*1 items were in ty had been taken. These possession when he was arrest-
defendant's
ed. reasonably find that the
We guilty be-
conclude that the defendant was
yond a doubt. reasonable
Judgment affirmed.
GIVAN, C.J., DeBRULER, PIVAR- SHEPARD, JJ.,
NIK and concur. MELLOTT, Appellant
Frederick E. (Defendant below) Indiana, Appellee
STATE (Plaintiff below).
No. 885S312.
Supreme of Indiana.
Aug.18,1986. Hartz, LaGrange, appel- for
Fredrick J. lant. Gen., Pearson, Cheryl L. Atty.
Linley E. Gen., Greiner, Indianapolis, Deputy Atty. appellee. for *2 PIVARNIK, recites the facts favorably to his Justice. case and concludes that such does not Defendant-Appellant Frederick E. Mel- amount to "substantial" guilt. evidence of lott convicted at the of jury LaGrange trial in the Circuit of oft-repeated standard of review on attempted voluntary manslaughter, a class precludes these issues us reweighing from B felony. He was sentenced to seventeen judging evidence or the credibility of (17) $10,000 plus and fined court witnesses. To do so would prov invade the Instead, jury. ince of the costs. The trial court of we look to the Appellant pay the fine on the condition that evidence most jury's favorable to the ver restitution to the victim in the amount of dict and all reasonable inferences there sentencing, from. If we find a substantial Grange County La evidence, probative we will not disturb the for all reasonable and (1985), Ind., verdict. Harris v. State Appellant furnished services and for 937. The above-stated facts appeal court costs. On direct support are sufficient to the conviction in issues are raised for our consideration: this case. We have further held that cir evidence, alone, cumstantial is sufficient to evidence; sufficiency 1. support a conviction. Correll v. State instructions;
2.
jury
(1985), Ind.,
500.
sentencing.
15, 1984,
p.m.
January
At 11:80
Larry
II
Warstler was awakened
the sounds of
Appellant contends the trial court erred
yard.
someone in his back
Warstler looked by refusing
give
Preliminary Instruction
Appellant
out and
steps
saw
on the
of his
No. 8 as a final instruction also. Prelimi-
garage,
inside the chain link fence which
nary Instruction No. 8 dealt with self-de-
property.
surrounded Warstler's
He
-
-
fense,
one of
main defenses.
watched,
rifle,
Appellant,
carrying a
The trial court refused to reissue the in-
garage
went
and out of the
numerous
already
because
had been
times, turning
lights
Ap-
on and off.
as a
instruction.
pellant opened the storm door to Warstler's
jiggled
argues
house several
Appellant
repeatedly
times and
the door
handle. He did
Appellant
not call out.
court refused to instruct the
on self-
steps
gun
incorrectly
sat on the
defense. This
states
rested the
legs.
degree.
across his
While
a critical
entered
the facts to
More accu
garage again,
give
rately,
Warstler
the court refused to
sent his oldest
daughter
defense,
neighbor's
specifically
to a
house to call the
instruction on
be
already
cause one such instruction Akad
he, himself,
police, and
took a rifle and
garage
given.
went outside.
exited
been
It is not error to refuse an
Warstler,
subject
and confronted
where the
is cov
Appel-
who told
matter
stop
drop
gun. Appellant
lant to
another
ered
instruction. Vincent v.
52. Pre
order,
speak,
refused the
did not
and fired
gun Warstler,
missing by
liminary
Instruction No. 8 was identical to
eight
about
gun
inches. Warstler fired his
thus,
struck
refused
we find no
arm.
then fled.
error.
Woolston
-
(1983).
reh. denied
argues
Appellant also
the trial court
refusing
give
maintains there is insuffi
his tendered
erred in
support
cient
lesser
attempted battery
evidence to
the conviction.
struction on
as a
specifically argues
attempted
there was no direct
included offense. He maintains
intent,
in the ele-
battery
inherently
evidence of
evi
included
presented
dence
was circumstantial.
ments of
murder
allegation of error is that the court
manslaughter,
lant's
voluntary
failed to consider certain factors which
instructed.
have been so
should have been considered. The court
the tendered instruction
As with
aggra-
had discretion to consider
self-defense, Appellant has waived the
vating
mitigating factors it chose to
or
comply
by failing to
with
issue
present
properly
consider. The court did so and
*3
8.3(A)(7)
failing to set out
Ind.R.App.P.
supported
aggravating
its reasons for
the
argument
in the
instruction verbatim
the
sentence.
Furthermore,
the
the brief.
section
allegation
last
of error con-
Appellant's
No. 9 addresses
court's Final Instruction
battery,
sentencing
distin
the
court
cerns the fact that
the crime
murder,
gives
guishes
it from
$10,000,
suspended
fined him
but
on
definition,
pay
and sets forth the
statutory
he
restitution to the vice-
the
the condition
This in
proven.
needed to
elements
be
years,
in the amount of
tim
to
ten
LaGrange County
is identical
nine
pay
therefore fail to see
instruction. We
dered
for all medical services rendered
his
merit in
that
and for court costs.
ar-
or that he
instruction was refused
tendered
sentencing
gues the
court did not consider
thereby prejudiced.
restitution,
was
ability to make
his
authority to order him to
court did not have
TH
pay for his own medical bills.
Appellant alleges the trial court
Finally,
First,
noteworthy
the sen
that
imposed. He first
in the sentence
erred
tencing
did not fine
the
court
excessive and that
argues the sentence was
services rendered him. He
cost of medical
recognize
sentencing
to
the
court failed
$10,000.
question
fined
Without
the
was
mitigating
factors.
was
certain
authority to
so.
had
do
court
felony
B
sen-
of a class
and was
convicted
1985).
(Burns
As an alterna
(17) years,
repre-
which
tenced to seventeen
chance,
tive,
in
Appellant was offered the
(7) year enhancement of the
sents a seven
$10,000,
pay
to
his own
paying
stead of
presumptive sentence.
to the vie-
expenses and restitution
revise a sentence au
We will not
damage. Appellant and
property
tim for
such sentence is
by'statute
thorized
unless
make
attorney
even offered to
both
light
manifestly
of the na
unreasonable
any error
payments. We fail to see
such
ture of the offense and character
offering Appellant a more attrac
the court
manifestly
un
offender.
sentence is not
penalty.
tive
person
reasonable unless no reasonable
court
Appellant argues the
Finally,
to
appropriate
find such sentence
the
inability
pay
to
the
offender for whom did not consider
particular offense and
true,
imposed.
was
Freed v.
fail
such sentence
if
were
we
Even
restitution.
929, 931;
Appellant.
prejudices
to see how it
State
allege any prejudice.
sentencing
does not
Ind.R.App.Rev.Sen.
victim,
35-88-1-7(a),
pay
statute,
given
cer
ten
to
the
lists
Ind.Code §
Although he
pay
county.
considered
criteria which must be
tain
destitute,
very
this situation could
Appel
is now
imposing sentence.
the court when
If
years.
at
change in the next ten
argue
the court failed to well
lant does not
that
are
(b)
pay,
he still is unable to
there
that
factors. Subsections
consider these
time
Ap
apply.
statutory provisions which will
(c)
aggravating
mention
of our statute then
any prejudice
pellant has failed to show
mitigating circumstances which
actions,
ac
or even that those
the court's
may
court
consider.
Whether or not
improper.
His
citation
factors,
weight
tions were
to be
these
consider
(1984), Ind.
authority
them,
discretionary
is Smith
is a
decision
is distin-
which
Appel- App., 471 N.E.2d
sentencing court.
part of the
important
1039. This is
be-
there
guished because
court
on the condition
need for the
to hear all
sentence
cause of the
the entire
restitution.
the defendant
time,
so that none
the same
emphasis, and so that none
receive undo
is affirmed.
The trial
forgotten
jurors may
be fo-
while
cusing
single specific
issue.
Instruc-
DeBRULER,J.,
GIVAN,C.J.,
con-
considered
cur.
entirety.
Bowers v.
and construed
DICKSON, J.,
opinion in
dissents with
following argument of and before
they retire to deliberate. pro- importance of this
The wisdom and is underscored
cedure jury, when a dur-
procedure to be followed deliberations, problem it has a
ing indicates have rec-
concerning issue of law. We all trial court reread
ommended that the comment. further
instructions without 107; Ind.,
Lewis v. State Wallace v. State
84; Cameron