Conard v. State

• Decision Date: 06 December 1977
• Docket Number: No. 3-1175A260,3-1175A260
• Citation: 369 N.E.2d 1090,175 Ind.App. 43
• Parties: William R. CONARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1090

369 N.E.2d 1090

175 Ind.App. 43

William R. CONARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-1175A260.

Court of Appeals of Indiana, Third District.

Dec. 6, 1977.

Lee J. Christakis, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant William Conard was convicted by a jury of the crime of robbery ¹ and sentenced to a term of not less than ten nor more than twenty-five years. Conard timely filed a motion to correct error, which was overruled by the trial court, and subsequently perfected this appeal.

The defendant presents two issues for consideration. In light of the determination that Conard's conviction is not supported by sufficient evidence, the issue concerning the admission of a "mug shot" photograph need not be discussed.

When questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences to be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. Fletcher v. State (1976), Ind.App., 352 N.E.2d 517. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that a reasonable inference of guilt beyond a reasonable doubt may be drawn therefrom. Lisenko v. State (1976), Ind., 355 N.E.2d 841; Lewis v. State (1976), Ind.App., 346 N.E.2d 754. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons could not form inferences with regard to each material element of the offense so as to ascertain the defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), 157 Ind.App. 59, 299 N.E.2d 233.

The facts of record and the reasonable inferences therefrom most favorable to the appellee State establish that on the afternoon of January 18, 1975, two young men entered the A & B Grocery in Hammond, Indiana, selected several items, and brought them to the counter. Iva Meyers, the store clerk, computed the price and bagged the groceries. But instead of paying, one of the men handed a note to the clerk, pulled a gun from his pants, and said, "I hope you understand." The note read, "put the money in the sack." Mrs. Meyers complied, and the men walked out of the store unhurriedly. Through the nearby intercom, Mrs. Meyers informed the store owner, Gloria Smith, of the robbery.

Mrs. Smith, who resided above the store, had noticed a gold color Chevrolet parked some distance from the store entrance. A man was seated at the wheel. Shortly thereafter she learned of the robbery. She watched the men enter the car and copied the license number as the car departed. Meanwhile, her son telephoned the police. Gloria Smith testified that the man depicted in State's Exhibit No. 4, William Conard, was the same person she had seen sitting in the car on the day of the robbery.

While Henrietta Chapa walked through the grocery parking lot, she noticed a man walking toward a beige color car with its engine running. As she entered the store, two men departed in the direction of the beige color car. Miss Chapa identified the man pictured in State's Exhibit No. 4 as the man she had seen in the parking lot on January 18, 1975.

At the time of defendant's arrest on January 26, 1975, he was a passenger in a car which matched the description and license number given by Gloria Smith.

Conard was charged with robbery. Conviction on that charge requires proof by the State beyond a reasonable doubt that the defendant unlawfully took from the person of another an article of value by violence or putting in fear. IC 1971, 35-13-4-6 (Burns Code Ed.); Vasco v. State (1975), Ind.App., 324 N.E.2d 826. There is no evidence to indicate that the defendant was a principal in the robbery.

In Indiana, however, an accessory may be charged and tried as a principal. IC 1971, 35-1-29-1 (Burns Code Ed.). Mere presence at the scene of the crime does not establish the offense of being an accessory, nor does negative acquiescence. There must be some conduct of an affirmative nature on the part of the defendant. Pruitt v. State (1975), Ind.App., 333 N.E.2d 874. Yet, it is not necessary that Conard personally committed all of the acts of robbery. Goodlow v. State (1973), 260 Ind. 552, 297 N.E.2d 803. Furthermore, a jury may infer guilt from circumstantial evidence. Hinderer v. State (1975), Ind.App., 336 N.E.2d 401 (transfer denied); Shank v. State (1972), 154 Ind.App. 147, 289 N.E.2d 315.

In Lipscomb v. State (1970), 254 Ind. 642, 261 N.E.2d 860, two men drove to a service station and purchased gasoline and cigarettes. Lipscomb then returned to the car. However, his companion, Williams, followed the attendant into the station and robbed him of $20. Williams entered the car, and as it drove away, the attendant noted the license number. When apprehended a short distance from the station, Lipscomb had no money on his person, while Williams had $27. Both men were convicted of armed robbery, but our Supreme Court reversed the conviction of Lipscomb based on insufficiency of the evidence. Speaking for a unanimous court, Judge Givan stated:

"There is no evidence in the record that the appellant was in any position to hear the conversation between the service...