Attorney for Appellant
Timothy J. O’Connor
O’Connor & Auersch
Indianapolis, IN
Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
QUANTEL CHAMBLISS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-9908-CR-438
)
)
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William T. Robinette, Judge Pro Tempore
Cause No. 49G03-9806-CF-090545
ON DIRECT APPEAL
April 24, 2001
SULLIVAN, Justice.
Defendant Quantel Chambliss shot two store employees in a struggle
after they tried to apprehend him shoplifting. In the course of affirming
his convictions and sentence, we find that his handgun’s serial number had
been sufficiently altered to constitute a criminal offense. We also
conclude that because the jury convicted him of theft, he suffered no
prejudice when his lawyers did not ask the jury to be instructed on the
defenses of self defense or accident.
Background
The facts most favorable to the verdict indicate that on June 4,
1998, Defendant entered the 7-11 Grocery store on Fairfield Avenue in
Indianapolis. While in the store, Defendant placed two packages of lunch
meat under his coat. A store employee, John Harkins, confronted Defendant.
Defendant dropped the merchandise on the floor and punched Harkins. At
that point, another employee, Anthony Thompson, helped Harkins to overpower
Defendant and they took him to a back room.
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
Defendant’s gun in the store. An inspection revealed that the gun’s serial
number had been filed off.
The State charged Defendant with Murder,[1] Attempted Murder, a Class
A felony,[2] Possession of a Handgun With Obliterated Serial Number, a
Class C felony,[3] Theft, a Class D felony,[4] and with Carrying a Handgun
Without a License, a Class A misdemeanor.[5] The jury convicted Defendant
on all counts except the attempted murder, instead finding him guilty of
Aggravated Battery, a Class B felony.[6] Defendant was sentenced to an
aggregate executed term of 69 years in prison.
Discussion
I
Defendant contends that the evidence was insufficient to convict him
of (a) Possession of a Handgun with Altered or Obliterated Serial Number
and (b) Theft.
In reviewing a sufficiency of the evidence claim, the Court neither
reweighs the evidence nor assesses the credibility of the witnesses. See
Garland v. State, 719 N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. We
look to the evidence most favorable to the verdict and reasonable
inferences drawn therefrom. See Sanders v. State, 704 N.E.2d 119, 123
(Ind. 1999). We will affirm the conviction if there is probative evidence
from which a reasonable jury could have found Defendant guilty beyond a
reasonable doubt. See Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).
A
Defendant first challenges the sufficiency of the evidence regarding
his possession of a handgun with an altered or obliterated serial number.
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,
manufacturer’s serial number, or other mark of identification has been
changed, altered, removed, or obliterated.”
During the course of the trial, the State’s firearms examiner
testified that when he first inspected Defendant’s 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 State’s 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. Appellant’s Br. at 11.
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.” Id.
We believe that the legislature’s 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
handgun’s serial number. Here, the State’s expert testified that the gun’s
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 Defendant’s gun was “changed, altered,
removed, or obliterated.”
B
Defendant also challenges the sufficiency of the evidence supporting
his theft conviction.
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 person’s 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.
Appellant’s 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 didn’t 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 your purse.”
Defendant’s 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....”).
II
Defendant contends that the trial court failed to consider the
mitigating factor of Defendant’s remorse in pronouncing sentence.
Appellant’s Br. at 6.
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 Defendant’s prior criminal history. The judge found Defendant’s 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 Defendant’s
claim of remorse. At the sentencing hearing Defendant did read a note to
the family of the victim.[7] Defendant’s attorney also referred to
Defendant’s 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 circumstance.
III
Defendant claims that his counsel “was ineffective because he failed
to tender jury instructions on defenses that were supported by the
evidence.” Appellant’s Br. at 13. A defendant is entitled to instruction
on any defense which has some foundation in the evidence. Smith v. State,
547 N.E.2d 817, 820 (Ind. 1989). Defendant argues that his counsel should
have tendered jury instructions for self defense and for accident.
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) counsel’s performance
fell below an objective standard of reasonableness based on prevailing
professional norms; and (2) “there is a reasonable probability that, but
for counsel’s 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, 694 (1984).
A
Defendant argues that he presented evidence of self defense and that
his counsel should have proffered a self-defense instruction.
At trial, Defendant offered the following account of the incident at
the 7-11: Defendant picked up some items at the store but did not put them
under his coat, and did not intend to steal them. Harkins then confronted
Defendant and, after a brief exchange of words, pushed Defendant. At that
time, Defendant dropped the items and swung at Harkins “for [Defendant’s]
protection” because he “didn’t know if he was going to continue to try to
put his hands on [Defendant] anymore.” At that time, Thompson grabbed
Defendant and the two employees were able to force Defendant to the back of
the store and into a back room. In the back room, the employees threw him
down on the floor and hit him when he tried to get up. When Defendant
tried to get up to sit on some milk crates, Thompson and Harkins again
started hitting Defendant and his gun fell out in the ensuing struggle and
discharged when it hit the ground. Defendant grabbed the gun after it
fired, and Harkins attempted to knock the gun out of his hand, making the
gun fire again. According to Defendant, his gun fired only accidentally.
The jury was instructed that a person has the right to use reasonable
force to prevent another person’s 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 … from 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), reh’g 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) reh’g
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 jury’s 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 jury’s 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 counsel’s failure to
proffer a self-defense instruction; the result of the proceeding would not
have been different.
B
Defendant also argues that his counsel should have requested an
instruction on the defense of accident.
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
counsel’s failure to proffer an instruction on accident. With the benefit
of hindsight, we know that the jury found Defendant guilty of theft.
Therefore, Defendant’s 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.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1998).
[2] Id. §§ 35-41-5-1 (1993) and 35-42-1-1 (1998).
[3] Id. § 35-47-2-18 (1993).
[4] Id. § 35-43-4-2.
[5] Id. § 35-47-2-1.
[6] Id. § 35-42-2-1.5. (1998).
[7] Defendant’s statement read in part:
I would like to take this time out to give my deepest apologies to the
family of Anthony Thompson and to John Harkins. I would like you all
to know that I’m truly sorry for what happened and for what your
families are going through. …[E]very day I truly regret that because
of my involvement in this incident a life is gone.
(R. at 658-59.)