Clay v. State

• Decision Date: 06 October 1982
• Docket Number: No. 1281S352,1281S352
• Citation: 440 N.E.2d 466
• Parties: Michael CLAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 466

440 N.E.2d 466

Michael CLAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1281S352.

Supreme Court of Indiana.

Oct. 6, 1982.

LeRoy K. New, Carmel, for appellant.

Linley E. Pearson, Atty. Gen., Carmen C. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Michael Clay, was convicted by the trial court of attempted murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.), attempted robbery, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-41-5-1, supra, and carrying a handgun without a license, Ind.Code Sec. 35-23-4.1-3 (Burns 1979 Repl.). The court also found that due to his prior criminal record, defendant was an habitual offender. For his respective crimes, he was sentenced to the Indiana Department of Correction for concurrent terms of thirty years, thirty years, and one year; his sentence was enhanced by an additional thirty years by virtue of his status as an habitual offender. In his direct appeal, he presents the following issues for our review:

1. Whether the evidence was sufficient to support the jury's conclusion that he was guilty of attempted murder, attempted robbery, and carrying a handgun without a license;

2. Whether the trial court contravened the dictates of Ind.Code Sec. 35-4.1-5-1 (Burns 1979 Repl.) when it permitted the state to introduce certified copies of prior judgments at the habitual offender hearing; and

3. Whether the court erred when it permitted a fingerprint expert to compare fingerprints taken from defendant with those which appeared on documents concerning prior convictions of defendant.

The record reveals that on the morning of September 19, 1980, defendant and Larry Colgrove, an employee of the Triangle Market, engaged in a gun battle inside the premises of the store located at 600 Massachusetts Avenue in Indianapolis, Indiana. Both men were injured in the exchange of gunfire. Defendant's claim that he acted in self-defense was rejected at trial.

I.

Defendant maintains the evidence is insufficient to support the fact-finder's conclusion that he was guilty of attempted murder, attempted robbery, and carrying a handgun without a license. He asserts there was no evidence to support the conclusion that he "acted with the culpability required for commission of the crime" and engaged in conduct which constituted "a substantial step toward commission of the crime," as necessary to sustain the convictions for attempted murder and attempted robbery. Ind.Code Sec. 35-41-5-1, supra. His challenge to the conviction for carrying a handgun without a license is predicated on the argument that the evidence does not reveal either that he possessed the handgun admitted at trial or that he lacked a license to carry it.

It is well settled that when this Court is confronted with a challenge to the sufficiency of the evidence, we may not weigh the evidence nor judge the credibility of witnesses. Rather, we are required as an appellate tribunal to examine the evidence most favorable to the fact-finder's conclusion, together with the reasonable inferences which may be drawn therefrom. If, from that viewpoint, there is substantial evidence of probative value to support the fact-finder's conclusion that defendant was guilty beyond a reasonable doubt, it will not be disturbed. Easley v. State, (1981) Ind., 427 N.E.2d 435; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. We apply this standard whether the evidence is direct or circumstantial in nature. Easley v. State, supra; Ruetz v. State, (1978) 268 Ind. 42, 373 N.E.2d 152.

Colgrove testified that at approximately 9:20 a. m. on September 19, 1980, he was counting money and canceling food stamps on the top of a milk cooler at the rear of the Triangle Market. According to Colgrove, he saw the defendant enter the store; Colgrove's suspicions were aroused by the fact that although defendant's clothes were clean, a soiled towel was hanging from his back pocket. Something "just didn't quite fit," Colgrove testified, so he watched the defendant as he first went to a soft drink cooler at the rear of the store, then returned to the front of the store. When defendant again made his way to the soft drink cooler at the rear of the store, Colgrove obtained and cocked a handgun which he kept in his work area.

According to Colgrove, he then assumed a position at the end of the meat counter where he was partially obscured from defendant's vision. Defendant then turned away from the soft drink cooler, still without any merchandise in hand, and began walking in Colgrove's direction. As he reached a point approximately six to eight feet from Colgrove, he reached into his back pants pocket and began to withdraw an object. Colgrove testified that he was in fear for his life "just as soon as I saw enough of it to know it was a gun." Colgrove raised his gun and shot the defendant, who returned the fire, shooting Colgrove twice. Colgrove fell to the floor while defendant fled.

On cross-examination, Colgrove conceded that defendant never asked him for money or stated that "it was a robbery." Witness William Robinson, however, stated that he confronted defendant in an alley outside the store, where defendant was staggering and crying for help. Defendant fell to the ground as Robinson reached him. According to Robinson, he asked defendant: "You don't mean to tell me you tried to rob that market?" Defendant's response, Robinson testified, was "Yes."

Defendant testified that the discussion between himself and Robinson was limited to the location and nature of his wounds. He also testified that he shot Colgrove because he was "scared" in that Colgrove had already shot him "for no reason." He denied that he was withdrawing his gun before Colgrove initiated the shooting. He also stated that once outside the store, he threw his gun under a car.

Police investigators who were called to the scene recovered a handgun from underneath a vehicle parked outside the market. The handgun was admitted into evidence.

This evidence is sufficient to support the fact-finder's conclusion that defendant was guilty of attempted robbery. By defendant's own admission immediately after the incident, he was acting with intent to rob the store; although he denied his statement at trial, his admission is corroborated by the evidence of his suspicious conduct within the store immediately prior to the gun battle. Likewise, defendant's presence in the store and possession of a handgun constitute a "substantial step" toward the commission of a robbery. Ind.Code Sec. 35-41-5-1, supra. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507. The commission of the substantial step toward the crime and the existence of the intent requisite to the offense were simultaneous; the evidence supports the fact-finder's conclusion that defendant was guilty of attempted robbery. Cole v. State, (1980) Ind., 403 N.E.2d 337; Zickefoose v. State, supra.

Similarly, defendant's conviction for attempted murder is sustained by the evidence. To be sure, the record does not indicate that prior to the moment when Colgrove initiated the gunfire, defendant necessarily possessed the intent to murder; nonetheless, human experience has established as common knowledge the fact that in the commission of a robbery, "victims may resist, police or bystanders may intercede." Moon v. State, (1981) Ind., 419 N.E.2d 740, 742. Defendant entered the store armed with a deadly weapon. Once Colgrove had fired a shot at defendant, he shot Colgrove twice in the chest. The use of a deadly weapon in a manner likely to cause death or great bodily harm may be sufficient to establish a defendant's intent to commit murder. Scott v. State, (1980) Ind., 413 N.E.2d 902; Zickefoose v. State, supra. Likewise, it is well established that dependent upon the circumstances, the intent to murder may occur as instantaneously as successive thoughts. Morris v. State, (1979) Ind., 384 N.E.2d 1022; Rogers v. State, (1979) Ind., 383 N.E.2d 1035. The evidence is sufficient to support the jury's conclusion that defendant's possession and use of a handgun constituted a substantial step toward the commission of murder which was coupled with the intent requisite to the crime. Scott v. State, supra; Zickefoose v. State, supra.

We also find the evidence sufficient to support defendant's conviction for carrying a handgun without a license. Defendant and Colgrove both testified he had a handgun in his possession in the Triangle Market. Defendant also testified he tossed the handgun under a vehicle outside the store; a handgun was retrieved from underneath a car outside the Triangle Market. This evidence, standing alone, is sufficient to support the conviction. Wilson v. State, (1975) 164 Ind.App. 665, 330 N.E.2d 356. Defendant has argued the evidence was insufficient in that the state failed to produce evidence of the serial number of the gun or any lack of a license to carry the gun. The argument is meritless. The burden of proving the existence of a license to carry the handgun or an exception to the licensing requirement was on defendant. Ind.Code Sec. 35-23-4.1-19 (Burns 1982 Supp.). The evidence was sufficient to support defendant's conviction.

II.

At the habitual offender phase of the proceedings, the state sought to introduce various certified documents as proof of defendant's two prior felony convictions. Over defendant's objection that the documents were inadmissible because the information therein was inadequate to satisfy the requirements of Ind.Code Sec. 35-4.1-5-1 (Burns 1979 Repl.), the documents were admitted.

Defendant here renews his contention that the various documents were inadmissible. Concomitantly, he asserts that the evidence was insufficient to support the conclusion that he qualified for status and sentencing as an habitual offender.

We disagree that proof of the prior felony convictions...