Bobby CRAWFORD and Cynthia Wilburn, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below)
No. 49A04-8604-CR-102
Court of Appeals of Indiana, Fourth District
Jan. 29, 1987
Rehearings Denied Mar. 20, April 8, 1987.
502 N.E.2d 1361
I do not, however, agree that, as stated by the majority, a defendant‘s absence may be held to be voluntary merely because he was aware of the trial date. Neither am I able to agree that knowledge of trial date coupled with failure to appear constitutes knowing waiver of the right to appear at trial. I believe the law is correctly set forth in Bullock v. State (1983) Ind., 451 N.E.2d 646, wherein our Supreme Court held that knowledge of the trial date coupled with the defendant‘s voluntary choice not to appear, constitutes an effective waiver. The crucial factor missing from the equation postulated by the majority here is the voluntary absence of the defendant. Because there may be numerous causes for a defendant‘s absence, a defendant should not be foreclosed from making a belated attack upon his conviction if he can explain his absence. As held in Hudson v. State (1984) 4th Dist. Ind. App., 462 N.E.2d 1077; Walton v. State (1983) 4th Dist. Ind. App., 454 N.E.2d 443; and Gilbert v. State (1979) 2d Dist., 182 Ind. App. 286, 395 N.E.2d 429, a trial may proceed in the absence of a defendant if the circumstances are consistent with a voluntary failure to appear. When at his earliest opportunity the defendant appears, however, he must be permitted to demonstrate that his absence was not voluntary.
Here, as in Ramos v. State (1984) Ind., 467 N.E.2d 717, the evidence permitted a reasonable inference that the defendant fled the jurisdiction in order to avoid trial and sentencing. It was Crank‘s burden at the Post Conviction hearing to prove to the contrary. He did not do so. I agree that post conviction relief was properly denied in this respect.
The majority also holds that because Crank was voluntarily absent from the jurisdiction during the entire period for perfection of a direct appeal, he has waived the right to assert matters which might have been presented in a timely direct appeal. I agree. I do not, however, agree that voluntary absence from the trial and from sentencing constitutes a waiver of the right of direct appeal. If defendant Crank had returned to this jurisdiction and had filed a timely motion to correct errors and perfected an appeal, I believe we could not properly hold that the right of appeal had been waived. Prater v. State (1984) Ind., 459 N.E.2d 39. Because, in the case before us, the defendant was voluntarily absent during the entire period for perfection of a timely appeal, waiver was properly applied.
David R. Hennessy, Indianapolis, Ind. for appellants.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, Ind. for appellee.
Bobby Crawford and Cynthia Wilburn appeal their convictions for possession of marijuana.
- Did the trial court err in convicting them of possession of marijuana when the information charged them with dealing in marijuana,
IND.CODE 35-48-4-10 , and maintaining a common nuisance,IND.CODE 35-48-4-13 ? - Is the evidence sufficient to sustain the convictions for possession of marijuana?1
We reverse.
Pursuant to a valid search warrant, the police seized over thirty grams of marijuana from Crawford and Wilburn‘s residence. The two were charged with dealing in marijuana and maintaining a common nuisance. They waived their right to a jury trial, and the trial court convicted them of possession of marijuana.2
Crawford and Wilburn contend the trial court erred in convicting them of a crime with which they were not charged. The state counters with the contention that, although it did not charge Crawford and Wilburn with possession, the fact that possession is an inherently included offense of dealing makes it unnecessary to separately charge possession.3
Until recently, if an information was sufficient to charge a greater offense, it was by necessity sufficient to charge an inherently included lesser offense. See, Roddy v. State (1979), 182 Ind. App. 156, 394 N.E.2d 1098. Recent decisions, however, indicate our supreme court is taking a more restrictive approach in determining whether an information sufficiently charges a defendant with a lesser included offense.
In Sills v. State (1984), Ind., 463 N.E.2d 228, the supreme court held that the trial court properly refused the defendant‘s instruction on the lesser offense of involuntary manslaughter since the information clearly indicated the state sought only to charge him with murder. The court reasoned:
In Jones v. State, (1982) Ind., 438 N.E.2d 972, we held that ‘the state through its drafting can foreclose as to the defend-
ant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged.’ Id., 438 N.E.2d at 975.
The supreme court reaffirmed its position in Compton v. State (1984), Ind., 465 N.E.2d 711, upholding the refusal of an instruction on the lesser included offenses of criminal trespass and criminal conversion when the information only charged the defendant with burglary and theft. The court noted that the information quoted the theft and burglary statutes almost verbatim. Compton, supra at 713.
In Sills, supra, and Compton, supra, the supreme court was concerned that injecting an instruction on the lesser offense would allow the jury to reach a compromise verdict. The policy against compromise verdicts applies even where the judge is the trier of fact. The state, through artful draftsmanship, “can foreclose any opportunity by the defendant to seek conviction for a lesser offense,” Dorsey v. State (1986), Ind., 490 N.E.2d 260, 268, and thereby prevent the defendant from obtaining an instruction on an uncharged lesser included offense. In the present case, the state asserts that a defendant may be convicted of included crimes with which he was not charged. This stance would create an untenable result since the defendant could be convicted of an uncharged crime but not be able to have the jury instructed on the crime. Because the state has sole control over the crimes with which the defendant will be charged, it should be precluded, as is the defendant, from seeking consideration of a crime not charged.
Due process requires that defendants be notified of the charges against them. Crawford and Wilburn were charged with dealing. They therefore could prepare their defense by focusing on the state‘s inability to prove the element of intent to deliver. Nothing in the information alerted them to the possibility of a conviction on possession. Thus, the defendants would not necessarily have given due attention to the possession issue since they only needed to show the state‘s failure to prove intent to avoid conviction for dealing, and the crime of possession was not charged.
In Slayton v. State (1984), Ind.App., 471 N.E.2d 1154, also a bench trial, we held that the trial court erred in convicting the defendant of theft, when he was charged in the information with robbery.
The rule seems to be . . . that when the prosecutor charges the greater offense in language closely tracking the statutory definition of that offense and the prosecutor does not insert additional language showing an intent to charge any lesser offenses, the information must be held to charge only the greater offense.
Slayton, supra at 1157. In O‘Grady v. State (1985), Ind.App., 481 N.E.2d 115, 119, we held that the prosecution was limited to the offense of dealing in heroin since the language used in the information closely tracked the language of the dealing statute and there was no language to indicate the prosecutor intended to charge the defendant with possession.
The information in this case specifically states that it is an “[i]nformation for Count I, Dealing in Marijuana[,] I.C. 35-48-4-10, Class D [and] Count II, Maintaining A Common Nuisance, I.C. 35-48-4-13(b), Class D felony.” It does not mention IC 35-48-4-11, the statutory section which makes possession a crime. In addition, the language of the information closely tracks the language of the dealing statute.
(a) A person who:
(1) knowingly or intentionally manufactures [sic] or delivers marijuana, hash oil, or hashish, pure or adulterated; or
(2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated;
commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor.
(b) However, the offense specified in subsection (a) is:
(1) a Class D felony if:
(A) the recipient or intended recipient is under eighteen (18) years of age;
(B) the amount involved is more than thirty (30) grams but less than ten (10) pounds of marijuana or two (2) grams but less than three hundred (300) grams of hash oil or hashish; or
(C) the person has a prior conviction of an offense involving marijuana, hash oil, or hashish; and
(2) a class C felony if the amount involved is ten (10) pounds or more of marijuana or three hundred (300) or more grams of hash oil or hashish. (Emphasis added.)
The charging information provides that Crawford and Wilburn
did unlawfully and knowingly possess, with intent to deliver, a Controlled Substance, to-wit: MARIJUANA, of an aggregate weight of MORE THAN THIRTY (30) GRAMS, and were not authorized by any law of the United States of America or of the State of Indiana to have said Controlled Substance in their possession, all of which is contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana. (Emphasis added.)
The absence of variance between the language used in the information and the language of subsections (a)(2) and (b)(1)(B) of the dealing statute clearly shows that Crawford and Wilburn were charged with dealing. There was no additional language or count notifying them of the prosecutor‘s intent to charge them with the offense of possession.4 The state, in its discretion, could have charged them with that crime. It did not do so; therefore the conviction for possession cannot stand. Accordingly, we reverse and remand with instructions to enter a judgment of acquittal.
CONOVER, P.J., dissents with separate opinion.
MILLER, J., concurs.
CONOVER, Presiding Judge, dissenting.
I respectfully dissent.
Recently, our Supreme Court reaffirmed the long standing doctrine concerning convictions for lesser included offenses. In Maynard v. State (1986), Ind., 490 N.E.2d 762, Justice Dickson writing for a unanimous court, said
Defendant contends he was convicted of an offense not properly includable within the criminal conduct charged. Indiana law recognizes two types of included offenses: First the inherently included offense which is necessarily committed in the course of committing the greater offense: and, second, those offenses “committed by reason of the manner in which the greater offense was committed,” if within the factual allegations contained in the charging instrument. Jones v. State (1982), Ind., 438 N.E.2d 972.
Maynard, supra, 490 N.E.2d at 763.
This case involves the second type of included offense wherein the greater offense is committed in a manner which necessarily includes commission of the lesser offense. Here, the charging information states
* * * on or about the 5th day of March, A.D. 1985, at and in the County of Marion in the State of Indiana, did unlawfully and knowingly possess, with the intent to deliver, a Controlled Substance, to-wit: MARIJUANA, of an aggregate weight of MORE THAN THIRTY (30) GRAMS, . . . (Emphasis added).
(R. 5).
(a) A person who:
(1) knowingly or intentionally manufactures or delivers marijuana, hash oil, or hashish, pure or adulterated; or
(2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated;
commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor. (Emphasis added).
A person who:
(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish;
*
*
*
*
*
*
commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor.... (Emphasis added).
Possession differs from dealing, the offense charged in this case, only as to the element of possessing with intent to deal. Here, the offense of possession is necessarily committed if the offense of dealing in marijuana is committed as charged by the information in this case.
Contrary to the majority‘s holding, Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098, is still good law in Indiana when, as here, the lesser offense is committed in a manner in which the greater offense is by necessity committed. While some confusion on the subject may have arisen subsequent to Roddy and Jones, the unanimous decision in Maynard and Jones v. State, infra, impliedly restricts each of our Supreme Court‘s decisions in Sills and Compton to their own facts. Maynard and Jones now sound the Court‘s “concert A” on this issue.
Due process requires a defendant be given notice of the crime or crimes with which he is charged. A defendant cannot be convicted of a crime absent sufficient notice in the charging information.
The charging information in this case notified defendants they were charged with possession of marijuana. The information could not have misled the defendants and they make no claim they were misled. Clearly, no due process violation occurred in this case.
The State has absolute discretion to determine the crime(s) with which the defendant will be charged. Jones, supra. The State may charge the defendant with a crime and then ask the court to instruct the jury on lesser included offenses at the close of the trial.1
Jones, supra, should control the disposition of this case. It says
Consistency in this area of our law is imperative, for the very manner in which an information is drafted depends upon the case law. The State may wish to seek conviction for a lesser offense, depending upon the ultimate strength of its evidence. By proper drafting, it can preserve the option to seek conviction for the lesser offense, which, if charged within the body of the information, serves the due process guarantee of notice to defendant. Blackburn v. State (1973) 260 Ind. 5, 291 N.E.2d 686, appeal
dismissed, (1973) 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. (Emphasis supplied).
Jones, supra, 438 N.E.2d at 975.
The two Indiana Supreme Court cases cited as authority by the majority are clearly distinguishable from the present case. Both concern the trial court‘s failure to instruct the jury on lesser offenses. They are inapplicable to the situation where a defendant is convicted of a lesser included offense.
In the first case, Compton v. State (1984), Ind., 465 N.E.2d 711 the defendant was convicted of theft. The trial court refused to instruct the jury on the lesser included offenses of criminal trespass and criminal conversion as defendant had requested. The Supreme Court upheld the conviction holding a review of the charging instrument and the evidence demonstrated the prosecution did not intend to charge these lesser offenses. In so holding the court said “thus, notwithstanding that the evidence in this case may have supported an instruction on a lesser offense, defendant was not entitled to have the instructions given to the jury.” Id. at 713.
Clearly, that holding does not preclude the conviction for the lesser included offenses in this case. In fact, the language infers, although the point is not addressed, the defendant could have been convicted of the lesser offenses had the charges and the evidence fulfilled the inherently included requirements.
In the second case, Sills v. State (1984), Ind., 463 N.E.2d 228; the defendant complained the court refused to instruct the jury on manslaughter, a lesser included offense of murder, with which he was charged and convicted.
The only defense raised by Sills was insanity. No evidence was presented to dispute any of the elements of murder. Because the defendant failed to dispute any of the elements distinguishing murder from manslaughter, the court properly refused instructions on manslaughter. Id.
Recently, the Supreme Court reaffirmed the rule applicable in such cases. It said
[I]f no genuine dispute exists as to evidence of the elements which distinguish the greater offense from the lesser offense, the defendant is either guilty of the offense charged or not guilty at all. Taylor v. State (1986), Ind., 495 N.E.2d 710, 714. If, however, the evidence concerning the elements distinguishing the greater offense from the lesser is in genuine dispute, the defendant may be found guilty of the inherent lesser included offense. Jones v. State (1986), Ind., 491 N.E.2d 980, 982.
Compton and Sills address the issue of whether it is proper to give an instruction when requested by the defendant on a lesser included offense. This is not the issue in this case.
Crawford and Wilburn were charged with possessing and dealing in marijuana. Only evidence concerning possession was presented, no evidence was presented that they had the intent to deal in marijuana. Thus, it was proper for the court to convict them of the lesser offense of possession.
I would affirm the trial court on all counts.
STATE of Indiana, Appellant (Plaintiff), v. Leigh KING, Shawn Karnes, Celebration Supply Co., Inc., Appellees (Defendants).
No. 49A02-8605-CR-154.
Court of Appeals of Indiana, Second District.
Jan. 29, 1987.
Notes
A person who:
(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish;
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants;
commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (30) grams of marijuana or two (2) grams of hash oil or hashish, or (ii) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish.