McKinney v. State

parties, but Alwin were both re- form which

failed to furnish verdict

quired percentage the disclosure of the This er- of them.

fault attributed each coupled refusal

ror trial court’s Handrows’ tendered instructions in a verdict which

nos. 35 and results jury’s miscon- based on the have been

ception of the law. appears, glance,

Although at first prejudiced by the trial

only Eleanor was error, only as if we were to reverse

court’s Eleanor, problems we would be left with upon status re-

concerning the of Alwin might non-party

trial. He be considered I.C. How-

defendant under 34-4-33-10.

ever, probably status would result such negli-

conflicting verdicts as to Alwin’s

gence question of res and would raise a Therefore,

judicata. reverse Alwin and

remand for new as to both

Eleanor. McKINNEY, Allen

Scott

Defendant-Appellant, Indiana, Plaintiff-Appellee.

STATE of

No. 71A03-8902-CR-45. Appeals

Court of

Third District.

3,May Bend, Ready, T.

David for defen- dant-appellant. Pearson,

Linley Atty. E. Gen. Morrison, Atty. Gen., Deputy Jane A. In- dianapolis, plaintiff-appellee. GARRARD, Judge. appeal challenging

This is an the convic- in the tion of Scott Allen St. Joseph Superior Court. of homicide and on June

convicted years prison. sentenced to 50 McKinney’s motion to correct errors was McKin- overruled on November ney February appealed, and on proceedings filed in this the record of court.

McKinney presents six issues for our consideration, consolidate as fol- which we lows:

(1) deny- Whether the trial court erred ing McKinney’s motion to dismiss for jurisdiction. lack of territorial (2) in re- the trial court erred Whether in- fusing McKinney’s which would have instruct- struction jurisdic- ed the as to territorial (3) the trial court erred in not Whether instructing on the issue of (4) per- the trial court erred Whether mitting testify on redi- witness Joseph County. Trial rect examination was to a St. testify At prison robbery. did sentenced presented no on his behalf. witnesses reverse remand for new Because we trial, only the address first three issues. we I. McKinney contends that the trial first Facts denying court erred in his motion to dis- McKinney friend was driven Scott miss for lack of Ohio, Laura, to to at his visit David Fox McKinney opening after moved to dismiss 23, 1987, McKinney September home. On had begun statements and after the State the home of Ron and arrived at Sheila present to The trial court did not evidence. sister-in-law, and in McKinney, his brother McKinney’s motion, immediately on rule Bend, driving He South Indiana. present to but allowed the State to continue sets, television

truck loaded with video-cas- could file a evidence until the State brief other He equipment. sette recorders and response trial court could hear and the that he had a man told his brother killed arguments. grounds McKinney’s The for leg him a man’s and showed beneath objections were that State’s witnesses had McKinney asked if equipment. McKinney his brother testified had told them that that equipment Specifically, sell and Ron he killed David Fox Ohio. he would McKinney’s younger mother and agreed Among to do so. brother McKinney had told them testified that possessions in the truck Fox’s was David murder had occurred Ohio. Carol Den- checkbook, they which burned. ton, however, testified that had going dump that he was told his brother brother, Ron, McKinney’s her told that had swampy area. body in a He then drove killed Fox in Indiana. Others testified that body in the The next away with the truck. Fox, them he murdered had told morning, McKinney hosed the bed of out testimony their did not indicate where Indiana, Gary, truck and drove it to place. the murder took later found police. where it was A person may be convicted of a mother, McKinney subsequently his told crime in if either the conduct or the Indiana brother, Dorsey, and his younger Prudence result, an element of the is McKinney, that he Mark had killed David (a)(1). occurred in Indiana. IC 35—41—1—1 dumped body near Fox in Ohio and homicide, either the When offense plant he the Carborundum where worked. bodily impact or the death the victim body After the had been discovered McKin- causing death constitutes result McDonald, Duane ney told co-worker purposes prosecution in Indiana. More Carborundum, that he had killed the man over, victim, that a homicide body. He dumped told Carol Den- body has whose is found ton, that he and Fox had returned 35-41-1-1(b). murdered in Indiana. IC brother, Bend and that Ron respect this Indiana follows the Model Pe McKinney, had murdered Fox. Code, (Pro nal Penal 1.03 Code. Model § on September The was found 1962). posed Draft The result in Official subsequently and was identified Indiana tended this statute is that would Fox. The found in that of David truck injury if or the wound belonging identified as Gary was also received, died, or the the victim defendant Jentz, pathologist, Fox. Dr. David David Code, acted in Model Penal the cause of death was a determined 1.03, supra, comment 8. presump § gunshot to the back of the head and wound tion insures that a murder defendant can approximately had occurred that death delay the courts and avoid or confound autopsy. murdering hours before the He testified prosecution by his victim in one died within the dead dragging that Fox would have minutes state into an receiving the wound. other. 559. jurisdictions that a homicide A.2d Other likely in the state murdered in more to accord deference to

victim found conviction Indiana if Indiana has state leads conclusion jurisdiction by highest standard. Id. prose state Moreover, requiring the state perpetrator. cute the Territorial a reasonable necessarily doubt thought tion is not of as the confusion result Nevertheless, avoids that would if crime. element of a presented differing were stan- explicit makes the con Model Penal Code proof dards of elements. that territorial is a fact clusion different Code, 1.12, Model Penal Comment § that must be established. Model Penal 1.13(9)(c). do not Code Indiana statutes In most it not difficult cases is jurisdiction as an element of the define prove the State to territorial offense; where the law has estab However, this, in cases such as where a necessity of a the certain fact for lished body is found in a location other than offense, guilty of the accused to be may place, the murder where have taken fact is like existence of that treated much prosecution pre law aids the state with an element of the offense. McGowan See sumption. the is location of the 16, (1977), 267 Ind. 366 N.E.2d State fact from inferred proved which can be 1164; (1974), Ind. Sumpter v. State fact, that further the victim was murdered 471, 95; (1972), Young 306 N.E.2d v. State legis state The Indiana within boundaries. 246, 280 N.E.2d In this case Ind. 595. not, however, guide lature did establish jurisdiction then is an element of territorial the lines as to how courts should treat this by proved the offense that must be the presumption. The Penal Code Model state. statutory permissive. presumptions treat as Code, 1.12(5)(b). Penal While Model § territorial jurisdiction That is beyond presumed fact must be proved prosecution sup is also doubt, may regard reasonable ported by the law’s treatment of venue.1 presumption rise to the facts Although is not venue an element of sufficient evidence of the fact. fact, criminal but an essential permitted is to infer (1979), Ind. Sizemore v. State prerequisite of the fact that the upon proof 787, 783, 395 N.E.2d must never State Model body was found Penal prove proper in the same theless venue Code, 1.12(5)(b) 7. and Comment Fur § manner as the essential elements of the thermore, need not submit the statute, although by a crime defined question to the if it can determine that preponderance of the evidence. Morris juror fail to find the no reasonable could (1980), State 274 Ind. 409 N.E.2d presumed fact a reasonable doubt. 608, conclude, however, 610. We State, See; Young supra; McGowan v. prove State must territorial be 250, 258 Ind. State yond a reasonable factors doubt. Several (If failed 597-98. the defendant compel to reach this us conclusion. Juris going meet the forward with burden may diction not be waived or conferred evidence, legal presumption disputive acts consent. To establish that a court prima to establish a case is sufficient facie defen authority convicts a State.) favor dant, its necessary that it demonstrate highest prosecution prove standard must ter- authority employing Because (Me.1973). jurisdiction, must be proof. ritorial the issue sub- State v. Baldwin right to be Indiana courts have times confused the 1. has a constitutional two. The defendant county the crime was Thomas v. State 275 Ind. in which See tried in the proper 162 Ind. N.E.2d Venue refers committed. Woodall county try App. does in which the case. Territorial N.E.2d and, subject brief is of venue in his matter not raise the issue therefore, authority it. Venue must be distin refers to the of the State of Indiana waives jurisdiction, although through guished its courts to laws. territorial enforce its jury unless the court deter- tendered instruction states the mitted to the fail law. We conclude that it does not. jury could to find mines no reasonable already concluded that the argues the court erred prosecution must overruling dismiss because his motion to beyond a and that tion reasonable doubt Fox the State’s evidence showed that provides presumption in favor state law brought killed in Ohio and to Indiana. We of territorial where the is disagree. jury, found within state boundaries. The therefore, pre must be instructed that the may upon The court motion dismiss sumption Model Penal exists. See Code jurisdiction if an information there exists a 1.12(5)(a). Although the defendant or impediment convicting the defendant al have introduced evidence State charged. the offense IC 35-34-1- presumption, tends to rebut the 4(a)(10). upon A motion to dismiss based Rather, presumption disappeared. subject jurisdiction may matter be made at permissive. Although any during proceedings. IC 35- time must find that Fox was murdered 34-l-4(b). McKinney’s based motion was doubt, beyond a in Indiana of con on state’s which consisted pros if the infer territorial flicting statements that made proven body that Fox’s was ecution has The evidence also different witnesses. in found shows that someone drove Ohio; returned to Bend that when he device, evidentiary An such as truck; driving Fox’s that he arrived he was presumption, must not undermine the body posses Fox’s hidden under Fox’s responsibility factfinder’s at trial to find back; sions in the and that beyond a the ultimate facts dumped body Joseph County. in St. County County Court Ulster of hearsay 140, 156, (1979), There is no evidence other than 442 Allen U.S. 99 S.Ct. 2224, 777, 2213, pre A that shows Fox died or was wounded 60 L.Ed.2d if there is sumption We find that this evidence is not is not unconstitutional Ohio. grant a motion to dismiss for a rational connection between the facts sufficient proved presumed. and the ultimate fact lack of 396 U.S. 90

Turner v. U.S. 655, 610, 626; 642, 24 L.Ed.2d S.Ct. U.S. II. 754, Gainey 380 U.S. 85 S.Ct. argues next that the trial 757, 658, 662. The 13 L.Ed.2d erred his tendered court refused likely more than not to flow fact must be jury have told the instruction which would prosecu from the facts basic that if it found that Fox was shot Ohio Ulster, supra, 442 County Court of Ohio, return a of and died it must verdict 2228, 165, at 99 S.Ct. at 60 L.Ed.2d at U.S. guilty. In order to determine whether matter, general highly 797. As correctly the trial court refused to body likely that the of a homicide victim instruction, appellate court the state has murdered found within (1) the tendered must determine whether the state. It is rational to infer within law; (2) instruction states the proof the location of the there is in the record to whether juris the crime was committed within the instruction; (3) support the of the diction in is found. The which in the substance of the tendered whether statutory is sound. struction is covered other instructions Supreme, given. are The United States Court has Richey which Ind., permissive presump- conclude sanctioned the use of sup supra, jury Gainey, that there is evidence in the record to tions. U.S. v. port giving guilt the instruction that no oth informed that it could infer of the and (possession illegal er instruction or control of an covered the instruction ten offenses question distillery) dered. The remains alcohol from the fact of the de- whether stamps the site drawn from the absence of tax presence at on unexplained fendant’s Id., heroin. 396 U.S. at at of the still. S.Ct. 655, 24 L.Ed.2d at 626. pres- that the this does not mean Now site and at the ence of the defendant Finally, County Court Ulster requires the time referred to place at the Allen, supra, challenged County v. defendant, if the de- jury to convict provided presence of a statute case, facts by the evidence fendant presumptive firearm in an automobile is fails to ex- proved, circumstances illegal possession per- evidence of its all plain presence to the satisfaction occupying up- sons the vehicle. that a jury. simply It means it found that it held the statute because fit, upon such may, if it sees convict permissive presumption. The trial was a in law as it shall be deemed judge presump- that the instructed conviction, to authorize a sufficient merely part prosecution’s tion was require a result. does not such gave permissive infer- that it rise to at Gainey, supra, 380 U.S. U.S. circumstances, only in rather ence certain The stat 13 L.Ed.2d at 664. S.Ct. at mandatory possession, than a conclusion based, ute, upon the instruction was which ignored by that it could that it im challenged grounds on the proof even if the defendants offered no judge’s powers the trial over pinged on judge it. The told the rebut disagreed. proceeding. The Court judicial unless it satis- defendant was innocent congressional rec “constitutes The statute reasonable doubt that the fied presence ognition that the fact of [has] Id., handguns. possessed the defendants worth_” Id., 380 U.S. at probative 160-61, 2226-27, 442 U.S. at S.Ct. L.Ed.2d at 663. More S.Ct. long at 794-95. So as the connec- L.Ed.2d over, jury prevent did not the the statute pre- fact and the proven tion the between being on the standards for instructed rational, the inference is valid sumed fact is reasonable doubt. Id. Id., 442 U.S. at and constitutional. U.S., the defendant supra, In Turner v. L.Ed.2d at 797. S.Ct. at constitutionality of two stat- challenged the a provided The first that whenever utes. have A correct instruction would possession defendant is shown to have jury that order to find informed the narcotic, possession that is deemed of a murder, of it McKinney guilty of the crime to authorize conviction sufficient evidence must be satisfied facilitating the receiving, concealing and of an either the conduct that was doubt that of the nar- transportation and concealment result, or the the both element of unlaw- knowing that it had been cotic while would, It in Indiana. occurred defendant ex- fully imported, unless the they permit them that were further advise satisfaction of plains possession his ted, required, to infer from the fact not provided that jury. The second statute the in Indiana that the the was found that stamps tax appropriate the absence here. was murdered victim of prima on a narcotic was facie illegal of narcot- distribution a violation III. the Supreme found that ics. The Court did not err Although the court knowledge that heroin had of inference instruction, McKinney’s tendered refusing from the fact of illegally imported been McKinney, in find that we nevertheless Therefore, the was sound. possession terri tendering proposed instruction on Turner’s instructions did not violate court’s preserved the issue for jurisdiction, torial only finding on a of right convicted to be discussion, foregoing Based on the review. doubt and did guilt beyond a reasonable on the instructed should him impermissible pressure on place not necessity establishing territorial of U.S., testify. supra, 396 U.S. Turner v. duty the trial court to It is the 417-18, 653, 24 L.Ed.2d at 624. tion. 90 S.Ct. appli- completely present inference similarly upheld the The Court «66 can under- although minority that it further stated that

cable law to so fair and that at a view holds must the case arrive stand duty proven by only preponderance The has a be court correct verdict. agrees weight of law au- on all matters instruct jurisdiction must thority that territorial necessary for their information Rodriguez the verdict. N.E.2d Ind.App. Lane, supra; as far was correct instruction Annot., (1975). 67 A.L.R.3d 988 Its sufficient to as it went. tender was However, majori- I agree with the cannot preserve duty court to its and to alert the ty that territorial element question review. majority, the offense. As said therefore, for a reverse and remand statutes not define Indiana do new trial. element of Further- as an the offense. more, jurisdiction go to does not defen- HOFFMAN, P.J., in result and concurs guilt dant’s or innocence. See: Sizemore separate opinion.

files Ind. and Sandlin State J., CONOVER, concurs. (although a venue applicable the court’s rationale is HOFFMAN, concurring Presiding Judge, case). this The court in State Baldwin in result. (1973), Me., up 305 A.2d 555 summed opinion. majority I concur with issue: is an ele- agree “Venue is not an element of a crime.... proven by that must be the State ment A fortiori is not element dispute as to whether arises (Citations omitted.) crime.” of a subject-matter trial court has conclusion, if finds properly try the case.1 defendant did jurisdiction, trial court lacks territorial by tendering issue an instruc- preserve this tried in court, defendant be indicted and tion to the jurisdic- court which maintains territorial 51(C); Ind.Trial Rule Baldwin, supra, As the Shuman, Admx. State Farm stated: (action Ind.App. 370 N.E.2d 941 true that “Nevertheless we take ten- refusing properly trial court only acquittal also a conviction automatically gives the dered instruction is, having jurisdiction a court no ‘before tendering party exception to the rul- course, like all in the proceedings ing), void, absolutely no and therefore bar to subject-matter although, jurisdiction subsequent indictment and any Adoption time. be raised Matter of court which of- (1985), Ind.App., 483 N.E.2d 777. H.S. ” (Citations omitted.) fense.’ note Defendant’s should be re- conviction Fla., also discussed Lane v. State versed and this cause remanded for a new 1022. The held that 388 So.2d Lane court trial. fac- of territorial is a the issue prov- tual determination which within appropri-

ince of the to resolve under Keen v. State

ate instructions.2 See also:

(1987),Fla., 504 So.2d The Lane court evident, (when physical all the circumstantial 1. Since territorial is often evi- require clearly be needless to the State to would territorial dence indicated that all elements every case. only offense occurred Florida with the con- flicting being appellant’s allega- bare If the evidence reveals state, place acts tion that the took outside the properly the court maintains territo- doubt that necessary special was not special jurisdiction, a territo- rial instruction on jurisdiction). instruction on territorial given jury. need rial not be See: Johnson v. State Fla. 465 So.2d 499

Case Details

Case Name: McKinney v. State

Court Name: Indiana Court of Appeals

Date Published: May 3, 1990

Citation: 553 N.E.2d 860

Docket Number: 71A03-8902-CR-45

Court Abbreviation: Ind. Ct. App.