Straub v. State, 23S00-8707-CR-703

Citation567 N.E.2d 87
Case DateFebruary 27, 1991
CourtSupreme Court of Indiana

Page 87

567 N.E.2d 87
Gregory STRAUB, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 23S00-8707-CR-703.
Supreme Court of Indiana.
Feb. 27, 1991.

Page 89

Robert W. Hammerle, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant, Gregory Karl Straub, was convicted by jury in Fountain Circuit Court of one count of Battery With A Deadly Weapon, a Class C felony, and found to be an Habitual Offender, for which he was sentenced to five (5) years, enhanced by thirty (30) years, for a total of thirty-five (35) years. He appeals directly to this Court and raises the following issues:

1. Whether the trial court erred in giving an instruction on battery as a lesser included offense of attempted murder;

2. Whether the trial court erred in giving an instruction on transferred intent;

3. Whether the conviction of battery with a deadly weapon was inconsistent with an acquittal of attempted murder;

4. Whether the evidence was sufficient to support the conviction of battery with a deadly weapon;

5. Whether the trial court erred in admitting certain exhibits relating to Straub's prior convictions during the habitual offender phase of trial;

6. Whether the evidence was sufficient to support the jury's finding that Straub was an habitual offender; and

7. Whether the trial court erred in refusing to inform the jury about the mandatory penalty enhancement provided by the habitual offender statute.

For the reasons stated below, we affirm the conviction of battery with a deadly weapon and reverse the habitual offender finding.

The facts most favorable to the verdict show that on March 13, 1985, Straub and his girlfriend, Leslie Reynolds, entered the Corner Pub in Attica, Indiana. While there, Straub confronted another patron, Harold Best, about remodeling work Best had promised to complete for Straub's mother. Straub threatened to strike Best; the men were soon separated by the bartender. A short time later, at Straub's request, Reynolds retrieved a gun from Straub's car. Then Straub and Reynolds left the tavern. While Straub stood in the parking lot outside the tavern, he fired several rounds from his gun into the air and at the tavern building. At least one bullet shattered one of the tavern's windows. Either the bullet or a piece of the window struck James Gates, another tavern patron, in the head.

Defendant was charged by information with two counts of attempted murder and with being an habitual offender. On Count I, which alleged the attempted murder of Harold Best, Straub was found not guilty. On Count II, Straub was found not guilty of the attempted murder of James Gates, but guilty of Battery With A Deadly Weapon. Defendant was also found to be an habitual offender.

I. Lesser Included Offense

A. Straub asserts that the trial court erred by instructing the jury that battery was a lesser included offense of attempted murder. Citing Johnson v. State (1982), Ind., 435 N.E.2d 242, Straub maintains that both the language of the

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statute and the charging document must necessarily include the lesser charge in the greater.

Such is not the case. The test for determining whether an instruction on a lesser included offense is proper is disjunctive, not conjunctive: either the language of the statute or the language in the charging document must necessarily include the lesser charge in the greater. As we stated in Jones v. State:

We described the procedure for determining whether to instruct upon a lesser included offense in Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208. First, the trial court should examine the charging information and the elements of the two offenses to determine whether a conviction of the crime charged requires proof of all the essential elements of the lesser offense plus additional elements which distinguish the two offenses....

The first step of the Lawrence test may be satisfied in either of two ways. An offense may be included if all the statutory elements of the lesser offense are part of the statutory definition of the greater offense. See e.g., Brooks v. State (1986), Ind., 497 N.E.2d 210 (elements of theft and conversion included in robbery). Alternatively, an offense may be included if the charging instrument reveals that the manner and means used to commit the essential elements of the charged crime include all the elements of the lesser crime. See e.g. Johnson v. State (1984), Ind., 464 N.E.2d 1309 (elements of battery alleged in information charging attempted murder where element of substantial step toward murder alleged a touching); Jones v. State (1982), Ind., 438 N.E.2d 972 (criminal trespass not included in statutory burglary, but may be included in charging instrument as the manner in which the burglary was committed).

(1988), Ind., 519 N.E.2d 1233, 1234-35.

B. Defendant also assigns error to the instruction because the Information did not contain the essential elements of battery, and as a result, Straub was not adequately informed of the charges against him. The Information alleged that Straub knowingly or intentionally attempted to kill "by shooting at and against the body of James Gates."

The elements of Battery With A Deadly Weapon are (1) knowingly or intentionally (2) touching (3) another person (4) in a rude, insolent or angry manner (5) by the use of a deadly weapon. Ind.Code Sec. 35-42-2-1(3). In Johnson v. State (1984), Ind., 464 N.E.2d 1309, the Information charging the defendant with attempted murder alleged that he shot a round of live ammunition from a pistol he held in his hands at the victim and that the round of ammunition struck and wounded the victim. We held that the information was sufficient to put the defendant on notice that he was charged with battery because the elements clearly coincide.

As in Johnson, the Information in this case put Straub on notice that he was charged with the lesser included offense of battery because the statutory elements of battery "clearly coincide" with the allegations in the information. Therefore, we hold that the trial court properly instructed the jury on the lesser included offense of battery with a deadly weapon.

C. The jury was also instructed on the offense of battery with serious bodily injury. Ind.Code Sec. 35-42-2-1(3). Defendant contends this was error because there was no evidence that the victim suffered such an injury.

Because the jury did not convict Straub of battery with serious bodily injury, we find that any error in reading this instruction was harmless.

II. Transferred Intent

Straub next asserts the trial court erred in reading Instruction No. 9 to the jury. Instruction No. 9 provided:

When one intends to kill a certain person with a deadly weapon, and by mistake or inadvertence kills another person with such weapon, in the eyes of the law, his intent is transferred from the person to whom it was directed to the person actually killed; and a person committing such act is deemed guilty of the crime he

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originally intended to commit in like effect as if he had originally intended to kill the person he actually did kill through mistake or inadvertence.

Straub acknowledges that the instruction is an accurate statement of the law, and that, if the instruction on transferred intent had been limited to the attempted murder charge, it would have been proper. Instead, Straub claims that the instruction should have informed the jury that intent could be transferred only on the charge of attempted murder, and not the lesser included offense of battery, because the "specific intent" required for conviction of attempted murder cannot be "transferred" to support conviction for the "general intent" crime of battery. In support, Straub cites Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507, and Humes v. State (1981), Ind., 426 N.E.2d 379, as establishing that battery is not a specific intent crime. As this Court pointed out, however, in Henderson v. State (1989), Ind., 534 N.E.2d 1105:

As used in this line of cases, the term "specific intent" was utilized to exclude application of the attempt statute to crimes requiring "recklessly" as the prerequisite culpability. The term was not used in its specific sense found in criminal law jurisprudence.

The meaning of "specific intent" as used in the above attempt statute cases, is also distinguishable from the intended meaning in those cases which have commented that battery is not a specific intent crime. In Norris [v. State (1981), 275 Ind. 608, 419 N.E.2d 129] the defendant contended that he was so intoxicated that he could not form any specific intent to commit the offenses of murder, battery, resisting arrest, and possession of controlled substances. Perfunctorily noting that of all the offenses charged, only the attempted murder is a specific intent crime, the Norris court proceeded to find the evidence sufficient to find the defendant capable of forming the specific intent to kill. 419 N.E.2d at 132-133. Similarly, discussing a claim of insufficient evidence, Matthews v. State (1985), Ind. 476 N.E.2d 847, involved a defendant's claim that his "specific intent" at the time he fired three shots "was simply to escape the danger which had confronted him, rather than to specifically batter Officer Dieter." Citing Norris, the court recited that battery is not a specific intent crime, and then proceeded to find the evidence sufficient to prove the defendant intended an unlawful touching. In both of those cases, the description of battery as not a specific intent crime was an unnecessary and inadvertent...

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