*1 just single We find that there is not remand for a trial on the issues of whether negligent inference that can be drawn from the facts of Sheriff was and whether regarding contributory neg- this Trout’s actions constituted case whether Trout’s actions provocation contributory ligence. constituted negligence. question of Trout’s Judgment part, affirmed reversed in contributory negligence cannot be deter- part, and remanded to the trial court for Rather,
mined as a matter of law. it is for proceedings opin- not inconsistent with this jury to decide whether Trout’s actions of ion. stomping taking got his foot and the toast jam him into the him rendered contribu- RUCKER, JJ„ NAJAM and concur. torily negligent. Accordingly, we conclude genuine issues of material fact exist regarding whether the Sheriff had knowl-
edge dangerous propensities of Buie’s
was, therefore, negligent failing segre-
gate him and whether Trout’s actions consti- provocation rendering tuted him contribu- MOORE, Appellant- Thomas O. Hence, torily II, negligent. as to Count al- Below, Defendant though summary judgment properly was en- regard tered in negligent to Trout’s claim of treatment, grant- medical the court erred in Indiana, Appellee- STATE of ing summary judgment on Trout’s claim that Plaintiff Below. negligent failing segre- Sheriff was gate Buie from the other inmates. No. 48A02-9310-CR-568. Appeals Court of of Indiana.
B. III Count July 1995. Finally, we address Trout’s claim in granting summary court erred Rehearing Aug. Denied judgment on Count III of his amended com Transfer Denied Nov. plaint in alleged which he the Sheriff pay surgery repair failed to for the
broken nose which Trout underwent after his jail. required
release from A sheriff is
provide pay appropriate for all and nec
essary prisoners. medical care for Hosp.,
Health &
ever, authority Trout cites no and we find no
authority proposition that the Sheriff duty
has to reimburse an individual for expenses,
medical care incurred after the
individual prison, resulting is released from injury
from an that occurred while the indi
vidual custody the care and
Sheriff. The grant summary trial court’s
judgment in favor of the Sheriff on Count III proper. conclusion, we affirm the trial court’s
grant summary judgment on all four of the complaint,
counts Trout’s except amended
for Trout’s claim in II Count that the Sheriff negligent in failing segregate Buie
from the other Accordingly, inmates. *3 Hodson, Halbert,
Samuel Steven J. Cohen Malad, P.C., Indianapolis, & appellant. threat, deadly awith and while armed OPINION knife.” weapon, to-wit: a SULLIVAN, Judge. at 5. Record (Moore) of both At was convicted appeals con- Moore Thomas 0. determined Upon appeal, this court crimes. deviate con- criminal victions erroneously refused to confinement,2 the trial court duct,1 felony, A a class have allowed give instruction which would felony. second B As this Moore’s class option convicting jury explanation is or- additional appeal, some battery as within lesser included offense der. deviate con alleged attempted criminal initially charged with two Moore was State, No. 48AO2-8909-CR- duct. Moore *4 Those counts read as by information. counts 1991) (Memorandum 29, (May Decision follows: Accordingly, upon Rehearing). Petition for disposition attempt the reversed initial I] “[COUNT conviction, while ed criminal deviate conduct CRIMINAL ATTEMPTED intact, and leaving the confinement conviction DEVIATE CONDUCT attempted upon devi a new trial the ordered A FELONY CLASS charge ate alone. conduct I.C. 35-41-5-1 Upon rehearing, we found that further necessary: disposition of was clarification the October, day of about the 8th On or the our earlier decision is “Footnote of Indiana, County, of Madison confinement conviction only allusion to the attempt to D. did com- THOMAS MOORE that con effect whether and states of Deviate Conduct mit the crime Criminal of force ef remain full and viction should get into an by knowingly asking [L.M.] depend upon the outcome of fect will by one which was driven automobile upon deviate conduct retrial MOORE, by striking (1990) D. and By citing Ryle v. State charge. THOMAS Dist., closing automobile door on beating Ind.App., and 2d trans. [her], denied, deadly imply by threatening the use of it our intention threatening supports the convic weapon, knife of record to-wit: a and the evidence For that reason did not tion for confinement. safety if she [L.M.] the life and no reason that there was were of view Thomas D. fellatio on the said perform reprove that require the State to Moore, a sub- which conduct constituted charge. step the commission said stantial toward Deviate of Criminal Conduct. hand, in the context other viewed On the attempted criminal deviate conduct
of an (should that be result conviction retrial) confinement conviction [COUNT II] is, set because should be aside CONFINEMENT CRIMINAL offense of the analysis, an included Ryle B FELONY CLASS charged. [Em- offense as deviate conduct I.C. 35-42-3-3 phasis original.] in a conviction Only if retrial results October, day battery, about the 8th offense of On or the lesser included Indiana, County, remain valid. State of conviction in Madison the confinement i.e., battery, knowingly did con- is so because D. This THOMAS MOORE closing by forcing ‘striking beating the auto- fine her consent without [L.M.] separate by is an offense being [her]’ driven mobile door the automobile into [L.M.] oc- confinement which apart from the D. force THOMAS MOORE Ed.1994). (Burns (Burns Ed.1994) Code I.C. 35-42-3-3 Code and 35- I.C. 35-42-5-1 Ed.1994). (Burns 42-4-2 Code opinion upon rehearing, when forced the victim into our denied re- curred Moore charge quest to vacate confinement the automobile. included It is this sec- lesser offense. from now reaffirm our decision which re- We present appeal arises. We ond trial judgment upon of conviction verses reorganize and restate the issues as follows: charge attempted criminal deviate conduct (1) Moore, upon only. whether, and remand for trial that count in its retrial of trial, Following must trial court trial court committed reversible error in convic- admitting determine whether the confinement of an unrelated offense tion remains whether it must be valid or which occurred eleven months after the herein.” vacated reasons stated charged; offense for which he was (hereinafter, “opinion Record 26-27 (2) whether it error for to be upon rehearing”). retried criminal devi- charge previously ate conduct when he had On remand for a second convicted of- been lesser included again convicted of fense confinement based the same conduct.3 evidence most favorable circumstances; factual judgment driving indicated while impos- around home on Road 32 one o’clock whether the trial court erred morning, closely fol- refusing L.M. noticed car consecutive sentence and in *5 lowing own. she her Because saw red flash- to vacate confinement conviction Moore’s ing lights, police and the car assumed was a as a lesser included offense after this court road, officer, pulled upon rehearing. to the side of she so directed man, stepped out of her A she ear. whom Initially, note that the State has Moore, approached later car identified her argu no brief in opposition filed to Moore’s flashlight, if asking with a she fast knew how Nevertheless, upon appeal. ments we are going. point, she been At that had to presented bound examine the issues car, up against threw her her then into back correctly apply applicable Nash v. law. seat, began strangle the driver’s he where to (1982) Ind.App., State dragged her. She was then out of her car car, and forced into which been Moore’s had I. AN EVIDENCE OF UNRELATED parked her behind own. CRIME car, partially contin- Once inside L.M. trial, Moore’s prosecution At second struggle. get ued to While he tried to her of introduced evidence an attack anoth- car, passenger into the of the side woman, A.L., er which occurred eleven leg. closed the car door her on Moore then original after months offense. seat, got into driver’s held a knife to disputed evidence of The consisted A.L.’s throat, L.M.’s to force her to testimony regarding the sur- circumstances perform fellatio him. L.M. continued rounding rape. her A.L. testified near struggle, escaping from when Moore’s car night September o’clock on of eleven police up pulled behind the two vehicles. driving had been Route she State support To lend further to its Tipton County, pulled in and had side State also introduced evidence that Moore road saw when she a car behind her had been convicted of the of a second flashing lights bright its dim.4 A from A.L., woman, County. in Tipton man, identifying policeman, ap- himself again proached flashlight. Once Moore was convicted at- her car awith He asked conduct, tempted the trial her if she fast going, knew how she was court, perform sobriety in clear violation our if would instructions she field test. point 3. The the State also information filed in Moore’s 4. A.L. stated that one follow- car prosecution second of the criminal appeared lights blinking her to have two red identically charge deviate conduct was worded back in its window. charge. the initial The information was amend- only ed to reflect that middle initial than 0. rather D. crimes, wrongs, or acts in weapon, he blindfold- evidence of other no Although he carried Lannan v. A.L., plastic endorsement her with Indiana since its and restrained ed (1992) Ind., 1334, and car. its exited the handcuffs when she subsequent adoption in the Indiana Rules of passenger placed her Her assailant rule Evidence. That reads: car, spot. and drove another seat of his perform “(b) to force her He then Crimes, Wrongs, or Acts. Other refused, he upon him. When she fellatio crimes, wrongs, or acts Evidence of other pri- raped repeatedly, her strangled her and prove the character of admissible Although A.L. releasing her. testified or to person in action con- order to show identify her assailant be- that she could not however, formity may, therewith. It face, flashlight in her kept cause purposes, such as admissible for other ultimately indicates that Moore was record motive, intent, plan, preparation, County rape Su- Clinton convicted of identity knowledge, or absence mistake perior Court.5 accident, provided upon request accused, prosecution in a criminal ultimately admitted un- evidence provide notice ad- case shall reasonable exception Rule of Evidence der an to Indiana during trial the court vance of Moore, however, 404(b). alleges good pre-trial notice on cause excuses justification proper possessed no shown, any general nature of such of the He claims the admission the evidence. at trial.” it intends to introduce testimony impermissible charac- that the any fit into which does not ter evidence Lannan, However, did our Su- 404(b). And, in Rule because 404(b), adopt but preme Evid.R. Court was neither an issue there exception to that abrogated an additional to the nor sufficient likeness the defendant previously recognized in had rule which been assault, not have A.L.’s could L.M. which allowed the introduction Indiana: one *6 under “common scheme been introduced the crimes, wrongs, or acts prior of evidence of argues exception He plan” to the rule. or possessed a a deviate show that defendant in error. this fundamental resulted opining Indiana sexual While instinct. previous allow evidence of Additionally, the evidence fallen would henceforth even had crimes, wrongs, contemplation exceptions, or acts the he into one of enumerated Rule, exceptions contained in Federal argues, of Evidence 403 should of those Indiana Rule 404(b), court made clear that the based of Evidence the applied preclude evidence have plan” or it the “common scheme high probability that it would have intended the general rule remain jury. exception to the prejudicial impact upon the a place. agree with Moore that the evidence We admitted, improperly and rape was
AL.’s
Here,
arguments with re
counsel’s
his conviction.
reverse
was,
testimony
it
gard
indicate that
to A.L.’s
indeed,
the common scheme
to Evid.R.
admitted
determining, we look
In so
404(b).6 Extrin-
exception to Evid.R.
404(b),
plan
or
governed
admittance of
which has
discussion,
Penley
brief,
such as
cited in that
points
The cases
Moore indicates
At several
Schumpert
806,
Ind.,
(1987)
"uncharged,”
506 N.E.2d
and
unre-
v.
rape of A.L. was an
that the
(1992)
Brief,
Dist.Ind.App., 603 N.E.2d
4th
How-
Appellant’s
offense.
lated
statements,
admissibility
ever,
of evidence
treat
also
reveals
both
the record
counsel,
exception.
plan
or
It
scheme
under the common
prosecutor
which
and Moore’s own
disputed
evidence
from this that we deduce
rape of A.L.
is
convicted of the
indicate that was
possessed show that Moore
Superior
was admitted to
County
Under such
Court.
in Clinton
engage
circumstances,
plan,
and we
anal
scheme or
common
be said that A.L.'s
it cannot
However,
rather,
was,
exception.
uncharged
ysis
with
consistent
"uncharged,”
but
may
plan
scheme or
of a common
that evidence
present
case.
intent,
motive,
order to establish
be admitted in
analyses iden
purpose,
serve to invoke
among
must
extensive discussion
6. The record reveals
counsel,
employed
evidence has been
where
tical
those
prosecutor,
and the trial
Moore’s
exceptions
pursuant
enumerat
appli-
to those
admitted
proper
judge regarding the
definition
404(b).
language
Had A.L.s
plan exception.
in the
Evid.R.
ed
scheme or
cation of the common
may properly
regard
sic
Chantey
evidence
be admitted under
this
we note that
In
404(b)
per
escape
custody
Evid.R.
as
the common scheme or
police
involved an
from the
(1)
plan
subsequent
it is admitted
either:
officers’
officers
car and
prove
perpetrator by
theft of
car.
another
The court stated that
showing
proof
escape
the defendant has
prior
Kentucky
committed
of a
from
operan-
penal
other crimes with an identical modus
institution
relevant to
“intent
di;
preconceived plan
necessary
or
as “evidence of a
to do what whatever was
to remain
charged
which included the
crime.”
...
deprive
Hardin
free
and to his intent
(1993) Ind.,
v. State
129. owners of the
vehicles
the use
value of
took.”
vehicles he
See v. 262 Initially, Robinson State Ind. agree with Moore’s contention transfer, (upon 317 adopting N.E.2d 850 that no identity issue as in existed present case, rationale of the Court of in Appeals Robin by which the could State intro- (1974) 833, son v. Ind.App., State 309 N.E.2d duce evidence that he used a similar modus 850, motive, seq., holding et that opposed operandi as to commit the L.M. assault. In- intent, crime). deed, not an apprehended scene, is element of a Moore was at the Therefore, Chanley State, statement v. attempting State to introduce the (1991) Ind., 126, evidence, (citing 583 N.E.2d 129 agreed Webb that identity was not at (1983) Ind., 180, v. State 453 testimony N.E.2d which issue. A.L.’s was not admissible turn unsupported cited an identity. statement establish See v. Street State (1970) (1991) 465, Johnson v. State Ind. Dist.Ind.App., 1180, 254 260 5th 567 N.E.2d 782) (extrinsic always 1185, N.E.2d that “motive is relevant trans. denied offense testimo- may may ny aof crime” or is dispute not be not where relevant was whether an occurred, accurate reflection of law. identity rather than See also been admitted those ex- at 765. Record any we would reach an identical conclu- ceptions,
sion.
1017 disregarded. Schumpert, supra, Court it be To the perpetrator); also must see (where may be as identity is established extent that Hardin construed N.E.2d at Gibbs, means, court should exercise its inconsistent with we deem Hardin other prior pronounce- against controlling admission of crimes because it the later discretion evidence). ment.8 By imagination no stretch of the could the Likewise, disputed testimony can have been ad- evidence of Moore’s conviction pos prove be
not
construed
preconceived plan
mitted
evidence of a
preconceived plan which included an
sessed a
An un-
which included the instant offenses.
upon
assault
L.M. In order that
defendant
interrupted
requires
transaction
preconceived plan to
possessed a
commit an
conjunction
“
crimes be committed in
with each
offense,
plan
...
‘must
be so related in
other; here,
separated the
eleven months
character, time,
place
commission as
incidents and we note as well that the events
plan which
to establish some
embraced both
place
separate
took
counties.
subsequent
activity
criminal
prove
evidence was
admissible
Hardin,
supra,
charged crime.’”
and the
plan.
or
to establish a common scheme
at 129
v.
(quoting
611 N.E.2d
Malone
State
1347).
(1982) Ind.,
1339,
441 N.E.2d
specifically enu
Because intent was
plan exception
been
preconceived
has
further
purpose
for which the State
merated
Lannan,
supra,
limited
600 N.E.2d at
testimony,9
A.L.’s
we must deter
introduced
required that the crimes consti
which
properly
mine whether was
admitted for
”
“ ‘uninterrupted
an
tute
transaction.’
See
purpose.
previ
In order for
Hardin, supra at 130.
purposes
be
ous crimes to
introduced
showing
possessed
requi
that an
accused
Street,
at
supra,
567 N.E.2d
crime, he
site intent to commit the instant
court
a different incarnation of
enumerated
specifically
place
must
his intent
issue:
plan
the common scheme or
which
404(b)
exception in Evid.R.
will
“The intent
identify
focused
but rather
beyond
goes
when a
available
defendant
court,
possible
several
factors. The Street
merely denying
charged culpability
(1989) Ind.,
v.
cited Gibbs
particular
affirmatively presents a claim of
937, 939, to
extrinsic
the effect that
offenses
intent.” Wickizer
“intent, motive,
prove
be admitted
Ind.,
799. That
accused
identity by showing
defen-
purpose, or
presents a defense which denies commission
dant
other offenses with a similar
committed
suffice;
entirety
of an act in its
will not
pro-
operandi.” The court in Street
modus
affirmatively presented
intent is
order that
complex analysis:
posed a more
“extrinsic
issue,
in effect admit
as an
an accused must
state of
offense evidence introduced
show
act,
profess
but
to the commission of
mind,
intent, motive,
is,
purpose,”
contrary to that
he acted with some intent
have
does not
to show distinctive characteris-
by the
under which he
required
statute
“signature”
tics which would constitute
*8
(1994) Dist.
charged.
2d
See Fisher
branch,
identity
but must
the
Ind.App.,
similarity
some
in order to
demonstrate
defense,
police
introduced a
To
In his
Moore
admissible.
mony. parked just behind Moore’s He car. testified previous
While
have
trial
the car was identical to one
similarly,
identically,
evidence,
been committed
belonging to L.M. From this
incident,
present
to the
jury
we find the court’s
could have inferred that Moore and
Fisher,
astute
supra, apropos
observation
L.M.
had conversed
meeting
to their
to our discussion: “Minimal connection with
the shoulder of
State Route
Had
proper purpose
admitting
previous
previous
*9
rape
been prop-
conviction
excluded,
erly
sexual
does not
might
misconduct
alone make the
such evidence
have
placed
admissible.”
where has a for argues the State obtained conviction that the confinement con- Conspiracy based the commission of the attempted viction affected his conviction of act, underlying offense as overt criminal manner. deviate conduct another may subsequently pursue prosecution not a that, Specifically, Moore maintains since his underlying for at offense.” 633 N.E.2d standing, confinement conviction remained Buie, therefore, proposi- for the stands effectively precluded counsel was from re- may tion subsequently prose- that one not be jury upon questing that the be instructed an an cuted for offense which was included in confinement, lesser offense which was fac- earlier conviction. does not Buie address tually charge. Appel- included within the greater a reprose- whether offense be suggests lant’s Brief at 10 n. 1. He that his upon cuted after a reversal when a conviction attempted conviction of criminal deviate con- place. offense remains in This included inherently duct is therefore flawed. precise why, was the reason in our decision upon rehearing, we stated that in the event agree argu cannot with Moore’s We upon attempted of a new conviction crim- that it improper ment would have been for inal charge, deviate conduct the included con- request counsel to the instruction on confine finement conviction must be vacated. Indeed, ment as a lesser included offense. Here, evidentiary deficiency no ex request a such an instruction would have isted. once at Moore’s conviction of only by preserve been the method which to tempted criminal deviate conduct had been alleged. .an error like that See Nehi Bever by overturned this as one court age Dist.Ind.App., Co. v. Petri 4th law, evidence, though lacking he was (error 78, 82, N.E.2d trans. denied subject upon at charge to retrial alone giving pre or refusal of instructions must be Indeed, the behest of the State. trial). objection Since, by by served at conviction of Moore’s confinement remained argument, Moore’s we assume that such a standing appeal after does not offend the nonexistent, request we find issue principles jeopardy. only of double It was be without merit. attempted after the criminal deviate conduct jeopardy conviction valid double con Finally, sentencing pres- issue Moore surfaced; only cerns would have it was non-issue, essentially ents because we point possibility existed that hereby reverse Moore’s conviction of at- subject punishments Moore multiple tempted conduct, and its arising single from a course of conduct. Further, concomitant sentence. the issue addressing possibility, we re retrial, because, could not arise after as not- previous iterate our assessment. If Moore is ed, upon convictions both confinement upon convicted retrial of criminal lesser included offense of conduct, charged, deviate as the confinement subject criminal deviate conduct would merges to conviction become lesser includ multiple punishment for the same ed offense. It is clear as the offenses act, prohibitions against and would violate charged, only are confinement served as jeopardy. double As this is the the means which Moore possibility does not exist that two sentences commit the deviate conduct. See McDonald be imposed will after a third or that (1987) Ind., run either sentence will consecutive to the (trial sentencing did court not commit error other. attempted battery where conviction sub conviction). sumed confinement Should Accordingly, Moore’s conviction for at- stand, would, indeed, both convictions tempted criminal deviate conduct is reversed subject multiple punishment vacated; and, and ordered while convic- same occurrence. stands, yet tion for confinement this will merge remain so does with Though argument centers subsequent subjected proceed- his concerns that he been conviction further has act, multiple punishments single ings. for a also
1021 five, J., part on the of’ Moore. KIRSCH, [and] intent concurs. analysis center on the Accordingly, the must HOFFMAN, J., separate dissents with admitting the for the propriety of opinion. by proponent of the reasons set forth HOFFMAN, dissenting. Judge, evidence.12 (1993), Ind., respectfully I The threshold 626 dissent. In Wickizer v. State explained question prosecu- second court that: whether Moore’s N.E.2d conduct was barred tion for criminal deviate 404(b) “The intent Evid.R. jeopardy. by principles of double IND. goes a defendant will be available when (1982 Ed.) provides § CODE 35^1-4-3 beyond charged culpa- merely denying the part: pertinent bility affirmatively presents a claim of “(a) prosecution is if A barred there particular intent. When a defen- prosecution alleges particular contrary former of the defendant based in trial a dant intent, statement, for commission of opening by the same facts and whether witnesses, same offense and if: cross-examination of State’s case-in-chief, by his presentation or of own prosecution resulted in former by offering may respond evi- the State acquittal or a conviction of the defen- an crimes, wrongs, (A or acts to dence of dant conviction an included offense prove genuinely relevant to the extent greater acquittal of of- constitutes an at time of the intent defendant’s fense, subsequent- even the conviction is charged must aside.).” The trial court offense. ly set to admit or ex- then determine whether Moore’s conviction this Court affirmed Once depending upon such evidence clude factually included lesser offense of probative ‘its value substantial- whether confinement, acquittal that action constituted ly outweighed danger prej- unfair greater offense. See Schiro v. State of the udice, issues, of the or mislead- confusion (funda- (1989), Ind., 533 jury, of undue ing the or considerations rule jeopardy mental double that conviction delay, presentation of cumula- or needless acquit- constitutes of lesser included offense tive evidence.’” offense); greater Buie v. State tal of cf. (where Ind., present (1994), Id. 799. un- 633 N.E.2d placed opening his intent at issue his derlying overt act element offense constitutes Moore contended that victim conspira- statement. conspiracy charge, conviction party, him to follow her to a invited cy underlying offense based on commission of notify lights to her that he was his flashed subsequent prosecution for as overt act bars voluntarily offense). lost, she entered car underlying Had this Court re- an him. then initiated attack that she for a trial as to all versed and remanded rape matters, that Moore was convicted Evidence finding that sufficient evidence substantially same circumstances presented for conviction would have al- regard- directly contention refuted Moore’s greater charge retrial on the as well as lowed present case. intent any appropriate lesser offenses. Wickizer, Further, the trial court acted with- majority’s Under disagree I with the determining pro- that the admitting in its discretion analysis propriety of the evi- pursuant value of the evidence of the unrelated crime to Ind. bative dence of unrelated 404(b) substantially outweighed danger of adopted Evidence Rule which (1992), Ind., placed his prejudice intent unfair once Lannan Although I that the second requested at issue. believe admission testimony by trial Moore for the victim of for which jeopardy, the admis- purpose, mo- conduct violated double Moore was convicted to “show (404(b) Further, with Indiana's rule disagree 6 in the 1339 n. 11 consistent I with footnote intent, motive, activity admissible to that evidence of criminal majority opinion intent, motive, identity, "prove purpose, or com- purpose the common scheme are subsumed into Lannan, plan”. plan exception. 600 N.E.2d at mon scheme See *12 sion evidence of the unrelated crime was error.
I would vote to reverse conviction on jeopardy grounds.
double
Christopher PETERSON,
Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 45A03-9403-CR-108. Appeals
Court of of Indiana.
July Sept.
Transfer Denied