Davis v. State

DAVIS, Appellant-Defendant, Thomas Indiana, Appellee-Plaintff.

STATE

No. 30A01-0502-CR-94. Appeals

Court Indiana.

Oct. 2005.

Transfer Denied Jan. Robinson, for Indianapolis,

. ,I§jmbe1:1yS. Appellant. Attorney' General Carter,

Steve Depu- Indiana, Johanningsmeier, Ryan D. General, Attorney Indianapolis, ty Ap- for Davis and Bacon put each on a ski mask pellee. and entered the bank. Davis and Bacon

were BB/CO,;,guns armed with that were neither loaded nor equipped CO; car- . OPINION tridges, and each carried a bag blue CRONE, Judge. money. hold Summary Case Approximately customers, eleven three Thomas Davis appeals his convictions tellers, and one manager branch and sentence for B felony robbery class present when Davis and Bacon entered the felony and class D resisting law enforce- bank. Either Davis or Bacon every- told ment. affirm. We stay one to "be calm cool." Tr. at pushed One of them away customer from

Issues one teller's window and demanded that the issues, Davis raises six which we consoli- give teller money. him all her The other date and restate as follows: approached a teller at a closed window I. Whether the trial court committed gun pointed with his at her. He threw a fundamental error when it failed bag dark blue over the window and told the jury instruct on the ele her to put money all her bag. into the ments of resisting law enforcem Another thought teller gun held ent;s by one of the robbers was a "Glock" hand- II. Whether sufficient sup- evidence - gun. Id. at 156. All the tellers were ports convictions; his afraid and believed that the robbers were ITIL. Whether the trial court abused its guns. armed with real One teller re- by refusing

discretion Davis's ten- stated, peatedly "you're searing me." Id. jury instruction on the fac- at 181. She was so by dered terrified the rob- tors used to determine an whether bery quit job that she her as a bank teller weapon unloaded deadly or ca- day. later that Neither Davis nor Bacon pable of causing bodily serious in- anyone informed in the they bank that jury; carrying BB/CO,;, were guns. unloaded IV. Whether his enhanced sentence vi- The two tellers that had been directed olates his Sixth Amendment by Davis and put Bacon to money their in

rights; and bags blue did so. Each teller also V. Whether the trial court placed dye abused its a red pack into a bag. blue

discretion failing to find miti- Davis and Bacon in were the bank branch gating circumstances. approximately five minutes and left with $10,000. They

over returned to the car Facts and History Procedural driving. Brasher was got Davis into the back seat while Bacon got into the front April On at approximately 11:00 seat. away Brasher drove from the bank. am., Adrianne Brasher drove Davis and Andre Bacon to a Bank One branch at customers, One of the Bank One who Green Meadows Shopping Center in leaving the bank as Davis and Bacon Greenfield, Indiana, in it, order to rob it. All were entering saw what he believed to three jumpsuits wore blue specifically pur- be a real handgun and heard one of them chased robbery. for the they When ar- say, stickup." "this is a Id. at 216. The bank, rived at the Davis told Brasher to customer drove to a nearby restaurant so wait in car with the engine running. girlfriend could call the police. robbery term for the conviction and and saw the robbers in his car stayed He resisting term for the law en- Ponti- get green into a the bank and leave three-year conviction, to be served concur- license forcement a Tennessee Prix with ac Grand rently. stop- appeals. the Pontiac to He followed plate. in the car he saw someone

light, where Discussion and Decision a red substance bag a blue throw out Jury A. Failure to Instruct the vehicle continued to follow on it. He Resisting Elements of until it was about enter Interstate Enforcement Law down Greenfield flag he was able to where Davis contends the trial court Terry Austin. Sergeant Police by failing committed fundamental error the vehicle on spotted Austin Sergeant of resist instruct the on the elements lights and activated his Interstate ing law enforcement.1 The elements of police four more cars with siren. -Atleast resisting law enforcement are set forth and sirens activated emergency lights their 35-44-3-3, which Indiana Code Section Brasher re- up to the vehicle. caught part person that a provides relevant told Davis that she wanted peatedly intentionally from knowingly who flees at stop. told her not to Id. stop, but he a law enforcement officer after the officer being pursued approxi- for 324. After has, means, by visible or audible identified miles, finally stopped Brasher mately eight person to stop, himself and ordered the stop it ran over a stick the vehicle after enforcement, a resisting commits law class tires, After the vehicle that deflated two felony person D if the uses a vehicle to secured, suspects and the stopped commit the offense. vehicle. He Austin searched the Sergeant a he believed was semi-automatic saw what Fundamental error is error handgun on the front floorboard. Beretta prin represents a blatant violation of basic large found a amount red- He also trial unfair to the ciples rendering the money in the back seat. stained thereby depriving the de defendant and ' Car 5, 2004, process. of fundamental due charged the State fendant April On (Ind. State, 665, 677 D v. felony robbery, B class ter Davis with class 2000). to prejudicial must be so The error enforcement, felony resisting law and class to make a 15, rights of the defendant as November the felony D auto theft. On determining Id. In impossible. fair trial 2004, an amended informa- the State filed error denies the defen clarify factual whether claimed charge to the tion for each trial, 7, 2004, consider whether the jury dant a fair we December allegations. On for harm is resulting potential harm or At the of the State's began. cloge trial State, Townsend v. 632 substantial. evidence, moved to dismiss the State (Ind.1994). 727, The element N.E.2d 730 charge, which the trial amended auto theft that a 9, 2004, by the fact of harm is not shown granted. On December court Id. ultimately convicted. remaining defendant was jury convicted Davis of 14, January the trial charges. On Rather, the de depends upon whether 2005, a fair trial was detrimen- right fendant's to twenty-year to a sentenced Davis court 70, ("A argument (Ind.2002) in terms of fun- who 1. Davis frames his defendant N.E.2d error, conceding apparently object that he instructions to the court's final damental fails by failing in- this claim to tender an waived at trial a set instructions and fails to tender resisting law struction on the elements of appeal."). waives a claim of error State, enforcement. See Williams tally procedural affected denial of Id.; ted error. see also Elliott v. opportunities for 1058, (con- (Ind.Ct.App.1983) ascertainment truth to he which would have been enti- cluding that the Lacy statement discussed In determining tled. Id. funda- whether dictum). arguably Therefore, above is mental error occurred in the giving of Lacy dispositive is not here. instructions, we consider all the relevant The dissent argues Lacy should jury information provided including control and notes that Lacy court closing arguments and other in- quoted States, Screws v. United 325 U.S. structions. Boesch v. 91, (1945), 65 S.Ct. 89 L.Ed. 1495 (Ind.2002). 1276, 1279 There is due no support the statement that Davis relies violation where all such process informa upon.2 language The pow from Serews is whole, considered as does not mis tion, indeed; however, erful it must be under jury lead the as to a correct understanding Screws, stood context. of the law. Id. the defen dants, officer, police sheriff and support To argument that the trial "willfully" convicted for depriving the vie- error, court committed fundamental tim of his civil rights while acting under relies on Lacy 438 N.E.2d 968 pursuant color of the law to Section (Ind.1982), asserting it held that a U.S.C. Section 52 beating for total failure instruct detailing victimto death after arresting him.3 Id. at the elements of a criminal offense war 93-94, 65 S.Ct. 1031. The defendants chal ("[Wle rants See id. at 970 have reversal. lenged the constitutionality of Section 20 no a total give doubt failure to an instruc arguing that it contained no ascertainable detailing tion the elements of the offense guilt standard of in violation of the Four would be available as reversible error on teenth Amendment. Id. at 65 S.Ct. appeal absent compliance with the contem 1031. The constitutionality of the statute objection poraneous requirement."). We upon turned the level of intent that should disagree that Lacy holding. this is 's "willfully." ascribed to Id. at statement Davis arguably relies on is dic tum, S.Ct. 1031. The Supreme Court inasmuch as there was no concluded for reason that the "willful" Lacy interpreted court even to must be consider whether to mean fundamental error more than mere purpose occurred because it con or bad evil intent cluded that the but specific elements of the crime rather deprive intent to given preliminary instructions, as person right. 103, and of a federal Id. at 65 therefore, the trial court had not commit- S.Ct. 1031. This interpretation of "willful" Lacy custom, 2. following pas- The court quoted willfully or causes to be subjects, sage: "[Where the error is so fundamental as subjected, any any inhabitant of Terri jury to not ingredi- submit to the the essential tory, or deprivation any District to the only ents of the offense which the convic- rights, privileges, or immunities secured or rest, necessary tion could we think it to take protected by the Constitution and laws of the note of it on our own motion. Even those States, punishments, or to different United guilty of the most henious offenses are enti- pains, penalties, or on account of such inhab tled degree to a fair trial. Whatever the alien, being color, by itant an or reason of his guilt, charged those with a federal crime are race, prescribed or punish than are for the entitled by to be tried guilt the standards of citizens, ment of shall be fined not more than Screws, Congress which prescribed." has $1,000, imprisoned not more than one 107, at 65 S.Ct. 1031. U.S. year; Screws, or both." 325 U.S. at . S.Ct. 1031 "Whoever, provided, 'Section 20 under color law, statute, ordinance, any regulation, or therefore, from préjudice no had resulted to withstand allow the statute would at In vagueness. reaching Id. the omission. Id. 1064-65. charge of unconstitutional conclusion, this the Elliott court relied that the then noted Supreme Court The upon several federal cireuit court cases as to the was not submitted of intent level early supreme an Indiana court as well Id. at proper instructions. jury with Park, Id.; case. see United States 106-07, The trial court had 65 S.Ct. 1031. 658, 673-74, 1903, 44 L.Ed.2d U.S. 95 S.Ct. jury that the defendants instructed (1975) to (stating that failure instruct they applied more illegally if had "acted jury responsibility that defendant had the necessary to make the ar- was force than viola authority prevent and or correct protect themselves effectual or to rest tion failed to do so was not an abuse of and Id. alleged assault." prisoner's from the jury could not have failed discretion where that the trial Supreme Court held aware, on the instructions as a to be based that have instructed court should trial, that whole and in context of the necessary for them to it was convict "Itlo responsibility, posi and not his defendant's had the petitioners [defendants] find that issue); tion, at see also Rokvic v. was prisoner of consti- deprive purpose 450, 457-58, 143 N.E. 194 Ind. by right to be tried right, e.g. tutional of instruc (stating omission Id. at by rather than ordeal." a court tion that vehicle must be taken without Therefore, the trial court's 65 S.Ct. 1031. prejudicial consent was not to de- owner's actually misstate jury instruction was undisputed evidence estab fendant where entirely of intent and ment of the element vehicle had been taken lished that stolen of the offense. changed the character consent); see also without owner's Stafford passage Screws light, Read in this (Ind.Ct.App. arguably overbroad Lacy on in relied 2000) trial court's failure (concluding an actually dealt with inasmuch as Serews jury that State was specifically instruct jury. which misled the incorrect instruction prove confinement without required Elliott, (concluding at 1064 See ' error, not fundamental where quoted Lacy is passage the Serews consent adequate together as a whole instructions overbroad.) bar, the case at there was jury that must not con ly informed victim given that an incorrect instruction not confinement), trams. denied. We sent to of the changed the character offense justice can served conclude be best con jury. Consequently, we misled the jury instruc analyzing questions involving quoted from Serews passage clude that of each on the tions based cireumstances this Lacy court should not control by the defendant whether the case to determine case. summarily trial rather than received a fair addition, courts have In Indiana any is fundamen concluding that omission jury instruc that an omission concluded tal error. fundamental error. tions did not constitute Lacy and Having determined that Elliott, charged was In the defendant in jury here, but the to involuntary manslaughter, we turn should not control Serews on our in did not include an instruction failure to analysis of whether structions the resisting the of jury the elements N.E.2d. at 1063. struct cause. 450 proximate a fair deprived Davis of law enforcement to find that the The Elliott court declined all trial, duty to consider mindful of our error be constituted fundamental omission . to the provided the relevant information that the vic question there was no cause Boesch, N.E.2d at 1276. jury. battery, and See as a result of the tim died that the trial record reveals court read the therefore, did not constitute fundamental charging jury information to the during error). Based on all the information that preliminary both and final instructions: provided jury, to the we cannot con- Fleeing Information For Law Enforce clude that the trial court's failure to read Vehicle, Clark, by Laura L. being ment separately the resisting elements of law oath, says sworn on her that Thomas A. jury misled the as to the cor- enforcement Davis, day April, rect understanding of the law. Nor has III on 8rd the County at said Hancock and State of that such failure so demonstrated Indiana, did then and knowingly there prejudiced rights his as to a fair make trial or intentionally impossible. trial, law Davis is flee from entitled to a fair enforce- officer, ment to-wit: Officer Terry Aus- Elliott, not a perfect trial. See Deputy tin Bridget Foy in a and/or at 1066. vehicle, to-wit: 1998 Pontiac Grand complains Davis also the Prix the had or after officers visible charging information did not contain the means, audible to-wit: activated emer- proof, State's burden of but that was cov geney siren, lights and identify [sic] jury ered in other instructions as well: themselves as and ordered the officers Under the law of person this State a person stop, all contrary to form the charged with a crime is presumed to be of the statute I.C. against 35-44-3-3 and innocent. To presumption overcome the peace dignity the State of 'of innocence the prove State must Indiana. guilty defendant of each essential ele- added). Tr. at 441 (emphases We ment of the crimes charged beyond a note that the charging information sub- reasonable doubt. The defendant is not stantially mirrors language of Indiana required present any evidence to Code Section 35-44-8-3 and that jury prove innocence, prove or to or ex- addition, twice. prosecut- heard plain anything. The State has the bur- ing presented the elements of attorney den of proving the guilty defendant be- resisting law enforcement to the dur- youd a reasonable doubt. you Some of ing closing arguments: "You will in- may jurors have served as in civil cases formed guilty find Defendant you where were told that it only nee- you must find that the Defendant know- essary prove that a fact is likely more ingly or intentionally a law fled from true than not true. In criminal cases enforcement o n cer'a n ev" law enforcement proof the State's must be powerful more had themselves [sic] officer identified than that. It beyond must be a reason- through audible verbal or sight from able doubt. beyond Proof a reasonable means in a vehicle in you order for to find proof doubt is you firmly leaves guilty." Defendant Id. at (empha- convinced of guilt. added). defendant's sis See Isom v. (Ind.1995) very There are that, few (noting things this world during closing arguments, prosecuting attor- that we know with certainty absolute ney had correctly and in stated that sudden criminal cases heat the law does not was a mitigating require factor proof that reduces what every pos- overcomes would If, otherwise be murder to voluntary upon your sible doubt. based consid- manslaughter in reaching evidence, conclusion eration of you that the firmly are erroneous stating instruction that sudden convinced that the defendant guilty is of heat was an essential voluntary element of charged you the crime should find him manslaughter did not mislead the jury, and guilty. If on you the other hand think in all acts commit principal as a charged he is not that possibility real is a there accomplish in the accomplice by of ted the him the benefit give should you guilty, Floyd State, 503 crime." v. of the ment guilty. him not and find the doubt (Ind.1987). not is "[It N.E.2d we con 122-23, Accordingly, at Id. prove the defen necessary that the State not commit court did the trial clude that every act con committed personally dant an failing to include error fundamental an offense of stituting perpetration the law resisting of elements on the instruction commit aids another to who one] [because enforcement. that charged can be offense a eriminal IIL, Sufficiency Evidence of the princi and convicted as and tried offense State, 936, 942 Bean v. pal." Resisting Enforcement Law A. (Ind.1984). who aids another person A that the evidence argues Davis guilty as of a crime is to commit person his support to was insufficient conviction perpe as the actual offense principal the In review law enforcement. resisting for Farris v. trator. evidence, will we of the sufficiency ing (Ind.2001). only the if, considering a conviction affirm to rob Here, planned and Brasher Davis infer and reasonable evidence probative bank; to the drove Davis Brasher and without the the supporting ences verdict, carry plan out their to specifically Bank assessing witness evidence weighing Brasher to wait while robbery; Davis told of fact could trier credibility, a reasonable bank; Bacon went into be he and guilty was that the defendant conclude from the bank. away them Brasher drove doubt. Hawkins yond a reasonable fleeing police Brasher of The acts of (Ind.Ct.App. N.E.2d Davis. See Smith imputed to are 2003). felony D of class Davis To convict (Ind.Ct.App.2004) enforcement, had the State resisting law to was sufficient (holding that evidence beyond a reasonable proving the burden resist conviction for support defendant's vehicle, Davis, fled from using a that doubt was where defendant enforcement ing law officer after the officer a law enforcement po that fled from in vehicle passenger means, identified had, or audible by visible being lice). addition, they were while In Ind. stop. him to ordered himself and told Brasher Davis police, pursued he that Davis § 35-44-3-3. Code claims partic stop, which demonstrates not to vehicle and merely passenger was con fleeing.4 See id. We in the ipation driver, Brasher, exclusive as had. evidence sufficient that there was clude asserts vehicle. The State control of the D felo for class conviction Davis's support only per that a requires that the statute resisting law enforcement. ny "drive," to flee "use," a vehicle not son agree with Robbery We from law enforcement. B.

State. there is argues also Davis convic support his evidence in con insufficient people act two "Where robbery. To convict felony B tion for crime, may each to commit cert class as a Davis to convict was sufficient evidence he never threatened contends that 4. Davis argu- not address Davis's stopped principal, vehicle and we need she harm Brasher if stop that she is was not instructed reason she did not that the ment merely pursu- accomplice This contention simply scared. as an could convict evidence, which reweigh the an invitation 35-41-2-4. Code Section to Indiana ant addition, because decline. we must Davis, had to prove beyond State 458; see also Whitfield Davis, reasonable doubt that armed N.E.2d 670 (Ind.Ct.App.1998), while trans. deadly with a weapon, knowingly or inten- Merriweather, denied. In the defendant tionally property presence took from the of held the at gunpoint victim emp while she (1) by another person using or threatening tied the cash drawer. 778 N.E.2d at 458. any the use of person The victim testified that she was afraid force or putting any person fear. Ind.Code initially and believed that the gun was real. § 35-42-5-1. Id. A panel of this Court concluded that inoperable pellet gun had the apparent argues that the State failed to ability to cause bodily injury serious establish that BB/CO;, unloaded gun manner, was used in threatening thereby with which he was deadly armed was a inducing Likewise, fear in the victim. Id. weapon. Indiana Code Section 85-41-1-8 in Whitfield, the defendant stuck a dis defines "deadly weapon," in part, relevant abled gun in the victim's face and péllet as a firearm, loaded or unloaded or as a money, demanded frightening the victim device, device, weapon, taser, destructive so much that hardly he was speak. able to or electronic weapon, stun equipment, addition, at 670. In evi substance, chemical or other material dence established that used, pellet gun in the manner is or could ordinari- virtually ly used, indistinguishable from used, or is intended the real to be is gun on readily it was capable of modeled. Id. causing bodily serious which injury. bodily injury" "Serious means Merriweather and disposi- are Whitfield "bodily injury that creates a substantial tive here. The evidence establishes that risk of death or that causes perma- serious the tellers believed that Davis and Bacon nent disfigurement, unconsciousness, ex- were guns. armed with real At least one pain, treme or permanent or protracted customer testified that he believed the loss, impairment of the function of a bodily guns were real. Police officers also initial- member organ, or loss of a fetus." Ind. ly BB/CO;, mistook the gun for a real § Code 85-41-1-25. handgun. Tr. at addition, Although firearms, not pellet Davis and Bacon guns used the in a threat- or BB guns can be deadly considered ening frightened manner that the tellers. weapons. Merriweather 778 A teller testified that one of the robbers (Ind.Ct.App.2002). approached her gun pointed with a at her. weapon Whether a a deadly weapon is All the tellers they testified that were determined from a description of the afraid. One teller repeatedly stated, weapon, use, the manner of its and the "you're scaring me." Id. at 181. That circumstances of the case. Id. "The fact teller frightened was so quit she her may finder look to whether the weapon job day. later that Clearly, Davis and had the ability actual to inflict serious Bacon BB/CO; used guns to rob the bank injury under the fact situation and wheth they knew people would be- because er the defendant had the apparent ability they lieve guns real and would be injure the victim seriously through use sufficiently frightened to cooperate. Last- object during the crime." Id. ly, the evidence that BB demonstrates We have previously held that guns disabled or readily are capable of causing serious inoperable pellet guns are deadly weapons bodily injury. A Greenfield Depart- Police within meaning Code Sec- ment detective testified pel- BBs and Indiana tions 35-42-5-1 and 35-41-1-8. Id. at lets have been imbedded in the skin and

1113 A is entitled to instructions. Id. defendant at 400- eyesight. Id. loss of caused have correctly the an weigh approximately jury instructed on guns have the O1. BB may used to State, guns real and McCarthy same as v. essential rule of law. at 408. In addi- Id. bludgeon someone. 753, (Ind.Ct.App.2001), 755 751 N.E.2d BB/CO;, used here contained tion, gun the However, before a defen denied. trans. use warning, "Warning, mis the inscribed reversal, dant is entitled to a hé must may use cause serious careless or [sic] affirmatively that the instruc demonstrate 367; Ex. 9. Id. at State's injury or death." <his substantial prejudiced error tional by BB/CO;,gun used that the conclude We State, 948, Howard v. 816 N.E.2d rights. causing of seri- readily capable Davis were (Ind.Ct.App.2004). Jury instructions 962 in a injury and were used bodily ous whole, a and we are to be considered as the to causing manner victims threatening trial court abused its will not find-that the Therefore, fear. substantial experience the discretion unless we determine support is sufficient to the evidence misstate the instructions taken as a whole felony B rob- for class Davis's conviction jury. law or otherwise mislead bery.5 Schmid, N.E.2d at 182. Jury Instructwn Refusal III. the trial Davis contends Initially, we note that Davis his tendered by refusing court erred authority support to any failed to cite factors used to deter on the instruction jury instruction that his tendered assertion dead weapon an unloaded is mine whether A party of the law. correct statement bodily causing serious ly capable or party fails to waives an issue where solely jury lies "Instructing the injury. provide or ade develop cogent argument court, and of the trial the discretion within authority portlons of citation to quate and of that only upon an abuse we reverse will the record. Smith Schmid discretion." 193, den (Ind.Ct.App.2005), trans. 202-03 (Ind.Ct.App.2004), trans. denied. 46(A)(8) ied; Rule Appellate see also Ind. court whether the trial determining In in (requiring appellant's contentions a tendered refused properly instruction, cogent reasoning by brief be supported (1) factors: consider three we whether and and citations statutes, correctly states instruction tendered authomtles of the record appendix parts (2) in the law; evidence whether there was Therefore, this Davis has giving of the support record to appeal). instruc waived cita claim failing tion; whether the adequate and provide substance authority. by other tion is covered tendered instruction that, disagrees weapon victims' fear that the of the 5. The dissent "[the stated realism court threatening be coupled appellant's with the guns real should be that the and belief for their caused the victims fear assessing havior in whether relevant considerations reaching that a deadly weapon. analysis is conclusion Our an item is a dis lives" Merriweather, firmly deadly weapon within 'the those of pistol based on abled meaning Section 35-42-5-1. of Indiana Code N.E.2d N.E.2d Whitfield, is concerned that the dissent To the extent only cases in which BB or other Indiana and belief considering fear actually the victim's incapable of pellet guns that were gun lead to the would during an item is real shooting the commission 'that ammunition finger or a of butter that a stick deadly weap conclusion were found to be of the crime fac fact, deadly weapons, we note that these upon our su are relied ons. Whitfield make such used to tors are not the sole analysis Rogers v. preme factors court's a determination. (Ind.1989), in which the (2004). notwithstanding, Initially, Davis's Waiver we observe that 2005, following 14, claim Davis tendered the Davis was January fails. sentenced on Blakely 24, and instruction: was handed down on June Davis, however, 2004. Id. failed to make a sufficient evidence exists to es Whether Blakely objection at trial. "A claim is weapon deadly tablish an unloaded is is generally considered forfeited if it not by: determined objected to at trial." Clark v. (1) looking weapon to whether had Ac- (Ind.Ct.App.2005). ability injury actual to inflict serious cordingly, Davis waived his chal- Blakely situation; under the fact and lenge. (concluding See id. that defendant (2) apparent whether the accused had Blakely forfeited claim where he failed to injure ability seriously to someone object sentencing hearing at and his case through weapon during use of the was not on Blakely direct review when of the crime. commission announced). App. at 42. The trial court Appellant's Waiver notwithstanding, Davis's properly refused Davis's instruction be- Blakely claim is without merit. The trial cause the substance of the instruction was court twenty-year sentenced Davis to a by given. covered other instructions term for the B felony robbery class convie trial jury court instructed the that it "may tion a three-year and term for the class D look to whether the weapon had the actual felony resisting law enforcement conviet ability injury to inflict serious under the ion,7 to concurrently. be served The trial fact situation and whether the Defendant court found two aggravating cireum- apparent ability injure had the the vie- "a) stances: The Defendant onwas Feder seriously through object tim the use probation al for a previous robbery armed during the crime." at Tr. 445-46. We when he committed this offense of armed conclude that the trial court did not abuse b) robbery; and The Defendant has a his by its refusing discretion tendered Davis's tory of criminal activity."8 Appellant's jury instruction. at App. 107. IV. Sixth Amendment Violation Blakely, a trial may court Under enhance a only sentence based on those Davis asserts the trial court improperly by enhanced his sentence facts that are established in one of several relying on aggravating cireumstances not ways: (1) (2) conviction; as a fact prior by found a (8) violation of the by jury beyond Sixth a doubt; a reasonable Amendment, citing Blakely Washington, (4) defendant; when by admitted 542 U.S. 124 S.Ct. 159 L.Ed.2d stipulated by defendant, when person 6. felony "A who year commits class B mitigating subtracted for circum- imprisoned shall be for a fixed term of ten (2004). § stances." Ind.Code 35-50-2-7 (10) years, (10) years with not more than ten © aggravating added for circumstances or not aggravating Davis contends that the factors (4) years more than four subtracted for miti- sentencing recited hearing at the and those gating § circumstances." Ind.Code 35-50-2- sentencing listed in the written order are dif- (2004). disagree. ferent. We specifi- The trial court cally aggravating identified two at factors person 7. "A felony who commits a class D sentencing hearing, and those are the same imprisoned shall be for fixed term of one appear sentencing factors that in its order. (1%)years, and one-half with not more than 533; Appellant's App. Tr. at at 107. (1'}) years one and aggra- one-half added for vating circumstances or not more than one judge ty after the defendant con- Indiana cause

found 30C01-0404- under judicial during the fact-finding, sents FB-00029. guilty plea of a which the defen- course Appellant's App. at 84. Davis noted that rights. his Apprendi dant has waived report was incorrect in that it failed to (Ind. Trusley v. state that prison he was released from

2005). Therefore, properly the trial court 22, July work release on 2008. Tr. at 455. prior eriminal history found that Davis's However, he confirmed that he was re- aggravating was an circumstance. See id. 20, probation January leased to on 2004. trial court also found that Davis was The corrections, At Id. the close of his the trial at time com- probation on federal he anything court asked Davis if he had else robbery. mitted the current The State correct, replied, he wanted to and he "No." asserts that Davis admitted that he was on provided Id. at 458. Given that Davis was At probation. agree. sentencing We PSI, opportunity with an correct opportunity Davis hearing, was offered corrections, made several and then stated presentence to make corrections to the corrections, that he had no further we ("PSI"), investigation report and he made conclude that Davis admitted that the re- several corrections. Tr. 454-58. Davis mainder of was the PSI correct.9 Accord not, however, did correct the information ingly, the trial properly upon court relied in stating the PSI that he was on Federal proba the fact that Davis was on federal Probation when he committed this rob- tion when it his enhanced sentence.10 bery. Id. The PSI stated: Davis's enhanced sentence does not violate placed

The defendant in was Federal rights his in Sixth Amendment as set forth Prison and released to Federal Proba- Blakely. 20, Supervision January 2004.

tion Mitigating Failure to V. Find being supervised by defendant was Fed- Circumstances Dwight eral Probation Officer Wharton Lastly, argues that the Davis Indianapolis at the office. The defen- probation improperly mitigat trial court overlooked pending dant has violation of ing determining filed Federal Court due to his arrest circumstances his sent Sentencing and current conviction in Hancock Coun- ence.11 determinations are recognize panel supreme currently 9. We that a of this Court has 10. Our court is consider ing recently that a whether the fact that a defendant commit held defendant's "acknowl- probation edgement pre-sentence report ted an offense while on is "deriva that the was history not, tive" of criminal and therefore need more, correct is an admission without satisfy Blakely. by jury It support aggravator not be found sufficient to an based on Ryle argument the nature and circumstances of crime." heard on June 2005 in State, (Ind.Ct. (Ind.Ct.App.2004), Vela v. 832 N.E.2d 613-14 819 N.E.2d 119 pending. granted, and its decision is trans. App.2005). opinion necessarily not Our is being Because we decide Davis admitted contrary holding, to Vela's inasmuch as our probation, on we need not address whether factually distinguishable opinion two on probation "derivative." his violation was (1) grounds: we consider whether Davis ad probation mitted that he was on when he Although challeng- purposes Davis asserts that he is committed these crimes for of Blake ly, ing appropriateness his sentence and not whether he admitted the nature and 7(B), body Appellate crimes; of his (2) cites Rule circumstances of the and argument exclusively PSI, focuses on the trial actually made corrections to the includ mitigating ing involving pro to find circum- a correction his release to court's failure bation, stances. We therefore address the substance date on which he and confirmed the argument. of his probation. released to trial court's

within the discretion. Cotto v. to find a defendant's incarceration will (Ind.2005). hardship If result in undue upon depen trial Gray relies or dents: aggravating court mitigating circumstances to enhance re (Ind.Ct.App.2003). Based on our review (1) sentence, presumptive duce the it must record, we conclude the trial court identify significant mitigating ag all and failing did not abuse its discretion in any mitigating circumstances; find factors. gravating spe state the why reason each circumstance de cific is. foregoing, Based on the affirm we mitigating termined to or aggravating; Davis's convictions and sentence for class (8) articulate its and balane- evaluation B felony robbery D felony and class resist- ing of the cireumstances. Id. ing law enforcement. Determining mitigating -cireumstances is Affirmed. within the of. trial discretion court. A regard trial court not weigh

. need osr a

.- possible mitigating cireumstance the NAJAM, J., concurs. urged by

same as the defendant. When BARNES, J., concurs in in part result alleges defendant that the trial court and opinion. dissents with part, in identify mitigating failed to or find a circumstance, the defendant must estab BARNES, J., concurring in in result lish that mitigating evidence is both part dissenting and in part. significant clearly and supported by the I respectfully

record. required majori- The trial court is not dissent from the . ty's to make an affirmative of finding expressly resisting affirmance Davis's law en- negating potentially each forcement conviction mitigating cir and concur result robbery in-its affirmance of his conviction cumstance. and sentence. Corbett 630-31 (citations (Ind.2002) omitted). majority The concludes that the failure following Davis offered the jury to instruct the on the elements of Igniti- (1) gating enforcement, factors: he is former church resisting law to which omis member and a member the Rastafarian object, sion Davis did not did not consti (2) faith; well-respected he was a student tute fundamental I agree. error. do not (8) School; at Craig Middle he had stated, been a The Supreme Indiana Court has "we have no give County doubt total failure to an model inmate at the Hancock Jail other correctional facilities in that he instruction detailing the elements of the and obtained GED, would be available as reversible classes, college his offense took error appeal inmates; and assisted other compliance absent with the and ten-year-old son would suffer severe hard contemporaneous objection requirement." ship. presents While Davis these factors (Ind. Lacy 1982). majority mitigators, The as acknowledges this he has not established their significance. We commend Davis for his statement but characterizes it "arguably as good behavior 'and for pursuing further dictum" because the Court went on to hold jail, education while in but the trial court was not a "total give there failure" to already that Davis had an reward instruction on the elements of the of been found ed for those through good efforts time and fense such an where instruction had been education credit Ir. at given instruction, 585. We also preliminary as a though observe that the trial required court is not not aas final instruction. See id. alleged against the State jury of what Lacy is quote from think that I do not instruction, however, advised Davis. No unnecessary to the resolu- that was dictum what prove that the State had jury if appear It does of the case. tion or that the in the information alleged an was give failure to a total had been there statutory ele reflected the offense information of the on the elements instruction By enforcement. resisting law the Court ments "no doubt" there is Lacy, - contrast, provided with a both was the conviction. reversed have would information and was copy robbery of the might fact that a statement The mere advised of the separately specifically not mean is as dictum does characterized robbery and that the statutory elements states, also Lacy opinion incorrect. prove each of those elements had to State in his asser- is correct "Certainly appellant This is what beyond 'a reasonable doubt. detailing of an instruction giving tion the every criminal happen in should 'and must offense, defining or of the the elements case, respect to happen it did not but necessary proce- nature is its explaining charge. law resisting Davis's enforcement quotes Id. It also in criminal trial." dure and re that conviction I vote to reverse Su- the United States from precedent proceedings.12 for further mand holding as follows: Court preme affirmance of Davis's I in the concur fundamental as is so the error [Where robbery deadly weap- with a for conviction jury the essential to the to not submit majority's to the I do not subscribe on. only on which of the offense ingredients pellet rest, think it the unloaded we analysis of whether convictioncould the Specifically, "deadly weapons." guns were it on our own take note of necessary to on emphasis much majority places the most guilty of the Even those motion. and customers the tellers whether to a fair are entitled offenses heinous that the or believed weapons afraid of the degree guilt, of trial. Whatever that this I conclude "real." guns were are crime with a federal charged those in consideration a relevant should not be of by the standards to be tried entitled "deadly a an item is assessing whether prescribed. has Congress guilt which the crimi- meaning of within the weapon" 91, 107, States, 325 U.S. v. United Screws extreme, ap- its this Taken to nal code. (1945). 1038, 1031, L.Ed. 1495 89 65 S.Ct. or a stick of finger a proach could lead is Lacy of and Screws effect The combined if a "deadly weapon," a to be found butter jury on to instruct total failure clear: or stick of point finger were to robber is fundamental of an offense the elements coat and was a from underneath butter make for failure to is not waived error that it was the victim to convince able objection. contemporaneous actually gun. here to instruct a total failure There was pro- 35-41-1-8 'Indiana Code Section resisting of jury the elements Davis's includes, weapon" be- "deadly vides that was No such instruction law enforcement. firearms, "that final or materials or devices preliminary in the sides given either used, ordinari- or could it is in the manner Providing instructions. used, is used, to be or is intended ly be Davis did not against charging information bodily causing serious capable of readily advised The information this error. cure evidence agree there is sufficient I do State, Camm error. See for instructional resisting con (Ind.Ct.App.2004), law enforcement support the to viction, 1138 N.E.2d bar his jeopardy would not so double denied. trans. we were to reverse this offense if retrial for view, injury." my plain language actually of whether could have been used requires this statute that a non-firearm cause injury death, serious or either a "deadly weapon" through item claimed to be bludgeon. its intended use or as a actually capable causing bodily of serious See Glover v.

injury, it appears capable (Ind.1982) not that of caus (noting pistol, evidence that air ing injury bystander. discharged such to a victim or when at range, close could re Frey pain sult in See extreme or the loss im pairment hearing (Ind.Ct.App.1991), sight); trans. denied or Barber v. ("Wheth (Ind.Ct.App. er sufficient evidence exists establish a 1981) (noting that deadly "even a blank revolver weapon by looking is is determined could be used as a bludgeoning instru weapon to whether had the actual ment"). ability injury to inflict serious under the

fact situation and whether the defendant Here, majority as the recites there was apparent ability injure had the the vice- type gun evidence that the pos- seriously object tim through use of the past sessed has caused eye- loss of crime.") added). during (emphasis sight, and in warning carried a label fact that it could injury cause or death.

To the extent that the victims here were serious was also accomplice, testimony type of Davis and his this afraid There gun bludgeon someone, could be used to already necessary element of the base regardless of whether it was loaded. This robbery felony- offense of as a Class C evidence was to support Davis's force, taking property by another's threat- sufficient B felony robbery Class conviction. I force, ening placing any person in fear. go would no farther than in assessing this § Ind.Code 35-42-5-1. If there had been weapon whether the he used to commit the case, no fear or threat of force this robbery a "deadly" one. there would robbery. have been no key factor, believe, I distinguishes Finally, regarding sentence, Davis's I using "deadly weapon" to commit rob- disagree majority that he waived bery and B felony elevates to a Class claim Amendment violation a.Sixth heightened there is an actual risk of by failing object during a sentencing harm to the victim. hearing Supreme conducted before our State, Smylie decided v. N.E.2d I agree pellet guns or BB can be Court (Ind.2005). State, Muncy See deadly considered: weapons as defined in N.E.2d (Ind.Ct.App.2005) 218-20 Indiana Code Section 35-41-1-8. Merri (Barnes, J., dissenting part). said, That (Ind. weather v. however, agree I with the remainder ofthe Ct. App.2002). I acknowledge also majority's analysis of Davis's Sixth other cases have found the victim's belief Amendment fully claim. I also that weapon was "real" to be a relevant coneur with the remainder of the issues discussed consideration in deciding whether by majority. id.; weapon "deadly." See Whitfield (Ind.Ct.App.

1998), However, trans. denied. I believe

the proper analysis pellet for whether a gun

BB is a "deadly weapon" is limited to guns Pellet and BB (Ind.Ct.App.2002). are not "firearms." See Merriweather v.

Case Details

Case Name: Davis v. State

Court Name: Indiana Court of Appeals

Date Published: Oct 26, 2005

Citation: 835 N.E.2d 1102

Docket Number: 30A01-0502-CR-94

Court Abbreviation: Ind. Ct. App.