Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
April 24, 2001
In the back room, the three began struggling and fighting again. Defendant
then pulled out a handgun and fired it several times. Harkins was
struck in the leg. Subsequently, as Defendant and Thompson were struggling with
each other, Defendant shot Thompson in the chest. Defendant ran toward the
front of the store, pursued by Thompson and a third store employee.
Thompson then pulled out a gun and shot Defendant in the leg.
Thompson collapsed and eventually died. The police found Defendants gun in the
store. An inspection revealed that the guns serial number had been filed
The State charged Defendant with Murder,
Attempted Murder, a Class A felony,
of a Handgun With Obliterated Serial Number, a Class C felony,
Class D felony,
and with Carrying a Handgun Without a License, a Class
The jury convicted Defendant on all counts except the attempted
murder, instead finding him guilty of Aggravated Battery, a Class B felony.
Defendant was sentenced to an aggregate executed term of 69 years in prison.
Indiana Code § 35-47-2-18 (1993) provides in relevant part, [n]o person shall
possess any handgun on which the name of the maker, model, manufacturers serial
number, or other mark of identification has been changed, altered, removed, or obliterated.
During the course of the trial, the States firearms examiner testified that when
he first inspected Defendants weapon, the serial number was illegible. The examiner
also testified that he was able to restore the serial number by smoothing
the area with sandpapers and using cleaning acids.
Defendant argues that the serial number was not obliterated, altered, or removed, as
required by Indiana Code § 35-47-2-18, because the States expert was able to
restore the number. Defendant therefore argues that Indiana Code § 35-47-2-18 requires
that the serial number be eliminated without a trace. Appellants Br. at
The primary rule in statutory construction is to ascertain and give effect to
the intent of the legislature. Bartlett v. State, 711 N.E.2d 497, 501
(Ind. 1999) (citing Smith v. State, 675 N.E.2d 693, 696 (Ind.1996)) (citing in
turn Freeman v. State, 658 N.E.2d 68, 70 (Ind.1995)). The best evidence
of legislative intent is the language of the statute itself, and all words
must be given their plain and ordinary meaning unless otherwise indicated by statute.
We believe that the legislatures use of the verbs change, alter, obliterate, and
remove indicate that its intent in enacting this statute was to criminalize any
material effort to transform or obscure a handguns serial number. Here, the
States expert testified that the guns serial number had been ground, filed, and
had some kind of abrasion device applied to it. The result was
that the serial number was materially transformed or obscured. This evidence is
sufficient for a jury to find that the serial number on Defendants gun
was changed, altered, removed, or obliterated.
The theft statute, Indiana Code § 35-43-4-2 (1993), reads in relevant part, [a]
person who knowingly or intentionally exerts unauthorized control over property of another person,
with intent to deprive the other person of any part of its value
or use, commits theft. Unauthorized control refers to control that is [w]ithout
the other persons consent
or in a manner or to an extent
other than that to which the other person has consented. Ind. Code
§§ 35-43-4-1(b)(1) and 35-43-4-1(b)(2) (1993).
Defendant argues that he never exerted unauthorized control over the lunch meat.
Harkins testified that Defendant took two packages of lunch meat and tucked them
under his coat. However, Defendant argues that he was within the store
when he did so, and had not passed by the cash register.
Appellants Br. at 12 (citing R. at 141.) When Harkins confronted Defendant,
Defendant dropped the lunch meat on the floor. The Defendant argues that
he never had unauthorized control because he didnt attempt to exit the store
with the lunch meat, and he terminated control when asked to do so.
Appellants Br. at 13.
The State presented sufficient evidence from which a jury could find that Defendant
exerted unauthorized control over, and therefore theft of, the lunch meat. A
witness who spoke with Defendant soon after he fled from the 7-11 testified
that Defendant stated that he (Defendant) stole [lunch meat] and he got caught.
The State also presented evidence that Defendant took the meat, put it inside
his jacket, and only took it out after an employee confronted him.
An employee added in his testimony that there was a sign in the
store that read, do not put things in your coat pockets or in
Defendants statement and the concealment of the lunch meat was sufficient evidence from
which a jury could infer unauthorized control, and therefore theft. See Hartman
v. State, 164 Ind. App. 356, 359, 328 N.E.2d 445, 447 (1975) (testimony
that [the defendant] was discovered near the door with a shirt he
had not paid for, hidden under his jacket permits an inference that he
was in the process of leaving the store, without paying for the shirt,
and was exerting unauthorized control over the property....).
When sentencing a defendant, the trial court may consider certain aggravating and mitigating
circumstances. See Ind. Code § 35-38-1-7.1. The trial court is not
obligated to explain why it did not find a factor to be significantly
mitigating. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997). Indiana
law, however, mandates that the trial judge not ignore facts in the record
that would mitigate an offense, and a failure to find mitigating circumstances that
are clearly supported by the record may imply that the trial court failed
to consider them properly. Id.
The judge explained that he found as aggravating circumstances the number of shots
fired, the fact that the shots were fired in a public place where
there were many people, the nature and circumstances of the crime, and Defendants
prior criminal history. The judge found Defendants young age as a mitigating
circumstance and stated that the aggravators outweighed the mitigators.
We find that the trial court did not err in disregarding Defendants claim
of remorse. At the sentencing hearing Defendant did read a note to
the family of the victim.
See footnote Defe
ndants attorney also referred to Defendants remorse
during the sentencing hearing. However, the court was not required to find
Defendant to be remorseful or, if it did, sufficiently remorseful to warrant mitigating
the sentence. There is some evidence that Defendant was remorseful, but the
judge did not abuse his discretion in not recognizing it as a mitigating
A criminal defendant has the right to effective assistance of counsel to prepare
his defense. U.S. Const. Amend. VI. To prove ineffective assistance of
counsel, Defendant must prove that (1) counsels performance fell below an objective standard
of reasonableness based on prevailing professional norms; and (2) there is a reasonable
probability that, but for counsels unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
the confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 687,
The jury was instructed that a person has the right to use reasonable
force to prevent another persons escape when there is probable cause to believe
the other person committed a felony. The jury was also instructed that
a storekeeper has a right to detain a shoplifter. Defendant argues that
the jury should have also been instructed on the defense of self defense.
Self-defense is recognized as a valid justification for an otherwise criminal act.
Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999). A person is
justified in using reasonable force against another person to protect himself
what he reasonably believes to be the imminent use of unlawful force.
Ind. Code § 35-41-3-2(a) (1993). Self defense is established if a defendant
(1) was in a place where the defendant had a right to be;
(2) did not provoke, instigate, or participate willingly in the violence; and (3)
had a reasonable fear of death or great bodily harm. See Wallace
v. State, 725 N.E.2d 837, 840 (Ind. 2000); Jordan v. State, 656 N.E.2d
816, 817 (Ind. 1995), rehg denied.
A defendant is only entitled to instructions that are supported by the evidence.
See Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998) rehg denied;
Sweany v. State, 607 N.E.2d 387, 389 (Ind. 1993). The self-defense statute
restricts the use of self defense, stating, a person is not justified in
using force if
he is committing, or is escaping after the commission
of, a crime. Ind. Code § 35-41-3-2(d)(1) (1993). As a result,
if Defendant committed theft, he was not entitled to a self-defense instruction here.
Cf. Mays v. State, -- N.E.2d --, No. 49500-0002-CR-92, Slip Op. at
5 (Mar. 13, 2001) (requiring a nexus between the two crimes for
the restrictions to apply). Prior to the jurys verdict, it had not
been determined whether Defendant had committed theft. Therefore, Defendant was at
least arguably entitled to a self-defense instruction, but any such instruction should have
been conditioned on the jury finding that Defendant acted lawfully. In such
circumstances, a jury should be instructed that it may consider self defense, but
only if it does not find the defendant guilty of theft.
The jurys determination that Defendant committed theft indicates that any self-defense instruction would
have been unavailing. Defendant committed a crime by taking the lunch meat,
and any actions that he took to escape may not be considered under
the self-defense statute. As such, Defendant did not suffer prejudice from defense
counsels failure to proffer a self-defense instruction; the result of the proceeding would
not have been different.
The defense of accident excuses conduct that would otherwise be prohibited. A
valid accident defense requires that: (1) The conduct must have been unintentional,
or without unlawful intent or evil design on the part of the accused;
(2) the act resulting in injury must not have been an unlawful act;
and (3) the act must not have been done recklessly, carelessly or in
wanton disregard of the consequences. See Wrinkles v. State, 690 N.E.2d 1156,
1161 (Ind. 1997), cert denied, 525 U.S. 861 (1998); Case v. State, 458
N.E.2d 223 (Ind. 1984).
For reasons similar to those regarding the self-defense instruction, see supra Part III-A,
we find that Defendant was not prejudiced by counsels failure to proffer an
instruction on accident. With the benefit of hindsight, we know that the
jury found Defendant guilty of theft. Therefore, Defendants attempt to escape from
the store involved unlawful intent, and defendants are not entitled to instructions on
accident for actions that involved unlawful intent. At best, Defendant would have
been entitled to an accident instruction that was conditioned on the jury finding
that he did not commit theft. But because he committed theft, the
jury would not have been able to consider accident, and the instruction, if
given, would have had no effect on the outcome of the trial.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.