Toliver v. State

• Court: Indiana Supreme Court
• Writing for the Court: GIVAN; PRENTICE; DeBRULER; DeBRULER
• Citation: Toliver v. State, 372 N.E.2d 452, 267 Ind. 575 (Ind. 1978)
• Decision Date: 08 February 1978
• Docket Number: No. 278S18,278S18
• Parties: James Earl TOLIVER, Appellant, v. STATE of Indiana, Appellee.

Page 452

372 N.E.2d 452

267 Ind. 575

James Earl TOLIVER, Appellant, v. STATE of Indiana, Appellee.

No. 278S18.

Supreme Court of Indiana.

Feb. 8, 1978.

David W. Foley, Mullin, Foley & Gilroy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION ON TRANSFER

GIVAN, Chief Justice.

The State of Indiana has filed a petition to transfer from the Court of Appeals' opinion reversing the trial court's conviction of the appellant for assault with intent to commit statutory rape. The issue on transfer is whether an adequate instruction on reasonable doubt requires language specifically instructing the jury as to the degree of certainty necessary for conviction. It is appellant's contention that he has a right to supplement the court's reasonable doubt instruction with an instruction which focused upon the degree of certainty required to remove reasonable doubt. It is the State's contention that the instruction tendered had a potential of creating a greater standard of proof than our law requires, and therefore was an erroneous statement of law which should not have been given to the jury. We grant transfer and affirm the decision of the trial court.

In the Court of Appeals, Judge Buchanan wrote a dissenting opinion wherein he correctly points out that the trial court's preliminary instruction 3P covered the definition of reasonable doubt and instructed the jury as to the necessity of finding guilt beyond a reasonable doubt. Judge Buchanan further correctly pointed out that the tendered instruction by the appellant erroneously used the word "certainty." By so doing, the burden of proof was subtly changed to convey the impression that guilt must be shown to an absolute certainty or beyond all doubt, rather than by beyond a reasonable doubt. We therefore hold that the trial court did not err in refusing to give defendant's reasonable doubt instruction for the reason that its substance was adequately covered by other instructions which were given. Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352; Sargeant v. State, (1970) 255 Ind. 252, 263 N.E.2d 525. We further hold that the trial court did not err in refusing to give appellant's tendered instruction because the same was an erroneous statement of law.

The appellant also claims the trial court erred in giving instruction 3P. However, as correctly pointed out by the majority opinion in the Court of Appeals, the only objection to the giving of 3P was that it omitted the language contained in the...