Tilton v. State

• Decision Date: 24 February 1981
• Docket Number: No. 3-280A42,3-280A42
• Citation: 416 N.E.2d 870
• Parties: Richard Stuart TILTON, Appellant (Respondent Child Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 870

416 N.E.2d 870

Richard Stuart TILTON, Appellant (Respondent Child Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-280A42.

Court of Appeals of Indiana, Third District.

Feb. 24, 1981.

John P. Geberin, Bowser & Geberin, Warsaw, for appellant (respondent child below).

Theodore L. Sendak, Atty. Gen. of Indiana, Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

GARRARD, Judge.

Appellant, Richard Tilton, was declared a delinquent child after the court determined that he had committed acts sufficient to make an adult guilty of the crime of criminal mischief, IC 35-43-1-2(1). ¹ He was involved with others in an episode of window breaking in December 1978. On appeal he challenges the sufficiency of the evidence and asserts error in the failure of the court to grant a new trial for newly discovered evidence.

I. Sufficiency of the Evidence

The state initially points out that Tilton's motion to correct errors does not challenge the sufficiency of the evidence. It asserts that therefore the issue is waived. Citing Collins v. State (1977), 266 Ind. 430, 364 N.E.2d 750, Tilton contends that he may challenge the sufficiency of the evidence for the first time on appeal.

In Collins the Supreme Court relied upon that portion of Indiana Rules of Procedure, Trial Rule 50(A) which, after referring to when a party may move for judgment on the evidence, states:

"... or

(5) may raise the issue upon appeal for the first time in criminal appeals but not in civil cases; ...."

The state urges that Collins is inapplicable because TR 50 applies to jury trials and this case was tried to the court; and because juvenile cases are civil rather than criminal in nature.

We first consider the assertion that raising the sufficiency of the evidence for the first time on appeal in a criminal case should not be permitted if the case was tried by the court.

It must be conceded, of course, that Trial Rule 50 opens with a reference to cases tried by jury. ² Moreover, when considering the ramifications of moving for a judgment on the evidence, our decisions have clearly delineated between jury trials and court trials and held TR 50 applicable to the former. See, e. g., Clark v. Melody Bar, Inc. (1971), 149 Ind.App. 245, 271 N.E.2d 481.

However, the bare language of TR 50(A)(5) is, at least, fairly susceptible to interpretation as recognizing an alternative to the operation of TR 50 rather than stating an operation of the rule itself. Thus, the subsection appears as part of the statement that, "(a) party may move for such judgment on the evidence:" (emphasis supplied). The first four (4) subsections which are stated in the alternative then relate when the motion is proper. As an additional alternative subsection (5) then states not that the motion, but that the underlying issue may be raised for the first time on appeal.

Moreover, the application is clearly one of preserving error and, thus, appellate procedure. It does not appear to us that there is any rational basis for distinction between court tried and jury tried cases in securing appellate review of the sufficiency of the evidence. Thus, while they did not expressly consider the question now posed, the court referred to raising the issue for the first time on appeal following bench trials in Guardiola v. State (1978), 268 Ind. 404, 375 N.E.2d 1105 and Fields v. State (1979), Ind.App., 384 N.E.2d 1127 and in Washington v. State (1978), Ind.App., 379 N.E.2d 1032 permitted the issue to be so raised.

Although the success ratio for successful assertion of a sufficiency argument is without question indeed small, ³ a system of justice which includes appellate review of criminal convictions should freely include an examination of whether the evidence supports the conviction had. This not only maintains the appearance of fairness, it helps insure its substance.

Secondly, we promote justice not only for the accused but for society as well by considering the sufficiency of the evidence at the earliest point of appellate review rather than after the delay and expense involved in seeking a review eventually through the post conviction relief process. See, e. g., Powell v. State (1978), 268 Ind. 134, 374 N.E.2d 495.

We, therefore, hold that Tilton was not precluded from first challenging the sufficiency of the evidence on appeal because his case was tried by the court.

It is true that juvenile proceedings have long been considered civil in nature. Bible v. State (1970), 253 Ind. 373, 254 N.E.2d 319. However, as Judge Hoffman observed in Davies v. State (1976), 171 Ind.App. 487, 357 N.E.2d 914, the courts should not, under the guise of the flexibility provided by the juvenile acts for dealing with youthful offenders, ignore extending to the accused fundamental fairness.

Since 1970 we have recognized that despite the civil nature of a juvenile proceeding, the respondent is entitled to the standard of proof beyond a reasonable doubt where he is accused of delinquency by virtue of the commission of an act which would constitute a crime if committed by an adult. Warner v. State (1970), 254 Ind. 209, 258 N.E.2d 860. We think consistency with these decisions requires that we hold that such a juvenile may challenge the sufficiency of the evidence in the same manner as a criminal accused. Indeed, the new juvenile code (inapplicable to Tilton's case) specified that the procedures governing criminal trials shall apply in cases where someone is alleged to be a delinquent child. IC 31-6-7-1.

We hold that one charged with delinquency through the commission of an act which would constitute a crime if committed by an adult may challenge the sufficiency of the evidence to sustain his "conviction" although the error is first asserted on appeal.

Having determined these issues we now turn to an examination of the evidence in Tilton's case. It shows that Tilton and three other boys visited a local K-Mart, where one (Smith) purchased four B-B guns. These were then distributed among the four. They then drove around the city with all the boys firing B-B's out the windows of the automobile. They fired at such things as stop signs and plate glass windows. In the process, several windows were broken.

There was no direct evidence that Tilton broke any specific window. The state concedes this but argues that his actions in...