Butler v. State, No. 2-577-A-155

Docket NºNo. 2-577-A-155
Citation177 Ind.App. 622, 380 N.E.2d 611
Case DateOctober 02, 1978
CourtCourt of Appeals of Indiana

Page 611

380 N.E.2d 611
177 Ind.App. 622
Charles Lee BUTLER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2-577-A-155.
Court of Appeals of Indiana, Fourth District.
Oct. 2, 1978.

[177 Ind.App. 623]

Page 612

Kenneth R. Cady, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Defendant-appellant Charles Lee Butler was charged by information with the offense of Robbery. He was convicted in a trial by jury of the lesser included offense of Assault and Battery with Intent to Commit a Felony, to-wit: Robbery. Butler was sentenced to an indeterminate period of not less than one nor more than ten years. A Belated Motion to Correct Errors was filed and subsequently overruled. Defendant perfected this appeal.

Appellant alleges the following as errors:

1. The State failed to prove that the offense alleged was committed within the venue of the court which tried the case, i. e. Marion County.

2. The conviction is not supported by sufficient evidence and defendant was denied the presumption of innocence because the trier of fact failed to reconcile all the evidence with the theory of innocence.

The facts relevant to appellant's claims are as follows:

The victim, William Overton, states that he was drinking at Holland's Bar which was established as being in the 200 block of North Illinois, Marion County, Indiana. He remembered briefly talking to the defendant, but could not state later that defendant was the one who attacked him. Overton left the bar at 1:00 or 2:00 A. M. and took a taxi cab home. The next thing Overton remembered was being grabbed and knocked down. He states his diamond ring and wallet were taken by two black men. They failed in an attempt to take his watch, but did "skin up" his arm.

Testimony by the cab driver, Larry Bland, disclosed that Overton [177 Ind.App. 624] boarded his cab at the parking lot next to Holland's Bar. The defendant and another person started to get into the cab with Overton but hailed another cab when Overton demonstrated he did not wish to ride in their company. Overton told Bland to take him home, 1217 New Jersey. En route, Bland noticed a new "Jay" cab on Illinois and later noticed the same "Jay" cab following

Page 613

him. Bland detailed the trip to 1217 New Jersey. 1 He observed the "Jay" cab stop around the corner from where he let Overton out. As Bland collected his fare, he noticed someone coming up through the yards and defendant coming up the sidewalk. Bland felt something was wrong. He left, returned by another street where he saw the "Jay" cab sitting, and then continued around the block to where he let out Overton. With his headlights pointed directly at the porch, he saw defendant and the other person hunched down over Overton on the walkway that came off the porch. The two persons ran off. Bland called the police through his dispatcher and then went to help Overton. Bland told the police that he recognized defendant, having seen him before. Bland was told to call the police if he saw defendant again. Bland saw defendant the next day and radioed the police. The police did not arrest Butler at that time, as no arrest warrant had been filed. Bland later identified Butler from a group of photographs shown to him by the police. A warrant was issued and then defendant Butler arrested.

Appellant first alleges that the State failed to prove venue.

In all criminal prosecutions, the accused shall have the right to trial in the county in which the offense was committed. Ind.Const. art. I, [177 Ind.App. 625] § 13; I.C. (1976) 35-1.1-2-1. This right can be waived by the failure of the accused to make an appropriate objection in the trial court. Martin v. State (1966), 247 Ind. 592, 219 N.E.2d 902. In Quassy v. State (1975), Ind.App., 338 N.E.2d 283 the Court of Appeals of Indiana, Second District held that:

Venue is an essential element of any criminal charge in Indiana. See, Woodall v. State (1974), Ind.App., 317 N.E.2d 900; Strickland v. State (1909), 171 Ind. 642, 87 N.E. 12; Indiana Constitution, Article I, § 13.

As such the State bears the burden of proof and this Court may not reverse a conviction if the record reveals facts and circumstances shown by the evidence (including all reasonable inferences flowing therefrom) from which the trier of fact could reasonably find where the crime was committed. See, Weaver v. State (1963), 243 Ind. 560, 187 N.E.2d 485, 487; Woodall v. State, supra; Penman v. State (1975), Ind.App., 325 N.E.2d 478, 481.

In Critchlow v. State (1976), 264 Ind. 458, 346 N.E.2d 591, the Supreme Court of Indiana held there was ample evidence from which the jury could determined that the crimes did occur within the venue alleged. In that case, there was direct evidence in the record that when the victim was approached, she was in a car parked within the county. She...

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6 practice notes
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...variously as a material Element Of a crime, and as an essential fact. With respect to the former, See Butler v. State, (1978), Ind.App., 380 N.E.2d 611; Quassy v. State, (1975), Ind.App., 338 N.E.2d 283; Jackson v. State, (1918), 187 [272 Ind. 31] Ind. 694, 121 N.E. 114. With respect to the......
  • Sizemore v. State, No. 1-1277A287
    • United States
    • January 29, 1979
    ...variously as a material Element of a crime, and as an essential Fact. With respect to the former, See Butler v. State (1978), Ind.App., 380 N.E.2d 611; Quassy v. State (1975), Ind.App., 338 N.E.2d 283; Jackson v. State (1918), 187 Ind. 694, 121 N.E. 114. With respect to the latter, See Penm......
  • Beeler v. State, No. 49A05-0307-CR-373.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 7, 2004
    ...an insufficient amount to support his conviction for possession of phencyclidine, a schedule III controlled substance. Id. at 609-10, 380 N.E.2d at 611. Citing Cooper v. State, 171 Ind.App. 350, 363, 357 N.E.2d 260, 267 (1976), our court concluded that .009 grams of phencyclidine was an ide......
  • Williams v. State, No. 1079S267
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1980
    ...was given to the jury, so there was no denial of defendant's presumption of innocence at trial. Butler v. State, (1978) Ind.App., 380 N.E.2d 611. III. Defendant finally contends that the trial court erred in admitting testimony from one witness over his objection that the testimony should b......
  • Request a trial to view additional results
6 cases
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...variously as a material Element Of a crime, and as an essential fact. With respect to the former, See Butler v. State, (1978), Ind.App., 380 N.E.2d 611; Quassy v. State, (1975), Ind.App., 338 N.E.2d 283; Jackson v. State, (1918), 187 [272 Ind. 31] Ind. 694, 121 N.E. 114. With respect to the......
  • Sizemore v. State, No. 1-1277A287
    • United States
    • January 29, 1979
    ...variously as a material Element of a crime, and as an essential Fact. With respect to the former, See Butler v. State (1978), Ind.App., 380 N.E.2d 611; Quassy v. State (1975), Ind.App., 338 N.E.2d 283; Jackson v. State (1918), 187 Ind. 694, 121 N.E. 114. With respect to the latter, See Penm......
  • Beeler v. State, No. 49A05-0307-CR-373.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 7, 2004
    ...an insufficient amount to support his conviction for possession of phencyclidine, a schedule III controlled substance. Id. at 609-10, 380 N.E.2d at 611. Citing Cooper v. State, 171 Ind.App. 350, 363, 357 N.E.2d 260, 267 (1976), our court concluded that .009 grams of phencyclidine was an ide......
  • Williams v. State, No. 1079S267
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1980
    ...was given to the jury, so there was no denial of defendant's presumption of innocence at trial. Butler v. State, (1978) Ind.App., 380 N.E.2d 611. III. Defendant finally contends that the trial court erred in admitting testimony from one witness over his objection that the testimony should b......
  • Request a trial to view additional results

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