Tingle v. State

• Citation: 632 N.E.2d 345
• Decision Date: 05 April 1994
• Docket Number: No. 83S00-9203-CR-00192,83S00-9203-CR-00192
• Parties: John F. TINGLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 345

632 N.E.2d 345

John F. TINGLE, Appellant, v. STATE of Indiana, Appellee.

No. 83S00-9203-CR-00192.

Supreme Court of Indiana.

April 5, 1994.

Larry Crawford Thomas, Clinton, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Robbery, a Class A felony; Aggravated Battery, a Class B felony; Confinement, a Class B felony; and Theft, a Class D felony. As the trial court determined the battery offense to be included within the robbery charge, appellant received no sentence for the aggravated battery. On the robbery, confinement, and theft counts, appellant received the maximum terms of fifty (50), twenty (20) and three (3) years, respectively, to be served consecutively for an executed sentence of seventy-three (73) years.

The facts are: On the evening of July 22, 1991, the 17-year-old appellant and his friend, Lester Osborne, left the house in Indianapolis where appellant stayed with his grandmother, Nellie Tingle. Discovering a parked car with the keys in it, the boys went for a joyride. Appellant, the driver, had an urge to tour the Rockville area where he had been incarcerated. While there, they disposed of the car's license plate and replaced it with one taken by Osborne from another car.

As they were traveling along State Road 63 just outside of Newport, a tire went flat and the boys stopped and put on the spare. About 20 minutes later, the insufficiently tightened lug nuts worked loose as the car was traveling approximately 75 miles per hour. Appellant managed to bring the car to a stop in the median, but they could not find the wheel that had come off. The boys walked to the nearby home of Albert Hawkins, who invited them in and let them use the telephone. When Osborne was unable to reach his intended party, the pair left.

Appellant and Osborne again searched for the missing wheel but had no luck. They returned to Hawkins' house and again were admitted to use the phone. As before, Osborne had no luck reaching his party; when Hawkins suggested they call the Sheriff for help, they asked him to look up the number. When Hawkins bent over the table to look, Osborne "clobbered" him with a taped-up socket handle. Hawkins attempted to resist, but Osborne continued to strike him about the head as appellant held his arms from the rear. They struggled from the kitchen into the front room toward the bathroom, where Osborne picked up a television set and threw it at Hawkins, who was spared the impact due to being out of range of its power cord, which was still plugged into the wall socket.

The boys eventually subdued the 78-year-old Hawkins, tied him up in the bathroom with telephone cord and demanded to know the whereabouts of his truck keys and cash. They backed the victim's truck into the garage and proceeded to load it with his valuables, including small appliances, firearms, power tools, and miscellaneous items, all the while keeping Hawkins covered with his own 12-gauge shotgun. After a 45-minute loading spree, the boys left with the victim's truck, wallet, and several hundred dollars in cash. They drove to Cloverdale where Osborne hoped to fence the goods, but no takers were to be found. On their way out of town, Osborne, who was driving, lost control of the truck and was killed in the resulting crash. Appellant was lifelined to Methodist Hospital in Indianapolis, where the following day he was served with a warrant authorizing the taking of physical specimens and gave a statement to police.

Appellant contends the trial court erred in admitting evidence of other crimes. Included in his hospital statement were the facts set forth above alluding to appellant's prior incarceration at Rockville as well as his participation in stealing the car and license plate. When the statement and its transcription were offered in evidence by the State, appellant objected that the evidence of other crimes violated the general proscription as set forth in Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830. He maintained then, and urges now, that the remarks in question, being admitted not for impeachment purposes, nor to demonstrate intent, motive, purpose, identity, or common scheme or plan, thus were admitted to show a criminal propensity. See Bedgood v. State (1985), Ind., 477 N.E.2d 869.

The State claims the evidence was admissible as part of the res gestae ¹ citing Benefiel v. State (1991), Ind., 578 N.E.2d 338, cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L.Ed.2d 591. Appellant counters there was too great a time lapse between the car and plate thefts and the crimes perpetrated upon Mr. Hawkins for the two sets of events to be considered parts of the same transaction, or uninterrupted series of events, or res gestae. He cites McCabe v. State (1979), 272 Ind. 196, 396 N.E.2d 895 for the proposition that there must be no significant lapse of time between the charged and uncharged crimes, and Warner v. State (1991), Ind., 579 N.E.2d 1307 holding that introduction of a confession which embodies a mixture of charged and uncharged crimes was unduly prejudicial and thus reversible error.

In the case at bar, however, the time lapse of a few hours cannot compare to the two-week interval involved in Warner. Moreover, chronology is not the key to admissibility of res gestae evidence; rather, the relationship of the uncharged to the charged crimes is dispositive. In Benefiel, supra, for instance, we approved as res gestae the testimony of one torture/confinement victim who witnessed over a period of several weeks the ongoing torture/confinement and eventual slaying of the victim of the charged crimes. In the case at bar, the stolen car and plate and the trip to Rockville were instrumental in getting the boys to the scene of the charged crimes and clearly were part of the same transaction. We find no error here.

Appellant contends the trial court committed fundamental error in instructing the jury. He cites Gamblin v. State (1991), Ind.App., 568 N.E.2d 1040 for the proposition that once the State has chosen to specify in the charging information the precise manner in which the statute was violated, it is fundamental error to change the manner in the instructions to the jury. He also cites Brooks v. State (1988), Ind., 526 N.E.2d 1171 for the proposition that the trial court commits fundamental error if it amends a charge on its own motion or initiates additional charges. Appellant notes the charging informations for burglary and confinement were amended six days prior to trial, and that the trial court read to the jury the statutory definitions and elements of robbery and criminal confinement as lesser-included offenses. Appellant concludes, apparently, that the jury must have been so confused by the multiplicity of choices and deviation from the offenses charged that he was denied due process and a fair trial.

As the State here aptly points out, however, it is no wonder the trial court approved the charging amendments and that defense counsel made no objection to the court's instructions. The amendments made only changes favorable to the defense, in fact narrowing the issues appellant was required to address by eliminating allegations of serious bodily injury. Similarly, the final instructions on lesser-included offenses obviously afforded appellant the potential for less severe convictions and sentences. Having made no objection at the time, he cannot now be heard to say he thereby was prejudiced by denying the jury all-or-nothing choices. See Suggs v. State (1981), Ind., 428 N.E.2d 226. An appellant must demonstrate prejudice to his substantial rights in order to secure reversal. Sharp v. State (1989), Ind., 534 N.E.2d 708, cert. denied, 494 U.S. 1031, 110 S.Ct. 1481, 108 L.Ed.2d 617. We see no reversible error here.

Appellant contends the trial court erred in subjecting him to double jeopardy by imposing multiple punishments for the same acts. He argues the victim's currency, shotgun, rifle and truck all were taken in the same incident. The taking of the currency was charged as an element of the robbery while the taking of the other items was charged separately as theft. He argues the theft actually was included in the robbery offense and a separate sentence violates his right to be free from double jeopardy. He cites Ind.Code § 35-38-1-6's prohibition against entry of judgment and sentencing on both an offense and an included offense, as well as cases standing for the proposition that one purpose of the double jeopardy clause is to prevent the State from splitting up one crime and prosecuting it in parts. See Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729; Sering v. State (1986), Ind.App., 488 N.E.2d 369.

Citing Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the State responds the robbery and theft charges each involved a different element, the taking of the currency on one hand and the taking of the truck, shotgun and rifle on the other, so that the theft was not included in the robbery. Here, however, the State confuses elements with facts; the element is that of taking. All of the elements of theft are included in those of robbery, i.e., one cannot commit robbery without also committing theft; theft therefore is an inherently included offense of robbery. See Rogers v. State (1979), 272 Ind. 65, 396 N.E.2d 348. Moreover, while the various takings here were split up into two separate charges, a double jeopardy analysis looks to the manner in which the offenses are charged only where the lesser offense is not inherently included in the greater. See Derado v. State (1993), Ind., 622 N.E.2d 181; Sering, supra.

Here, the events perpetrated at the Hawkins home all were part and parcel of the same criminal transaction, and any of the takings at issue could have been used to support the robbery charge. Under the "single larceny rule," when...