Washington v. State
| Decision Date | 07 September 1978 |
| Docket Number | No. 2-377A93,2-377A93 |
| Citation | 379 N.E.2d 1032,177 Ind.App. 464 |
| Parties | John WASHINGTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Palmer K. Ward, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.
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 pursued in the appellant's 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 included offense if great bodily injury is alleged in the charge. Thomas v. State (1970), 254 Ind. 600, 261 N.E.2d 588. 1
The State's evidence, in this case, consists of the following, arranged chronologically with respect to the occurrences recounted. A police officer testified that he arrested Washington, whom he identified in court, on July 17, 1976, for carrying a handgun without a license. He marked that handgun with his initials and the date. He identified the handgun offered as evidence in the present case as the same gun. A second police officer identified Washington as the man named John Lee Washington who he saw appear in court on July 19, 1976, and plead guilty of carrying a handgun without a license, for which he was sentenced to thirty days in the Marion County Jail. The gun was ordered to be destroyed at that time. A certified copy of this conviction was admitted into evidence. A third officer testified that he worked in the Firearms Registration Office and that he received a request from one identifying himself as John Lee Washington for the return of the gun. Because he was new and didn't know otherwise, he authorized the release of the gun, on August 19, 1976, to John Lee Washington.
The State called five witnesses, the victim, an employee of a pawnshop, and three police officers, whose testimony are summarized in the following account.
On August 30, 1976, the victim, Mr. Sims, was sitting by the barber shop on Indiana Avenue eating pork skins. A man sat down beside him to his left and asked him for his money. Mr. Sims asked him to repeat the question, upon which the man again asked him for his money and began to remove a gun from his pocket. Mr. Sims tried to restrain his arm and the man leaped up, endeavoring to break away, and dragged Mr. Sims some distance before he lost his hold. The man ran into the street and drew his gun, whereupon Mr. Sims drew a small knife. The man returned to the sidewalk at a distance of about two car lengths southeast of Mr. Sims and commenced to fire at him. Mr. Sims, watching the man closely, turned his side towards him at each shot. Two grazed his back. Another went through his shoulder and he fell.
Upon the first shot being heard,...
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