Stevens v. State

193, properly intervene came too late and was App. which held that if An determined moot. intervenor is bound statutory administrative remedy is availa- stipulations rulings all prior ble that must remedy be exhausted before he party time is made a and an intervenor resorting equitable to common law or relief. takes the case as he finds it. IAC Decatur REMC does not hold that l-l-9(d) (1979 Ed.). L. Ayres S. & Co. v. Court of Appeals grant equitable must re- Co., Indianapolis Light fact, Power & 169 lief. function this court is to 652, Ind.App. 351 N.E.2d 814. In this in- provide judicial actions, review of the stance, there was pending proceeding no findings, and orders of PSC. IC 8-1-3-7 which Apartment could intervene because (Burns Ed.) provides specifically Code the motion to strike granted. had been jurisdiction Appeals:. of the Court of “Upon appeal, determination of Finally, argues he has been Sexton jurisdiction court shall to affirm have or set denied due process. Sexton cites no author decision, ruling, aside such or order of the ity proposition, alleges for this rather he commission, part, in whole or in or remand judge administrative law misled the proceeding to the commission with in- him certain statements made. This ar Nothing structions.” within IC 8-1-3-7 re- gument argu waived since no coherent quires this grant emergency court to relief ment made there is no citation to equity and we decline to do so. Procedure, authority. Appel Ind.Rules of Order affirmed. 8.3(A)(7). late Rule BUCHANAN, J., SULLIVAN, J., C. ISSUE II concur. argues Appeals Sexton the Court of has the power grant relief and emergency

alter, amend, suspend utility’s rates and

charges after has abused its discretion. PSC

Since we have concuded PSC did not

abuse its dismissing discretion in Sexton’s

complaint, we do not address this issue. III

ISSUE argues

Sexton also if he is without

statutory jurisdiction relief this has Court to entertain equity grant his suit in and to STEVENS, Wayne Appellant emergency Although relief. Sexton cites (Defendant Below), cases in support of this argument, none stand for the proposition advanced. Indiana, Appellee STATE of State ex rel. City of Marion v. Grant (Plaintiff Below). Court, Circuit 239 Ind. N.E.2d 188 holds an individual has the right No. 2-280A41. judicial review of administrative deci Indiana, Appeals sions Court of by virtue of the Indiana state consti tution, Fourth District. regardless of whether legislature provided judicial for such review the July 1981. statute. right Sexton is not denied his Rehearing August Denied judicial review in this case.

Sexton also cites Decatur REMC v. Commission, (1971)

Public Service 150 Ind. Marion, Graves, appellant.

Robert for Gen., Sendak, Theodore L. Gordon Atty. Gen., Medlicott, Atty. Indianapo- Deputy R. lis, appellee.

YOUNG, Presiding Judge. ap-

Appellant-defendant Wayne Stevens Battery felo- peals conviction —Class jury. argues He that he ny after trial Battery convicted of should have been as a Class C deadly weapon) means (by it is a lesser included because Robbery Resulting Bodily Injury —Class agree. against We information filed him. bodily injury” information1 “Serious charged by bodily inju- language:- following ry that creates a substantial risk of death death, permanent or that causes said late of Grant WAYNE STEVENS unconsciousness, extreme disfigurement, Indiana, did ... County and State permanent protracted loss or pain, there, Burns Indi- in violation of then and 35-42-5-1, impairment body of the function of a knowingly I.C. did ana Code using organ. and member or by and David the use of force on threatening instructed, in case the Hughes striking to-wit: David Hughes, part, relevant follows: bodily injury, causing with an axe handle from the property, take to-wit: billfold

person Hughes. of David A person knowingly who or intentional- rude, ly person touches another in a inso- by legislature as established at Robbery, lent, 42-5-1, angry battery, or manner commits as follows: Ind.Code is 35— However, the of- Class B misdemeanor. intentional- person knowingly A who or if it re- fense is a Class A misdemeanor person takes from another or ly property injury any person in to other bodily sults person: from the of another presence felony .. . and a ... if it is Class C (1) threatening the use of by using or weapon. committed means of a by any person; force on or fear; by putting person felony. Robbery, commits a Class C ele- proved If each of these the State However, felony B the offense is Class battery beyond of ments of the crime with a if it is committed while armed doubt, find the de- you reasonable should A if it deadly weapon, and Class B mis- battery, of a Class guilty fendant injury results in either or serious bodily demeanor. person. other bodily any prove If the did further each State legislature at Battery, as established battery crime of the elements of the 42-2-1, is as follows: Ind.Code 35— proved beyond further a reasonable doubt person who or intentional- bodily injury, that the resulted rude, touches another in a inso- guilty defendant you should find the lent, angry Battery, manner commits A misdemeanor. battery, Class However, B the of- Class misdemeanor. the ele- each of prove If did the State fense is: battery and did the crime of ments .of it results in a Class A misdemeanor if doubt a reasonable prove beyond further person . . . bodily injury any other by means that was committed find the weapon, you should

of a battery, a Class C defendant in serious a Class if it results C felony. or if it bodily injury any other deadly weap-

is committed means of a on. Also, language instructed in the they were degree legislature distinguished The 41-1-2) (Ind.Code defin- statute 35— bodily injury resulting from an offense deadly weapon as follows: ing at 35—41-1-2 as follows: Ind.Code defined is “deadly weapon” The term “Bodily injury” any impairment meaning: law as condition, physical including physical firearm; (a) pain. a loaded or unloaded 1. This was amended at the end of trial to con- was used form to the evidence that a metal bar instead of an axe handle. device, (a) equipment, chemi- an affidavit

(b) a must in direct substance, or with cal other material unmistakable terms the offense accused; used, ordinarily (b) it is or could is if the manner the defendant used, readily there is a reasonable doubt as to what be is intended affidavit, bodily injury. offense(s) set capable causing serious are forth should resolved in favor doubt meaning on the was instructed defendant; (c) where the defend- bodily injury, given but no instruction was ant is convicted an offense not within injury. defining not stand charge, the conviction Battery Appellant’s argument, reason the is entitled committed by means limit his defense to those matters of a lesser included felony, Class which he stands accused. Robbery, resulting fense of also, See Lewis deadly use felony, Class A because 413 N.E.2d 1069. the weapon alleged by was not information defin The the statute argues State is well charging taken. The information contemplates bodily ing Robbery Class A felony, with A Robbery, Class weap injury by deadly inflicted means of a force, alleges only striking use of “to-wit: necessarily is on. We not believe that do causing injury. with bodily an axe handle” statute, apparent As is from the the case. this given Under the instruction in case legislature Robbery as the defined Battery, requires proof of felony, Class C the Penalties increase in felony. Class deadly By use of a definition Rob weapon. nature of classification as the harm or bery requires threatening using force. possibility increases or harm increases.3 The the alleges information use force. Robbery by use of a dead when committed may may by Use force or be weapon felony. bodily ly is a Class B If of a deadly weapon. instruc proper Under injury or are a result bodily allegations tions in and sufficient the regardless of the of a Robbery, use instrument, axe or met an handle A deadly is a offense Class support requirements al bar might State, Ind., felony. Cape v. deadly weapon.2 Giving the definition of a 161, 164. deadly weapon N.E.2d of a Use the words of the information their usual must separate element and a defendant acceptation, a dead allegation use of seeking to put be on notice that the State is ly weapon sufficiently is not made. weapon. prove use of a particular language used [T]he charging instrument reflects the State’s absolute discre The has the State opportuni- decision to create or avoid the stat tionary to decide under which power ty jury for the to convict the defendant charged when the utes defendant will be aof lesser offense in lieu of the crime than of more act constitutes commission decision, power charged. That vested cases, particular one offense. State State, exclusively in the must be exe- words the informa employed determining cuted the courts a less tion determine whether an offense is whether a defendant can be con- properly v. Roddy er included of crime of a lesser victed offense. State, Robbery Here chose supra. the State Roddy A felo Bodily Injury, a Class Resulting 1098, to, have 1104. As had could Judge explained ny. Garrard it chosen State Belcher v. use of a Ind.App. injury.4 weapon N.E.2d 660: cause (1979) Ind.App., Rodriquez See n. 4. 4.In the use the information was It provi- a knife and a threat to kill the victim. sentencing 3. This is also reflected language to in- such reasonable to construe aggravating mitigating sions for circum- stances. Ind.Code 35-4.1-4-7. 15(N). Therefore, information, seri Rule most we direct that On of which defendant could ous lesser offense conviction be modified consistent with this A misde Battery, convicted is a Class opinion. knowingly or meanor. The elements are We now turn to the issue of whether person another in a

intentionally touching a find support evidence sufficient causing bodily inju rude or insolent manner However, B misde only ing Battery, was instructed Class ry. Battery, as an element of meanor. The elements of Class B on use of a To felony.5 knowingly convict de are Battery, Class C misdemeanor felony, rude, Battery, fendant of a Class C in a touching person another insolent have found defendant used a jury must angry manner. Ind.Code 35-42-2-1. could not have found deadly weapon. They argue does not that a an existence of element of argues not committed. He there is insuffi because were Battery, Class C abetting the aiding cient evidence of his Therefore, comparing not so instructed. battery. commission of the Ind.Code 35- returned the elements of the verdict part; 41-2-4 states in relevant allegations within the informa who or intentional- instructions, the defendant tion and the aids, induces, or causes another greater could not be convicted to commit an offense commits that of- than B misdemeanor. Battery, Class fense, .... that remedy appears when it in appellate With our review standard of the misled the evi defendant has been hand, if there is sub- we must determine at trial or the issues dence introduced evidence that defendant stantial have not been joined under the information aided, caused induced or intentionally determined is to reverse the conviction and battery. person another to commit Where it is evident remand a new trial. that defend Here the record reveals that not been misled and the defendant has drove to the victim’s juveniles ant and three the informa joined issues under house, the street. A parking the car down modification, determined, tion have been the the was in girlfriend of defendant appropriate. rather than reversal more car, the and house. Defendant exited State, (1979) 384 Ind.App., McFarland v. peering through walked around the house 1104, 1109 cases cited therein. N.E.2d He told the the windows into the house. State, (1963) 243 Ind. See also Ritchie v. living in asleep male was three that one (Court authority 189 N.E.2d 575 to male girlfriend room and the and another modify judgment by reducing of conviction The defendant re were in the bedroom. which to that of a lesser included offense the three to the car and wanted turned evidence, under the should have the accused and “teach a juveniles to enter the house State, been Lane v. adjudged guilty.); with whom defend lesson” to the (modifica N.E.2d 1223 Ind.App., 372 visiting. Defendant girlfriend ant’s was tion to of insuffici lesser included because of the male juveniles told the that one ele ency particular the evidence on a paid had been persons inside the house ment of crime of which was con defendant Procedure, or more victed); Appellate and should have recently $250 Ind.Rules of acquiesced weapon 5. The dissent contends elude use of a because the alle- gation been waived capability and the issue has included of serious this instruction object instruc- resulting, failed to to the i. was not because Stevens e. kill. This Because, case; alleged. not only bodily injury the information did tion. we find our was text, it would be Also as no instruction use earlier stated bodily injury permit given distinguish a conviction which fundamental error to was to was which defendant an element with from that the could find includes such State, (1980) Ind.App., Lewis v. use of a as defined I.C. 1069; (b)). (deadly part McFarland v. 35-41-1-2 N.E.2d 1184. go to presented Evidence was three in and “teach a lesson.” them possession. his gun possession in his defendant had They together together. arrived and left incident, to in and while go upon returning he them After the to the when asked the three entered the place living, Before where defendant was defend- were inside. axe fire from the house, from car an handle ant set to the wallet taken they took The three then entered victim. and a metal bar. sleep- over male stood the house. One Appellant argues juveniles had no open and another kicked the couch ing on upon any- to intent rob or commit As male in the door. the bedroom also, one and no actions defendant show the door he was struck approached bedroom he for them cause a bat- intended A wal- with the metal bar. upon head infer- tery committed. reasonable person. After sev- let was from taken could from en- ence be drawn defendant’s inside, juveniles exit- eral minutes three couragement occupants of the ed the left defendant house and house be lesson defendant’s taught a They

car. returned where defendant taking failure to axe oppose time. Defendant living was at the burned house, he into the handle metal bar the wallet above described taken aware of the that a probability incident. well who aids or causes a might occur. One for the crime to be committed liable acts opinion We are the evidence is of the part knowing- principal, though sufficient to that defendant show original probable and natural plan their are another aided caused consequences Pinkler thereof. battery, B misde- commit Class Ind. N.E.2d Appellant meanor. asserts evidence presence shows no than at the scene more though Even not have Young and no conduct. affirmative intended for the victim to be hit on the (1978) Ind.App., probable pipe, with a metal such is head 1111, the court states: consequence plan natural his While scene of presence mere at the teach the of the house a lesson. occupants the crime is not itself to allow from sufficient There sufficient evidence which participation, pres- an such inference jury could find defendant may ence evi- caused, aided, be considered with other or encour- in determining guilt. dence Thus the tri- wit, aged battery, to commit a another er of participation fact infer from knowingly intentionally touch another appellant’s crime, rude, oppose angry failure to in a man- insolent or engaged companionship with another ner. therein, course conduct before Battery, Class C conviction after determining the offense. resentencing is reversed. We remand for whether there is substantial evidence Battery, B misde- for the offense of a Class verdict, probative support value to proceedings other consistent meanor and each case on its own must be reviewed opinion. this facts. MILLER, J., concurs.

(Citations omitted.) affirma- We look for tive of words or conduct either form CHIPMAN, J., opinion. dissents with acts from reasonable inferences CHIPMAN, Judge, dissenting. common be drawn. design purpose might I dissent. Rogers 267 Ind. filed reviewing After the Information house, the re-

As well as well as being present against Wayne as at Stevens record, majori- I looked around the house and in- mainder of the believe formed the conviction of juveniles as the whereabouts of Stevens’ ty’s modification persons of the I battery inside. asked the as is erroneous. Defendant a class C would affirm this conviction because Ste- indictment with assault and battery with properly preserve ques- vens failed to desires; gratify intent sexual jury tion of whether the had been jury improp- found Buttram guilty assault. ap- On erly battery by instructed on the crime of peal, Buttram argued the trial court erred means of a deadly weapon and because in instructing the jury on the crime of if even the merits of this issue had been assault because this was not a lesser includ- preserved, unlike the I majority, would find ed offense of the crime charged. The Court this Information was drawn so as to permit Appeals agreed argument, with this but battery by means of a in addressing argument petition on a lesser offense within the transfer, crime. Chief Justice Givan stated: “We further hold Court of I would further disagree add that I also Appeals finding erred in the trial with the majority’s modification of Stevens’ court had improperly instructed jury conviction. If it was permit erroneous to First, on the crime of assault. the appel Stevens to be battery by convicted of lant object failed to at trial to giving weapon, under of this the facts of that instruction. He has therefore case, appropriate remedy should be re- waived the issue on appeal. Indiana versal, not modification of this conviction. 8(B); Rules of Criminal Procedure Thom as v. 264 Ind. I. Waiver of Issue Second, N.E.2d 4. the instruction acted The Information expressly charged Ste- only to the advantage appellant robbery vens with resulting bodily injury, since it informed the jury that lesser a class A felony, proscribed by Ind.Code verdict could be returned.” 35-42-5-1. The jury was instructed it Buttram v. at supra 168-169. could find guilty robbery (class Stevens C acquiesced instructing Since felony), robbery while armed with a deadly means of a weapon (class B robbery felony), resulting weapon was an includible herein (class felony), A or the him, upon which could convict I would “includible” (class offense of B mis- hold he has waived this issue. demeanor), battery resulting in bodily inju- (class ry misdemeanor), battery by II. Includible Offense (class means of a deadly weapon felony). objected

Stevens never at trial to giving not waived Assuming had Instead, of these appellant instructions. question ef- of whether the could return a fectually acquiesced in the court’s determi- finding battery by verdict him would, nation that battery by means of a deadly means of a I never- weapon theless, was an includible offense. his conviction since I Stevens still affirm also questioned never the propriety giv- battery of which was con- believe Stevens ing these instructions in charging his motion to cor- victed of was embodied in the rect errors. Now on appeal, for the first Information. time, he claims the jury should not have upon It that a conviction a is axiomatic permitted been battery by convict him of charge upon charge made or a not not tried means of a deadly weapon because this was would be sheer of due process. denial not a lesser offense charged. of the crime Louisville, (1960) v. of Thompson City In my opinion, this issue has been waived 624, 629, 199, 206, 4 L.Ed.2d U.S. 80 S.Ct. is, therefore, and properly not before us for 654; State, (1980) Addis v. State, (1978) Ind.,

review. Buttram v. reflects the basic concept 59. “This 166; State, Ind., (1975) N.E.2d Loza v. that a cannot premise constitutional 173; Procedure, N.E.2d Indiana Rules of with- liberty incur the of for an offense loss 8(B). Criminal Rule meaningful opportunity out notice and a Ind., State, (1980) Ind.App., Buttram v. 382 defend.” McGairk v. However, N.E.2d the law appellant charged by 399 N.E.2d charge with an opinion by the Information to conflicts earlier require not does court, (1979) Ind.App., in the exact Rodriguez of the offense v. element every Carter v. Judge statute. wherein Miller inti- words Instead, 291 N.E.2d 109. been it have (1972) Ind.App., although mated that would appellants be stated words which preferable the crime to have “ meaning express armed robbery a similar ‘while convey committing with ” we knife,’ of statute. When review a language to-wit: deadly weapon, awith Information, we will construe the lan- was sufficient- charge robbery of armed light its of common guage used therein set forth in an Information Ind., Heflin understanding. the defendants: I also note each 370 N.E.2d 895. would and by using and “... did crime need a lesser every and element of on KEITH of force threatening the use were though out as it the sole spelled not be SCHIMMEL, putting to-wit: ANTHONY State, supra. Carter kill threatening to a knife to him and ” him, ... property, take . charging pro- Information The part: pertinent vided in Rodríguez that to infer in It was reasonable Information, of said “WAYNE STEVENS late when con- language Indiana, ... County and of Grant State its light of common under- strued there, then in violation of Burns did robbery standing, set forth the 35-42-5-1, I.C. did know- Indiana Code is deadly weapon. It while armed a by using ingly find the Information similarly reasonable to of force on David threatening the use battery by herein set forth the offense striking Hughes David Hughes, to-wit: a weapon striking deadly means of a since causing bodily injury, with an handle axe clearly being human with an axe handle billfold from the property, take to-wit: to come within permits an axe handle (emphasis add- Hughes.1 David deadly weapon purview the definition ed) forth in IC 35-41-1-2. set that, “Giving concludes majority prefer- been acknowledge it would have I accep- their usual words of the information bar in the case at to have able for the State tation, allegation of use of Hughes struck David charged that Stevens I is disa- weapon sufficiently made.” to-wit: an axe han- with “a gree. con- I cannot majority, dle” but unlike the which defines Ind.Code 35-41-1-2 “deadly of the term clude omission weapon provides: convicting weapon” precludes “ ‘Deadly weapon’ means: deadly weapon. means of firearm; possible certainly a loaded unloaded it is conceptually While resulting device, charge robbery chemi- equipment, battery by means in without also cal substance or other material used, ordinarily or could since deadly weapon the manner it is used, used, necessarily be is or inher- is intended to causing robbery readily capable included offense ently lesser added) injury.” (emphasis the test wheth- resulting bodily injury, con- case, allegations of fact er in this charged In opinion, when the State Ste- my charging instrument tained us- vens essential elements the commission all the ing Hughes striking him force on David parcel part of the lesser offense causing bodily injury, with an axe handle State, (1979) Roddy charged crime. this was permit sufficient to Stevens 1098; see Hash Ind.App., 394 N.E.2d guilty means of dead- found no believe, Ind., 770. We otherwise, ly weapon. To I hold out, indicating in- opinion points metal was majority bar used this Infor- evidence As to stead an axe handle. mation was later amended conform to mechanical longer rely simple, analysis on a McFarland had only been charged with at- provisions when statutory determin tempting (to-wit: to commit rob- ing whether an an offense is includible of bery), he had been convicted of consummat- within instead the charge; allega fense ed armed robbery. Clearly, his conviction tions fact Information robbery armed could not be affirmed whether, will be to determine examined be since this offense was never In allegedly cause of the manner and means ordering McFarland’s conviction to be modi- employed in the commission of the fied to attempted robbery, appel- armed crime, a “possibly” lesser included offense merely late court corrected the verdict to charge. been embraced within the Rod conform with the charge brought against bar, dy, supra. In the case at I find the Again, McFarland. this is not what battery by offense of means of a deadly majority has done herein. The 35-42-2-1(3) set weapon as forth in IC Stevens, against admits, as the majority embraced within charge, and since the included battery resulting the offense of evidence adduced at trial was sufficient misdemeanor, bodily injury, a class A support battery by a conviction of means of there was sufficient support evidence to a deadly weapon, I would affirm. .conviction for this since the record shows being that as a result of hit over the III. Modification of Conviction bar, Hughes head with a metal David lost If permit it was erroneous to Stevens consciousness, was ambulance to taken battery by convicted of means of a dead- the hospital, twenty-five and received ly weapon, his conviction should be reversed stitches on his In when my opinion, head. rather than modified to a conviction for finding returned a verdict Stevens simple battery, class B misdemeanor. guilty battery by means argued Stevens has never for such a modifi- weapon, they finding guilty were him cation, and such a remedy improper battery upon they the most severe case at bar. instructed, had were not been The cases relied upon by majority finding battery resulting him not appellant’s wherein an conviction has been in bodily injury. battery resulting in Since modified on appeal rather than reversed do bodily injury was embodied within the support the use of modification in this support would charge and the evidence Ind., case. In both Ritchie v. offense, conviction for this if it was errone- 189 N.E.2d 575 and Lane v. permit ous to to be convicted of Ind.App., appellate deadly weapon, his battery by means of a court found the was insufficient to evidence proper- conviction should be reversed and a and, support the appellants’ convictions permitted instructed should be therefore, modified the convictions to a less- degree determine what er included offense which the evidence did may have committed. support. This is not what occurred herein. The majority did con- modify Stevens’

viction because the evidence was insuffi- conviction, rather,

cient support but majority battery by

because the determined

means of a deadly weapon was not a. lesser

included offense. Ritchie and Lane do not

support such a since they only modification

sanction modifying judgment to con-

form to the evidence. McFarland v. majority which the also upon,

relies although court found that

Case Details

Case Name: Stevens v. State

Court Name: Indiana Court of Appeals

Date Published: Jul 13, 1981

Citation: 422 N.E.2d 1297

Docket Number: 2-280A41

Court Abbreviation: Ind. Ct. App.