Babbs v. State, 482S155

• Decision Date: 03 August 1983
• Docket Number: No. 482S155,482S155
• Citation: 451 N.E.2d 655
• Parties: Michele BABBS a/k/a Ivory Young, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 655

451 N.E.2d 655

Michele BABBS a/k/a Ivory Young, Appellant, v. STATE of Indiana, Appellee.

No. 482S155.

Supreme Court of Indiana.

Aug. 3, 1983.

Glenn S. Vician, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Michele Babbs, was convicted of robbery, a class B felony, and battery, a class C felony. For these convictions he received consecutive sentences of fifteen and six years. The information for robbery reads in pertinent part as follows:

"Ivory Young, a/k/a Michele Babbs did ... knowingly and intentionally take property ... from ... Jack J. Plotkin, and in the commission of the said taking ... did ... put ... Jack J. Plotkin in fear...."

The first issue presented is whether the State produced evidence to show that Plotkin was placed in fear. On this basis the defendant moved at the close of the State's case-in-chief for a directed verdict on the robbery count. The motion was denied. Defendant then presented evidence in defense. The propriety of this ruling is not presented on appeal in light of the choice of the defense to present evidence. Miller v. State, (1981) Ind., 417 N.E.2d 339. However the same issue is presented on appeal in a challenge to the sufficiency of the evidence to sustain the verdict.

In determining the question of the sufficiency of evidence to convict we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.

The facts taken in the light most favorable to the verdict showed that Plotkin was the manager of the Sax Shoe Store in Gary, Indiana, and was alone there when defendant entered. Defendant then pulled a handgun and informed him this was a "stick-up." Defendant removed from Plotkin's person his ring and watch. Plotkin then noticed a second robber who also wielded a gun. Defendant ordered Plotkin to lie down; he bound him and took his wallet. Then he and his accomplice rummaged through the office and desk drawers searching for money.

The robbery was interrupted when Officer Finnerty entered the store. The defendant fired his gun at Finnerty, who made a quick dive for cover so that the bullet only grazed his arm. The defendant escaped but was within one-half hour apprehended on a public bus.

Pursuant to the information for robbery, the State was obliged to prove that Plotkin was put in fear. Defendant's insufficiency claim is based upon the fact that Plotkin did not testify that he was in fear, or words to that effect. Regarding that element of the offense this Court has said:

"If the State is proving that appellant put the victim in fear, obviously the victim's state of mind is a material issue. However, there is no requirement that the victim testify that he was put in fear. Rather, it is enough that there is evidence of probative value from which the jury could infer that the victim surrendered his property because he was put in fear." Roberts v. State, (1976) 265 Ind. 439, 442, 355 N.E.2d 243, 244.

A reasonable inference...