1193, 1197 (Ind. 1979) ("The evidence was that on that morning, appellant had only 2 or 3 beers and was not intoxicated."). These patrons ......