Attorneys for Appellee
Attorney General of Indiana
Randi E. Froug
Andrew L. Hedges
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
August 29, 2001
The State charged Defendant with three counts of Attempted Murder
See footnote for shooting at
Deputy Stickford, Deputy Knight, and Detective Hess, three counts of R
esisting Law Enforcement,
two counts of Robbery,See footnote four counts of Criminal Confin
See footnote and Auto Theft.See footnote
After a bench trial held on January 7, 1999, the trial court found
Defendant guilty of all charged offenses except for the attempted murder charges.
Instead, the trial court found D
efendant guilty of three counts of criminal recklessness
as factually lesser included offenses of attempted murder. The trial court sentenced
Defendant to serve a total of 39 years in the Department of Correction.
The Court of Appeals unanimously vacated two of the three convictions of resisting law enforcement. See Dayon Miller v. State, 726 N.E.2d 349, 352 (Ind. Ct. App. 2000). However, by a 2-1 split vote, the court held that the trial court erred when it found Defendant guilty of criminal recklessness See footnote as a factually lesser-included offense of attempted murder.See footnote Id. at 353. The State sought, and was granted, transfer. The State appeals to us to reinstate the trial courts guilty findings of criminal recklessness, but does not take issue with the Court of Appealss decision vacating the two convictions of resisting law enforcement.
Even if Defendant is correct that criminal recklessness was not a factually lesser-included
See footnote we conclude that he is not entitled to r
Defendant did not provide us with a transcript of the January 8, 1999,
hearing in which the trial court found him guilty on three counts of
criminal recklessness instead of three counts of attempted murder. (See Chronological Case
Summary, R. at 13-14, 290.) Defendant gave no explanation as to why
the proceeding was missing from the record. Defendant, as the appellant, has
the responsibility to present a sufficient record that supports his claim in order
for an intelligent review of the issues. See Garrett v. State, 714
N.E.2d 618, 622 (Ind. 1999) (citing Turner v. State, 508 N.E.2d 541, 543
(Ind.1987), rehg denied); Smith v. State, 422 N.E.2d 1179, 1182 (Ind. 1981).
See also Ind. Appellate Rule 7.2(B) (see now Ind. Appellate Rules 2 and
27). We have held that without submitting a complete record of the
issues for which an appellant claims error, the appellant waives the right to
appellate review. See Smith, 422 N.E.2d at 1182; Rondon v. State, 534
N.E.2d 719, 729 (Ind.), cert. denied, 493 U.S. 969 (1989). The record
does contain the transcript of the February 5, 1999, sentencing hearing at which
the court described criminal recklessness as a lesser-included offense of attempted murder.
But such ruling had already been made almost a month earlier at the
January 8th hearing. Without a transcript of the January 8th hearing, we
are unable to discern whether (1) the trial court sua sponte found Defendant
guilty of criminal recklessness and Defendant objected or failed to object; or (2)
the prosecutor amended the information reducing the charges and Defendant objected or failed
to object; or (3) the Defendant requested that criminal recklessness be considered in
lieu of attempted murder. As to the third scenario, it should go
without saying that if Defendant asked for the court to consider criminal recklessness
as a lesser-included offense, he cannot claim reversible error on appeal.
If, on the other hand, the first or second scenarios occurred, Defendant would
not have properly preserved the issue for appellate review. Failure to object
waives any error for review.
See Mitchell v. State, 726 N.E.2d 1228,
1235 (Ind. 2000), rehg denied; Miller v. State, 716 N.E.2d 367, 370 (Ind.
1999). Suggesting recognition that no objection was made, Defendant asserts that the
trial court committed fundamental error in finding that criminal recklessness was a lesser-included
offense of attempted murder. The fundamental error doctrine permits a reviewing court
to consider the merits of an error not properly preserved for appeal.
See Miller, 716 N.E.2d at 370. Even if the trial court was
incorrect in ruling criminal recklessness as a lesser-included offense of attempted murder,
See footnote there
is no fundamental error in finding D
efendant guilty of criminal recklessness. See
Wright v. State, 658 N.E.2d 563, 567-68 (Ind. 1995) (Even had the offense
on which the trial court instructed the jury in this case been neither
inherently nor factually included in the offense charged, it was not fundamental error
to convict [the defendant] of that lesser offense.). This is particularly true
here where Defendant makes no claim on appeal that there was insufficient evidence
to support his convictions for criminal recklessness.
The way in which we analyze a more familiar claim helps illustrate
why Defendant is not entitled to relief here. Occasionally, a prosecutor will
seek permission to conform charges to the evidence presented during trial such that
a jury is given the opportunity to convict on a lesser-included offense as
opposed to those originally charged. See Ind. Code § 35-34-1-5(c) (allowing amendments that
do not prejudice the substantial rights of the defendant); see also Sides v.
State, 693 N.E.2d 1310, 1313 (Ind. 1998). If the amended charges are
not lesser included of those originally charged, the defendant is entitled to object
to the request, and if overruled, seek a continuance to prepare his case
in light of the amendments. See Haack v. State, 695 N.E.2d 944,
951 n.5 (Ind. 1998); Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1997),
rehg denied; Davis v. State, 714 N.E.2d 717, 722 (Ind. Ct. App. 1999),
transfer denied; see also Ind. Code § 35-34-1-5(d). But if the defendant
remains silent and the jury convicts him on the amended charge, the defendant
is not entitled to appellate relief. See Wright, 690 N.E.2d at 1104.
The present case is analogous. Defendant stands convicted of offenses which
arguably are not lesser included offenses, but he apparently did not object to
the courts ruling or ask for a continuance to further prepare his case.
Under such circumstances, Defendant is not entitled to relief.
SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J., concurs in result with a separate opinion in which DICKSON, J., concurs.
Kathleen M. Sweeney
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Randi E. Froug
Andrew L. Hedges
Deputy Attorneys General
DICKSON, J. concurs.
Dayon M. Miller . . .did attempt to commit the crime of Murder,
which is kno
wingly or intentionally kill another human being, that is [the victim],
by engaging in conduct, that is: firing a handgun at and toward the
person of [the victim], with the intent to kill [the victim], which conduct
constitute a substantial step toward the commission of said crime of Murder.
(R. at 29.)