Washington v. State, No. 2-377A93

• Docket Nº: No. 2-377A93
• Citation: 379 N.E.2d 1032, 177 Ind.App. 464
• Case Date: September 07, 1978
• Court: Court of Appeals of Indiana

Page 1032

379 N.E.2d 1032 177 Ind.App. 464 John WASHINGTON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 2-377A93. Court of Appeals of Indiana, Fourth District. Sept. 7, 1978.

[177 Ind.App. 465]

Page 1033

Palmer K. Ward, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

The appellant, Washington, was charged and convicted of assault and battery with intent to kill, and of carrying a handgun without a license. He was sentenced to an indeterminate term of two to fourteen years on the former charge, and because of a prior conviction of the latter, to five years on that offense under the enhance penalty provision. He thereupon brought this appeal.

Washington contends that there was insufficient evidence to support his conviction in that the State did not adequately prove his intent to kill, that the victim could not identify the defendant as his assailant, and that there was no evidence of great bodily harm inflicted upon the victim. He argues further that the State did not adequately prove a prior conviction of carrying a handgun without a license, and therefore he was erroneously sentenced under the enhanced penalty provision. We affirm his conviction.

Washington's argument regarding the victim's failure to identify him as his assailant, while included in the motion to correct errors, is not [177 Ind.App. 466] pursued in the appellant's

Page 1034

brief. Therefore it is waived. Ind. Rules of Appellate Procedure, Appellate Rule 8.3(A). The State claims that Washington's argument with respect to great bodily harm should not here be considered, since it was not included in the motion to correct errors. That position ignores recently decided authority. Ind. Rules of Procedure, Trial Rule 50(A)(5) provides that the issue of sufficiency of the evidence may be raised for the first time on appeal in criminal cases. Collins v. State (1977), Ind., 364 N.E.2d 750, 754, overruling Finch v. State (1975), Ind., 338 N.E.2d 629, in which it was held that the motion to correct errors must specify in what respect the evidence is insufficient. In Whitfield v. State (1977), Ind., 366 N.E.2d 173, 174, it was held that

If complete omission of this issue from a motion to correct errors does not bar its consideration upon appeal, imperfectly specific inclusion in the motion will not do so either.

It naturally follows that arguing a different ground than those included in the motion to correct errors is equally permissible. Therefore we will consider all grounds argued in the appellant's brief in determining the sufficiency of evidence supporting his conviction.

When reviewing the sufficiency of evidence on appeal, this Court will not weigh the evidence but will consider only that evidence favorable to the judgment and all reasonable inferences arising from it. If there is substantial evidence of probative value in support of the verdict, it will not be disturbed. Collins v. State, supra.

In order to make a prima facie case of assault and battery with intent to kill, the State must present evidence on the basis of which a reasonable jury could find beyond a reasonable doubt that the accused unlawfully touched another human being in a rude, insolent or angry manner, with intent to kill. Reed v. State (1970), 255 Ind. 298, 263 N.E.2d 719. The degree of harm inflicted is not an issue. Gutowski v. State (1976), Ind.App., 354 N.E.2d 293, 297; Holloway v. State (1976), Ind.App., 352 N.E.2d 523, 525. Washington relies on Defries v. State (1976), Ind., 342 N.E.2d 622, in support of his argument. That case deals with the crime of aggravated assault and battery, of which great bodily injury is an element. This is a different crime than that Washington is convicted of, although it may be a lesser [177 Ind.App. 467] included offense if great bodily injury is alleged in the charge. Thomas v. State (1970), 254 Ind....