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Chambliss v. State

Court: Indiana Supreme Court
Date filed: 2001-04-24
Citations: 746 N.E.2d 73
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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).



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)     Supreme Court No.
)     49S00-9908-CR-438
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      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.)