¶1dissenting.
¶2I dissent to the majority opinion wherein it found the giving of Instruction No. 5 was reversible error. The majority is concerned with the second sentence of the instruction, which states: “It is also the law that a defendant is responsible for the acts of his co-defendants as well as his own acts.” The instruction follows with, “Any act of one is attributable to them all.” The instruction clearly states the law although it is true the second sentence might have been more artfully drawn. Taken as a whole, the instruction is legally correct and properly refers to the facts presented to the jury.
¶3This court found in Metcalf v. State (1978), 268 Ind. 579, 580, 376 N.E.2d 1157, 1158:
Although the evidence conflicts as to whether the defendant was the one who pulled the trigger, one eyewitness testified he did. This alone is sufficient to support the verdict. Additionally, under the accessory statute, it is sufficient if the evidence shows that an accused aided another in the commission of a crime. It is not necessary that an accomplice act out each element of an offense, for the acts of one accomplice are imputed to the other. Goodlow v. State (1973), 260 Ind. 552, 297 N.E.2d 803; Tessely v. State (1978) [267 Ind. 445] 370 N.E.2d 907.
¶4We have further held:
An accomplice is criminally responsible for all acts committed by his confederates which are done in the probable and natural consequence of the common plan. Harris v. State (1981), Ind., 425 N.E.2d 154, 156; Ind.Code Ann. § 35-41-2-4 (Burns 1985). Evidence indicating the accomplice acted in concert with those who physically committed the elements of the crime is sufficient to support a conviction on the accessory theory. Fox v. State (1986), Ind., 497 N.E.2d 221, 227.
¶5Moredock v. State (1987), Ind., 514 N.E.2d 1247, 1249; Stroud v. State (1983), Ind., 450 N.E.2d 992, 996.
¶6The apparent weaknesses in Instruction 5 to which the majority objects are: 1) that the jury was instructed the defendant is responsible for his co-defendant’s acts when there was no co-defendant, and 2) that the sentence does not limit the responsibility to those acts committed during the perpetration of this crime. Although it might have been more appropriate to have used the word accomplice, or confederate the use of the word co-defendant certainly *501could not be calculated to so confuse the jury that it presents reversible error. Furthermore, the whole instruction makes it clear the responsibility extends to the acts of the confederate in the commission of the crime and not at some other time.
¶7The giving of the instruction clearly is supported by the evidence. The victim, Fuller, was shot during the attack; there was more than sufficient evidence to establish this fact. Fuller testified that two men came out of the bushes and began to beat him. That he is unable to state what the second person did is understandable since Small was hitting him with a brick. It is also understandable, under these circumstances, that he did not hear a shot or feel the bullet strike him during this encounter. When the dust had settled it was clear he had been severely beaten in the face with a brick, had a bullet wound as a result of someone shooting him, and had been robbed. The question is, who did the shooting? Instruction No. 5 accurately tells the jury that if either of the two shot Fuller, that act can be attributed to Small under the accessory theory of liability. There is absolutely no inference to be drawn from the evidence Fuller was shot at some other time by someone else not involved in this incident.
¶8In addition, the importance of this particular instruction is lessened by the fact Fuller suffered injuries which Small clearly caused. The majority seems to feel this should be reduced to a class C felony, apparently finding the injury from the brick did not amount to “serious bodily injury.” The evidence showed Fuller’s glasses were smashed and driven into his flesh in and about the eye. Fuller suffered intense physical pain from the injuries which resulted in the breaking of the orbital bone below his eye. This broken bone allowed the blood from the eye to drain into the Fuller’s sinus cavity and he coughed up blood he had swallowed. When new glasses were made for him, a stronger prescription for his right eye was required due to impaired vision from the attack. These injuries, independent of the gunshot wound, clearly meet the definition of serious bodily injury and support a conviction of robbery as a class A felony. I see no reversible error in the giving of this instruction and would affirm the trial court.
¶9GIVAN, J., concurs.