Alexander v. State
| Decision Date | 18 December 1973 |
| Docket Number | No. 3--173A2,3--173A2 |
| Citation | 158 Ind.App. 698,40 Ind.Dec. 96,304 N.E.2d 329 |
| Parties | Willie ALEXANDER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Paul J. Giorgi, Merrillville, for appellant.
Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal by defendant-appellant Willie Alexander (Alexander) from a conviction of theft from the person.
On February 26, 1970, an affidavit was filed charging Alexander with the crimes of robbery and armed felony. Such affidavit was amended on May 18, 1970, to charge Alexander solely with the crime of robbery. Defendant pleaded not guilty and demanded a jury trial, which resulted in a verdict of guilty of the lesser included offense of theft from a person. Alexander was sentenced to not less than one nor more than ten years to the Indiana State Prison. Appellant timely filed a motion to correct errors which was overruled, and this court subsequently granted his petition to file a belated appeal.
The facts from the record before us most favorable to the State are as follows:
On February 25, 1970, an individual entered a Gulf Service Station in Gary, Indiana, at approximately four o'clock in the morning to buy a package of cigarettes. When William White (White), the attendant, turned to hand the cigarettes to the customer, he drew a gun and stated that it was a 'stickup.' White's pockets were emptied and two dollars and a little change were taken, together with a small gun carried by White. While the robbery was in progress, a Gary City Police squad car pulled into the service station. The robber fled when he saw the police car but the two policemen gave chase; one officer, never losing sight of the robber, was finally able to apprehend Alexander. He was frisked and was found to be carrying a .22 caliber revolver belonging to White and two dollars and some change in his pocket. The police returned him to the service station immediately, whereupon White positively identified him as the robber. Alexander was then arrested for the robbery.
The sole issue presented for review by this appeal in whether the verdict of the jury is sustained by sufficient evidence. Where the sufficiency of the evidence is an issue on appeal from a criminal conviction, only the evidence most favorable to the State, and the reasonable inferences therefrom, may be considered. Upon consideration of such evidence and inferences, if there is substantial evidence of probative value establishing each element of an offense beyond a reasonable doubt, the verdict will not be disturbed. However, the court will not weigh the evidence nor determine the credibility of the witnesses. Burton v. State (1973), Ind., 292 N.E.2d 790, 801; Shelton v. State (1972), Ind., 290 N.E.2d 47, 50; Jackson v. State (1971), Ind., 275 N.E.2d 538, 539.
Alexander was convicted of theft from the person pursuant to IC 1971, 35--17--5--3, Ind.Ann.Stat. § 10--3030 (Burns Cum.Supp.1973), which states, in pertinent part:
'A person commits theft when he (1) knowingly:
(a) obtains or exerts unauthorized control over property of the owner; * * * and (2) * * *
(a) intends to deprive the owner of the use or benefit of the property; * * *.'
Under this statute, the State has the burden of proving beyond a reasonable doubt that Alexander (1) knowingly, (2) obtained or exerted control over the money and handgun allegedly taken, (3) without authorization from the Gulf Oil Company or White, (4) with an intent to deprive permanently the owner or person in possession of such property from the use or benefit thereof. Sutton v. State (1972), Ind., 279 N.E.2d 802, 803.
Pursuant to his contention that there is insufficient evidence to sustain his conviction, Alexander asserts that the second, third and fourth elements stated above were not proven by the State. He also attacks the positive identification made by White as being unreliable due to the short duration of the confrontation between the robber and White.
Concerning the second element stated above, obtaining or exerting control over the money and handgun allegedly taken, Alexander contends that because the State failed to introduce the items taken into evidence at trial, the corpus delicti of the theft offense was never proven. He relies on Keiton v. State (1968), 250 Ind. 294, at 301, 235 N.E.2d 695, at 698--699 in which our Supreme Court stated:
'We are of the opinion * * * that in all future cases, unless there be good reason, on account of weight, size and availability for not introducing such evidence as a part of its case in chief, as a part of the proof of the corpus delicti, the failure of the State to introduce such evidence as an exhibit or exhibits shall be sufficient reason to require the trial court, on motion of the defendant, to strike from the record all evidence relative thereto.' (Emphasis supplied.)
Our Supreme Court subsequently held in Shropshire v. State (1972), Ind., 279 N.E.2d 219, at 221, that the Keiton decision is applicable only where the defendant makes a motion to strike in the trial court. His failure to so move waives his right to contest the issue of the State's failure to prove the corpus delicti on appeal. Therefore, although the State erred by failing to introduce into evidence either the money or gun over which Alexander was accused of obtaining or exerting unauthorized control, the record reveals that no motion to strike from the record all evidence relative thereto was made by him at trial. As a result, he has waived his right to raise this error on appeal.
Concerning the third and fourth elements of the crime, lack of authorization from the Gulf Oil Company or White, and intent to deprive the owner or person in possession of such property from the use or benefit thereof, Alexander contends that the evidence at trial failed to prove ownership of the money or handgun. In support of this, he refers to the following testimony for the State given by White, the service station attendant, on direct examination:
Alexander contends that the foregoing record shows that the State failed to prove ownership of the property.
IC 1971, 35--17--5--13, Ind.Ann.Stat. § 10--3040 (Burns Cum.Supp.1973), under which Alexander was convicted, defines 'owner' as follows:
"Owner' means a person, other than the actor, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the actor has no authority to obtain or exert the complained of control over the property.'
White specifically testified that the property was in his pockets at the time of the robbery--thereby making him the rightful possessor of such property. The following testimony of White, upon direct examination, clearly proved that he was in possession of the money and handgun which Alexander took from him during the robbery:
'
And, further, upon cross-examination:
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