Attorney for Appellant
Kathleen M. Sweeny
Kiefer & McGoff
Indianapolis, IN
Attorneys for Appellee
Karen-Freeman-Wilson
Attorney General of Indiana
Randi E. Froug
Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
DAYON MILLER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S02-0008-CR-505
)
)
) Court of Appeals No.
) 49A02-9904-CR-289
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9805-CF-68593
ON PETITION TO TRANSFER
August 29, 2001
SULLIVAN, Justice.
Defendant Dayon Miller was charged with three counts of attempted
murder for firing at three police officers. Following a bench trial, the
trial court convicted Defendant of criminal recklessness. The Court of
Appeals panel reversed on grounds that criminal recklessness here was not a
lesser included offense of attempted murder. We find that Defendant did
not preserve the issue for appeal and affirm the trial court’s judgment.
Background
On April 30, 1998, Defendant Dayon Miller robbed a bank in
Indianapolis. Defendant got into a vehicle, led police on a high-speed
chase, and then abandoned the car. Marion County Deputy Sheriff Keven
Stickford, Deputy Ronald Knight, and Detective Mark Hess all pursued
Defendant on foot. As he attempted to escape, Defendant fired a handgun at
the three police officers. The officers shot Defendant and he surrendered.
The State charged Defendant with three counts of Attempted Murder[1]
for shooting at Deputy Stickford, Deputy Knight, and Detective Hess, three
counts of Resisting Law Enforcement,[2] two counts of Robbery,[3] four
counts of Criminal Confinement,[4] and Auto Theft.[5] 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 Defendant 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[6] as a factually lesser-included offense of attempted
murder.[7] Id. at 353. The State sought, and was granted, transfer. The
State appeals to us to reinstate the trial court’s guilty findings of
criminal recklessness, but does not take issue with the Court of Appeals’s
decision vacating the two convictions of resisting law enforcement.
Discussion
Defendant challenges his three convictions of criminal recklessness on
appeal by pointing to a series of cases in which we found that the trial
court did not err in failing to provide jury instructions for criminal
recklessness as a factually lesser-included offense of attempted murder.
See Appellant’s Br. at 8-9 (citing Wilson v. State, 697 N.E.2d 466, 447
(Ind. 1998), reh’g denied; Tunstall v. State, 451 N.E.2d 1077, 1079 (Ind.
1983); Humes v. State, 426 N.E.2d 379, 383 (Ind. 1981)). Defendant
contends that the State should not have been entitled to secure three
convictions of criminal recklessness because he was not charged with
criminal recklessness, nor was criminal recklessness (on authority of
Wilson, Tunstall, and Humes) a lesser-included offense of any offense for
which he had been charged.
Even if Defendant is correct that criminal recklessness was not a
factually lesser-included offense here,[8] we conclude that he is not
entitled to relief.
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), reh’g 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), reh’g 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,[9]
there is no fundamental error in finding Defendant 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), reh’g 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 court’s
ruling or ask for a continuance to further prepare his case. Under such
circumstances, Defendant is not entitled to relief.
Conclusion
Having previously granted transfer, we now summarily affirm the
opinion of the Court of Appeals with respect to vacating two of the three
resisting law enforcement charges, see Ind. Appellate Rule 11(B)(3) (see
now Ind. Appellate Rule 58(A)), and affirm the trial court’s judgment as to
the three convictions of criminal recklessness.
SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J., concurs in result with a separate opinion in which DICKSON, J.,
concurs.
ATTORNEY FOR APPELLANT
Kathleen M. Sweeney
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Randi E. Froug
Andrew L. Hedges
Deputy Attorneys General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
DAYON MILLER, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0008-CR-505
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-9904-CR-289
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9805-CF-68593
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
August 29, 2001
BOEHM, Justice, concurring in result.
I agree with Judge Baker that the trial court’s convictions for three
counts of criminal recklessness should be affirmed for the reason he gave:
those crimes were factually lesser included offenses and the charging
instrument put Miller properly on notice of those crimes.
I agree with the majority that Miller has not preserved the issue
because of the omission of the transcript of the trial. However, I do not
agree with the majority that waiver arose from failure to object at trial.
If this situation had arisen in a jury trial, the defendant would have had
an opportunity to object to the jury instructions on lesser included
offenses. However, in this bench trial, followed by the trial court’s
announcing a result of conviction on the lesser included offense, I do not
see at what point Miller would have had the opportunity to object. If the
trial proceeded as most bench trials, there was no point in the trial
before the result was announced at which this issue would have been raised.
And an objection after the trial court had announced its verdict would be
a useless act. The trial court had already acquitted Miller of attempted
murder, and presumably could not backtrack on that even if it were so
inclined. Nor would the trial court be willing to find the defendant not
guilty of any crime.
It seems to me that for purposes of waiver Miller’s claim here is
analogous to a claim that the evidence does not support the verdict. That
would presumably be the contention if, after hearing the evidence, the
trial court here had acquitted Miller of attempted murder but convicted of,
say, arson. There would be no need to present to the trial court the
contention that there is no evidence of use of fire before that judgment
could be appealed. Now that there is no longer any requirement that a
motion to correct errors precede an appeal, a wrong result on the record
that is raised for the first time by the verdict itself is appealable
without further trial court proceedings. That is what Miller’s contention
is here. For that reason, although I disagree with Miller on the merits of
his claim, I do not see how his issue could have been presented to the
trial court in a meaningful way, and would not find it waived for failure
to object at trial. Because I agree with the majority that Miller has
failed to preserve this issue, I concur in result.
DICKSON, J. concurs.
-----------------------
[1] Ind. Code § 35-41-5-1 (1993) and Ind. Code § 35-42-1-1 (1998).
[2] Id. § 35-44-3-3 (1993).
[3] Id. § 35-42-5-1.
[4] Id. § 35-42-3-3.
[5] Id. § 35-43-4-2.5.
[6] Criminal recklessness is defined as “A person who recklessly,
knowingly, or intentionally performs “an act that creates a substantial
risk of bodily injury to another person.” Ind. Code § 35-42-2-2(b)(1).
[7] Here, the charging information for the three separate attempted
murder counts of each Ronald Knight, Kevin Stickford, and Mark Hess read as
follows:
Dayon M. Miller . . .did attempt to commit the crime of Murder, which
is knowingly 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.)
[8] In his dissent in this case, Judge Baker makes a respectable
argument that criminal recklessness was a factually included offense of
attempted murder here. See Miller, 726 N.E.2d at 353 (Ind. Ct. App. 2000)
(Baker, J., concurring in part and dissenting in part).
[9] Compare Ellis v. State, 736 N.E.2d 731 (Ind. 2000) and Wilson, 697
N.E.2d at 477 (both holding that criminal recklessness was not a factually
included offense of attempted murder) with Miller, 726 N.E.2d at 353 (Ind.
Ct. App. 2000) (Baker, J., concurring in part and dissenting in part).