Moore v. State
445 N.E.2d 576
Ind. Ct. App.
1983
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*1 HVL Owners. prejudice will not dismissal a matter that over jurisdiction Commission and then rein- is dismissed a case court for “When it from this remanded to had been not been dis- stated, as if it had it stands held the ultimate finding. We further fact Waitt, (1981) Ind.App., from this Waitt remanded missed.” of a matter jurisdiction Watson, 6, citing Newkirk v. in the court is vested 429 N.E.2d purpose for such N.E. 704. have the Ind.App. and the PSC appeals resolution peaceful matter remanded to dismiss a favor and endorse authority For these reasons finding. justiciable further fact controversies. it for appro- this cause is dismissal of we conclude aside, however, Utility HVL That priate. for dismiss- argument persuasive presents dismissed, of conve- and for a certificate cause petition al of its This Although denominat- necessity. prejudice. without nience and Utility rehearing, HVL petition ed a MILLER, J., justiciable P.J., concur. longer any YOUNG, is no dismissed.

issue and the cause therefore, as one petition treat this

willWe

for dismissal. determining propri

The test for whether or dismissal is

ety voluntary of a the dismissal party opposing not the MOORE, Appellant Larry “Moe” dismissal. prejudiced Below), substantially be (Defendant (1980) Ind. Sons, Mathys, Levin Inc. & Fed 1195,citing 5 Moore’s App., Indiana, Appellee STATE Ed.1948). HVL (2d ¶ eral 41.05 Practice Below). (Plaintiff will accrue to no Utility argues prejudice of this ac from a dismissal HVL Owners

tion. . Appeals of Court cannot states HVL Owners Utility HVL District. Fourth will af- because a dismissal prejudiced be 22, 1983. they requested. all of the relief ford them April request- to intervene petition HVL Owners’ inter- relief, 1) leave to namely specific Utility’s HVL vene, 2) denying an order of convenience for certificate

application alternative, 3) an necessity, or in HVL, Inc. joining

order of convenience a certificate granting HVL, Utility Inc. As HVL necessity to out, requested relief all of the

points Utili- upon HVL predicated Owners is

HVL of a certificate pursuit continued

ty’s necessity.

convenience Utility’s re of HVL

Withdrawal effectively pro certificate has for a

quest relief the ultimate

vided HVL Owners Vol to intervene.

sought in their rights a party’s abandonment of

untary appropri is an proceeding in legal

interest Vore, subject for dismissal. State

ate This N.E.2d 205.

FACTS early

In the morning hours of December 14, 1978, Laron was driving Mallette a car Perkins, Gary with through Leslie Deborah Whitley and Delores Harris passengers. as Moore drove his car behind Mallette’s blink- ing a lights signal his to stop. Mallette to so, When he did along- Moore car his got side Mallette’s. He out of his car and a passenger, Wilson, Moses of got out Moore’s. Mallette saw a shotgun on the front seat of Moore’s car. Moore’s car u-turn, made a proceeded original direction. of couple A minutes later car again up Moore’s drove behind Mallette and him to got When Mallette out of car again, gunshots Wilson fired three hit which Mal- lette. then fired shots into Mal- striking passengers lette’s and kill- ing Delores Harris. When Wilson returned to Moore’s Mal- lette managed drive his car to a nearby Mallette, inn help where was summoned. K. Carpenter, Defender, Susan Public Perkins and Whitley saw Moore’s car drive Swinford, Defender, David Deputy Public up Wilson still in the pas- Indianapolis, appellant. senger holding shotgun. seat Pearson, E. Gen., Linley Atty. Carmen L. charged with Moore was one count of Quintana, Gen., Deputy Atty. Indianapolis, murder and of attempted three counts mur- for appellee. trial, der. At attorney Moore’s tendered gave and the court an instruction to the CONOVER, Judge. assisting on the crime of a criminal. Larry (Moore) B. Moore appeals his jury given Verdict forms for this crime were conviction on four counts of assisting a the jury. guilty It found four criminal under Ind.Code 35-44-3-2.1 assisting counts a criminal. We affirm. Moore filed an This court held ISSUES appellate Moore’s brief was insufficient and 1. Did Moore invite by tendering error rebrief the case within given by the trial court con- thirty days. Moore v. cerning the crime of a criminal? App., 426 86. N.E.2d When Moore failed to Is the evidence sufficient time, to sustain file newa brief within the requisite the convictions? this granted the State’s motion to felony 35-44-3-2 person IC reads: A D class if the assisted B, C, has a or D committed class class class person standing par- A in the relation felony; and ent, child, spouse person or to another who has felony person A class C if assisted fugitive justice committed a who, or is a from felony, has committed murder a class A if or or apprehension with intent to hinder the deadly providing weapon. the assistance was punishment person, harbors, the other conceals, or otherwise assists the com- criminal, mits class misdemean- or. the offense is: see, Id. at also, Wise 325 N.E.2d at the conviction. dismiss and affirmed tr. 428 N.E.2d 806. (1981) Ind.App., (1980) Ind.App., den’d. file belated Moore’s this note 5. granted May Here, Moore tendered the instruc AND DECISION

DISCUSSION result produced tion which *3 was I. on now The error invited Instruction complains. validly He cannot now claim Moore. must be re- his conviction argues charge improper. that was conviction on it was a crime with versed because He charged. he never also which was Further, criminal is a assisting a is not a lesser claims a criminal at offense of murder and lesser included with of the crimes which included offense State, (1982) v. tempted murder. improp- the so verdict Ind., 956, N.E.2d 429 is argues assisting a criminal er. State at- offense of murder or a lesser included Sufficiency II. of Evidence not, if it is Moore tempted murder even sufficiency on Our of review standard the due to his any invited error in verdict well known. We will look questions is tendering instruction on that crime. verdict. the most favorable the evidence agree argu- the second We with State's the weigh judge re nor We will not evidence ment. there is suffi- of witnesses. credibility well settled in Indiana that a is It probative on each element of cient evidence error and then may defendant not invite State, Bray v. crime, we will the affirm. Farley seek on that error. reversal based (1982). 443 310 N.E.2d 885; State, 318, N.E.2d (1960) 240 Ind. 163 State, Ind. 148 Matthews v. (1958) 237 is insufficient State, (1974) 334; 162 Ind. Sund N.E.2d Specif to sustain the convictions. evidence App. 320 N.E.2d 790. the failed to he ically, argues prove State disagree. State, to assist criminal. intended In Loza v. 325 transfer), (on N.E.2d 173 the Indiana Su- Generally, the crime Court held: preme to cover the situa criminal was “intended charges Issue Defendant next that IV. partici actively tion where a aggravated assault and the offense of itself, after the com pate in the crime case, battery, was not a in the instant crime the aided the criminal.” mission of lesser included offense of assault bat- Smith v. (1982) kill, tery with intent because the ele- Also, intent inferred from all can be “great bodily “disfig- ments of harm” State, of the circumstances. Best requisite aggravated urement” assault Here, outlined Ind.App., 418 N.E.2d 316. necessarily were included in battery above, in Moore drove the the facts the affidavit. This charging which twice Questions not appeal. in this reviewable shotgun was on the front seat of Moore’s in properly raised the shooting Moses Wilson was car. While James reviewable victims, re Upon Moore waited. Wilson’s (1974), 495], 307 N.E.2d State Ind. [261 Later turn v. State 59; Pinkerton (1972), driving shortly had be the car Moore been 610, 283 N.E.2d 376. The defendant not in with still fore object court’s only instruc- have passenger’s seat. The could offense, tion on lesser included leaving Wilson in inferred Moore assisted aggravated battery, included assault and and followed the scene of instruction, although his tendered refused to the inn. There sufficient victims reasons, aggravated for other included sustain evidence to battery assault and as an offense includ- Affirmed. charged. the offense J., MILLER, concurs. viction was therefore improper based on the charging majority instrument. The YOUNG, P.J., with separate dissents still nevertheless affirm his conviction be- opinion. cause the error was “invited.” YOUNG, Presiding Judge, dissenting. accept I Generally, doctrine of invited I dissent. error. when the error is so fun- damental it denies the defendant due Due process requires that a defendant be process, the invited error doctrine must give given notice of the crime or crimes with way to the fundamental error doctrine. which he is so that he can prepare agree Judge Shields it is defense. Lewis v. Ind. judge who controls trial. Wise v. App., 413 N.E.2d “Conviction of (Shields, Ind.App., N.E.2d an offense neither charged nor included J., dissenting). The trial is: within alleged the criminal conduct consti *4 responsibility with the of in- tutes a denial of due process.” McFarland structing jury as to all matters of law State, (1979) Ind.App., 384 N.E.2d necessary for consideration of their Furthermore, conviction such an verdict. This includes an instruction set- offense is fundamental error. Garcia v. ting forth offense with which the Ind.App., 433 N.E.2d defendant is and its elements. was charged Defendant with Murder court undertakes extend the Murder, and Attempted but not with As charge to include lesser included offenses sisting Criminal, which he has, supports, which the evidence it my The majority convicted. affirms his absolute, opinion, non-delegable an duty conviction, however, grounds on the that: correctly. to do so (1) Assisting a Criminal is a lesser included (Shields, J., Thus, Id. dissenting). Murder; offense of the error was giving blame for the incorrect invited. placed upon The majority cites Smith borne the defendant. proposition For these reasons I would reverse the Assisting Criminal is lesser includ- ed offense of Murder. believe Smith, reading too In broadly.

Supreme Court held that under the facts of

that case Assisting merged greater offense of Murder.

did not hold that Assisting a Criminal was a HEPP, Wayne Carolyn Hepp, and Wade necessarily included offense of Murder. An Hepp, infant, by Wayne Dale “included offense” is an offense that “is Carolyn Hepp, parents guardi- proof established the same material ans, Appellants-Plaintiffs, elements or less than all the material ele- ments required establish the commission charged.” offense Ind.Code 35-41- HAMMER, Physician, Michael 1-2. An examination of the offenses of Appellee-Defendant. Murder a Criminal reveals proof requires of the two crimes vastly Appeals Court of different elements to be established. See Fourth District. Thus, Ind.Code 35-42-1-1 and 35-44-3-2. Assisting a a necessarily Criminal Furthermore, included offense of Murder. March allege information facts suffi- put cient to Moore on notice of the crime

for which convicted. Moore’s con-