*1 Douglas McCOMBS, Appellant, W.
Supreme Court of Indiana.
March 1,1989.
Rehearing Denied June McClure,
Nancy Broyles, McClure & Kammen, Indianapolis, Gen., Lias M. Paunicka, Indianapolis, DeBRULER, Justice. theft,
This is an convictions Class D two additional offenses of without a enforcement, license and both gave Class misdemeanors. The court thirty-two years sentences of for the theft year each for the two misdemean- ors, all sentences to be served concurrent- ly. year A thirty enhancement of the felo- ny sentence was based a determina- tion of offender status. habitual *2 278 first, are, pistol house. The stolen was also on the questions presented
The
the
flight
ground
a
next to
foundation.
instruction on
after
whether an
second,
erroneous;
crime has occurred was
The
tendered an
defense
instruction
evidence of
whether the
subject
flight
on the
of evidence of
from a
third,
sufficient;
forcement was
objected
the
crime scene and
to
court’s
offender
the evidence of habitual
whether
subject.
the same
The
instruction on
ten
sufficient.
dered instruction was refused and the ob
challenged
overruled. The
jection
instruc
The
at trial showed
evidence
was:
tion
home
Indianapolis
a
of
drove
that
doing,
flight
person immediately
In so
after
at 1:00 a.m.
The
of a
after
work
crime, though
the commission of a
not
noticed
number of
cars clustered
a
is
of
Testimony-
proof
guilt,
evidence
conscious-
together
neighborhood.
guilt
guilt
ness of
and thus of
itself and
they
a
disclosed that
had been
is a
which
con-
his
circumstance
continued on to
narcotics arrest. He
you in
by
sidered
connection
all the
it had
only
house
to discover that
determining
to aid
you
other evidence
guns,
of his
includ-
broken into
several
question
guilt
the
or innocence.
Recalling
ing
pistol,
a
stolen.
the
got
foray
neighborhood, he
in the
back
Appellant
contends
this instruction vi-
truck,
seen
his
returned to where he had
the rule which condemns instructions
olates
police, approached
Arkins who
the
Officer
unduly emphasize particular phase
which
a
patrol
filling
his
out a
seated in
car
(1985),Ind.,
Burdine
477
him of his misfor-
police report,
told
and was erroneous wherein
him;
house
Arkins went to the
tune.
employed
phrase,
the
of con-
“evidence
having responded
Arkins
and then
recalled
guilt.”
this
sciousness of
Instructions of
earlier to a call
assistance from Sector
class which do not mandate or dictate the
having
Patrol
who was
flight
weight or
value of evidence
arresting man
some
difficulty
consistent with the “no un-
been declared
guns.. Arkins
and determined that
radioed
James v. State
emphasis” rule.
due
neighborhood.
He
Thomas
still
the
Ind.
Sergeant Thomas testified that he was
November,
burglary
in
1978. The in-
parked
“patrol
night
car” at
at least
December,
stant
theft
in
occurred
yards away
one hundred
appellant.
presented
The evidence
by the State does
approached appellant
out and
precisely
not disclose
burglary
when the
guns
on foot on the street. Several
were
resulting in conviction in 1978 was commit-
standing in
nearby doorway.
way, therefore,
ted. There is no
to discern
him why
possession
asked
he was in
of the
prior
if the
felony convictions meet the
guns. Appellant struck him and ran.
statutory
Jordan
criteria.
There
nowas
evidence that Thomas oral-
Ind.,
which a reasonable could infer that concur. police Thomas identified himself as a offi- cer. The most that is shown here is that GIVAN, J., dissenting part
Thomas was in his official duties concurring part separate using police and was car. Even if the car PIVARNIK, J., opinion, in which marked, were deemed to be there is no evidence to show it was within the GIVAN, Justice, dissenting part view This evidence is not suf- concurring part prove ficient to an essential element of the charge resisting. respectfully majority I dissent from the opinion in its determination that the State The final claim on is that present failed to sufficient evidence that serving identify appellant appellant law en- wholly as a insuffi habitual criminal was forcement. jury cient to verdict on that question. position criminal defendant takes the felony arresting for a a sentence which is there was no evidence that the by thirty years pleads Sergeant if the state was in uniform proves properly that he has accumulated two or in a marked or identified prior felony unrelated convictions. I.C. 35- himself as a officer to be- fled. appellant struck him and How- fore
ever, correctly states majority opinion Sergeant Thomas was seated
the fact that parked at the when he curb approached a man who as officer had seen someone
to whether the
walk coat. position that this evi-
I would take permitted jury to the them
dence that the man who
to draw the inference the officer did so because
approached apparent Thomas was officer. Had Thom-
fact a *4 plainclothes in an unmarked
as been unlikely highly would Turner, Craig Boberschmidt, Miller, report Turner, Indianapolis, appel- O’Bryan & lant. stated, repeatedly This Court has as does Gary Da- majority in this that we must Secrest, Gen., Indianapo- mon light most evaluate lis, jury’s verdict. There is favorable to absolutely in this record that no evidence GIVAN, Justice. not in Sergeant Thomas was A bench trial resulted conviction marked car. An infer- appellant Battery, a Class C contrary entirely ence to the reason- (5) which he received sentence of five in view of able (3) years, years three because jury. appellant’s affirm I would circumstances, fur- aggravating and a viction of law enforcement. (30) thirty years by ther enhancement in all I concur with other status as an habitual offend- reason respects. er. evening On of June The facts are: J.,
PIVARNIK, 15, 1986, patron Donna Lemaire was a Indianapolis. Fibber McGee’s Tavern began appellant, he While she danced with making she gestures, rude refused to to dance with him. she continue When table, her and returned her followed Jenkins, a Denny friend became abusive. Donna’s, appel- asked if intervened and Jr., BALLARD, Appellant, Robert to an causing This led lant were trouble. Jenkins, altercation between Bobby resulting stabbed. Jenkins Atchison, joined in appellant’s, a friend of stabbing following the of Jenkins. fray Supreme Court Indiana. sought the aid of the tavern bounc- Jenkins doing encountered his er while so April Allison, attempting friend, David who Jenkins his aid also was stabbed. come to wound, arm; Allison’s was stabbed in however, required sur- was abdominal gery.