State v. Seymour

• Decision Date: 23 August 1978
• Docket Number: No. 1-1077A233,1-1077A233
• Citation: 177 Ind.App. 341,379 N.E.2d 535
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Dexter SEYMOUR, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 535

379 N.E.2d 535

177 Ind.App. 341

STATE of Indiana, Plaintiff-Appellant, v. Dexter SEYMOUR, Defendant-Appellee.

No. 1-1077A233.

Court of Appeals of Indiana, First District.

Aug. 23, 1978.

Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

LYBROOK, Presiding Judge.

The State of Indiana (State) brings this appeal from a ruling by the trial court in favor of a "Motion to Discharge" made by the defendant Dexter Seymour at the conclusion of the State's presentation of evidence at Seymour's trial on the charge of Reckless Driving. ¹ After hearing arguments on the motion, which was referred to as a "motion for directed verdict" on the docket entry, the trial court stated:

"By the Court: I do not believe the State has shown in any way, shape or form that the defendant has endangered anything. Therefore your motion will be sustained and the defendant will be found not guilty."

The State subsequently filed its Motion to Correct Errors on July 8, 1977, which motion was denied, and this appeal follows:

Our attention focuses first on the right of the State to appeal an adverse judgment in a criminal action, which is governed by IC 1971, 35-1-47-2, that is:

"Appeal by state. Appeals to the Supreme Court may be taken by the state in the following cases:

First. From a judgment for the defendant, on quashing or setting aside an indictment or information, or sustaining a plea in abatement.

Second. From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.

Third. From a judgment of the court arresting judgment.

Fourth. Upon a question reserved by the state." (Burns Code Ed.). (Emphasis added).

Where the State seeks to appeal a reserved question of law under the fourth clause of IC 35-1-47-2, the provisions of another statute, IC 35-1-43-2, become applicable:

"Appeal by state Exceptions Reserved questions Bills of Exceptions. The prosecuting attorney may except to any decision of the court during the prosecution of any cause, and reserve the point of law for the decision of the Supreme Court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved. In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the Supreme Court upon an appeal at any time within one year . . .. The Supreme Court is not authorized to reverse the judgment upon such appeal, but only to pronounce an opinion upon the correctness of the decision of the trial court. The opinion of the Supreme Court shall be binding upon the inferior court and shall be a uniform rule of decision therein. When the decision of the trial court is decided to be erroneous, the appellee must pay the costs of the appeal." (Burns Code Ed.). ²

In State v. Cox (1973), 156 Ind.App. 548, 297 N.E.2d 920, this court held that formal exceptions have been rendered unnecessary in criminal cases where the State is appealing a reserved question, according to Criminal Rule 6 of the Indiana Rules of Procedure. In Cox, the court stated that a motion to correct errors is a proper vehicle for appellate review of an adverse ruling on a reserved question.

Next, we note that Seymour's motion, which was variously referred to as a "Motion for Discharge" and as a "Motion for Directed Verdict", was in effect a Motion for Involuntary Dismissal under TR. 41(B), which reads:

"(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that considering all the evidence and reasonable inferences therefrom in favor of the party to whom the motion is directed, to be true, there is no substantial evidence of probative value to sustain the material allegations of the party against whom the motion is directed. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits." (Emphasis added).

This court has previously held that TR. 41(B) is applicable to criminal trials and provides the mechanism for a "directed finding" in a trial to the court by permitting a motion for involuntary dismissal based upon failure of proof. Pinkston v. State (1975), Ind.App., 325 N.E.2d 497.

The sole issue presented for our review under TR. 41(B) is whether the trial court's decision was contrary to law based upon the evidence before the trial court.

The trial court, in ruling on a motion for dismissal or one for a judgment on the evidence (directed verdict), must consider all of the evidence and reasonable inferences in favor of the party against whom the motion is directed to be true, and to determine if there is substantial evidence of probative value to sustain the material allegations of the party against whom the motion is directed. Clark v. Melody Bar, Inc. (1971), 149 Ind.App. 245, 271 N.E.2d 481. A directed verdict is only proper where there is a total absence of evidence on some essential issue required to convict, or where the evidence is without conflict and susceptible to only one inference in favor of the accused. To avoid a directed verdict, the State merely has to make out a Prima facie case. State v. Overmyer (1973), 155 Ind.App. 689, 294 N.E.2d 172.

The facts in evidence before the trial court show that Dexter Seymour was charged with the offense of Reckless Driving on January 14, 1977. Seymour was identified by an Indiana State Police Officer who observed him operating a vehicle "at a higher than normal rate of speed" along County Road 200 West in Hancock County. Seymour was also shown to have disregarded stop signs at the intersection of County Road 300 North and County Road 200 West, slowing his vehicle somewhat only after he passed through the intersection.

The State Policeman testified that he pursued the other vehicle at the speed of 55 miles per hour, but was unable to catch Seymour, and...