Tonge v. State

• Decision Date: 24 July 1991
• Docket Number: No. 49S00-8808-CR-733,49S00-8808-CR-733
• Citation: 575 N.E.2d 269
• Parties: Charles TONGE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 269

575 N.E.2d 269

Charles TONGE, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8808-CR-733.

Supreme Court of Indiana.

July 24, 1991.

Belle T. Choate, Choate Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

A jury trial resulted in the conviction of appellant of Attempted Robbery, a Class A felony, for which he received a sentence of thirty (30) years, and Carrying a Handgun Without a License, a Class A misdemeanor, for which he received a sentence of one (1) year, the sentences to be served concurrently. His sentence was enhanced by thirty (30) years by reason of his status as a habitual offender.

The facts are: On March 26, 1986, Ernest Perry operated a rooming house at 2907 North Delaware Street in Indianapolis. On that evening, his daughters, Forestine White and Stephanie Rice, were present. The doorbell rang and Forestine answered. A man later identified as appellant stated that he wanted to rent a room. Forestine called her father, who admitted appellant into the home. However, as they proceeded to look at the room, appellant produced a pistol and demanded Perry's money. As Perry attempted to retreat, appellant fired a shot which struck Perry in the neck, travelled downward through a lung, exited his side, and lodged in his elbow. As a result, Perry was hospitalized for seven or eight days.

After being shot, Perry exchanged gunfire with appellant, who escaped. Both Perry and his daughter Forestine identified appellant's picture from a photographic array. A year and a half later, they attended a lineup where each identified appellant as the assailant.

Appellant claims there is insufficient evidence to support the conviction of attempted robbery, a Class A felony. He bases his contention on the nature of the injury sustained by Perry. He claims that the bodily injury sustained by Perry was not "serious" as required by the statute, Ind.Code Sec. 35-42-5-1, to raise the crime to a Class A felony. In addition to the nature of the wound as described above, Perry testified that he was in severe pain and at the time of trial still carried the bullet in his elbow.

There is ample evidence in this record to support the jury verdict that the attempted robbery resulted in a serious injury, thus raising the crime to a Class A felony. See Winfrey v. State (1989), Ind., 547 N.E.2d 272; Lawrence v. State (1985), Ind., 476 N.E.2d 840.

Appellant contends he was denied due process when he was not permitted to cross-examine Perry as to his prior criminal convictions. Outside the presence of the jury it was determined that Perry had been convicted of dealing in narcotics. He denied any other conviction with the exception of one for operating a "dive." The trial court ruled that Perry's prior convictions were not crimes of dishonesty or false statement; therefore, under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, they were not admissible.

However, appellant claims that had he been permitted to go further into Perry's criminal background, it would have been disclosed that Perry was guilty of other felonies as well. There is nothing in this record to show that Perry was being untruthful about his criminal record. Nevertheless, if we would assume that further examination would have disclosed a crime which could have been brought to the attention of the jury, we cannot see how it would constitute reversible error.

Perry's testimony concerning the crime was cumulative, being supported fully by that of his daughter Forestine, who heard and witnessed the entire occurrence. Appellant's other daughter, Stephanie, who also was present in the house, heard the conversation between her father and appellant. She also heard the exchange of gunfire and observed her father in his wounded condition following the episode.

Appellant further argues that Perry's integrity was at issue because his version of the conversation between himself and appellant differed from what the daughters testified having heard. The differences, however, are quite insignificant. Perry testified that when appellant announced that he wanted all of Perry's money, Perry stated: "Young fellow, why don't you find something else to do," whereas all the daughters heard was appellant stating: "Old man, you know what time it is. I want your money."

In view of the evidence in this case, we cannot say that the presentation of Perry's criminal record to the jury would have had any appreciable impact on their verdict. We find no reversible error here.

Appellant claims the verdict forms were erroneous in that as to each crime the verdict forms were on a single sheet with the guilty verdict form appearing at the top of the page and the not guilty verdict form appearing at the bottom. Appellant takes the position that to place the guilty verdict form first jeopardized him. We believe the prosecuting attorney properly summarized the situation when he stated: "I don't think it's going to make any difference, Judge. I think they'll decide.... I don't think they are going to reach their verdict based upon the...