*1 рrosecutor sion was made when the "some fact in evidence point[s] to- [which] arguing weapon charge jury. It ward an intent to commit a felony proper prosecutor for the to remind pеrpetrator onee the has prem- entered the jury weapon the seriousness of a ises." Id. at 1271. There was no evidence charge and the reason for the same. so presented in this cаse from which the doing, pointed guns she out were beyond could find a reasonable doubt that found under occupied by each seat the sub- appellant intended to commit theft once he jects and that poses such a situation a gained entrance. danger arresting officers. It was within Appellant was days arrested six later in the discretion of the trial court to allow apartment comрlex and the car that he such fair charges comment on the made was in handguns, contained prybars and an and the evidence charges. extra plate. license way This no (1986), Ind.,
Spangler v. State ports the appellant conclusion that intended 1206. opened commit theft when he the locked
Appellant claims he was denied ef door. Had the car contained items stolen fectivе assistance of trial counsel. He then in a burglary appellant or had and his lists examples seventeen accomplices what he deems stealing been arrested items shortcomings of his trial counsel. apartment How from an then this could cireum- ever, example given by each appellant stantially support a of intent entirely conclusory and wholly unsup stands, commit theft. as it portеd by argument, although he claims is no evidence that theft was in fact what that his departure appellant list demonstrates a opened intended when he the standards set forth in Stricklond v. door. Washington 466 U.S. 104 S.Ct. The burglary conviction should be re- L,Ed.2d 2052, 80 674. The matters listed handgun versed and the conviction af-
by appellant are for the most © firmed. of counsel's trial tactics which will not be second-guessed appeal. Appellant Id. presented nothing in his brief
which we could conclude that trial counsel
was ineffective. is affirmed.
SHEPARD, C.J., and PIVARNIK and DICKSON, JJ., concur. Myra Spikes BURKE and Jim Burke, Appellants,
DeBRULER, J., concurs and dissents separate opinion. with DeBRULER, Justice, concurring and dis- CAPELLO, Appellee. William senting. No. 49S02-8803-CV-357. Appellant attempted was convicted of
burglary. necessary evidentiary show- that, with the intent to commit a felony, appellant attempted breaking entering. opening of the locked door qualify attempted
was sufficient to as an
breaking entering. lacking What is attempt evidence that the was made theft, charged
with the intent to commit information. explained
As was in Gilliom v.
(1987),Ind., there must be *2 Krahulik,
Jon D. Indianapolis, appel- for lee.
DeBRULER, Justice. Myra Burke and Jim her hus- band, brought a medical action against Capello, Dr. William orthopе- surgeon. dic judge granted trial sum- mary judgment for the defendant doctor. A divided Second District affirmed with unpublished opinions. petition The Burkes' granted to transfer and the the Second District is vacated.
Here, performed the doctor operation replacing hip. Mrs. Burke's Several weeks later, upon precipitated examination by ex- ceptional pain, it was discovered that a fragment of affixing cement used when prosthesis had been left the wound and lodged near the femoral nerve. An- performed other and two pieces cement, measuring a total of one diameter, inch in were removed. The se- pain vere subsided.
The femoral
appeared
nerve
to be intact.
surgery,
since the
Mrs. Burke
experienced
almost continuous numb
pain
ness and
hip.
her
proceedings
the trial court is
called
to derive the
placed
pleadings
issue from the
and to examine the forms of admissible
56(C)
evidence sanctioned
T.R.
which
have been made
parties.
available
probative
value of each
of evi
dence is then to be determined without
setting weight or credibility. Rational as
sertions
fact and reasonable inferences
therefrom are deemed to bе true. McMa
Snap
Corp.
han v.
On Tool
Ind.
App.,
Malpractice
alleged
in this complaint
and after it would have hardened. The
negligence.
is the tort of
Malpractice
hip
entire
irrigated,
surgi-
counted
therefore
be defined as follows:
sponges
cal
removed and "all debris
cleaned
"In
from the
Capello's
Indiana the tort of
wound."
Dr.
com-
statement
prised
reveals that
three elements:
"care was taken
remove
extraneous cement
defendаnt
relation to
..." The
*3
(2)
statements
plaintiff;
clearly
nevertheless
failure on the
show
of de-
that
the
one inch
of
fendant
to conform
hardened
its conduct
cement was
to the
from
requisite
surgical
debris
the
procedure
standard of
first
required by
care
and was not
relationship;
(8)
removed from
injury
and
the wound.
plaintiff resulting from that failure."
appellee
The
doctor contends that
(1974),
604,
Miller v. Griesel
261 Ind.
308
the lаck of
expert
opinion sup
medical
N.E.2d 701.
porting the second element of the Burkes'
sufficiently
claim
they
shows that
have no
There are
legal
no more
elements
malpractice
submissible
сlaim. Ordinarily,
to
malpractice
the tort of doctor
than there
because of the technical
complicated
are to other
legal
torts. The
treatment,
nature of medical
the trier of
duty
relationship
arises when the
of doctor
simply
fact is
rationally
unable to
apply the
patient
is established. The standard of
standard of care to it without the benefit of
care,
carе here is
degree
that
of
skill and
expert opinion
informative
on the ultimate
proficiency which is commonly
by
exercised
question of
duty.
breach of
This was the
careful,
ordinarily
prudent
skillful and
or
(1977),
situatiоn in Bassett v. Glock
thopedic surgeons, at
174
opera
the time of the
439,
Ind.App.
18,
368 N.E.2d
where a doe-
tion and in similar localities. Worster v.
tor's decision to follow a conservative treat
(1953),
625,
Caylor
231 Ind.
tions to the defendant doctor's motion
for summary judgment.
SHEPARD, C.J., and GIVAN and
PIVARNIK, JJ., concur. DICKSON, J., seрarate dissents with KIMBERLING, Appellant, Michael A.
opinion. dissenting.
DICKSON,Justice, Indiana, Appellee. STATE of 56(E) Trial Rule following includes the explicit requirement: No. 45S03-8808-CR-354. * * * When a summary judg- ment is supported provided made and rule,
in this party may аn adverse not allegations rest the mere or denials pleading,
of his response, by but his affi- provided
davits or as otherwise in this
rule, must specific facts show- that there is a issue for trial.
If he does respond, summary judg- not so
ment, if appropriate, shall be entered * * * against him.
A party opposing summary judgment is
"obliged disgorge sufficient evidence" to
show the existence of a triable
issue. Shideler Dwyer Pon American Airways,
World Inc. v. Local Readers Ser
vice, Inc. App. 143 Ind. 240 N.E. party opposing 552. The summary must "come forth with showing
facts Ind., trial." Bitzegaio Criss v.