Townsend v. State, No. 05S02-9404-CR-358
| Docket Nº | No. 05S02-9404-CR-358 |
| Citation | 632 N.E.2d 727 |
| Case Date | April 18, 1994 |
| Court | Supreme Court of Indiana |
Page 727
v.
STATE of Indiana, Appellee.
Page 729
David C. Ford, Hartford City, for appellant.
Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.
DeBRULER, Justice.
A jury returned a verdict finding appellant Scott Townsend guilty of battery, a class D felony, Ind.Code § 35-42-2-1(2)(B) (West supp. 1988). 1 The trial court meted out a sentence of eighteen months. On appeal, the Indiana Court of Appeals (Second District) affirmed the conviction. Townsend v. State (1993), Ind.App., 616 N.E.2d 47. Townsend petitions for transfer to this Court. Transfer is granted.
During the spring and summer of 1990, appellant Scott Townsend resided with Angela Turney and her two children, Sky and Brian Turney, in an apartment complex in Montpelier, Indiana. At the time, Sky was approximately two and one-half years old, and Brian was about one and one-half years old. On February 13, 1991, appellant was charged in a single count indictment with battery. It read:
That during the month of August, 1990, in Blackford County, State of Indiana, Scott Townsend, a person over 18 years of age, did knowingly or intentionally touch another person, to-wit: Sky Turney and Brian Turney, who were less than 13 years of age, in a rude, insolent, or angry manner; and did thereby commit Battery, a Class "D" Felony."
Appellant pleaded not guilty.
On the first day of trial, after the jury was sworn, the State sought to amend the indictment by substituting the word "or" for the word "and," which joined the names of the two victims. The trial court refused to permit the amendment. During trial the State also tendered a preliminary jury instruction and a final jury instruction which would have accomplished the same thing as the rejected amendment, namely permitting a verdict of guilty upon proof of a battery upon either, but not necessarily both of the children. The trial court rejected both of these instructions presented by the State.
In both the preliminary and final jury instructions, without objection, the trial court instructed on the essential elements of the charged crime as follows:
To convict the defendant, the State must have proved each of the following elements: The defendant
1. knowingly or intentionally
2. touched Sky Turney and Brian Turney
3. in a rude, insolent, or angry manner.
The trial court, without objection, gave four verdict forms with the standard final verdict instruction:
We, the Jury, find [appellant] ... guilty of ... Battery against Sky Turney....
We, the jury, find [appellant] ... not guilty of ... Battery against Sky Turney....
We, the jury, find [appellant] ... guilty of ... Battery against Brian Turney....
We, the jury, find [appellant] ... not guilty of ... Battery against Brian Turney....
The jury returned a verdict of guilty as to Sky and one of not guilty as to Brian. Appellant filed a motion to set aside the judgment, claiming that the State had to prove the charge as to both children, and did not. The motion was denied.
On appeal, appellant makes several claims. The first of these is stated in the following manner:
The trial court committed error when allowing appellant to be subjected to two possible non-inclusive guilty verdicts, neither of which precisely stated the facts charged, under a single count.
This claim does not follow a common pattern. The argument in support of it includes an assertion that the indictment was bad for
Page 730
duplicity. A single count of a charging pleading may include but a single offense. This restriction is imposed by the Indiana statute that governs indictments and informations, I.C. § 35-34-1-2 (West 1986). This restriction is enforced through the pre-trial and timely motion to dismiss pursuant to I.C. § 35-34-1-4(a)(2) (West 1986). An objection to an indictment on the ground of duplicity cannot be made for the first time on appeal. Naanes v. State (1896), 143 Ind. 299, 42 N.E. 609. And, failure to assert error in an indictment or information results in the procedural default of that error. See Seaton v. State (1985), Ind., 478 N.E.2d 51 (defendant waived issue as to improper references to penalty on charging informations, as there was no showing in record that any objection or motion to dismiss was made to form of informations and as it appeared that defendant raised question for first time after completion of trial); cf. Stwalley v. State (1989), Ind., 534 N.E.2d 229 (when a defendant challenges the sufficiency of a charging instrument, he must do so in a motion to dismiss prior to arraignment). Here, a motion to dismiss which was filed and overruled did not allege this ground. Since the duplicity defect is reachable under the statute by a motion to dismiss and was not alleged, it cannot now constitute a basis for reversal.An argument is also made in support of this first claim on appeal that appellant was wrongly subjected to two separate battery charges and convictions, where there was only one battery count. Appellant contends that the prosecution's burden was to prove that appellant committed a battery, i.e., an offensive touching of both children. His subjection to the two separate possibilities occurred for the first time at the very end of the final jury instructions when the trial court gave its final instruction upon the subject of proper verdicts. Despite instructing in the element instructions...
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Richardson v. State, No. 67S01-9910-CR-506.
...as requiring dismissal of a subsequent indictment necessarily be a basis for the earlier acquittal or conviction. See Townsend v. State, 632 N.E.2d 727, 731 (Ind. 1994). The difficulty of making this showing causes many claims to fail. See DRESSLER, supra, § 207[B] ("The collateral estoppel......
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Stevens v. State, 79S00-9507-DP-828
...the rights of a defendant as to make a fair trial impossible, see, e.g., Tobias v. State, 666 N.E.2d 68 (Ind.1996); Townsend v. State, 632 N.E.2d 727 (Ind.1994). This is particularly true in Stevens' case, where the court informed the jury several times of the State's burden to prove the ex......
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Ritchie v. State, No. 49S00-0011-DP-638.
...error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). The element 809 N.E.2d 274 of harm is not shown by the fact that a defendant was ultimately convicted. Id. Rather, it depe......
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Games v. State, No. 49S00-9002-PD-114
...of harm, and whether the resulting harm is substantial. David v. State, 669 N.E.2d 390, 392 (Ind.1996) (quoting Townsend v. State, 632 N.E.2d 727, 730 The post-conviction court concluded that, "although minor errors were committed during the guilt phase, the evidence overwhelmingly pointed ......
-
Richardson v. State, No. 67S01-9910-CR-506.
...as requiring dismissal of a subsequent indictment necessarily be a basis for the earlier acquittal or conviction. See Townsend v. State, 632 N.E.2d 727, 731 (Ind. 1994). The difficulty of making this showing causes many claims to fail. See DRESSLER, supra, § 207[B] ("The collateral estoppel......
-
Stevens v. State, 79S00-9507-DP-828
...the rights of a defendant as to make a fair trial impossible, see, e.g., Tobias v. State, 666 N.E.2d 68 (Ind.1996); Townsend v. State, 632 N.E.2d 727 (Ind.1994). This is particularly true in Stevens' case, where the court informed the jury several times of the State's burden to prove the ex......
-
Ritchie v. State, No. 49S00-0011-DP-638.
...error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). The element 809 N.E.2d 274 of harm is not shown by the fact that a defendant was ultimately convicted. Id. Rather, it depe......
-
Games v. State, No. 49S00-9002-PD-114
...of harm, and whether the resulting harm is substantial. David v. State, 669 N.E.2d 390, 392 (Ind.1996) (quoting Townsend v. State, 632 N.E.2d 727, 730 The post-conviction court concluded that, "although minor errors were committed during the guilt phase, the evidence overwhelmingly pointed ......