Underwood v. State, 1-1176A206

Decision Date06 September 1977
Docket NumberNo. 1-1176A206,1-1176A206
Citation367 N.E.2d 4,174 Ind.App. 199
PartiesRonnie G. UNDERWOOD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

Delson Cox, Jr., Douglas C. Latherbury, Cox & Latherbury, Salem, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant, Ronnie G. Underwood (Ronnie), appeals to this court following his conviction of theft. Ronnie contends that the trial court erred by giving the jury over his objection State's Final Instruction No. 4 which provided as follows:

"The exclusive possession of stolen property soon after a theft has been committed, if not explained to the satisfaction of the jury, may raise an inference that the person in possession of such stolen property is guilty of the Theft charged. The inference of guilt does not arise from the mere possession of the property stolen, but arises from the fact of its possession shortly after it has been stolen, coupled with the absence of a satisfactory explanation, or of anything tending to show that such possession is or may be consistent with innocence." (Our emphasis)

An instruction such as was given in the case at bar has been repeatedly condemned. See, Arthur v. State (1949), 227 Ind. 493, 86 N.E.2d 698; Vaughn v. State (1939), 215 Ind. 142, 19 N.E.2d 239; Dedrick v. State (1936), 210 Ind. 259, 2 N.E.2d 409; Abel v. State (1975), Ind.App., 333 N.E.2d 848. As stated in Arthur, supra, at 227 Ind. 497, 86 N.E.2d 700:

"The above instruction takes from the jury the right to determine the facts and circumstances in the case as to appellant's guilt or innocence. Any instruction by the court which in any manner takes from the jury this exclusive duty, or which attaches weight to certain evidence, or which would in any manner place the burden upon the appellant to prove his innocence, or force him to introduce evidence to create a reasonable doubt in the minds of the jurors, is erroneous. It is the affirmative duty of the State in criminal cases to prove the defendant's guilt beyond a reasonable doubt, and this burden cannot be shifted at any time to the defendant." (Our emphasis)

Further, we are of the opinion that Ronnie's failure to comply with Ind. Rules of Procedure, Appellate Rule 8.3(A)(7), or his failure to make a specific objection to the rendition of State's Instruction No. 4, does not result in a waiver of the claimed error.

In the case of Winston v. State (1975), Ind.App., 332 N.E.2d 229, at 231, Judge Sullivan noted:

". . . The 'fundamental error' doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that 'the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial.' . . ."

The instruction in the case at bar authorized the jury to convict the defendant upon proof by the State that he was in possession of recently stolen property, absent evidence being presented by the defendant justifying his possession thereof. The effect of the instruction was to squarely place upon the defendant the burden of convincing the jury of his innocence and thereby undermining the fundamental rule of criminal law that the State throughout the course of a criminal trial bears the burden of proving the defendant...

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12 cases
  • Gaddie v. State
    • United States
    • Indiana Appellate Court
    • February 7, 1980
    ...Gann v. State, supra, 269 N.E.2d 381, with Phillips v. State (2d Dist.1978) Ind.App., 377 N.E.2d 666; Underwood v. State (1st Dist.1977) Ind.App., 367 N.E.2d 4, (modified in part by Sansom v. State (1977) 267 Ind. 33, 366 N.E.2d 1171, which case was overruled on other grounds by Elmore v. S......
  • Wilkins v. State
    • United States
    • Indiana Appellate Court
    • September 28, 1981
    ...fundamental error. Wilkins argues that this instruction violated his due process rights on several grounds. He cites Underwood v. State (1977), Ind.App., 367 N.E.2d 4 for the proposition that this instruction was fundamental error but candidly admits that Underwood has since been This Court......
  • Roberts v. State
    • United States
    • Indiana Appellate Court
    • April 27, 1981
    ...the error was so prejudicial that he could not have had a fair trial." The only authority cited for this position is Underwood v. State (1977), Ind.App., 367 N.E.2d 4. The Underwood Court found one jury instruction by the trial court to not only take from the jury its function of determinin......
  • Nash v. State
    • United States
    • Indiana Appellate Court
    • April 7, 1982
    ...is alleged to have stolen the goods himself, i.e., general larceny. Thomas v. State, (1981) Ind.App., 423 N.E.2d 682; Underwood v. State, (1977) Ind.App., 367 N.E.2d 4. We question its application, however, in cases such as the present where the essence of the alleged theft is receiving sto......
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