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03/28/88 RODNEY H. PEAK v. STATE INDIANA

Filed: March 28, 1988.

RODNEY H. PEAK, DEFENDANT-APPELLANT
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE



APPEAL FROM THE ST. JOSEPH SUPERIOR COURT, The Honorable William Albright, Judge, Cause No. 25985

Hoffman, J., Garrard, P.j., and Staton, J., concur.

Author: Hoffman

HOFFMAN, J.

Rodney H. Peak brings this appeal from his conviction of Class B Felony Attempt after a jury trial in St. Joseph County Superior Court. The State presented testimony at trial by June Dasher, who testified that on October 2, 1986, she observed three young men kicking at a back door at a house located at 225 Gladstone in South Bend. David Dant testified that he lived at 225 Gladstone and was called home from work on October 2, 1986 to find that his back door had been kicked in at the bottom and that muddy footprints were on the door. Randall Madison and George Erwin testified that on October 2, 1986, the two of them and Rodney Peak went to the house on 225 Gladstone, discussed breaking into the house and all three kicked at the back door in an unsuccessful attempt to break into the house.

Peak presents six issues for review:

(1) whether the trial court erred by reading to the jury State's Instruction No. 4 on inferring knowledge or intent from the facts and circumstances of the case;

(2) whether the trial court erred by reading to the jury State's Instruction No. 6 on accomplice testimony;

(3) whether the trial court erred by reading to the jury State's Instruction No. 7 on the presumption of innocence;

(4) whether the trial court erred in refusing to give Peak's Instructions Nos. 3 and 4 on included offenses;

(5) whether the trial court erred in refusing to give Peak's Instruction No. 7 that the jury is not compelled to draw inferences; and

(6) whether the verdict of the jury was supported by sufficient evidence.

Peak's first allegation of error is that the trial court erred by reading to the jury State's Instruction No. 4 on inferring knowledge or intent from the facts and circumstances of the case. State's Instruction No. 4 reads:

"Knowledge or intent may be inferred from the facts and circumstances presented in each case."

The purpose of an instruction is to inform the jury of the law applicable to the facts, so the jurors may comprehend the case accurately and arrive at a just, fair and correct verdict. Taylor v. State (1986), Ind., 495 N.E.2d 710, 713. The instruction of the jury is within the ...


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