Bullock v. State, No. 2-876A325

Docket NºNo. 2-876A325
Citation382 N.E.2d 179, 178 Ind.App. 316
Case DateNovember 20, 1978
CourtCourt of Appeals of Indiana

Jan E. Helbert, Hall, Render & Helbert, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

The Defendant-appellant (Bullock) was charged by information and convicted by a jury of attempted commission of a felony (robbery) while armed. 1

The alleged errors argued by Bullock are:

(1) the verdict is not sustained by sufficient evidence in that the State failed to prove Defendant was at least sixteen years of age;

(2) the trial court erred in allowing the State to introduce a .45 caliber gun into evidence, there being no connection between the gun and the robbery;

(3) the trial court erred in allowing the State to reopen its opening statement after the State failed to state a prima facie case;

(4) the trial court erred in allowing the State to reopen its case in chief and call a witness after it had rested;

(5) the trial court erred in allowing the State to present evidence of Defendant's whereabouts at the time of the crime, inconsistent with where he claimed to be in his notice of alibi;

(6) the trial court erred in giving certain preliminary and final instructions.

We affirm.

The evidence most favorable to the State reveals that shortly after midnight on January 15, 1976, Bullock entered Five Hundred Liquor, Incorporated at 2857 N. Central, Indianapolis, Indiana, and asked Alfred Caldwell, an employee, for some wine. While Caldwell was ringing up the sale, Bullock drew a .45 caliber automatic pistol and demanded that Caldwell give him the money in the cash register. Caldwell backed into an adjacent room and phoned the police, giving a description of Bullock which included the color and type of his clothing and the fact that he wore a mustache and goatee. Bullock fled without taking any money. Approximately thirty minutes after the attempted robbery, the police apprehended and arrested Bullock, who matched the victim's description, about three blocks from Five Hundred Liquors, at 2906 N. Park. Although no weapon was found on Bullock's person, a fully loaded .45 caliber automatic pistol was recovered from a trash can at that location. Caldwell identified Bullock both at the scene of the arrest and at the trial.

I. Sufficiency of the Evidence.

Bullock first challenges the sufficiency of the evidence, claiming that the State failed to prove every element of attempted robbery in that it failed to prove the Defendant was over sixteen years of age. Examination of the record reveals that the evidence was sufficient to establish the element of age. Opinion testimony was offered by State's witness, Officer Rothrock, to the effect that he had previously arrested people over sixteen years of age, and that he believed the Defendant to be between twenty-five and thirty years old. Additionally, the jury had the opportunity to observe the Defendant and surmise from his appearance that he was more than sixteen years old. Identification of the Defendant at trial, together with opinion testimony by a witness as to the Defendant's age, is sufficient evidence on the issue. It is then for the jury to decide whether the Defendant is in fact over sixteen years of age. Dew v. State (1978), Ind., 373 N.E.2d 138; Chrisp v. State (1978), Ind., 372 N.E.2d 1180.

II. Motion to Suppress Evidence.

Bullock's second argument is that the court erred in overruling his pretrial motion to suppress evidence and his later timely objections at trial to the introduction of a .45 caliber gun for the reason that it was irrelevant, there being no connection established between the Defendant and the gun. Defendant bases his argument on the fact that the gun was not found in his possession and that the victim could not positively identify that particular gun as being the one used by the Defendant in the attempted robbery. The evidence did reveal, however, that the Defendant was arrested at 2906 N. Park and the gun was found fully loaded in a trash can at 2906 N. Park the day after the robbery. Furthermore, Caldwell testified that the exhibit looked exactly like the gun used, although he admitted he could not distinguish one .45 caliber gun from another. It is proper to admit a weapon into evidence when the victim testifies that it looks like the one used during the commission of a crime. Any objection to its sufficiency goes to its weight, not its admissibility. Horn v. State (1978), Ind.App., 376 N.E.2d 512; Pullins v. State (1970), 253 Ind. 644, 256 N.E.2d 553. In Poindexter v. State (1978), Ind., 374 N.E.2d 509 our Supreme Court held as follows:

"(T)his Court has held that positive proof of authentication of an object is not necessary for the admission of the object into evidence. Elliott v. State (1972), 258 Ind. 92, 279 N.E.2d 207. Any fact which legitimately tends to connect the defendant with a crime is admissible when only a reasonable inference may be deduced from such evidence. Hill v. State (1978), Ind., 371 N.E.2d 1303; Hamp v. State (1973), 157 Ind.App. 567, 301 N.E.2d 412."

The fact that the gun was found in the immediate vicinity of Defendant's arrest, coupled with evidence that a gun identical to the one found was used in the robbery, constitutes a sufficient connection between the exhibit and the Defendant to allow introduction of the exhibit even if it was not shown that the gun had ever been in the Defendant's possession. Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51; Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d 229.

III. Reopening Opening Statement.

Bullock's third argument is that the trial court erred in permitting the State to reopen its opening statement after its failure to set out all the elements of the crime pursuant to I.C. 35-1-35-1, which requires the prosecutor to "state the case". This issue has been waived by Defendant's failure to make the opening statement, or any proceedings thereon at the time of the opening statement, a part of the appellate record. State v. Bryant (1975), Ind.App., 338 N.E.2d 690.

IV. Reopening State's Case in Chief.

Bullock next contends that the trial court erred by allowing the State to reopen its case in chief to call another witness after it had rested. He concedes that it is within the sound discretionary power of the trial court to pass on a motion to reopen, taking into consideration the interests of fairness and justice in allowing the entire case to be presented. Asocar v. State (1969), 252 Ind. 326, 247 N.E.2d 679. Defendant has failed in his Brief to point out what harm he suffered by the court's ruling and therefore we find no abuse of discretion by the trial court. Pawloski v. State (1978), Ind., 380 N.E.2d 1230 (handed down October 10, 1978).

V. Notice of Alibi.

Bullock next argues that the trial court erred in allowing the prosecutor to present evidence that he was at the scene of the robbery or that he participated in it, because the prosecutor failed to properly answer his notice of alibi which Defendant filed pursuant to I.C. 35-5-1-1 2 and I.C. 35-5-1-2. 3 He relies on I.C. 35-5-1-3 which provides:

"(a)t the trial, if it appears that the prosecuting attorney has failed to file and to serve upon the defendant or upon his counsel the prosecuting attorney's statement as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the prosecuting attorney, exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in the defendant's original notice."

On March 19, 1976, Bullock filed his notice of alibi with the clerk of the trial court and gave an additional copy to the clerk to be placed in a "prosecutor's box". He contends that this procedure was sufficient to constitute service of notice on the State because the trial court's rules expressly permitted this procedure. The State replies that two copies of any rules formulated by the trial court shall be furnished to the Clerk of the Supreme and Appellate Courts, as required by Ind. Rules of Procedure, Trial Rule 81. A search of these rules by the State revealed that no such rules were on file. Furthermore, the Defendant in his Brief did not include a copy of this alleged trial court rule nor can we find such a rule in the record of these proceedings. 4 The State therefore argues that the Defendant did not serve a copy of the notice upon the prosecutor within ten days prior to the trial date of March 29, 1976 as required by I.C. 35-5-1-1, and that failure of the Defendant to timely serve the notice of alibi on the State forecloses the Defendant from objecting to the State's alleged failure to file an answer.

Bullock responds that even if the notice was not properly served, the State had knowledge of it from the court records, as is evidenced by the fact that the State filed an answer on March 26, 1976 with the trial court. Bullock claims, however, that no answer was served on him or his attorney, nor were they aware before the trial that an answer had been filed. The Defendant argues that an allegation of the deputy prosecutor that the answer was given to an employee for mailing does not constitute proof of mailing. Furthermore, he points out that the State's answer did not contain a Certificate of Service.

Finally, the State, citing Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745; Reed v. State (1963), 243 Ind. 544, 188 N.E.2d 533, and I.C. 35-5-1-3, argues that an unacceptable delay by the State in serving its answer to a notice of alibi is remedied by a continuance, and failure to seek a continuance for this purpose constitutes waiver of the issue. The Defendant did not request a continuance.

We find...

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