Ernest GARCIA, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 4-1081A152.
Court of Appeals of Indiana, Fourth District.
April 20, 1982.
1207
MILLER, Presiding Judge.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
MILLER, Presiding Judge.
Ernest Garcia is appealing his conviction pursuant to
FACTS
The relevant facts most favorable to the conviction are as follows:
On October 28, 1979, Soto, the victim of the battery charged against Garcia, returned from work to his East Chicago apartment at about 11:45 P.M. and consumed several beers and shots of whiskey. Subsequently, he went to “The Regal Bar” located below the apartment. There he consumed several more beers and shots of whiskey and also purchased drinks for Garcia, who arrived at approximately 2:00 A.M. Garcia had dated Soto‘s sister from 1969 to 1979, and for a time the Garcia and Soto families had lived together. That night the two did not converse, however, except with reference to Soto buying drinks for Garcia. At about 2:30 A.M., after buying another round of drinks, Soto told Garcia he was going to sleep, left the bar, and went upstairs. Once in his apartment, he prepared for bed and placed his gun (a .38 caliber pistol) near the bedside table. Thereafter, at about 3:00 A.M., Garcia knocked at Soto‘s door and when he opened it, struck Soto with a pipe, allegedly because Soto repeatedly had asked Garcia to bring the latter‘s sister to Soto‘s apartment. Garcia did not deny striking Soto, though he maintained he had hit him only with his fist. The medical stipulation at trial revealed Soto suffered a “bilateral fracture of [his] left and right mandible” and a “[s]evere contusion around [his] face with lacerations and marked swelling.” It was also alleged, though not found by the jury in its verdict, that Garcia had taken Soto‘s gun and money and had threatened to kill Soto with the pistol.
On November 8, 1979, the state filed its Affidavit of Probable Cause asserting Garcia had broken Soto‘s jaw, robbed, and threatened to shoot him, and on the same day an Information was filed charging Garcia with the crime of robbery, a Class A felony. The Information alleged in pertinent part that on October 28, 1979:
“Ernest Garcia did then and there unlawfully [,] feloniously, knowingly or intentionally take property, to-wit: money, from another person or from the presence of said other person, to-wit: RICARDO SOTO, and in the commission of the said taking the said ERNEST GARCIA did then and there use or threaten the use of force on the said RICARDO SOTO, and as a proximate result of the commission of the said taking the said ERNEST GARCIA did then and there and thereby unlawfully and feloniously cause bodily injury to the said RICARDO SOTO, ....”
At trial, the jury was instructed on the crimes and various classifications of robbery and battery and, as noted above, found Garcia guilty of battery, a Class C felony.
DECISION
Although the thrust of Garcia‘s appeal is that the evidence is insufficient to support his conviction, our own review of the record discloses a more meritorious issue for our consideration: namely, that the charging instrument did not comport with his conviction for battery, a Class C felony, because serious bodily harm was not specifically alleged, nor was the battery in question a lesser included offense of robbery, a Class A felony, the crime charged.
It is well-settled that
“[T]he particular language used in the charging instrument reflects the State‘s decision to create or avoid the opportunity for the jury to convict the defendant of a lesser offense in lieu of the crime charged. That decision, a power vested exclusively in the state, must be executed by the courts in determining whether a
defendant can properly be convicted of a lesser offense.”
Stevens v. State, (1981) Ind.App., 422 N.E.2d 1297, 1299 (majority opinion from which Chipman, J. dissented), quoting Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1104. Where the defendant is convicted of an offense not within the charge, the conviction may not stand for the reason the defendant is entitled to limit his defense to those matters with which he stands accused. Stevens v. State, supra. Thus, the affidavit or information must charge in direct and unmistakable terms the offense with which the defendant is accused, and if there is a reasonable doubt as to what offense(s) are set forth in the charging instrument, that doubt should be resolved in favor of the defendant. Stevens v. State, supra at 1300, citing Belcher v. State, (1974) 162 Ind.App. 411, 413, 319 N.E.2d 658, 660. Additionally, the weight of authority has also recognized that where the charge does not comport with the defendant‘s ultimate conviction, the error which results is of so fundamental a nature that it need not be raised by the defendant but should be addressed sua sponte on appeal. E.g., Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797; Padgett v. State, (1978) Ind.App., 380 N.E.2d 96; Gutowski v. State, (1976) 170 Ind.App. 615, 354 N.E.2d 293; Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618. Compare the majority opinion in Wise v. State, (1980) Ind.App., 401 N.E.2d 65, 69 at n.5.
As noted above, Garcia was charged with robbery, a Class A felony, which is defined by our Legislature at
“A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting the person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person.” (Emphasis added.)
Battery, as established by the Legislature at
“A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:
(1) a Class A misdemeanor if it results in bodily injury to any other person, or if it is committed against a law enforcement officer or against a person summoned and directed by the officer while the officer is engaged in the execution of his official duty;
...
(3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon.” (Emphasis added.)
In addition, the Legislature had distinguished the degree of bodily injury resulting from an offense at
“‘Bodily injury’ means any impairment of physical condition, including physical pain.
‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ.”
From these statutes, it is apparent that battery, a Class C felony is not a necessarily included offense of robbery, a Class A felony, the crime with which Garcia was charged, since it is possible to commit the robbery offense in question without inflicting “serious bodily injury.” See, e.g., Nye v. State, (1971) 256 Ind. 219, 267 N.E.2d 842, 843 (aggravated assault and battery, requiring great bodily harm or disfigurement, is not a necessarily included offense of assault and battery with intent to commit robbery, since “[b]y no stretch of the imagination could it be said that it is
It must still be considered, however, whether the Information filed against Garcia alleged facts sufficient to put him on notice of the crime for which he was convicted, since our courts have held that even where a crime is not necessarily included in the offense charged, it may be included where the requisite elements are properly set forth in the charging instrument. E.g., Gutowski v. State, supra 170 Ind.App. at 622, 354 N.E.2d at 297, where the Court noted “if the element of great bodily harm or disfigurement is properly alleged in the charging affidavit, then aggravated assault and battery may be a lesser included offense of assault and battery with intent to kill.”
As we have earlier observed, in the case at bar the Information merely asserted that in the course of committing an alleged robbery, Garcia “did then and there and thereby unlawfully and feloniously cause bodily injury” to Soto. Based on virtually identical language, the appellate courts of this state have held such a charge does not place a defendant on notice of the crime of aggravated assault and battery (a statutory predecessor to serious bodily injury battery).1 See, e.g., Nye v. State, supra at 223, 267 N.E.2d at 843-44 (conviction reversed because of the opinion of our Supreme Court, “the charge that appellant did unlawfully and feloniously, ‘in a rude, insolent and angry manner, touch, beat, strike and wound’ the victim does not contemplate a charge of aggravated assault and battery“).
We note that although the dissenting opinion in the instant case appears to attach some significance to the fact the word “feloniously” was used twice in the Information charging Garcia—once with respect to the alleged robbery and again in connection with the battery allegation—this same circumstance was present in Nye, where it was charged
“... [T]hat RICHARD ALLEN NYE on or about the 5th day of April A.D., 1969, at said County and State ... did then and there unlawfully and feloniously, and in a rude, insolent and angry manner, touch, beat, strike and wound WILLIAM DANIEL LANAGAN, then and there being, with the felonious intent ... by violence and putting him in fear, to rob, take, steal and carry away the personal possessions of the said WILLIAM DANIEL LANAGAN ....” (Emphasis added.)
Id. See also Allison v. State, supra, involving a similar charging instrument in which the word “feloniously” was twice employed.
Additionally, the dissent also apparently attempts to distinguish the reasoning of Allison v. State, supra (where the charge was assault and battery with intent to kill) on the theory that use of the word “feloniously” in such a case would not indicate whether the defendant was accused of causing serious bodily injury or merely bodily injury, the latter being sufficient for the principal, express charge of assault and battery with intent to kill. We believe, however, the instant Information is at least as ambiguous as that in Allison. As noted above, here Garcia was charged with Class A felony robbery, a necessary element of which is mere bodily injury to the robbery victim or serious bodily injury to any other person. See Clay v. State, (1981) Ind., 416 N.E.2d 842. Since the Information alleged only “bodily injury” with respect to Soto, the robbery victim, Garcia was not put on notice of a serious bodily injury charge, and thus the Information did not distinguish the specific felony robbery allegation from possible other crimes. While the dissent asserts there were three possible bodily injury crimes which could have been ambiguously
Without specifically acknowledging the defect in its charging instrument, the state suggests in the instant appeal that Garcia‘s conviction for battery, a Class C felony may be supported by the assertion in the probable cause affidavit that Garcia broke Soto‘s jaw with a “hard unknown object” and then threatened to shoot him with Soto‘s pistol. We find such suggestion to be without merit, since it is apparent that only the Information itself would serve to place Garcia on notice of the crime charged and thus permit him to limit his defense to those matters with which he stands accused. See Stevens v. State, supra. As noted by Judge Young in Stevens, where this Court reversed a conviction for battery, a Class C felony, because use of a deadly weapon was not charged,
“The State has the absolute discretionary power to decide under which statutes a defendant will be charged when the act constitutes commission of more than one offense. In particular cases, the State may by the words employed in the information determine whether an offense is a lesser included of the crime charged. Roddy v. State, supra. Here the State chose Robbery Resulting in Bodily Injury, a Class A felony. The State had it chosen to, could have charged defendant with use of a deadly weapon to cause bodily injury.” (Footnote omitted.)
Thus, we conclude Garcia‘s conviction for battery, a Class C felony was improper based on the charging instrument. Given the circumstances of Garcia‘s trial, however, it further appears that modification, rather than complete reversal, is the appropriate form of relief. As was stated in Stevens v. State, supra at 1301, where this Court ultimately held the most serious lesser offense of which the defendant could be convicted was battery, a Class A misdemeanor:
“The remedy when it appears that the defendant has been miseld by the evidence introduced at trial or the issues joined under the information have not been determined is to reverse the conviction and remand for a new trial. Where it is evident that defendant has not been misled and the issues joined under the charging information have been determined, modification, rather than reversal is more appropriate. McFarland v. State, (1979) Ind.App., 384 N.E.2d 1104, 1109 and cases cited therein. See also Ritchie v. State, (1963) 243 Ind. 614, 189 N.E.2d 575 (Court has authority to modify judgment of conviction by reducing to that of a lesser included offense which under the evidence, the accused should have been adjudged guilty.); Lane v. State, (1978) Ind.App., 372 N.E.2d 1223 (modification
As noted above, the jury in the instant case was properly instructed (without objection) on the crime of battery and its various classifications, and Garcia in essence admitted having struck Soto. Thus, it is apparent he was not misled in his battery defense, and his conviction may appropriately be modified as a conviction for battery, a Class A misdemeanor, since bodily injury (though not serious bodily injury) was properly alleged and proven.
In reaching this result, we are cognizant Garcia has also alleged on appeal the evidence was insufficient to support any battery conviction. We find this contention to be without merit, however, since Garcia‘s argument in this regard is essentially no more than an invitation to this Court to re-weigh the evidence. See Austin v. State, (1981) Ind.App., 425 N.E.2d 736. The stipulated medical report reveals Soto was injured, and Garcia does not deny hitting him, at least with his fist. Under the facts favorable to the judgment recited above, the jury could reasonably infer Garcia acted without justification and that he was guilty of battery, a Class A misdemeanor.
Accordingly, the cause is remanded for modification and sentencing consistent with this opinion.
YOUNG, J., concurs.
CONOVER, J., dissents with opinion.
CONOVER, Judge, dissenting.
I respectfully dissent.
Art. 1, ¶ 13, Constitution of Indiana reads as follows:
“Rights of accused. In all criminal prosecutions, the accused shall have the right ... to demand the nature and cause of the accusation against him, and to have a copy thereof; ....” (Emphasis supplied.)
I agree with the majority that the failure of an information or indictment to sufficiently notify a defendant of the specific charges made against him is fundamental error and should be raised sua sponte by a court on appeal in a proper case. We do not have that kind of case before us, however.
Clearly, battery, class C felony is not a necessarily lesser included offense of robbery, class A felony. However, if an indictment or information sufficiently alleges the elements of a lesser offense so as to put the defendant on notice in order that he may prepare a defense against it, the information is sufficient. Gutowski v. State, (1976) 170 Ind.App. 615, 354 N.E.2d 293, 297-298. The information here sufficiently notified Garcia of the charges made against him by the State, including the offense of battery resulting in serious bodily injury, a class C felony. The constitutional mandate was satisfied.
The word “feloniously” was used twice in the information, first in charging class A felony robbery, and next to characterize the causation of Soto‘s bodily injury by Garcia. To charge class A felony robbery, the State could merely allege bodily injury or serious bodily injury to Soto without more, but it chose to characterize the causation of Soto‘s injuries. In that regard, the State used the following language in the information:
“... the said ERNEST GARCIA did then and there and thereby unlawfully and feloniously cause bodily injury to the said RICARDO SOTO, ....” (Emphasis supplied.)
The majority notes similar language in Nye v. State, (1971) 256 Ind. 219, 267 N.E.2d 842 and Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d 618, was insuffi-
Moreover, that a crime was described as “felonious” did not indicate whether the defendant was accused of causing “serious bodily injury” (necessary for a charge of Aggravated Assault and Battery) or merely “bodily injury” (sufficient for a charge of Assault and Battery with Intent to Kill). The term “felonious” did very little more than indicate the severity of the penalty. It certainly did not inform the defendant of the nature of specific charges. That was no longer true when Garcia was charged with feloniously causing bodily injury in 1979.
Indiana recodified its criminal code in 1976 and bodily injury crimes were classified as misdemeanors or felonies according to the presence or absence of specific elements, including serious bodily injury. At the time of Garcia‘s arrest, an accusation of causing the kind of bodily injury which was classified as a felony could have meant only that his victim was a police officer or under 13 years of age, or the injuries were serious or caused by a deadly weapon.
“IC 35-42-2-1. Battery. -(3) A Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon.”
Because the Criminal Code changed markedly after the Nye and Allison decisions, a description of a bodily injury crime as “felonious” necessarily carried legal significance at the time of Garcia‘s arrest. It triggered the classification scheme of the Code and served to narrow rather than to enlarge the field of possible crimes. The prosecutor‘s information charged Garcia with inflicting on Ricardo Soto bodily injury of the type which was classified as a felony under the Indiana Code. The only bodily injury so classified was serious bodily injury or injury inflicted with a deadly weapon.
While the addition of the adjective “serious” to the description of bodily injury in the information would have been wise and appropriate, it was not fatal to the pleading and there is no reason to find this charging information more obscure than it actually was at that time.
It is not necessary that each and every element of a lesser included offense be spelled out in an indictment or information as though it were the sole offense charged to fulfill constitutional notice requirements. Carter v. State, (1973) 155 Ind.App. 10, 291 N.E.2d 109, 113; Chandler v. State, (1895) 141 Ind. 106, 39 N.E. 444; State v. Anderson, (1885) 103 Ind. 170, 2 N.E. 332. In my opinion, the information sufficiently informed Garcia the State was charging him with battery, class C felony, in addition to robbery, class A felony.
The evidence plainly supported the jury‘s verdict finding him guilty of battery, class C felony. Soto suffered serious bodily injury because of Garcia‘s attack during the robbery.
I would affirm the conviction.