Tilton v. State, 3-280A42

• Docket Nº: No. 3-280A42
• Citation: 416 N.E.2d 870
• Case Date: February 24, 1981
• Court: Court of Appeals of Indiana

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.

Page 871

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; ...."

Page 872

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....